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1992 Section 3: Preview of the Court's Docket Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 1992 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview PREVIEW OF THE COURT'S DOCKET

Section: Press Preview After this term's unpleasantness, the justices may look forward to a respite. But abortion, smoking, and the religion clause are back (all in unusual forms), not to mention the deathpenalty and impeachment. No Calm After the Storm

After a term filled with blockbuster It'scases ahard and acthigh to drama,follow. the coming term could turn out to be something of an anticlimax. The justices might welcome a quieter term, one in which the alliances forged last term may have time to solidify. A term in which the justices can stay out of the spotlight for a bit, while the other branches make news-and possibly. big changes. But outside forces may not permit the Court to tread water. Already. the governor of Guam has petitioned the Court for a review of the territory's law banning abortion, apparently hoping that he can convince the Court to forget that Planned Parenthood of Southeastern Pennsylvania v. Casey. 60 U.S.L.W. 4795 (June 29. 1992). cvcr happencd. The Court could reject the Guam case out of hand. . Among the 64 cases the Court has already agreed to hear in the coming tenn are a goodly number of important cases- involving issues ranging from animal sacrifice to judicial impeachment, from home offices to smoking in prisons. And abortion is already on the docket. in the fonn of Bray v. Alexandria Women's Health Clinic. No. 90-985. which was restored to the calendar for reargument after apparently deadlocking the Court last term. Bray tests whether the blockade of abor- may agree-or at least that it wants to Lawyers arguing the case of Walter Nixon tion clinics should trigger the intervention clarify what it said in Smith. Jr. v. United Stares. No. 91-740, would of federal courts under the Ku Klux Klan An impressive array of religious groups do well to read Chief Justice William Act of 1871. and church-state separationists has sided Rehnquist's latest book, Grand Inquests. Here are summaries of some of the lead- with the church, voicing fears about other this summer. As they argue the esoteric ing cases to be argued this fall: religious practices that could be endan- history of the Constitution's impeachment * Santeria and Scalia. The most in- gered if the Santeris church loses-in- clause, they should take into account that triguing case of the fall term may be cluding shchitah, the kosher method of they ate arguing before a ranking expert Church of the Lkumi Babalu Aye Inc. v. animal slaughter. on the subject. Rehnquist's book focuses City offHialeah. No. 91-948. * Does Innocence matter? The key on two of the most notorious, if unsuc- It is the first serious test of the strength death-penalty case of the year landed on cessful, impeachment efforts in history, of Employment Division v. Smith, 494 the Court's docket in the bizarre, last- against Justice Samuel Chase and Presi- U.S. 872 (1990), Justice Antonin Scalia's minute way in which the Court has han- dent Andrew Johnson. revision of doctrine on the free-exercise dled a number of such cases in recent The issue in the Nixon case is whether The practices of clause. That case held that government years: While it granted certiorari in the the Senate violates its mandate to try "all can enforce laws against religious prac- case of Texas death-mw inmate Leonel impeachments" when it delegates to a the Santeria tices so long as the laws are applied neu- Herra on Feb. 19, it denied a stay of his committee the gathering of evidence-and religion, the trally and generally, such as the total ban execution. If not for a lower Texas court whether that question is even justiciable on the use of peyote in the Smith case. that subsequently delayed the execution, by the Court. The question was brought by trappings of In the current case, the religious prac- the Court would have been weighing the Walter Nixon Jr., who was impeached which are shown tice at issue is the sacrifice of animals- claims of innocence of a dead man. from his federal judgeship in Mississippi in 1989. David 0. Stewart, a partner in the Tony Maure cosr chickens. pigeons, doves, ducks, guinea The question before the Court in Her- above, will be fowl, goats, sheep. and turtles, to be ex- rera v. Collins. No. 91-7328. seems to D.C. office of Boston's Ropes & Gray, the Suprwne Courw act-essential to the practice of the San- have an answer so obvious that it should has argued on behalf of Nixon that the tested in what and legal issurfor teria religion, which came to the United not have to be asked: Does it violate the Senate violated its duties "by providing promises to be one and 14th Amendments to execute that 88 senators never hear the evidence USA Today and States via Cuba and now has more than Eighth 50,000 adherents in South Florida alone. an innocent person? But this Court is tak- in an impeachment case. . . . Impeach- of the most the Gannett Ners ment becomes easy. conviction is politi- The city of Hialeah. Fla., enacted a series ing the question seriously, and the Bush intriguingcases Service. of ordinances aimed at prohibiting the administration is seriously siding with cally expedient. judicial independence is killing of animals for "sacrifice" in a Texas. Solicitor General Kennth Starr sapped, and the constitutional balance of of thefall term. "ritual or ceremony.* has filed a brief arguing that the Constitu- powers is tilted forever." Since the ordinances do not prohibit the tion does not entitle a prisoner to federal * Cruel and unusual smoke. The killing of animals for food-the church habeas corpus review, even on a claim of complaint of a self-described health nut notes in its brief that the city "has not in- innocence. The government argues that who happens to be serving a life sentence terfered with the sale of lobsters to be the state appellate review process and in Nevada State Prison for murder has boiled alive"--the church claims that it is clemency are adequate to handle claims of made its way onto the Court's docket. being singled out and argues that the or- innocence. If ever there was a case pitting William McKinney claims that it is a dinances are precisely the kind of laws compassion and justice against the me- violation of the Eighth Amendment for the forbidden under Smith. The fact that the chanics of the law, this is it. Court decided to hear the case suggests it 0 The other Nixon Impeachment. SEEPREVIEW, PAGE S41

BY TONY MAURO newspaper sales boxes based on the nature PREVIEW FROM PAGE S40 While allowing newspapers to be sold of the publication they dispense. state to force him to share a cell with a While allowing newspapers to be sold five-pack-a-day smoker. He convinced the in sales boxes, Cincinnati went after in these boxes, Cincinnati went after two U.S. Court of Appeals for the 9th Circuit advertising publications-one for a that he should at least have the chance to two advertising publications-one for school, the other for a real-estate com- convince a jury on the point, so Nevada pany-under its ordinance forbidding the has appealed to the high court in Helling v. a school, the other for a real-estate distribution of commercial handbills on McKinney. No. 91-1958. public property. The publishers chi Hawaii Attorney General Warren Price company-under its ordinance lenged the ordinance on First AmendmR Ill has filed suit on behalf of 34 other grounds. states arguing on the side of Nevada forbidding the distribution of The 6th Circuit held the ordinance un- that, among other things, "a complete ban constitutional under the First Amendment. Ion smokingl would physically and commercial handbills on public and now Cincinnati has appealed in what psychologically disturb many smoking is shaping up as a major commercial- prisoners, making them more prone to property. speech case. violent behavior." A broad range of media, advertising, * The home office. The Internal Rev- and manufacturing groups are arguing cate Service is trying to stem the flow of some incriminating admissions to police The Wayne County prosecutor appealed against the ban. Government groups are taxpayers who have discovered the virtues before he was given the Miranda wanting to the high court, asking it to remedy the siding wjth Cincinnati. joining in a brief of working out of their homes-or at least and made some more after he was warned "sorry state of affairs" in which Miranda written by Richard Ruda, chief counsel of telling the IRS that they do. and after he was promised leniency if he claimn are given review in federal habeas the D.C.-based State and Local Legal In Commissioner v. Nader Soliman, talked. Michigan appeals courts sup- cases. Center. Ruda called the First Amendment No. 91-998, the IRS is battling with a pressed some of his statements but al- * Commercial speech, Cincinnati argument "yet another example of the in- Virginia anesthesiologist who declared a lowed others. Williams then filed a federal style. In Discovery Network v. Cincinnati. genuity of counsel in fashioning constitu- home office even though he did much of habeas petition and won a reversal of his No. 91-1200, the Court will be asked tional challenges to a city's ordinary ex- his work at three hospitals. When the IRS conviction on the Miranda claims. whether Cincinnati can selectively ban ercise of its police power." 0 balked at his deductions, Soliman won a U.S. Tax Court determination that gave a broad and sympathetic interpretation of the rules on home offces. Concerned that the ruling created a loophole that anyone who does some work at home could abuse, the IRS took the case to the 4th Circuit and lost, beting the stage for high court review. 0 Labor peace. To help ensure that government construction projects are completed on time and on budget. dozens of government agencies have entered into agreements with labor unions-agreements that are now before the Court. In exchange for a guarantee of labor peace for the duration of the project, the agencies agree to require that all contractors hire only union labor. THE TOP FIVE REASONS WHY YOU SHOULD RIDE IN FALL BIKE FEST '92 Two consolidated cases-Massachu- sers Water Resources Aurhority v. Asso- dated Builders and Contractors. No. 91- 274, and Building and Construction 5. You have your choice: 25, 30, 50, 70, 75, or 100 miles. Trades Council v. AssociatedBuilders and Contractors, No. 91-261--tst the agree- Routes for every level of interest!! ments that were made in the $6 billion Boston Harbor cleanup project. Associ- ated Builders and Contractors-which has 4. You won't have to worry about your own medical, challenged similar deals elsewhere- mechanical, or sag support - when you ride with us, we claims that the agreements violate con- of you! tractors' rights to bargain freely with their take care workers. 0 RICO and porno. Ferris Alexander 3. PRIZES, PRIZES, PRIZES... A trip to Hawaii for the Sr. was convicted on federal obscenity and second racketeering charges for the distribution of top fundraiser and guest; Fila Bicycle for the seven specific magazines and videotape in top fundraiser, Crate & Barrel Gift Certificates; Bike the Minneapolis area. In Alexander v. Shop Gift Certificates; 'The Best Looking Helmet Cover United States. No. 91-1526. the 73-year- old man is not challenging his six-year I've Ever Seen" helmet cover. prison sentence, but he is attacking the massive RICO penalty that flowed from The best view of the fall foliage is from your bicycle the conviction: an order that be forfeit his 2. entire chain of 13 retail bookstores, in- seat. cluding an estimated $8.9 million in business proceeds, aswell as the property and assets. 1. MAKE A DIFFERENCE to more than 3,500 people in After Alexander lost before the 8th the greater Washington area who live with multiple Circuit. the goverment destroyed his entire inventory of books and tapes, sending sclerosis every day. three tons of material to a garbage- proesainA plant. Alexander asks whether the First Center hosts 30. 70, Amendment allows the seizure of his non- On Sunday, September 13. the Fairfax Government obscene materials simply because he also and 100 mile rides through Northern Virginia. On Sunday, October 11. sold material found to be obscene. It will Holberg's Delicatessen at the Sheraton-Potomac Hotel hosts 25, 50, and 75 be intriguing to see whether the Court mile rides through Montgomery County, Maryland. views this as a case of government over- kill, as it did Jacobson v. United States. All riders enjoy famous MS hospitality-fully equipped rest stops, delicious 112 S. Ct. 1535 (April 6. 1992). the child and nutritious snacks and lunch, and the best volunteers in town. pornography decision of last term. 0 Gutting Mirands. In Stone v. Pow- ell, 428 U.S. 465 (1976). the Court ruled Don't miss this tour! Call the FALL BIKE FEST HOTLINE that 4th Amendment claims should not be at (202) 466-6151 for more information. raised in federal habeas corpus petitions if they were fully and fairly reviewed in state courts. A case to be argued this fall, With- row v. Williams. No. 91-1030. seeks to apply the same rule to Miranda claims. The case involves the conviction of Robert Williaims on charges relating to a 1985 murder in Michigan. Williams made Court Postpones Abortion Protest Case Justices Order New Arguments in Fall Over Blockade of Va. Clinic adjourns this summer is a potential- cies to deprive people of their civil By Ruth Marcus ly much broader ruling on abortion, rights can be used to stop abortion when the justices are called upon to clinic blockaders. The Supreme Court yesterday determine the degree of constitu- Although the court gave no rea- put off one of the most important tional protection for abortion rights son for its action in the Operation* cases of the current term whether in a Pennsylvania case. The law at Rescue case, many observers on federal courts have the power to issue in that case requires married both sides of the issue speculated stop Operation Rescue antiabortion women to notify their husbands be- that the court is evenly split on the protesters from blocking access to fore having abortions and imposes a case. justice Clarence Thomas was clinics. 24-hour waiting period on all wo- not yet a the court when the case The court, without explanation, men seeking abortions. was argued last October. and he The case the court didn't decide ordered a new round of arguments could become the deciding vote. next fall in the case, which involved yesterday, while having broad im- In other action yesterday, the plications for abortion clinics and an Alexandria abortion clinic that court: won a court order stoppinrtOper* their patients, was not technically on right to abortion. m Ruled 6 to 3 that Hawaii's ban stion Rescue protesters from block- about a woman's write-in voting in both primary and ading the clnic. Instead, it concerned whether an Still to come before the court 1871 law that prohibits conspira- See ABORTION. A8, CoL

Supreme Court Puts Off Abortion Clinic Protest Case to en- civil rights laws in recent years. triggered charges from some abor- means that legal remedies ABORTION,FromAlABORIONFrn I tion rights supporters that the con- sure women's right to abortion re- would be on the side of Operation federal law,* said Helen Rescue. general elections does not violate servative-doninated court was act- main under executive director of the Another possibility is that, at- citizenls' constitutional rights. ing to protect President Bush from Neuborne, its NOW Legal Defense Fund, which though a majority of justices agreed justice Byron R. White said the a ruling that could cause him pouit- they Bush administra- brought the case. However, she on the outcome o( the case, Hawaii law, similar to that in three ical damage. The about the reasoning tion entered the case, Bray . Al- said, 'I think its probably just a were splintered other states, imposed only 'a very that additional time and an on voters' rights to randria Women's Health Cinic, on short-term win.R and hope limited* burden additional vote might forge a more of their choice the side of the Operation Rescue Operation Rescue spokesman support candidates Bob Jewitt said the court's action cohesive rationale. and was justified by the state's de- protesters searching for Kim Gandy, executive vice pres- will not affect the group's inmewdi- Court observers sire to guard against 'party raiding' Usual Clues about what might be going on and avert 'di- ident of the National Organization ate plans. 'It's business as at the primary stage Rescue.* he said. in the case speculated that the ma- sore-loser candidacWies n for Women. denounced it as 'a po- with Operation been assigned to visive. court ... 'bviously, we would have lked the njority opinion has the the general election, litical act by a political " a nn ...-- ,t ina t,,tice Antonin Scalia, one of Justice Anthony M. Kennedy. ceary itene tpotpone a po cour to Comte a our favor and eliminate the injunc- joined by Justices Harry A. Black- litically sensitive decision, ad a to do ev- bers. of the eight justices who sat in political firestorm for tions. but we'll continue mun and John Paul Stevens. dis- possible Scalia is the only one to after the elec- erything that we have been doing October, sented in the case, Burdick v. George Bush, until all along." have written just one opinion. Takush It is not expected the rul- tion* The law at issue in the case, pop- ing would have any impact on Ross Many observers-even those An order that a case be reargued of, par- ularly known as the Ku Klux Klan Perot's undeclared, independent who support abortion rights-dis- is unusual, but not unheard ticularly when- a resignation has Act because it was enacted in re- campaign for the presidency be- cerned less sinister motives. after rendered the court one justice sponse to attacks on blacks cause he and his supporters intend 'If an action like this were taken case been interpreted for political reasons, some member short, This term, three other the Civil War, has to have his name on each state's by the court to cover "class-based" ballot. of the court would have dissented have been set for reargument, coi- hostility. The justices have never for reargument in pared to none in each of the previ- w Agreed to decide whether Saudi from the order" said whether women are protected Arabia may be sued in U.S. courts the fail, said Duke University law ous two terms. is unusual that the justices by the law, and the direct question for allegedly torturing a U.S. citizen professor Walter Dellinger, an It an- case is abortion rights advocate. would wait eight amths before before them in the abortion for exposing safety problems at a whether ^women seeking abortions" Riyadh hospital. The Bush admnin- One immediate effect of the case nouncing a ruling would be delayed. are covered. that there was a joined the Saudi govern- is to leave federal judges with the It could have been istration after the preliminary vote The case does not necessarily ment inurging the court to hear the power to issue orders against Op' majority following oral argument, but that a call on the court to address the case. Saudi Arabia . Nelson, and eration Rescue blockades. Opera- vote af- protection tion Rescue has announced plans to justice switched his or her scope of constitutional overturn a federal appeals court and dissenting op. for abortion rights because the civil protest at the Democratic and Re- ter the majority in the case .ruling that allowed the lawsuit to go inions were drafted and circulated. right primarily at issue forward. publican national conventions this is whether the blockades interfered in Wichita. Kan., Many observers expect that any The court's action on the Oper- summer, as well as has with patients' constitutional right to and Baton Rouge, IA. majority on the court, which ation Rescue case, Comning nearly adopted a narrow interpretation of interstate travel. eight months after the argument, 'At least for the time being, it q her the v ge of Crestwooi Prayer Ruling May Not Be Ill., violated the Constitution when sponsored r- Italiananguage Catholi mas as part of aw an a Italia Court's Last Say cultural festivaL The Unit State on Subject Court of Appeals for the Seventh Ch cuit. InChicago, said it did. (Crestwoo v. John Doe, No. 901573). By UNDA GREENNOUSE 9 Whether the University of Ala Spe.w Nw~1Ti0mes.v bama violated the Constitution b WASHINGTON, June 25 - While the theWschool.". warning a professor to stop telling t Supreme Court decisively reaffirmed When the Supreme Court has an is- students about his Christian beliefs its school prayer precedents with its sue under consideration. it typically including the assertion that the humat ruling on Wednesday on graduation hos all new cases that might be at- body was designed by God. The Unite prayers, the Justices are not necessar- fected by the eventual decision. Once States Court of Appeals for the Ilti ily about to withdraw from the battle the decision is Issued, the Court then Circuit, inAtlanta, upheld the universi over the constitutional boundary be- has three choices: to send the other ty. (Bishop v. Delchamps. N6. 91-28.) tween church and state. cases back to the lower courts, in- The Court is also being asked to Sometime before the Court es tructing those courts to reconsider decide to rule on whether city seal for the summer in the next few days. their rulings in light of the new Su- that include religious imagery violat the Justices will probably Indicate preme Court decision; simply to deny the Constitution. The Seventh Circut whether they plan to re-enter the rview. which Agaves the lower court declared the seals of two Illinis town: church-state fray during the new term decisions standing as if no Supreme to be unconstitutional for depicting that begins in October. They have Court appeal had ever been filed, or to crosses, while the United States Cour many cases from which to choose, any grant review itself. of Appeals for te Fifth Circuit, in New one of which could reignite a far-reach- While it takes five votes to win a case Orleans, rejected a similar challenge Ing constitutional debate with an out- In the Supreme Court, It to the city seal of Austin. Tex., which is takes only four a copy of the seal used since the 18th come thatIs far from clear in advance, votes under the Court's rules to grant century For the last 15 months, ever since the review. Given the vigorous dissent by by the family of Stephen F. Court agred to decide the Providence four Justices in the commencement Austin, the founder of Texas. The seal school prayer case that was the subject prayer case on Wednesday, the likeli- depicts a cross flanked by a pair of of Wednesdays ruling, the Court has hood that the Court will accept one of wings. (Murray v. Auston, No. 91-1462). put on hold every new appeal that the other religion cases for decision raised my question of how to Interpret appears to be strong the clause of the First Amendment that The likelihood is enhanced because prohibits a governmental "establish- of the way the majority handled the ment" of religion, prayer case on Wednesday. While the Reflects Legal Ferment case appeared to give the Court an By now, a dorn such opportunity for re-examining, or over- awaiting action, an unusually high me", claseprees the estabsh number that reflects th ft clueraeamhefie-eme In courts and communities around the country over church-state issues. The cum,am ,,om ,,eryp country, from Vroto awail, ' and A dozen church- from eight of the 12 geographical Fed- eral appellate circuits. - state cases. One The ase a the of clasht es volvementsover-" in a wide array eiwtiousof contexts, W.-may tempt the from religious observance an t job, to ethnic festivals with a religious fla. ustces ver, to prayer In courtrooms, to religious imagery on municipal seals. There are even disputes over 1el- majority did not take that course. Jus- ,on ic n M. Kennedy w fo s ce e u aw le wasre decision on Wednesday. In that case, revisit the precedents because com- Lee v. Welsnan, the Court ruled 5 to 4 mencement payer #tiotated the First that the First Amendment prohibits Amendment under any approach the public schools from inviting members Court might take. of the clergy to offer prayers at gradu- But several of the cases now before ation ceremonies, the Court call the precedents directly Would the outcome have been differ- ito question. The four dissenters in eant if the prayer was offend not by an Wednesdays ruling - Justices An- adult clergyman but by a student vol. tonin Scalla, Clarence Thomas, Byron unteer? That is the question in a case R.Wite, and Chief Justice William H. called Jones v. Clear Creek (Tex.) In. Rehnquist - may. relish the chance to dependent School District. Na 91-310. give Justice Kemnedy such a case. The United States Court of Apeals for Cases Before the the Fifth Circuit. in New Orleants, ruled Juitices last year that there was no coasts. Among the other cases before the tional violation in a student volunteer Court are ones that pose these ques- offering a tonsectar ian Ivocation and tios: benediction at a high school gradus. 4 Whether the display of a privately tion, owned Hanukkah menorah in a city Or would the constitutional analysis park that is open to other religious be different if the issue was not prayer displays violates the First Amend- at at, but a personal, silent form of ment. The United States Court of Ap- religious obso.-vance in the classroom? Peals for the Second Circuit. in New One of the cases, Roberts v. Madi. York, said it does. (Chabad-L.ubavitch gan, No. 90-1448, is an appeal by a fifth- of Vermont v. City of Burlington, No. grade teacher in a suburban Denver 9148). public school who kept a Bible on i q Whether a judge violates the Con- desk and read it during recess time and stltutioo by offering his own religious during a 15-minute period he gave hi invocation at the start of each court students each day for silent reading, session. The United States Court of The school principal ordered da Appeals for the Fourth Circuit. in Rich- eacherto.keep.the Bible out.af sight mnd. Va. sid yes. (Constangy v. during the school day. The United North*CarOinaIt tliberties Unlan, States Court of Appeals for the 10th No 91-1178). Circuit, in Denver, rejected the teach. q Whether it violates the Constitution er's challenge to this order, c for a state to designate Good Friday as that the keeping the Bible in sight sent a public holiday. as Hawaii and 12 other "a message of endorsement of religion states hav done. The United States in a manner that might resMoably be Court of Appeals for the Ninth Circuit, to bear the Imprimatur or in California. said no. (Cammack v. Wethe. No& t91-7961. Supreme CourtPlans to Consider Prisoner'sRight to Smoke-Free Cell eight feet by 16 feet, with a five-pack-a- day smoker. The 44-year-old McKinney claims that the secondary smoke endan- gered his health and shortened his life. (See "These Inmates Really Want to Kick Butts," June 24, 1991, Page 1.) The case, which is similar to others pending in various circuits, could set the ground rules for whether correctional officials have a duty to protect inmates from secondhand smoke. ."The case will decide whether prisoners are second-class citizens when it comes to the hazards of cigarette smoking," says Cornish Hitchcock, an attorney with the Public Citizen Litigation Group who is representing McKinney before the Supreme Court. The Nevada attorney general appealed the case from the U.S. Court of Appeals for the 9th Circuit, which decided earlier this year that McKinney ought, at least, to have the opportunity to prove to a jury that his health has suffered as a result of his exposure to smoke. He must also prove that prison officials showed "deliberate I indifference" to his health risks. Courts have already ruled that inmates have a constitutional right to regular outdoor Cornish Hitchcock's client says exercise and fresh air. he suffers from others' smoking. In appealing the case to the Supreme Court, Nevada was joined by 34 other The Supreme Court has agreed to hear states and the District of Columbia in arguments next term on whether prisoners amicus briefs. They argue that requiring have an Eighth Amendment right to a the segregation of smoking prisoners from smoke-free cell. non-smoking prisoners would place an Last week, the high court granted cert in undue burden on correctional systems, as a case brought by William McKinney, a well as open states to an avalanche of convicted murderer serving a life sentence Eighth Amendment claims brought by dis- in the Nevada State Prison. McKinney, a gruntled inmates. self-described health nut, contends that he Arguments are expected to be scheduled was subjected to cruel and unusual punish- for December. ment when he was forced to share a cell, -Linda Himelstein

Court to Hear Inmate's Smoke Suit Cot samidMonday it will W decideASHINOTN-The whIther nonsmokers Supreme in pison have a constitutionai right to be free from secondary tobacco smoke. The court agreed to review a Nevada inmate's claim that environmental tobacco smoke unlawfltly threatens his health. A decision is expected in 199. A federal appeals court ruled expom to secondary smoke can be aconstitutional violation if it poses an unreasionable health risk. * But Nevada officials argue "Permiang inmates to prevail on an Eighth Amendment claim ... that eosre to others' tobacco smoke 'may* create a posible fature health risk takes away from prison officials the discretion and flebility needed to properly and safety classify and house inmates.' The Eighth Amendment to the Constitution prohibits cruel and unusal punishment. - The U.S. 9th Circuit Court of Appeals saM convicted killer William MclCinney Isentitled to a trial for his lawsult. which seekI monetary damages and to have him placed in a smoke-free environment. -AseedstafPress PREVIEW OF THE COURT'S DOCKET

Section Lower Court Opinions for Morning Session

Alexander v. Thornburgh Discovery v. Cinncinati, Ohio National Organizationfor Women v. Operation Rescue McKinney v. Anderson Cases Awaiting Review: Guam v. Ada, Zobrest v. CatalinaFoothills School District, McNary v. Haitian Centers Council 91-1526 ALEXANDER v. U.S. 90-985 BRAY v. ALEXANDRIA WOMEN'S Obscenity-Forfeiture under rack:*eering stat- HEALTH CLINIC ute-Closure of bookstore chain-Prior restraint-Cruel and unusual punishment. Abortion-Ban on obstructing access to clinics- 42 USC 1985(3). Ruling below (Alexander v. Thornburgh, CA 8. 943 F2d.825): Ruling below (National Organization for Women v. Operation Rescue, CA 4, 914 F2d Dcfcndant's convictions of selling obscenity, 582): which served as predicates for additional convictions under Abortion opponents' actions in blocking access Racketeer Influenced and Corrupt to abortion Organizations statute. 18 USC 1961-68. support- facilities in Washington, D.C. metro- ed forfeiture under RICO of commercial real politan area, to which substantial numbers of estate and business inventories that district court women travel interstate, infringe rights of women determined to be derived from proceeds of racke- seeking abortions to travel in interstate commerce tcering enterprise, pursuant to 18 USC in violation of 42 USC 1985(3), which forbids 1963(a)(2): First Amendment is not violated by conspiracy for purpose of depriving any person or RICO forfeiture when government establishes class of persons of equal protection or equal nexus between ill-gotten gains from racketeering privileges and immunities; district court's holding activity and protected materials forfeited; use of that gender-based animus satisfies "purpose" ele- RICO forfeiture in this case constitutes criminal ment of Section 1985(3) has been forecast in this penalty for conducting racketeering enterprise circuit by Buschi Y. Kirven, 775 F2d 1240 (1985), rather than prior restraint in violation of First which held that animus against classes defined by Amendment; nor does forfeiture in this case im- "race, national origin and sex" meet requirement pose unconstitutional chilling effect on protected of class-based animus within meaning of Section expression: forfeiture order limited to profits, real 1985(3). district court therefore properly en- estate, and businesses directly related to defen- joined such actions, and its award of costs and dant's interstate transportation and sale of ob- attorney's fees is affirmed. scene materials is not unconstitutionally over- Questions presented: (1) Do "women seeking broad: sentence and forfeiture order were not abortions" constitute valid class for purposes of grossly excessive or disproportionate in violation class animus- requirement of 42 USC 1985(3)? of Eighth Amendment's proscription against cru- (2) Is opposition to abortion per se discrimination el and unusual punishment. against women for purposes of "class animus" Qucstions presented: (I) Does RICO forfeiture requirement of 42 USC 1985(3)? (3) Do purely constitute prior restraint of kind condemned in private actors who hinder access to abortion facil- Near v. Minnesota, 283 U.S. 697 (1931), or ity violate federal constitutional right to inter- otherwise violate First Amendment. when used to state travel merely because some patrons of facility come from out of state? (4) Are respondents' close S25 million chain of bookstores, video claims stores, and theaters, to confiscate all their proper- under 42 USC 1985(3) so insubstantial as ty including five years* proceeds. and to burn to deprive federal courts of subject matter juris- their inventories, solely on basis of seven obscene diction? (5) Did court of appeals err by sustain- videotapes and magazines? (2) Does forfeiture of ing award of attorney's fees against petitioners? 525 million media business. in combination with Petition for certiorari filed 12/18/90, by Jay six-year prison term and fines in excess of Alan Sekulow, Douglas W. Davis, and James M. 5200.000. all as punishment for seven obscene Henderson Sr., all of Washington, D.C., and videotapes and magazines, violate Eighth Thomas Patrick Monaghan, C. Peter Thomas S. Amendment? Cornell. Walter M. Weber, and James E. Mur- Pctition for certiorari filed 3/16/92. by John phy. all of New Hope, Ky. H. Weston. Cathy E. Crosson. G. Randall Gar- rou. Clyde F. Dewitt. and Weston. Sarno. Garrou & Dewitt. all of Beverly Hills, Calif. 91-1958 HELLING v. McKINNEY 91-1200 CINCINNATI. OHIO v. DISCOVERY Cruel and unusual punishment-Inmate's com- tobacco smoke. NETWORK INC. plaint about environmental 9. Ban on distribution of commercial handbills Ruling below (McKinney v. Anderson, CA 959 F2d 853, 60 LW 2668, S CrL 1062): through newsracks-First Amendment. v. F2d 464, 60 LW U.S. Supreme Court's decision in Wilson Ruling below (CA 6. 946 which held that 2272. 19 MedLRptr 1449): Seiter. 59 LW 4671 (1991). elements needed to establish Eighth Amendment City ordinance banning distribution of "com- involving prison conditions include subjec- claim earlier mercial handbills" through newsracks on public tive intent to punish, does not undermine 1990), property, while allowing such distribution of ruling. 924 F2d 1500. 48 CrL 1459 (CA 9 newspapers, is more extensive burden on commer- that Eighth Amendment's objective element is cial speech than is necessary to alleviate govern- satisfied by proof that prisoner has been housed mcntal aesthetic and safety concerns and thus that exposes him to levels of in environment of violates First Amendment. tobacco smoke that pose unreasonable risk Qucstions presented: (1) Is decision below, af- harm: case is remanded to district court for deter- firming decision of district court that statutory mination of whether prison officials were deliber- scheme of Cincinnati violated plaintiffs First ately indifferent to inmate's long-term exposure Amendment rights. in conflict with decisions' of to environmental tobacco smoke. and not justified Seventh and Eleventh Circuits Question presented: Does state prison inmate under this court's decision in Central Hudson claim for cruel and state Eighth Amendment of Gas d Electric Co. v. Public Service Commission unusual punishment by alleging, in absence of New York, 447 U.S. 557 (1980)? (2) Is problems. that compelled exposure decision below, which requires Cincinnati to af- any medical to secondary tobacco smoke poses unreasonable ford equal First Amendment protection to both health, and did court below properly risk to his court) commercial and non-commercial speech publica- address this issue on remand from this tions that are-distributed through use of boxes unconstitutional aggravating placed in public right of way inconsistent with constitutional and circumstances, when law of state that imposed this court's decision in Metromedia v. City of sentencer to weigh these aggra- San Diego, 453 U.S. 490 (1981)? sentence requires vating circumstances against mitigating circum- Petition for certiorari filed 1/9/92, by James in determining penalty? F. McCarthy Ill, Fay D. Dupuis, City Sol., stances for certiorari filed 1/15/92, by Timo- William M. Gustavson. Dpty. City Sol.. and Petition & Bayless. thy K. Ford and MacDonald, Hoague Mark S. Yurick. Asst. City Sol., all of Cincin- and Carla Ryan. of nati. Ohio. both of Seattle. Wash., Tucson. Ariz. ALEXANDER v. THORNBURGH 825 Cte as 943 P.2d 825 (8th Cr. 1991) that he ,nsistent" with Fulcher's assertion hud abandoned the laboratory. Ferris ALEXANDER, Appellant, On appeal Fulcher cites U.S.S.G. § 2D1.4 V. district ,plication note 1, arguing the Richard THORNBURGH, in his official court committed error in failing to exclude be- capacity only as Attorney General aounts he did not intend to produce of the United States, Appellee. cause he had abandoned the laboratory and, in any event, was not reasonably capa- UNITED STATES of America, Appellee, ble of producing. We disagree. The language in section 2D1.4 application note 1 V. that Fulcher relies on applies to sentencing Ferris Jacob ALEXANDER, Sr., a/k/a determinations for offenses involving nego- Pete Saba, Peter Saba, Paul Saba, John dtions to traffic in a controlled sub- Thomas, Bob Olson, Jim Nelson, Jim stance--not to sentences for attempting to Peterson, James Peterson, Robert Carl- manufacture a controlled substance when son, Frank Netti, Appellant does not reflect the amount of drugs seized Nos. 89-5364, 90-5417. the scale of the offense. In our view, the district court properly applied application United States Court of Appeals, note 2 by calculating the quantity of am- Eighth Circuit phetamine that Fulcher's laboratory could have produced. See United States v. Ev- .Submitted March 13, 1991. ans, 891 F.2d 686, 687-48 (8th Cir.1989) Decided Aug. 30, 1991. (court properly calculated production capac- Rehearing and Rehearing En Banc ity based on chemicals seized), cert. de- Denied Oct. 30, 1991. nied, - U.S. -, 110 S.Ct. 2170, 109 LEd.2d 499 (1990); United States v. Wag- ner, 884 F.2d 1090, 1097-98 (8th Cir.1989) Defendant was convicted in the United (court adopted expert chemist's testimony States District Court for the District of regarding laboratory's production capacity, Minnesota, James M. Rosenbaum, J., of tax rejecting defendants' argument that lower. offenses, obscenity offenses, and Racke- quantity was more reasonable given their teer Influenced Corrupt Organizations Act inexperience), cert. denied, - U.S. -, (RICO) violations, and he appealed. The 110 S.CL 1829, 108 LEd.2d 958 (1990). Court of Appeals, John R. Gibson, Circuit Fulcher pleaded guilty to an attempt to Judge, held that: (1) application of RICO manufacture amphetamine. That Fulcher forfeiture provisions did not violate First may have abandoned his efforts to manu- Amendment, and (2) forfeiture order did facture the drug neither affected his labo- not violate Eighth Amendment prohibition ratory's production capacity nor altered the against cruel and unusual punishments and fact that when he set up the laboratory he excessive fines. intended to produce a large quantity of Affirmed. amphetamine. Thus, the district court properly considered the production capacity Of Fulcher's laboratory when calculating 1. Conspiracy 048.1(1) the total quantity of amphetamine involved. Whether a conspiracy is one scheme or Accordingly, we affirm Fulcher's sen- several is primarily a jury question. tence. 2. Conspiracy e24(2) General test as to whether a conspiracy is one scheme or several is whether there was "one overall agreement" to perform various functions to achieve the objectives of the conspiracy. 143F 2d-20 826 943 FEDERAL REPORTER, 2d SERIES 3. Conspiracy e24.5 als. 18 U.S.C.A. § 1962; U.S.C.A. A conspirator need not know all of the Amend. 1. all the other conspirators or be aware of 9. Constitutional Law 490.4(4, 6) so long as evi- details of the conspiracy, Forfeitures -3 dence is sufficient to show knowing contri- Forfeitures bution to the furtherance of the conspiracy. ordered as result of a dant's conviction of Racketeer Influ' 4. Conspiracy 047(9) Corrupt Organizations Act (RICO) Evidence supported finding of a single predicate obscenity offenses, which conspiracy to defraud government by de- limited to profits, real estate, and busi feating lawful functions of Internal Reve- es directly related to defendants inters nue Service, rather than a series of sepa- transportation and sale of obscene ma. rate conspiracies. 18 U.S.C.A. § 371. zines and videos, did not result in an unom. stitutional prior 5. Conspiracy -43(10) restraint, did not impos an unconstitutional chilling Indictment charging defendant with effect on consg, tutionally protected expression, and wa conspiracy to defraud United States by de- not constitutionally feating lawful functions of Internal Reve- overbroad. U.S.C.A Const.Amend. 1; 18 U.S.C.A. § 1962. nue Service was not defective on ground that it should have charged defendant with 10. Criminal Law 41213.13 a conspiracy to commit a specific crime Forfeitures ordered as result of defs. where defendants conduct was long-span- dant's conviction of Racketeer Influenced ning, far-reaching, and involved many ac- Corrupt Organizations Act (RICO) chargs tivities and events. 18 U.S.C.A. § 371; 26 and predicate obscenity offenses, which U.S.C.A. § 7206(1). consisted of profits, real estate, and bus- nesses directly related to defendant's inter- Criminal Law *-1175 6. state transportation and sale of obscene Defendant was not entitled to reversal magazines and videos, did not violate of convictions for transporting and selling Eighth Amendment prohibition against cru. obscene materials on grounds that verdicts el and unusual punishments and excessive were inconsistent or the result of compro- fines. 18 U.S.C.A. § 1962; U.S.C.A. Const. mise. Amend. 8. 7. Constitutional Law 490.4(1), 274.1(3) Legal standard of obscenity enunciated Michael Mayock, Pasadena, Cal., for ap v. California did not violate Fifth in Miller pellant. Amendments due process clause or First Amendments freedom of speech provision. Paul A. Murphy, Minneapolis, Minn., for U.S.C.A. Const.Amends. 1, 5. appellee. 8. Constitutional Law 490.4(1) Before JOHN R. GIBSON and Forfeitures e2 WOLLMAN, Circuit Judges, and FLOYD Application of Racketeer Influenced R. GIBSON, Senior Circuit Judge. Corrupt Organizations Act (RICO) forfeiture provision to defendant, who was con- JOHN R. GIBSON, Circuit Judge. victed of RICO charges and predicate ob- Following a four-month trial, a jury con- scenity offenses, did not unconstitutionally victed Ferris J. Alexander, Sr., on 24 criminalize nonobscene expressive materi- counts ' of a 41-count indictment. The 1. A jury convicted Alexander on one count of § 1962 (1988) (RICO), including conspitacy to conspiracy to defraud the United States by engage in or conduct an enterprise through a impeding the lawful functions of the Internal pattern of racketeering activity, receipt and use Revenue Service in violation of 18 U.S.C. J 371 of income derived from a pattern of racketeer" (1988); two counts of filing false income tax ing activity, and engaging in the conduct of an returns in violation of 26 U.S.C. § 7206(1) enterprise through a pattern of racketeering ac- (1988); three counts of violating 18 U.S.C. tivity- twelve counts of knowingly transporting ALEXANDER v. THORNBURGH 827 Cite m 943 F.2 d 825 (8th Cir. 1991) n included conspiracy to defraud the that evidence is necessary for our par- the sale of obscene magazines and poses, and we will provide further details voeos, tax evasion, and RICO violations. as required in analyzing the issues on ap- .ecander appeals from his convictions and peal. , application of the forfeiture provisions Alexander was in the adult entertain- 18 U.S.C. § 1963 (1988). Alexander arment business for more than 30 years sell- ,es that his conviction of engaging in a ing magazines, showing movies, and even- . conspiracy to defraud the IRS should be tually selling and leasing video cassettes. reversed because: (1) the indictment al- The evidence at trial established that Alex- kged and the evidence showed, if anything, ander set up sham corporations and operat- multple conspiracies and not one conspired many of his businesses using false ger and (2) the count was defective be- names and names of employees. rath- cause it charged a general conspiracy For example, evidence showed that from specific e tan a conspiracy to violate a 1959 to 1976, Alexander used the name of convic. statute. He also argues that his an employee, Kenneth LaLonde, to conduct dons for transporting obscene materials his businesses under the name of Kenneth ver- must be reversed because the jury's LaLonde Enterprises. In 1969, Alexander He also attacks the dicts are inconsistent. hired an attorney, Robert J. Milavetz, of the forfei- who district court's 2 application incorporated several corporations under the wne provisions of RICO, arguing that the name of Kenneth LaLonde Enterprises. application of RICO: (1) unconstitutionally Alexander obtained licenses required for aiminalized non-obscene expressive materi- these businesses and opened bank accounts al and (2) violated the first and eighth under LaLonde's name. Reports were also amendments to the United States Constitu- sent to the State of Minnesota under the ion. He further argues that the obscenity name of Kenneth LaLonde Enterprises. standards set forth in Miller v. Califonia, The businesses were reported on La- 413 U.S. 15, 93 S.CL 2607, 37 LEd.2d 419 Londe's individual tax return, and no corpo- (1973), violate his due process and first rate tax returns were filed. amendment rights. He also claims that the evidence was insufficient to support his Eventually, Milavets had a falling out convictions of filing a false income tax re- with Alexander and Alexander began using other attorneys, turn, violating RICO, using a false social including Randall Tigue. In security number, and on all other counts. 1976, Tigue witnessed LaLonde's signature Finally, in a separate appeal, he appeals as the incorporator of two more corporations. from the district court's 3 entry of sum- Alexander consolidated the operation of his theaters and bookstores under mary judgment in his civil suit filed against these corporations, and on the government arguing that the use May 1, 1977, the of name of LeRoy Wendling was obscenity as a predicate to RICO violated substituted as the front name used to conduct Alexan- his first amendment rights. We affirm the der's businesses. Alexander opened Convictions, and the orders of summary bank accounts judgment and forfeiture. for these corporations under the name of Wendling, another Alexander em- The evidence presented at the four- ployee. These corporations were also re- month trial was far-reaching and spanned a ported to state and federal agencies show- thirty year period. Only a brief outline of ing Wendling as the owner. Corporate tax obscene material in interstate commerce for the 2. The Honorable James M. Rosenbaum. United Pupose of sale or distribution in violation of 18 States U.S.C. § 1465 District Judge for the District of Minneso- (1988); five counts of engaging in ta. the business of selling or transferring obscene m1aterial in violation of 18 US.C. § 1466 (1988); and one count of falsely misrepresenting a so 3. The Honorable David S. Doty, United States 5"security number for the purpose of imped- District Judge for the District of Minnesota. Ingthe IRS in violation of 42 US.C. § 408(g)(2) (1988) (now codified at 42 U.S.C.A. I 408(a)(7)(B) (West Supp.1991)). 828 943 FEDERAL RE PORTER, 2d SERIES returns were filed and signed with a signa- Tigue filed a lawsuit in the United a ture stamp of Wendling's name. District Court against the City of St. and Wendling filed his personal tax returns its council members on behalf o AL ander listing Alexander's income. This arrange- and LaLonde stating that existed a lease ment continued until the end of 1980, when between LaLonde and Alexander Wendling was fired, and the name "John The city council subsequently grantj t Thomas" was substituted on some of these license in LaLonde's name. LaLonde t records and placed on the Wendling bank fied that he became aware of the lawmrn account. Alexander admitted that the by reading about it in the newspaper, thu name "John Thomas" was "the name [he] he never had a lease on the business, a4 used." that his signature verifying the compl notarized On December 27, 1984, In Sok Na, anoth- by Tigue, was a forgery. i later er Alexander employee, executed, as incor- years, licenses were issued in L, Londe's porator and first director, the articles of name without his knowledge, bat incorporation for ten different corpora- with the participation of Tigue, and contia. tions. In Sok Na was a Korean immigrant ued after LaLonde left Alexander's employ. and spoke little English. Alexander testi- The revenues generated from Alexas. fied that he formed these corporations to der's retail and rental stores were brought avoid potential civil liability. The names of to him at the central warehouse and rnain six of the corporations were in Finnish and office where the cash was commingled and four were in a dialect of the Philippines.' taken to various banks. Alexander deposit. None of these corporations filed tax reed some of the cash in various accounts turns. Two of the corporations were used and converted the rest into large denom- to buy real estate and a bookstore. ination bills, cashier checks, and money or- In addition to using the names of La- ders. The cashier checks and money or- Londe, Wendling, and Na, Alexander used ders were payable to various individuals a number of other names in operating bank and entities. All expenses were paid out of accounts, obtaining licenses, and complying Alexander's primary bank accounts, and all with various state and federal reporting merchandise was shipped from California regulations. to his warehouse, where it was wrapped. priced, and boxed for distribution to Alex- The governments evidence showed sev- ander's retail outlets. Because of disorga- eral examples of the lengths to which Alex- nized and incomplete records, the govern- ander went to conceal his identity as the owner and operator of his various business- ment had a difficult time attempting to calculate Alexander's income. Neverthe- es. During the time Alexander ran his less, the government estimated that Alex- businesses under the name of LaLonde En- his 1982 gross re- terprises, Alexander sent Milavetz to unem- ander underreported in 1983. ployment compensation hearings and in- ceipts by $1,322,135 and $1,416,883 structed Milavetz to appear on behalf of Alexander testified about many of these Kenneth LaLonde or Kenneth LaLonde En- details. He confirmed that he used U,- terprises. In one instance, LaLonde signed Londe, Wendling, and other individuals' a license application for one of the theatres names in the operation of his businesses, known as the "Flick." LaLonde appeared and that revenues from the businesses before the St Paul City Council in the were reported on LaLonde's and Wen- licensing application proceedings acting as dling's personal tax returns. He admitted the "owner" of the business. After the that he purchased properties and submitted City Council balked at granting the license, reports to state and federal agencies in Tigue advised the Council that he repre- other people's names. He attributed many sented Alexander and LaLonde and a lease of these decisions to Tigue and stated that existed between the two. Subsequently, he had no knowledge of some of the vai- 4. The translation of these corporate names was translation as having more prejudicial value profane, and the district court excluded the than probative value. ALEXANDER v. THORNBURGH 829 Cate as 943 F.2d 825 (8th Cir. 1991) ous businesses. Alexander also admitted pieces of commercial real estate in which that he signed a form on a Paine Webber the jury found beyond a reasonable doubt investment account using a social security Alexander had an interest or which afford- number that was not his social security ed Alexander a source of influence over the number. racketeering enterprise and which the The jury found four magazines and three court concluded were acquired, maintained, videos to be obscene, and these findings or derived from proceeds of the racketeer:- were the basis for convicting Alexander of ing activity.$ Id. at 7 (incorporating Order transporting obscene material for the pur- and Judgment of Forfeiture (Aug. 6, 1990)). Alexander forfeited his interest in his pose of sale, selling obscene materials, and the RICO counts. wholesale business and thirteen retail businesses (bookstores and video stores) that After the return of guilty verdicts, the district court reconvened the same jury to were used in the criminal enterprise,.and $8,910,548.10 in monies acquired, main- hear a portion of the forfeiture proceeding under 18 U.S.C. § 1963(a)(2). The jury tained, or constituting proceeds obtained heard additional evidence, including Alex- from the racketeering activity in the years ander's testimony regarding the forfeitabil- 1985 through 1988. United States v. Alex- ity of his interest in the enterprise and the ander, No. 4-89-85, Order and Judgment property that afforded him a source of of Forfeiture, slip op. at 6, 11, 1990 WL influence over the enterprise. Thereafter, 117882 (D.Minn. Aug. 6, 1990). Alexander the district court reconvened without a jury also forfeited his interest in business assets for a further evidentiary hearing as to for- and personal property. Id. at 6-11. This feiture of any interest Alexander had ac- appeal followed. quired or maintained in violation of section 1962 and of any property constituting pro- I. ceeds obtained directly or indirectly from Alexander appeals the jury's verdict on racketeering activity. The government of- the conspiracy count (Count I) arguing that fered additional evidence of 30 magazines the count is defective in two ways. The and 16 videos purchased or seized by the indictment alleged that over the course of FBI during its criminal investigation, and twenty years, Alexander engaged in a con- an additional 418 videos and 9 magazines spiracy to defraud the United States by were admitted through the testimony of defeating the lawful functions of the IRS. witnesses who had appeared as representa- This has become known as a Klein conspir- tives of Alexander's wholesale sources. acy, taking its name from United States v. The court sentenced Alexander to terms Klein, 124 F.Supp. 476 (S.D.N.Y.1954), of imprisonment ranging from 36 to 72 affd, 247 F.2d 908 (2d Cir.1957), cert. de- months, all terms to run concurrently. nied, 355 U.S. 924, 78 S.Ct. 365, 2 LEd.2d United States v. Alexander, No. 4-89- 354 (1958). 85(1), Order and Judgment of Sentencing, Alexander contends that the district slip op. at 3 (D.Minn. Aug. 13, 1990). In court must reverse his conviction on Count addition, the court imposed a fine of $100,- I because the indictment affeged a single 000 and a special assessment of $950, and overall conspiracy and the proof at trial ordered Alexander to pay the costs of his showed not a single conspiracy, but a ser- incarceration ($1,415.56 per month), his su- ies of separate conspiracies. Kotteakos v. pervised release ($96.66 per month), and United States, 328 U.S. 750, 773-74, 66 the costs of prosecution ($29,737,84) Id. at S.Ct. 1239, 1252,'90 LEd. 1557 (1946). Al- 6-7. Finally, pursuant to 18 U.S.C. exander argues that there was not just one § 1963(a)(2), the court ordered forfeiture of conspiracy for twenty years, pointing out Alexander's interest in ten of fourteen that at the time the alleged conspiracy 5. Titles to the other four pieces of real estate der and were not forfeited to the United States Alexander used for his magazine and video busi- as a result of the jury's forfeiture verdict. nesses were held in the name of Dolores Alexan- 830 ' 943 FEDERAL REPORTER, 2d SERIES

started some key members were in high (5] Second, Alexander argues school. He further argues that he had Count I of the indictment is defective b. dismissed many of the members of the cause it should have charged him wh alleged conspiracy and that they had no conspiracy to commit a specific crime unde knowledge of later transactions. He as- 26 U.S.C. § 7206(1) (1988), rather than serts that looking at the totality of the conspiracy to defraud under 18 C.S-C § circumstances, this case is a "series of 371. Alexander relies on United Siow v. Minarik, scenes of a life of hustling" and not one 875 F.2d 1186 (6th Cir.19 891 conspiracy. and United States v. Mohney, 723 F.Sup;' 1197 (E.D.Mich.1989). [1-3] Whether a conspiracy is one In Minarik, the defendants were scheme or several is primarily a jury ques- charged with willfully conspiring to de. tion. United States v. Wilson, 497 F.2d fraud the United States-by impeding, irn. 602, 604 (8th Cir.), cert. denied, 419 U.S. pairing, obstructing, and defeating the law. 1069, 95 S.Ct. 655, 42 L.Ed.2d 664 (1974). ful functions of the Department of the As this court has stated- Treasury in violation of 18 U.S.C. § 371. 875 F.2d at 1188. The general test is whether there was The government did not allege a conspiracy to commit an offense "one overall agreement" to perform vari- against the United States-another provi- ous functions to achieve the objectives of sion of 18 U.S.C. § 371, despite the fact the conspiracy.... A conspirator need that its evidence at trial and the bill of not know all of the other conspirators or particulars alleged that the conspiracy was be aware of all the details of the conspir- one to violate 26 U.S.C. § 7206(4) (conceal. acy, so long as the evidence is sufficient ment of assets with intent to evade or to show knowing contribution to the fur- defeat assessment of tax). Id. at 1188-89. therance of the conspiracy. The Sixth Circuit stated that when Con. United States v. Massa, 740 F.2d 629, 636 gress has enacted a specific statute ad. (8th Cir.1984) (quoting United States v. dressing a given problem, thus creating a Zemek 634 F.2d 1159, 1167 (9th Cir.1980), specific offense, "[t]he court should require cert. denied, 450 U.S. 916, 101 S.Ct. 1359, that any conspiracy prosecution charging that conduct be brought 67 L.Ed.2d 341 (1981)), cert. denied, 471 under the offense clause" of 18 U.S.C. § 371, rather than U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 under the defraud clause of that statute. (1985) (other citations omitted). Id. at 1193. In Mohney, a Michigan dis- We have also stated that "[t]he existence trict court dismissed the first count in an of a single agreement can be inferred if the indictment alleging conspiracy to defraud evidence revealed that the alleged partici- the government because the government's pants shared 'a common aim or purpose' accusation in the count was essentially a and 'mutual dependence and assistance' ex- charge that defendants conspired to violate isted." United States v. DeLuna, 763 F.2d 26 U.S.C. § 7206, and therefore, under Mi- 897, 918 (8th Cir.), cert. denied, 474 U.S. narik the conspiracy had to be charged 980, 106 S.Ct. 382, 88 LEd.2d 336 (1985) under the offense clause of the.conspiracy (citations omitted). statute. 723 F.Supp. at 1203. Minaik is quite limited, however, to its (4] We are satisfied that the evidence facts. As that court explained: supported a jury finding of a single Klein [t]he "offense" and "defraud" clauses as conspiracy, spanning many years and in- applied to the facts of this case are mutu- volving numerous individuals with the com- ally exclusive, and the facts proved con- mon goal of impairing and impeding the stitute only a conspiracy under the of- IRS in determining the nature and extent fense clause to violate 26 U.S.C. of Alexander's businesses. We therefore § 7206(4).... reject Alexander's argument that Count I 875 F.2d at 1187. was defective because it failed to allege* In Minarik, the defendants engaged in a multiple conspiracies. narrow course of conduct directed at one ALEXANDER v. THORNBURGH 831 Cite as 943 F2d 825 (8thCir. 199) object-to sell a house and get the money single sale of the magazine "Sweet." in an untraceable manner. This obviously (Counts XXVI, XXVII and XL). is not the circumstance in this case in Alexander's argument is spurious. The which Alexander's conduct is long-span- court instructed the jury that when a count ning, far-reaching, and involves many activ- alleges two different videotapes or maga- ities and events. Moreover, Alexander zines to be obscene, they must find only does not even argue that he lacked ade- one of them to be obscene in order to quate notice of the charge he had to de- return a guilty verdict' The verdicts fend, and at least one court has held that therefore are not inconsistent. this is the only holding of Minarik. Unit- Alexander further argues that the jury ed States v. Reynold, 919 F.2d 435, 438-39 did not apply contemporary community (7th Cir.1990), cert denied - U.S. -, standards, but instead made impermissible 111 S.CL 1402, 113 LEd.2d 457 (1991); see distinctions based on values of taste, moral- also United States v. Bilzerian, 926 F.2d ity, and cultural rejection, resulting in in- 1285, 1301 (2d Cir.1991), pet'n for cert. consistent or compromise verdicts. Alex- filed, No. 90-1803 (May 22, 1991). We do ander's argument asks us to speculate on not believe that Mohney is applicable or how the jury reached its verdicts, which we persuasive. We reject Alexander's argu- may not do. The district court defined ment that Count I was defective because it obscenity in accordance with the definition alleged a violation of 18 U.S.C. § 371. of obscenity announced in Miller v. Cali- fornia, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2614-2615, 37 LEd.2d 419 (1973). Under II. its instructions, the question of obscenity is one of fact to be (6] Alexander next argues his convic- determined by the jury, and we cannot conclude tions for transporting and selling obscene that the jury's verdicts are inconsistent or the result of materials must be vacated because the compromise. Moreover, this court has ex- jury's verdicts are inconsistent, and the plained "'inconsistency of a verdict on sep- inconsistency mandates a conclusion that arate counts of an indictment does not en- there was insufficient evidence to support title a convicted defendant to reversal of a these convictions. Alexander contends judgment of conviction.'" United States that the jury verdicts are inconsistent be- v. Martin, 933 F.2d 609, 612 (8th Cir.1991) cause the jury found some items obscene in (quoting United States v. Bryant, 766 F.2d one count and not obscene in other counts. 370, 376 (8th Cir.1985), cert. denied, 474 Specifically, Alexander points out that the U.S. 1054, 106 S.Ct. 790, 88 LEd.2d 768 jury returned a verdict of not guilty on (1986)). We reject Alexander's argument some of the counts involving the magazine that his convictions for transporting and The Fat Book, and guilty verdicts as to selling obscene materials should be re- other counts involving the same magazine. versed because the verdicts are inconsist- He also says a verdict inconsistency is ent or the result of compromise. shown by comparing the jury's guilty verdict on Count XXXIX involving the maga- III- sines "Sweet" and "Party,"* and not [7] Alexander also argues in both his guilty verdicts on all counts involving the civil and criminal appeals' that the legal 6. The jury found some of these materials ob. sible because the instruction did not allow the scene. and their titles insofar as they are not jury to make a specific finding of which item in descriptive of the contents, serve to create inter- the two-item counts is obscene. Alexander. est in the contents. As the argument is directed however, does not say that he objected to this at the inconsistency of the evidence, and not the instruction, and, in any event, we see nothing sufficiency, we believe it sufficient to simply impermissible about such an instruction. identify the first magazine by its last word "Par- 1Y , and the other by its first word "Sweet 8. In his civil suit. Alexander sought: 1) a declaratory judgment that the application of the RICO 7. Alexander argues in his reply brief that the statute to obscenity offenses violated his first court's instruction is constitutionally impermis- amendment rights, and 2) a permanent injunc. 832 943 FEDERAL REPORTER, 2d SERIES standard of obscenity enunciated in Miller S.Ct. 625, 75 L.Ed. 1357 (1931), requi v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 that any law restricting speech be tes, LEd.2d 419 (1973), violates the fifth for its operation and effect on protect. amendment's due process clause and the speech, and that Marcus and Vance appli. first amendments freedom of speech provi- such a test in refusing to endorse obscenity sion. He claims that the rationales ad- laws that interfered with the sale of nor vanced for criminalization of sexually ex- obscene materials. In Marcus, the' S. plicit materials are fundamentally anti- preme Court invalidated the large-scale thetical to the constitutional guarantees of confiscation of expressive materials with. free speech and privacy. Alexander goes out a prior adversarial hearing as an inper. on to argue that statutes criminalizing the missible prior restraint. 867 U.S. at 731- distribution of obscenity are inherently 33, 81 S.Ct. at 1715-17. In Vance, the overbroad and that the Miller test fails to Court prohibited the "padlocking" of busi. provide fair notice of prohibited speech and nesses for up to a year for past violations encourages arbitrary enforcement, which of obscenity laws as an impermissible Prior renders the federal obscenity statute void restraint. 445 U.S. at 317, 100 S.Ct. at for vagueness and unduly chilling free 1162. Alexander recognizes that these speech. cases involved prior restraints, but argues We summarily reject Alexander's argu- that these cases show the need for an ments. The district courts did not err in adversarial proceeding focusing on the rejecting Alexander's invitation to overturn question of obscenity for all of the materi. Miller. See Fort Wayne Books, Inc. v. als finally restrained. Indiana, 489 U.S. 46, 57-58, 109 S.Ct. 916, Alexander continues in his argument fo- 924-925, 103 L.Ed.2d 34 (1989) (reaffirming cusing on section 1962(c), which requires Miller). If this is to be done, it must be that an accused conduct an enterprise done by the Supreme Court. through a pattern of racketeering activity. The nub of Alexander's argument is that to IV. prove a criminal enterprise under RICO, (8] Alexander argues that the applica- Miller requires the government to charge tion of the forfeiture provision of 18 U.S.C. and prove that: (1) all the materials sold by j 1962 unconstitutionally criminalizes non- the enterprise taken as a whole are ob- obscene expressive material. He argues scene; or (2) all the materials sold by his that sexually explicit expressive materials enterprise considered as individual works are not obscene until a trier of fact in an are obscene. He claims that the applica- adversarial judicial proceeding utilizing the tion of section 1962(c) to this case has three-part test enunciated in Miller, 413 created the absurd result of criminalizing U.S. at 23-24, 93 S.Ct. at 2614-2615, finds the sale of millions of dollars of non-ob- them to be obscene, and that the Miller scene materials by an enterprise that dur- test must be applied to all material the ing its 20 years of existence sold just four government seeks to restrain. Alexander magazines and three videotapes that were relies on Marcus v. Search Warrant of later found to be obscne. Property, 367 U.S. 717, 81 S.Ct. 1708, 6 The Fourth Circuit rejected many, if not LEd.2d 1127 (1961), and Vance v. Univer- all, of Alexander's arguments in United sal Amusement Company, 445 U.S. 308, States v. Pryba, 900 F.2d 748 (4th Cir.), 100 S.Ct. 1156, 63 LEd.2d 413 (1980), to cert denied, - U.S. -, 111 S.Ct. 305, support his position. Alexander argues 112 L.Ed.2d 258 (1990). In Pryba, the de- that Near v. Minnesota, 283 U.S. 697, 51 fendants were convicted on seven counts of tion prohibiting the application of the RICO Cir.1989). Alexander's appeal in that case bas statute to obscenity offenses. The district court been consolidated with the appeal from his granted the Attorney General's motion to dis- criminal convictions, and to the extent the is- miss and motion for summary judgment. Alex- sues in his civil appeal are not moot, the issues ander v. Thornburgh, 713 F.Supp. 1278 are discussed in this opinion. (D.Minn.), appeal dismissed 881 F.2d 1081 (8th ALEXANDER v. THORNBURGH 833 Cit as943 F.2d 85 (8thCir. 1991) usasporting obscene materials in inter- racketeering enterprise, does not violate sque commerce for sale and distribution, the First Amendment. The fact that and these counts, coupled with prior state some of the materials forfeited are not obscenity convictions, were used as predi- obscene does not protect them from for- cae RICO offenses. The Pryba defen- feiture when the procedures established dants argued that the forfeiture order re- by RICO are followed, as they were in sulted in "the confiscation and restraint of the present case. a vast inventory of presumptively protect- Md at 756. ed expressive material," and the application Alexander argues that the decision of the of the forfeiture provisions resulted in an Fourth Circuit in Pryba is not applicable as unconstitutional prior restraint of protected it dealt with a facial challenge to the RICO activity. They also argued that the RICO forfeiture statute and not to the unconsti- forfeiture provisions violated the first tutional application of section 1962. amendment because the provisions lacked We reject Alexander's distinction. As in the procedural safeguards necessary to in- Pryba, a jury convicted Alexander on the sure that protected expression was not er- RICO charges brought under 18 U.S.C. roneously suppressed. Id. at 753. § 1962(c) and predicate obscenity offenses The Fourth Circuies answer to Pryba's under 18 U.S.C. § 1465. (Here, Alexander arguments directly applies to the nearly was also convicted under section 1466). identical arguments made by Alexander. Like Pryba, the jury found some items The court stated: charged in the indictment obscene, some The forfeiture provided by 18 U.S.C. not, and was unable to reach a verdict on § 1467 does not violate the First Amend- others. In both cases, after the jury ment even though certain materials, reached a verdict finding violations of 18 books and magazines, that are forfeited, U.S.C. § 1962, the same jury heard addi- may not be obscene and, in other circum- tional testimony on the issue of forfeiture, stances, would have constitutional profound that the defendants had an interest tection as free expression. There was a in property that gave them a source of nexus established between defendants' l influence over the enterprise, and ordered gotten gains from their racketeering ac- that certain of the assets, including the tivities and the protected materials that bookstores and video stores, be forfeited. were forfeited. The forfeiture did not Pryba differed fiom the case before us in occur until after defendants were con- that fifteen prior obscenity convictions of victed of violating various obscenity stat- the corporate defendant were introduced in utes and of participating in a racketeer- evidence. Id at 758. Nevertheless, with ing activity, and until after it was estab- this exception, the facts in Pryba are near- lished beyond a reasonable doubt that ly identical to those here. the proceeds from these criminal activi- Furthermore, the government argues ties had been used to acquire the argu- with persuasive force that in addition to the ably protected publications. thirteen magazines and videos that were Id. at 755. introduced, it was prepared to offer addi- The P-yba court rejected an argument tional items not named in the indictment. that Fort Wayne Books required a differ- On the state of this record, Alexander may ent conclusion and stated further. not now argue that the jury must have The forfeiture of nonobscene books, found all of the materials seized in the magazines and video tapes, after a con- forfeiture proceedings obscene under Mil- viction of racketeering involving the sale ler. of obscene goods and after the jury has In his reply brief, Alexander asserts that determined that the forfeited materials Sable Communications v. Federal Com- were acquired or maintained in violation munications Commission, 492 U.S. 115, of 18 U.S.C. § 1962 and afforded the 109 S.Ct. 2829, 106 L.Ed.2d-93 (1989), fur- Prybas a source of influence over the ther supports his argument that the appli- ERIE 834 943 FEDERAL REP ORER 2d S cation of the RICO forfeiture provision un- demned in Fort Wayne Books. 489 constitutionally criminalized the sale of ex- 66, 109 S.Ct. at 929. pressive material. Alexander's convictions on a In Sable, the Supreme Court examined counts may serve as a predicate to a criminal the constitutionality of a federal violation, and do not constitute a prior 1 of "indecent" statute prohibiting the sale straint. The First Amendment is not is. or "obscene" commercial telephone mes- lated when there is a nexus establ at 2832. The sages. Id. at 117, 109 S.Ct. between the ill-gotten gains from -a Court upheld the criminal prohibition teering activity and the protected materab against obscene messages, but struck down forfeited. Pryba, 900 F.2d at 755. on indecent messages. Id. Alex- the ban Here, based on Sable, the the RICO forfeiture provisin ander argues that constitute a criminal penalty imposed fis cannot criminally prosecute Al- government lowing a conviction for conducting an o for selling non-obscene material exander terprise engaged in racketeering activais than Congress could criminalize any more Courts have recognized the substantial . of non-obscene messages. the sale ference between prior restraints and crics Alexander's argument misses the mark. nal penalties. See, e.g., Arcara v. Cod Alexander was not prosecuted for selling Books, Inc., 478 U.S. 697, 705-06 & n. t non-obscene material, and Sable has no 106 S.CL 3172, 3176-77 & n. 2, 92 LEd.2 case. bearing on the facts presented in this 568 (1986); Southeastern Promotions we re- For the several reasons discussed, Ltd. v. Conrad, 420 U.S. 546, 558-59, 9r ject Alexander's argument that the applica- S.Ct. 1239, 1246-47, 43 L.Ed.2d 448 (197k tion of 18 U.S.C. § 1962 unconstitutionally Kingsley Books, Inc. v. Brown, 354 US. materi- criminalizes non-obscene expressive 436, 441-45, 77 S.CL 1325, 1327-28. 1 als. LEd.2d 1469 (1957). V. Alexander next argues that the forfei (9] Alexander next argues in both his ture imposes an unconstitutional- chilling expression- The Su- civil and criminal appeals that the applica- effect on protected has directly addressed the tion of the RICO forfeiture provisions vio- preme Court application of the first amendment.' Specifically, chilling effect from the lates the to obscenity of- that the forfeiture results in RICO forfeiture provisions he contends protected an unconstitutional prior restraint, imposes fenses and to first amendment an unconstitutional chilling effect on consti- materials: tutionally protected expression, and is con- It may be true that the stiffer RICO stitutionally overbroad. The Fourth Cir- penalties will provide an additional deter- cuit summarily rejected these same argu- rent to those who might otherwise sell ments in Pryba, concluding that "(o]bsceni- obscene materials; perhaps this means ty is not protected by the First Amendment that some cautious booksellers will and a convicted racketeer may not launder practice self-censorship and remove First his dirty money by investing it in materials Amendment protected materials from sale that involve protected speech." 900 F.2d their shelves. But deterrence of the at 756. of obscene materials is a legitimate end laws, and our like the Pryba defendants, of state anti-obscenity Alexander, the practical Wayne Books to support his cases have long recognized relies on Fort ob- that the application of the RICO reality that "any form of criminal position to a bookseller forfeiture provisions causes an unconstitu- scenity statute applicable to self-censor prior restraint. There is, however, will induce some tendency tional effect On to the procedural posture in ship and have some inhibitory no similarity not ob- this case and the pretrial seizure con- the dissemination of material States v Alexander 9. The district court rejected Alexander's facial ture provisions in United challenge to the application of the RICO forfei. 736 FSupp. 968. 977-40 (D.Minn.1990). ALEXANDER v. THORNBURGH 835 Cite as 943 F.2d 825 (8th CIr. 1991) scene." The mere assertion of some pos- the same or similar offenses in other juris- sible self-censorship resulting from a dictions. Solem v. Helm, 463 U.S. 277, statute is not enough to render an anti- 290-92, 103 S.Ct. 3001, 3009-11, 77 L.Ed.2d obscenity law unconstitutional under our 637 (1983). precedents. A sentence imposed is entitled to "sub- pj Wayne Books, 489 U.S. at 60, 109 stantial deference" and.we may only con- S.CL at 925 (citing Smith v. California, sider "whether the sentence ... is within 361 U.S. 147, 154-55, 80 S.Ct. 215, 219-20, the constitutional limits." Solem, 463 U.S. 4 L.Ed.2d 205 (1959)). at 290 and n. 16, 103 S.Ct. at 3009 and n. We reject Alexander's argument that the 16. forfeiture provisions have an unconstitu- [10] The district court imposed Alexan- donally chilling effect on first amendment der's prison sentence based on the Sentenc- rights. ing Guidelines. 28 U.S.C. § 994 (1988). We also reject Alexander's argument Alexander does not specifically attack his that the reach of the RICO forfeiture provi- prison sentence. Instead, he appeals from sions is unconstitutionally overbroad.. In the forfeiture order arguing once again Arara, the Supreme Court upheld the clo- that the income "from the two patterns of sure of a bookstore that had been used as a racketeering amoun(t] only to an infinites- front for prostitution. The Court stated imal percentage of his legitimate income," that criminal and civil sanctions are not and that when the forfeiture is combined subject to " 'least restrictive means scruti- with the fine and prison sentence, the ny"' because a particular remedy "will "harshness" of the penalty is "amazingly have some effect on the First Amendment unfair." activities of those subject to sanction." Alexander cites one decision in which the 478 U.S. at 706, 106 S.Ct. at 3177. Ninth Circuit remanded the case for a de- Here, the court specifically and properly termination of whether the forfeiture was limited the forfeiture to profits, real estate, grossly disproportionate or excessive, and businesses directly related to Alexan- United States v. Busher, 817 F.2d 1409, dees interstate transportation and sale of 1414-16 (9th Cir.1987), and contends that obscene magazines and videos. The forfei- this case should be followed here. ture is not unconstitutionally overbroad.1e Nevertheless, in the only other RICO- obscenity case in the country, the Fourth VI. Circuit held that the forfeiture of a busi- Alexander argues that his sentence, pri- ness with total annual sales of $2 million as marily the forfeiture order, violates the a result of $105.30 of material found to be eighth amendment prohibition against cruel obscene did not constitute a cruel and un- and unusual punishments and excessive usual punishment or an excessive fine pro- fines. hibited by the eighth amendment. Pryba, The Supreme Court has set forth a three- 900 F.2d at 753, 756-57. The Fourth Cir- part test for determining whether a sen- cuit added that it was not even required to tence violates the eighth amendment The conduct a proportionality review because test requires a comparison of: (1) the grav- the defendants did not receive a sentence ity of the offense and the harshness of the of sufficient severity. Id. at 757 (citing penalty* (2) the sentences imposed for the United States v. Whitehead, 849 F.2d 849, same or similar offenses in the same juris- 860 (4th Cir.), cert. denied, 488 U.S. 983, diction; and (3) the sentences imposed for 109 S.CL 534, 102 L.Ed.2d 566 (1988); 10. Alexander also argues that the court should sions. See ag., United States v. Regan, 858 F.2d have applied a remedy requiring forfeiture of 115. 119 (2d Cir.1988): United States v. Kravitz. Proceeds which were proportional or traceable 738 F.2d 102, 104-05 (3d Cir.1984). cert. denied to the sale of obscene material. There is, how- 470 U.S. 1052, 105 S.Ct. 1752, 84 LEd.2d 816 ever, no requirement that courts engage in such (1985). a test in applying the RICO forfeiture provi. 836 943 FEDERAL REPORTER, 2d SERIES United States v. Rhodes, 779 F.2d 1019, bodily harm and assault by striking b, 1027-28 (4th Cir.1985), cert. denied, 476 ing or wounding following jury . ad U.S. 1182, 106 S.Ct. 2916, 91 LEd.2d 545 defendant was sentenced using enhu" (1986)). "Solem v. Helm does not require offense level for using dangerous w a proportionality review of any sentence and inflicting serious bodily injury on rV. less than life imprisonment without the tim by the United States District Court for possibility of parole." Pryba, 900 F.2d at the District of South Dakota, Richa I 757 (citation omitted). We cannot conclude Battey, J., and Andrew W. Bogue, Semi, that the district court abused its discretion District Judge. Defendant appealed. th in sentencing Alexander. Court of Appeals, McMillian, Circuit Judge held that: (1) jury's acquittal under stab. VII. tory definition did not preclude finding of serious bodily injury under Guidelines def> that the evi- Finally, Alexander argues nition; (2) enhancement of offense level for his con- dence was insufficient to support serious bodily injury was supported by eri victions on the tax counts, social security dence; and (3) successor judge could make adds in counts, and all other counts. He factual determination for offense level en- his reply brief that the evidence was insuf- hancement under Sentencing Guidelines. ficient to support his RICO convictions, arguing that the government failed to show Affirmed. that proceeds from a pattern of racketeering activity were invested in a criminal 1. Criminal Law 41250 enterprise, or a criminal enterprise existed as required by 18 U.S.C. § 1962. We have Conduct which is subject of acquittal carefully reviewed Alexander's arguments may be used to enhance base offense level and record at trial. We are satisfied that under federal Sentencing Guidelines. there is ample evidence to support Alexan- U.S.S.G. § 1B1.1 et seq., 18 U.S.C.A.App. der's convictions on all counts. 2. Criminal Law 4-1254 Having carefully considered all of Alex- Jury's finding of no serious bodily inju- ander's arguments, we affirm Alexander's ry in connection with acquittal on charge of convictions, and the orders of forfeiture assault resulting in serious bodily injury and summary judgment did not preclude finding of serious bodily injury necessary for enhancement of base offense level under federal Sentencing Guidelines. U.S.S.G. § 2A2.2(a), (b)(3XB). 18 U.S.C.A.App. 32 Criminal Law -1254 Enhancement of offense level for sen- UNITED STATES of America, Appellee, ous bodily injury was justified, even serious bodily V. though jury did not find harm necessary for conviction of assault BEAR, Appellant. Benjamin SLOW resulting in serious bodily injury, where No. 904473. victim's skull fracture required hospital- was not clearly erroneous. United States Court of Appeals, ization and et seq., 2A2-2(). Eighth Circuit U.S.S.G. §§ 1B1.1 (bX3XB), 5K2.10, p.s., 18 U.S.C.A.APP. Submitted Aug. 26, 1991. 4. Criminal Law 4977(2) Decided Aug. 30, 1991. Successor judge could make factual determinations concerning whether assault bodily Defendant was convicted of assault defendant's conduct caused serious enhanced with dangerous weapon with intent to do injury, for purposes of imposing 464 946 FEDERAL REPORTER, 2d SERIES

question in roughly analogous circum- injunctive relief against enforcement of stances. See Donovan v. Civil Serv. Em- city ordinance prohibiting distribution of ployees Ass'n, Local 1000, 761 F.2d 870, commercial handbills on public property. 874 (2d Cir.1985) (a protest sent within the The United States District Court for the ten-day period provided by the union's con- Southern District of Ohio, S. Arthur Spie- stitution, but not received until 3 days after gel, J., entered judgment preventing the ten-day period expired, satisfied en- the forcement of ordinance, and ten-day requirement for purposes city appealed. of sec- The Court of Appeals, tion 402(a)); Donovan v. Local 2122, Com- Boggs, Circuit munication Workers ofAmerica, 740 F.2d Judge, held that ordinance banning distri- 860, 862 (11th Cir.1984) ("Any time require- bution of commercial handbills along city ment that is dependent upon the union's streets and sidewalks in light of aesthetic receipt of the protest instead of its post- and safety concerns from proliferation of mark becomes immediately suspect in light newsracks for commercial publications did of current delays in mail transmittals."); not prescribe "reasonable fit" between see also Hodgson, 444 F.2d at 1349-50 (pro- ends asserted and means chosen to advance test sent within deadline but received late them, and therefore ordinance was uncon- due to postal strike was timely under see- stitutional under First Amendment. tion 402). Affirmed. The order of the district court is RE- VERSED and the case REMANDED for further proceedings consistent with this opinion.' 1. Constitutional Law C-90.2 "Commercial speech" only receives lesser First Amendment protection when governmental interest asserted is either related to regulating the commerce that "commercial speech" is promoting, or relat- DISCOVERY NETWORK, INC. and ed to any distinctive effects such commer- Harmon Publishing Co., cial activity would produce. U.S.C.A. Plaintiffs-Appellees, ConstAmend. 1. V. 2. Constitutional Law e-90.2 CITY OF CINCINNATI, Defendant- In reviewing city's regulation of com- Appellant. mercial speech, deference to city's decision No. 90-3817. is not required merely because decision is United States Court of Appeals, reasonable. U.S.C.A. Const.Amend. 1. Sixth Circuit 3. Constitutional Law 90.2 Argued April 30, 1991. Lesser value placed on "commercial Decided Oct 11, 1991. speech" only justifies regulations dealing with content of speech itself, or with dis- Commercial publishers brought civil tinctive effects that content of speech will rights action, requesting declaratory and produce. U.S.C.A. Const.Amend. 1. Joint Council decision begins to run "from the 4. The district court did not address, and we take date the decision is placed in the mail or other- no position on, the Joint Council's alternative wise transmitted to the interested parties." By basis for dismissing the complainants' initial maintaining that the Joint Council must receive election protest, Le., the finding that the prote- members' protests within 72 hours, but that the tors failed to specify sufficiently the acts corn- clock for appeals begins to run before members plained of and how those acts affected the out- receive a Joint Council decision, Local 480 urges come of the election. a construction of the Teamsters' constitution that would impose inconsistent requirements to. ward the consistent end of disfavoring com- plaining union members. DISCOVERY NETWORK, INC. v. CITY OF CINCINNATI 465 Cite as 946 F.2d 464 (6th Cir. 1991) Marc D. Mezibov (briefed), Martha K. . Constitutional Law G90.2 City ordinance banning distribution of Landesberg (argued), Sirkin, Pinales, Mezi- boy & Schwartz, Cincinnati, Ohio, for plain- conmercial handbills along city streets and tiffs-appellees. sidewalks in interest of aesthetic and safety concerns from proliferation of news- Richard H. Castellini, City Solicitor's Of- racks did not prescribe "reasonable fit" fice for the City of Cincinnati, Mark S. between ends asserted and means chosen Yurick (argued and briefed), Office of the to advance them, and therefore ordinance City Sol., Cincinnati, Ohio, for defendant- was unconstitutional under First Amend- appellant. ment. U.S.C.A. Const.Amend. 1. s. Constitutional Law e-90.1(8), 90.2 Before KRUPANSKY and BOGGS, City ordinance prohibiting distribution Circuit Judges, and DUGGAN, District of commercial handbills on public property, Judge.* which treated newsracks for "commercial" publications different from newsracks for BOGGS, Circuit Judge. traditional newspapers, was not content- neutral and therefore could not qualify as [1] The case involves the constitutional- constitutional time, place, and manner re- ity of Cincinnati's ordinance prohibiting the striction. U.S.C.A. Const.Amend. 1. distribution of commercial handbills on public property. This ordinance effectively 6. Constitutional Law 090.1(8), 92 grants distributors of "newspapers," such Municipal Corporations e622 as the Cincinnati Post, USA Today, and Even if city ordinance prohibiting dis- the Wall Street Journal, access to the tribution of commercial handbills on public public sidewalks through newsracks, while property was content-neutral, despite treat- denying that same access to distributors of ing newsracks for "commercial" publica- "commercial handbills." The district court tions differently than newsracks for tradi- rendered a judgment preventing enforce- tional newspapers, ordinance did not meet ment of this ordinance because it violates constitutional requirement of being riar- the first amendment. The city appealed, rowly tailored to serve significant govern- arguing that the ordinance was constitu- mental interest, since there were many op- tionally permissible as a regulation of tions available to city that would address "commercial speech" because of the "less- its aesthetic, safety, and newsrack prolif- er protection" such speech is afforded un- eration concerns without placing significant der the first amendment. Because we be- burden on commercial speech of completely lieve that "commercial speech" only re- banning distribution of commercial hand- ceives lesser first amendment protection bills. U.S.C.A. Const.Amend. 1. when.the governmental interest asserted is 7. Constitutional Law e90.2 either related to regulating the commerce Municipal Corporations 0-622 the "commercial speech" is promoting, or City ordinance prohibiting distribution related to any distinctive effects such com- of commercial handbills on public property mercial activity would produce, and neither *as not valid content-based restriction; or- governmental interest is asserted here, we dinance placed substantially greater bur- affirm the district court. den on commercial speech than was neces- 4q to alleviate city's aesthetic and safety I cncerns from proliferation of newsracks for commercial publications, as opposed to Plaintiffs are publishers of publications newsracks for traditional newspapers. distributed throughout the Cincinnati met- t.S.C.A. Const.Amend. 1. ropolitan area. Discovery Network pub- 'The Honorable Patrick J. Duggan, United States gan, sitting by designation. District Judge for the Eastern District of Michi- 466 946 FEDERAL REPORTER, 2d SERIES lishes a magazine that advertises learning ty problems for the city. The aesthetic programs, recreational opportunities, and problems arise because of the non-uniform social events for adults. Harmon Publish- design and color schemes of the different ing publishes and distributes Home Maga- types of newsracks. The safety problems zine, which lists houses and other resi- arise because the racks are placed near dential real estate for sale or rent. Both busy streets, especially near crosswalks plaintiffs use newspaper dispensing devices and bus stops. They are also attached by ("newsracks") placed on public right-of- chains to city fixtures, such as lightpoles, ways to distribute their publications. causing the fixtures to rust. However, Both plaintiffs had been given permis- there are currently no city regulations es- sion by the city to place newsracks along tablishing any safety or aesthetic stan- public right-of-ways to distribute their pub- dards for newsracks. lications according to Amended Regulation Neither the City Architect nor the City 38.1 Their status changed, however, in Engineer could distinguish the commercial February 1990 when the City Council from the non-commercial newsracks. In passed a motion requiring the Department fact, the Architect testified that the city's of Public Works to enforce the existing aesthetic concerns would be alleviated by ordinance prohibiting the distribution of an ordinance regulating the color and size "commercial handbills" on public property. of all newsracks. Both witnesses seemed Cincinnati Municipal Code § 714-23.2 primarily concerned about the potential Plaintiffs brought suit under 42 U.S.C. proliferation of the total number of news- § 1983, requesting declaratory and injunc- racks as a result of newsracks distributing tive relief. This case ultimately came be- commercial speech. The Engineer testified fore the district court for an evidentiary that the only areas in which commercial hearing on two issues: whether the regula- newsracks differed from non-commercial tion violated plaintiffs' first amendment newsracks was in the potential for prolif- rights, and whether the city's mechanism eration, and in the enhanced first amend- for appealing the administrative decision to ment protection accorded to devices dis- enforce the ordinance violated plaintiffs' pensing non-commercial publications. He right to due process. believed such proliferation was likely be- The court held that hearing on July 9, cause he had received four requests for 1990, In that hearing, the city contended permits from commercial publishers for that the newsracks pose aesthetic and safe- newsrack permits in the prior two years, 1. The Amended Regulation reads in pertinent must register a responsible contact person ... part as follows: with the City Manager.... This contact per- 1. All devices located within the public right. son shall be able to respond in a reasonable of-way for the purpose of dispensing newspa- time to problems relative to the enforcement pers must be shown on a site plan of the of these rules and regulations. immediate vicinity of the device.... The site plan and request to place newspaper vending L A "commercial handbill" is defined as: device (sic] in public right-of-way (sic] must any printed or written matter, any sample or be presented to and approved by the City device, dodger, circular, leaflet, pamphlet, pa- Manager or his designee prior to the place. per, booklet or otherwise reproduced original ment of the device.... or copies of any matter of literature: 3. Placement of the newspaper dispensing (a) which advertises for sale any merchan- device must be such that it is not accessible dise, product, commodity or thing or from that part of the right-of-way normally (b) which directs attention to any business or reserved for vehicular traffic and does not mercantile or commercial establishment, Or obstruct normal pedestrian traffic, interfere other activity, for the purpose of either direct- with handicap access, create driver sight dis- ly or indirectly promoting the interest thereof tance problems or otherwise create a public by sales: or nuisance nor shall the method of attachment (c) which directs attention to or advertises allow the device to be moved after placement any meeting, theatrical performance. exhibi- to create these problems.... tion or event of any kind for which an admis- 6. The owner/operator of newspaper dis- sion fee is charged for the purpose of private pensing devices within the public right-of.way gain or profit. DISCOVERY NETWORK, INC. v. CITY OF CINCINNATI 467 Cite as 946 F.2d 464 (6th Cr. 1991) the first such requests he had ever re- speech than is necessary to serve that in- ceived. 3 The Architect's testimony fol- terest. Id. believed that lowed the Engineer's, as he The court focused its analysis on the last to remain permitting plaintiffs' newsracks part of that test. The court applied the other commercial would send a signal .to Supreme Court's interpretation of the were a permissi- publishers that newsracks fourth part of the Central Hudson test in publications, ble way to distribute the Board of Trustees of State University of the number of racks. thereby increasing New York v. Fox, 492 U.S. 469, 109 S.Ct. The court ruled in favor of the city on 3028, 106 LEd.2d 388 (1989). The Fox the due process claim, but in favor of the Court stated that a regulation is not more plaintiffs on the first amendment claim. extensive than necessary when it is a rea- The court reached many conclusions of law: sonable fit between the ends directly ad- that the publications were commercial vanced by the statute and the means cho- speech within the meaning of the first sen as embodied in the regulation. Fox, amendment because they proposed com- 492 U.S. at 480, 109 S.Ct. at 3034. The mercial transactions in the form of adver- Court held that the government has the tisements; ' that commercial speech was burden of proving the reasonableness of entitled to first amendment protection that fit. Id. where, as here, the activities promoted were lawful and the speech itself not inher- The district court's analysis led it to con- ently misleading- and that the ordinance clude that the city's ordinance did not con- would be measured against the four-part stitute a reasonable fit between its assert- test announced by the Supreme Court in ed ends and the means chosen. The court Central Hudson Gas & Electric Corp. v. held that a complete ban on newsracks Public Service Comm'n of New York, 447 distributing commercial speech violated the C.S. 557, 566, 100 S.Ct. 2343, 2351, 65 Fox test. Only 62 of the between 1,500 LEd.2d 341 (1980). That test provides that -and 2,000 newsracks present on the city's a government regulation will be upheld if it streets belonged to the plaintiffs. Based (1) regulates commercial speech; (2) pro- on the city's concession that newsracks dis- motes a substantial governmental interest; pensing "non-commercial" papers caused 13) directly advances that interest; and, (4) the same problems as those distributing is not more extensive in its regulation of commercial papers, the court held that the Cincinnati Municipal Code § 701-1-C. nominate as "non-commercial" institutions such 1 This argument rests on the assumption that as the New York Times and Gannett (publisher there is an infinite number of commercial pub. of the Cincinnati Post). each of which has assets lishers who might seek permits, but only a finite and revenues in the billions of dollars, and number of non-commercial publishers. In light profits in the many millions of dollars. of the growing nationalization of newspapers in Obviously, a quite significant part of the space this country, that assumption is somewhat tenu- in "newspapers" is devoted to purely commer- ous at best. The city provided no direct evi- cial activities, while publications such as plain- dence regarding the increase in the number of tiffs' may (and certainly could easily) contain on"cOmmnercial publishers dispensing their some editorial material, such as comments or ares through newsracks. However, the Archi- articles on education or real estate matters. tect testified that -it was not very long ago that The first amendment by its terms does not make e ncinnart Post and the CincinnatiEnquirer this distinction; it protects "speech." An analo- 'er the only ones with dispensing devices on gous practice, deciding on content-based the City streets." We take judicial notice of the grounds which beliefs merit classification as ac that USA Today, the New York Timer, .religion" protected by the establishment and hall Street the Journa4 and the Business Courier all free exercise clauses of the first amendment, have dispensing devices on the corner across has been severely limited by courts to avoid rorm the Federal Courthouse. impermissible government interference into In this case, plaintiffs protected activity. See United States v. Seeger, do not question the 380 U.S. 163. 85 S.Ct. 850, 13 LEd.2d 733 con!Ours of the delineation between "commer- (1965); United States v. Ballar4,322 U.S. 78. 64 thl and 'non-commercial' speech. We will S.Ct. 882. 88 LEd. 1148 (1944). See also G. a dopt and adhere to that terminology, al. Stone. L Seidman, C. Sunstein. and M. Tushnet. though we find it somewhat anomalous to de. Constitutional Law 1369-73 (1986). 468 946 FEDERAL REPORTER, 2d SERIES regulation was an excessive means to ac- it does so at inordinate cost." Fox, 492 complish the stated ends. U.S. at 480, 109 S.Ct. at 3035. The Court Cincinnati timely appealed the court's de- described its "reasonable fit" approach as termination.5 one "that represents not necessarily the single best disposition but one whose scope II is 'in proportion to the interest served'.... Here we require the government goal to be A substantial, and the cost to be careflly Both parties agree on the legal contours calculated." Id. We presume that the cost within which this case must be decided. referred to by the Fox Court is that which Both parties agree that this case requires would accrue because of the burden placed the application of the four-part Central on the commercial speech, and that the Fox Hudson test, and the interpretation given test requires that such costs must be out- by the Supreme Court to the fourth part of weighed by the benefits of the asserted that test in Fox. Both parties agree that regulation. We can only make that calcula- this ordinance satisfies the first two parts tion if we know what value the Court has of the test: in this case it regulates purely placed on commercial speech, and it is to commercial speech,' and Cincinnati's inter- that consideration that we now turn. ests in street safety and city aesthetics are substantial. As it is clear that the ordi- C nance directly advances the purposes as- Commercial speech has unquestionably serted, we have only one issue before us: been protected by the first amendment Does Cincinnati's ordinance- banning the since the Supreme Court in Virginia State distribution of commercial handbills along Board of Pharmacy r. Virginia Citizens city streets and sidewalks prescribe a "rea- Consumer Council, Inc., 425 U.S. 748, 96 sonable fit" between the ends asserted and S.Ct. 1817, 48 L.Ed.2d 346 (1976), held that the means chosen to advance them? We the Court's prior offhand statement in Val- hold that it does not. entine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), that "purely B commercial advertising" was not protected In establishing the "reasonable fit" re- did not establish an exception to first quirement, the Court in Fox attempted to amendment protection. The Court recog- draw a middle ground between greater and nized in Virginia Citizens that commercial lesser review of a regulation of commercial speech, though it may not touch upon the speech. The Court expressly rejected im- highest topics of human existence (indeed, posing either a "least restrictive means" or much protected speech does not), is impor- a "rational basis" standard of review on tant to the public welfare. The Court not- regulations of commercial speech. Foz ed in Virginia Citizens that speech uttered 492 U.S. at 479-81, 109 S.Ct. at 3034-35. solely for economic motives has high value The Court rejected the least restrictive to those who listen to it. "As to the partic- means approach as inconsistent with its ular consumer's interest in the free flow of prior commercial speech jurisprudence, and commercial information, that interest may rejected the rational basis approach be- be as keen, if not keener by far, than his cause "[t]here it suffices if the law could interest in the day's most urgent political be thought to further a legitimate govern- debate." Virginia Citizens, 425 U.S. at mental goal, without reference to whether 763, 96 S.Ct. at 1826. In recognizing the S. The plaintiffs have not cross-appealed from attention to business establishments for the pur. the court's judgment for the city on the due pose of directly or indirectly promoting the process claim. sales thereof (restaurant or theater reviews). or direct attention to events of any kind for which 6. However, it should be noted that the ordi- fee is charged for the purpose of nance can also be applied to "newspapers." All an admission newspapers advertise products for sale, or direct private profit (Reds or Bengals games). DISCOVERY NETWORK, INC. v. CITY OF CINCINNATI 469 Cite as 946 F.d 464 (6th Cir. 1991) con- speech to private least the prior regulation of speech rtance of commercial false or misleading activity, the Court was once sidered potentially isn1 mic if applied to politi- "right of the indi- would be impermissible ecoin affirming that the decision effectively in any of the cal speech, the Court's vidual to contract, to engage speech with lesser protec- to acquire use- left commercial cmmon occupations of life, that afforded to other types of orderly tion than ful knowledge" is "essential to the Court has continued to adhere men." Board speech. The pursuit of happiness by free principles in its subsequent com- 408 to these of Rgents of State College v. Roth, speech jurisprudence. See Cenitral 33 mercial L.S. 564, 572, 92 S.Ct. 2701, 2707, Hudson, 447 U.S. at 563-64, 100 S.Ct. at Meyer v. Ne- LEd.2d 548 (1972) (quoting 2350. 43 S.CL 625, 626, braska, 262 U.S. 390, 399, afforded Court recog- [2] This "lesser protection" 67 L.Ed. 1042 (1923)). The Cincinnati's decision, one commercial speech is crucial to sized that having made this argues commercial argument on appeal. Cincinnati with which we have no quarrel, of achieving it conveys that placing the entire burden advertising is essential because and a more harmo- each person to its goal of safer streets information that permits on commercial speech is and economic decisions nious landscape decide which trades by this lesser protection. The city person. See Virginia justified are best for that correctly notes that many courts have held 764, 96 S.CL at 1821. Citizens, 425 U.S. at that a city cannot ban newsracks contain- if the First Amendment -Therefore, even ing traditional newspapers that comment instrument were thought to be primarily an on current affairs, thereby precluding it in a de- to enlighten public decisionmaking from alleviating its problem by completely mocracy, we could not say that the free banning newsracks from the city.' It asks flow of information does not serve that us to hold that, in light of that restriction, goal." Id. at 765, 96 S.Ct. at 1827. As its policy of banning only newsracks dis- such, commercial speech also has a high tributing commercial speech is a cost-effec- value to the society as well. tive way of alleviating its problem, and 8 The Court did not mean to free commer- therefore meets the Fox test. cial speech from all regulation and create [3] The fact that commercial speech is some sort of an advertiser's paradise. The owed less protection than is political speech Court noted that time, place, and manner does not lead to Cincinnati's conclusion that restrictions could be applied to commercial commercial speech has a low value in first speech, provided that such restrictions are amendment jurisprudence. "While (the content-neutral Virginia Citizens, 425 plaintiff's] speech is primarily commercial t.S. at 771, 96 S.Ct. at 1830. False and in nature, and thereby not subject to all of misleading speech could also be regulated the traditionally stringent protections of or banned, id., including types of commer- the first amendment, it is nevertheless enti- cal speech that may merely be likely to tled to substantial protections." American deceive the public. Also, speech proposing Motors Sales Corporation v. Runke, 708 "'PI commercial transactions may be F.2d 202, 208 (6th Cir.1983). Our examina- baned. Id at 772, 96 S.Ct. at 1831. As at tion of that jurisprudence shows us that t. Serninel Comsmunications Co. v. Wat 936 not believe that these statements command us to M 1189, 1196-97 (11th Cir.l991), and cases give the city the benefit of the doubt in close and therein. cases, as Cincinnati would have it. Rather, they are meant to distinguish the Court's test in Fox also argues that we should defer to L Cncinnati from the least restrictive means test urged on Ow city's decision so long as it is reasonable. It restrictive two sentences in the Court by the defendant. A least dr"" this conclusion from means test can be satisfied by only one method 'we have been loath to second-guess lax that of regulation, while the Fox test can be satisfied judgment." Fox, 492 U.S. at 0* overnment's by many different methods. If the Court's *109 S.Ct. at 3034, and that '[wlithin those nds (the reasonable fit testl we leave it to words mean what Cincinnati argues they do, the governmental decisionmakers to judge what then the Fox Court's subsequent rejection of %1ner of regulation may best be employed." fourteenth amendment rational basis test would 492 US. at 480, 109 S.CL at 3035. We do be a glaring inconsistency. 470 946 FEDERAL REPORTER, 2d SERIES

the lesser value placed on commercial tion sought to ban speech believed to be speech only justifies regulations dealing inherently false or misleading. 0 In the with the content of the speech itself, or second group, the regulation sought to al- with distinctive effects that the content of leviate distinctive adverse effects allegedly the speech will produce. In every commer- caused by and directly flowing from the cial speech case but one,9 a regulation up- type of commercial speech regulated.t It held as constitutional by the Court fell into is clear that Cincinnati's ordinance does not one of two groups. In the first, the regula- attempt to regulate plaintiffs' speech be- 9. That one case is Metromedia, Inc. v. City of vertisement of optometry practices through San Diego, 453 U.S. 490, 101 S.CL 2882. 69 trade names as misleading constitutional). The LEd.2d 800 (1981). In Metromedia, the Court Court also ruled many regulations to be uncon. overturned an ordinance that banned outdoor, stitutional in this group. See Peel v. Attorney off-site advertising displays as an attempt to Registrationand DisciplinaryComm'n of fL, - increase traffic safety and enhance appearance. US. - , 110 S.Ct. 2281. 110 L.Ed.2d 83 (1990) These interests are very similar to those ad- (regulation banning lawyer advertisement of vanced by Cincinnati in defense of its ordi- certification by the National Board of Trial Ad- nance. The ordinance at issue in Metromedia is vocacy as misleading unconstitutional); In re also the only regulation of commercial speech R.MJ., 455 US. 191, 102 S.Ct. 929, 71 LEd.2d 64 that has yet come before the Court where a (1982) (regulations limiting the precise names government attempted to do what Cincinnati is of practice areas lawyers can use in ads and trying so here, regulate a manner of conveying identifying the jurisdictions lawyer is licensed commercial speech in order to combat per- in as misleading unconstitutional); Bates v. ceived evils wholly unrelated to the commercial State Bar of Ariz.. 433 U.S. 350. 97 S.Ct. 2691, 53 content of that speech. Thus, if the majority of LEd.2d 810 (1977) (regulation banning lawyer the Court had upheld San Diego's statute as a advertisement of prices for routine legal servic- permissible regulation of commercial speech, es as misleading unconstitutional). we would be compelled to reverse the district court. However, only a plurality of the Court found that the San Diego ordinance co-istitu- 11. See Posadas De Puerto Rico Associates v. tionally regulated commercial speech. The con- Tourism Co. of Puerto Rico, 478 U.S. 328, 106 currence specifically-and vehemently-disa. S.CL 2968, 92 LEd.2d 266 (1986) (statute ban- greed with that conclusion. See Merromedia, ning advertising of casino gambling directed to 453 US. at 536, 101 S.Ct. at 2907 (Brennan. J., Puerto Rico residents to prevent bad effects on concurring). The Court's judgment rested on morals of residents constitutional); Ohralik v. the ground that San Diego's ordinance was an Ohio State Bar Ass'n, 436 U.S. 447, 98 S.Ct. 1912, impermissible content-based restriction on non- 56 LEd.2d 444 (1978) (regulation banning in- commercial speech because it only permitted person solicitation of accident victims for legal on-site signs with certain types of speech. Me- business because victims may be coerced into tromedia, 453 US. at 521, 101 S.Ct. at 2899. As hiring lawyer constitutional); Young v. Ameri- the Court has stated that "when no single ratio- can Mini Theatres, Inc,. 427 US. 50, 96 S.Ct. nale commands a majority. 'the holding of the 2440, 49 LEd.2d 310 (1976) (regulation setting Court may be viewed as that position taken by different zoning regulations for pornographic those Members who concurred in the judg- theatres or bookstores to prevent neighborhood menit] on the narrowest ground.' " City of Lake- deterioration and crime increases constitution- wood v. Plain Dealer Publishing Co., 486 U.S. al). The Court has also declared many regula- 750, 764 n. 9, 108 S.Ct 2138. 2148 n. 9, 100 tions to be unconstitutional that fall into this LEd2d 771 (quoting Marks v. United States 430 category. See Shapero v. Kentucky Bar Ass'n, US. 188, 193, 97 S.Ct. 990, 993, 51 LEd.2d 260 486 US. 466. 108 S.CtL 1916, 100 LEd.2d 475 (1977)), we do not view the plurality dicta in (1988) (regulation banning solicitation for legal Merromedia as controlling the outcome of this business mailed on a personalized or targeted case. basis to prevent potential clients from feeling undue duress to hire the attorney unconstiu 10. See Zauderer v. Office of Disciplinary Counsel tional); Bolger, er aL v. Youngs Drug Product of the Supreme Court of Ohio, 471 US. 626, 105 Corp., 463 US. 60. 103 S.Ct. 2875, 77 LEd-2d S.Ct. 2265, 85 LEd.2d 652 (1985) (regulation 469 (1983) (statute banning unsolicited mailingP banning the use of illustrations in lawyer adver- advertising contraceptives to aid parental au- tising and banning statements in such advertise- thority over teaching their children about birth ments offering legal advice and information as control unconstitutional); Central Hudson (stat misleading unconstitutional; regulation requir- ute preventing promotional advertisement by ing disclosure that legal "fees" and "costs" are electric utility to conserve energy unconsutu distinct financial obligations in retaining a law. tional); Bares v. State Bar of Ariz., 433 U.S. 350. yer to avoid misleading public constitutional); 97 S.Ct. 2691, 53 LEd.2d 810 (1977) (regulatiol Friedman v. Rogers, 440 U.S. 1. 99 S.Ct. 887, 59 banning advertisement of prices for routine 1c LEd.2d 100 (1979) (statute prohibiting the ad- gal services because of concern that legal PI DISCOVERY NETWORK, INC. v. CITY OF CINCINNATI 471 Cite as 946 Fid 464 (6th Cir. 1991) ,,use it is false or misleading. Therefore, The defense of that ordinance rests solely pantiffs' speech receives lesser first on the low value allegedly accorded to com- amendment protection only if Cincinnati's mercial speech in general. However, we raon for regulating it falls into the sec- observe that the Court actually accords a ond group of cases. -We can best demon- high value to commercial speech except in state what sort of rationale for regulation the two specific circumstances outlined i included in the second group by listing a above. Neither of them are present here. few examples. Cincinnati is not regulating the content of In each case where the Court upheld a plaintiffs' publications. Neither is Cincin- regulation on commercial speech that at- nati attempting to alleviate a harm caused tempted to burden that speech because of by the content of the publications. Cincin- perceived adverse effects on the communi- nati is attempting to place a burden on a ty, those effects flowed naturally from per- particular type of speech because of harms sonal actions fostered by the commercial caused by the manner of delivering that content of the speech itself. In Young v. speech. "We review with special care reg- 4merican Mini Theatres, Inc., 427 U.S. ulations that entirely suppress commercial 50. 96 S.CL 2440, 49 L.Ed.2d 310 (1976), speech in order to pursue a non-speech Detroit passed a zoning ordinance requir- related policy." CentralHudson, 447 U.S. ing sexual entertainment establishments to at 566 n. 9, 100 S.Ct. at 2351 n. 9. Cincin- be at least 1000 feet apart from one anoth- nati's non-speech related policy does not er. The city believed that permitting such survive that special review. establishments to be closer would foster crime, prostitution, and neighborhood de- If commercial speech has a high value in cay. However, the adverse effects of in- the Fox calculus absent the two specific creased crime, prostitution, and neighbor- circumstances, then Cincinnati's ordinance hood decay would allegedly occur because cannot be a "reasonable fit." Plaintiffs of the sort of person attracted to the loca- will bear a very heavy burden by being tion of these businesses. Also, in Posadas completely deprived of access to the city de Puerto Rico Associates v. Tourism Co. streets. Discovery currently distributes of Puerto Rico, 478 U.S. 328, 106 S.CL 33% of its magazines through newsracks 268, 92 LEd.2d 266 (1986), the Common- banned by the ordinance; Harmon, 15%. wealth banned advertising of casino gain- The benefit gained by the city, on the other bng that was directed at or detectable by hand, is miniscule. Plaintiffs own only 62 Puerto Rican citizens. The reason given of the between 1,500 and 2,000 newsracks Is that fostering gambling among Puerto currently on city streets. As commercial Ricans would disrupt moral and cultural speech has public and private benefits patterns, increase crime and prostitution, apart from the burdens directly placed on ad foster organized crime and corruption. Discovery Network and Harmon, the bur- These problems, however, would all arise den placed on it by Cincinnati's ordinance becuse Puerto Ricans would be more like- cannot be justified by the paltry gains in 17 to frequent casinos and gamble if they safety and beauty achieved by the ordi- were exposed to casino advertising. In nance. While Cincinnati argues that this is ech ease, the adverse effect would occur the best option open to it in light of the u a direct result of persons acting upon protection afforded to newsracks 'he commercial content dispens- (availability of sex- ing traditional newspapers, Ual entertainment, availability of casino "the First Amendment does not permit a ban r.'nbling) of the speech regulated. on certain speech merely because it is more effi- 141 These observations destroy Cincin- cient" than other alternatives. Shapero, "ll's argument in favor of its ordinance. 486 U.S. at 473, 108 S.Ct. at 1921. eionalism will decline unconstitutional); Lin- to prevent the town from losing its integrated "k Associates Inc. v. Township of Willing- racial status unconstitutional); Virginia Citizens 4319U7S 85, 97 S.Ct. 1614, 52 LEd.2d 155 (statute banning price advertising by pharma- lkefS iuthon banning placement of "for cists because of concern that pharmacists' pro. signs in the front lawns of houses in order fessionalism would decline unconstitutional). 472 946 FEDERAL REPORTER, 2d SERIES In contrast to Cincinnati's fears, it has because it is not content-neutral. See Hef many options open to it to control the per- fron v. InternationalSocietyfor Krishna ceived ill effects of newsracks apart from Consciousness, 452 U.S. 640, 101 S.Ct. banning those dispensing commercial 2559, 69 L.Ed.2d 298 (1981); Rzadkoollow- speech. To the extent that the use of ski v. Village of Lake Orion, 845 F.2d 653 chains to fasten the newsracks is unsafe, a (6th Cir.1988); Wheeler v. Commissioner regulation requiring that all newsracks be of Highways, Commonwealth of Ken- bolted to the sidewalk would solve the tucky, 822 F.2d 586, 590 (6th Cir.1987) problem. To the extent that aesthetics are ("the Billboard Act and regulations apply a concern, a regulation establishing color evenhandedly to commercial and non-com- and design limitations upon all newsracks mercial speech; they discriminate against no view or subject matter"). A content- would fit the bill. In fact, counsel for neutral speech Cincinnati admitted at oral argument that regulation is one 'justified without reference working on an ordinance of to the content of the it is currently regulated speech," City of Renton v. Play- this sort with representatives of traditional time Theatres, Inc., 475 U.S. 41, 48, 106 newspapers. To the extent that the num- S.CL 925, 929, 89 L.Ed.2d 29 (1986). Cin- newsracks is disturbing, the city can ber of cinnati's argument on appeal, in contrast, establish a maximum number of newsracks relies on the lesser protection allegedly ac. permitted on city sidewalks, and distribute corded to commercial speech." them either through first-come, first-serve permit rationing or by selling permits to (6] Cincinnati could argue that its ordinance is content-neutral because it was not bidder. We are confident that the highest "adopted . .. because of disagreement with so many more options exist for the city, the message [the regulated speech] con- long as they do not treat newsracks differ- veys." Ward v. Rock Against Racism, ently according to the content of the publi- 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 cations inside. L.Ed.2d 661 (1989). Cincinnati could argue that its enforcement of the ordinance is III directed solely at the aesthetic and safety 15] We also write briefly to explain why problems caused by newsracks, and there- Cincinnati's ordinance does not pass consti- fore is not a content-based decision. How- tutional muster on other grounds. The or- ever, we cannot accept that argument for dinance treats newsracks differently on the two reasons. First, Cincinnati's position is basis of the commercial content of the pub- based on the argument that it can treat lications distributed. Cincinnati's ordi- newsracks distributing commercial speech nance, therefore, cannot qualify as a consti- differently than those distributing commen- tutional time, place, and manner restriction tary on public affairs. Given the wide 12. Nor does Cincinnati's ordinance qualify as ers-were secondary to the primary effect of the content-neutral under the "secondary effects" theaters; the dissemination of sexually explicit doctrine promulgated by the Court in Playtime entertainment. Here, the very existence of dif Thuetrar. There, the city enacted a zoning ordi- ferent types of newsracks causes aesthetic prob' nance keeping sexual entertainment movie the- lems for the city. Additionally, in Playtime 1Te aters 1,000 feet apart from a residential zone. aTer, the effects were caused by the nature of church, or park, and one mile from any school. the speech disseminated in the theaters. Here. The Court in Playtime Theatre stated that the the effects newsracks may have on the citi ordinance was content-neutral, and therefore aesthetic and safety interests are the same for reviewable under the time, place, and manner all newsracks, whether the publications inside regulation standard, because the primary con- are commercial or non-commercial speech. cern of the city in enacting the ordinance was to Had Cincinnati produced evidence that the control the secondary effects caused by the the- types of newsracks distributing commercia aters. Playtime Theare 475 U.S. at 48, 106 speech caused effects distinct from newsracks S.Ct. at 929. While Cincinnati is attempting to distributing newspapers, such as the clogging d control effects on the city's landscape and fix- downtown streets caused by auto buffs crowd tures, these effects are neither secondary nor ing around to obtain the latest issue Of Au"' caused by the speech being regulated. In Play- World. the ordinance may have been constitu time Theatres, the effects-increased crime and tional. under the secondary effects doctrine decreased neighborhood quality, among oth- This, however, is not the case. WORLDSOURCE COIL COATING, INC. v. McGRAW CONST. CO. 473 Che as 946 F.2d 473 (6th Cir. 1991) range of options open to the city to control government to choose the least restrictive ue perceived ill effects of newsracks with- means to further the governmental inter- out completely banning those distributing est. Sable Communications, 492 U.S. at comrnercial speech, we find it hard to be- 126, 109 S.Ct. at 2829. The ordinance is Beve that the city does not in fact favor the clearly not the least restrictive means, as it distribution of newspapers such as the Cin- places a substantially greater burden on inati Post and the CincinnatiEnquirer commercial speech than is necessary to alon its street corners over that of Home leviate the city's aesthetic and safety con- Magazine. The failure of the city to even cerns. include representatives of plaintiffs-and other publishers of commercial publica- IV its ongoing discussions with dons-in For the foregoing reasons, the judgment newspaper representatives regarding of the district court is AFFIRMED. sesthetic and safety regulations governing newsrack appearance and fastening provides further proof of an unadmitted bias against commercial speech.'3 Second, Cin- cinnati's hypothetical argument only addresses the enforcement of the ordinance. WORLDSOURCE COIL COATING, INC.; The ordinance itself was on the books long General Electric Capital Corporation, before this problem supposedly arose. Plaintiffs-Appellees, There is no argument advanced that the ordinance's ban on distribution of commer- Hancock County, Commonwealth cial handbills, by any method, not merely of Kentucky, Intervening by newsracks, was not directed against Plaintiff-Appellee, commercial 4 speech based on its content. V. (7] Nor can the ordinance pass muster McGRAW CONSTRUCTION COMPANY, as a valid content-based restriction. "Con- INC., Defendant-Appellant. tent based restrictions 'will be upheld only if narrowly drawn to accomplish a compel- No. 91-5250. ling governmental interest'" Barnes v. United States Court of Appeals, Clen Theatre, Inc., - U.S. , 111 S.CL Sixth Circuit. 456, 2474, 115 LEd.2d 504 (White, J., dis- Argued July 15, 1991. Wting) (quoting Sable Communications e. Cal, Inc. v. Federal Communications Decided Oct 16, 1991. Comm'n, 492 U.S. 115, 126, 109 S.Ct. 2829, 236, 106 LEd.2d 93 (1989)). This stan- Developer and financer of development dard has been interpreted to require a sued general contractor in state court for tL The Architects testimony is illuminating on content-neutral. The second part of the time, thiS point. place, and manner standard is that the regula- 0' Does the City have means to deal with the tion be "'narrowly tailored to serve a significant Proliferation of non commercial publishers governmental interest.'" Rock Against Racism, *ho are seeking City permits? 491 US. at 796 109 S.CZ. at 27 (quoting Clark v. L The City is attempting to work coopera- Community for Creative Non-Violence, 468 U.S. tely with the non commercial publishers to 288. 293, 104 S.CL 3065, 3068, 82 LEd.2d 221 place the devices in an orderly manner and in (1984)). The ordinance is not narrowly tailored some cases to agree to certain standard de- because there are many options available to the I-!es. particularly in the center business dis- city that would address its aesthetic, safety, and proliferation concerns without placing the sig- 0: Can't those very same regulations be ap. nificant burden on commercial speech that the 91aed to commercial publishers? ordinance does. See supra, at p. 471. None of A They could if commercial publications these options would be less effective in promot- ere considered legal. ing the asserted interests than is the complete ban on distribution of commercial handbills. Cincinnati's ordinance would not pass mus. See Rock Against even Racism, 491 U.S. at 799-800, if it met the requirement that it be 109 S.CL at 2757-59. 582 914 FEDERAL REPORTER, 2d SERIES shire Hathaway may be more apparent than real. Given the difference in the for- NATIONAL ORGANIZATION FOR mulas at issue, the First Circuit's applica- WOMEN; 51st State National Orga. tion of the "equally plausible and perhaps nization for Women; Maryland Nation. more intuitive," see 874 F.2d at 56, inter- al Organization for Women; Planned pretation of the PBGC is not necessarily at Parenthood of Metropolitan Washing. odds with the conclusion we reach. Unde- niably, the Berkshire Hathaway court be- ton, DC, Inc.; Commonwealth Women's lieved that the PBGC position was entitled Clinic; Nova Women's Medical Center to deference. See 874 F.2d at 55. How- Prince William Women's Clinic; Gyne. ever, the court's decision ultimately rested care Associates; Metro Medical Center, upon its conclusion that the PBGC's posi- Inc., d/b/a Annandale Women's Center tion comported with the statutory language Virginia National Organization for at issue in the case before it. See id. Women; Alexandria Women's Health ("Perhaps most importantly, PBGC's in- Clinic, Plaintiffs-Appellees, terpretation is consistent with the statutory language, and Congress expressly delegat- and ed substantial regulatory authority to PBGC relating to withdrawal liability.") National Abortion Federation; Capitol (emphasis added). Accordingly, our conclu- Women's Center, Inc.; Hillcrest Wom- sion will not be shaken by the fact that the en's Surgi--Center; Metropolitan Fami- First Circuit, in another context, deferred ly Planning Institute, Plaintiffs, to a PBGC notice of interpretation to which we, in a different context, choose not to V. 12 defer. And, of course, our detailed treat- OPERATION RESCUE; Randall Terry; ment of Berkshire Hathaway should not Patrick Mahoney; Clifford Gannett; detract attention from the fact that the Michael McMonagle; Michael Bray; the direct alloca- Eighth Circuit interpreted Jayne Bray, Defendants-Appellants, tion method in the same manner in which we interpret the modified presumptive and method, albeit without the PBGC opinion before it. See Ben Hur (decided prior to Project Rescue; the D.C. Project; the PBGC's shift in positions). Veterans Campaign for Life, Defendants (Two Cases). V For the foregoing reasons, the judg- NATIONAL ORGANIZATION FOR ments of the district court are WOMEN; 51st State National Orga- AFFIRMED IN PART, REVERSED IN nization for Women; Maryland Nation- 3 PART, AND REMANDED.1 al Organization for Women; Planned Parenthood of Metropolitan Washing- ton, DC, Inc.; Commonwealth Women's Clinic; Capitol Women's Center, Inc.; Nova Women's Medical Center; Prince

12. Our comments here should not be construed fees. Given the nature of the controversy beas an endorsement of the ultimate conclusion fore us. we affirm that refusal. reached in Berkshire Hathaway. Nor, of course, Because the district court made no findings Berkshire Hatha- do we mean to imply that the matter, we leave for the district court On way court definitely would endorse the result on the the issue of whether the GAI Fund and we reach here. Because neither issue is remand the Escrow Fund, even assuming, as herein indi- presented, our comments as to each are merely on the basis dicta, relevant here only insofar as they address cated, that vesting is not computed the apparent tension between the two opinions. of a single prior year, are "employers. Also, the district court will have to make 13. Almont and Stevedores, who won below but findings in both cases as to the amount of with- now have lost on appeal, have appealed the drawal liability owed. district court's refusal to award them attorney's NOW v. OPERATION RESCUE 583 CItes9t4 F.2d 582 (4th Cir. 1990) clinics' pa- William Women's Clinic; Gynecare As- harassment, or disturbance of sociates; Metro Medical Center, Inc., tients or potential patients. d/b/a Annandale Women's Center, Affirmed. Hillcrest Women's Surgi-Center; Met- ropolitan Family Planning Institute; Virginia National Organization for 1. Conspiracy <=7.5 Women; Alexandria Women's Health Women qualified as protected class un- Clinic, Plaintiffs-Appellants, der civil rights conspiracy statute. 42 U.S. C.A. § 1985(3). and 2. Federal Courts

(OIy MwuRtSSI1 2. Internal Revenue

On remand from the Supreme Court we remand for further proceedings to deter. are asked to consider the effect of Seiter mine whether the prison officials showed on McKinney. The issue in Seiter was deliberate indifference to McKinney's long "whether a prisoner claiming that condi- term exposure to ETS. We also repeat our tions of confinement constitute cruel and recommendation that the district court ap- unusual punishment must show a culpable point an expert witness or witnesses. state of mind on the part of prison officials We reinstate the judgment and, if so, what state of mind is required." of. this court and remand for further proceedings con. Seiter 111 S.Ct. at 2322. The Court held sistent with this court's that "[ilf the pain inflicted is not formally previous opinion and with Seiter. We understand that a meted out as punishmentby the statute or local attorney in Reno, Nevada has agreed the sentencing judge, some mental element to represent McKinney in district court must be attributed to the inflicting officer proceedings. If this before it can qualify" as a violation of the does not prove to be the case we also repeat our Eighth Amendment. Id. at 2325. The recommendation that the held that the appropriate standard is district court appoint an attorney Court to represent McKinney. "deliberate indifference." Id at 2327. In reaching its decision, the Court discussed REINSTATED AND REMANDED. its previous decision in Rhodes v. Chap- man, 452 U.S. 337, 101 S.Ct. 2392, 69 LEd.2d 59 (1981). The Court noted that its decision in Rhodes "turned on the objective component of an Eighth Amendment prison claim (was the deprivation sufficiently serious?), and ... did not consider the subjective component (did the officials act with a David sufficiently culpable state of mind?)." L ADAMS, Petitioner-Appellant, Seiter, 111 S.Ct. at 2324. Thus, in Seiter V. the Court expands the requirements for an R.S. PETERSON, Superintendent of Eighth Amendment claim by adding a sub- O.S.C.I., Respondent-Appellee. jective component. No. 87-4191. The Court's establishment in Seiter of a subjective component for an Eighth United States Court of Appeals, Amendment claim does not vitiate our de- Ninth Circuit. termination of what satisfies the objective March 27, 1992. component. Our holding that it is cruel and unusual punishment to house a prison- Before WALLACE, Chief Judge, TANG; er in an environment that exposes him to PREGERSON, NORRIS, WIGGINS, : levels of ETS that pose an unreasonable BRUNETTI, KOZINSKI, O'SCANNLAIN, risk of harming his health constitutes the TROTT, FERNANDEZ, and KLEINFELD, objective component of McKinney's Eighth Circuit Judges. Amendment claim. Seiter simply adds another element to an Eighth Amendment ORDER claim that McKinney must prove. The opinion of the panel in Adams' In our opinion we agreed with the magis- Peterso, 939 F.2d 1369 (9th Cir.1991), trate's ruling that directed a verdict on the withdrawn. issue of defendants' deliberate indifference to McKinney's serious existing medical symptoms. As McKinney points out, indifference to current medical problems is distinct from indifference to the problem of involuntary, long term exposure to unreasonable levels of ETS. Accordingly, we 1366 962 FEDERAL REPORTER. 2d SERIES am convinced that a mistake has been lier and Sacramento Bee, all of which; made that cannot be cured by the mere volve the exclusion of the press from change of nomenclature represented by the The press brings to the absent public" it majority's amendments to the opinion. To narrative of the trial. The family &Q alleviate what the judge- and prosecutor friends of the defendant are .part of deemed the victim-witness's distress at hav- very public whose interest in presenceu ing to go through the ordeal of recounting protected. Thus, the considerationsw her experience before the defendants fami- must be serviced in admitting the pr ly members, the judge expelled the family public and family are similar but not ide. s. members from this portion of the proceed- cal, and stem from different sources. Our ings. From some experience, I share the case law treatment of free press/fair trial judge's concern. But I know also that a in no way explains why unwarned family or trial judge has many means of controlling friends, spectators from the body publi the behavior of spectators short of banish- should be ousted from an otherwise pube ment from the public courtroom. trial. The majority's amendments to the opin- Because the expulsion order in thise ion in response to this concern are a nost- was precipitous,. not supported by the rum premised. on a faulty conclusion: "The record, and shut off access where access is closure order was narrowly tailored to pro- vital, not only to the miscellaneous defen- tect Bennally and elicit her information." I dant or spectator but to the institution, I disagree, and the summary application of respectfully dissent from the majority's this label ignores the principles which call amended opinion. for a. forewarning by the trial judge-an effort to maintain order through less drastic means than the expulsion of friends and family. . Attendees cannot be simply thrown out of the courtroom unless the judge can make supportable findings that GUAM SOCIETY OF OBSTETRICIANS order can not be maintained through less AND GYNECOLOGISTS; Guam Nur- drastic means. Waller. v. Georgia, 467 es Association; The Reverend Milton US. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d Cole, Jr.; Laurie Konwith; -Edmund-A. 31 (1984). Griley, M.D.;. William S. Freeman, Charley's family members were given no .D.; John Dunlop, MD.; on behalf of admonishment about maintaining the requi- themselves and all others similarlysidtu site decorum,. no second chance. In fact, ated, and all their women -patients, they were given no sign that the judge felt Plaintiffe-Appellees, any need to demand order before expul- V. sion. There is no indication that decorum could not have been maintained by some Joseph F. ADA, Governor of Guam, in less drastic step and, contrary to.the major- his official capacity, Defendant- ity's amendments, no indication that the Appellant judge considered less drastic alternatives. No. 90-16706. There was not the slightest effort to con- United States Court of Appeals, fine sanctions or threats of sanctions to the Ninth Circuit specific individuals who might be deemed the responsible actors. An experienced Argued and Submitted Nov. 4, 1991. judge should be expected to use all mea- Decided April 16, 1992. sures necessary for order and decorum- and no more. As Amended June 8, 1992. Finally, in its examination of the procedural propriety of the closure order the Society of Obstetricians and Gynecolo- majority cites to Press Enterprise,Brook- gists and others sued Governor of Guam in GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1367 Cite as 962 P.2d 1366 (9th Cir. 1992) ,i-dividual and official capacities alleg- declared unconstitutional under First that Guam's anti-abortion statute vio- Amendment. U.S.C.A. Const.Amend. 1. due process .id right to privacy under 4. Territories -8 use of Fourteenth Amendment, as de- Mink Amendment expressly extended (4fdby United States Supreme Court Roe to Guam due process clause of Fourteenth Vade decision. The United States Dis- ,fitCourt for the District of Guam, Alex Amendment, upon which holding of United States Supreme Court Roe v. Wade deci- iloson, Chief. Judge, 776 F.Supp. 1422, ently enjoined enforcement of stat- sion was founded, and thus, Roe v. Wade M.Governor appealed. The Court of Ap- applied to Guam as it applied to states. j, ., Canby, Circuit Judge, held that (1) Organic Act of Guam, § 5(u), as amended, :48 U.S.C.A. § 1421b(u); U.S.C.A. Const. from provisions of anti-abortion cappealed Amend. 14. statute declared unconstitutional under .rust Amendment were severable; (2) Mink 5. Civil Rights 4207(1) Amendment expressly extended to Guam Governor of Guam was "person," with- protections of.due process clause of Four- in meaning of § 1983, when sued in his enth Amendment upon which holding of official capacity for prospective reliet 42 Bo v. Wade. was based; (3) Governor of U.S.C.A. § 1983. Guam was "person," within meaning of See publication Words and Phrases .j 1983, when sued in his official capacity for other judicial constructions and for prospective relief; and (4) anti-abortion definitions. statute was unconstitutional under Roe v. 6. Abortion and Birth Contr6l -130 Wade. Guam's anti-abortion statute was un- * Affirmed. constitutional, where statute made no attempt to comply with United States Su- preme Court,. Roe v. Wade . decision. . Statutes 464(6) -U.S.C.A. Const.Amends. 1, 14.. .- - Provisions -of Guam's anti-abortion statute which District Court held were in 7. Abortion and Birth Control *L30 Ailation of First Amendment were severa- United States Supreme Court Roe v. Ile from other parts of statute so that Wade decision continued to be. valid prece- Guam's failure to appeal from such ruling dent so as to require Guam to comply with did not preclude appeal' from ruling that Roe v. Wade decision when enacting anti- i1her provisions violated Fourteenth abortion statute. US.C.A ConstAmend. ,Amendment,- absent evidence of contrary 14. legislative intent US.C.A Const.Amend

t Statutes 064(6) Paul B. Linton, Amdricans United for Life, Chicago, Ill., Arnold H. eiIitz, Provision of Guam's anti-abortion stat- Cameron & Horabostel,. Washington, ate that, if majority. of voters voted to D.C., for defendant-appellant. repeal statute; statute shall be repealed in is entirety, was insufficient to overcome Anita P. Arriola, Arriola, Cowan & Bor presumption of severability of provisions of dallo, Agana, Guam, Lynn 3. Paltrow, Si- -statute which district court had held:to be mon Heller, American Civil Liberties Union in violation of First Amendment U.S.C.A. Foundation, New York City, for plaintiffs- .!Cnst.Amend 1. appellees. . Statutes 464(6) Appeal from the United States District Mere suggestion that Guam legislators Court for the District of Guam. wanted comprehensive anti-abortion statute was not sufficient to overcome presump- Before: CHOY, D.W. NELSON and tion of severability of provisions of statute CANBY, Circuit Judges. . - 1368 962 FEDERAL REPORTER, 2d SERIES CANBY, Circuit Judge: on the part of the women submitting j7 On March 19, 1990, the Territory of abortions and on the -part of the Guam enacted a statute ("the Act") outlaw- procuring or causing them. ing almost all abortions.' The only excep- The validity of the Act was imm* tions were abortions in cases of ectopic challenged in this class action brouItg pregnancy, and abortions in cases where the Guam Society of Obstetricians two physicians practicing independently cologists and others against Joseph F. reaspnably determined that the pregnancy the Governor of Guam. The district o would endanger the life of the mother or accurately viewed the Act as a direct: "gravely impair" her health. All other lenge to the regime of Roe v. Wadk n abortions were declared to be crimes, both U.S. 113, 93 S.Ct. 705, 35 LEd. 1. The final version of Guam Public Law 20-134 other means whatever, with intent th states: cause an abortion of such woman as d BE IT ENACTED BY THE PEOPLE OF THE in § 31.20 of this Title is guilty of a thi TERRITORY OF GUAM: degree felony. In addition, if such person Is , Section 1. Legislative findings. The Legisla- licensed physician, the Guam Medical ture finds that for purposes of this Act life of sure Board shall take appropriate disciplinaq every human being begins at conception, and action. that unborn children have protectible interests Section 4. § 31.22 of Title .9, Guam - in life, health, and well-being. The purpose of Annotated, is repealed and reenacted to this Act is to protect the unborn children of § 31.22. Soliciting and, taking drigs r Guam. As used in this declaration of findings submitting to an attempt to cause an.abortion the term 'unborn children" includes any and all Every woman who solicits of any person any unborn. offspring of human beings from the medicine, drug, or substance whatever and moment of conception until biith at every stage takes the same, or who submits to any op. of biological- development. tion, or to the use of any means whatever Section 2. § 31.20 of Title 9, Guam Code with intent thereby to cause an abortion as Annotated, is repealed and reenacted to read- defined in § 3120 of this Title is guilty of a §.31.20. Abortion: defined. "Abortion" misdemeanor. means the purposeful termination of a human Section S. A new I31.23 is added to Titlek, pregnancy after implantation of a fertilized Guam Code Annotated, to read: ovum by any person including the pregnant § 31.23. Soliciting to submit to operat, --woman herself with an Intention other than etc., to cause an abortion. Every perso itlo to produce a live birth or to remove a dead solicits any woman to submit to any op" unborn fetus. "Abortion" does not mean the tion, or to the use of any means whatevet, to medical intervention in (I) an ectopic preg- as defined in § 3120 ofthis nancy, or (ii) in a pregnancy at any time after cause an abortion two (2) Title is guilty of a misdemeanor. the commencement of pregnancy if Section 6. Subsection 14 of Section 3107, physicians. who practice independently of each other reasonably determine using all Title 10, Guam Code Annotated. is repealed. available means that there is a substantial risk Section-7. Abortion referendum. (a) Theire that continuance of the pregnancy would en- shall be submitted at the island-wide general danger the life of the mother or would gravely election to be held on November 6, 1990, the impair the health of the mother, any such following question for determination by the termination of pregnancy to be subsequently qualified voters of Guam, the question to appear reviewed by a peer review committee desig- on the ballot In English and Chamorro nated by the Guam Medical licensure Board. "Shall that public law derived from Bill 848, and in either case. such an operation is per- Twentieth Guam Legislature (PL. 2041341), formed by a physician licensed to practice which outlawed abortion except in the cases medicine in Guam or by a physician practic. of pregnancies threatening the life of the ing medicine in the employ of the government mother be repealed?[] of the United States, in .an adequately In the event a majority of those voting vote equipped medical clinic or in a hospital ap- "Yes," such public law shall be repealed in its proved or operated by the government of the * entirety as of December I, 1990. United States or of Guam. (b) There is hereby authorized to be appro- Section 3. § 31.21 of Title 9, Guam Code priated to the Election Commission (the Annotated, is repealed and reenacted to read. 'Commission') sufficient funds to carry out § 31.21. Providing or administering drug the referendum described in this Section 7, or employing means to cause an abortion. including but not limited to the cost of print- Every person who provides, supplies, or ading the ballot and tabulating the results. In ministers to any woman, or procures any preparing the ballot, the Commission shall woman to take any medicine, drug, or sub- include in the question the number of- the stance, or uses or employs any instrument or relevant public law. GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1369 Cite as 962 F.s" 1366 (9th Cir. 1992) A. Severability of the Unappealed Sec- 41973), in the Territory of Guam. The district court held that Roe v. Wade applied, tions and granted summary judgment for the (1] The district court held that Sections plaintiffs, permanently enjoining enforce- 4 and 5 of the Act violated the First ,sent of the Act.2 776 F.Supp. 1422. We Amendment, and Guam did not appeal from iffirm. that ruling. The plaintiffs now argue that these sections are not severable from the remainder of the Act. The result, they contend, is that the entire Act has been The plaintiffs in this case are the Guam invalidated, in effect, by the district court's Society of Obstetricians & Gynecologists; unappealed ruling, leaVing nothing to be the Guam Nurses Association; physicians decided on this appeal. We reject this contention because we conclude that Sections 4 Edmund A. Griley, William S. Freeman, and 5 are severable from the other parts of and. John Dunlop; the Reverend Milton H. the Act. Cole, Jr;;. and Laurie Konwith. The health The standard for determining the sever- care providers in this group clearly have ability of an unconstitutional provision is standing to bring this action. See Planned well established. "'Unless it is evident Danforth, 428 U.S. 52, 62, Parenthood v. that the Legislature would not have en- 96 S.Ct. 2831, 2837,'49 LEd.2d 788 (1976); acted those provisions which are within Abele v.Markle, 452 F.2d 1121, 1125 (2d its power, independently of that which is ir.1971). Because some of the plaintiffs not, the invalid part may be dropped if have standing, it is not necessary to deter- what is left is fully operative as a law."' whether the others do. See Doe v. aine Alaska Airlines, Inc. v. Brock, 480 U.S. -Bolton, 410 U.S. 179, 188-49, 93 S.Ct. 739, 678, 684, 107 S.Ct. 1476, .1480, 94 LEd.2d (1973); see also Watt v. 746, 35 LEd.2d 201 661 (1987) (citations omitted). The sections -nergy Action Educ. Found., 454 US. of the Act that remain if Sections 4 and 5 151i 1601 102 S.Ct. 205, 212,70 LEd.2d 309 are severed clearly are fully operative as a (1981); Grove v. Mead School Dist: No. law. Unless there is evidence of contrary 354, 753 F.2d 1528, 1532 (9th Cir.), cert. legislative intent, the remainder of the Act denied, 474 U.S. 826, 106 S.Ct. 85, 88 should therefore survive the invalidation of L.Ed.2d 70 (1985). Sections 4'and 5.. Thedistrict court held that the plaintiffs (2]( The plaintiffs put forward two relat- could maaintain their ction under 42 U.S.C. ed arguments suggesting a legislative in- 1983, and awarded them relief under.the tent against severability. First, they con- due process guarantees recognized in Roe tend that Section 7, which provides for a v. Wade.. The court. determined that those referendum to determine..whether the en- guarantees applied in Guam, under the pro- tire Act should be repealed, demonstrates visions.of the Mink Amendment .to the that the Guam Legislature intended the Guam- rganic Act, 48 U.S.C. I1421b(u). Act to stand or fall as a whole. Second, The .Territory of. Guam in the person of they argue that the Legislature's intention Governor.Ada ("Guam") challenges all of was to pass a comprehensive antiabortion .these ruilings onappeal, and urges. as well statute, and that removal of Sections 4 and that the authority of Roe v. Wade has been 5 creates a weaker and less comprehensive undermined by later decisions of the Su- statute. preme Court. Before we address these With respect to the first argument, the points, however, we must deal with a fact that there was to be a referendum on threshold issue raised by the plaintiffs. the entire Act reveals very little about leg- 2. The district court also held that Sections 4 and 3. The provision for a referendum did not delay 5 of the statute, which make criminal the "soli- the effective date of the Act. There is accord- citing" of abortions, violated the First Amend- ingly no issue of ripeness. ment. That ruling has not been appealed. 1370 962 FEDERAL REPORTER, 2d SERIES islative intent regarding severability. The ment; and the fifteenth and nineteerth plaintiffs place undeserved emphasis on the amendments. i. words "in its entirety." That part of the 48 U.S.C. § 1421b(u) (emphasis section idde provides that, if a majority of the The Mink Amendment thus expressl ix. voters vote to repeal the law, "such public tends to Guam the Due Process Claiugse law shall be repealed in its entirety." An the Fourteenth Amendment, upon entire %liich repeal is the obvious and logical re- the holding of Roe was founded.' See Roe sult of a vote to repeal in a referendum; v. Wade, 410 U.S. at 153, 93 S.Ct. at 726. the words in question signify no more than It may be true, as Guam argues, that the that. Supreme Court requires a clear indicaton (3] While the plaintiffs' second argu- of congressional intent before interpreting ment is not wholly implausible, they a congressional action as extending a right present no evidence to support it. The to the people of Guam. See Guam ti. o. mere suggestion that legislators wanted a sen, 431 U.S. 195, 97 S.Ct.. 1774, 52 LEd.2d comprehensive Act is not sufficient to over- 250 (1977). We canscarcely imagine, how- come the presumption of severability that ever, any clearer indication of intent than is implicit in the Alaska Airlines standard. the language of the Mink Amendment the We therefore reject the plaintiffs' sever- _trelevant .constitutional amendments "have ability arguments, and proceed to the argu- the same force and effect" in Guam asin a ments that Guam raises on thappeal. state of the United States. --There is -no need, therefore, to -go.-further. See.Ngi. Wade raingas v. SanchezA.95 U.S. 182, 188-87, B. Applicability of Roe a 110 SCt. 1737, 1740,109 LEd.2d 163 (190) Guam (resorting to legislative history only after (4] Guam contends that the substantive determining. that the. statutory due process guarantee enforced in Roe 'v. was uncle). Accordingly, we hold4hat Wade and subsequent abortion cases does Roe v. Wade applies to Guam as itappi not apply to Guam because nothingin toatthe states.to. . Guam's Organic Act, codified at 48 U.S.C. §§ 1421-1424b (1988), so provides. The C. Prospective Relief Under 42 T.S.C plain laiguage of the 1968 Mink Amend- / 1983 - . ment to the Organic Act, codified at 48 .(5] Guam next argues that the plain- U.S.C. § 1421b(u) (1988), belies their claim. tiffs cannot maintain this action against The Mink Amendment. states that Governor Ada under 42 U.S.C. § 1983 be- The following provisions of and amend- cause he is not a "person" within the niten- ments to the Constitution of the United ing of that statute. We hold that-he is': States are hereby extended to Guai ... "person" when sued in his official capacity and shall have the same force and effect for prospective relief. : there as in the United States or in any Section 1983 creates liability for' "er- State of the United States: ... the first sons" who, while acting "under "color" of to ninth amendments inclusive; the thir- state or territorial law, deprive citizens or teenth amendment; the second sentence other persons of rights,' privileges; or'im- of section 1 of the fourteenth amend- munities secured by the Constitution-or 4. The Mink Amendment also extends to Guam us to address the.further contention..of. the every other conceivable constitutional source of plaintiffs that the right of privacy-autonomy the right of privacy. See Roe, 410 US. at 152, protected by Roe v. tade qualifies as a "funds- 93 S.C. at 726 (sources relied on by the Court or mental" constitutional right applicable to an un- individual Justices have included the .First incorporated territory by its own force. .See Amendment, the Fourth and Fifth Amendments, e.g., Ecamining Board v. the penumbra of the Bill of Rights, Flores de Otero, 426 the Ninth US. 572, 599 n. 30. 96 S.CL 2264, 2280 n. 30, 49 Amendment, and the Fourteenth Amendment). LEd.2d 65 (1976) (only 'fundamental" constitu- 3. Our disposition of this question on the basis of -tional rights apply in unincorporated territory). the Mink Amendment makes it unnecessary for GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1371 Cite as 962 FId 1366 (9th Cir. 1992) Will by .Ifederal law. 42 U.S.C. § 1983. In Ngi- Guam attempts to distinguish . ingas v. Sanchez, 495 U.S. 182, 110 S.Ct. arguing that Guam is a "federal instrumen- entity like a *137, 109 L.Ed.2d 163 (1990), an action for tality" rather than a sovereign aimages, the Supreme-Court held that ter- state. Because Congress maintains control 'itories are not "persons" within the mean- over the Territory, -Guam contends that g of § 1983. The Court also stated: there.is no need to apply § 1983 to Guam .'ipetitioners concede, ... and we agree, or its officials. Stat is not a person, neither are its if Guam Guam's argument proves too much. Un- their official capacity." cofficers acting in der its approach, .section 1983 would not S.Ct. at 1743. Guam seizes *Id at 192, 110 apply at all in any territory-not even to that, be- upon this language. It contends municipalities or officials acting in their .cause Governor Ada is being sued to pre- *individual capacities. Such a result would from enforcing a statute of .-ent him totally nullify the provision of .section 1983 .Guam, he is necessarily being sued in his liability upon.persons acting un- .fficial capacity. Therefore, Guam asserts, imposing law of "any State or.Territo- he cannot be considered a "person" subject der color of to suit under section 1983. ry. " Accordingly, we conclude that Gov- ernor Ada, when sued as he is here in his argument overlooks the distinc- Guam's official capacity for injunctive relief, is a -tion between suits against governmental person within the meaning of 42 U.S.C. *6fficials for damages, such as Ngiraingas, and those for injunctive relief. The distinc- § 1983. tion has been spelled out in cases involving state officials. Like territories, states are ..not "persons" for purposes of section 1983. Will v. Michigan Dep't of State Police, 491 Having determined that the. plaintiffs US. .58, 63-65, 109 S.Ct. 2304, 2307-08, 105 may maintain this action under .section LEd.2d 45 (1989). In addition, state offi- 1983, we turn to the substantive due cers, when sued for damages in their offi- process claim. Two issues arise: (1) cial capacities,. are likewise not "persons" whether Guam's Act violates, the right of within the meaning of 1983. Id. at 71, 109 privacy protected by Roe v. Wade, and (2) S.Ct. at 2311. Any other conclusion would whether subsequent Supreme Court deci- render meaningless the ruling that states sions, particularly Webster v. Reproductive are not "persons"; a judgment against a Health Services, 492. US. 490, 109 .S.Ct. state official in his or her official capacity 3040, 106 L.Ed.2d 410 (1989), have so erod- .runs against the state and its treasury. .ed Roe v. Wade that Roe cannot now be Kentucky v. Graham, 473 U.S. 159, .166, applied to invalidate Guam's Act. 105 S.Ct 3099, 3105, 87 LEd.2d 114 (1985). The rule is entirely different, however, A. Validity of the Act under Roe v. when the suit is. for injunctive relief. "Of Wade course a state official in his or her official capacity, when sued for injunctive relief, [6] The first issue is not hard to re- would be a person under § 1983 because solve. Guam's Act makes no attempt to 'official-capacity actions for prospective re- comply with Roe. In Roe, the Supreme lief. are'not treated as actions against the Court recognized that the right of privacy State.' " Will, 491 U.S. at 71 n. 10, 109 "is broad enough to encompass a woman's S.Ct at 71 n.. 10 (quoting Kentucky v. decision whether or not to terminate her Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at pregnancy," and that for the state to deny 3106 n. 14); see Ex parte Young, 209 U.S. this choice "may force upon the woman a 123, 159-60, 28 S.Ct. 441, 454, 52 L.Ed. 714 distressful life and future," along with oth- (1908). We can see no reason why the er harms. Roe, 410 U.S. at 153, 93 S.Ct. at same distinction between injunctive and 727. The Court further recognized that damages actions against officials should limitation of the woman's fundamental not apply to a territory. right of choice could be justified only by a 1372 962 FEDERAL REPORTER, 2d SERIES "compelling state interest." Id. at 155, 93 decisions have so eroded the analysis o' S.Ct. at 728. Roe that Guam's Act should be held tojW The Court in Roe rejected the state's constitutional under the current state 9f argument, renewed by Guam here, that the the law. We now address that contention. state has a compelling interest in protecting fetal life from the moment of concep- B. The Status and Applicabilit,6r tion. Id. at 159, 93 S.Ct. at 729. Thus Roe Roe Today recognized the superior right of choice by the woman during the first trimester of [71 Guam contends that Roe has no pregnancy, and her right during the second force after Webster v. Reproductive trimester limited only by the state's com- Health Services, 492 U.S. 490, 109 S.Ct pelling interest in protecting her health. 3040, 106 LEd.2d 410 (1989). -Putting Web. I& at 163, 93 S.Ct. at 731. Only after the ster together with non-majority opinions in point of viability did the state's interest in other cases, Guam contends that the clasaj. fetal life become bompelling and permit the fication of competing interests has state to proscribe abortion entirely. I& at changed. Guam relies particularly upon 163-64, 93 S.Ct. at 732. Justice O'Connor's dissents in Thornburgh The Guam Act gives not a nod toward v. American College of Obstetricians & Roe. With two narrow exceptions, it sim- Gynecologists, 476 U.S. at 814, 106 S.Ct. at ply negates the rights and interests ofthe 2206, and Akron v. Akron Centerfor -Re- pregnant woman and forbids her to termi- productive Health, Inc., 462 U.S. 416,452, nate her pregnancy from the moment of 103 S.Ct. 2481, 2504, 76 L.Ed.2d 687 (1983). conception. It is difficult to imagine a According to Guam, five Justices of:the more direct violation of Roe Even the Supreme Court now recognize the state's exceptions for abortion to save the moth- compelling interest in potential human ike ers life or to prevent grave impairment to throughout pregnancy, and no longer . her health are hedged with crippling re- here to the Roe analysis. In Webster, ia strictions. The pivotal determination must three-Justice plurality stated that it'did be made by two physicians "who practice "not see why the State's interest ir protect- independently of each other"; they must ing potential human life should comehito make'their determination "using all avail- existence only at the point of viability'" able means," and subject to subsequent Webster, 492 U.S. at 519, 109 S.Ct. at 3057. review by a peer review committee. Act, 9 It also characterized the. woman's interest Guam Code Ann.' § 31.20. Less cumber- as a "liberty interest," as distinguishid some two-physician and peer review re- from a "fundamental right." Id. at 520, quirements rere struck down by the Su- 109 S.Ct. at 3058. Guam would put these preme Court in Doe v. Bolton, 410 U.S. statements together with Justice Scalia's 179, 199-200, 93 S.Ct. 739, 751, 35 LEd.2d view that Roe should be overruled. Id. at 201 (1973), decided with Roe, and in Thorn- 532, 109 S.Ct. at 3064. It would then add burgh v. American College of Obstetri- Justice O'Connor's view that regulations cians & Gynecologists, 476 U.S. 747, 768- that do not impose an "undue burden'' on a 71, 106 S.Ct. 2169, 2182-84, 90 LEd.2d 779 woman's right to seek an abortion are sus- (1986). tainable if rationally related to a legitimate If the core of Roe remains good law, state purpose. Id. at 529-30, 109 S.Ct. at then, the Act is clearly unconstitutional. 3062-63; Thornburgh, 476 U.S. at 828,106 Guam contends, however, that subsequent S.Ct. at 2214.6 Finally, it would include 6. Guam also contends that Roe's requirement of Akron H1and Hodgson dealt with minor women, a "compelling interest" on the part of the state however, and the Court has recognized that "the was reduced to that of a "rational basis" in Ohio State has somewhat broader authority to regu- v. Akron Center for Reproductive Health, 497 late the activities of children than of adults. U.S. 502, 110 S.Ct. 2972, 11 L.Ed.2d 405 (1990) Planned Parenthood v. Danforth. 428 U.S. 52, 74, (Akron H7), and Hodgson v. Minnesota, 497 US. 96 S.Ct. 2831, 2843,,49 LEd.2d 788 (1976). 417, 110 S.Ct. 2926, 111 LEd.2d 344 (1990). GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1373 . Cite as 962 F.2d 1366 (9th Cir. 1992) O'Connor's position elsewhere ex- We also have severe difficulty accepting that the state's compelling interest the conclusions that Guam draws from the throughout pregnancy. See Akron, existing mosaic of decisions. In the first U'S.:at 459, 103 S.Ct. at 2507; Thorn- place, it is hard to see how Justice O'Con- , 476 U.S. at 828, 106 S.Ct. at 2214. nor's view helps Guam: surely an outright i this 'mix, Guam derives the conclu- criminalization of abortion places an "un- ,W that its interest in fetal life can over- due burden" on the exercise of the wom- 0zne the woman's right to choose whether an's right.' Second, a view of the state's 1 have an abortion, and that Guam's Act is interest in potential life as "compelling" jtbrefore not unconstitutional on its face. throughout pregnancy does not necessarily * e reject Guam's construct. The bits mean that it sweeps all other interests out pieces assembled by Guam fallshort of of the way.' There is a countervailing conpelling us to do that which the Su- right in issue here, although we find little preme Court itself has. declined to do- reflection of it in Guam's briefs. No mat- overrule Roe v. Wade In Webster, the ter how it is characterized, the right of a Court modified Roe only to the extent nec- woman not to be forced to endure a preg- essary to uphold Missouri's requirement of nancy and birth is an extremely important testing for viability. Webster, 492 U.S. at one. Pregnancy entails "profound physi- .521, 109 S.Ct. at 3058. The plurality opin- cal, emotional, and psychological conse- ion stated that the case afforded no occa- quences." Michael M. v. Superior Court sion to revisit Roe, "and we leave it undis- of Sonoma County, 450 U.S. 464, 471, 101 turbed." Id. Justice O'Connor found no S.Ct. 1200, 1205, 67 LEd.2d 437 (1981). conflict between Missouri's statute and "Few decisions aii more personal and inti- Roe, and similarly concluded that there was mate, more properly private, or more basic no need to reexamine Roe. Id. 492 U.S. at to individual dignity and autonomy, than a 525-26, 109 S.Ct. at 3060-61. Three dissen- woman's decision-with the guidance of ters opined that Roe survived Webster, al- her physician and within the limits speci- though it was not secure. Id at 537, 109 fied in Roe-whether to end her pregnan- S.Ct at 3067 (dissenting opinion of Justice cy." Thornburgh, 476 U.S. at 772, 106 Blackmun, joined by Justices Brennan and S.CL. at 2184. The individual's interest in Marshall). Justice Scalia in his concur- exercising control over intimate personal rence chastised the Court for failing to decisions has been recognized in decades of overrule.Roe Id. at 532, 109 S.Ct. at 8064. Court precedent See id.; Akron, 462 U.S. In the face of these pronouncements, it at 419, 103 S.CL at 2487; Roe, 410 U.S. at would be both wrong and presumptuous of 167-70, 93 S.Ct. at 733-36 (Stewart, J., as now to devlare that.Roe v. Wade is concurring); Eisenstadt v. Baird, 405 U.S. dead.? 438, 92 S.CL 1029, 31 LEd.2d 349 (1972). 7. In its most recent abortion-related case, Rust nor's standard is now the law of the land, cert. X Sudvan, - U.S. I I S.CL. 1759, 114 grnt4 - US..-, 112 S.CL 931. 117 L.Ed.2d I.Ed.2d 233 (1991), the Supreme Court upheld 104 (1992)). certain federal regulations against a challenge that they violated a woman's due process right 9. There clearly must'be to choose whether to terminate limits to the ability of a her pregnancy. state's interest in potential life, whether or not The Court held that the regulations dealing with characterized activities as compelling, to override all con- of federally-funded programs did not flicting Interests. violate Roe v. Wads. I 111 Potential human life exists in S.Ct. at 1777. It the ovum and sperm. See Webster, did not suggest that Roe 492 U.S. at v. Wade was no longer 565-66, 109 S.Ct. the law. at 3082 (Stevens, J., concurring in part and dissenting in part). A state could maximize that potential by forbidding & Because Justice O'Connor's -undue burden" contraception, or even by requiring regular sex- test is of no assistance to Guam. we need not ual intercourse by all fertile persons.' The pros- decide what authoritative effect, if any, it must pect is absurd, of course, because there are be given. See Planned Parenthoodv. Casey, 947 highly important constitutional rights that F.2d 682, 687-98 (3d Cir.1991) (Justice O'Con. would be interfered with by such a measure. 1374 962 FEDERAL REPORTER, 2d SERIES We would not lightly conclude that it could be overcome wholesale at any stage of Sheri LIPSCOMB, By and Through=N pregnancy by Guam's interest in potential Next Friend, Carolyn DeFER;P., life. tumn Scalf, & William Scalf, .-By . Through Their Next Friend Gloria The balancing of these vital individual on Behalf of Themselves and.All interests against the state's interest in po- Similarly Situated, Plaintiffs-.Ape tential life is not an exercise in mathemat- lants, ics. These forces present a constitutional V.f clash of the first order. Its outcome can- Dan SIMMONS, Individually and In*R not be predetermined by adopting in the Official Capacity as abstract various assembled character- Acting Director, Department of Human Resources of the izations of the interests at stake or formu- State of Oregon, & Jess Armas, IndivId. lae for'weighing them. A more fundamen- nally and in His Official Capacity ii tal process is at work. Roe worked Acting Assistant Director, Department through that process and came to a result of Human Resources of the State -of that has affected the lives and rights of Oregon and Acting Administrator, Chil. millions of people. It is not for this court dren's Services Division, Department of to discard'that.precedent.o Human Resources of the State of. Or.. gon, Defendants-Appellees. No. 87-4079. III- United States Court of Appeals, The judgment of the district court perma- Ninth Circuit. nently . -enjoining the enforcement of Argued En Bane and Submitted Guam's Public Law 20-134 is Nov. 15, 1990. AFFIRMED.n Decided April 27, 1992.

Children in foster care brought action challenging Oregon statutes under which state-funded foster care benefits were provided to all children placed by state with nonrelatives, but not provided for children placed with relatives. The United States District Court for the District of Oregon, Helen J. Frye, J., rendered judgment for state, and children appealed. .The Court of Appeals reversed, 884 F.2d 1242, and rehearing en bane was granted, 907 F.2d 114. On.rehearing, the Court of Appeals, Good- 10. We find it unnecessary to address the plain- ney, 437 U.S. 678, 692, 98 S.Ct. 2565,.2574, 57 tiffs' arguments that Guam's Act is void for I.Ed.2d 522 (1978). If the plaintiffs apply for vagueness and overbreadth. We also decline to fees In this court, we will transfer their applica- address the plaintiffs arguments based on the tion to the district court for a determination of Establishment Clause, the Equal Protection and the recoverable amount In those proceedings, Due Process Clauses, the Eighth and Thirteenth Guam will have the opportunity to contest the Amendments, and comparable provisions of the standing of the plaintiffs, who are not health Guam Bill of Rights, 48 U.S.C. § 1421b. care providers, to the extent that that issue has 11. The plaintiffs have requested attorneys' fees any effect on recoverable fees. in connection with this appeal. They will be Fees at the trial level were granted in a sepa- entitled to them if they ultimately prevail in this rate proceeding, separately appealable. proceeding. 42 U.S.C. § 1988; see Hutto v. FAn- 1190 963 FEDERAL REPORTER, 2d SERIES ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST. 1191 Cile.eNJ .3d 1190(9ir M. 1992 thought he was powerless to depart; he the Handicapped Act to compel pubfs Isthe light most favorable to nonmoving William Bentley Ball, Ball, Skelly, Mur- simply did not believe the situation merited school to provide state-paid sign language larty, whether genuine issues of material ren & Cornell, Harrisburg. Pa., Thomas J. iet exist a departure. When defense counsel first interpreter while student attended Catholi and whether district court cor- Berning, Ariz. Center for Law in the Public uorly applied the law. asked for a departure, the judge said, "I'm high school. The United States Distrid. Interest, Tucson, Ariz., for plaintiffa-appel- not inclined-in this case, I'm not inclined Court for the District of Arizona, Rlcharl L federal Courts C-776 lants. to go below 240 months which is-which is Court of Appeals barely above the minimum M. Bilby, J., ruled that providing sign lam' reviews questions of John C. Richardson. DeConcini, Me- guideline testitutional range.... The guideline is 235 to 293. I guage interpreter would violate establish law de nova. Domlld, Brammer Yetwin & Lacy, Tucson, mean, would you have me depart below ment clause. Parents appealed. Th L Conalitutional Law 4-84() Ari, for defendant-appellee. Court of that?" When defense counsel answered Appeals, Fletcher, Circuit Judge, Statute does not violate the establish- Appeal from the United States District yes because he believed there was entrap- held that- (1) establishment clause wood sent clause if statute has secular legisla. Court for the District of Arizona. ment, the judge stated that there was no be violated since primary effect of provid fire purpose, statute's principle or primary entrapment because the defendants were ing interpreter was to advance religion, sd effect is one that neither advances nor inhi- involved in an ongoing business. (2) denying assistance of interpreter did not ti religion, and statute does not foster Before: TANG, FLETCHER, and Additionally, the judge's remarks indi- infringe on free exercise clause. hxcessive government entanglement with REINHARDT, Circuit Judges. cated that he thought appellant deserved Affirmed. aligmon.U.S.C.A. Const.Amends. 1, 14. the sentence he got based on his criminal L Constltutlonal Law 4=84.6(4) OPINION history. "The facts are terrible for Tang, Circuit Judge, dissented and Schools 8 FLETCHER. you.... The gentleman has about eight filed opinion. Circuit Judge: prior convictions ... and I can't rewrite his Providing state-paid sign language in- biography." The transcript shows that the arpreter to profoundly deaf student while 7he Zobresta appeal the district courts judge considered counsel's pleas to reduce ilending Catholic high school would vio- ruling that provision of a state-paid sign the sentence because of entrapment or be- 1. Schools 4148(2). bte establishment clause, even though Fed- language interpreter to James Zobrest cause appellant's criminal history was over. States and school districts provide sal Education of the Handicapped Act had while be attends a sectarian high school stated. He simply chose to reject both. handicapped students services necessary Ib a secular purpose, since primary effect would violate the Establishment Clause. We therefore affirm the judge's decision meet special educational needs under Fed wouldbe to create impermissible "symbolic The Zobreata also argue that denial of such not to depart from the sentencing guide. eral Education of the Handicapped Act ahon"; interpreter would attend religion assistance violates the Free Exercise lines. Individuals with Disabilities Education Ad, daises and masses which school encour- Clause. The judgment of the district court is in I Gl3(aX4XA), as amended, 20 U.S.CA. aled student to attend. Individuals with We affirm. all respects AFFIRMED. I 1413(aX4)(A). Disabilities Education Act. I 613(aX4XB), t amended, 20 U.S.C.A. # 1413(a)(4)(B); 2. Schools 4-154(4) ilSC.A. ConstAmends. 1, 14. Federal Education of the Handicapped LConstitutionat Law 4=84(1) (1' James Zobrest is a student at Sal. Act does not require state to pay children's Imposition on individual's free exercise pointe Catholic High School. lie is pro. tuition when parents* voluntarily enrol Irights by government violates free exer- roundly deaf, qualifying him as a handi. Larry ZOBIIREST; Sandra Zobrest, hus- their handicapped children in private ise clause unless burden is justified by capped child under the Federal Education band and wife; James Zobreat, a minor, school. Individuals with Disabilities Ed&' emecompelling state interest U.S.C.A. of the Handicapped Act ("EHA"), 20 U.S.C. Ari.ltev.Sat. § - by Larry and Sandra Zobrest, hie par- cation Act, I 613(a)(4XII), as amended, 20 Amend. 1401(aX), and ents. Plaintiffs-Appellanta, 761(6; also 34 C.F.R. 300.. The U.S.C.A. I 1413(a)(4)(B). LConstitutionalL Contltuinna Law4=8414)EllALaw 84.5(4) lirovides federal funds to state said v. Schools 4-8 local governments for the purpose of edu- 3. Administrative Law and Procedure CATALINA FOOTHILLS SCHOOL Refusing 4:229 to provide profoundly deaf cating handicapped childien: Bonrd of DISTRICT, Defendant- student with state-paid sign language inter- Educ v. Rowle, 458 U.S. 176, 179. 102 Appellee. Schools 6-155.5(3) peter while student attended sectarian S.Ct. 3034, 3037, 73 L.Ed.2d (90 (1982). it No. 89-16035. Exhaustion of the Federal Educatien igh school did not violate free exercise order to obtain federal funds, a state must of the Handicapped Act's administrative clause since government had compelling in- offer alt handicapped children within United States Court of Appeals, its Ninth Circuit procedures is not required when exhaustios lerest in insuring that establishment clause jurisdiction a "free appropriate public edit is futile. as not violated and there were no "less cation." 20 U.S.C. 1 1412(l). Under the Argued and Submitted Dec. 12, 1990. iestrictive means" by which it could accom- program, states and school districts provide . Decided May 1, 1992. 4. Federal Courts 4=776 plishthat goal. Individuals with Disabili- handicapped students the services neces District court's grant of suinmid ties Education Act, I 613(aX4XB), as ary to meet their special educational Parents of profoundly deaf student judgment is reviewed de novo; Court of amended, 20 U.S.C.A. § 1413(aX4)B); needs. 20 U.S.C. § 14t3(a)(4)(A). Arizona brought suit under Federal Education of Appeals must determine, viewing evidence ConstfAmends. In 14. hasAS.C.A. enacted a statutory scheme desiged to 1192 963 FEDERAL REP OR T E R, 2 d DETERS ERIEE R I E3d S ZOBREST v CATALINAC s FOOTHILLS1 0 t . l SCHOOLs,1 DIST. 19 9 meet the educational needs of its handi- Sandra and Larry Zobrest, James's par- of a sign language interpreter would in COnIwLl u.Connec t, 310 S 19, capped students and to qualify it for feder- ents, feel compelled by their religious con- fact offend the first amendment. The 303, 60 SC 900o 903,c c d3 al assistance under the EHA. Ariz.Rev. victions to enroll James in a Catholic high -mart noted that- 84 LEd. 1213 1940 Stat. i 15-761 to 15-772. school.T (3 or. t 12) Both EHA and state funds (31 Prior to their son's enrollment The interpreter would act as a conduit A. The Lemon v. Kurtman Test are at -for the religious inculcation of James- 161 available to provide Salpointe, the Zobrests requested To "guide" the Establishmient sign language inter- that the thereby promoting James's religious de- Clause inquiry, the Supreme Court has School District supply James with a preters. See 34 C.F.R. 9 300.13. The par- certi velopment at government expense. That fashioned a three-part test. . hfcllerAl- fied sign language interpreter ties do not dispute that James needs the for his kind of entanglement of church and let, 463 U.S. 388, 394. 103 S.Ct. 3062, 3066, assistance of a classes at Salpointe, beginning in sign language interpreter in August State is not allowed. n L.Ed.2d 721 (1983). In general terms, a 1988. The School District petitioned the classroom. The parties have also the lhrest . Catalina Foothills School Dis. statute will be upheld if: the statute has a agreed that, if James attended either a Pima County Attorney for. an opinion as Wric, No. CIV-88-616 (DAa. Oct. D, secular legislative Purpose"; the statute's public or a non-religious private school in the constitutionality of providing such a 11S9)(order granting summar. Oct)I, n sevie Th euyCut tonysb legiary efoect he tat Arizona, the Catalina Foothills service. The Deputy County Attorney sh-,, whetcortlior i o gsrmry judgment). 'principal or Primary School his- ula01the qmpestionof nt n nithetr advances or inhtibitseffect religin,,. Iis) one that trict ("School acquently advised that furnishing and, District") would assume full an inter ethe the espoyn of aqsin of nithertaut es ot "nibt essive financial responsibility for the employment preter would offend both state and federal Puage interpreter would constitutional also violate the govern ent entanglement with religion." of a sign language interpreter for James.$ prohibitions against a state Arizonasoesvioaepea Constitution. The I (citne entanglemn ith ii."q establishment of religion. Salpointe High is a private Roman Catho- See U.S. CoDB*J order.0g 8 602, amends. 1, XIV; Aris. Const. 613, 91 SC. 2105, 2111, 29 L.E.2d lic school, operated by the Carmelite Order art. 2 I It o74 (1971)). .25 1 In June 1988, the Arizona of the Catholic Church. Salpointe is a per- Attorney Gene STANDARD O REVIEW al concurred in the Deputy County vasively religious institution; religious Attor: i f. Secular ney's opinion. i Legislative Purpose themes permeate the classroom. Accord- Iflummarye judgment t court's grant The Supreme Court has noted it "relu. de novo. Kruso vt. lance to attribute unconstitti~onal ing to the parties' stipulation of facts, In August 1988, the Zobrests initiated s tlnatr onal Tel.d el. Corp., 872 F.2d to a statute's motives", civil drafters, "particularly when "Itihe two functions of secular education action under the EHA, 20 U.SC. IlS. 1421 (9th Cir.1989), cert. denied I 1415(e), seeking an injunction requiring: and advancement of religious values or be- 01--- 110 S.Ct ), cer d d 6 a Plausible secular purpose for the nro- the School District to provide James with 0).We must d 110e217, L 664tEd.2 gram] may be discerned liefs are inextricably intertwined through- theScholrovde istictto ame VA Of Wemus from tth fae of an interpreter. Pending the outcome deermneviewing te the statute." Mmicltcr out the operations of Salpointe." Salpointe of: alence in the light most favorable to the 394-95, 103 S.CL at 3067.it Allent, The statutes463 U.S. atat "encourages its faculty to assist students this litigation, the Zobrests have employd Usmoving party, whete genuine tosue issue 103 Sice as pursen an interpreter in experiencing how the presence of God is for their son at their Os dinaterial fact exist an e e e issue here evince a secula se manifest expense. On August in nature, human history, in the IS, 1988, the distrk court correctly applied the law. enacting the EHA, Congresse struggles for economic and political justice, court denied the Zobreats' request for A S. clea eacting poheE made and other secular areas of the curriculum." preliminary injunction. The court fod A Stale. 3 Farm re and Casualty secular purpose: that the Zobrests hadl not fourtoo 873F.2d 1338, 1339-40 (9th Cir.I18). Religion is a required subject for students ta orsshdntdemonatratalh 5 It is the purpose of this Chapter to as- enrolled at Salpointe, likelihood of success on sure that all handicalpped children have and the students are the merits, becses , Il Whether the provision of a state- available the provision of an interpreter to them ... a free appropriate strongly encouraged to attend the Mass would lilhe1 haned sign language interpreter to a stu- public education which emphasizes spte. celebrated there each morning. As a re- offend the first amendment's establishinst .ot enrolled in a private sectarian school cial clause. education and related services de- sult, a sign language interpreter would be 4"aes the establishment clause is a ques- signed to meet their unique called upon to translate religious precepts Oh Ofeconstitutional law that needs to we review de assure that the rights of handicapped and beliefs during the course of James's ed the School District's motion for s . SeeCarreras v. City of Anaheim, children and their parents education. mary judgment, holding that the furnish -iF2d 1039, 1042 n. 2 (9th Cir.1985). We are protected Io or guardians asas Mates mesa review de novo the constitutionali. ,. and Locali 1. The bulk of EllA benefits are targeted for school, the School District wul to ties to Provide for the education of tll public 401 the school district's students enrolled in public schouls or placed in obliged to provide a sign languagelnt decision to with. handicapped children, and to assess ail rivale schools by seale or local oficials. Swe for him. 11 aid from the Zohresta. Id. u S. I 1413(a)(4)(li). When parents vln- asstre te effectiveness of efforts to etd tarily ceirutf their handicapped ucate handicapped children. children in pri. 2. The pries vale school.the state need agreedthat, In light of the 0 not pay ahose chil- County DISCUSSION 20 U.S.C. § 1400(c). drens tuition. 34 c.l.a. 300.403(a).u The Anorney's and Attorney Genera't sions, cshaistion of The Arizona state and local school district. however. still the IlA's admiah"V, She Establishment Clause counterpart to the EllA re- must provide review procedure, 34 C.F.R. IS 300.5t is e veals -spccial education and related ser- a similar goal of Providing the vices"to the private school children. 34 C.F.R. 510. would befutile. Exhaustion of [heEMi1 III firat amendment provides: "Con- stales I 300.42(a). For purposes of this litigation. administrative procedures Is not required s shall make no handicapped ctildren with the assistatnce law respecting an es- they might the parties do not dispute that sign language It is futile. Ioni v.Doe, 484 US. 303, 111.0, need to enjoy full anld equal interpretation is one of the "special education S.Ct. S92, 606, 98 LF.d.2d 686 (1988); a Arment of religion, or prohibiting the educational opportunities. and related services" to which Jamesis entitled. Wion . Maran hniied School Dis., 514 he exercise thereof.. U.S. Const. The parties agree that, if Jamess parents en- 1178. I1t (9th Cir.1984). 0"d. I. This prohibition extends to the Thus, the ElHA antd the corresponding rolled him in a non-seclarian private school or Arizona statutes 'ila lhrough the fourteenth amendment. pass the first iart of the Leption test. However, we find teir pro- 963 FEDERAL REPORTER, 2d SERIES ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST. 1195 1194 Che as 94 Fd itS" 1th Or. 1992) posed application cannot survive the second lic." Id, 413 U.S. at 392, 105 S.CL at 3221 sor" of the school's activities. provision to sectarian school s of aid where part of that test.' (quoting Felton v. Secretary, United Two lines of cases the Zobresta cite in the "purely secular content of the goods States Dcpt of Ed., 139 F.2d 48, 67-48 support of their appeal are distinguishable and services provided" was "easily ascer- C. Statutes' Primsary Effect (1984)). The Supreme Court concluded that from the case at hand. First, this case (nable." Goodall, 930 F.2d at 371 (em- "It is, of co (71 In Grand Rapids School District e. "the symbolic union of government and does not involve "the sort of attenuated phasis original). urse. true that Ball, 473 U.S. 373. 105 S.CL 3216, 87 religion in one sectarian enterprise ... a financial benefit, ultimately controlled by as part of general legialion made avail- State L.Ed.2d 261 (1985), the Supreme Court held an impermissible effect under the Estab- the private choices of individual parents, able to all students, a may include that programs under which public school lishment Clause." Grand Rapids, 473 US. that eventually flows to parochial schools church-related schoola in programs provid- available ... bene- Ing bus transportation, schoo I lunches, and employees provided classes in private at 892, 105 S.Ct. at 3227; see also Goodall from (a] neutrally schools violated the Establishment Clause, fit...." Aluellerv. Allen, 463 U.S. at 400, public health lacilities-sec ular and noni- by Goodall . Stafford County Sch. BA, unrelate where all but one of the private schools 103 S.CL at 3070. In blueller v. Allen, the deological services d to the pri- 930 F.2d 363.; 370-72 (4th Cir.) (provision of tional (saction nature. The Supreme Court upheld a Minnesota pro- mary, religion-oriented edues involved were sectarian in sign language interpreter to sectariant school." l Court frund that the programs "may im- gram under which all parents were entitled of Lhsaectarian ck snl'itten- school student under EllA and Virginia the cost of their chil- g 421 US. 349, 364, 95 S.Ct. 1753, 1763, advance religion in three to tax deduction for permissibly implementing regulations would violate Es- 44LEd2d 217 (95) see also Lemson . ways." Grand Rapids. 478 U.S. at 386, dren's "tuition, textbooks and transpora tablishment Clause). cert densied, - U.S. tion." The Court noted that, "by channel- Kurtrman, 403 U.S. at 61r. 91 S.CL. at 105 S.Ct. at 8223. One of the impermiss- ,112 S.CL. 188, 116 LEd.2d 149 (1991l. ble effects the Court cited was that "the ing whatever assistance it may provide to 2113 ("Our decisions . Itave permitted States to provide church-s elated schools programs may provide a crucial symbolic Were we to sanction the aid the 7obrests parochial schools through individual par. the Establish- with secular, neutral, or noni deological ser- link between government and religion, seek, a public employee would he at James ents, Minnesota has reduced the objections to which its action vices, facilities or materials.' "). In approv- thereby enlisting-at least in the eyes of Zobreat's side in each of his classes at a ment Clause is subjecL" Id., 463 U.S. at 399, 103 S.CL Ing such aid to sectarian sehools, the Su- impressionable youngsters-the powers of sectarian school. With James, the employ- in lVitters s. Wasal. preme Court has been carefu I to emphasize government to the support of the religious ee would attend religion classes, the no st 3069. Similarly, Dept of Serus. for the Blind, 474 U.S. 481, the secular nature of this sid. For exam- denomination operating the school." Id. as the inally "secular" subjects, in which the pie, in Board of Educ. v. Alien, 392 US: The Court noted, "Government promotes 106S.CL 748, 88 LEd.2d 846 (1986). parties stipulate. Salpointe faculty are eo- of special edu. 236 88 S.CL 1923, 20 LEd.2d 1060 (1968), religion as effectively when it fosters a Court held that the award couraged to "assist students in experiene' a visually handicapped the Court upheld the provis ion of secular close identification of its powers and re- cation assistance to ing how the presence of God is manifest," to use that assistance subject textbooks to all seb ools, including sponsibilities with those of any-or all- student who sought and the masses at which Salpointe encour. sectarian schools, in New Yor'k. The Court religious denominations as when it atat a sectarian college did not violate the ages attendance. The interpreter would be the Court observed, "Although the booits loaned are tempts to inculcate specific religious doc- Establishment Clause. Again, the instrumentality conveying the religious individual's decision those required by the pared hial school for trines." ld., 473 U.S. at 389, 105 S.CL at emphasized the private message and experience. This presence In directing state provided aid: "In this use in specific courses, eac h book loaned 3225. The Court cited a lower court opin- of an employee paid by the goes to individuals must he approved by the public school ass- ion, which stated that, "Under the City's and function case,the fact that aid sectarian classes would ce to support religious thorities; only secular book s may receive plan public school teachers are, so far as government in means that the decision ate the "symbolic union" Grand Rapids eduestion is made by the individual, not by Approval." Allen, 392 U.S. at 244, 88 S.CL appearance is concerned, a regular adjuncl By placing its em State." Witters, 474 US. at 488, IoG At 1927. In Wolnan vs. 4atier, 433 U.S. of the religious school.... The religious found impermissible. the - ployee in the sectarian school to perform S.CL at 762. 229. N S.CL 2593, 63 LEd. 2d 714 (1977), school appears to the public as a joint en shldofsiding for the this function, the government would create Were we to grant the Zobrests the relief prvan toset terprise staffed with some teachers paid by st Is of secular the appearance that it was a "joint spo- public aid would not be chan- posto stariae its religious sponsor and others by the pub they request, s and scoring facially valid, Isdlirected the dslasi neled to the sectarian school through the services, speech and hearing 3. The Supreme Cousrthas generally considerci I statute sobe diagnostic ser- court to acemsider on remoasdWhethser Partis decision of an individual. Shevalidity snfa challenged 332tuie "on Its faice. Instead, the vices and off-site therapeutic and remedial grants have had the primary effeckd0 Bowen s Kendrick, 457 U.S. 519. 600. sol S.C1. lar ALFA government would be required to place its services. In discussing each of these cate- 356z. 2569, lot LEd.d 520 (1985). lloweve, , advancing religion." h 487 US. at 6 1 l05Ss. as2580. in thiscas. wecontsidrA own employee in the sectarian school. On genes, the Court emphasize d the secular for distinguishing h4 "Iher is .. 0 precedent specific proposed asplt the facts before us, these cases are unavail- nature of the aid provided an tween the validity of a statute on its face and its the validity of one very d the capacity at issue. Considerationda ing.for validity in particular applications." id.. 487 U.,S. cation of the statutes its complete separation osn any entan- It the statutes"as applite seemsparticularly IP at 602. l08 SC. at 2570. Foe excleisc in Hu' becausetheir descriptions of the sil Nor can the Zobrests rely on cases in glement; for example, with egard to stan- v. MfcNaimr,413 U.S. 714. 93 S. 286A. I1 proprlate, which the Supreme Court has upheld the dardized tests, eue Court not ,n to be provided are extremely broad. Set 20 ed: "The non- L.lid.2d 913 (1973), the Supreme Court ruled e a U.S.C.S 1413(a)(4)(A) (requiring statesto essul the validity of South Carolina's aid under ensure "by pra 4. One might attempt to distinguish Grand Rap- "children of lender years," 473 U.S. as 390. l5 act to an individual college. rat h- lish policies and procedures to revenue bond special education sad ids on the grounds that all but one of the S.CI. at 3226, It did not limit its holding Sn on the constitutionality of the act asa viding for such children er than disabiliia courses at issue in that case were taught in elementary schools. Further. the Zobrests "feel whole. The court stated: "lo identify 'primary related services' that children with in aid programs); Ari.RevSS elementary school. while the Zobrests seek aid isparticularly essential that. as cite ime of ade BoeS, we narrow our focus from histatute as participate re S H-764 (requiring educational authorities Is for their son while he attends a Catholic high lescence. James be enrolled in a religions a whole soShe only transaction presently bela In "provide specialeducation and relatcd services school. However, while the Supreme Court in school.' They thus implicitli - kr ledge the us.' flums. 403 U.S. at 742.93 S.Ct. at 2874. cd for .11 handicapped cildrens'). Grand Rapids expressed special concern for vulnerability of young pco. J1 . nes' age. Bowens.while ihe court found the challeng 1196 963 FEDERAL REPORTER, 2d SERIES ZOBREST v. CATALINA FOOTHlILLS SCHOOL DIST. 1197 Cheoast Fad 190(9ihCar. 1992) ensuring public school does not control the content 181 The government places a burden on that the Establishment Clause is gion. I would therefore reverse the judg- of the test or its result. This serves to an individual's free exercise rights when it not violated. Goodall, 930 F.2d at 370; see ment of the district court. prevent the use of the test as a part of forces the individual to choose betwees also Doe V.Village of Crestwood, Ill., 917 F.2d 1476 (7th Cir.1990) (affirming grant of religious teaching...." Wolman, 433 U.S. adhering to her religion, thus forgoing DISCUSSION at 240, 97 S.Ct. at 2601. However, in Wol- state provided benrefits, and abandoning a injunction against mass during public festi- man the Court did not permit funding for religious precept in order to receive those val held in public park; government cannot I. The Establishment Clause convey the message the purchase of instructional materials for benefits. Sherbert i. Verner, 3174U.S. that it in endorsing State action impacting religion will sur- religion). It is difficult fo imagine a more loan to parents or for field trip services; 398, 404, 83 S.CL 1790, 1794, 10 LEd.2d vive an Establishment Clause challenge if with regard to the latter category, the 965 (19631).The imposition of such a bur. eompelling interest than avoiding a viola- the action (1) has a secular tion of the Constitution. legislative pur- Court stated, "The field trips are an inte- den violates the Free Exercise Clause un Likewise, here, pose; (2) has a principal or primary effect there is no "less restrictive gral part of the educational experience, and less it is justified by some compelling state means" by that neither advances nor inhibits religion; which the state may accomplish where the teacher works within and for a interest. Id., 374 U.S. at 406, R3 S.Ct. at that goal. and (3) does not excesdively entangle sectarian institution, an unacceptable risk 1795. Thus, in Sherbert v. Verner, the Thus, the refusal to provide James Zo- government with religion. leron r. of fostering of religion is an inevitable by- Supreme Court held that South Carolinsa brest with a state paid sign language inter- Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. product" Id., 433 U.S. at 254, 97 S.CL at could not deny unemployment compeass. preter while he attends a sectarian high 2105, 2110-11 (1971). 2608. tion (o a member of the Seventh Day Ad- school does not violate the Free Exercise ventist church clause., Here, as the parties stipulate, the inter- because she refused to as A. Secular Legislative Purpose preter would be required to act in a school cept any job which required her to work o The judgment of the district court is Saturday, her faith's Sabbath. 374 I agree with the majority's conclusion enviroiment in which "the two functions of it, AFFIRMED. that the federal Education of the Handi- secular U.S. at 404, 83 S.CL at 1794. South Car education and advancement of reli- capped Act ("EHA"), 20 U.S.C. gious values or beliefs are inextricably in- olina sought to justify its restriction ea TANG, Circuit Judge, Dissenting: benefits as a means of conbatting I 1401(a)(1), and its Arizona counterpart, tertwined." Unlike the aid approved in fraud; "Justice," Judge Learned Hand once ob- however, the Supreme Court rejected Ariz.Rev.Stat J 15-761(G), pass the first Allen and Wolman, then, the assistance this served, "is the tolerable accommodation of that there was no e4 leg of the Lemon test because they have the state would provide in this case cannot argument, noting the conflicting interests of society." Few secular dence of fraud, nor had the state demon- legislative purposes. That the aid be said to be of a clearly secular and sepa- cases more aptly demonstrate the truth of strated that it could not accomplish its goal provided under the program would on this rable nature.' Judge Hand's words than the appeal before occasion benefit religion or religious exer- by some less restrictive means. Thus, if applied as the Zobresta Id., 314 as now. For the efforts of the Zobreat cise propose, U.S. at 407. 83 S.Ct. at 1705-96. does not preclude a finding of secular the statutes at issue fail to survive the family to educate their deaf son in a man- purpose. In Wittcrs v.aWashington Dept second part of the Lemon test. We there- 191 Here. denial of aid to the Zobresta ner compelled by their religious faith re- of Servs. for the Blind, 474 U.S. 481. 485- fore find that state provision of the aid the does impose a burden on their free exercise quire us to engineer a delicate constitution- 86, 106 S.Ct. 748, 750-51, 88 L.Ed.2d 846 albalance between Zobrests seek would violate the Establish- rights. They will have either to forgo a the competing goals of (1986), the Supreme Court held that edu- ment Clause. sectarian education for James in order to freedom of religion, separation of church cational assistance provided by the state to and receive the assistance of a sign language state, and equal educational opportuni- visually handicapped students served a val- ties for the handicapped. I. Free Exercise Clause interpreter for him at school, or they will The Zobrests id secular purpose, despite its application in have presented us with a ponderous consti- that particular We turn now to the second issue the have to pay the cost of the interpreter's instance to a religious insti- tuitional conundrum, made worse tution. Washington's effort Zobreata raise: does denial of the assist- services themselves, while keeping him at by the "to promote opacity of First Amendment jurisprudence. the well-being ance of a sign language interpreter uncon- Salpointe. of the visually handicapped Given the competing values at stake, I can- through the provision of vocational rehabil- stitutionally infringe on their rights under However, a compelling state interest not fault the majority's resolution of this itation services" constituted a legitimate the Free Exercise Clause? We find that it justifies the imposition of this burden. The csse. I can state only that I disagree. I governmental interest and goal. Id. The does not. government has a compelling interest Is believe that the state's provision of a sign fact that some small portion of the state's 3. I could be argued that we might uphold the under these conditions. ihe government wouls language interpreter to James Zobrest for funds ultimately flowed to a religious insti- statutes insofar as they permit JamesZobress to be required to monitor closely the interpreta's his studies in a Catholic high school would tution did not undercut the laudatory sec- receive the services of a state-paid Interpreter activities to ensure that assisiance was not pre not transgress the First Amendment's ular purpose during 'secular" subjects, prohibiting only the vided at prohibited times. Moreover, ss l- proof the law. Id. at 486, 106 presence of the interpreter during religion glous instruction at Salpoinle is not limiled ie hibition against the establishment of reli- S.CL at 751. classesand mass. While we do not find it classes. but pervades the entire currk- specific 6. The Zobrests also argue that denying otherwise necessary to discuss the third part of ulum. this monitoring would be the kind df James seek. Nor can the Zobrests show that the staes Zobrest the assistance of a sign languageinter- treatment of James the Lemon test, we do note that such a solution *comprehensive, discriminating and contisuing Zobrest is subject to stiici Equal Protection scrutiny would place this case within the "Catch 22" in state surveillance." Lemon, 403 US. at 619 91 preter would violate the because he is a member of a protected Clause. As our analysis above makes clear, class. The which "the very supervision of the aid to assure S.Ci. at 2114. the Establishment In slate's refusal to send a stai-paid Clausecon thiscontet the Free Exercise clause does not that it does not further religion renders the demns. See Mee&r. ittenger, 421 US. at 369- interpreter Into a religious school is rationally right for the Zobests: related to Its goal statutc invalid." Bouren . Kendrick. 487 US. 72. 95 S.CI. at 1765-67 (discussing enanglemee providea fundamental of avoiding a violation of the to slate suppori for First 59. 615. I0 S.C1.2562. 257. 101 I d.2d 520 problems created by need so ensure that "Icach- they have no entillement Amendmteot. Thus. the Zobresis Equal James'religious education In the Protection argument must (1988). Were we to uphold aid to the Zobrcsts ersplay a strictly nonlieological role"). form they fail. 1198 963 FEDERAL REP ORTER, Id SERIES ZODREST v. CATALINA FOOTHILLS SCHOOL DIST. 1199 Cheas % P.2d 1190(9h Cir. 1902) Similarly, in Mueller v. Alen, 463 U.S. is unconstitutional because it would have secular textbooks does not have as its nec- nonpublic schools "are identifiably reli. 388, 103 S.CL 3062, 77 L.Ed.Zd 721 (1983), the primary effect of advancing religion. essary effect the advancement of religion gious schools"); Meek, 421 U.S. at 364, 95 the Supreme Court held that a state's deci- The majority raises the specter of a sym- because the overall benefits of the program S.CL. at 1762-63 (more than 75 percent of alon to defray by means of a tax deduction bolic union of church and state, and dis- extend to all school children; the Court Pennsylvania's nonpublic schools "are educational expenses incurred by parents misses as inapplicable cases in which sim- does not analyze the particular effect of church-related or religiously affiliated edia- "evidences a purpose that is both secular ilar general educational welfare programs the textbook grant on religious students cational institutions"); sec also Public and understandable." Id. at 395, 103 S.CL have passed constitutional muster. alone); Everson v. Board of Educ., 330 Funds for Public Schools r Marburger. U.S. 1, 17-18, 67 S.CL at 3067. The Court reasoned that: I strongly disagree with the majority's 504, 512-13, 91 LEd. 358 F.Supp. 29 (D.N.J.1973) (three-judge 711 (1947) (same-with An educated populace is essential to the interpretation of the relevant precedents respect to transpor- court), affd memt., 417 U.S. 961, 94 S.Ct. tation to school). political and economic health of any com- and fear that they have exalted form over Indeed, the use of the 3163, 41 LEd.2d 1134 (1974). In other word "primary" in the munity, and a State's efforts to assist substance at the expense of handicapped test connotes a sur- words. the Supreme Court considers the vey of the legislation's total parents in meeting the rising cost of children. operation. identification of legislation's primary hene- rather than its particular application in the ficiary to be a critical educational expenses plainly serves this In arguing that the provision of an inter- consideration insde- pending case. termining whether a statute's secular purpose of ensuring that the preter would have the primary effect of primary ef- I recognize, as does the majority, that fect is to benefit religion. State's citizenry is well-educated. advancing religion, the majority erroneous- See Texas the Supreme Court has not always been Monthly, Inc. w Bullock, Id.; see also Hunt v. McNair, 413 U.S.7134, ly focuses on the specific use to which the 489 U.S. 1, 10- consistent in applying the primary effecte It. 109 S.Ct 890, 897-98, 741, 93 S.CL 2868. 2873, 37 LEd.2d 923 aid will be put in this case. The proper 103 L.El.2d 1 leat. In Hunt, 413 U.S. at 742, 93 S.CL at (1989) (plurality) (general (1973) (the issuance of revenue bonds to query is whether the program as a whole programs of gov- 2874, the Supreme Court considered the ernmental assistance promoting legitimate assist all colleges in constructing and fi- has the proscribed primary effect of ad particular application of a governmental secular goals do not have the primary ef- nancing projects has a valid secular pur- vancing religion. In Witters, a blind stu- program, rather than its general operation, fect of advancing religion even if they re- pose because the legislature intended to dent sought to apply Washington's voca. inassessing primary effect. See also Doro- lieve religious groups of costs provide its youth "'the fullest opportunity tional rehabilitation assistance to his reli' they would en v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. otherwise incur to learn and to develop their intellectual gious studies at a private Christian college. programs targeted exclu- 2562, 2570-71, 101 L.Ed.2d 520(1988). Giv- sively to religious and mental capacities' ") (quoting S.C.Code The Supreme Court held that the primary entities, however, are enhow closely analogous the Witters case probably unconstitutional). Ann. J.22.41 (Supp.1971)). effect prong of the Lemon test did not is to the one at hand-both involve the Because government has a valid secular forbid the aid. In so holding, the Supreme monastitutionality of general educational General welfare programs neutrally interest in cultivating the talents and skills Court analyzed the entirety of Washing- benefits programs for the handicapped available to all children, in both public and of handicapped children and in removing ton's educational assistance for the handi- when applied to religious schools-the pri- private schools, do not suffer the same harriers to the achievement of their full capped program. Wilters, 474 U.S. at 481- mary effects test Villers prescribes should ronstitutional disability becanuse Iheir her- academic potentii, I agree that neither the 88. 100 S.Ct at 761-62; see also id. at 492, govern this case. But even assuming that fits diffuse over the entire popsulation. Ite- lf1A nor its companion Arizona law has as 106 S.CL at 764 (Powell, J., concurring) the narrow primary effect test imposed hy ligious institutions are incidental, not pri- its purpose the endorsement or promotion (analysing whether program aids religion the majority were correct, I would still hold mary, beneficiaries of such statutory of religion. only in context of particular case before that the provision of a sign language inter- schemes. In Witters, the Supreme Court the court "conflicts both with common preter to James Zobrest does not have the emphasized that Washington's program B. Primary Effect sense and precedent"). primary effect of advancing religion. In provided educational assistance to all hand- State actions run afoul of the second Similarly, in Mueller, the Supreme Court holding otherwise, the majority and district icapped students in the state "'without re- branch of the Lemon test if they "result( I focused not on whether the tax exemption court misread and misapply the Supreme gard to the sectarian-nonsectarian, or public-nonpublic in the direct and substantial advancement at issue actually permitted the particular Court's opinions in School Dist of Grand nature of the institution of religious activity." Meek . Pittenger, parents to send their children to religious Rapids v. Ball, 473 U.S. 373, 105 S.CL benefited,'" Id. at 488, 106 S.Ct. at 752 421 U.S. 349, 360,95 S.Ct. 1753, 1764, 44 schools. Rather, the Court looked to the 3218, 87 LEd.2d 267 (1985) and Meek v. (quoting Nyquist, 413 U.S. at 782-83 n. 38. LEd.2d 217 (1975). On the other hand, the broad class of beneficiaries of the exemp- Pittenger, 421 U.S. 349, 95 S.CL 1763. 93 S.Ct. at 2970 n. 38). The broad reach of Establishment Clause will tolerate mea- tion, which included all parents of school- Those cases differ in four significant ways Washington's vocational assistance pro- sures that only indirectly impact upon reli- age children, whether enrolled in public or from the one at hand. gram guaranteed that no "significant portion gion. Committee for Pub. Edur. & Reli- nonpublic schools, and concluded that First, the legislation at issue in Grand of the aid expended tinder the Wash- ington program as a gious Liberty v. Nyquist, 413 U.S. 766, " ft]he provision of benefits to so broad a Rapids and Meek was not the type of gen- whole will end up 771, 93 S.Ct. 2955, 2965, 37 LEd.2d 948 spectrum ... is an important index of see eral welfare legislation involved here. flowing to religious education." lWitters, (1973) ("[NIot every law that confers an ular effect.'" 463 U.S. at 397, 103 S.CL st Grand Rapids and Meek involve aid pro- 474 U.S. at 488, 106 S.Ct. at 762. 'indirect,' 'remote,' or 'incidental' benefit 3068 (quoting Widmar v. Vincent, 454 U.S grams targeted solely to private schools- Likewise, the EHlA is a general welfare upon religious institutions is, for that rea- 263, 274, 102 S.Ct. 269, 271, 70 b.Ed.2d 440 the vast majority of which, the Supreme program providing benefits such as sign son alone, constitutionally invalid."). (198 1)); see also Board of Educ. v. Allen, Court emphasized, are sectarian. Grand language interpretation to all handicapped The majority holds that the provision of a 392 U.S. 236, 243-44, 88 S.Ct. 1923, 1926- Rapids, 473 U.S. at 384, 105 S.CL at 3222 children, whether they are enrolled in pub- (forty sign language interpreter to James Zobres t 27, 20 L.Ed.2d 1060 (1968) (the provision of out of forty-one of Grand Rtapids's lic or private school. Furthermore, the ex- ZOllREST v. CATALINA FOOTHILLS SCHOOL DIST. 1201 1200 963 FEDERAL REP(ORTER, 2d SERIES Cli. " 9631F.d I190 (9d t r. 1992 ly independent and private choices of aid (1990) (public high school ap faccilities may be pansive scope of the EHA and its Arizona Grand Rapids, state-financed teachers recipients" to attend a religious educational used for meetings of religiou offering classes s clubs in part counterpart ensures that the bulk of the peared in private schools institution. 474 U.S. at 487, 106 S.CL at because "scndary school thus relieving students are aid provided will be used in nonsectarian to private school students, 751.The Supreme Court noted that Wash- mature enough and are uk responsibility ely to under- schools. Handicapped children across the religious institutions of the ington's vocational assistance program stand teaching see- that a school does n ot endorse or country enrolled in public and private (financial and otherwise) of made funds available generally. Id. The support speech that it merely S.CL permits on a schools, not religious institutions, are the ular subjects. 473 U.S. at 395-97, 105 pupil-not the state-determined whether nondiscriminatory basis"). the school received in- "primary beneficiaries" of the EHA's and at 3229. In Meek, a religious institution would receive any of The majority places equipment direct- undue emphasis on Arizona law's benefits. structional materials and the available funds. There, as here, the the fact that the interpreter ly from the state, disburdening the school a state-paid the constitutionali- state created no incentives for students to employee, will perform.hcr Indeed, in evaluating of an otherwise necessary cost of perform- services in a aid given only to private select sectarian schools and played no role sectarian classroom. The ty of educational ing its educational function. 421 U.S. at First Amend- schools, the Supreme Court has been at in the decisionmaking process that ulti- ment, however, does not aban 8654, 95 S.CL at 1763-64. mately determined where the funds would te placement of state-paid lutely prohibit pains to distinguish cases like the one at in The provision of a sign language inter- bespent Id. at 488, 106 S.CL at 751-52. religious schools. See Woll personnel hand, where the state provides assistance main,433 U.S. preter, on the other hand, would not result broadly to all schools, all school children, or Under the EHA and Arizona law, neither at 241-44, 97 S.ct. at 2602- 03 (state may In Meek, the Court specifically in state funds directly or even indirectly the state nor religious bodies can dictate provide health diagnostic ted all parents. School hnicialns to pn- stated: flowing to Salpointe. The public whether, or how much, aid will benefit sec- rocial schools). Nor do employs es the 'irt The appellants do not challenge and we District, not the private school, tarian institutions. According to the rele' Amendment strictly foreclose The provision of tire provisionl not question, the authority of the and pays the interpreter. vant statutory provisions, the sign lan- of classroom services by te do would not rollers state. Allent to make free auxiliary services an Interpreter, moreover, guage interpreter is an employee of the upheld the provision of text [state] or books to paro- to all students in the [state] Salpointe of any preexisting financial local school district. The sectarian school chial school children despite available Nothing in the the risk that those who attend church-relat- educational obligation. never receives or even sees the funds used the books' themes would prov including that, without ide the fodder Contrary to the argument record or argument suggests to hire the interpreter. The only persons for religious lessons. 392 U ed schools. the directly .S. at 243-44. in a separate opinion filed to- state aid, Salpointe Itself will undertake benefiting from the aid are the 88 S.Ct at 1926-27. Witte advanced for parents, rs went even therefore, this ease presents no burden of employing an interpreter who are relieved of the financial further and authorized the day, James's parents obligation use of stale the Constitution per. James. To the contrary, of paying for a sign language funds to pay a student's tui question whether Interpreter tion at a reli. to give special assist. have independently hired an interpreter out of their own pockets, and of ious institution, thereby c mits the States course the deaf student Any indirect ben- ontributing to children whose pending the outcome of this litigation. ance to some of its efit enjoyed by Salpointe would be attribut- the salaries of sectarian ins tructors. deriving the Third, in Grand Rapids and Meek, the handicaps prevent their True, the money in I'itters went first to virtue of its legislation, affirms- able solely to the Zobresta' independent bene/it normally anticipated from the state, by neutrally available state the student and then to the school. whereas directed educational assistance to re decision to apply education required to become a produc- tively Otidto their son's education in a sectarian in this case the money goesI fron the state and, at the same ligious institutions. By contrast, to the tive member ofsociety schrool, and not to any "State action spon- directly to the interpreter . But First Salpointe benefits at all from the time, to deny those benefits to other extent soring or subsidizing religion." Id. at 488- Amendment rights should not depend on program, it does so only as a conse- children only because they attend a Lu- EHA 89, 106 S.CL at 751-s2 (emphasis in origi how circuitoust a money tra il tire govern- theran, Catholic, or other church-spon- quence of independent decisionmaking by as). ment constructs. Rather, el It is because the Zobresta' e constitution- sored school. the Zobrests. ality of extending generally-available bene- to enroll James in a Catholic high Fourth, unlike Grand Rapids, 473 U.S. Id. at 368 a. 17, 95 S.Ct. at 1764 n. 17 chose fits to parochial students should be deter- not because of any legislative at 385, 105 S.CL at 3223, no symbolic union (quotation emitted) (emphasis added); see school, and mined by reference to the substantive na- EHA benefits will be employed of church and state inheres in the simple also Wolman v. Walter, 433 U.S. 229, 248 decree, that ture and quality of the aid provided. "The historic act of paying the salary of a sign language Func- & n. 11, 97 S.Ct. 2593, 2603 & n. 11,53 in a sectarian environment tional analysis, not formalistic line-draw- of the [Establishmenti Clause interpreter. The role played by the inter- L.Ed.2d 714 (1977); Nyquist, 413 U.S. at purposes ing, must be undertaken. A careful study not encompass the sort of attenu- preter is narrow, isolated, and unique. Pri- 782-83 n. 38, 93 S.CL at 2970 n. 38. Be. simply do of the nature of the sign language inter- benefit, ultimately con- vate teachers ani students, not the inter- cause the benefits provided by the EHA ated financial preter's task belies the majority's concerns srolled by the private choices of individu- preter, will be the source of religious doc- and Arizona law do not benefit religiout trine. The state, for its about a symbolic union of church and state. al parents, that eventually flows to paro- part, is simply institutions primarily or even significantly facilitating the education chial schools from the neutrally available of handicapped A sign language interpreter performs a those cases holding unconstitutional vari students on a general and nondiscriminato- ... benefit at issue in this case." Mueller, mechanical service, changing words from ous forms of aid given only to private ry basis. U.S. at 400, 103 S.CL at 3070 (emphasis That the state's resources will be one language into another. An interpreter schools are not controlling here. 463 used to convey sectarian as well as secular added). neither adds to nor detracts from the mes- Second, Grand Rapids and Meek in ideas does not necessarily create an imper- sage she conveys, nor does she interject Court found voIved educational assistance that eithe r In Witters, the Supreme missible union of church and state. Cf personal views and philosophies into the significant the fact that re- directly or indirectly compensated religiou a constitutionally Board of Educ. v. Mergens, 496 U.S. 226, translation. Unlike teachers and thera- would receive vocational institutions for costs they bore in the ligious institutions 250,110 S.Ct. 2356, 2372, 110 L.Ed.2d 191 pists, the sign language interpreter is a course of educating their students. I s assistance "only as a result of the genuine- 1202 963 FEDERAL REPORTER, 2d SERIES ZOBREST v. CATALINA FOOTHILLS SCHOOL Oat*96 F.d I190 (91Cir. 19) DIST. 1203 technical facilitator of communication, not from a handicapped child solely because of a potential fount of religious doctrine. his sincere religious desire to be educated lures of the environment might alter [the Such supervision standing alone does not therapist's) behavior from I do not understand in a Catholic school would evince hostility, its normal create constitutionally intolerable levels of the majority to say course" and result in the transmission that the First Amendment would be offend- not neutrality, towards religion. "The Es- of state/church involvement. The Constitu. Ideological view. i at 247, 97 S.Ct at tion ed by the state's provision of a hearing aid tablishment Clause does not license govern- will tolerate limited supervisory itter or eyeglasses to a parochial school ment to ... subject (religious practitioners] s~a0ml.Th~en itirictscourt pterceived the actions between public officials and private student. 'sie nrsk tis ase Athough the ma- Yet these products, to unique disabilities." Mergens, 496 U.S. schools. In l~oltuan, the Suptremte Court like an interpreter, jority does not reach make it possible for a physically-impaired at 248, 110 S.CL at 2371 (quoting McDaniel the entanglement held that the state's rovision of diagnostic stage of the Lemon test, I discuss it to student to receive and t. Paty, 435 U.S. 618, 641, 98 S.CL 1322, health services to private school students decipher religious demonstrate the constitutional propriety messages. Perhaps we *re not far from 1335, 55 1.Ed.2d 693 (1978) (Brennan, J., of slid not transgress the Establishment affording ElA benefita to parochial ptu- the time when machines will be able to concurring in judgment)). Clause because the. program resulted inl dents. only limited contact between public translate oral communications into visual Rather than suggest an impermissible In reviewing the offi- district court's deciaion, cials, religious officials, anti students. 4:13 cues for the hearing impaired. But we are connection between church and state, the I turn first to the question whether super U.S. at 244, 97 S.Ct. at 2603. Likewise, not there yet Consequently, because of provision of an interpreter vision of the interpreter's in would simply job performance Mueller, the Supretme Court sustained a the nature of his handicap, James Zobrest demonstrate to the public the government's will require the government to intrude un- tax exemption despite thte fact that it requires human, rather than purely me- desire to equalize the educational opportu- constitutionally re- upon Salpointe's religious quired public officials to determine chanical, assistance in the classroos. But nities of all its students and to help handi- affairs. whether Next, I address whether the textbooks promoted religious thenes. this distinction should not obscure our eval- overcome barriers to their 463 capped students process of sign language interpretation it. U.S. at 403, 103 S.Ct. at 3071. uation of the nature of the service full academic development Such aid is self impermissibly Such care- being involves a state-paid em. fully channeled interactions do not performed. A sign language interpreter religion-blind. rise to ployee in matters of religious doctrine. It the level of excessive entanglement. remains, like a hearing aid, a conveyor, and should See For the foregoing reasons, I would hold be emphasized at the outset that the also Hernandes Commissioner, not an Independent source, of communica- mere existence v. 490 that the provision of a sign language inter- of some interrelationship U.S. 680, 696-97, 109 S.Ct. 2136, tion. Under the circumstances of this case, and cooperation 2147, 104 preter, under the EHA and Arizona law, to between the School Dis. L.Ed.2d 766 (1989) ("[R11outine regulatory I do not consider the step from a trict and hearing a student enrolled in a religious school does Salpointe will not run afoul of the interaction which involves no inquiries aid to a sign language interpreter to be a First Amendment. into not have the primary effect of advancing It is only "excessive" religious doctrine, no delegation of State difference of constitutional magnitude. entanglement that religion. the Constitution con- power to a religious body, and no detailed Further undercutting the majority's sym- demns. Lemon, 403 U.S. at 613, 91 S.CL monitoring and close administrative at 2111; contact bolic union concern is a recognition that the C. Escessive Entanglement ef Texas Monthly, 489 U.S. at 10, between secular and religious 09 bodies does interpreter's role in the classroom touches The third inquiry prescribed by Lemon is S.CL at 897 ("Government need not not of itself violate the nonentanglement only one student She will not be involved determining whether excessive entangle- resign itself to ineffectual diffidence be- command.") (quotation and citations omit- at all in the 1ause of exaggerated education of the rest of the ment results from the government's pro. fears of contagion of ted); Allen, 392 U.S. at 245. 88 S.Ct. at student body. Students and r by the public are gram. To decide whether the provision of religion, so long as neither intrudes 1927 (officials may label textbooks as sec- thus not likely to be confused by or to have a sign language interpreter would suffi- nduly into the affairs of the other.") ular or sectarian). trouble understanding where the state ser- ciently enmesh the government in religious (emphasms added). vice ends and the religious begins. matters to offend the Establishment limited to evaluating the sign Cf languageSupervision interpreter's Grand Rapids, 473 U.S. at 391, 105 S.CL Clause, one must assess carefully the in- I Supervision job performance at 3226 ("[S]tudents would be unlikely to terrelationship of church and state that re- Both parties recognsize that the provision does not involve the type of day to day. discern the crucial difference "comprehensive, discriminatory between the suits when such assistance is provided a of a publicly-funded Sign language inter- and con- religious school classes and the 'public student Preter necessarily carries with it the bag- tinuing state surveillance" that Lcnon pre- school' classes."). cludes. 403 U.S. at 619, 91 S.Ct. at 2114. The district court ruled that state super- gage of supervision by public officials. The School District does not suggest that That the interpreter's appearance in a vision of the interpreter and the nature of will receive periodic evalua- Theinterpreter public officials will appear daily, weekly, or Catholic school is wholly attributable to the her task would unconstitutionally tions of the quality of her work. even monthly entangle School The in the classroom as part of independent decisionmaking of the parents, the state in Salpointe's sectarian education- Distriet's special education officials rather their supervisory work. No extra snpwrvi- than the actions of the state, further al process. The district court noted that, will also need to review at least annually sion is needed simply because the interpet. undercuts any symbolic union of the two like the therapists whose services were de- James's educational progress. er works in a sectarian school.' entities. Witters, 474 U.S. at 488-89, 106 clared unconstitutional in Wolman, 433 L The supervisory entanglemeni concerns raised S.CL at 762 ("Nor does the mere circum- 103Sd3. at 3071; Icnon, 403 U.S.at 616, 91 U.S. 229, 97 S.CL 2593, the sign language bY this case thus do not follow Shenorm. Time supervision sttvi. stance that petitioner has chosen to use interpreter enjoys close, day-to-day contact at issue in an entanglement Inquiry s. lates. Ini tis casc,however. the frequently perlains neutrally available state aid to help pay for with the student in a pervasively religious to the government's at. seon relates only to review of a public employ. tempts to ensure that its aid is being es performance. As in Winers, it is a given in his religious education confer any atmosphere. Id at 247-48, 97 S.CL it used only message for secular purposes. See,e.g., Aglaitar P.Fehon that the states assisiance cannot be of 473 U.S. his case State endorsement of religion."). In 2605. The Supreme Court in Wolman fell 402, 411, 105 SCi. 3232, 3237. 87 confined to a wholly secular role and inll.in Ld.2d 290 (1985); vcligimo fact, the withholding of vital assistance that this created a danger that "the pres- Mueller 463 U.S.at 403. instr Penit the recipient to rceve 'tstvcliun The sui~ervisiott at isinibuns 1204 963 FEDERAL REPORTER, 2d SERIES ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST. 1205 Cheast." d 190 (t hCtr. &99Z) Evaluations of the interpreter's work, financed teachers and therapists or coun- teacher or therapist. James's interpreter II. The Free Exercise Clause moreover, will not routinely or necessarily selors in parochial schools offends the First simply takes a message conceived and ut- conclusion involve the supervising officials in religious Amendment, Grand Rapids, 473 U.S. at tered by one person and neutrally trans- I agree with the majority's that denying the Zobrests matters. Nor does the supervision involve 387, 105 S.CL at 3224; Meek, 421 US. at lates it into a comprehensible form for a a sign language interpreter unconstitutionally burdens the sheer number of public officials Inun- 369-71, 95 S.CL. at 1766-66, the concerns second person. The expressions and in- their free dating religious establishments that oc- animating those holdings do not obtain In struction, religious or not, neither originate exercise of religion. curred in other cases. The services at is. this instance. nor terminate with the interpreter. As the However, because I do not believe that district court noted, she is just a conduit sue here, after all, will not be provided to The primary entanglement concern artic the provision of a sign language interpreter Unlike teachers and therapists, the entire student body. The number of ulated by the Supreme Court in Grand her func- in this case violates the Establishment tion does not entail the discretion to intro- deaf children enrolled in a single parochial Rapids and Meek is an apprehension that Clause of the federal Constitution, I would duce her own independent or subjective school at any given time will be sufficiently the pervasively religious atmosphere In hold that no compelling intgrest justifies judgments and opinions, to speak her own low to avoid visiting large numbers of state which the professionals work is likely the state's withholding of benefits. To to words, or to transmit her own ideas. Ratl- the officials upon the institution. Thus the su- infuse their teaching or advice with some extent the School District has an interest in pervision of James's interpreter will not religious content Grand Rapids, 473 U.S er, the interpreter performs the more mechanical and objective'task of searching for separating church and state further than implicate religious concerns to the same at 387, 105 S.CL at 3224 ("(Tlhere is a required by the First Amendment, that in- extent as other Establishment Clause cases substantial signs that equate with spoken words, ani risk that, overtly or subtly, the vice versa. The scientific, technical terest must yield to the Zohrests' free exer- have. religious message they are expected to nature con- of cise rights. "ITIhe State interest asserted vey during the regular schoolday will in- sign language interpretation thus more I would therefore hold that the church/ closely approximates the services of a here-in achieving greater separation of state contacts involved in supervising a fuse the supposedly secular classes they Church and State than is already ensured teach after school. The danger arises 'not speech and hearing diagnostician, than of a sign language interpreter's job perform- teacher. under the Establishment Clause of the Fed- ance are sufficiently contained and abbrevi- because the public employee [is) likely de- Occasionally, eral Constitution-is limited by the Free ated to prevent excessive entanglement liberately to subvert [her or] his task to the it is true, non-literal trans- service of religion, but rather because the lations will have to be made. But even in Exercise Clause." Widmar, 454 U.S. at these narrow instances, 276, 102 S.Ct. at 277. The Zobrests' free 2. Nature of the Job pressures of the environment might alter the interpreter's [her or] his behavior from its normal role remains confined to a technical search exercise rights would also override any ad- The second entanglement inquiry con- course.'") (quoting Wolman, 433 U.S. at for words and signs that closely approxi- ditional anti-establishment constraints im- cerns the nature of the sign language Inter- 247, 97 SC.CLat 2605); Meek, 421 U.S. at mate each other. I do not believe that the posed by the Arizona constitution. Id. at preter's task. The parties stipulated that, 371, 95 S.Ct. at 1766; see also Wolmon, minimal discretion inhering in such deci- 276-76, 102 S.Ct. at 277-78. The School as a general matter, the interpreter's code 433 U.S. at 247, 97 S.CL at 2605 ("[U]nlike sions creates an unconstitutional risk that District has articulated no other reason or of ethics obliges her to translate communi- the diagnostician, the therapist may estab- the interpreter will use the opportunity to interest in withholding aid from the Zo- cations completely, without altering, edit- lish a relationship with the pupil in which convey her own religious ideas, in violation breats.' ing, or revising in any manner the content there might be opportunities to transmit of her professional ethical obligation to of the message. It is conceded that at ideological viiews."); Lemon, 403 U.S. at translate accurately. times CONCLUSION the interpreter will be unable to af- 618-19, 91 S.CL at 2114 ("We simply recog. In sum, I believe that the provision of a fect a literal translation of a communica- nize that a dedicated religious person ... sign language interpreter to James Zobrest Almost twenty years tion, including religious messages. In ago, the Supreme such will inevitably experience great difficulty in under the EHA and Arizona law would not Court observed that circumstances, the interpreter must use her remaining religiously neutral.... With unconstitutionally entangle the state in reli- own Judgment and, to the beat of her abili- the best of intentions such a teacher would the transcendent value of free religious gious affairs. A careful review of the con- exercise in our constitutional scheme ty, convey the message as accurately as find it hard to make a total separation cerns animating the Supreme Court's First leaves room for "play in the joints" to possible. between secular teaching and religious doc. Amendment precedents, a thoughtful study the extent of cautiously delineated ser- The nature of the interpreter's role in the trine."). of the nature of an interpreter's services, ular governmental assistance to religious classroom does not entail excessive entan- Unlike teachers and thernpists, a sign and due respect for the purpose and effects schools, despite the fact that such glement between a state-paid employee and language interpreter's job admits of few, if of educational assistance to handicapped assistance touches on the conflicting values of the church. As noted earlier, the First any, opportunities for the transmission or children dictate the conclusion that the pro- Amendment does not strictly forbid the fostering of personal sectarian sentiments. vision of a sign language interpreter to a the Establishment Clause by indirectly benefiting the placement of any public employee in a paro- While recognizing that working as a sign deaf child enrolled in parochial school does religious schools.... chial school classroom. Wotman, 433 U.S. language interpreter is both difficult and not result in an unconstitutional fusion of Norwood v. Harrison,413 U.S. 455, 469, 93 at 241-44, 97 S.Ct. at 2602-03. While the challenging, the Interpreter's services are the secular and the sectarian. S.CL 2804, 2813, 37 L.Ed.2d 723 (1973). Court has ruled that the presence of state- distinctly more cabined than those of a L The panies have not argued tha the (cderal ily or constitutionality in this coniexi of the avoids ihe Catch-22 that occurs when the Esat- supervision to Invalidate the program on enlan- governmnms desire to separate church and federal prohibilion on the use of EIIA funds for lishment Cladise,on state constitutes a compelling interest over- religious "worship, instruction. or proselymra- the one hand. requires as- glement grounds. See Bowan, 487 U.S. at 615, riding lhe Zobrcsts' freeexercise rights. Ac surances thai aid does not promote sectarian 108 S.C. at 2577. lion." 34 C.F.R. § 76.532 (1991) purposes and, on lite other hand, usesthai very cordingly. I do not address either the applicabil 1206 963 FEDERAL RE 'ORTER, 2d SERIES COMMUNITY HOSP. OF CII ANDLER, INC. v. SULLIVAN 1207 Chm.e Fad I201th01. 6992) With this statement, the Court capsulized not entitled to Medicare reimbursement live Payment System (PPS) reimbursement This case raises two questions. First, we the lessons of nearly two centuries of expe- payment under new "federal" rate. Tbe anticipate that hospital can be "facility" for must decide whether, for the purpose of rience interpreting the First Amendment's United States District Court for the Dis- some purposes and "institution" for others. calculating Medicare reimbursements, the religion clauses. Rigid enforcement of one trict of Arizona. Earl H. Carroll, J., 744 Social Security Act, It 1801 et seq.. Secretary of Health and Human Services' clause generally comes at the expense of F.Supp. 203, granted motion for summary 1861(e), as amended, 42 U.S.C.A. I§ 1395 et ("the Secretary") determination (iat the the other. Only through the careful ac- judgment by Secretary of Health and Hu- seq.. 1395x(e). new facility is not a "new hospital" within commodation of evolving constitutional man Services. Hospital appealed. The L Social Security and Public Welfare the meaning of 42 C.P.R. § 412.741a)(1) concerns and values-through "play in the Court of Appeals, D.W. Nelson, Circuit -241.10 frustrates the Congressional intent behind joints"--can these competing precepts Judge, held that: (1)Department's determi- Secretary of Health and Human Ser- the Medicare Act. Second, we must deter- achieve their common goal of preserving nation that new state-of-the-art facility to vices should have adjusted base year cost mine whether, if the interpretation of the freedom of religion. which hospital's operations had been trans. of hospital seeking Medicare reimburse- new hospital regulation was valid, the See- I believe that the provision of a sign ferred was not a "new hospital" within ment tn take into consideration the radicl retary was nonetheless required. under 42 U.S.C. § 1395ww(b)(4)(A), language interpreter to a deaf child en- meaning of regulation did not frustrate shift in its operating costs resulting from (o otherwisne :l rolled in parochial school constitutes such congressional intent to ease hospitals' tran- transfer of its operations to new state-of. just Chandler's reimbursement rate to lake into consideration the radical shift "cautiously delineated secular governmen- sition from cost-based reimbursement to the-art facility. Social Security Act, in ils tal assistance." Governments provision of Prospective Payment System (PPS); (2) I 18R(b)4)(A), as amended, 42 U.S.C.A. operating costs. this general welfare benefit to all qualify- Medlicare Act definition of "hospital" and I 13Diww(b)4XA). We hold that neither 42 C.Fit. ( 412.- ing school children equally does not create provisions dealing with PPS reimbursement 74(a)(1) nor the Secretary's interprelalion an impermissible establishment of religion. anticipated that hospital could be "facility" of that regulation to exclude Chandler Patrick K. O'Hare, Amy On the other hand, singling out for exclu- for some purposes and "institution for oth- E. Hancock, from characterization as a new hospital McDermott, Will, & Emery, sion from this benefit program only those ers"; and (3) Secretary should have adjust Washington, frustrate Congressional intent. However, students engaged in religious conduct com- ed hospital's base year costa to take into D.C., and Douglas Gerlach, Brown & Bain, we find that the Secretary erred in not Phoenix, Ariz., for plaintiff-appellant pelled by conscience does offend the Free consideration the radical shift in its operat- adjusting Chandler's base year costs as Exercise Clause. ing costs. Stuart Gerson. AssL Atty. Gen., James required by 42 U.S.C. I 1305ww(bX4)(A), Reversed and remanded. P. Loss, Asst. U.S. Atty., Phoenix, Aria., Therefore, we reverse the district court and Lawrence M. Meister, Office of the Gen. remand this case so that the Secretary may Counsel, Dept. of Health and Human Ser- have an opportunity to determine whether 1. Federal Courts 4-776 vices, Baltimore. Md., for defendant-appel- and to what extent Chandler is entitled to District court's grant of summary lee. adjustments under that provision. 744 judgment is reviewed de novo. Appeal from the United States District F.Sopp. 203. (D.Ariz.1990). 3. Administrative Law and Procedure Court for the District of Arizona. COMMUNITY HOSPITAL OF CIIAN- 4386 FACTS/PROCEDURAL BACKGROUND DLER, INC., an Arizona Corporation, Agency's regulations must be consist Before: FLETCHER, D.W. NELSON Ov'ervieto of the Aedicarc d/b/a Chandler Regional Hospital. ent with overall intent behind statute. and FERNANDEZ, Circuit Judges. Program Plaintiff-Appellant. In 1983, Congress amended the Social . Soctal Security and Public Welfare D.W. NELSON, Circuit Judge: Security Act to change the way it reini- T. 4-241.10 burses hospitals for the costs of treating Louis W. SULLIVAN, M.D., In his official Determination of Secretary of Health OVERVIEW Medicare patients. Before 1983, hospitals capacity as Secretary of the United and Human Services, that new state-of-the- Until 1984. Chandler Community Hospi- were reimbursed according to the actual States Department of Health and Hu- art facility to which hospital's operations tal operated in a single-istory. 46-hed. costs they expended in treating each Medi- man Services, Defendant-Appellee. were transferred was not a "new hospital" small-scale facility. That year, the original care patient. Concluding that this comt- No. 90-16331. within meaning of regulation for Medicare facility was closed down and the operation based system was inefficient because hos- reimbursement purposes, did not frustrate was transferred to a brand-new, four-story, pitals had no incentive to provide services United States Court of Appeals, congressional intent to ease hospitals' tran- 120-bed, state-of-the-art facility that had at lower costs, Congress introduced tie Ninth Circuit. sition from cost based to Prospective Pay. been constructed at a nearby location. The Prospective Payment System (PPS). Un- ment System (PPS) reimbursement. Social Argued and Submitted Feb. 11, 1992. new facility was renamed "Chandler Re- der PPS, hospitals receive a fixed. standard Security Act, J 1801 et seq., as amended, gional Hospital," but it kept the same ti- amount for each Medicare Decided May 4, 1992. inpatient they 42 U.S.C.A. I 1396 et seq. censes as the old facility; it was also treat The amount of the payment is ad- 4. Social Security and Public Welfare owned and operated by the same individu- justed for each patient by using "diagnosis- Hospital sought review of administra- *=241.5 als. The new facility had substantially related groups" (DRGs), a classification tive decision by Health Care Finance Ad- Medicare Act definition of "hospital" higher per-patient operating costs than the system based on the patient's condition and old facility. ministration determining that hospital was and provisions of Act dealing with Prospec. treatment. This amount is theoretically August 1, 1992 A-82 McNary, Commissioner. Immigration and Naturalization Service v. Haitian Centers Council, Inc. The application for stay, presented to Justice Thomas and by him referred to the Court, is granted, and it is ordered that the judgment of the United States Court of Appeals for the Second Circuit, case No. 92-6144, filed -July 29, 1992, and the subsequent July 29, 1992, order of the United States District Court for the Eastern District of New York, case No. 92 CV 1258, are stayed pending the filing of a petition for a writ of certiorari on or before August 24, 1992. Should the petition be filed on or before that date this order is to remain in effect pending this Court's action on the petition. If the petition for a writ of certiorari is denied, this order is to terminate automatically. In the eveiL e petition is granted. this order is to remain in effect pending the sending down of the judgment of this Court. Should the Solicitor General so file a petitiqn for a writ of certiorari. respondents' response is to be flied on or before September 8, 1992. Justice Blackmun, with whom Justice Stevens joins, dissenting. An applicant for a stay pending the disposition of a petition for certiorari faces a heavy burden. The applicant must demonstrate (1) a likelihood of irreparable harm if the judgment below is not stayed. (2) a reasonable probability that certiorari will be granted; (3) a significant possibility that the judgment below will be reversed; and (4) that the balance of the equities tilts clearly in its favor. I do not think the government has met the latter two conditions. Eight federal judges have now considered the territorial reach of 8 U.S.C. § 1253(h). Four have concluded that the statute does not apply in international waters, and four have concluded that it does. Given the thorough and careful reasoning of the majority and concurring opinions below, I do not see how the Court can conclude at this stage that the government's likelihood of success on the merits isany better than even. This is not fatal to the government's application, for if each party's chance of succeeding is equal, a strong showing on the equities can still carry the day for the applicant. But no such showing has been made. While the government has offered a vague invocation of harm to foreign policy, immigration policy, and the federal treasury, the plaintiffs in this case face the real and immediate prospect of persecution, terror, and possibly even death at the hands of those to whom they are being forcibly returned. So determined the district court. to whose findings we should defer where the balance of equities is highly factual in nature. Block v. North Side Lumber Co.. 473 U.S. 1307 (1985) (Rehnquist. J.. in chambers). I would deny the application for a stay. PREVIEW OF THE COURT'S DOCKET

Section: Lower Court Opinions for Afternoon Session

Dunnigan v. United States Montana v. Imlay Williams v. Withrow Death Penalty Cases: Herrerav. Collins, Arave v. Creech, Graham v. Collins, Richmond v. Lewis 91-1300 U.S. v. DUNNIGAN 91-1030 WITHROW v. WILLIAMS Sentencing-Federal guidelines-Sentence en- Habeas corpus-Review of state conviction-Vol- hancement based on perjury. untariness of confession. Ruling below (CA 4, 944 F2d 178, 60 LW Ruling below (CA 6. 944 F2d 284): 2179, 49 CrL 1505): Federal district court correctly decided, con- Provision of federal Sentencing Guidelines that trary to findings of state courts, that habeas enhances sentence if defendant is found to have petitioner suspected of murder was "in custody" obstructed justice in course of his prosecution. for interrogation purposes when police officers Section 3C1.1. unconstitutionally burdens defen- came to his house, searched him, transported him dant's constitutional right to testify in his own in unmarked police car to police station, and defense as applied to defendant's trial testimony repeatedly conveyed to him that his options were that adverse jury verdict implies is false. to cooperate or go to jail: inculpatory statements petitioner made after this point but before advice Question presented: Does Constitution prohibit of rights was given to him should have been court from enhancing defendant's sentence under suppressed because of failure of police to give Sentencing Guidelines Section 3C1.L if court warnings required by Miranda v. Arizona, 384 finds that defendant committed perjury while U.S. 436 (1966): further inculpatory statements testifying at trial? petitioner made after receiving warnings were Petition for certiorari filed 2/10/92. by Ken- result of police officers' promises that he would neth W. Starr. Sol. Gen., Robert S. Muelier III, be freed and treated with leniency if he talked Asst. Atty. Gen.. William C. Bryson. Dpty. Sol. and their threats of imprisonment if he did not Gen.. Paul J. Larkin Jr.. Asst. to Sol. Gen., and and, therefore, should have been suppressed as Andrew Levchuk. Justice Dept. Atty. involuntary. under Oregon v. Elstad, 470 U.S. 298 (1985): error in admitting statements was not harmless beyond reasonable doubt, and, therefore. district court's grant of habeas relief is affirmed: rule of Stone v. Powell, 428 U.S. 465 (1976). which held that Fourth Amendment claims are not cognizable on federal habeas review if petitioner had full and fair opportunity to litigate claim in state court, does not extend to 91-687 MONTANA v. IMLAY Fifth Amendment claims, Probation-Suspended sentence conditioned upon Qucstions prcscntcd: (I) Do federal courts on admission of guilt to offense of conviction-Self- habeas corpus review of state court convictions incrimination. have jurisdiction to find habeas petitioner's state- Ruling below (Mont SupCt, 813 P2d 979): ment involuntary. in case in which sole Fifth Amendment issue raised in state court. and in Trial court order revoking sex offender's sus- habeas petition, was whether statement was ad- pended sentence on basis of his failure to enroll in mitted in violation of prophylactic Miranda rules. sex-offender treatment program, which would not state court having found that petitioner was not admit defendant unless he admitted guilt to of- in custody? (2) In case in which premise of Fifth fense. violated defendant's Fifth Amendment Amendment ruling is finding of Miranda viola- right against compelled self-incrimination by sub- tion. and petitioner has had one full and fair jecting him to additional punishment because of opportunity to raise his failure to admit guilt: notwithstanding convic- Miranda claim in state court, tion should collateral review of same claim on habeas of sex offense, following trial in which de- corpus petition be precluded? (3) If collateral fendant testified and denied guilt, trial court's review is available order required defendant to surrender rights to in such case, is confession .challenge conviction on basis of newly discovered following warnings involuntary merely because evidence. or by collateral attack, and required police indicate possibility of lenient treatment if him to abandon self-incrimination privilege with accused tells truth, and would adoption of such respect to offense of conviction and also for crime rule on habeas corpus violate principles of Saw- of perjury; defendant's sentence is vacated. yer v. Smith. 58 LW 4905 (1990), and Teague v. Lane. 489 U.S. 288, 57 LW 4233 (1989)? Question presented: Was state probationer's Fifth Amendment privilege against self-incrimi- Petition for certiorari filed 12/12/91. by John nation violated by revocation of his probation for D. O*Hair. Pros. Atty. for Wayne Cty., Mich.. Timothy A. Baughman, Chief of Research. failure to comply with condition that he complete Training, and Appeals, and Jeffrey Caminsky, sex-offender therapy, in view of fact that success- Asst. Pros. Atty. ful completion of therapy requires probationer to accept responsibility for crime of which he was convicted? Petition for certiorari filed 10/21/91, by Marc Racicot. Mont. Atty. Gen., and Elizabeth L. Griffing, Asst. Atty. Gen. 91-7328 HERRERA v. COLLINS - 91-1160 ARAVE v. CREECH Death penalty-Claim of innocence-Habeas cor- Capital punishment-Aggravating circum- pus-Stay of execution. stances-Vagueness-Mitigating evidence-Good Ruling below (CA 5. 2/18/92): prison behavior. Claim of actual innocence, based on newly Ruling below (CA 9, 947 F2d 873, 49 CrL discovered evidence, by state prisoner convicted 1078): of murder and sentenced to death does not, stand- Provision of Idaho capital punishment statute ing alone, state claim upon which habeas relief that makes defendant's "utter disregard for hu- can be granted by either federal habeas court or man life" aggravating factor is unconstitutionally Texas habeas court, in absence of legal basis for vague: state supreme court's limiting construction granting relief to prisoner on second or subse- that defines aggravator as "reflective of acts or quent petition for habeas corpus, district court circumstances surrounding the crime which ex- may not stay execution in order to hold hearing hibit the utmost, callous disregard for human life, on prisoner's claim of innocence. which is based i.e.. the cold-blooded pitiless slayer" fails to suffi- on alleged confessions that prisoner's now-de- ciently objectify and channel sentencer's discre- ceased brother gave to his son and others admit- tion as required by Maynard v. Cartwright, 486 ting commission of murder of which prisoner U.S. 356. 56 LW 4501 (1988): state trial judge's stands convicted. failure to expressly find "specific intent" in rela- Questions presented: (I) Does it violate Eighth tion to two other aggravating circumstances as and Fourteenth Amendments to execute person required by state law requires vacation of convic- who has been convicted of murder but who is tion despite evidence to support such finding. innocent? (2) If so. must state courts provide capital defendant must be given opportunity at meaningful mechanism for hearing claims of ac- rescntencing to present mitigating evidence of his tual innocence in death penalty cases? (3) What good conduct in prison following initial procedures are necessary in federal court for sentencing. adjudicating claims of actual innocence in death penalty case? Questions presented: (1) Is Idaho's statutory aggravating factor that authorizes death penalty Petition for certiorari filed 2/19/92, by Mark for murders committed with utter disregard for E. Olive, of Tallahassee. Fla. human life unconstitutionally vague because limiting construction announced by Idaho Su-* preme Court does not require that factor be defined with reference to occurrence of specifically defined acts? (2) May federal court of appeals GRAHAM v. COLLINS vacate death sentence by interpreting state stat- 91-7580 ute to require sentencing judge to make express Capital punishment-Habeas corpus-Sentenc- finding of existence of particular factual compo- ing-Mitigation. nents of statutory aggravating circumstance? (3) Ruling below (CA 5 (en banc), 950 F2d 1009, When death sentence is vacated by state appeals 50 CrL 1385): court to correct procedural defect of state law, Texas statutory sentencing scheme for capital does U.S. Constitution require that sentencing cases that permits jury to consider only three proceedings be reopened to receive evidence of statutory questions and that makes death sen- prisoner's post-sentencing conduct in prison? tence automatic if all three are answered "yes" Petition for certiorari filed 1/14/92, by Larry by jury permits evidence of mitigating factors- EchoHawk. Idaho Atty. Gen., and Lynn E. such as defendant's youth at time of offense and Thomas, Dpty. Atty. Gen. good character traits cited by defense in case before court-to be adequately accounted for. particularly by consideration of second statutory issue. i.e.. whether there is likelihood that defendant would be continuing threat to society: there is no substantial evidence that conduct of habeas corpus petitioner. in this case was attributable to disadvantaged background, or to emotional or mental problems. Questions presented: (1) May state limit capital sentencing jury's consideration of 17-year-old defendant's youth, recognized repeatedly by this court as powerful mitigating factor, to answering whether he acted "deliberately" and might be dangerous in future, and afford no other basis for taking youth into account? (2) May state similarly limit jury's consideration of such defendant's positive character and unfortunate circumstances of his family background? Petition for certiorari filed 3/9/92, by Michael E. Tigar and Robert C. Owens, both of Austin, Texas, and Jeffrey J. Pokorak, of San Antonio, Texas. 91-7094 RICHMOND v. LEWIS Habeas corpus-Death - penalty-Aggravating 91-794 HARPER v. VIRGINIA DEPARTMENT circumstances. OF TAXATION State tax on Ruling below (CA 9, 948 F2d 1473): federal retiree pensions-Refunds- State taxation of military retiree pensions. Although statutory aggravating circumstance Ruling found and relied upon by judge who sentenced below (Va SupCt, 60 LW 2342): federal habeas corpus petitioner to death-his Upon remand from U.S. Supreme Court for commission of crime in "especially heinous. cruel further consideration in light of James B. Beam Distilling or depraved manner"-is vague on its face, Ari- Co. v. Georgia. 59 LW 4735 (1991) zona Supreme Court, in reviewing petitioner's court reaffirms in all respects its prior that, decision death sentence, provided narrowly tailored and because Davis v, Michigan Departmen, of Treastdi,rp, "obviously sufficient limiting construction" of 489 U.S. 803, 57 LW 4389 (1989), vague aggravating circumstance when it defined docs not apply retroactively federal government cruel as "disposed to inflict pain especially in a retirees are not entitled to refund 'of income tax Virginia wanton, insensate or vindictire manner," heinous on their pensions for years in which as "hatefully or shockingly evil," and depraved as retired state employees' benefits were exempt "marked by debasement. corruption, perversion from same tax. or deterioration." and further noted QuCStion that factors presented: May this court's decision that lead to finding of heinousness or depravity in Davis L. Michigan include under Department of Treasurr infliction of gratuitous violence and need- any circumstances be "applied" non-retro- less mutilation of victim: under such definition, actively so as to defeat federal rational factfinder could have found "heinous" ment to retirees' entitle- or refunds of unconstitutional state taxes "depraved" murder of victim who was beaten imposed upon their federal annuities? unconscious and then run over by car twice, Petition for certiorari filed 11/15/91. crushing his skull.and killing him first time and chael J. by Mi- Kator, Stephen Z. Chertkof. and Kator, then dragging him 30 feet second time: even if Scott & Heller. all Arizona Supreme Court had not provided suffi- of Washington. D.C. cient limiting construction for such aggravating circumstance, habeas petition would still be rejected because state .court rested its affirmance upon finding of two additional aggravating circumstances and insufficient showing of mitigating circumstances; in context of Arizona death penalty statute. which separates sentencing court's findings on aggravating circumstances from its findings on mitigating factors. U.S. Constitution does not require remand for resentencing when one aggravating factor is eliminated from analysis if record reveals that, in terms of statute. one or mrre aggravating factors are present and thee are no mitigating circumstances sufficietly substantial to call for leniency. Questions prse nted: (1) Does petitioner's death sentence cont,-avene Eighth and Fourteenth Amendments b.catuse it was upheld by Arizona Supreme Cour. on basis of application of Ari- zona's "especially heinous, atrocious or cruel" aggravating ci-cumst.ance that either extends circumstance to jet of facts that no rational factfinder could conclude fall'within it or arbitrarily assumes set of facts that no actual factfinder has ever found in :his case? (2) May federal habeas corpus court apply rule of "automatic affirmance" to death sentence that was based on both occurs during sidebar conference convened to discuss lack of unanimity among jurors, polled pursuant to Fed.R.Crim.P. 31(d). when jurors' numcrical division is known? Petition for certiorari filed 5/8/92, by Michael D. Rossi. and Guarnieri & Secrest. both of War- rcn. Ohio. 178 944 FEDERAL REPORTER, 2d SERIES if the jury thinks only one was, that's- court found that "there is no merit to the the jury may think as they see fit from objection. The instructions adequately in- this evidence, but the issue before this formed the jury that they must find that jury with respect to this defendant is was Stamper killed the victims to convict him of he personally involved? the capital murders." Stamper v. Com- In addition, Stamper urges that trial de- monwealth, 220 Va. 260, 275, 257 S.E.2d fense counsel excacerbated the error by 808, 819 (1979). strenuously objecting to the initial response Accordingly, our having considered the proposed by the court that "similar charges contentions Stamper has made, and dis- are pending against another defendant," covering no error,s the judgment is when in fact such a response would have bolstered the defense's theory that some AFFIRMED. * other person had actually committed the crimes. Stamper contends that such an "error" cannot be justified on the basis of strategy or tactics. Here we must ask "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt" Strick- land 466 U.S. at 695, 104 S.CL at 2068-69. UNITED STATES of America, Plaintiff-Appellee, Stamper's logic is difficult to follow or accept His theory of defense, simply stat- V. ed, has been that he was not at the scene Sharon DUNNIGAN, Defendant- of the crime, as demonstrated by the pres- Appellant ence of fingerprints and a footprint which were not his.' Apparently, the prosecution No. 90-5668. - -favored the court's proposed initial re- United States Court of Appeals, sponse-"similar charges are pending Fourth Circuit against another defendant"-in order to weaken the import of the nonmatching fin- Argued April 12, 1991. gerprints and footprint by demonstrating Decided Aug. 30, 1991. the existence of an accomplice. Defense As Amended Sept 12, 1991. counsel successfully prevented such weak- ening by preventing any suggestion of the existence of an accomplice from reaching Defendant was convicted in the United the jury. Those tactics were reasonable. States District Court for the Southern Dis- See Strickland, 466 U.S. at 690, 104 S.Ct. trict of West Virginia, John T. Copenhaver, at 2065. Stamper's recasting of the pros Jr., J., of conspiracy to distribute cocaine. and cons of trial counsel's decision amounts Defendant appealed. The Court of Ap- to Monday morning quarterbacking. peals, K.K. Hall, Circuit Judge, held that Moreover, returning again to Strick- (1) indictment was sufficient; (2) admission land's second prong-prejudice-the Virgi- of bad acts evidence was not plain error; nia Supreme Court ruled on the merits of and (3) enhancing defendant's sentence un- an objection to the response for the first der guidelines for obstruction of justice time on appeal, despite the fact that no based on finding that defendant testified objection had been made at trial. The untruthfully at trial placed intolerable bur- 4. In fact, trial defense counsel made a pre-trial that reversal would constitute the enunciation motion to keep Stamper's association with one of a "new rule" in violation of Teague v. Lane, Tyrone Bowling out of the case. 489 U.S. 288, 109 S.Ct. 1060, 103 LEd.2d 334 5. Finding no error, we leave to another day (1989), and its progeny. consideration of the Commonwealth's assertion U.S. v. DUNNIGAN 179 Cite as944 F2d 178 (4th Cir. 1991) den on defendant's right to testify on her fendant did not request continuance and own behalf. did not ask a single question on cross- Conviction affirmed; sentence vacated examination about witness' condition, and although exculpatory evidence may remanded. not and have been presented as fully as defendant would have liked, jury did not in fact hear 1. Conspiracy <=43(1) it. Indictment and Information G=110(10) Indictment was sufficient where it 6. Criminal Law e-1253 identified time frame of conspiracy to dis- Witnesses <-88 tribute cocaine, place, coconspirator, al- Enhancing defendant's sentence under leged substance involved, and statutes vio- guidelines for "obstruction of justice" lated and tracked statutory language defin- based on finding that defendant testified ing offense and apprised defendant that untruthfully at trial placed intolerable bur- other unnamed coconspirators, whose iden- den on defendant's right to testify on her tities were known and unknown to grand own behalf. U.S.S.G. § 3C1.1, 18 jury, were involved. U.S.C.A.App. 2. Criminal Law <-369.1 Ordinarily, proof of crimes or bad acts Brent E. Beveridge, Morgantown, W.Va., other than those charged are inadmissible argued for defendant-appellant. to show that defendant acted in conformity with character traits; however, evidence of Michael M. Fisher, Asst. U.S. Atty., ar- those acts is admissible for limited collat- gued (Michael W. Carey, U.S. Atty., Hunter eral purposes such as knowledge, intent, P. Smith, Asst. U.S. Atty., on brief), motive, absence of mistake, and common Charleston, W.Va., for plaintiff-appellee. scheme or plan. Fed.Rules Evid.Rule 404, 28 U.S.C.A. Before HALL and PHILLIPS, Circuit Judges, and WILLIAMS, District Judge for 3. Criminal Law **1036.1(8) the Eastern District of Virginia, sitting by Admission of testimony that defendant designation. helped her daughter use and sell crack cocaine was not plain error in prosecution for conspiracy to distribute cocaine; all of OPINION "similar acts" evidence presented on rebut- K.K. HALL, Circuit Judge: tal was invited by defendant who had de- Sharon Dunnigan appeals her conviction nied using cocaine or knowing that anyone and sentence for conspiracy to distribute sold cocaine out of her house and district cocaine. We affirm her conviction; how- court's sua sponte gave limiting instruction ever, we vacate her sentence and remand on testimony in Government's case in chief for resentencing. about defendant giving her daughter cocaine to "rock up." Fed.Rules Evid.Rule 404, 28 U.S.C.A. I. 4. Criminal Law 4700(3) The cocaine distribution conspiracy in this case is not complex. Freddie Harris Only where Brady evidence is so mate- was a notorious cocaine dealer in the rial that its nondisclosure undermines con- Charleston, West Virginia, area. His ring fidence in verdict is reversal necessary due was broken up in the late summer of 1988. to failure of prosecution to disclose that evidence to defendant. Harris pled guilty to cocaine distribution charges, as did his coconspirators John 5. Criminal Law 6700(5) Dean, Doris Casto, Wynema Brown, and Any Brady error due to fact that Tammy Moore. Several others went to tri- Government did not disclose before trial a al, including Andre Charlton and, later, ap- witness' schizophrenia was harmless; de- pellant Sharon Dunnigarr. 180 944 FEDERAL REPORTER, 2d SERIES Dunnigan was charged March 7, 1989, in Dunnigan's counsel was surprised by a one-count indictment, with conspiracy to this revelation. He protested to the court distribute cocaine with Harris and un- that his cross-examination would be ham- named others during the summer of 1988. pered by the government's failure to pro- She filed pretrial motions to dismiss the vide this information before trial notwith- indictment, for a bill of particulars, and for standing a specific discovery request. The disclosure of exculpatory and Jencks Act government argued that the grand jury material. transcripts revealed that Dean was -a heroin addict, and that it had no docum- tary motions, the govern- At a hearing on the evidence to substantiate Dean's mental ill- materi- ment agreed to provide Jencks Act ness. The district court advised the defen- al, notice of "similar acts" evidence, and dant that Dean's schizophrenia could be information regarding any confidential in- inquired into on cross-examination. Dunni- formants. The defendant withdrew her gan's trial counsel nonetheless asked no motion for a bill of particulars. The dis- cross-examination questions about Dean's trict court denied the motion to dismiss the addiction or mental disorders. indictment. Charlton testified next. He said that he Between the hearing on motions and tri- had gone with Harris to Duniigan's apart- al, the government furnished grand jury ment to test and package cocaine Dunnigan transcripts, plea agreements and rap had brought from Cleveland. He also re- sheets for proposed government witnesses, counted one occasion on which he had re- and notice of one "similar act"-a conceived cocaine from Dean. This cocaine trolled sale of crack cocaine by Dunnigan had been picked up in Cleveland on one of to a cooperating witness, Edward Dicker- Dean and Dunnigan's trips together. son, on July 12, 1988. Moore was the fourth coconspirator wit- Trial was held January 3-4, 1990. The ness. She told of conversations with Dun- government presented five witnesses in its nigan during which Dunnigan extolled the case-in-chief. Harris, the ringleader, was superior quality of Cleveland cocaine and first. He testified that Dunnigan was his attempted to solicit Moore to drive her to source of supply in Cleveland, and that she Cleveland. had travelled to Cleveland alone and with Finally, the government called Brown. him to obtain cocaine during the summer of She stated that Dunnigan had told her of 1988. Harris also stated that Dunnigan the Cleveland cocaine-purchasing trips, and had accompanied Dean to Cleveland for the that she had seen cocaine in Dunnigan's same purpose at least once. Harris admit- apartment. On four or five occasions, ted distributing the cocaine in the Charles- Brown observed Dunnigan's daughter ton area. "rocking up" powder cocaine (i.e. making it Dean took the stand next. Dean met the into crack) for Dunnigan. Dunnigan would appellant when, on Harris' instructions, he later return the crack cocaine to her daugh- picked her up at the Charleston bus termi- ter to sell. Brown also stated that Dunni- nal and took her home. Harris had de- gan kept cocaine in a little tin case. The scribed Dunnigan to Dean as his "connect." defendant made .no objections to any of Later that evening, Dean accompanied Har- Brown's testimony and pursued no cross- ris to Dunnigan's apartment; Harris went examination. Notwithstanding this lack of inside and obtained cocaine, which Dean protest, the district court gave a "similar then helped package for resale. Dean also acts" instruction-if the jury believed the testified that he went to Cleveland with cocaine that Dunnigan's daughter "rocked Dunnigan on several occasions to purchase up" was part of the conspiracy, it could cocaine and dilaudid. At the close of consider it for that purpose; however, the Dean's direct examination, the government court stated, Dunnigan was not charged elicited from him that he was a paranoid with distributing crack, and if the cocaine schizophrenic and heroin addict. from which it was made was outside the U.S. v. DUNNIGAN 181 Cite s 944 F.2d 178 (4th Cir. 191) conspiracy, the jury could only consider the justice," based on its finding that Dunni- evidence for the limited purposes of Fed. gan testified untruthfully at her trial. She R.Evid. 404(b): motive, intent, preparation, was sentenced to 51 months, the lowest end lack of mistake, and knowledge. of the guideline range. The government rested, and Dunnigan presented a simple defense. She took the II. stand and denied everything. She testified that she did not buy, sell, or use cocaine Dunnigan first argues that the district during the time she knew Harris. She said court erred by denying her motions to dis- that she did not know anyone in Cleveland miss the indictment and for a bill of partic- who used cocaine. ulars. These arguments are related, be- She admitted going to Cleveland, but cause a bill of particulars is a defendant's only to visit relatives. She said that she means of obtaining specific information went to Cleveland with Harris once, be- about charges brought in a vague or broad- cause she knew her way around, but she ly-worded indictment. United States v. did not know whether Harris bought or Debrow, 346 U.S. 374, 378, 74 S.CL 113, tried to buy any cocaine on that trip. She 115, 98 LEd. 92 (1953). flatly denied the trips and transactions described by Dean and Charlton, and she had (1] An indictment may simply be a no knowledge of anyone making cocaine short, plain statement of the charge, suffi- into crack at her apartment. ciently precise to notify the defendant of On cross-examination, the government the accusation he must meet and to protect asked her about a specific transaction: him from double jeopardy. United States whether she had sold crack to Edward v. American Waste Fiber Co., 809 F.2d Dickerson on July 12, 1988, at her apart- 1044, 1046 (4th Cir.1987). The indictment ment. She denied it. of Dunnigan was sufficient. It identified The defense rested, and the government the time frame of the activity (early to late began a devastating rebuttal. Dickerson summer of 1988), the place (at or near was the first witness. He testified that he Charleston), a coconspirator (Harris), the had been arrested in early 1988 and had controlled substance involved, and the stat- become an informant. On July 12, 1988, in utes violated. The indictment tracked the a monitored transaction, he bought crack statutory language defining the offense from Dunnigan at her apartment. Dunni- and apprised Dunnigan that other unnamed gan did not object to this testimony. coconspirators, whose identities were Moore then retook the stand to describe known and unknown to the grand jury, her purchases of crack cocaine from the were involved. ' defendant. She had also seen Dunnigan Among her pretrial motions, Dunnigan give crack and powder cocaine to her moved for a bill of particulars. She want- daughter. Finally, Moore said that she and ed the names of those to whom she had Dunnigan's daughter sold crack together allegedly sold cocaine, notice of any "sim- and returned part of the money to Dunni- ilar acts" the government planned to use, gan. Again, the defendant did not object and the like. At a pretrial hearing on the to any of Moore's story. Again, the dis- motions, Dunnigan's counsel was satisfied trict court gave the jury a "similar acts" with the governments proposed disclo- limiting instruction. sures and specifically dropped the request The jury found Dunnigan guilty. Her for a bill of particulars. Waivers are rare- base offense level for sentencing was 22. ly more explicit. In any event, Dunnigan She did not receive the two-level acceptance was given the names of the government's of responsibility reduction, because she witnesses and received grand jury tran- continued to maintain her innocence. scripts. The denial of a bill of particulars Moreover, the district court increased the did not leave her facing a trial unaware of offense level by 2 to 24 for "obstruction of the nature of the charges against her. 182 944 FEDERAL REPORTER, 2d SERIES III. warrant reversal. G.dy where the evidence is so material that its nondisclosure under- [2.31 Ordinarily, proof of crimes or bad mines confidence in the verdict is reversal acts other than those charged is inadmissi- necessary. United States v. Bagley, 473 ble to show that the defendant acted in U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 conformity with a character trait. How- (1985). ever, evidence of such acts is admissible for limited collateral purposes such as knowl- Dunnigan did not request a continuance edge, intent, motive, absence of mistake, and did not ask a single question on cross- and common scheme or plan. Fed.R.Evid. examination about Dean's condition. More- 404. over, though the exculpatory evidence may not have been presented as fully as Dunni- Dunnigan now argues that she was hope- gan would have liked (though she does not lessly prejudiced by admission of the testi- say what else she would now offer), the mony that she helped her daughter use and jury did in fact hear it. Dunnigan would sell crack cocaine. We do not doubt that have a better argument if the government this testimony was very damaging; how- had withheld the information from the jury. ever, Dunnigan made no objections to this Finally, Dean was one of a half-dozen evidence at trial, and the court may reverse government witnesses telling the same sto- only if admission of the evidence was plain ry-, his testimony was important, but not error. vital. All of the "similar acts" evidence Our confidence in the verdict is not un- presented on rebuttal was invited by Dun- dermined by the nondisclosure of Dean's nigan. She denied using cocaine or know- mental problems. Therefore, any Brady ing that anyone sold cocaine out of her error was harmless. house. The government was entitled to rebut these assertions. V. A closer issue is Brown's testimony in the government's case-in-chief about Dun- A. nigan giving her daughter cocaine to "rock up." Nonetheless, Dunnigan did not ob- [61 The district court found that Dunni- ject, and the district court sua sponte gave gan had testified untruthfully at trial, and a limiting instruction. Admitting the testi- so enhanced her offense level by two for mony with a limiting instruction does not "obstruction of justice." Committing or rise to plain error, if error at all. suborning perjury has always been identified as "obstruction of justice" in the Guidelines Commentary. U.S.S.G. § 3C1.1, IV. comment. (n.1(c)) (Nov.1989); Id., comment [4,5] The government now admits, al- (n.3(b)) (Nov.1990). beit equivocally, that it should have dis- At the time Dunnigan was charged, con- closed Dean's schizophrenia before trial. victed, and sentenced, Application Note 3 to "If Dean's mental condition was such that U.S.S.G. § 3C1.1 stated: "This provision is it would have reflected adversely on his not intended to punish a defendant for the credibility, the United States should have exercise of a constitutional right. A defen- provided this information to the defendant's denial of guilt is not a basis for dant" Brief of the United States, at 39.' application of this provision." Further- However, every Bradylt violation does not more, Application Note 2 stated that "sus-

1. The Assistant U.S. Attorney on appeal did not 2. Brady v. Maryland 373 US. 83, 83 S.Ct. 1194, represent the government at trial. The trial 10 LEd.2d 215 (1963). prosecutor interpreted her duty to disclose exculpatory information to apply only to documentary evidence. U.S. v. DUNNIGAN 183 Cite as 944 F.2d 17b 4 thClr. t991) pect testimony and statements should be a story that, if believed in full, would result evaluated in a light most favorable to the in acquittal. The jury's verdict implies a defendant." disbelief of some material aspect of the defendant's All circuits that have considered the is- testimony. sue have upheld the constitutionality of It disturbs us that testimony by an ac- § 3C1.1. similar enhancements under cused in his own defense, so basic to ju*- These decisions are based on the premise tice, is deemed to "obstruct" justice unless that a defendant's right to testify in his the accused convinces the jury. The facile own behalf is not a license to commit perju- logic of hindsight deems such disbelieved ry. United States v. Batista-Polanco,927 testimony a lie; inasmuch as there is no F.2d 14, 22 (1st Cir.1991); United States v. right to lie, there is no harm in sanctioning Matos, 907 F.2d 274, 276 (2nd Cir.1990); it. Hindsight, however, does not help States v. Acosta-Cazares, 878 F.2d the United accused when he must decide whether to 945, 953 (6th Cir.), cert denied, 493 U.S. take the stand. He already knows that he 899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989); faces the possibility of conviction, United States v. O'Meara, 895 F.2d 1216 and that he is much less likely to (8th Cir.), cert denied, - be acquitted if he U.S. -, 111 remains S.Ct. 352, 112 L.Ed.2d 316 (1990); United silent, despite his right to do so and even in States v. Barbosa, 906 F.2d 1366, 1369 (9th the face of instructions to the Cir.), cert denied, - U.S. -, 111 S.Ct. jury to draw no adverse inference from his 394, 112 LEd2d 403 (1990); United States silence. Kassin, The American Jury: v. Keys 899 F.2d 983 (10th Cir.), cert. de- Handicapped in the Pursuit of Justice, 51 nied, - U.S. -, 111 S.CL 160, 112 Ohio St.LJ. 687, 700 (1990), citing Shaffer LEd.2d 125 (1990); United States v. Wal- & Case, On the Decision Not to Testify in lace, 904 F.2d 603, 604-605 (11th Cir.1990). One's Own Behalf: Effects of Withheld Evidence, Defendant's Sexual Preferences, and Juror Dogmatism on Juridic Decisions, B. 42 J. Personality & Soc. Psychology 335, Our sense of justice requires us to dis- 344 (1982); Note, The Influence of the De- agree. We of course have no desire to fendant's Plea on Judicial Determination of condone or encourage perjury. On the oth- Sentence, 66 Yale L.J. 204, 212 n. 36 (1956). er hand, we fear that this enhancement will See Lakeside v. Oregon, 435 U.S. 333, 340 become the commonplace punishment for a n. 10, 98 S.Ct. 1091, 1095 n. 10, 55 L.Ed.2d convicted defendant who has had the au- 319 (1978) (adverse inference from silence dacity to deny the charges against him. "may be inevitable"). Moreover, the dilem- The government maintained at oral argu- ma does not arise solely when the defen- ment that every defendant who takes the dant is guilty; there are many reasons stand and is convicted should be given the unrelated to guilt that may militate against obstruction of justice enhancement. Cer- testifying. Chief among these is the prose- tainly, if the guidelines are to be applied cution's power to impeach the defendant's consistently, the government would be credibility with prior convictions under Fed. right. Nearly all testifying defendants tell R.Evid. 609. Carter v. Kentucky, 450 U.S. 3. Effective November 1. 1990. the substance of this provision, the defendants former Application testimony and Notes 2 and 3 were amalga- statements should be evaluated mated into new note 1: in a light most favorable to the defendant. This provision is not intended to punish a The primary purpose of the 1990 amendment defendant for the exercise of a constitutional was to add a new guideline governing "reckless right. A defendant's denial of guilt (other endangerment during flight." The than a denial of guilt under oath that consti. other tutes perjury), refusal to admit changes, including the one described above, guilt or pro- were vide information to a probation intended only for clarification. United officer, or States Sentencing refusal to enter a plea of guilty is not a basis Commission, Guidelines Man- for application of this provision. In applying ual. Appendix C. amendment 347 (Nov.1990). 184 944 FEDERAL REPORTER, 2d SERIES 288, 300 n. 15, 101 S.CL 1112, 1119 n. 15, 67 sidering a defendant's untruthfulness for LEd.2d 241 (1981); Wilson v. United the purpose of illuminating his need for States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 rehabilitation and the society's need for L.Ed. 650 (1893); Bradley, Griffin v. Cali- protection." 438 U.S. at 53, 98 S.Ct. at fornia: Still Viable After All These Years, 2617. 79 Mich.L.Rev. 1290, 1295 n. 25.1 We cannot help but note that an innocent defen- The Court was speaking during the long dant with prior convictions must weigh the period of our judicial history when district jury's likelihood of drawing one impermissi- courts enjoyed broad discretion in imposing ble inference (guilt by silence) against an- any sentence within statutory limits. It other (guilt by criminal propensity) in decid- found that the very uncertainty of a defen- ing whether to testify. With an automatic dant's supposedly untrue trial testimony § 3C1.1 enhancement added to the ante, being considered at sentencing was a de- the defendant may not think testifying fense against Grayson's constitutional at- worth the risk.s tack: Nothing we say today requires a sentenc- C. ing judge to enhance, in some wooden or Several of our fellow circuits have relied reflex fashion, the sentences of all defen- upon United States v. Grayson, 438 U.S. dants whose testimony is deemed false. 41, 98 S.Ct 2610, 57 L.Ed.2d 582 (1978), a Rather, we are reaffirming the authority preguidelines case, as controlling and per- of a sentencing judge to evaluate careful- mitting this enhancement. Some have ex- ly a defendant's testimony on the stand, plicitly stated that the guidelines have not determine-with a consciousness of the altered the analysis. E.g., Barbosa, 906 frailty of human judgment-whether F.2d at 1369; United States v. Beaulieu, that testimony contained willful and ma- 900 F.2d 1537 (10th Cir.), cert. denied, - terial falsehoods, and, if so, assess in U.S. -, 110 S.Ct. 3252, 111 LEd.2d 762 light of all the other knowledge gained (1990). We believe that a close look at about the defendant the meaning of that Grayson's rationale reveals that the guide- conduct with respect to his prospects for lines have removed important underpin- rehabilitation and restoration to a useful nings of the Court's analysis. place in society. Awareness of such a The most basic difference in Grayson is process realistically cannot be deemed to the stated justification for enhancing sen- affect the decision of an accused but tence. The guidelines deem a denial of unconvicted defendant to testify truthful- guilt on the stand "obstruction of justice." ly in his own behalf. There is no such rationale in Grayson. Grayson rejected an argument that due Grayson, 438 U.S. at 55, 98 S.Ct. at 2618. process prohibits consideration at sentenc- The guidelines supply precisely the "wood- ing of the defendant's untruthfulness, been or reflex" enhancement disclaimed by cause it amounts to punishment for perjury the Court A defendant who stands trial without indictment and trial for perjury. has already probably passed up an opportu- The Court acknowledged that punishment nity, through a negotiated plea, for a lesser for perjury to save the government the charge and sentence. At trial, he must time and expense of prosecution would be choose between remaining silent, with a "impermissible," but refused to prohibit heavy risk of conviction, and testifying on the "otherwise perissible practice of con- pain of facing an enhanced sentence. At

4. Bradley cites statistics from Kalvin & Zeisel. 5. For example, the enhancement increased Dun- The American Jury 146 (1966), that defendants nigan's guidelines range from 41-51 to 51-63 without prior records are 37% more likely to months. At the highest offense levels, the in- testify than those with previous convictions. Id. crease is more drastic, from 292-365 months to 360-life. U.S. v. DUNNIGAN 185 Cite as 944 F.2d 178 (4thCir. 1991) every turn, he is encouraged to forfeit his Nearly twenty years ago, in announcing rights, and is subjected to increased punish- this circuit's rule permitting, as Grayson ment for refusing to do so. When deciding later did, consideration of a defendant's to testify, he is not simply "aware" of a perjury in setting an indeterminate sen- "process" that might take his untruthful- tence, Judge Butzner cautioned us to re- ness into account, he is (and ought to be member these frailties. advised by his counsel) aware that the very [S]entencing judges should not indiscriin- fact of his testifying will be used against inately treat as a perjurer every convict- him if he is convicted. ed defendant who has testified in his own We are not satisfied that there are defense. Witnesses induced by sordid enough safeguards in place to prevent this motives or fear have been known to fa- enhancement from unfairly coercing defen- bricate accusations with such guile that dants, guilty or innocent, into remaining even conscientious triers of fact have silent at trial. Other circuits have re- been misled. Moreover, some essential viewed the district court's finding of un- elements of proof of criminal conduct, truthfulness under a "clearly erroneous" such as knowledge, intent, malice, and standard. Batista-Polanco, 927 F.2d at premeditation are sometimes so subjec- 22; Matos, 907 F.2d at 276; Wallace, 904 tive that testimony about them cannot be F.2d at 605; Beaulieu, 900 F.2d at 1540; readily categorized as true or false. O'Meara, 895 F.2d at 1220. Of course, in Judges must constantly bear in mind light of the jury's verdict of guilt, the dis- that neither they nor jurors are infallible. trict court's finding will never be "clearly A verdict of guilty means only that guilt erroneous" where the verdict is sustaina- has been proved beyond a reasonable ble; if the verdict cannot be supported, the doubt, not that the defendant has lied in sentencing finding will of course be moot maintaining his innocence. review of these enhancements would Our United States v. Moore, 484 F.2d 1284, therefore be an empty ritual. 1287-1288 (4th Cir.1973). We are similarly unimpressed with the The rigidity of the guidelines makes the courts to guidelines' admonition to district § 3C1.1 enhancement for a disbelieved de- view the defendants testimony "in a light nial of guilt under oath an intolerable bur- most favorable to the defendant" What- den upon the defendant's right to testify in ever light is held to it, a defendant's testi- his own behalf. Consequently, though we rejected in mony that has been apparently affirm Dunnigan's conviction, we remand material respects by a jury will almost al- for resentencing without the enhancement ways compel a finding of untruthfulness. for obstruction of justice. If the district court does not so find, the "clearly erroneous" standard of review CONVIC7ON AFFIRMED; SEN- may actually be tested, but, of course, on TENCE VACATED AND REMANDED. the governments appeal.

D. ARNnsyM We who have been schooled and im- mersed in our system of law are perhaps too quick to make the jury an infallible icon and a witness' oath a sacred rite; we ignore the human infirmities that flaw both. In short, our love of our system easily produces a chauvinistic faith in its perfec- tion. STATE v. IMLAY Mont 979 Cie as 813 P.2d 79 (Mont. 1991) that such endorsements do not impose pri- that if USF & G had not made that mis- mary liability as a matter of law on the take, its policy definitions would be orga- insurer of the licensed carrier under whose nized in a manner similar to Canal's policy, permit a vehicle is in use at the time of an and it would not be liable. Canal should accident Truck Ins. Exchange v. Trans- not be faulted for USF & G's mistake in port Indemnity Co. (1979), 180 Mont 419, underwriting. 430, 591 P.2d 188, 194. Furthermore, as [81 This Court has the power to reverse noted above, the intent of the parties is the district court's grant of summary judg- controlled by the clear, explicit and unam- ment and order it to enter summary judg- biguous language of the contract in this ment in favor of the other party as a mat- case. ter of law only when it is clear that all the (7] Finally, USF & G urges this Court facts bearing on the issues are before this to consider the difference in the respective Court. Hereford v. Hereford (1979), 183 premiums paid by Bunday to Canal ($30,- Mont. 104, 110, 598 P.2d 600, 603; citing 180.00) and USF & G ($1,890.00) to insure Swecker v. Dorn (1979), 181 Mont. 436, the different aspects of Bunday's business 441, 593 P.2d 1055, 1058-9; 6 Moore's Fed- as evidence that the parties intended for eral Practice 1 56.12, p. 56-337. There are this type of accident to be covered by Ca- no genuine issues of material fact in this nal's policy rather than USF & G's. The case. We conclude that the trailers were District Court noted that not "owned automobiles" within the cover- The pertinent part of the applicable age of Canal's policy and direct that judg- USF & G policy is Part II, "Business ment be entered in favor of Canal. The Autos." Part II, Letter C, states that order of the District Court is trailers with a load capacity of two thou- REVERSED. Summary Judgment is or- sand (2,000) pounds or less, designed to dered in favor of Canal. travel on public roads, are covered autos. This language would exclude a semi-trail- TURNAGE, Ci., and HARRISON, er ... as was involved in the North case. GRAY, HUNT and WEBER, JJ., concur. Unfortunately for USF & G, it made an underwriting error on the declaration page of its policy, thereby extending cov- erage to "any auto" rather than business automobiles specifically described on the attachment to the policy. A fair reading of the two policies clearly reflects that USF & G was not insuring Bunday's over-the-road hauling oper- STATE of Montana, Plaintiff ation, but that Canal was. and Respondent, The size of the premium may be a factor v. considered "in construing doubtful clauses Donald Glenn IMLAY, Defendant in a policy." 2 Couch on Insurance 2d, and Appellant f 15.52 (1984); see also Pan American World Airways v. Aetna Casualty & No. 90-493. Sarety (2d Cir.1974), 505 F.2d 989, 1001, at Supreme Court of Montana. A. 10. Here, the clause is not "doubtful," ambiguous, or uncertain, and we need not Submitted on Briefs March 28, 1991. look beyond the language of the contract Decided June 18, 1991. Purthermore, USF & G is arguing that it Rehearing Denied July 23, 1991. should not be held liable due to a technical Olistake in underwriting when the contracts taken together indicate that Canal was in- Defendant was convicted in the Eighth suring the liability at issue here. We note Judicial District Court, Cascade County, 980 Mont 813 PACIFIC REPORTER, 2d SERIES

Joel G. Roth, J., of sexual assault, and he term. The defendant appeals from the Dis. appealed revocation of suspended sentence. trict Court's order revoking his suspended The Supreme Court, Trieweiler, J., held sentence. We reverse the order of the that criminal defendant cannot, as condi- District Court. tion of suspended sentence, be compelled to On appeal, the defendant raises admit that he is guilty of crime of which he several issues. We find the following issue, has been accused and convicted. as restated by this Court, to be contyolling- Vacated and remanded. Can a criminal defendant, as a condition of a suspended sentence, be compelled to 1. Criminal Law e-982.5(2) admit that he is .guilty of the crime of Criminal defendant cannot, as condi- which he has been accused and convicted? tion of suspended sentence, be compelled to admit that he is guilty of crime of which he FACTUAL BACKGROUND has been accused and convicted; overruling On May 9, 1989, the State of Montana State v. Donnelly, 244 Mont. 371, 798 P.2d was granted leave to file an Information 89. charging the defendant with three counts of sexual 2. Criminal Law e982.9(1) assault, a felony. On September 5, 1989, that Information was Sexual assault defendant's suspended amended so that the acts complained of were sentence, conditioned upon his completion combined into one count The basis for the Informa- of sexual therapy program, could not be tion was the allegation revoked where basis for his failure to com- that on April 11, 1989, the defendant fondled the vaginal plete program was his refusal to admit area of a seven-year-old girl while she guilt. was present at his Great Falls grocery store. The Information was based on statements Billy B. Miller, Miller & Cook, Great made by the girl to her teacher after she Falls, for defendant and appellant arrived at school several hours late. Marc Racicot, Atty. Gen., Elizabeth L This case went to trial on September 11, Griffing, Asst. Atty. Gen., Helena, Patrick 1989, and the jury returned its verdict on L. Paul, Cascade County Atty, Kim September 13, 1989, finding the defendant Schulke, Chief Deputy County Atty., Great guilty of the crime charged. Falls, for plaintiff and respondent. Prior to sentencing, the usual pre-sentence investigation was conducted, includ- TRIEWEILER, Justice. ing a psychological evaluation of the defen- Following a jury trial, the defendant, dant. As a result of that investigation, the Donald Glenn Imlay, was convicted in Dis- District Court found that the defendant trict Court of sexual assault, a felony, in was a 56-year-old widower who had raised violation of § 45-6-502, MCA. Based on four adult children and had.an exteniv that conviction, he was sentenced by the history of full-time employment. He had District Court to five years in the Montana no prior criminal record, nor was there a State Prison. However, all but 35 days of prior history of any complaints of similar that sentence were suspended, and the de- conduct by the defendant. fendant was placed on formal probation, The psychologist who examined the de- under certain conditions, including the con- fendant, as part of the pretrial investiga- dition that he enroll in and complete a tion, concluded that he was suffering from sexual therapy program. When the defen- post-traumatic stress syndrome and was a dant enrolled in, but was unable to com- a severely depressed state of mind- 0* plete the sexual therapy program, his sus- recommended that the defendant not- b pended sentence was revoked and he was incarcerated, but that he be involved in s ordered imprisoned at the Montana State mental health therapeutic program w Prison for the remainder of his five-year psychiatric work and counseling. STATE v. IMLAY Mont 981 Cite as813 P.2d 979 (MoL 1991) Based upon its pre-sentence investiga- 1990. At that hearing, the defendant's pro- tion, the District Court found that the de- bation officer, and the counselor to whom fendant was not a dangerous person, that he had been referred for sexual therapy, his offense was an isolated incident, and testified. The defendant also testified on that it would not be repeated in the future. his own behalf. The court also found that the defendant The defendant testified that at that time was suffering from medical problems, and he was living with his mother in Absarokee - that incarceration in the State Prison was where he had moved following trial be- not an appropriate penalty. cause he no longer had a business, a job, or The defendant's sentencing hearing was any income. On that same held on October 17, 1989. He had interviewed for and sought work Court sentenced the de- date, the District as an electrician, and as a custodian, but in the Montana State fendant to five years was unable to satisfy the physical require- Prison. However, execution of the sen- ments for either job. He suffered from tence was suspended, except for the 35 blood pressure and degenerative joint days he had already served in the Cascade high County Jail. He was placed on formal disease. supervised probation under the rules and When unable to find employment, the regulations of the Adult Probation and Pa- defendant had applied for vocational reha- role Bureau and was ordered to enroll in a bilitation through the State Department of sexual therapy program at his own ex- Social and Rehabilitation Services. After pense, and to continue in that program an independent medical examination, he until it was no longer deemed necessary by had apparently qualified for those services his therapist The specific sentence provi- and was being retrained by SRS to do sion regarding sexual therapy was as fol- leather work which he was performing at lows: his mother's home. He had sold some of The defendant is to immediately enroll in the work and had orders for more items a sexual therapy program at his own which he had been unable to complete. expense and continue said program until He testified that in order to comply with his therapist deems further counseling the court's order regarding enrollment in a and therapy unnecessary. The Court sex offender program he contacted his pro- would recommend that the defendant ob- bation officer, who referred him to Mike tain his therapy at the sexual offender Sullivan, a counselor in Billings, Montana. treatment program located in Helena, He scheduled and attended a number of Montana. counseling sessions, but was finally ad- As conditions of his suspended sentence, vised that he did not qualify for Sullivan's the defendant was also ordered to pay any treatment program because he would not counseling costs incurred by the victim and admit that he was guilty of the crime of prohibited from being around children un- which he had been charged and convicted. less another adult was present He then talked to Ron Silvers, the director On June 8, 1990, the County Attorney of the sexual offender program in Helena, petitioned the District Court for revocation and was told that he would not be admitted of the defendant's suspended sentence for to that program either. two reasons: (1) the State contended that Michael Sullivan testified that he is a the defendant was not gainfully employed; licensed clinical social worker practicing in and (2) the State alleged that the defendant Billings, and was director of a program had not completed the sexual treatment known as South Central Treatment Associ- Program which was a condition of his sus- ates. He has a bachelor's degree in psy- pended sentence. chology, a master's degree in associate The defendant denied violating the terms work, and is a licensed social worker in the of his suspended sentence, and an eviden- State of Montana. At the time of the de- tiary hearing was conducted on August 31, fendant's hearing, Sullivan had been.in-. 982 Mont 813 PACIFIC REPORTER, 2d SERIES volved in the treatment of sexual offenders and was actively pursuing vocational reha. for approximately five years. bilitation. The defendant first saw Mr. Sullivan, by However, regarding the State's second referral from his probation officer, on No- basis for its petition to revoke the suspend. vember 20, 1989, and saw him on five sub- ed sentence, the court made the following sequent occasions over the next six conclusion: months. Each appointment was scheduled The Court concludes that the defendant by the defendant. The defendant attended has violated the condition of his suspend- every scheduled appointment. He was deed sentence by not enrolling (not being scribed by Sullivan as pleasant, friendly, amenable to -treatment and hence, not never angry or abusive, and always punctu- acceptable into an out-patient treatment al. program) in a sex offender treatment program Sullivan performed a series of tests on and said violation was proven the defendant There were no indications by a preponderance of the evidence. in those tests that the defendant was capa- ... Because the only viable alternative is ble of violent conduct However, from an inpatient treatment program, the those tests and his contacts with the defen- Court concludes that the defendant's sus- dant, Sullivan formed the impression that pended sentence must be revoked and the defendant was not amenable to outpa- the defendant ordered to serve FIVE (5) tient sexual offender treatment because he years in the Montana State Prison with did not admit that he committed a sexual credit for 35 days. offense. Sullivan testified that the defendant's denial made it impossible for him to It is recommended to the Warden of the treat him in their program. He also testi- Prison that the defendant not be eligible fied that there was no other outpatient for parole until he has completed the sexual therapy program in the State of sexual offender treatment program at Montana which would treat a sexual of- the Prison. However, it is also recom- fender who denied that he was guilty of mended that upon completion of the pro- sexual misconduct. gram, the defendant be considered for He confirmed that after the defendant parole. The defendant is designated as a had been rejected from his program, the non-dangerous offender for parole eligi- defendant had sought treatment from Ron bility purposes. Silvers at the sexual therapy program in The defendant, through his attorney, ob- Helena, and that he (Sullivan) had been jected at the time that the sentence was contacted by Silvers to determine why the revoked on the grounds that the District defendant had been unacceptable for the Court was conditioning suspension of the Billings program. defendant's sentence on an admission of Sullivan recommended a form of inpa- guilt, and cited authority to the District tient treatment, which is more structured Court that it could not force the defendant and continuous, because in such a program to plead guilty. The issue previously stat- it is more difficult for a patient to maintain ed, therefore, was properly preserved for defensive postures, such as denial. He tes- appeal. tified that the only inpatient treatment program in the State of Montana was the one DISCUSSION at the Montana State Prison. While the District Court's order revoding Based upon the foregoing evidence, the the defendant's suspended sentence a District Court found that the State's com- predicated upon the defendant's failure to plaint about the defendant's lack of em- enroll in a sex offender treatment program, ployment was not well founded. The court it is clear that the defendant's incarceration found that the defendant was making a at the Montana State Prison is directlY bona fide effort to maintain employment related to his refusal to admit that he com. STATE' v. IMLAY Mont. 983 Cite as 813 P.2d 979 (Mont. 1991) mitted a crime. The defendant made every It must be remembered that, at the time other effort possible to enroll in and com- of his allocution, Thomas had not been plete a sex offender treatment program. finally and irrevocably adjudged guilty. He sought a referral from his probation Still open to him were the processes of officer. He followed up that referral by motion for new trial (including the oppor- scheduling not one, but six consecutive ap- tunity to discover new evidence), appeal, pointments. He attended every appoint- petition for certiorari, and collateral at- ment in a timely fashion, and other than tack. Indeed, appeal is now an integral admitting his guilt, cooperated in every part of the trial system for finally adjudi- manner possible while at those appoint- cating the guilt or innocence of a defen- ments. When he was rejected by the coun- dant selor with whom he had spent six months, The two "ifs" which the district court he tried to find another sex offender treat- presented to Thomas placed him in a ment program that would admit and treat terrible dilemma. If he chose the first him, and was rejected a second time. Fi- "if," he would elect to forego all of the nally, he was advised that there was no above-noted post-conviction remedies and outpatient sex offender treatment program to confess to the crime of perjury, how- in Montana that would accept him. ever remote his prosecution for perjury It is clear that the only thing the defen- might seem. Moreover, he would aban- dant has failed to do is admit that he com- don the right guaranteed by the Fifth Amendment mitted the crime for which he was convict- to choose not to be a witness against himself, not only ed. Whether or not punishment can be as to the crime of which he had been convicted, augmented because of a defendants refus- but also as to the crime of perjury. al to admit guilt, even after he has been His choice of the second "if" was made after the warn- convicted, is a question on which the feder- ing that the sentence al courts are not in agreement. Further- to be imposed would be for a longer term than would more, this Court has made contradictory be imposed if he confessed. From the statements in answer to that same issue. record, it is clear that an ultimatum of a The majority of federal courts of appeal type which we cannot ignore or approve which have addressed this issue follow the confronted Thomas. Truly, the district decision of the United States Court of Ap- court put Thomas "between the devil and peals for the Fifth Circuit in Thomas v. the deep blue sea." United States, 368 F.2d 941 (5th Cir.1966). In that case, prior to imposing sentence, Thomas suffered the consequences for the district court judge advised the defen- choosing the second "if" ... in the form dant that if he confessed his guilt the court of a longer prison term. When Thomas would take his confession into considera- received harsher punishment than the tion in determining the length of his sen- court would have decreed had he waived tence, but that if he persisted in his denial his Fifth Amendment rights, he paid a of guilt, that denial would also be taken judicially imposed penalty for exercising into account. Because the defendant chose his constitutionally guaranteed rights. to continue denying guilt, he was sentenced Upon this ground alone, we think that his to the maximum term permitted by law. sentence is "subject to collateral attack," That sentence was vacated by the Fifth and have little doubt as to the authority Circuit, based on its conclusion that the and duty of the district court to vacate alternatives presented to the defendant vio- the sentence. lated his Fifth Amendment right not to be Thomas, 368 F.2d at 945-46. In accord a witness against himself. The Court of with Thomas, are Scott v. United States, Appeals acknowledged that the defendant 419 F.2d 264 (D.C.Cir.1969); United States had already been convicted, but pointed v. Laca, 499 F.2d 922 (5th Cir.1974); Unit- out ed States v. Wright 533 F.2d 214 (5th 984 Mont 813 PACIFIC REPORTER, 2d SERIES Cir.1976). In Poteet v. Fauver, 517 F.2d tence. It is almost axiomatic that th& 393 (3d Cir.1975), the United States Court first step toward rehabilitation of an of of Appeals for the Third Circuit concluded fender is the offender's recognition that augmentation of a post-conviction sen- he tha was at fault. In the present state of tence based on refusal to admit guilt violat- the criminal law, there is no doubt that ed the due process clause of the Fourteenth punishment is still a consideration in the of the United States Constitu- Amendment imposition of sentence, especially wher tion. non-violent or economic crimes are i6. In the past, this Court has given appar- volved. But to the extent that rehabilita. ent approval to the Thomas rule. Al- tion is the objective, no fault can be though the case of In the Matter of Jones, found of the judge who takes into conzid. 176 Mont 412, 578 P.2d 1150 (1978), was eration the extent of a defendant's reha. decided on other grounds, we cited with bilitation at the time of sentence. approval the following rule of law in that case: Gollaher chose to insist upon his imo. While the sentencing judge may take into cence. The judge, bound by the jury's account his belief that the defendant was verdict and apparently also being firuly not candid with the court this is to be convinced by the evidence that Gollaher distinguished from the rule that a sen- was guilty, proceeded accordingly. He tence may not be augmented because a had before him a man unwilling to take defendant refuses to confess or invokes the first step toward rehabilitation and his privilege against self-incrimination. he imposed sentence accordingly. Gol- Fox v. State, (1977 Alaska), 569 P.2d laher's Fifth Amendment rights were not 1335, 1338. See: United States v. Gar- infringed. cia, (3rd Cir., 1976), 544 F.2d 681, 685; Gollaher, 419 F.2d at 530-31. United States v. Acosta, (5th Cir., 1975), Our 509 F.2d 539, cert. denied, 423 U.S. 891, prior decision in State v. Donnelly, 244 Mont. 371, 798 P.2d 96 S.CL 188, 46 LEd.2d 122 (1975); 89 (1990), appears to be in accord with United States v. Rogers, (5th Cir., 1974), the Ninth Circuit's decision in Gollaher. 504 F.2d 1079, 1085, cert. denied, 422 In Donnelly, we were asked to decide whether a defendant, . U.S. 1042, 95 S.Ct 2655, 45 L.Ed.2d 693 who was already imprisoned at (1975). the Mon- tana State Prison, was denied his right to The only Federal Circuit which appears avoid self-incrimination when he was de- to have arrived at a contrary conclusion is nied parole until he completed a sex offend- the Ninth Circuit. er course at the Prison. Interestingly, the In Gollaher v. United States, 419 F.2d evidence in that case was that in order to 520 (9th Cir.1969), the Ninth Circuit Court be accepted into the inpatient sexual of-. of Appeals considered the Thomas decision fender program at the Prison, that defen- and chose not to follow it. In that case, dant also had to admit that he committed the defendant was also given a stiffer sen- the crime of which he was convicted. tence because of his refusal to admit guilt (Therefore, if the trial court's objective in after he was convicted, and challenged that this case was to obtain treatment for Don- sentence as a violation of his Constitutional ald Imlay, imprisonment does not appear to privilege against self-incrimination. How- be the solution.) At any rate, we found ever, the Ninth Circuit, on balance, placed that denying probation under those circum- greater importance on the criminal justice stances did not violate the defendant's priv- system's objective of rehabilitation, than on ilege against self-incrimination. Our deci- a defendant's continued right to deny guilt. sion appears to have been based on the In rejecting the Thomas rationale, the following conclusion: . Ninth Circuit has stated: Here, defendant's decision to remaih si- This case presents a dilemma which ev- lent is a tactical one, not a compelled one. ery trial judge faces at the time of sen- Defense counsel argues that, in reality, OWENS v. GENERA L MOTORS CORP. Mont. 985 Cite as 813 P.2d 985 (Mont. 1991) defendant's testimony is in fact com- guilt in this case, the defendant would have pelled since it is a prerequisite for parole. to abandon his right guaranteed by the It is possible the defendant may be pa- Fifth Amendment, not only as to the crime roled sooner if he admits to incest than if for which he has been convicted, but also to he remains silent. However, defendant the crime of perjury. He testified in his may remain silent if he so chooses, and own defense during his trial and denied still possibly be paroled at some future committing the offense with which he was date based on good behavior. charged. Furthermore, failure to admit to incest (1, 2] Under these circumstances, and will not result in certain penalty to defen- absent any grant of immunity, we believe dant, it will only result to preserve his that the better reasoned decisions are those current ineligible parole status. In this decisions which protect the defendant's case, the district court ordered that the constitutional right against self-incrimina- defendant was ineligible for parole until tion, and which prohibit augmenting a de- the satisfaction of a condition subse- fendant's sentence because he refuses to quent. The condition subsequent is par- confess to a crime or invokes his privilege tially satisfied by defendant's successful against self-incrimination. To the extent completion of the sexual offender pro- that our decision in Donnelly is inconsist- gram at Montana State Prison. Failure ent with this opinion, that part of the Don- to satisfy this condition subsequent, i.e., nelly decision is overruled. failure to satisfactorily complete the sex The sentence of the District Court is offender program, will not result in a vacated and this case remanded to the Dis- penalty, but will merely result in defen- trict Court for further proceedings not in- dant's continued ineligibility for parole. consistent with this opinion. Donnelly, 244 Montat 382, 798 P.2d at 96. Without debating the merits of the fore- TURNAGE, CJ., and HARRISON, going conclusion from Donnelly, it is clear HUNT and McDONOUGH, JJ., concur. that in this case the defendant is being

subjected to a penalty that he would not MEYUMNSMM otherwise be subjected to if he would simply admit his guilt. That penalty is that he serve time in the Montana State Prison. Even though the defendant has already been convicted of the crime that he denies, our system still provides, as noted in the Thomas OWENS, Plaintiff Thomas decision, for opportunities to chal- and Appellant, lenge that conviction. For example, the V. defendant still had the right to challenge his conviction, based on newly discovered GENERAL MOTORS CORPORATION, evidence, or by collateral attack. -These a corporation, Defendant and are important rights guaranteed to every Respondent. defendant under our criminal justice sys- No. 90-530. tem, but would be rendered meaningless if the defendant could be compelled to admit Supreme Court of Montana. guilt as a condition to his continued free- Submitted on Briefs May 10, 1991. dom. Furthermore, while such a defendant Decided June 25, 1991. would be foreclosed from invoking the protection of such procedures to establish his innocence, the reliability of an admission of Buyer of pickup truck sued manufac- guilt under such circumstances would be turer, alleging breach of express warranty highly suspect. In addition, by admitting and breach of implied warranty of mer- 284 944 FEDERAL REPORTER, 2d SERIES "If the account of the evidence is plau- absolutely no admitted evidence of some sible in light of the record viewed in its other valid reason for the defendant's acts. entirety, (the reviewing) court may not In effect, then, this decision compounds reverse it even though convinced that error with error and in the process turns had it been sitting as the trier of fact it disparate treatment analysis on its head. would have weighed the evidence differ- In one breath he admonishes the company ently. Where there are two permissible for its lack of candor, but, in the next views of the evidence, the factfinder's implies that, despite the incredible nature choice between them cannot be clearly of the explanation, the termination was erroneous. 450 U.S. at 574 (105 S.Ct. at somehow legitimate. 1511-12]. (emphasis supplied). See Judge Guy, in his concurrence, is trou- also, Wrenn v. Gould, 808 F.2d 493 (6th bled with these impermissible factual find. Cir.1987); Brown, supra." ings. I, instead, am distressed by the Second, it is indeed ironic that, like the choice of a judicial tongue-lashing as the Magistrate, Judge Boggs finds the compa- sole remedy for this aggrieved plaintiff. ny's excuse for Ms. Galbraith's termination Once she established the pretextual pre- "unworthy of belief" which necessarily es- sumption, Northern Telecom had the com- tablishes the prima facie case of unlawful plete burden to demonstrate a factually discrimination. US. Postal Service Bd. of legitimate reason for Ms. Galbraith's termi- Gov. v. Aikens, 460 U.S. 711, 103 S.Ct. nation, not merely articulate a "sham" ex- 1478, 75 L.Ed.2d 403 (1983). As the Ai- cuse. This is the essence of the Title VII kens court explained "the plaintiff ... may pretext analysis. Because Northern Tele- succeed ... either by directly persuading com clearly refused to do this, I would the court that a discriminatory reason more. uphold the Magistrate that the defendant likely motivated the employer or indirectly should be held fully liable under the reme- by showing that the employer's proffered dial provisions of Title VII. Accordingly, I explanation is unworthy of credence." Id. dissent. at 716, 103 S.Ct. at 1482 (citing Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.) The plaintiff here chose the second method of proof and the magistrate concluded in his findings that the defendants committed an unlawful termination. Following the Bur- dine analysis, the defendant here had the burden of production to "clearly set forth, Robert Allen WILLIAMS, Jr., through the introduction of admissible evi- Petitioner-Appellee, dence, the reasons for the plaintiffs" termination. Burdine at 255, 101 S.Ct. at V. 1094-95. Moreover, as the Court noted, Pamela WITHROW, Respondent- "an articulation not admitted as evidence Appellant. will not suffice." Id. at n. 9. In light of No. 90-2289. the defendant's insistence that the termination was based on their so-called "volun- United States Court of Appeals, tary termination" policy deemed by the Sixth Circuit. Magistrate and this court as "unworthy of Argued May 16, 1991. belief," there is simply no legal justification to rule in their favor. Decided Sept. 11, 1991. Yet, instead of affording the plaintiff her rightful remedy under the law, Judge Inmate petitioned for writ of habeas Boggs supposes some other legitimate rea- corpus. The United States District Court son existed for the termination, one un- for the Eastern District of Michigan, Bar- related to racial discrimination. There is bara K. Hackett, J., granted petition. WILLIAMS v. WITHROW 285 Cite as 944 FId 284 (6th Cir. 1991) Warden appealed. The Court of Appeals, reach of criminal law or (2) new "water- Nathaniel R. Jones, Circuit Judge, held shed" rules of criminal procedure neces- that: (1) under totality of circumstances, sary to criminal proceeding's fundamental fairness. petitioner's statements during interroga- should have been tion were coerced and 6. Courts *-100(1) (2) admission of those state- suppressed; Fulminante decision of the United ments was not harmless error- and (3) cus- States Supreme Court, holding that admis- todial interrogation was appropriate issue sion of involuntary confession is subject to for collateral review on petition for writ of harmless error analysis, applied retroac- habeas corpus. tively in habeas corpus case; prior to that Affirmed. decision, use of involuntary confession to support conviction was due process viola- 1. Habeas Corpus Q842, 846 tion regardless of whether evidence apart Court of Appeals renders de novo re- from confession existed, so decision altered view of habeas corpus proceeding in dis- court's understanding of bedrock procedur- trict court to determine whether petitioner al elements. U.S.C.A. Const.Amends. 5, received a fundamentally fair trial; how- 14. give complete deference ever, court must 7. Habeas Corpus 0490(3) to state court's findings of fact and render clearly erroneous review to district court's Admission of involuntary confession factual findings. 28 U.S.C.A. § 2254(d). was harmful error warranting habeas relief; no lawful confessions had been admit- 2. Criminal Law e412.1(2) ted and the other trial evidence against Individual suspected of being involved petitioner, while substantial, was not mas- in murders was in custody at time of pre- sive or overwhelming. Miranda warning round of questioning at police station, during which police officers 8. Habeas Corpus e=490(3) repeatedly conveyed to him the seriousness Custodial interrogation is appropriate of his situation and gave him the choice of issue for collateral review on petition for cooperating with them or going to jail. writ of habeas corpus. U.S.C.A. Const.Amend. 5. 3. Criminal Law 'e412.2(5) Daniel P. O'Neil, Traverse City, Mich. Inculpatory statements following Mi- (argued and briefed), for petitioner-appel- randa warning may be admissible even lee. though they follow on heels of unwarned statements if they are determined to be Robert Allen Williams, pro se. uncoerced and voluntary. U.S.C.A. Const. Timothy A. Baughman, John D. O'Hair, Amend. 5. Pros. Atty., Jeffrey W. Caminsky (argued and briefed), Detroit, Mich., Becky M. La- 4. Criminal Law e-412.1(2) miman, Asst. Atty. Gen., Suzanne L Wil- Inculpatory statements made by sus- helm, Office of Atty. Gen., Habeas Div., pect during custodial interrogation were Lansing, Mich., for respondent-appellant. coerced, under totality of the circumstances; defendant had been threatened Before JONES and RYAN, Circuit with imprisonment if he did not cooperate Judges, and PECK, Senior Circuit Judge. and promised leniency if he did. U.S.C.A. ConstAmend. 5. NATHANIEL R. JONES, Circuit Judge. 5. Courts c100(1) Appellant Pamela Withrow, the warden In general, new rules are only applica- of the Michigan Reformatory, appeals from ble to habeas corpus cases in two narrowly an order of the district court granting the defined instances: (1) new rule that places habeas corpus petition of Robert Allen entire category of primary conduct beyond Williams, Jr. As we discern no error in the 286 944 FEDERAL REPORTER, 2d SERIES district court's grant of Williams' habeas interested in finding the shooter. Williams corpus petition, we affirm. again denied being present at the scene of the crime. Sgt. Early later testified that I the April 10 interrogation proceeded for "approximately 35 to 40 minutes" before On April 6, 1985, police officers in Romu- Williams was read his Miranda rights. lus, Michigan discovered two males shot to Williams was questioned a second time on death in a parked car. Responding to a April 10, 1985, and again on April 12. Mi- rumor, Detective Sgt. David Early of the randa warnings were given prior to the Romulus Police Department went to second session on April 10, and before the Williams' house to question him on April April 12 session, and Williams indicated his 10, 1985. At the house, Williams was understanding of his rights. searched but not handcuffed, and was asked to accompany Sgt. Early to the police At the second interrogation on April 10, station. When Williams arrived at the po- the following exchange took place between lice station, he was questioned by Sgt. Ear- Williams, Sgt. Early, and Sgt. Ondejko: ly and his partner, Sgt Ondejko. Williams Ondejko: Do you wish to change your was not given Miranda warnings before story? this first round of questioning. After Williams: What difference is it going to Williams denied having any information make? about the murders, Early told Williams Ondejko: It's gonna make a lot of differ- that "the main thing on this is we want the ence to you. shooter. We're not real interested in who Early: I told you. If you told the truth was there or who was along for the ride or anything else. We get the shooter on this Williams: I've been telling you the truth. and we're gonna pretty well be content." Early: Oh, you've been making up fairy Williams continued to deny being present tales ever since you've been in here. at the scene, prompting Early to state: You're giving us, like he says, parts of went down. You know everything that the truth, parts of what you want us to You just don't want to talk about it. believe, and part of what really hap- What it's gonna amount to is you can pened. talk about it now and give us the truth If I tell you everything that and we're gonna check it out and see if it Williams: I'm gonna walk outta here, fits or else we're simply gonna charge happened, you and lock you up and you can just tell huh? a it to a defense attorney and let him try Ondejko: Someday you may stand and prove differently. We're not play- chance of walking. ing. We've been chasing around on this Early: I'll make you a deal. You tell us too fuckin' long. everything that happened and you tell us I confirm it on a polygraph Sgt. Early then gave Williams the choice of the truth and the truth. Yeah, answering his questions or being formally that you're telling us charged. Sgt. Early also told Williams that you walk. he had "big problems", that the police were Following this exchange, Williams admit- close to issuing an arrest warrant for him, ted driving Mark Sennett, identified as the and that the police knew of witnesses who shooter, to the scene of the murders follow- would testify against Williams. At this ing behind the victims' car. He also admit- point, Williams admitted that he had pro- ted that he turned his car around at the vided the murder weapon because he want- request of Sennett, that he heard shots and ed to sell the gun, and that the murderer muzzle flashes, and that he drove Sennett had called him after the crime and told him away from the scene and helped dispose of he had discarded the gun and his clothes in Sennett's clothing and the murder weapon. the river. Questioning continued, with the Williams denied knowing that Sennett was police again insisting that they were only going to kill the two victims. WILLIAMS v. wITHRow 287 Cite as944 FId 284 (6th Clr. 1991) Officer Early then elaborated on the deal tained" under Michigan caselaw because with Williams: the delay in actually arresting Williams Early: You're worried now about us was "used as a tool to extract the state- turning this around on you and charging ments". On September 7, 1988, the Court you too. We've said that basically we of Appeals of Michigan affirmed Williams' want you as a witness. Right? conviction. People v. Williams, 171 Mich. Williams: Yes. App. 234, 429 N.W.2d 649 (1989). The Early: Alright, I'm gonna tell you right Michigan Supreme Court denied leave to now, at the start of the recording, if we appeal, and the U.S. Supreme Court denied use this recording against you, it's got to certiorari. 493 U.S. 956, 110 S.Ct. 369, 107 be in its entirety. We can't edit it or cut L.Ed.2d 355 (1989). On January 31, 1990, it. We told you if you are a witness to Williams filed a petition for a writ of habe- this and if you are telling the truth, and as corpus in the U.S. District Court for the if you are willing to testify, then we are Eastern District of Michigan. not going to charge you as a co-defen- The district court first found that dant. That's what we told you, right? Williams was in custody as of the moment Williams: Yes. on April 10 when Sgt. Early gave him a Early: Alright. We're still gonna go by choice between answering questions or be- that agreement. And I don't. (Abrupt ing charged. As a result, Williams should stop.] You've been around, but if, have been given his Miranda warnings at whether you're up on the law, if a police that point. Instead, however, the police officer makes an agreement like that it's continued their questioning without giving got to be honored. You can go to court Miranda warnings, and Williams made in- and say we made that agreement and we culpatory statements. Williams made fur- backed down on it and we can't present ther inculpatory statements after Miranda these tapes and use anything else we've warnings were finally given some forty got. So it's an agreement we have to minutes into the interrogation. stick to by law. I can't promise you The district court evaluated the admissi- anything and then turn around and back bility of these post-Miranda statements out of it and use it against you. under Oregon v. Elstad, 470 U.S. 298, 105 Williams: O.K. S.Ct. 1285, 84 L.Ed.2d 222 (1985). Elstad Early: Right now you're a witness to the held that there is no presumption of coer- crime. But we want the truth. If you cion when a suspect makes incriminating start lying to us and you start playing statements following earlier, unwarned games, yeah, we're gonna charge you. statements. In that situation, "the rele- A witness doesn't do us any good unless vant inquiry is whether; in fact, the second he tells the truth. We're not trying to statement was also voluntarily made. As hang anybody with any made up testimo- in any such inquiry, the finder of fact must ny or anything but the truth. After examine the surrounding circumstances you're done with this, we still gonna put and the entire course of police conduct with you on a polygraph and you're gonna respect to the suspect in evaluating the have to show us you're telling the truth. voluntariness of his statements." Elstad, So that's the deal. You're telling the 470 U.S. at 318, 105 S.Ct. at 1297. truth and you're not being charged. Focusing on whether Williams' admis- That fair enough? sions were induced by a promise of lenien- Williams: Yeah. cy, the district court concluded that: On October 29, 1985, Williams was con- In the context of this uncounseled in- victed of two counts of first-degree murder terrogation, following a session where and two counts of felony firearm charges police had obtained unwarned admissions in the Circuit Court of Wayne County. The and repeatedly suggested that they were state trial court excluded the statements only interested in finding out who the from April 11 and 12 as "improperly ob- actual shooter was, this Court finds that 288 944 FEDERAL REPORTER, 2d SERIES the statement that petitioner would days to "take steps to provide" Williams "walk" if he told the truth constituted a with a new trial. This appeal followed. promise of leniency sufficient to overcome petitioner's will and render his ad- II missions involuntary. As Justice White (1] This court renders de novo review indicated in Brady [v. United States, 397 of a habeas corpus proceeding in the dis- U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 trict court to determine whether the peti- (1970) J, "[i]n such circumstances, even a tioner received a fundamentally fair trial. mild promise of leniency (may be] suffi- See Lundy v. Campbell, 888 F.2d 467, 469- cient to bar the confession, not because 70 (6th Cir.1989), cert. denied, - U.S. the promise was an illegal act as such, -, 110 S.Ct. 2212, 109 LEd.2d 538 but because defendants at such times are (1990). However, this court must give too sensitive to inducement and the possi- complete deference to the state court's ble impact on them too great to ignore findings of fact, and render clearly errone- and too difficult to assess." Brady, su- ous review to the district court's factual pra, at 754, 90 S.Ct. at 1472. findings. Id The district court declared that Williams' (21 The principal issue in this appeal is inculpatory statements on April 10 ob- whether the record discloses a fifth amend- tained after the Miranda warnings were ment violation sufficient to warrant habeas given violated the dictates of Oregon v. relief.' Withrow argues that there was no Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 violation of Williams' fifth amendment L.Ed.2d 222 (1985) because of the coercion. rights because Williams was not in custody See also Bram v. United States, 168 U.S. until he made an inciiminating statement, 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 at which point he was Mirandaized. This (1897) (to be admissible, a confession must argument is supported by the state trial be "free and voluntary: that is, must not court and the Michigan Court of Appeals, be extracted by any sort of threats or which both found that Williams "was not in violence, nor obtained by any direct or im- custody until he was read his rights." plied promises, however slight, nor by the Williams, 429 N.W.2d at 651. Thus, con- exertion of any improper influence."). tends Withrow, because the federal habeas statute "requires the federal courts to The district court also considered the show a high measure of deference to the statements under harmless error analysis. factfindings made by the state courts", United States v. Wolf 879 F.2d 1320, 1323 Sumner v. Mata, 455 U.S. 591, 598, 102 (6th Cir.1989) ("Appellate courts, including S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982) (per our own, have applied the harmless error curiam), the district court exceeded its analysis to [otherwise voluntary] confes- mandate by not explaining in sufficient de- sions admitted in violation of the related tail why "the record in the State court rules of Edwards [v. Arizona, 451 U.S. proceeding, considered as a whole, does not 477, 101 S.Ct. 1880, 68 LEd.2d 378 (1981) ] fairly support such factual determination." and Miranda[v. Arizona, 384 U.S. 436, 86 28 U.S.C. § 2254(d) (1988). S.Ct. 1602, 16 LEd.2d 694 (1966) ]."). The The district court did-recognize its obli- district court found that sufficient evidence gation to defer to the state court's factual to convict independent of the confession did findings. With respect to the crucial "in not exist; therefore, admission of the con- custody" determination, however, the dis- fession was not harmless error. trict court recognized that "the overall On October 29, 1990, the district court question of whether petitioner was in cus- granted Williams' petition for a writ of tody is a mixed question of fact and law habeas corpus and gave Michigan ninety which requires an independent federal de- 1. The government's brief argued that the federal the government conceded that this position was grounds for relief were never fairly presented to without merit. the state court for review. At oral argument, WILLIAMS v. WITHROW 289 Cite as944 F.2d 284 (6th Cir. 1991) termination." Even if custody is a factual ly offered Williams a conditional incentive determination entitled to a presumption of to tell the truth, and the fact that Williams correctness, however, the district court did not fulfill his part of the bargain by found that "this particular state court find- telling the truth should not lead to the ing is so completely devoid of support in suppression of his statement. The police, the record that the presumption is over- asserts Withrow, intended to live up to come. their part of the bargain. Officer Early We find that the district court correctly testified that "I told Mr. Williams that if he was a witness, and he had no active part in decided that Williams was "in custody" when Sgt. Early told him "you can talk the crime, and that could be confirmed by about it now and give us the truth and polygraph, that he would not be charged." we're gonna check it out and see if it fits (4] The district court relied on the "the or else we're simply gonna charge you surrounding circumstances and the entire and lock you up [.]" (Emphasis added.) course of police conduct with respect to the Two police officers came to Williams' suspect in evaluating the voluntariness of house, searched him, put him in an un- his statements." Elstad, 470 U.S. at 318, marked police car, and transported him the 105 S.Ct. at 1298. We believe that an police station. The officers repeatedly con- evaluation of "the entire course of police veyed to Williams the seriousness of his conduct" in this case establishes that situation, and threatened him with arrest. Williams' statements were not voluntary. Williams was given the choice of cooperat- His statements were conditioned on his being with the police or going to jail. The lief that he would be released if he talked. district judge, who listened to an audio tape The officers' promises of leniency were in- of the interrogation, found the officers' tended to induce Williams' admissions. tone to be "severe and accusatory." Clear- We recognize that the success of a crimi- ly, a reasonable person would not feel free nal investigation often to leave; therefore, Williams hinges on obtaining was in custo- information from uncooperative individu- dy. Miranda v. Arizona, 384 U.S. 436, als. Indeed, niany otherwise unobtainable 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 convictions are secured through extending (1966) ("[C]ustodial interrogation ... [is] immunity in exchange for a defendant's questioning initiated by law enforcement testimony against more culpable co-defen- officers after a person has been taken into dants. The necessity *of foregoing the custody or otherwise deprived of his free- prosecution of an informant in order to dom of action in any significant way."). convict the ringleaders is an altogether dif- (31 Williams' inculpatory statements af- ferent situation from the deliberate induce- ter he was given Miranda warnings could ment of inculpatory statements through il- be admissible, even though the statements lusory promises of leniency. Even in situa- followed on the heels of unwarned state- tions where immunity is not envisaged, we ments, if the statements are determined to have no doubt that effective interrogation be uncoerced and voluntary. Oregon v. techniques require, to some extent, a car- Elsta4 470 U.S. 298, 309, 105 S.Ct. 1285, rot-and-stick approach to eliciting informa- 1293, 84 LEd.2d 222 (1985). "'[Tlhe ulti- tion from an uncooperative suspect. How- mate issue of "voluntariness" is a legal ever, when promises of leniency, coupled question requiring independent federal de- with threats of immediate imprisonment, termination."' Arizona v. -Fulminante, have a coercive effect on a suspect, we are - U.S. -, 111 S.Ct. 1246, 1252, 113 obliged to inquire whether "the 'coercion' LEd.2d 302 (1991) (citations omitted). in question was sufficient to overbear the Withrow contends that the district court will of the accused." McCall v. Dutton, incorrectly concluded that Williams' state- 863 F.2d 454, 459 (6th Cir.), cert. denied, Tnents were involuntary under Oregon v. 490 U.S. 1020, 109 S.Ct. 1744, 104 LEd.2d Elstad because there was no overreaching 181 (1989) (three factors of voluntariness or coercion by the police. The police mere- test are (1) objectively coercive police activi- 290 944 FEDERAL REPORTER, 2d SERIES ty which (2) was sufficient to overbear the other evidence against Williams-without will of the accused, and (3) petitioner's will the April 10 statements-was insufficient was overborne as a result of the coercion). to support a conviction. We find that, under the totality of the The district court considered the applica. of this case, Williams' state- circumstances bility of United States v. Wolf 879 F.2d interrogation ments during the April 10 1320 (6th Cir.1989), which held that "the were coerced in violation of the fifth erroneous admission of an otherwise volun. amendment and should therefore be sup- tary.confession obtained in violation of the pressed. prophylactic rules of Miranda and its progeny can be harmless." Id. at 1323 (cita- III tions omitted). As Wolf was not a habeas The district court granted the writ of corpus case, the district court was not re- habeas corpus based on its conclusion that quired to address the harmless error issue. the incriminating statements on April 10- Under the U.S. Supreme Court's decision in 12 should be excluded as involuntary. Arizona v. Fulminante,- U.S. -, 111 However, the state trial court had already S.Ct. 1246, 113 L.Ed.2d 302 (1991), how- excluded the statements made on April 11 ever, harmless error analysis is applicable and 12 in September 1985, one month be- to the instant case. Fulminante held that fore Williams' bench trial. The trial judge the admission of an involuntary confession based the exclusion on Michigan law: is subject to harmless error analysis. Id., Defendant was lodged in jail, and was 111 S.Ct. at 1265. questioned twice more in addition to un- dergoing a polygraph examination before [5,61 It is unclear, however, whether he was arraigned on the afternoon of Fulminante should be applied retroac- April 12. Statements obtained during an tively to this case. In general, new rules unnecessary delay in arraignment, where are only applicable to habeas corpus cases the delay is used as a tool to extract the in two narrowly defined instances: (1) if statements, are not admissible. People the new rule places an entire category of v. Mallory, 421 Mich. 229, 241; 365 primary conduct beyond the reach of the NW2d 673 (1985); People v. Blade4 421 criminal law- or (2) new "watershed" rules Mich. 39, 70; 365 NW2d 56 (1985). of criminal procedure necessary to a criminal proceeding's fundamental fairness. No facts have been offered to explain the Sawyer v. Smith, - U.S. -, 110 S.Ct. delay in this case. The Court finds that 2822, 2331, 111 LEd.2d 193 (1990). Before the delay was for the purpose of extract- Fulminante,the use of an involuntary con- ing inculpatory statements. The state- fession to support a conviction was a due ments made by Defendant on April 11 process violation whether or not evidence and April 12 were improperly obtained existed. It and must be excluded. apart from the confession seems clear, then, that Fulminante "al- The opinion of the district court inexplic- ter(s] our understanding of the bedrock ably does not mention that the April 11 and procedural elements", 110 S.CL at 2831, 12 statements had already been excluded therefore harmless error analysis must be by the state trial court. Withrow argues applied. that Judge Hackett was "completely unaware" that the April 11 and 12 statements (7] The district court applied harmless had already been excluded and were never error analysis to the involuntary confes- introduced into evidence at the bench trial. sion, and concluded that: Although the statements made on April 11- There were no lawful confessions admit- 12 were not admitted against Williams at ted in this case. Moreover, the other trial, our conclusion that the inculpatory evidence against petitioner at trial, while statements made on April 10 should have substantial, was not massive or over- been excluded still mandates a new trial. whelming. No witness was able to iden- Furthermore, we are convinced that the tify petitioner as being present at the MARTUCCI v. JOHNSON . 291 CIte as 944 F.2d 291 (6thCr. 1991) scene of the murders. Petitioner was linked by testimony to the murder weap- Len MARTUCCI, Plaintiff-Appellant, on and to the victims. If, arguendo, V. harmless error analysis did apply to the admission of petitioner's inculpatory Avery JOHNSON, et al., Defendants- statements, this court could not find that Appellees. was admission of those statements No. 89-6574. "harmless error beyond a reasonable doubt." Chapman v. California, 386 United States Court of Appeals, U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d Sixth Circuit 705 (1967). Argued May 2, 1991. We are in agreement with the district court that the admission of the April 10 Decided Sept. 12, 1991. statements was not harmless error.

IV Former pretrial detainee filed § 1983 action alleging various constitutional viola- (8] Finally, Withrow argues 'that custo- tions by sheriffs department officials in dial interrogation is not an appropriate is- concert with State Bureau of Investigation sue for collateral review on petition for a agent. The United States District Court, writ of habeas corpus. Withrow cites to Eastern District of Tennessee, James H. Stone v. Powell, 428 U.S. 465, 96 S.Ct. Jarvis, J., entered summary judgment 3037, 49 L.Ed.2d 1067 (1976), which held against detainee, and he appealed. The that collateral relief in a habeas proceeding Court of Appeals, Krupansky, Circuit was not available for defendants raising Judge, held that: (1) detainee's placement fourth amendment search and seizure in segregated confinement did not consti- claims, when those defendants have had a tute "punishment," and, thus, did not, in full and fair opportunity to raise those and of itself, violate due process; (2) lack claims in state court. Both in his brief and of hearing at which detainee could contest during oral argument, counsel for Withrow reasons for his confinement did not violate evinced considerable hostility toward the his procedural due process rights; (3) de- entire habeas system of review, but provid- tainee was not denied access to courts; and ed no support for extending Stone v. Pow- (4) jailers' decision to withhold detainee's ell to fifth amendment claims. Neither the incoming and outgoing mail did not violate Supreme Court nor any Courts of Appeal detainee's First Amendment rights. has ever indicated a willingness to do so. Moreover, it is extremely unlikely the Su- Affirmed. preme Court will do so anytime soon, given its statement in Funlminante that "'the ultimate issue of "voluntariness" is a legal 1. Civil Rights 0135 question requiring independent federal de- Court sitting in judgment of constitu- termination.'" 111 S.Ct. at 1252 (citation tionality of jail officials' conduct must omitted). guard against temptation to second-guess jailers by concluding that they had less V restrictive way of solving problem at hand. 42 U.S.C.A. § 1983. The district court's grant of Williams' petition for a writ of habeas corpus is 2. Constitutional Law W272(2) AFFIRMED. Prisons el3(5) Conditions imposed on pretrial detainee during his segregated confinement were reasonably related to legitimate governmental objectives of aborting his escape HERRERA v. COLLINS 1029 Cite as954 F.d 1029 (5thcfr. 1992) the judg- it must be assumed that at the time the tax delay, or defraud, we AFFIRM gfunds were received, Perez was aware ment of the district court. ta the BUE was attempting to collect money from him." When asked how he divided the tax refund, Perez testified, that he "gave [his X1YNUMBSTEM wife] her share." He later acknowledged that the distribution amounted to a 50/50 split. In response to a question inquiring why he had divided the check 50/50, he testified: "because she's on this check here, August and Cheryl Perez, III, so Leonel Torres HERRERA, she's entitled to half of that" When asked Petitioner-Appellee, whether he consulted anyone regarding the V. ownership of the tax refunds, he stated that he could not recall. James A. COLLLNS, Director, Texas De- partment of Criminal Justice, Institu- The finding of intent to hinder, delay, or tional Division, Respondent-Appellant defraud a creditor is a factual one which must be reviewed under the clear error No. 92-2114. standard. In re Olivier, 819 F.2d 550, 552 (5th Cir.1987); Matter of Reed, 700 F.2d United States Court of Appeals, 986, 992 (5th Cir.1983). Although "evi- Fifth Circuit. dence of actual intent to defraud creditors Feb. 18, 1992. is required to support a finding sufficient to deny discharge," Reed, 700 F.2d at 991, "(a]ctual intent may be inferred from the actions of the debtor and may be proven by Petitioner, whose conviction of capital circumstantial evidence." Matter of Chas- murder and sentence of death had been tant, 873 F.2d 89, 91 (5th Cir.1989). The affirmed by the Texas Court of Criminal evidence in this case, although circumstan- Appeals, 682 S.W.2d 313, and who had been tial, supports the bankruptcy court's find- denied habeas corpus relief by the Texas Court of Criminal Appeals, 819 S.W.2d 528, ing of actual intent to hinder, delay, or defraud. sought federal habeas corpus relief. Deni- al of first petition was affirmed by the Although, faced with the same evidence, Court of Appeals, 904 F.2d 944, and peti- we might have arrived at a different con- tioner filed second petition. The United clusion, we cannot say that the bankruptcy States District Court for the Southern Dis- court's finding is clearly erroneous. See trict of Texas, Ricardo N. Hinojosa, J., Norris v. Hartmarc Specialty Stores, granted stay of execution pending eviden- Inc., 913 F.2d 253, 255 (5th Cir.1990). Con- tiary hearing, and director of the Texas sequently, we must-affirm the bankruptcy Department of Criminal Justice appealed. court's denial of a discharge under The Court of Appeals, W. Eugene Davis, § 727(a)(2)(A). Since the outcome of this Circuit Judge, held that (1) petition, as Proceeding would not be affected by our amplified by exhibits, was not sufficient to discussion of the satisfactory explanation require hearing on Brady claim that state claim, we decline to reach that issue. withheld information that petitioner was innocent, and (2) petitioner's claim of actual innocence of capital murder was not a IV. CONCLUSION ground upon which habeas relief could be Since we find no clear error in the bank- granted. ruptcy court's finding of intent to hinder, Stay of execution vacated. 1030 954 FEDERAL REPORTER, 2d SERIES 1. Habeas Corpus -745 6. Habeas Corpus -494

Habeas corpus petition, as amplified Claims of newly discovered evid 4 by exhibits, was not sufficient to require casting doubt on petitioner's guilt, are hearing on Brady claim that state knew cognizable in federal habeas corpus. that petitioner was innocent of charged ceeding. capital murder but withheld information 7. Criminal Law 6-998(1) from petitioner before his trial; petitioner Right to relied on affidavits and posttrial newspaper collaterally attack a conic., is not a clippings to suggest that prosecutor knew right guaranteed by Constituk that petitioner's brother, rather than peti- 8. Criminal Law 6938(1), 998(10) tioner, committed murder, but nothing sug- Under Texas law, claim of innomm gested that prosecutor could have known based on newly discovered evidence i. that at time of trial. ground for new trial, but will not suppy collateral review. 2. Criminal Law e=700(3) Exculpatory evidence indicating that 9. Habeas Corpus e*818, 896 brother of convicted defendant rather than Claims asserted by petitioner in second defendant, committed murder was available petition for habeas corpus challenging cap. equally to defense and prosecution, and tal murder conviction were barred for thus, prosecution's alleged failure to sup- abuse of writ, and thus, no substantl ply such information prior to trial was not grounds existed upon which relief might b, Brady violation; defendant's brother alleg- granted so as to warrant certificate of edly committed murder in car which defen- probable cause. dant normally drove, so that information was likely more available to defense than it Dan Morales, Atty. Gen., Joan C. Barton. was to prosecution. Asst. Atty. Gen., Austin, Tex., for respoo. 3. Habeas Corpus Qm462 dent-appellant. Petitioner's claim of actual innocence Mark Evan Olive, Tallahassee, Fla.. for of murder of which he had been convicted, petitioner-appellee. supported by several affidavits, including Appeal from the United States District affidavit from petitioner's nephew, indicat- Court for the Southern District of Texas. ing that petitioner's brother had committed that murder did not allege a ground upon Before KING, DAVIS and JONES, which habeas relief could be granted. Circuit Judges. 4. Criminal Law e1219 W. EUGENE DAVIS, Circuit Judge: Although in nonabuse of habeas cor- James A. Collins, Director, Texas Depart- pus context, movant in capital case seeking ment of Criminal Justice, appeals the dis- stay of execution need not always show trict court's order staying the execution of probability of success on merits, he must Leonel Torres Herrera. Herrera's execo- present substantial case on merits when tion is scheduled for February 19, 1992. serious legal question is involved and show between midnight and dawn. that balance of equities weighs heavily in favor of granting stay; however, balance of equities cannot weigh in favor of stay in I. absence of substantial legal claims upon The district court's thorough memore which relief may be granted. dum opinion and order of February 17 out lines in detail the critical steps which hae 5. Habeas Corpus 0462 been taken in this case. In summary. Claim of "actual innocence" is not Herrera was sentenced to death on Jan* ground upon which habeas corpus relief ary 21, 1982, following his conviction for can be granted. capital murder. The Texas Court of Crim" 0'

HERRERA v. COLLINS 1031 Cite as 954 F.2d I 029 (Sth Cir. 1992) .Appeals affirmed petitioner's conviction On December 17, 1991, Herrera filed a I death sentence, Herrera v. State, 682 petition for writ of certiorari in the United %v.2d 313 (Tex.Crim.App.1984) (en banc). States Supreme Court, which is still pend- he United States Supreme Court denied ing. Herrera filed the instant application rtiorari, Herrera v. Texas, 471 U.S. 1131, for federal writ of habeas corpus in the : s.Ct. 2665, 86 L.Ed.2d 282 (1985). Peti- district court on February 16, 1992, raising *oner filed a petition for writ of habeas five claims for relief.' The claims that wvrpus in the 197th District Court of Cam- Herrera asserts in his present petition are eron County, Texas. The convicting court not duplicative of the claims he asserted in rcommended that relief be denied, and, in his first petition. August 1985, the Texas Court of Criminal Appeals denied relief. Ex parte Herrera, The district court denied all relief on Application # 12,848-02-Texas Criminal claims 2, 3, 4 and 5 on grounds of writ Appeals 1985. Thereafter, on August 7, abuse. The court initially denied petition- 1985, Herrera filed his first federal petition er's Brady claim, (which was included as for habeas corpus, and the district court part of his first claim) on grounds that stayed Herrera's scheduled execution. In insufficient facts were presented to sup- October 1989, the federal district court report this claim. On reconsideration, the jected Herrera's habeas petition and dis- district court, however, concluded that suf- solved the stay of execution. Herrera ap- ficient facts were presented to require a court. On pealed that judgment to this hearing, which it scheduled for February June 25, 1990, we affirmed the district 21, 1992. The district court granted a stay court judgment and vacated Herrera's stay of execution pending of execution, Herrera -v. Collins, 904 F.2d that hearing. The 944 (5th Cir.1990). The Supreme Court de- district court also granted petitioner's mo- nied certiorari, Herrerav. Collins, - U.S. tion for a stay of execution to permit peti- -, 111 S.Ct. 307, 112 L.Ed.2d 260 (1990). tioner to further litigate in state court the second Herrera filed his second application for prong of his first claim-actual in- state writ of habeas corpus on December nocence. Alternatively, the court granted 12, 1990. On January 14, 1991, the trial a stay pending rendition of an opinion by court withdrew an earlier order, entered this court in May v. Collins, No. 91-6273. findings of fact and conclusions of law, and The district court also signed a Rule 54(b) denied habeas relief. The Court of Crimi- judgment dismissing claims 2-5 and issued nal Appeals denied relief on May 29, 1991, a certificate of probable cause as to these on the basis of the trial court's finding and claims. Collins filed an appeal from the conclusions and vacated a stay of execu- district court's order granting a stay of tion, Ex parte Herrera, 819 S.W.2d 528 execution and moved this court for an or- (Tex.Crim.App.1991). der vacating the stay of execution.

. Herrera raises the following claims in the in- and at least one juror noticed; in addition, stant habeas petition: and contrary to his sworn statements during 1. The State's failure to reveal exculpatory voir dire, this officer knew one of the victims. evidence resulted in the conviction and sen- These facts reveal that Petitioner's conviction tence of an innocent person, in violation of and death sentence occurred in violation of the Sixth, Eighth, and Fourteenth Amend- his Sixth. Eighth, and Fourteenth Amendment ments. Petitioner is innocent, another person rights. has confessed to the crime, and the Petition- 4. Petitioner's sentencers were precluded er's execution would violate the Eighth and from considering evidence which counseled Fourteenth Amendments. in favor of a sentence less than death, in 2. Petitioner was tried and sentenced to violation of Petitioner's Sixth, Eighth, and death for the murder of two police officers by a jury whose members included a police offi- Fourteenth Amendment rights. cer detective in an office that investigated the 5. The trial judge wrongfully refused to al- case, in violation of the Petitioner's Sixth, low Petitioner to speak at all during Petition- Eighth, and Fourteenth Amendment rights. er's trial and capital sentencing proceeding, 3. During trial, recesses, and juror delibera- thereby violating Petitioner's federal Constitu- tions, juror-police officer Bressler was armed, tional rights. 1032 954 FEDERAL REPORTER, 2d SERIES

II. have ever been involved in any wrong,, For reasons stated by the district court, ing. The affidavit of Raul Herrera, Jr states it correctly rejected petitioner's claims 2, 3, that he told a police officer that father his 4 and 5 because the petitioner has clearly committed the murders rather than abused the writ as to those claims. See Petitioner, but he does not say when or to McCleskey v. Zant, - U.S. -, 111 S.Ct. whom this information was conveve. 1454, 113 L.Ed.2d 517 (1991). Consequently, Herrera has not pled With [1] On the Brady prong of petitioner's sufficient particularity the elements of his first claim, we agree with the district Brady claim to require a hearing. Id. court's initial conclusion that petitioner nei- [2] ther proffered evidence nor alleged particu- Moreover, the exculpatory evidence on which larized facts that demonstrate Herrera relies is a claim that that the someone state withheld any favorable evidence from else, and not he, committed the offenses Herrera before his trial. See Brady v. of which he was convicted. The Maryland, 373 U.S. 83, 83 S.Ct. person at whom he points the finger is his 1194, 10 brother, L.Ed.2d 215 (1963). As stated above, the Raul, now deceased. Particularly in light district court, on reconsideration, concluded of the fact that his brother alleg. that the pleadings and affidavits were suf- edly committed the offense in the car which Petitioner ficient to require a hearing on one issue: normally drove, this information clearly whether the state knew that petitioner was was not only available to the de. innocent of the murder of Officer Carrisa- fense, but was likely more available to the lez and withheld that information from defense than it was to the prosecution. Herrera before his trial. We are not per- "Brady does not oblige the government to suaded that Herrera's petition, as amplified provide the defendants with evidence that by his exhibits, states specific facts that they could obtain from other sources by "point to a 'real possibility of constitutional exercising reasonable diligence." United error.'" Blackledge v. Allison, 431 U.S. States v. McKenzie, 768 F.2d 602, 608 (5th 63, 75 n. 7, 97 S.Ct. 1621, 1630 n. 7, 52 Cir.1985) (citation omitted), cert. denied, L.Ed.2d 136 (1977). (quoting Advisory Com- 474 U.S. 1086, 106 S.Ct. 861, 88 L.Ed.2d 900 mittee Note to Rule 4, Rules Governing (1986). "When evidence is available equal. Habeas Corpus Cases, 28 U.S.C. (1977 ly to the defense and the prosecution, the Supp.), p. 337). defendants must bear the responsibility for their failure to diligently seek its dis- Herrera never identifies any specific evi- covery." Id., citing United States v. Mil- dence that he contends was withheld by the stead, 671 F.2d 950,. 953 (5th Cir.1982). prosecutor before trial. Instead, he relies Herrera's attempt to couch this claim in on affidavits and newspaper clippings to terms of a Brady violation therefore is suggest that the prosecutor knew that disingenuous. Raul Herrera, rather than Leonel Herrera, committed the murders. Nothing in any of (31 We therefore turn to the second is- the exhibits suggests, however, that the sue which the district court concluded re- prosecutor could have known of the infor- quired it to grant a stay of execution. As a mation contained within them at the time part of his first claim, Herrera contended of Herrera's trial. that he was actually innocent of Carrisa- The newspaper clippings upon which les's murder. Herrera filed a substantially Herrera relies make no reference at all to identical claim in the state habeas court the instant case and do not refer to police In support of his state habeas claim, Herr- corruption in connection with drug activity era attached two affidavits. First, he at- in South Texas prior to 1985-three years tached the affidavit of attorney Hector J. after Herrera's trial. Further, they con- Villareal, who had represented petitioner's tain nothing to suggest that anyone who brother, Raul Herrera, on a charge of at- testified at his trial or any officials in Cam- tempted murder. Villareal asserted that eron County, where Herrera was convicted, Raul Herrera confessed to him that Raul, HERRERA v. COLLINS 1033 Cite as 954 F2d 1029 (5th Cir. 1992) --at Petitioner, murdered both Rucker and tion should be granted only when there are .rrisalez. Herrera also submitted the af- 'substantial grounds upon which relief may j.,it3 of Franco Palacios, one of his broth- be granted.'" Delo v. Stokes, 495 U.S. .r Raul's cell mates. Palacios stated that 320, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325, F.Aul confessed to him that Raul had mur- 328 (1990) (quoting Barefoot v. Estelle, 463 .ered Rucker and Carrisalez. U.S. 880, 895, 103 S.Ct. 3383, 3396, 77 When Herrera filed his federal habeas L.Ed.2d 1090 (1983)). This court has held that a court should consider four factors in tiion, he attached two additional affida- ,is. The most significant affidavit he at- deciding whether to grant a stay of execu- uached is the affidavit of his nephew, Raul tion: Herrera, Jr., the son of Raul Herrera. (1) whether the movant has made a Raul Herrera, Jr. stated that he was with showing of likelihood of success on the his father on the date of the murders and merits, (2) whether the movant has made that he saw his father kill both Rucker and a showing of irreparable injury if the Carrisalez. According to Raul Herrera, stay is not granted, (3) whether the Jr., the petitioner was not present when the granting of the stay would substantially murders occurred. Raul, Jr. also stated harm the other parties, and (4) whether that he told a police officer what occurred the granting of the stay would serve the but the officer told him never to repeat it. public interest Raul, Jr. did not suggest when this conver- Byrne v. Roemer, 847 F.2d 1130, 1133 (5th sation occurred. Raul, Jr. stated that no Cir.1988) (quoting Streetman v. Lynaugh, attorney representing the petitioner had 835 F.2d 1521, 1524 (5th Cir.1988)). Al- ever asked him about the events until re- though in a non-abuse context the movant cently. His affidavit is dated about two in a capital case "'need not always show a weeks ago, January 29, 1992. Petitioner probability of success on the merits, he also included the affidavit of an old school- must present a substantial case on the mer- mate of the Herrera brothers, who related its when a serious legal question is in- that Raul, Sr. made a confession to him volved and show that the balance of the similar to the one attorney Villareal assert- equities [i.e., the other three factors] ed that Raul had made. weighs heavily in the favor of granting the In his federal habeas petition, Herrera stay.'" Celestine v. Butler, 823 F.2d 74, asserted that he was entitled to a hearing 77 (5th Cir.) (quoting O'Bryan v. McKas- on his actual innocence claim, particularly kle, 729 F.2d 991, 993 (5th Cir.1984)), cert. in light of Raul Herrera, Jr.'s affidavit. denied, 483 U.S. 1036, 108 S.Ct. 6, 97 The district court concluded that petitioner L.Ed.2d 796 (1987). However, the Supreme should have an opportunity to present the Court's recent decision in Delo v. Stokes, affidavit of the alleged eye witness, Raul makes it clear that, in a case involving a Herrera, Jr. The district court then grant- second or subsequent petition, the latter ed the petitioner's stay of execution and three factors cannot weigh in favor of a retained jurisdiction of the petitioner's "ac- stay in the absence of substantial legal tual innocence" claim until noon, February claims upon which relief may be granted. 21, 1992. The district court directed that it (5-7] Herrera's claim of "actual inno- would dismiss that claim without prejudice cence" presents no such substantial on February 21, 1992, provided claim petitioner for relief. The rule is well established that had filed a successive state habeas petition claims of newly discovered evidence, cast- so that he could present the additional evidence to that court. ing doubt on the petitioner's guilt, are not cognizable in federal habeas corpus. See (4] We begin our analysis of the propri- Townsend v. Sain, 372 U.S. ety of the district 293, 317, 83 court's stay with the S.Ct. 745, 9 L.Ed.2d 770 (1963). Texas has recent admonition of the Supreme Court: adopted a similar rule. See Ex parte Bind- "A stay of execution pending disposition of er, 660 S.W.2d 103, a second 104-106 (Tex.Crim.App. or successive federal habeas peti- 1983) (en banc). Moreover, the right to 1034 954 FEDERAL REPORTER, 2d SERIES collaterally attack a conviction is not a that the district court found that right guaranteed by the Constitution. had made a substantial showing 3 Pennsylvania v. Finley, 481 U.S. 551, 107 denial of a federal right with res, . S.CL 1990, 1994, 95 L.Ed.2d 539 (1987). these claims. Barefoot v. Estelle, 4& U.S In Townsend, the Court held that a fed- 880, 103 S.Ct. 3383, 77 L.Ed.2d Ordinarily 1090 Il4 eral habeas court must grant an evidentia- a stay of execution accomrpar ry hearing on an allegation of newly discov- such a finding, and we are unce ered evidence only when the evidence whether the district court inadverte. "bearfs] upon the constitutionality of the failed to grant a stay on these clai., Because applicant's detention; the existence merely of the ambiguity of the grat 4 of newly discovered evidence relevant to CPC on claims 2-5 and the failure to 4 the guilt of a state prisoner is not a ground a stay, the press of time requires us t for relief on federal habeas corpus." 372 address the propriety of the district cour. U.S. at 317, 83 S.Ct. at 759. We have issuance of CPC. recognized the above statement as the For reasons stated Court's holding in at least two cases, Arm- by the district cour, we fully agree that claims 2, 3, 4, and stead v. Maggio, 720 F.2d 894, 896 (5th 5 ar barred because petitioner Cir.1983) (per curiam) and Boyd v. Puckett, abused the wr.* We find no substantial grounds upon which 905 F.2d 895, 896 (5th Cir.), cert, de- relief might be granted on these claims. nied, - U.S. -, 111 S.Ct. 526, 112 Accordingly, we vacate the certificate of L.Ed.2d 537 (1990). probable cause as improvidently granted. (8] Thus, once Herrera's Brady claim is See Cuevas v. Collins, 932 F.2d 1078, io2 rejected, Herrera's "actual innocence" (5th Cir.1991). claim does not allege a ground upon which habeas relief can be granted. Under Texas In sum, on claim 1, we conclude that law, a claim of innocence based on newly Herrera has failed to present a substantial ground upon discovered evidence is grounds for a new which relief might be granted. trial, but such a claim will not support See Delo v. Stokes, 495 U.S. 320, 110 S.CL 1880, 1881, 109 L.Ed.2d collateral review. See, e.g., Ex parte Bind- 325 (1990). As we er, 660 S.W.2d at 105-06. Herrera, there- stated above, the petitioner failed to allege sufficiently particularized facts fore, has presented no claim for collateral to entitle to relief on his Brady claim. relief under Texas law. Consequently, we petitioner innocence" claim standing can find no legal justification to permit him The "actual a claim upon which to present, in piecemeal fashion, additional alone does not state can be granted by either a affidavits to the state court. We conclude habeas relief federal habeas court or a Texas habeas that the district court erred in granting a find no legal justifics stay of execution for this purpose. court. We therefore tion to stay the execution to allow petition* May v. Collins relied upon as an alter- er to litigate further in state court. Ac- nate ground for a stay, is inapposite. The cordingly, we grant Collins's motion to va- question in May concerns whether a find- cate the stay of execution entered by the ing of fact by a state habeas court, based district court. upon affidavits alone, is entitled to the presumption of correctness. But the facts at issue in May implicated a constitutional defect in May's conviction. No such question is presented in this case. III. [9] The district court issued a certificate of probable cause (CPC) with respect to claims 2-5 although it rejected any relief on these claims. This certificate implies 992 D. C._ 592 ATLANTIC REPORTER, 2d SERIES

298, 306, 105 S.Ct. 1285, 1291, 84 L.Ed.2d quent concerns-the very right that ed. show "a suffi- 222 (1985) (prosecution may wards seeks to protect-should underrnir cient break in events to undermine the in- any irrebuttable presumption that a subs. ference that (a] confession was caused by quent waiver directed toward an entirely (a] Fourth Amendment violation"); Mi- unrelated crime is the product of contin'. randa v. Arizona, 384 U.S. 436, 496, 86 ing police coercion. I would so hold. S.CL 1602, 1639, 16 L.Ed.2d 694 (1966) (requirement of a break in the stream of events). KlUMlR systEm It is conceded that Minnick constitutes no bar to questioning about a crime occur- ring subsequent to the invocation of the right to counsel. Far short of that, a number of cases have recognized that where a suspect has been released from custody Terrence L INGRAM, Appellant, and subsequently again detained, even for the same crime, an invocation of the right V. to counsel during the original confinement UNITED STATES, Appellee. does not prevent the police from seeking a waiver of such a right upon the new con- No. 88-1345. finement. See, e.g., Dunkins v. Thigpen, District of Columbia Court of Appeals. 854 F.2d 394, 397 (11th Cir.1988), cert. denied, 489 U.S. 1059, 109 S.Ct 1329, 103 Argued Jan. 22, 1991. L.Ed.2d 597 (1989); United States v. Skin- Decided June 5, 1991. ner, 667 F.2d 1306, 1309 (9th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, As Amended June 21, 1991. 77 LEd.2d 1410 (1983).2 Similarly, I believe that the government is correct in its assertion that when a de- Defendant was convicted in the Superi- fendant has pled guilty to the charge which or Court, District of Columbia, Reggie B. prompted the invocation of the right to Walton, J., of armed robbery, and he ap- counsel, circumstances have so significant- pealed. The Court of Appeals, Ferren, J., ly changed that any coercive effect created held that (1) denial of severance was not by the original confinement must be abuse of discretion; (2) evidence supported deemed to have been dissipated, certainly conviction as accomplice; and (3) Govern- with respect to questioning about an entire- ment's alteration of its theory of aiding and ly separate and distinct crime. A suspect's abetting did not violate defendant's consti- concern about self-incrimination that may tutional rights. exist during pre-trial detention must be Affirmed. dramatically affected once, with the advice and assistance of counsel and subject to the elaborate protections provided by Rule 11, he has appeared in court and been convict- 1. Criminal Law e622 ed from his own mouth. Such an event When two defendants are charged entailing a knowing, voluntary and intelli- with jointly committing criminal offense, gent waiver of the Fifth Amendment right there is strong presumption that they will against self-incrimination and its conse- be tried together. Criminal Rule 8(b). 496, but that interpretation does not, of course, juvenile authorities. Nonetheless, the govern- speak for the full court. ment for purposes of this appeal assumes that the appellant was in continuous custody for 2. Here, for several months following his invoca- prophylactic rule. and tion of the right to counsel, appellant as a juve- purposes of the Edwards nile was apparently held not in any jail or I deal with the appeal on that basis. prison as such but rather was in the custody of CREECH v. ARAVE 873 Cle as947 F.2d 873 (9thCr. 1991) Trott, Circuit Judge, dissented and Thomas E. CREECH, Petitioner- filed opinion joined by Kozinski and T.G. Appellant, Nelson, Circuit Judges. V. AJ. ARAVE, Warden, Idaho State Peni. 1. Criminal Law e641.10(3) tentiary; Al Murphy, Director, Idaho Defendant was not unfairly deprived State Board of Corrections; Jim Jones, of assistance of counsel with regard to Attorney General, State of Idaho, Re- guilty plea, where defense counsel told de- spondents-Appellees. fendant that his advice was to not change No. 86-3983. plea to guilty and that counsel needed more time, and nevertheless, defendant informed United States Court of Appeals, court that he wished to proceed Ninth Circuit. and plead guilty. U.S.C.A. Const.Amend. 6. Argued and Submitted April 6, 1988. 2. Criminal Law C273(4) Submission Deferred Aug. 25, 1988. Defendant's statements during plea Resubmitted July 12, 1990. colloquy that he intended to kill victim and Decided March 27, 1991. that he took action to kill victim after victim was no longer threat to defendant es- As Amended on Denial of Rehearing tablished that defendant understood that and Rehearing En Banc Oct. 16, 1991. malice of forethought was element of first- degree murder charge so as to preclude After state prisoner's first-degree mur- invalidation of guilty plea on this ground. der conviction and death sentence was up- 3. Criminal Law e=1167(5) held on appeal, 105 Idaho 362, 670 P.2d 463, Defendant's ignorance of possible de- he petitioned for writ of habeas corpus. fense of "imperfect self-defense" was The United States District Court for the harmless beyond reasonable doubt with re- District of Idaho, Harold L. Ryan, Chief spect to defendant's guilty plea to first- Judge, denied petition. Petitioner appeal- degree murder, where it was inconceivable ed. The Court of Appeals, 928 F.2d 1481, if not merely improbable that defendant affirmed in part; reversed in part and re- would have gone to trial on defense of manded. On denial of rehearing en banc, imperfect self-defense or that, if he had the Court of Appeals, Cynthia Holcomb done so, he either would Hall, Circuit Judge, held have been acquit- that: (1)petitioner ted or, if convicted, would nevertheless was not denied effective assistance of coun- have been given shorter sel at time he sentence than he entered guilty plea; (2) peti- actually received. tioner failed to show that he was incompetent to plead guilty; (3) remand was re- 4. Criminal Law <-273(2) quired for state court to hold resentencing Defendant failed to show that he was hearing at which time defendant was enti- incompetent to plead guilty based on psy- tled to present any and all mitigating evi- chological evaluations so as to require dence existing at time of hearing; (4) Ida- guilty plea to be set aside. ho's limiting construction of utter dis- 5. Criminal Law e-662.40 regard aggravating circumstance was un- Defendant's right to confrontation was constitutionally vague; and (5) remand was not violated at sentencing hearing due to required so state court could balance re- defendant's inability to cross-examine maining constitutionally valid aggravating sources of information contained in presen- and mitigating factors before determining tence report, where defendant had opportu- whether defendant should be sentenced to death. nity to rebut, deny or explain information contained in report, other than through Affirmed in part; reversed in part and remanded. cross-examination. U.S.C.A. Const.Amend. 6. 874 947 FEDERAL REPORTER, 2d SERIES

6. Homicide 8-358(1) allowing jury to consider all relevant Defendant was entitled to present new gating evidence. I.C. § 19- 2515(c). mitigating evidence at resentencing hear- 12. ing about defendant's good behavior pend- Habeas Corpus 0864(1) ing review of death sentence which was Defendant had full and fair OPPOrtur vacated on appeal. ty to present relevant facts of his claims habeas corpus petition and was not entit 7. Homicide e357(5) to remand for evidentiary hearing on pe. State court was required to find specif- tion on such grounds, where defendart, ic intent to cause death of human being death sentence was affirmed it was r beyond reasonable doubt prior to applying until eight months later that defendant was aggravating circumstances that defendant ordered to make his final postconviction was under sentence for murder of first challenges. degree at time of actions and that defendant committed murder on fellow inmate 13. Habeas Corpus e747 while both were incarcerated at state cor- Evidentiary hearing was not required rectional institution. I.C. §§ 18-4003(c, e), on petitioner's habeas corpus claim that 19-2515(g)(7). state court did not issue written findings on his assertions that he was suicidal when 8. Homicide -351 he entered guilty plea and that his plea was . Idaho limiting construction upon ag- motivated by threats against his family gravating circumstance of exhibiting utter requiring plea to be invalidated, where it disregard for human life, which called for appeared from state court's denial of de- subjective determination of whether defen- fendant's motion to withdraw his plea that dant was cold-blooded pitiless killer, was state court implicitly rejected factual cir- unconstitutionally vague as applied to de- cumstances that defendant alleged invali- fendant, where court found defendant was dated his plea, and state Supreme Court, in initially justified in defending himself and affirming state trial court, ruled that de- that murder evidenced excessive violent fendant offered no evidence other than his rage. I.C. § 19-2515(g)(6, 7). own assertions to support either of his 9. Homicide *-357(4) arguments. State court was required, after rever- 14. Habeas Corpus e-689 sal of one statutory aggravating factor, to District court did not abuse its discre- balance remaining, constitutionally valid tion in denying defendant continuance in aggravating and mitigating factors in or- order to prepare for evidentiary hearing on der to determine whether defendant should habeas corpus petition with regard to be sentenced to death for murder. I.C. "medication issue," where defendant was § 19-2515(c); U.S.C.A. Const.Amends. 8, given one week's notice of nature and 14. scope of evidentiary hearing, and defen- 10. Jury 624 dant's own delinquency culminated on limit- Defendant had no constitutional right ed period of time for defendant to prepare to jury trial on existence of aggravating his case between deadline for briefing and circumstances which might result in imposi- hearing date. tion of death sentence for murder. U.S.C.A. ConstAmend. 6. Cliff Gardner, Fiedler & Gardner, San 11. Criminal Law w1206.1(2) Francisco, Cal., for petitioner-appellant. Idaho sentencing scheme was not in- Lynn E. Thomas, Sol. Gen. for the State valid because it mandated that court apply of Idaho, Boise, Idaho, for respondents* death penalty unless mitigating circum- appellees. stances outweighed aggravating circumstance; requirement of individualized sen- Appeal from the United States District tencing in capital cases was satisfied by Court for the District of Idaho. CREECH v. ARAVE 875 Cite as 947 P.2d 873 (9thCir. 1991) Before BEEZER, HALL and WIGGINS, ted for remuneration. Since we will not presume that the legislative intent was circuit Judges. to duplicate any already enumerated cir- ORDER cumstance, thus making I.C. § 19- 2515(f)(6) mere surplusage ... , we hold The opinion filed on March 27, 1991, 928 that the phrase "utter disregard" must F.2d 1481, is hereby amended as follows: be viewed in reference to acts other than In 928 F.2d at 1487, the following is those set forth in I.C. §§ 19-2515(f)(2), deleted: "Creech has not pointed to any (3), and (4). evidence to support his claim. The only Rather than explaining what "utter dis- .evidence' purported to buttress his claim regard for human life" means, this passage of incompetency contains no citations to the merely recognizes that the legislature must record." have meant it to mean something other The following is inserted in lieu thereof: than the preexisting aggravating circum- "Contrary to Creech's assertion, Dr. Hey- stances. Since none of these aggravating rend did not conclude that Creech could not circumstances are at issue, this language appreciate the consequences of decisions does not help us to determine the meaning such as waiving legal rights. When asked, of "utter disregard." "Do you have any information or evidence In 928 F.2d at 1492, at the end of subsec- to indicate to your satisfaction that at the tion C, the words ", as applied to Creech, to time of the defendant's plea in this case, have been" are deleted and the word "is" is that he did not intend to plead guilty or did inserted in lieu thereof. not recognize the consequences of that le- In 928 F.2d at 1492, the second para- gal act?," Dr. Heyrend replied, "I really graph of footnote 16 is deleted. have no information in that area." While Dr. Stoner was more supportive of The panel has voted to deny appellant's Creech's position, even he admitted, "I petition for rehearing and to reject the think there's room to be more certain than suggestion for rehearing en banc. I am in this case." Creech failed to show The full court was advised of the sugges- that he was incompetent to plead guilty." tion for rehearing en banc. An active In 928 F.2d at 1491, at the end of the judge requested a vote on whether to re- third full paragraph, add the following hear the matter en banc. The matter failed footnote after the citation to Osborn, 631 to receive a majority of the votes of the P.2d at 201: nonrecused active judges in favor of en "The Idaho Supreme Court also noted bane consideration. Fed.R.App.P. 35. that, With these amendments the petition for To properly define (the "utter dis- rehearing from the appellant and the peti- regard"] circumstance, it is important to tion for rehearing from the appellees are note the other aggravating circum- DENIED and both suggestions for rehear- stances with which this provision over- ing en banc are REJECTED. laps. The second aggravating circum- OPINION stance, I.C. § 19-2515(f)(2), that the defendant committed another murder at CYNTHIA HOLCOMB HALL, Circuit the time this murder was committed, ob- Judge: viously could show an utter disregard for Petitioner Thomas E. Creech appeals human life, as could the third aggravat- from the district court's denial of his peti- ing circumstance, I.C. § 19-2515(f)(3), tion for a writ of habeas corpus. Creech is that the defendant knowingly created a currently incarcerated at the Idaho State great risk of death to many persons. Correctional Institution ("ISCI") on the ba- The same can be said for the fourth sis of three Idaho murder convictions. The aggravating circumstance, I.C. § 19- conviction which gives rise to this appeal is 2515(f)(4), that the murder was commit- based on Creech's 1981 murder of David 876 947 FEDERAL REPORTER, 2d SERIES Jensen, a fellow inmate at ISCI. Creech 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 16, pleaded guilty to first degree murder and (1970). "The assistance of counsel receiv(ed was sentenced to death. by a defendant is relevant to the question of whether a defendant's guilty plea wu I knowing and intelligent insofar as it at. fects The facts and proceedings in this case the defendant's knowledge and under. standing." are adequately described in opinions ren- United States v. Frye, 7:.i F.2d 196, 199 (7th Cir.1984). dered by the Idaho Supreme Court after Creech's direct appeal, State v. Creech, 105 Although the Supreme Court has four.d Idaho 362, 670 P.2d 463, 465-66 (1983), that ineffective assistance of counsel can cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, apply to guilty pleas, Hill v. Lockhart, 4% 79 LEd.2d 722 (1984) ("Creech I"), and U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.:i after his efforts to obtain post-conviction 203 (1985), most cases that have dealt with relief, State v. Creech, 109 Idaho 592, 710 such challenges have involved attorney ree. P.2d 502, 502-07 (1985) ("Creech II"). Ad- ommendations that the defendant plead ditional facts will be discussed where rele- guilty. Here, however, Creech's attorney vant to the issues we must decide in this Rolf Kehne, told the court in Creech's pre*- appeal. ence that he believed Creech should contin. ue to plead not guilty. Creech himself II acknowledged that "my attorney advised We review de novo the district court's me not to plead." Thus, the alleged error denial of a petition for habeas corpus. is not that Kehne misled Creech by recom. Carter v. McCarthy, 806 F.2d 1373, 1375 mending the wrong plea, but that he failed (9th Cir.1986), cert. denied, 484 U.S. 870, to provide Creech with certain information. 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). We Specifically, Creech claims Kehne failed ad- review any factual findings made by the equately to discuss the elements of the district court for clear error. Hayes v. crime or possible defenses with him before Kincheloe, 784 F.2d 1434, 1436 (9th Cir. he pleaded guilty. 1986), cert denied, 484 U.S. 871, 108 S.Ct. To establish that he received ineffective 198, 98 L.Ed.2d 150 (1987). assistance of counsel, Creech must show: (1) his attorney's representation fell below III an objective standard of reasonableness. [1] Creech initially contends that he and (2) that the deficient performance prej should be allowed to withdraw his guilty udiced the defense. Strickland v. Wash- plea. This contention rests upon two argu- in gton, 466 U.S. 668, 687, 104 S.Ct. 2052. ments. First, Creech argues that he was 2064, 80 L.Ed.2d 674 (1984). In reviewing denied effective assistance of counsel be- alleged deficiencies in representation, "a cause his attorney failed to provide him court must indulge a strong presumption with certain information prior to the mak- that counsel's conduct falls within the wide ing of his guilty plea. Second, Creech arrange of reasonable professional assist- gues that in the absence of such informa- ance." Id. at 689, 104 S.Ct. at 2065- tion, his plea was not "voluntary and intelli- Creech pleaded not guilty at his initial gent" and therefore cannot be allowed to arraignment on June 19, 1981 before Judge stand. We find these arguments differ Newhouse of the Idaho state district court. merely in form, not in substance, Evans v. On August 28, 1981, Judge Newhouse con- Meyer, 742 F.2d 371, 375 (7th Cir.1984), and vened a plea hearing in response to a letter therefore we will discuss them together. from Creech stating that he wished to A guilty plea must represent "a volun- plead guilty. Kehne stated by way of afr tary and intelligent choice among the alter- davit that he had "absolutely no advance native courses of action open to the defen- notice" that Creech was going to change dant." North Carolinav. Alford, 400 U.S. his plea, and he was allowed "less than CREECH v. ARAVE 877 Cite as 947 F.2d 873 (9th Cir. 1991) Creech simply did not allow his counsel to fifteen minutes" to attempt to change his mind. inform him of the elements of the offense client's or possible defenses. The transcript of the found "as a matter of The district court August 28 plea hearing shows that Kehne not discuss with fact. that Kehne did explicitly told the court in Creech's pres- elements of the of- Creech the "specific ence that the guilty plea was against his he was charged or possi- fense with which advice. As the district court properly not- charges." Neverthe- ble defenses to these to court reviewed counsel's ed, "a defendant may not be forced less. the district abide by the advice of counsel." I Further- the state court performance throughout more, at that hearing Creech told the court that "lKehne's] repre- proceedings and held that he had discussed the plea with coun- not fall below an objective sentation did sel, that he believed he had sufficient time standard of reasonableness." to discuss his plea with counsel, that he To establish that Kehne's representation was satisfied with his attorney's represen- fell below an objective standard of reason- tation, and that he understood that by ableness, Creech must show "that counsel pleading guilty he was giving up any de- made errors so serious that counsel was fense to the charge. not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Kehne told Creech that his advice was to Strickland, 466 U.S. at 687, 104 S.CL at not change the plea. He also told Creech 2064. In support of his claim that Kehne's that he needed more time. Nevertheless, failure to inform him of the elements of the Creech informed the court that he wished crime and possible defenses were omissions to proceed and plead guilty. We cannot which fell below this standard, Creech re- now accept the claim that Creech was lies on Brown v. Butler, 811 F.2d 938 (5th therefore unfairly deprived of the assist- Cir.198 7), and United States v. Bigman, ance of counsel. Kehne's actions were rea- 906 F.2d 392 (9th Cir.1990). In Brown, the sonable under the circumstances. Fifth Circuit held that counsel's failure to Creech has also failed to show that he inform the defendant of a venue defense was prejudiced. In Hill v. Lockhart, 474 prior to his guilty plea rendered counsel's U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d performance below the objective standard 203 (1985), the Supreme Court held that of reasonableness. Because of this omis- requiring a showing of prejudice serves sion, the court believed the defendant was "the fundamental interest in the finality of unable to make an informed and conscious guilty pleas." The Court noted that, choice with respect to his plea. Brown, Every inroad on the concept of finality 811 F.2d at 942. In Bigman, this circuit undermines confidence in the integrity of required remand for an evidentiary hearing our procedures; and, by increasing the due to uncertainty whether the defendant volume of judicial work, inevitably delays had been apprised of the intent element of and impairs the orderly administration of the crime to which he pleaded guilty. justice. The impact is greatest when Unlike Brown and Bigman, however, new grounds for setting aside guilty any omission on Kehne's part was not the pleas are approved because the vast ma- result of his incompetence as counsel. jority of criminal convictions result from . Creech now characterizes his actions as a pleading guilty. In response to the judge's ques- waiver of the right to counsel and argues that tions, Creech acknowledged that he understood under Farettav. California, 422 U.S. 806, 817, 95 that by pleading guilty he was admitting the S.CL 2525, 2532, 45 LEd.2d 562 (1975), his crime, giving up any defenses to the charge, and waiver cannot stand since he was not advised of forgoing his constitutional rights to trial by jury the "dangers and disadvantages of self-represen- and to confront his accusers, as well as the tation." We believe the issue here is more prop- privilege against self-incrimination. Creech erly seen as whether Creech voluntarily and also acknowledged that he understood that the knowingly pleaded guilty, not whether he first degree murder was waived counsel. maximum penalty for death. At the hearing, Judge Newhouse attempted to ensure that Creech was aware of the dangers of 878 947 FEDERAL RE PORTER. 2d SERIES such pleas. Moreover, the concern that Moreover, shortly after this exchange. unfair procedures may have resulted -in prosecution inquired as follows: the the conviction of an innocent defendant is Q (by Mr. Harris): Mr. Creech, did only rarely raised by a petition to set intend to kill Mr. Jensen? ... aside a guilty plea. A: When I first had the fight with Id. (quoting United States v. Timmreck, h no. But the second time, yes, I did 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 tend to kill him. LEd.2d 634 (1979)).2 Q: That was later in the day? [2] First, with respect to Creech's claim A: Yes, sir. that he did not understand the elements of Q: Did you take action to kill him at the offense of first degree murder, Creech he was no longer a threat to you? w contends that the "malice" element was not in no condition to hurt you? adequately explained to him. The Supreme A: Yes, I did. Court has stated that a plea may be involuntary "because [the defendant] has such Q: What did that include? an incomplete understanding of the charge A: I kicked him in his throat and hu that his plea cannot stand as an intelligent head. admission 'of guilt." Henderson v. Mor- Q: Was that after he was unconscious, gan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, A: He wasn't all the way unconscious, 2257 n. 13, 49 LEd.2d 108 (1976). "With- but he was down on the floor. out ... proof that [the defendant] in fact Therefore, on the basis of Creech's own understood the charge, the plea cannot be testimony the district court correctly con- voluntary ... " Id. cluded thqt Creech understood that malice The district court correctly rejected aforethought was an element of the Creech's argument that his ignorance of charge.3 the elements of first degree murder should [3] Second, with respect to Creech's invalidate his plea. It found that "Creech claim that neither the court nor his attor- understood that malice or intent was an ney explained the defense of "imperfect element of first degree murder at the time self-defense," Creech argues that without he pled guilty." such an explanation he did not have a full The state trial judge's colloquy with understanding of the law in relation to the Creech at his August 28, 1981 plea hearing facts. This issue was not addressed by the supports the district court's decision. In district court, although it found as a matter particular, the trial court asked Creech the of fact that counsel did not discuss with following: Creech possible defenses to the murder Q (by the Court): What, as you under- charge. stand it, does a person have to do to be In Sober v. Crist, 644 F.2d 807, 809 n. 3 guilty of the charge of first degree mur- (9th Cir.1981), we held that "[t]he accused der? What does it mean to you? should be made aware of possible defenses. A: He has got to think about doing it. at least where the attorney or court is Q: And killing someone. made aware of facts that would constitute A. And killing someone. such a defense." Because Creech arguably 2. See also Evans v. Meyer, 742 F.2d 371 (7th litigation options, the lawyer would guarani Cir.1984). In Evans, the court, in holding that that the client could get his guilty ple2 set prejudice must be shown in cases where the aside as involuntary if he was dissatisfied defendant claims ineffective assistance of coun- with the sentence he received after pleading sel due to counsel's failure to inform him of a guilty. defense, stated, Id. at 374. Among other objections to holding [otherwise] is that it would create an exquisite con- 3. Creech concedes that the quoted colloquy flict between the lawyer's duty to his client "[alrguably ... shows that Mr. Creech under- and to justice: for by holding back from his stood that premeditation was required for first client some unimportant information about degree murder." CREECH v. ARAVE 879 Cite as 947 FJ.d873 (9thCir. 199t) could have claimed imperfect self-defense, if he had done so he either would have been he may have been prejudiced by his lack of acquitted or, if convicted, would neverthe- knowledge. less have been given a shorter sentence The state argues, however, that the fail- than he actually received." Evans, 742 ure of counsel or the court to explain this F.2d at 375. Even assuming his attorney's defense constituted harmless error. See performance was not reasonable, we be- L.nited States v. Lopez, 575 F.2d 681, 685 lieve Creech's ignorance of the possible de- (9th Cir.1978) (where a constitutional error fense of "imperfect self-defense" was is found, an appellate court's duty is to harmless beyond a reasonable doubt. reverse unless it is "able to declare a belief that it was harmless beyond a reasonable IV doubt.") (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.CL 824, 828, 17 [4] During his August 28, 1981 plea LEd.2d 705 (1967)). hearing, at Kehne's insistence, Creech reserved the right The State points to Creech's earlier mur- to withdraw his guilty plea der convictions if psychological evaluations showed Creech and his repeated attempts incompetent to plead to interpose self-defense as a defense to guilty. Creech claims in his petition that those crimes as evidence that Creech knew the testimony of Doc- tors Stoner of the possible defenses to the crime. and Heyrend substantiate his claim of Creech counters that nothing in the record incompetence; consequently, he shows that, relative to the Jensen murder, argues that he should be allowed to with- he had an understanding of this defense. draw his plea.' Appellees also argue that any error was A defendant is not competent to plead harmless because such a defense would guilty if "mental illness has substantially have been contrary to the "overwhelming" impaired his or her ability to make a rea- evidence against Creech. In Evans v. Mey- soned choice among the alternatives er, 742 F.2d 371 (7th Cir.1984), the court presented to him and to understand the opined that where uncontested facts make nature and consequences of his plea." it inconceivable that a jury would acquit on Sieling v. Eyman, 478 F.2d 211, 215 (9th the proposed defense, a plea entered with- Cir.1973).s The district court found that out the defendant's knowledge of the de- Creech failed to show that he was incompe- fense can nevertheless be voluntary. See tent at the time he entered his guilty plea. also Hill, 474 U.S. at 59, 106 S.Ct. at 370 Creech's central contention is that the dis- ("[W]here the alleged error of counsel is a trict court erred in this finding because it failure to advise the defendant of a poten- applied the wrong standard. Contrary to tial affirmative defense to the crime Creech's assertion, however, it is apparent charged, the resolution of the 'prejudice' from the opinion below that the district inquiry will depend largely on whether the court simply concluded that there was no affirmative defense likely would have suc- evidence that Creech was incompetent to ceeded at trial"). plead guilty. After conducting our own review of the We affirm the district court's conclusion record in this case, we find it "inconceiva- regarding Creech's competency to plead ble ..., and not merely improbable ... that guilty. Contrary to Creech's assertion, Dr. (Creech] would have gone to trial on a Heyrend did not conclude that Creech could defense of (imperfect self-defense], or that not appreciate the consequences of deci- 4. Respondent's assertion that this claim was not court's conclusion of competence to waive coun- raised below is without merit. sel subject to de novo review); with Evans v. 3. It is unclear whether a state court's determina- Raines, 800 F.2d 884, 887 (9th Cir.1986) (compe- tion of competency to plead guilty is entitled to tence to stand trial is a factual issue entitled to a presumption of correctness under 28 US.C. the presumption). Regardless of whether the § 2254(d). Cf. Harding v. Lewis, 834 F.2d 853, presumption of correctness attaches here, 856 (9th Cir.1987), cert. denied, 488 U.S. 871. Creech's claim is without merit. 109 S.Ct. 182, 102 LEd.2d 151 (1988) (trial 880 947 FEDERAL REPORTER, 2d SERIES S.Ct. sions such as waiving legal rights. When 1079, 93 L.Ed. 1337 (1949), you have any information or approved exprt..I asked, "Do of a sentencing court's relianc, evidence to indicate to your satisfaction on information contained in a presenta,- in report that at the time of the defendant's plea in imposing a death sentence. 7% this case, that he did not intend to plead Court wrote that "most of the informatoo guilty or did not recognize the conse- now relied upon by judges to guide them 4 quences of that legal act?," Dr. Heyrend the intelligent imposition of sent,.c. replied, "I really have no information in would be unavailable if information wert was more restricted that area." While Dr. Stoner to that given in open court by supportive of Creech's position, even he witnesses subject to cross-examination.* admitted, "I think there's room to be more Id. at 250, 69 S.Ct. at 1084.6 certain than I am in this case." Creech Neither the district court nor the Idaho failed to show that he was incompetent to Supreme Court addressed the claim that plead guilty. Creech was denied an opportunity to rebut or explain the testimony contained in the V presentence report. The only reference to [5) Creech next claims that his right to this issue is Judge Huntley's dissent in confrontation was violated because he had Creech I which stated that Creech could no meaningful opportunity to cross-exam- not rebut the information in the presen- ine the sources of information contained in tence report through the device of cross. his presentence report. At Creech's Janu- examination. 670 P.2d at 480 n. 1 (Hunt. ary, 1982 sentencing hearing, Judge New- ley, J., dissenting). It is apparent, how. house took judicial notice of the presen- ever, that Creech had the opportunity. oth- tence report, which included reports from er than through cross-examination, to dis- several Idaho psychiatrists, a previous pre- pute the accuracy of the presentence report sentence report from an Ohio conviction prior to and at his January, 1982 sentenc- containing reports from Ohio psychologists, ing hearing because his counsel was given psychiatric evaluations from Oregon doc- the report prior to the sentencing hearing. tors, and numerous newspaper articles and Because Creech had the opportunity to editorials. The Idaho Supreme Court in rebut, deny or explain the information con- Creech I found that all the material in the tained in the presentence report, this case presentence report was considered by the is distinguishable from Gardner v. Flor- sentencing judge. 670 P.2d at 468. ida, 430 U.S. 349, 356, 97 S.Ct. 1197, 1203. The trial judge at sentencing may appro- 51 L.Ed.2d 393 (1977), and is in line with priately conduct a broad inquiry largely Williams v. New York, 337 U.S. 241, 69 unlimited as to the kind of information to S.Ct. 1079, 93 L.Ed. 1337 (1949).T In Gard- be considered or the source of such infor- ner, the Court ruled that the defendant mation. United States v. Grayson, 438 was denied due process of law when the U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d death sentence was imposed on the basis of 582 (1978). The Supreme Court in information never disclosed to him. 430 Williams v. New York, 337 U.S. 241, 69 U.S. at 362, 97 S.Ct. at 1207 (plurality opin- 6. The Idaho Supreme Court in Creech I held that curacies than did the defendant in Willia-. Creech had no right under Idaho law to a pre- who learned of the information at the sentenc- sentence report containing only testimony from ing hearing itself. The state trial court in this live witnesses subject to cross-examination. 670 case specifically found that Creech had access to P.2d at 466-469. the report for at least seven days prior to his hearing, as required by Idaho law. 7. Although Creech is correct in asserting that in sentencing Williams the sentencing judge stated the facts Creech argues that due to Gardner, Williaa upon which it was relying in open court, the is no longer good law. Although Gardnerstated opportunity to rebut, explain or deny the infor- that standards of procedural fairness had mation contained in the presentence report was evolved since Williams was decided, it distin- nevertheless available both in Williams and in guished rather than overruled Williamss hold. this case. In fact, Creech had more time in ing. Gardner,430 U.S. at 356, 97 sCt. at 1204. which to examine the report and refute its inac- CREECH v. ARAVE 881 Cte as 947 F.2d 873 (9th Cr. 1991) ion). Gardner relied on the absence of Upon remand, the trial court simply read any opportunity for counsel to challenge the sentence of death to Creech. This sec- the accuracy of information contained in a ond sentence of death was affirmed in presentence report. Id at 356, 97 S.CL at Creech 1, 670 P.2d at 476. The district 1203 (distinguishing Williams), 430 U.S. at court found "no constitutional provision 358-62, 97 S.Ct. at 1204-07. We conclude which would require the state courts to that Creech's right to confrontation was again conduct the full sentencing hearing not violated in this case. at which Creech could present mitigating circumstances." VI Creech asserts that although he was al. lowed to present Creech claims that he is entitled to a new any and all mitigating evidence at his initial sentencing hearing due to the trial court's sentencing hearing, because the Supreme Court of Idaho unconstitutional application of the Idaho voided that sentence and sentencing statute, Idaho Code § 19-2515. ordered resentencing, constitutionally he must be allowed another Creech alleges three errors: (1) the trial opportunity to do so. He argues that the court refused to allow him to present any resentencing hearing was not ordered sim- mitigating evidence at his March 17, 1983 ply to correct a procedural defect In addi- resentencing hearing in violation of the tion, he contends that in capital resentenc- Eighth and Fourteenth Amendments; (2) at ing hearings, a defendant must be allowed his sentencing hearing, the court found two aggravating circumstances to present mitigating evidence to ensure without making the reliability of death sentences. a required finding beyond a reasonable This doubt; and (3) one of the aggravating cir- argument appears to be correct. In Sivak cumstances applied by the trial court, that v. State, 731 P.2d 192 (Idaho 1986), the Creech demonstrated an "utter disregard Idaho Supreme Court ruled on the pre- for human life", is unconstitutionally cise claim presented here. The court found that vague. Creech argues that due to these an order identical to the one at issue errors, an improper balance of aggravating here, issued to the same judge (Judge and mitigating circumstances resulted. Newhouse), and based on the same error We address each contention in turn. as present here mandated that the trial judge permit the introduction of new mitigating evidence at the resentencing hear- A ing. (6] The Idaho Supreme Court vacated The Sivak court held that evidence of a Creech's original sentence of death because defendant's good behavior and peaceful ad- the trial judge failed to pronounce the sen- justment while in prison was mitigation tence in the presence of the defendant as evidence, id. at 196-97, and that the princi- required by Idaho law. The court ordered ples of Lockett v. Ohio, 438 U.S. 586, 98 resentencing to occur within fourteen days S.CL 2954, 57 L.Ed.2d 973 (1978), Eddings from the date of its order. Creech argues v. Oklahoma, 455 U.S. 104, 102 S.CL 869, that he did not have an opportunity to 71 L.Ed.2d 1 (1982), and Skipper v. South introduce mitigating testimony relating to Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 his .conduct during the fourteen months L.Ed.2d 1 (1986), required that a defendant between his sentencing and resentencing be allowed to offer such mitigating hearings. evi- This new mitigation evidence dence at resentencing. Sivak, 731 P.2d at would have included testimony by prison 197. The Idaho Supreme Court's discus- guards and spiritual advisors about sion is highly persuasive. Creech's good behavior in prison, his per- Like the Idaho Supreme Court, sonal growth and increased id, we sensitivity, and see no rational basis for his writing and recording distinguishing the of a song for a evidence of a defendant's good conduct young girl badly injured in an automobile while awaiting accident. trial and sentencing, and evidence of a defendant's good conduct 882 947 FEDERAL REPORTER, 2d SERIES pending review of a death sentence which intended to kill Jensen.' Neverthel, is vacated on appeal. On this basis, we Judge Newhouse's Findings fail to indicat, reverse and remand with instructions to that he found specific intent beyond a re4, grant the petition. The writ shall order sonable doubt before applying section I5.. Creech's release if, within a reasonable 2515(g)(7).10 On remand, the district cour, time set by the district court, Idaho fails to shall grant the petition. The writ sha vacate Creech's sentence and provide order Creech's release if the state judz at Creech with a resentencing hearing at resentencing applies the aggravatinL c.. which he can present any and all mitigating cumstances under this section without evidence that exists at the time of the making a finding of specific intent. hearing. C B 18] Creech claims that the statutory ag- (71 Creech claims that the trial court gravating circumstance, that "the defen- applied two aggravating circumstances dant exhibited utter disregard for human without making a -required finding. The life," Idaho Code § 19-2515(g)(6), is uncon- trial court found as aggravating circum- stitutionally vague. Recently, the Supreme stances that "defendant was under a sen- Court announced the process by which we tence for Murder of the First Degree at the review such a challenge. In Walton t. time of his actions" and that "defendant Arizona, - U.S. -, 110 S.Ct. 3047, committed the murder on a fellow inmate 3057, 111 L.Ed.2d 511 (1990), the court while both were incarcerated in the Idaho held: State Correctional Institution." Each is an When a federal court is asked to re- element of the crime of first degree murder view a state court's application of an for which Creech was charged. See Idaho individual statutory aggravating or miti- Code § 18-4003(c), (e) (1987). gating circumstance in a particular case. To properly constitute aggravating cir- it must first determine whether the stat- cumstances under Idaho law, the elements utory language defining the circum- any contained in sections 18-4003(c) and (e) stance is itself too vague to provide then must be combined "with the specific intent guidance to the sentencer. If so, attempt to deter- to cause ... death of a human being." the federal court must courts have fur- Idaho Code § 19-2515(g)(7) (1987). Creech mine whether the state and if they argues that Judge Newhouse failed to find ther defined the vague terms those definitions such an intent beyond a reasonable doubt; have done so, whether sufficient, iUe.. therefore, he asserts, the judge listed these are constitutionally guidance to aggravating circumstances without deter- whether they provide some mining if they should apply.' the sentencer. conclude that We find that there is evidence by which Applying Walton, we first listed in see Judge Newhouse could have concluded that the aggravating circumstance had specific intent. At the time he tion 19-2515(g)(6) is unconstitutionally Creech as "the un- pleaded guilty, Creech admitted that he vague. Idaho defines murder to the State's question of whether Creech originally argued, relying on Collins v. 9. In response 8. to kill Jensen, Creech replied. Lockhart, 754 F.2d 258 (8th Cir.). cart. denie4 he intended I first had the fight with him. no. But 474 U.S. 1013. 106 S.CL 546, 88 1.Ed.2d 475 "When second time, yes, I did intend to kill him- (1985). that the sentence was unconstitutional the fail to mention because these two aggravating factors were 10. Not only did Judge Newhouse more than elements of first degree mur- intent in his listing of these aggravating nothing specific instu der. Acknowledging that Collins has been over- circumstances, he also found that Jensen actions o- ruled, see Peny v. Lockhart, 871 F.2d 1384, 1392 gated the fight and that Creech's (8th Cir.). cart. denie4 493 U.S. 959, 110 S.CL denced "an excessive violent rage. His only murder, once com- 378, 107 LEdid 363 (1989), Creech no longer findings of intent were '"The to have been an intentional. makes this argument. menced, appears calculated act." (emphasis added). CREECH v. ARAVE 883 Cite as 947 FId 873 (9th Ctr. 1991) was sentenced, was unconstitutionally lawful killing of a human being with malice aforethought." Idaho Code § 18-4001 vague." (1987). In section 18-4003, Idaho separates The Supreme Court has found that ag- murder into first and second degrees. gravating circumstances must "channel the Only those convicted of first degree mur- sentencer's discretion by clear and objec- der are statutorily eligible to be sentenced tive standards that provide specific and de- to death. Idaho Code § 18-4004 (1987). tailed guidance and that make rationally Given that some defendants who kill with reviewable the process for imposing a sen- malice aforethought are not even eligible to tence of death." Godfrey v. Georgia, 446 be sentenced to death, we fail to see how U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 the aggravating circumstance of "the utter L.Ed.2d 398 (1980) (quotations and foot- disregard for human life" permits "the sen- notes omitted). "[The channeling and lim- tencer to make a principled distinction be- iting of the sentencer's discretion in impos- tween those who deserve the death penalty ing the death penalty is a fundamental and those who do not" Lewis v. Jeffers, constitutional requirement for sufficiently - U.S. -, 110 S.Ct. 3092, 3099, 111 minimizing the risk of wholly arbitrary and L.Ed.2d 606 (1990). capricious action." Maynard v. Cart- In State v. Osborn, 102 Idaho 405, 631 wright, 486 U.S. 356, 362, 108 S.Ct. 1853, P.2d 187 (1981), the Idaho Supreme Court 1858, 100 L.Ed.2d 372 (1988). also recognized the infirmity of section 19- Given this standard, we find that the 2515(g)(6). The court held, "it is ... appar- narrowing construction of section 19- ent under Godfrey that this court must 2515(g)(6), as applied to Creech, was uncon- place a limiting construction upon (the "ut- stitutionally vague. Having concluded that ter disregard"] aggravating circumstance(] the statutory language "the defendant ex- so as to avoid the possibility of [its] applica- hibited utter disregard for human life" was tion in an unconstitutional manner." 631 too vague, the Idaho Supreme Court limit- P.2d at 200 (citing Godfrey v. Georgia, 446 ed it by stating "the phrase is meant to be U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 reflective of acts or circumstances sur- (1980)). We therefore analyze, under the rounding the crime which exhibit the high- second step of Walton, whether the aggra- est, the utmost, callous disregard for hu- vating circumstance, as construed by the man life, i.e., the cold-blooded, pitiless slay- Idaho Supreme Court at the time Creech er." Osborn, 631 P.2d at 201.12 II. Creech argues that we may not review the aggravating circumstances with which this limiting construction because it was not explicit- provision overlaps. The second aggravating ly applied by the trial judge. The Supreme circumstance, I.C. § 19-2515(f)(2). that the Court's words in Walton, however, are instruc- defendant committed another murder at the tive: time this murder was committed, obviously When a jury is the final sentencer, it is essen- could show an utter disregard for human life, tial that the jurors be properly instructed re- as could the third aggravating circumstance, garding all facets of the sentencing process. I.C. § 19-2515(f)(3), that the defendant knowingly created a great risk of death to many It is not enough to instruct the jury in the bare terms of an aggravating circumstance persons. The same can be said for the fourth aggravating circumstance. I.C. § 19- that is unconstitutionally vague on its face. that the murder was committed for That is the import of our holdings in Maynard 2515(f)(4), remuneration. Since we will not presume and Godfrey. But the logic of those cases has that the legislative intent was to duplicate any no place in the context of sentencing by a trial already enumerated circumstance, thus mak- judge. Trial judges are presumed to know the ing I.C. § 19-2515(f(6) mere surplusage .... law and to apply it in making their decisions. we hold that the phrase "utter disregard" must Walton, 110 S.CL at 3057. Although the trial be viewed in reference to acts other than judge used the language of the statute, we fol- those set forth in I.C. §§ 19-2515(f)(2). (3), low the Supreme Court's lead and presume that and (4). he applied the limiting instruction. Rather than explaining what "utter disregard for human life" means, this passage merely rec- 12. The Idaho Supreme Court also noted that. ognizes that the legislature must have meant it To properly define [the "utter disregard"] cir- to mean something other than the preexisting cumstance, it is important to note the other aggravating circumstances. Since none of these 884 947 FEDERAL REPORTER, 2d SERIES

This limiting construction gives no more heinous, atrocious or cruel" was still u guidance than the statute. Rather than stitutionally vague even though Oklahor. defining "utter disregard," the court in Os- had defined "heinous" as "extremely born merely emphasized it. But the prob- wicked or shockingly evil" and had defi lem with the "utter disregard" standard is "atrocious" as "outrageously wicked a not that it is too low a threshold, it is that vile." 13 According to the it is unclear. Idaho's limiting construction circuit coum "Vague terms do not suddenly becone does not resolve this infirmity. Just as it is clear when they are defined by reference to difficult to determine what constitutes "ut- other vague terms." Cartwright ter disregard for human life," it is unclear v. .1ao,. nard, 822 F.2d 1477, 1489 (10th what constitutes "the highest, the utmost, Cir.197, The Court agreed with callous disregard for human life." The the Tenth Circust however, that a limiting instruction Supreme Court noted in Cartw-right, 486 of "some kind of torture or physical U.S. at 364, 108 S.Ct. at 1859, that the abuse" while not the only permissible "contention that the addition of the word construction. would have made the aggravating circum. 'especially' somehow guides the jury's dis- stance constitutional. t' cretion, even if the term 'heinous' does not, is untenable." Cartwright'sreasoning ap- Unlike those cases, where the sentencer pears to -apply here. could make an objective determination of Godfrey speaks of "clear and objective" whether specific acts occurred, the Idaho standards. The Court has approved limit- limiting construction calls for a subjective ing constructions that have defined the determination of whether the defendant is terms of the statutory aggravating circum- a "cold-blooded, pitiless slayer." The limit. stance through objective standards. In ing construction therefore fails to channel Walton v. Arizona, - U.S. -, 110 S.Ct. the sentencer's discretion. 3047, 3057, 111 LEd.2d 511 (1990), the The vagueness of the Osborn limiting Court upheld an aggravating factor of "es- construction is apparent by its application pecially heinous, cruel or depraved" when in this case. In his Findings in sentencing it noted that the aggravating factor had Creech to death, Judge Newhouse found the following limitations: "(A]n especially that Creech "did not instigate the fight cruel manner [is] when the perpetrator in- with the victim, but the victim, without flicts mental anguish or physical abuse be- provocation, attacked him. He was initially fore the victim's death," id. 110 S.Ct. at justified in protecting himself." While he 3057, and "an especially 'depraved' manner found that "(a]fter the victim was helpless [is] when the perpetrator 'relishes the mur- the defendant killed him," Judge New- der, evidencing debasement or perversion,' house also noted that the murder "evi- or 'shows an indifference to the suffering denc(ed] an excessive violent rage." 1s Giv. of the victim and evidences a sense of en these factual findings, we cannot agree pleasure' in the killing." Id. at 3058. with the conclusion that by the murder In Cartwright, the Court affirmed the itself, or circumstances surrounding its Tenth Circuit's conclusion that Oklahoma's commission, Creech demonstrated that he aggravating circumstance of "especially was a cold-blooded, pitiless killer." We aggravating circumstances are at issue, this lan- proving "especially heinous, atrocious or cruel' guage does not help us to determine the mean- limited to "the conscienceless or pitiless crime ing of "utter disregard." which is unnecessarily torturous to the victim"). 13. Recently, the Supreme Court reaffirmed its 1. Judge Newhouse also found that The mur- holding in Cartwright in the context of an iden- der, once commenced, appears to have been an tical Mississippi aggravating factor with the intentional. calculated act." (emphasis added). same limiting constructions. Shell v. Missitsip- p - U.S. -, Ill S.CL 313, 112 L.Ed.2d I 16. In its briefs. the State argues that "utter dis- (1990). regard" is sufficiently specific, as it applies only to calculated murders. According to the State. 14. See also, Proffit v. Florida, 428 U.S. 242, 253, "[Mlurders that result from a strong provoca- 96 S.Ct. 2960, 2968, 49 LEd.2d 913 (1976) (ap- tion or objectively reasonable emotional distress CREECH v. ARAVE 885 CIte as 947 F2d 873 (9thCir. 1991) therefore find the Idaho limiting construc- VII don is unconstitutionally vague. (101 Creech claims that the Constitution guarantees a jury trial on the existence of D aggravating circumstances which may result in the imposition of a sentence of (91 We have found that one of the five death. Creech draws the following analo- statutory aggravating circumstances cited gy: some of the aggravating circumstances by Judge Newhouse, that Creech exhibited found by the state court are facts analo- utter disregard for human life, is unconsti- gous to elements of the crime of "capital tutionally vague. Second, we have found murder" and must be proven beyond a that two additional aggravating circum- reasonable doubt; therefore, a jury must stances were applied without the required determine their existence. finding of specific intent. Finally, we have In rejecting Creech's claim, the district found that Creech must be given an oppor- court relied on Spaziano v. Florida, 468 tunity to provide any additional mitigating U.S. 447, 104 S.CL 3154, 82 L.Ed.2d 340 evidence. (1984). In Spaziano, the Supreme Court Idaho Code section 19-2515(c) holds that rejected the argument that "placing re- a sentence of death may not be imposed sponsibility on the trial judge to impose the unless the court finds at least one statu- sentence in a capital case is unconstitution- tory aggravating circumstance. Even with al." Id. at 464, 104 S.Ct. at 3164. Creech our findings today, this requirement has attempts to distinguish Spaziano and sim- been met- Section 19-2515(c) goes on, ilar Supreme Court cases by asserting that however, and requires a balancing of miti- while the exercise of discretion in sentenc- gating and aggravating circumstances. ing may remain with the trial judge, the Given our findings, the weight of both jury must find the existence of facts, such types of factors is apt to change. Thus, we as aggravating circumstances. cannot rely on the trial court's conclusion Creech's argument has been fully reject- that. Creech deserved the death penalty. ed by the Supreme Court. In McMillan v. See Clemons v. Mississippi, 494 U.S. 738, Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 2411, 2419, 91 L.Ed.2d 67 (1986), the Court (1990); Cartwright v. Maynard, 822 F.2d wrote that "[s]entencing courts have tradi- 1477, 1483 (10th Cir.1987) ("A death sen- tionally heard evidence and found tence that is imposed pursuant to a bal- facts...." The Court further opined that ancing that included consideration of an the claim that a jury must find sentencing unconstitutional aggravating circumstance considerations "merits little discussion." must be vacated under the Eighth and Id at 93, 106 S.Ct. at 2420. The Court Fourteenth Amendments."), aff'd 486 U.S. ultimately held in McMillan that "there is 356, 108 S.Ct. 1853, 100 LEd.2d 372 (1988). no Sixth Amendment right to jury sentenc- We therefore reverse and remand with ing, even where the sentence turns on spe- instructions to grant the petition. The writ cific findings of fact." Id. (citing Spazi- shall order Creech's release unless, within ano). a reasonable time set by the district court, More recently, the Court specifically held the Idaho court balances the remaining, in Hildwin v. Florida, 490 U.S. 638, 109 constitutionally valid aggravating and miti- S.Ct. 2055, 2057, 104 LEd.2d 728 (1989), gating factors in order to determine wheth- that "the Sixth Amendment does not re- er Creech should be sentenced to death. quire that the specific findings authorizing are not comprehended by (the section]." If this P.2d at 465 ('"There is some evidence in the is what the limiting construction means, then it record indicating that Creech had been enticed was improperly applied to Creech. While the by other inmates to 'do Jensen in,' but the dis- State argues that "Creech cold-bloodedly con- trict judge did not decide or find that the mur- trived the murder of David Jensen". this was not der had been performed on contract or by the finding of the trial court. See Creech 1 670 plan.") 886 947 FEDERAL REPORTER, 2d SERIES the imposition of the sentence of.death be aggravating circumstance beyond a re made by the jury." See also Walton v. able doubt, thus fulfilling the "narron, Arizona, - U.S. -, 110 S.Ct. 3047, function" required by Zant v. Stephe 3054, 111 LEd.2d 511 (1990). We there- 462 U.S. 862, 877, 103 S.Ct. 2733, 2.42. - fore find that consistent with these cases, L.Ed.2d 235 (1983). As construed by th" Creech had no constitutional right to a jury Idaho Supreme Court, moreover, appelk-e trial on the existence of aggravating cir- point out that the defendant's burden With respect cumstances. to mitigating circumstances Ls not one of persuasion but, rather, one a VIII "rais(ing] any factors which might Possibly (11] Creech claims that the Idaho capi- tend to mitigate his culpability for the of. tal sentencing scheme violates the Eighth fense." State v. Osborn, 102 Idaho 40S. Amendment because it provides a mandato- 631 P.2d 187, 199 (1981). ry sentencing formula. Specifically, This issue has been recently resolved by Creech argues that Idaho Code § 19- the Supreme Court. In Blystone v. Penn. 2515(c) is unconstitutional. Section 19- sylvania, 494 U.S. 299, 110 S.Ct. 1078. Ios 2515(c) provides: LEd.2d 255 (1990), the Court rejected a "(w]here a person is convicted of an of- challenge to a similar requirement, holding fense which may be punishable by death, that such a statute is not "impermissibly a sentence of death shall not be imposed mandatory", id. 110 S.Ct. at 1082, and that unless the court finds at least one (1) "[t]he requirement of individualized sen- statutory aggravating circumstance. tencing in capital cases is satisfied by al. Where the court finds a statutory aggra- lowing the jury to consider all relevant vating circumstance the court shall sen- mitigating evidence." Id. at 1083. Similar tence the defendant to death unless the statutes have been upheld in other cases. court finds that mitigating circumstances See Boyde v. California,494 U.S. 370, 110 which may be presented outweigh the S.Ct 1190, 108 L.Ed.2d 316 (1990); Walton. gravity of any aggravating circumstance 110 S.Ct. 3047. We therefore find that found and make imposition of death un- section 19-2515(c) is constitutional. just." Idaho Code § 19-2515(c) (1987) (emphasis IX added). (12] 'Creech finally claims that we The basis of Creech's contention is that should remand this case to the district the Idaho courts shall apply the death pen- court because the district court improperly alty unless mitigating circumstances out- limited its evidentiary hearing on his peti- weigh the aggravating circumstances and tion. Under Townsend v. Sain, 372 U.S. make the imposition of death unjust. Ida- 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d ho Code § 19-2515(c) (1987). Creech claims 770 (1963), a district court must hold an this removes an "individualized determina- evidentiary hearing if (1) the petitioner's tion" and a "moral response" in sentencing. allegations, if proved, would entitle him to Appellees argue that the Idaho sentenc- relief, and (2) the state court trier of fact ing scheme is valid because it permits the has not, after a full and fair hearing, reli- sentencing court to consider all relevant ably found the relevant facts. An eviden- mitigating evidence, consistent with Lock- tiary hearing must be held if, for example. ett v. Ohio, 438 U.S. at 602-08, 98 S.Ct at state court fact-finding procedures were 2963-47. In addition, appellees note that inadequate, or the material facts were not the statute places upon the state the bur- adequately developed at the state court den of proof to show at least one statutory hearing. Id. at 313, 83 S.Ct. at 757.11 17. Under Townsen4 372 U.S. at 313. 83 S.Ct. at [owing circumstances: If (1) the merits of the 757: factual dispute were not resolved in the state [A] federal court must grant an evidentiary hearing; (2) the state factual determination s hearing to a habeas applicant under the fol- not fairly supported by the record as a w CREECH v. ARAVE 887 Cite as 947 F.2d 873 (9th cIr. I99) Creech's claim with respect to the legal Creech has had a full and fair opportuni- requirement of an evidentiary hearing is ty to present the relevant facts of his two-fold. claims. Counsel had more than enough time between the affirmance of Creech's Creech admits that he First, although death sentence and the deadline for filing issue in his Febru- addressed each factual of post-conviction challenges to prepare plea with- ary 1984 state post-conviction any post-conviction claims for relief. Con- drawal hearing, he claims that hearing was sequently, we hold that Creech is not enti- two inadequate because he was given only tled to an evidentiary hearing on this basis. weeks to file all his post-conviction collateral state proceedings and two additional (13] Creech's second argument is that weeks to fully prepare for the hearing. the state court did not issue written find- Consequently, Creech argues that an evi- ings on his claims that he was suicidal dentiary hearing under Townsend was re- when he entered the guilty plea and that quired on several claims presented to the his plea was motivated by threats against district court. his family. Therefore, Creech argues the The district court's opinion does not ad- district court could not have concluded that dress this claim. Further, Appellees do not these issues were reliably determined by address Creech's allegations and the only the state trier of fact and an evidentiary evidence on this claim is the self-serving hearing is required. affidavit of Creech's counsel. The Idaho The district court found that "[t]here is Supreme Court opinion in Creech II, 710 nothing in the record to suggest Creech P.2d 502 (1985), however, addresses the was suicidally depressed at the time he precise issue raised by Creech. Creech's entered his plea of guilty," and that death sentence was affirmed by the Idaho Creech's "self-serving testimony" with re- Supreme Court on May 23, 1983 and it was spect to threats against his family was not until January 24, 1984 that Creech was insufficient to invalidate his plea. Al- ordered to make his final post-conviction though the district court did not make this challenges. Id. at 507. Consequently, point clear, it must have made these deter- counsel's complaint that he had only four minations without an evidentiary hearing weeks to prepare his case is not accurate. based on the implied findings of the state In justifying the limited time afforded trier of fact. Under Townsend, state court Creech to make his final post-conviction factual determinations may be implied challenges, the Idaho Supreme Court in from the actions taken by the state court. Creech II relied on Barefoot v. Estelle, 463 See Tounsend, 372 U.S. at 314, 83 S.Ct. at U.S. 880, 889, 103 S.CL 3383, 3392, 77 758; Butcher v. Marquez, 758 F.2d 373, LEd.2d 1090 (1983), for the proposition 376 (9th Cir.1985). For example, "(w]hen a that "the use of summary procedures for state trial court holds a hearing to sup- the expeditious resolution of collateral pro- press evidence and rules on the motion, a ceedings in death penalty cases" is proper. federal district court may assume that the 710 P.2d at 507. In Barefoot; the Supreme state court found the facts necessary to Court cited its prior cases which approved support the state court's decision, unless the summary procedures adopted by the there is some indication that the state court Circuit Courts of Appeal for the disposition applied an incorrect legal standard." of habeas appeals on the merits before the Knaubert v. Goldsmith, 791 F.2d 722, 727 scheduled date of execution. 463 U.S. at (9th Cir.), cert. denied, 479 U.S. 867, 107 889, 103 S.Ct. at 3392. S.Ct. 228, 93 L.Ed.2d 155 (1986). (3) the fact-finding procedure employed by oped at the state-court hearing- or (6) for any the state court was not adequate to afford a reason it appears that the state trier of fact full and fair hearing* (4) there is a substantial did not afford the habeas applicant a full and allegation of newly discovered evidence: (5) fair fact hearing. the material facts were not adequately devel- 888 947 FEDERAL REPORTER, 2d SERIES In the instant case, it appears from the Creech was given one week's notice of state trial court's February, 1984 denial of the nature and scope of the evidentiay Creech's motion to withdraw his plea that hearing. In conjunction with Creechs de Judge Newhouse implicitly rejected the fac- linquency and the amount of time fo, tual circumstances that Creech alleges in- Creech to prepare his case between the validate his plea and that Creech asserts filing of the habeas petition on January 2 require an evidentiary hearing. Moreover, and the May 29 hearing (not to mention the although the state trial court did not issue four years between Creech's initial sent,,,. written findings concerning the February, ing on January 25, 1982 and the filing of 1984 withdrawal hearing,s the Idaho Su- his petition), we conclude that the district preme Court, in affirming the state trial court did not abuse its discretion in denving court in Creech II, held that Creech offered Creech a continuance. no evidence other than his own assertions to support either of his arguments. Cf X Sumner v. Mata, 449 U.S. 539, 546--47, 101 We AFFIRM the district court on S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981) (28 Creech's claims of ineffective assistance of U.S.C. § 2254(d) presumption of correct- counsel, incompetence to plead guilty, in- ness of state court findings applies equally voluntary and unknowing guilty plea, deni- to state trial court and state appellate court al of his right to confrontation, and need fact-finding). We affirm the district for an evidentiary hearing. We also AF. court's denial of an evidentiary hearing on FIRM the district court's conclusion that these issues. Creech had no right to a jury trial on the existence of aggravating factors and that (14] Creech also contends that a re- he was not sentenced pursuant to a manda. mand is required because he did not have tory death penalty formula. We RE. an opportunity to present evidence on the VERSE and direct the district court to medication issue to the district court. grant the petition on Creech's claim that Creech argues he should have been granted the state trial court relied on improper ag- a continuance in order to prepare for an gravating circumstances, and that prohibit- evidentiary hearing. A district court's de- ing him from introducing evidence of miti- cision regarding a motion for a continuance gating circumstances at his resentencing is reviewed for an abuse of discretion. Un- hearing violates the Constitution. gar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. AFFIRMED IN PART, REVERSED IN 841, 849, 11 L.Ed.2d 921 (1964). PART, AND REMANDED. The district court found that Creech did TROTI, Circuit Judge dissenting from not "advise the court that notification of the order denying rehearing en banc. the parties on May 22, 1986, as to the KOZINSKI and T.G. NELSON joining. nature and scope of the May 29th hearing would not provide counsel with adequate I respectfully dissent from the court's time to prepare for that hearing." More- refusal to rehear this case en banc, and I over, the district court found that Creech's do so because I disagree with the panel's own delinquency culminated in the limited analysis in Part C. period of time between the deadline for Thomas Creech is a killer. He personi- briefing and the May 29th hearing date. fies an "utter disregard for human life." Further, Creech's counsel admitted as In this case, with the intent to kill, he beat much at the May 29th hearing, stating "I a fellow inmate to death while serving a frankly am not prepared to present medical life sentence in Idaho for murder. The evidence today and ... that was my confu- Idaho Supreme Court has made the follow- sion and it was all my fault...." ing statement about him: 18. The state trial court found only that it would tion to withdraw the guilty plea. not be manifestly unjust to deny Creech's mo- CREECH v. ARAVE 889 Cite as 947 F.d 873 (9th Cir. 1991) The defendant here committed murder of capital punishment disappears from fu- at least four times prior to the instant ture federal actions filed by him. As it offense, twice in Idaho and also in Ore- now stands we have failed to accord appro- gon and in California. There presently priate deference to the Idaho Supreme exist other pending charges of murder in Court decision in Osborn, and we have the first degree against him. The testi- thereby improperly amputated a legislative mony of an eyewitness to one of Creech's enactment of a sovereign state. previous murders, coupled with psychiat- To be specific as to the nature of the ric evidence, tends to prove that the ap- error, I believe the panel has misapplied pellant is violent and vengeful and that the holding of the Supreme Court in Wal- he experiences no remorse for his ac- ton v. Arizona, - U.S. -, 110 S.CL tions. Letters written by Creech to law 3047, 3057, 111 L.Ed.2d 511 (1990), in such enforcement personnel detail numerous a way as to bring about one application of alleged murders beyond those for which the Walton test for Arizona, and a differ- he has already been convicted and inti- ent application of the same test for Idaho. mate his intentions to kill in the future. The panel's misapplication of the test vio- Creech's own statements claim responsi- lates the unremarkable precept that federal bility for approximately 40 murders. law, and especially Constitutional law, shall However vague the statutory language be uniformly applied. might be argued to be in the ordinary The aggravating circumstance case (which assertion in ques- we have already tion is that "by the murder or circumstance rejected), nevertheless, as applied in the surrounding its commission the defendant instant case, we hold beyond any doubt exhibited utter disregard for human life." whatsoever that the appellant here has Idaho Code § 19-2515(g)(6). exhibited a propensity to commit murder I would agree with the panel that this bare language is which will probably constitute a continu- thin under Walton, but I respectfully but ing threat to society. strongly disagree with the panel's conclu- State v. Creech, 105 Idaho 362, 670 P.2d sion that the limiting construction placed 463, 472 (1983). on this language by the Idaho Supreme My concern, however, is not so much Court in State v. Osborn, 102 Idaho 405, that Creech's sentence is being returned to 631 P.2d 187 (Idaho 1981), falls short of the Idaho's courts to be redone as it is with a mark established by the United States Su- serious and possibly irremediable error preme Court in Godfrey v. Georgia, 446 made by the panel in holding that one of U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 the statutory aggravating factors relied on (1980). The Idaho Supreme Court in Os- by Idaho to sentence him to death is uncon- born explicitly recognized its duty under stitutionally vague. The error may effec- Godfrey and Gregg v. Georgia, 428 U.S. tively be irremediable because if Creech is 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) to resentenced to death in state court in ac- define vague terms so as to give adequate cord with the orders of the panel's opinion, guidance to the sentencer. On this issue, and the case then resurfaces in federal Idaho's highest court spoke as follows: court, which is probable, it will most cer- A similar limiting construction must be tainly do so on the basis of different aggra- placed upon the aggravating circum- vating circumstances. Thus, unless the er- stances in I.C. § 19-2515(f)(6) ', that ror is attended to now, Idaho may be "[b]y the murder, or the circumstances blocked from ever bringing this error- surrounding its commission, the defen- which now becomes the binding law of our dant exhibited utter disregard for human circuit as to this aggravating circum- life." To properly define this circumstance-to the attention of any court for stance, it is important to note the other correction. This is also true if Creech is aggravating circumstance with which not resentenced to death and the question this provision overlaps. The second ag- '* Section 19-2515(f)(6) is now section 19- 2515(g)(6). 890 947 FEDERAL REPORTER, 2d SERIES gravating circumstance, I.C. § 19- Idaho's "utter disregard" factor a. 2515(f)(2), that the defendant committed cused by Osborn is indistinguishable t another murder at the time this murdez the aggravating was circumstance approved by committed, obviously could show an the Supreme Court in Walton: utter disregard for human life, as could the third aggravating circumstance, I.C. "especially depraved" [i.e.J. when be § 19-2515(f)(3), that the defendant know- perpetrator "relishes the murder, e dencing debasement ingly created a great risk of death to or perversion." ,r "shows many persons. The same can be said for an indifference to the sufferinr of the fourth aggravating circumstance, the victim and evidences a sense o I.C. § 19-2515(f)(4), that the murder was pleasure in the killing." committed for remuneration. Since we Walton, 110 S.Ct. at 3058 (citation will not omit. presume that the legislative in- ted). How "objective" is "relishing tent was to duplicate the any already enu- murder, evidencing debasement or Perver merated circumstance, thus making I.C. sion"? How is that different from evidenc. § 19-2515(f)(6) mere surplusage (See, ing an "utter disregard for human life," e.g., Norton v. Dept of Employment, 94 defined as intentional, cold-blooded, and Idaho 924, 500 P.2d 825 (1972)), we hold without pity, and as requiring more than that the phrase "utter disregard" must just mass murder, murder for hire, ar.d be viewed in reference to acts other than endangering many people? This is not those set forth in I.C. § 19-2515(f)(2), just (3), "wicked and vile," as in Maynard '. Cart. and (4). We conclude instead that the wright, 486 U.S. 356, 362, phrase is 108 S.Ct. 1S3. meant to be reflective of acts 1858, 100 L.Ed.2d 372 (1988), or circumstances which are surrounding the crime simply pejorative adjectives that broad!v which exhibit the highest, the utmost, describe the crime. This is "utter, callous. callous disregard for human life, i.e., the cold-blooded, and pitiless disregard for cold-blooded, hu. pitiless slayer. With such man life," which is a standard that an interpretation, can be it is our conclusion that proved with facts and circumstances. this aggravating circumstance meets the "Cold-blooded" means carried out without constitutional requirements set forth by feeling or emotion. "Pitiless" means with- the United States Supreme Court. Upon out compassion for suffering. remand, the Contrary to district court should, in ac- does not call cordance the panel's assertion, Idaho with his opinion and the provi- for a purely "subjective determination" sions of of I.C.R. 33.1 and 33.2 (enacted whether a defendant is a "cold-blooded. subsequent to original sentencing in this pitiless slayer." Idaho requires an eviden- case), specifically set forth the facts and tiary determination supported by facts and reasoning underlying the finding, if any, circumstances. that a statutory aggravating circumstance exists. Such a determination under Idaho law must Osborn, 631 P.2d at 200-01. be set out in writing, and it is subject to scrupulous appellate review. Under the Walton rule, this not only gives "some guidance," Walton, 110 S.Ct. Idaho Code § 19-2515(e) states: at 3057, it gives substantive guidance. It Upon the conclusion of the evidence defines "utter disregard," in greater detail and arguments in mitigation and aggrs- than the statute itself, and it goes farther vation the court shall make written find- by telling the sentencer that he or she ings setting forth any statutory agg's- cannot infer "utter disregard" solely from vating circumstances found. Further. the fact that the defendant has committed the court shall set forth in writing any multiple murder, nor can it be inferred mitigating factors considered and, if the solely from a murder for hire, nor can it be court finds that mitigating circumstancs inferred solely from the fact that the de- outweigh the gravity of any !Iggravatin4 fendant knowingly created a risk of death circumstance found so as to miake unjust to many persons. the imposition of the death lienaltY, the CREECH v. ARAVE 891 Cite as 947 F.2 I 73 (9th Cir. 1991) court shall detail in writing its reasons fulfill the function of "meaningful appel- for so finding. late review" demanded by the decisions of the United States Supreme Court. About this section, the Idaho Supreme Court has said: Osborn, 631 P.2d at 196-97 (emphasis add- .C. § 19-2515(d) 2 is mandatory in its ed). These strict requirements add consid- terms: "the court shall set forth in writ- erable substance to the process and corral ing any mitigating factors considered." the possibility of excessive subjectivity. The reasoning behind a similar statutory The Idaho Supreme Court was careful to requirement for specific written findings verify the factual basis for the pertinent was explained by the Florida Supreme findings. The Supreme Court said: Court "The fourth step required by Fla.Stat. We turn now to whether the sentenc- ( 921.141. F.S.A., is that the trial judge ing judge complied with those statutory justifies his sentence of death in writing, provisions. Appellant argues that the to provide the opportunity for meaning- court erred in finding beyond a reason- ful review by this Court. Discrimination able doubt that the defendant has previ- or capriciousness cannot stand where ously been convicted of other murders; reason is required, and this is an impor- that the defendant had exhibited utter tant element added for the protection of disregard for human life and a propensi- the convicted defendant. Not only is the ty to commit murder- that the defendant sentence then open to judicial review and was under sentence for first degree mur- correction, but the trial judge is required der at the time of his actions; and that to view the issue of life or death within both defendant and his victim were in- the framework of rules provided by the mates at the state penitentiary when the statute." State v. Dixon, 283 So.2d 1, 8 crime occurred. We have reviewed the (Fla.1973) cert. den. 416 U.S. 943, 94 record and hold that the evidence at the S.CL 1951, 40 L.Ed.2d 295 (1974). sentencing hearing clearly supports the We feel the requirement of written and trial court's findings of aggravating detailed findings serves a dual purpose. and mitigating circumstances. Initially it focuses the attention of the Creech, 670 P.2d at 470. sentencing court upon all the information before it and requires a thorough and Furthermore, Idaho Code § 19-2827 re- reasoned analysis of all relevant quires the Idaho Supreme Court to verify factors. This helps assure that the impo- proportionality and to screen out passion, sition of the sentence of death is rea- prejudice, and arbitrariness with respect to soned and objective as constitutionally all sentences of death. This section reads required. It also serves the purpose, as in relevant part as follows: noted by the Florida Supreme Court, of (a) Whenever the death penalty is im- making the process for imposing death posed, and upon the judgment becoming rationally reviewable. On review, if the final in the trial court, the sentence shall mandates of LC. I 19-2515(d) are met, be reviewed on the record by the Su- we can determine whether the lower preme Court of Idaho. The clerk of the court overlooked or ignored any raised trial court, within ten (10) days after mitigating factors, whether the evi- receiving the transcript, shall transmit dence supports the aggravatingfactors the entire record and transcript to the found and finally whether the court Supreme Court of Idaho and to the attor- has properly weighed all factors. If the ney general together with a notice pre- findings of the lower court are not set pared by the clerk and a report prepared forth with reasonable exactitude, this by the trial judge setting forth the find- court would be forced to make its review ings required by section 19-2515(d), Ida- on an inadequate record, and could not ho Code, and such other matters concern- 2- Section 19-2515(d) is now section 19-2515(c). 892 947 FEDERAL REPORTER, 2d SERIES ing the sentence imposed as may be re- We hold that none of these recent Ida. quired by the Supreme Court. ho murder decisions militates toward the granting of leniency in the present case (b) The Supreme Court of Idaho shall We find no instance in which a defendant consider the punishment as well as any found guilty of such previous crimes aa errors enumerated by the way of appeal. those of Thomas Creech has been found deserving (c) With regard to the sentence the of a sentence less than death. We have examined court shall determine: [thirty-four] cases dating back more than 50 years and our (1) Whether the sentence of death was examination fails to disclose that imposed under the influence of pas- any such remorseless, calculating, cold-blool. sion, prejudice, or any other arbitrary ed multiple murderer has (with the ex. factor, and ception of Creech I [State u. Creech, 59 (2) Whether the evidence supports the P.2d 114 (1919) ] ever been before this aggravat- judge'sfinding of a statutory Court.... We hold that the death penal. ing circumstance from among those ty imposed in this case is both propor- enumerated in section 19-2515, Idaho tionate and just. and Code, Creeck, 670 P.2d at 476. . (3) Whether the sentence of death is excessive or disproportionateto the pen- Creech had the death sentence imposed alty imposed in similar cases, considering upon him by a judge not a jury.' Creech, both the crime and the defendant 670 P.2d at 466 ("[f]ollowing the conclusion of the sentencing hearing, the district court (d) Both the defendant and the state made its written' findings and pronounced shall have the right to submit briefs sentence of death upon Creech"). In Wal- within time provided by the court, and to ton, the United States Supreme Court held oral argument to the court. present that "[wihen a jury is the final sentencer, it (e) The court shall include in its deci- is essential that the jurors be properly in- sion a reference to those similar cases structed regarding all facets of the sen- consideration. In which it took into tencing process .. . (but t]rial judges are addition to its authority regarding cor- presumed to know the law and apply it in rection of errors, the court, with regard making their decisions." Walton, 110 S.Ct. to review of death sentences, shall be at 3057. In the instant case, as recognized authorized to: by footnote 12 of the panel's opinion, the (1) Affirm the sentence of death; or sentencing judge is thus presumed to have (2) Set the sentence aside and remand applied the judicial refinements provided to the case for resentencing by the trial him by Osborn. judge based on the record and argument Did the Idaho Supreme Court have Os- of counsel. born in mind while it processed the case (f) The sentence review shall be in ad. against Creech? The answer is yes. Jus- dition to direct appeal, if taken, and the tice Shepard, who wrote Creech, was on review and appeal shall be consolidated the Osborn panel. Moreover, the Idaho for consideration. Supreme Court in Creech referred to Os- (g) The Supreme Court shall collect born and quoted in haec verba the limiting and preserve the records of all cases in passage from Osborn that I quote earlier which the penalty of death was imposed in this opinion. See Creech, 670 P.2d at from and including the year 1975. 471. Thus, the Idaho Supreme Court had Idaho Code § 19-2827 (emphasis added). in mind the Osborn standard when it said. The Idaho Supreme Court applied § 19- "We now turn to whether the sentencing 2827 to Creech, saying: judge complied with those statutory prov-i 3. Just as in Walton, this case is also distinguish- either was instructed only in the bare terms of able from Maynard because Maynard "the de- the relevant statute or in terms nearly as vague. fendant was sentenced by a jury and the jury Walton. 110 S.Ct. at 3057. U.S. v. FADILLA 893 Citeas 947 F.2d 893 (10th Cr. 1991) sions.... We have reviewed the record court erred in considering 3.8 grams of and hold that the evidence at the sentenc- heroin in uncharged count in determining ing hearing clearly supports the trial aggregate amount of drugs for sentencing court's findings of aggravating and miti- purposes absent any explanation in presentence report as to basis for addition gating circumstances." Id. at 470. of 3.8 net grams. Since 1972 in Furman v. Georgia, 408 U.S. 238, 92 S.CL 2726, 33 LEd.2d 346 Remanded. (1972), the Supreme Court has established minimum but strict requirements certain 1. Criminal Law 4=1251 for states choosing to pursue capital punishment. Idaho has rigorously tailored its There was sufficient evidence in the laws to meet these requirements. In my record to support an upward adjustment of view, our court has strayed from the narcotics defendant's sentence for a super- course charted by the Supreme Court in visory role based on his role in the offense Walton and effectively established a stan- of conviction, possession with intent to dis- dard for Idaho more exacting than the one tribute less than 100 grams of heroin. established for Arizona. Hence, I DIS- U.S.S.G. § 311.1(c), 18 U.S.C.A.App. SENT. 2. Criminal Law 4=1181.5(8) Although there was sufficient evidence t 0 KEYMM RSYSTEM in record to support upward adjustment for supervisory role based solely on defendant's role in the offense of conviction, possession with intent to distribute heroin, reconsideration was warranted where sentencing court did not explicitly base its determination only on offense of conviction UNITED STATES of America, and referred to other offenses, particularly Plaintiff-Appellee, since remand was otherwise necessary for V. determination of supervised release term. Jerry Lawrence PADILLA, Sr., U.S.S.G. § 3B1.1(c), 18 U.S.C.A.App. Defendant-Appellant. 3. Criminal Law 0-1036.8 No. 89-2179. Defendant waived right to challenge weight of heroin involved in charged of- United States Court of Appeals, fense on appeal when he failed to challenge Tenth Circuit. weight at sentencing. Oct. 21, 1991. 4. Drugs and Narcotics 0-133 Trial court erred in considering 3.8 grams of heroin in an uncharged count in Defendant was convicted in the United determining the aggregate amount of States District Court for the District of drugs for sentencing defendant convicted New Mexico, Juan G. Burciaga, Chief of possession with intent to distribute less Judge, of possession with intent to distrib- than 100 grams of heroin; there was no ute less than 100 grams of heroin, and he explanation in presentence report as to ba- appealed. The Court of Appeals, Logan, sis for the addition of the 3.8 net grams. Circuit Judge, held that: (1) reconsidera- U.S.S.G. § 6A1.3, p.s., 18 U.S.C.A.App. tion of upward adjustment in offense level for supervisory role in the offense of con- 5. Criminal Law 4-986.2(1) viction was warranted on remand; (2) de- Although hearsay may be used in defendant waived right to challenge weight termining a sentence, some indicia of relia- of heroin in charged offense by failing to bility is required. U.S.S.G. § 6A1.3, p.s., raise objections at sentencing; and (3) trial 18 U.S.C.A.App. GRAHAM v. COLLINS 1009 Cie as 9' FId I009 (Sth Cr. 1992) excess of the maximum limit initially provided. The plan administrator has never Gary GRAHAM, Petitioner-Appellant, sentence been called on to interpret the last V. of the limited amendment provision. We decline to predict whether the administra- James A. COLLINS, Director, Texas tor will construe future sequela of Grego- Dept. of Criminal Justice, Institutional ry's 1983 injury as "claim(s] arising prior Division, Respondent-Appellee. to" any future amendments that are pro- No. 88-2168. seek to reduce or other- posed that would United States Court of Appeals, wise limit the $500,000 lifetime maximum Fifth Circuit benefit If the administrator determines covered expenses which Gregory incurs to Jan. 3, 1992. be claims arising prior to amendment, Gregory's right to reimbursement would be protected by the limited amendment lan- State prisoner under death sentence guage and cannot be prejudiced. Any such sought habeas corpus. The United States entitlement would flow, not from ERISA, District Court for the Southern District of but from the terms of the plan. Until the Texas, David Hittner, J., denied relief. Pe- administrator is required to rule on the tition for probable cause was denied by the status of a covered claim made by Gregory, Court of Appeals, 854 F.2d 715. The Unit- however, the grant of declaratory relief ed States Supreme Court vacated, 492 U.S. would be premature. 915, 109 S.CL 3237, 106 L.Ed.2d 585. On remand, the Court of Appeals granted habeas corpus, 896 F.2d 893 and rehearing en III. banc was ordered, 903 F.2d 1014. The For the foregoing reasons, the judgment Court of Appeals, Garwood, Circuit Judge, awarding benefits for treatment at Tan- held that Texas death penalty statute ade- gram is REVERSED and judgment is quately allowed for consideration of miti- RENDERED in favor of Halliburton and gating factors of defendant's youth and of the plan; dismissal of the plan's subroga- defendant's respect for his family members tion counterclaim is VACATED and the and support for his children as they were claim is REMANDED for a determination, relevant to the special issue of whether consistent with this opinion, of whether the defendant would represent a continuing plan is entitled to relief; the award of threat to society. attorneys' fees is VACATED; and the dec- Dismissal of petition affirmed. laration of Gregory's entitlement to future Reavley, Circuit Judge, dissented and benefits is VACATED in accordance with filed an opinion in which Politz, King, W. the views set forth in this opinion. Eugene Davis, and Wiener, JJ., joined. REVERSED and RENDERED in part, Patrick E. Higginbotham, Circuit and, in part, VACATED and REMANDED. Judge, filed a dissenting opinion. Opinion, 896 F.2d 893, superseded.

1. Habeas Corpus 4-818

o sIKNU s M Standard for granting certificate of probable cause requires that habeas petitioner make substantial showing of denial of federal right. 2. Criminal Law 41213.8(8) Imposition.of death sentence on 17- year-old convicted of capital murder did not 1010 950 FEDERAL REPORTER, 2d SERIES violate Eighth Amendment U.S.C.A. 8. Criminal Law e1208.1(5) Const.Amend. 8. Merely because mitigating evidence 3. Criminal Law <=641.13(7) has some relevance to a negative answer to one of the special Trial attorney in state capital murder issues submitted to the jury at the sentencing trial was not ineffective, although defen- phase under Texas death penalty statute does dant contended attorney construe death not necessarily suffice to sustain penalty statute as precluding consideration the application of the statute. Vernon's of mitigating factors; attorney was not in Ann.Texas C.C.p. art 37.071(b) (1990). . any way discouraged by statute from presenting mitigating evidence of defen- 9. Criminal Law 4-1206.1(2) dant's psychiatric treatment but, rather, his Where no major mitigating thrust of decision not to pursue that course resulted evidence presented at sentencing phase is from his belief that little convincing evi- substantially beyond the scope of the three dence existed and that damaging rebuttal special issues submitted under the Texas evidence would be introduced. Vernon's death penalty statute, i.e., whether the con- Ann.Texas C.C.P. art. 37.071; U.S.C.A. duct was deliberate, whether there is Const.Amend 6. a probability that defendant will commit 4. Habeas Corpus *-718 criminal acts in the future, and whether the defendant was acting in response Competent evidence supported state to provocation, the Texas statutory court finding that defendant was compe- scheme is valid and allows tent to be executed. proper consideration of all mitigating evidence presented. Vernon's 5. Habeas Corpus e773 Ann.Texas C.C.P. art. 37.071(b) (1990). Habeas petitioner failed to overcome 10. Criminal Law 4=1206.1(2) presumption that state trial court's finding Mitigating that defense counsel was effective was cor- factors of relative youth and evidence reflecting good character rect. U.S.C.A. Const.Amend. 6. traits, such as steady employment and 6. Constitutional Law *=270(1) helping others, are adequately covered by Criminal Law 41206.1(2), 1213.2(2) second special issue of the Texas death Searches and Seizures e12 penalty statute which asks the jurors to consider whether there is a probability that Texas death penalty statute provides defendant will commit criminal acts of vic. proportionality and does not violate Fourth, lence and will constitute a continuing Fifth, Sixth, Eighth or Fourteenth Amend- threat to society. Vernon's Ann.Tezas ments. U.S.C.A. ConstAmends. 4-4, 8, 14; C.C.P. art. 37.071(b) (1990). Vernon's Ann.Texas C.C.P. art. 37.071. 11. Homicide 4-357(6) 7. Constitutional Law 4221(1, 5), 250.- or tr 2(1, 4), 265, 267 Evidence of good character condition, such as youth or being a Grand Jury itory 421h der some particular emotional burdeo at Jury 433(2.1) the time of the homicide, will typically tend Exclusion of 18-year-olds and blacks to indicate that the crime in question is no from grand jury and petit juries in state truly representative of what the def capital murder trial did not violate defendant's normal behavior is, or may beaUse dant's due process and equal protection over time, and will tend to indicate th rights; peremptory challenges against defendant may be rehabilitated so As mot blacks resulted from venireman's testimo- be a continuing threat to society and S ny that they were opposed to death penalty mitigating evidence is adequately sA0' and no case law suggested that the exclu- ed for under the Texas death penalty 4. sion of 18-year-olds is unconstitutional. ute by the requirement that the jurOrs 00 U.S.C.A. Const.Amends. 5, 14. sider likelihood of defendant's futu w GRAHAMv . COLLINS 1011 Cite as 950 F.d I 009 (5th Ctr. 1992) gerousness. Vernon's Ann.Texas C.C.P. adequately presented to the jury by Texas art. 37.071(b) (1990). death penalty statute. Vernon's Ann.Tex- 12. Homicide 4357(6) as C.C.P. art. 37.071(b) (1990). Defendant's youth as a mitigating 16. Homicide 0357(4) factor in capital murder prosecution was Defendant's youth, respect for his fam- adequately encompassed by special issue ily, and support of his children had mitigat- asking the jury whether defendant was ing relevance to special issues under Texas likely to be a danger to society in the law of whether the conduct of the defen- future, and that special issue adequately dant was committed deliberately and with allowed jury's consideration of that miti- reasonable expectati6n that death would gating factor; whatever is mitigating result and whether the conduct of defen- about youth tends to lend support to a "no" dant was unreasonable in response to any answer to that special issue and its tenden- provocation of the deceased. Vernon's cy to do so is essentially proportional to the Ann.Texas C.C.P. art 37.071(b) (1990). degree to which the jury considers that such factors as youth were influential in defendant's probable conduct. Vernon's Douglas M. O'Brien, Houston, Tex., for Ann.Texas C.C.P. art. 37.071(b) (1990). petitioner-appellant. 13. Homicide e357(4) Robert S. Walt, Asst. Atty. Gen., Austin, Youth is not a factor mitigating Tex., for respondent-appellee. against imposition of the death penalty Appeal from the United States District with respect to a defendant's conduct Court for the Southern District of Texas. which is not attributable to youth. Ver- non's Ann.Texas C.C.P. art. 37.071(b) On Remand from the Supreme (1990). Court of the United States Before CLARK, Chief Judge, 14. Homicide 4-357(6) REAVLEY, POLITZ, KING, GARWOOD, Mild evidence of normal and good char- JOLLY, HIGGINBOTHAM, DAVIS, acter on defendant's part, such as respect JONES, SMITH, DUHP, WIENER, and for his grandmother and stepfather and his BARKSDALE, Circuit Judges.* closeness to his mother, his lack of violence, his willingness to help out around GARWOOD, Circuit Judge: the house, and his contribution to the sup- A panel of this Court previously affirmed port of his children was related to special the district court's denial of Gary Graham's issue under Texas death penalty statute of habeas corpus petition challenging his Tex- whether there was a probability that defen- as capital murder conviction and death sen- dant would be a continuing threat to socie- tence. Graham v. Lynaugh, 854 F.2d 715 ty, and statute requiring the jury to answer (5th Cir.1988). Thereafter, the United that special issue adequately allowed for consideration States Supreme Court, in Graham v. Ly- of that mitigating evidence. naugh, 492 U.S. 915, 109 S.Ct. 3237, 106 Vernon's Ann.Texas C.C.P. art. 37.071(b) (1990). LEd.2d 585 (1989), issued a per curiam order that granted Graham's petition for IL Homicide -357(4) writ of certiorari, vacated the judgment of Evidence that defendant's mother was this Court, and remanded the case to this frequently hospitalized with a nervous con- Court "for further consideration in light of dition or mental illness from the time that Penry v. Lynaugh," 492 U.S. 302, 109 S.Ct. defendant was approximately three years 2934, 106 LEd.2d 256 (1989). Pursuant to old was not comparable to evidence of a that remand order, a panel of this Court defendant's own mental illness or retarda- reconsidered the case, and, by a divided tion which might be a mitigating factor not vote, vacated Graham's death sentence, the Judges Emillo M. Garza and Harold R. DeMoss. the En Banc Court and elected not to participate Jr were sworn in after this case was argued to in this en banc decision. - . 1012 950 FEDERAL REPORTER, 2d SERIES panel majority determining that the Texas Procedural History ca-pital sentencing system was unconstitu- Over his tionally applied in Graham's case because plea of not guilty, Graham wu the jury at the sentencing phase of his convicted by a Texas court jury in October trial, having been given no special instruc- 1981 of the offense of capital murder, the tions, was not able to adequately consider May 1981 intentional killing of Bobby Las. and give effect to Graham's youth as a bert by shooting him with a pistol while in mitigating factor. Graham v. Collins, 896 the course of robbing or attempting to rob F.2d 893 (5th Cir.1990). Having ordered him. Texas Penal Code, art. 19.03(a)2 rehearing en bane, id 903 F.2d 1014 (5th At the sentencing phase of the trial, the Cir.1990), we have again reconsidered the jury answered in the affirmative each of case in light of Penry and, disagreeing the three special issues provided for in with the panel majority's determination in Texas Code of Criminal Procedure, art. 3t.. this respect, we now reinstate our former 071(b), and Graham was accordingly sea- affirmance of the district court's denial of tenced to death.' On direct appeal, Gm. habeas relief. ham's conviction and sentence were af- 1. The 1988 and 1990 panel opinions in this case "(2) it may not answer any issue 'no' unles erroneously indicated that only the first two 10 or more jurors agree. issues specified in art. 37.071(b) were submitted. "(e) If the jury returns an affirmative fin& Se4 id, 896 F.2d at 898 n. 4 and 854 F.2d at 718. ing on each issue submitted under this article, Until 1991. sections (a) through (e) of art. the court shall sentence the defendant to 37.071 provided, as they did also in 1981, as death. If the jury returns a negative finding follows: on or is unable to answer any issue submitted "(a) Upon a finding that the defendant is under this article, the court shall sentence the guilty of a capital offense, the court shall defendant to confinement in the Texas De conduct a separate sentencing proceeding to partment of Corrections for life." determine whether the defendant shall be sen The above provisions are the same as when the tenced to death or life imprisonment. The statute was first enacted in 1973 (except that by proceeding shall be conducted in the trial 1981 amendment the word "three" was insertel court before the trial jury as soon as practica- in the opening clause of section (b)). ble. In the proceeding, evidence may be In May 1991 the Texas Legislature passed to presented as to any matter that the court bills amending art. 37.071. S.B. 880, ch. 83 deems relevant to sentence. This subsection 72nd Leg., R.S.1991, extensively amends the shall not be construed to authorize the intro Texas capital sentencing procedure, including duction of any evidence secured in violation art. 37.071, and specifies an effective date of of the Constitution of the United States or of September 1, 1991, but is expressly made appli. the State of Texas. The state and the defen- "only" to offenses "committed on or after dant or his counsel shall be permitted to cable September 1. 1991." S.B. 880, § 5. The present argument for or against sentence of S.B. 880 § I to art. 37.071 death. changes made by "(b) On conclusion of the presentation of include the entire elimination of the former the evidence, the court shall submit the fol- first and third special issues (the former second lowing three issues to the jury- special issue is retained verbatim in all cases). "(I) whether the conduct of the defendant provision for a new special issue where the jury that caused the death of the deceased was charge allowed the defendant to be found guilty committed deliberately and with the reason under the law of parties, and provision in all able expectation that the death of the de- cases for the following new special issue: ceased or another would result; "Whether, taking into consideration all Of "(2) whether there is a probability that the the evidence, including the circumstances of defendant would commit criminal acts of vio. the offense, the defendant's character and lence that would constitute a continuing background and the personal moral culpab! threat to society* and ty of the defendant, there is a sufficient Initi "(3) if raised by the evidence, whether the gating circumstance or circumstances to war* conduct of the defendant in killing the de- rant that a sentence of life imprisonment t51b- ceased was unreasonable in response to the er than a death sentence be imposed." provocation, if any, by the deceased. If all issues submitted are answered adversely to "(c) The state must prove each issue sub. the defendant, the sentence is death; otherwise* mitted beyond a reasonable doubt, and the the sentence is life imprisonment. S.B. 880 W" jury shall return a special verdict of 'yes' or finally passed May 17. 1991. and was filed with' 'no' on each issue submitted. out the Governor's signature on June 16. 1991. "(d) The court shall charge the jury that: The other bill. H.B. 9. ch. 652, 72nd 14- "(1) it may not answer any issue 'yes' unless R.S.1991, was finally passed May 27, 1991. and it agrees unanimously, and was signed by the Governor June 16, 1991. Sec. GRAHAM v. COLLINS 1013 Cite as 950 F.2d I 009 (Sth Ctr. 1992) issues, which mandate the death penalty if oreed by the Texas Court of Criminal Ap- peals in an unpublished opinion. Graham all are answered affirmatively, see note 1, subsequently sought habeas corpus relief supra, do not permit the jury to adequately in the Texas courts. After holding an evi- weigh mitigating circumstances when for- dentiary hearing on Graham's allegations, mulating their answers. Id. at 718-20. the convicting trial court recommended de- The factors Graham relied on as mitigating nis of relief, transmitting to the Court of were primarily his youth-he was seven- Criminal Appeals findings and conclusions teen at the time of the offense-and certain rejecting Graham's contentions. The Court matters reflected by evidence concerning of Criminal Appeals thereafter denied re- his childhood.' Id. The panel relied partic- Bef pursuant to an unpublished opinion. ularly upon Franklin v. Lynaugh, 487 U.S. Graham then brought the present pro- 164, 108 S.Ct. 2320, 101 LEd.2d 155 (1988), ceedings under 28 U.S.C. § 2254 in the and concluded by holding that "the jury's district court. That court denied relief verdict ... is consistent with the constitu- without an evidentiary hearing, and derizd tional requirements outlined in Franklin stay of execution and a certificate of pioba- and other precedents." Id. at 719.3 ble cause. A panel of this Cn-- granted an interim stay, but ultimat.aly denied Gra- [1-7] Following the Supreme Court's ham's application for eu-tficate of projable remand for reconsideration in light of Pen- cause. Graham, 854 F.2d i1'- - Judge ry, the panel again grappled with this diffi- Jolly, in his opinion zor -ie panel consisting cult issue.' Judge Reavley, for the panel of himself and Judges Reavley and King, majority, held that: considered and rejected seriatim each of "The mitigating evidence that Graham Graham's several claims. In part IIB of introduced during sentencing included the opinion, the panel dealt with Graham's his youth and his difficult childhood. contention that the Texas statutory special Graham argues this evidence is relevant tion 9 of H.B. 9 provides that art. 37.071 "is 3. The 1988 panel did, however, observe (id at amended to read as follows" setting it out in full 720, n. 8): in the same form as it existed previously (or "We do not suggest that this area of the law before May 1991) with only minor, technical is devoid of wrinkles. The Supreme Court changes (a new section 1is added providing that has recently granted certiorari in the case of the judge shall sentence the defendant to life Penry v. Lynaugh, 832 F.2d 915 (5th Cir.1987), imprisonment if the state does not seek the cm granted (487] U.S. [1233], 108 S.CL 2896, death penalty; the remainder of art. 37.071 is 101 LEd.2d 930 (1988). In Penr our court put into its section 2, stated to apply only if the closely scrutinized evidence of Peary's mental state seeks the death penalty; the only other retardation and concluded that there was changes are from 'upon" to "on" at the begin- some doubt whether the Texas statute permit- ning of section 2(a) and using the current desig- ted this evidence to be considered in answer- nation for the former Texas Department of Cor- ing the sentencing questions. 832 F.2d at rections in section 2(e)). H.B. 9 specifies Sep- 925." tember 1, 1991 as its effective date (section 16). and its section 15(a) states: "(a) The changes in 4. With respect to the other issues in the case. law made by Section 1-9 and 11. 12. and 13 of the 1990 panel opinion observed: this Act apply to the trial of a capital offense In remanding this case, the Supreme Court that commences on or after the effective date of neither expressed nor suggested disagreement this Act, whether the trial is for an offense with any part of our prior opinion other than committed before, on. or after the effective that relating to Graham's argument that the date.- Texas statutory sentencing procedure does not We merely note these 1991 enactments, and allow the jury to consider fully the relevant express no opinion with respect to whether, for mitigating circumstances, which is discussed offenses committed on or after September 1, in section IB of that opinion. Accordingly, 1991. the controlling form of art. 37.071 is as with the exception of section IIB, we reinstate provided in S.B. 880 § I or H.B. 9, § 9. our prior opinion.' Id. 896 F.2d at 894. We agree, and reinstate this portion of the 1990 . The panel also, among other things, rejected panel opinion. For the same reason, we sim- Graham's contention that the Eighth Amend- ilarly deny relief with respect to Grabam's con- ment prohibited execution for an offense com- tentions addressed in footnotes 5, 7. and 9 of the mitted when the defendant was less than eigh- 1988 panel opinion. Id. 854 F.2d at 718 n. 5. teen years old. Id. 854 F.2d at 717-718. 719 nn. 7 & 9. 1014 950 FEDERAL REPORTER, 2d SERIES beyond the scope of the special questions before Lambert did. So far as the evid.f and that, because no additional instruc- showed, the perpetrator acted alone. 0nl tions were given, the Texas statute was one of the witnesses, Mrs. Skillern, was unconstitutionally applied in his case. able to identify Graham as the perpsa Because of Graham's age, we agree." tor.' She ultimately so identified Grahae Id at 897.3 in a May 26 photographic display and in a Judge Jolly, in his 1990 dissent, concluded May 27 police station "line-up," as well as that the second special issue adequately in her open court trial testimony. Defense encompassed any mitigating aspects of counsel attacked Mrs. Skillern's identifc youth that the jury must constitutionally tion, both by vigorous crossexaminadoe be free to consider, as Graham's youthful- and by emphasizing in argument the faD, ness was such a factor only to the extent ure of the other witnesses, at least one of his offense was a product of it, and youth whom was closer to the events in questic, was necessarily a transitory condition that to make an identification! However, a the jury could fully take into account "by defense evidence was presented. In clo giving a negative answer to the. future ing argument defense counsel did not sa. gest -'hat dangerousness inquiry of the second pe- the evidence failed to show that cial issue." Id. at 899. the offense t'harged had been committed, .ut rather that 1t failed to show that Gr's Context Facts ham '.*, the one wh,.) committed it. At the guilt-innocence phase of the trial, At the senterdiknearing, no evidence Graham's defense was essentially only one was introduced concerning the offense of of insufficient identification. The state conviction. The state introduced extensive presented several witnesses to the shoot- evidence showing that on five different ing, which occurred at about 9:30 p.m. on days during the week following his murder Wednesday, May 13, 1981, in the parking of Lambert, Graham committed robberies lot of a Safeway Food Store in Houston, at a total of nine separate locations and in Texas. The perpetrator, a man wearing each instance Graham leveled either a pit black pants and a white jacket, bumped tol or a sawed-off shotgun on the victim into Lambert, who was carrying a sack of The first of these was on May 14, and the groceries out of the store, and attempted to last on May 20. These offenses involved grab Lambert's wallet Some of the testi- some thirteen different victims, including mony indicated that there was a brief women aged fifty-seven and eighteen and struggle between the two. Lambert men aged sixty-four, fifty-seven, eighteen, pushed at the perpetrator, and each and other ages. With respect to a few of stepped back; the perpetrator produced a these occasions, the evidence indicated Gra' pistol, leveled it at Lambert's chest, and ham was using marihuana. In addition to shot him in the heart from a distance of money and personal effects, five vehicles about two to three feet. The perpetrator were stolen. Two of the victims were pis' then fled without being apprehended. tol whipped, one of them being shot in the Lambert staggered back toward the store, neck. These were the only serious physical fell, and died on the spot The perpetrator injuries. Graham glancingly struck anoth had been observed in the store when Lam- er victim, the sixty-four-year-old man, with bert was there, but had left a few minutes the vehicle he was stealing, apparently T 5. The 1990 panel majority, though summarizing that they did not get a good enough look at (Or the evidence presented by Graham respecting sufficiently recall) the perpetrator's face t his childhood. iL, did not address whether that make an identification. evidence, of itself, would have required some further instruction or jury submission beyond 7. The defense also sought to suppress Mrs. Skl' that given. As to the Penry issue, the panel only addressed "Graham's age." lern's testimony on the basis that the Phow graphic display and line-up were unduly sii0* 6. The other witnesses did not testify to anything tive. After an extensive hearing out of the Pep suggesting that Graham was not (or did not ence of the jury, this motion was ove resemble) the perpetrator, but merely stated GRAHAM v. COLLINS. 1015 Cite as 950 F.2d I o9 (5th Clr. 1992) to run over him. The fifty-seven-year- She is the nervous type." Samby stated after that he had never known Graham to be a g loman was kidnapped and raped, 'whic Graham fell asleep in her apartment, violent person, that Graham had been "real At contacted the police and he was arrest- nice, respectable" with him and, when read there, thus bringing his crime spree to quested to help out around Samby's house, s end. On five of these occasions Graham such as by cutting the grass or to "clean apparently acted alone; on four others an up and help his mother," Graham "would :aSeomplice (not shown to be of a different do it and be glad to do it for me." Graham ag from Graham) was present or nearby, was one of four brothers, and had no sis- but Graham wielded the weapon. At least ters. Samby had three children of his own six of the separate incidents, including that living in his house. Graham had two chil- ;vh the sixty-four year old and the two dren, one four and the other two. Graham ,with the fifty-seven year olds, involved would "buy ... clothes for his children and ,Graham practicing initial successful decep- try to give them food."8 -do on the victim. The state also intro- Chron testified that her grandson testimony of a Texas Youth Council Gra- -doced ham began staying with her intermittently, she had been familiar since .amployee that beginning "when he was around three," o unspecified time in 1979 with Graham's -eputation in the community for being a because his mother was frequently hospi- peaceful and law-abiding citizen, and that it talized for a "nervous condition" that was bad, she gave no elaboration or specif- Chron said was "mental illness." He ks whatever and did not state how she would stay with his mother when she was aquired this information, except that it not hospitalized. However, at about age was not based on her own personal obser- eleven or twelve Graham went to live with vation. This was the entirety of the state's his father and "he has been with his father evidence at the punishment stage. ever since." Graham's mother had been The only evidence presented by the de- hospitalized "at least twenty times." Chron further stated that while Graham fense at the sentencing stage consisted of was living with her he attended the testimony of Graham's stepfather, Joe school, "he would go to church all the time and every- Samby, and his grandmother, Erma Chron. Samby testified that he had been married thing. He loved the Lord," and he didn't to Graham's mother for about five years, give Chron "any problems or trouble." and had known Graham for about five Chron also testified that Graham never had years. He said Graham was fifteen when any weapons, and "he has never been vio- he (Samby) first met him. Graham lived lent." with his father, and worked with him, but Apart from Samby's testimony that he Samby did not know what kind of work had known Graham about five years and Graham did. Graham would come by Sam- first knew him when Graham was fifteen, by's house once or twice a week to visit his which would indicate that Graham was mother. Graham had "real, real respect nineteen or twenty when the offense was for his mother. He cared about his moth- committed, there was no evidence before er. He was real close to his mama." His the jury as to Graham's age.' Neverthe- mother was present in the courtroom, but less, each of Graham's two attorneys, in Samby explained "she can't do nothing be- their closing arguments at the punishment catuse she is on medication and nervous. stage, argued to the jury, without prosecu- L There was no evidence as to where Graham's sel. Graham was thus seventeen years and children lived or whether Graham was or had eight months of age when the offense was com- been married. mitted. Records of the late May 1981 line-ups at which Graham was identified, which were HoweverH* it is undisputed that Graham was in fact born on September 5. 1963, this being re- not before the jury but were put in evidence flected in a report of a pretrial psychiatric ex- only in hearings out of the presence of the jury antnation filed in the papers of the case in on suppression motions, also reflect that Gra- August 1981. the examination having been or- ham was seventeen at that time. dered by the court on motion of defense coun- 1016 950 FEDERAL RE PORTER, 2d SERIES tion objection, that Graham was seventeen Graham's other counsel argued in a . when his offense was committed. ilar vein, stating: The first defense counsel's argument in- "... there are only two answers, an that cluded the following: is a choice. Life or death. Life i the penitentiary at the age of 18 year "We have to make a decision on this old. What is the meaning of pu young man, Gary Graham. What do we ment? Why do we punish.... we. know about Gary Graham? One thing all leaving. Everyone here gets to lea we know about Gary Graham is from but him. He either goes to live for life it May 13 through May 20th he reaped the penitentiary or be prepared for death havoc and hell on a lot of people. May by injection, and when you look at a 13, 14, 15, 16, 18 and 20th five days. young man of his age, what do you think Pure hell. What do we know about Gary about? What do you think about the Graham? We know that at age 3 he years when you think about death. Ya went to live with his Grandmother be- think about finishing the years of you cause his Mother was placed in a mental life back when you are at a point in you institution or placed herself in a mental life when some people have no directio. institution. We know he lived on and off Some people have no knowledge of with his Grandmother and when she where their (sic] going or what they would come out of the hospital he would want to do. Some of us are more fort. live with her and when she would go nate. You also have to look at change back he would go live with his Grand- in society. Changes in ages. See, be mother. Draw your own conclusions to cause what you are called upon to do is that, what type of life he lived. You predict whether some time in the futm heard from his Step-father. He stated Gary Graham could become a person fit that Gary Graham would come to his to return to society. At least he is aliw. house and visit his Mother every now See, when you are 17 or 20, you ar and then. You heard from his Grand- young, hot-to-trot. You are going to set mother, that Gary Graham has 2 children the world on fire one way or the other, of his own.... Gary Graham is a young right or wrong. When people come in man. No doubt about it.... A young their middle 20's. and middle 30's, a man, hasn't even reached 20 years old. change a little bit from your more radicl Not even 20 years old. He goes on a stands to a more somewhat upright po& rage for 7 days, 7 days out of his life. ture because you have had not only tim He is not going to ever forget.... I to think, but to see what is in the world would hope that it was something on the Most of the crime is committed by young witness stand that you either heard that people. By the time you get to 25 or 35, show some redeeming value. Something it's different 35 and above.... because nature in Gary Graham's life to say that possi- there is something about human bly he can be rehabilitated. Possibly. that not only changes you, but slows Yo" And I would urge each and every one of down as you live. If you live. If you you all that there is a glimmer or a live...." possibility that his life can change, given The prosecution's argument did not refer that opportunity.... Gary Graham, 17 to Graham's age in any way except to onc years old, went on a rage for 7 days. acknowledge "his youth." The prosecuton What did he do? He harassed people. stressed Graham's killing of Lambert &0 He stuck guns in their face. He shot an his other many serious offenses in the Io) individual and he killed another individu- lowing week, stating in part: al. What was it in response to? Why "Gary Graham does have direction, ' did he become so aggressive? What he has shown you that direction. Ie MIs makes an individual go on a rage for 7 shown you that direction in every wl? days? Drugs? Alcohol? Maybe. Life? that you can possibly look at...- Maybe...." (There are certain individuals in our 0 GRAHAM v. COLLINS 1017 Cite as 950 F2d 1009 (5thCir. 1992) iety that we have got to look at. And the penitentiary for life," and that in an- we have got to realize that are not fit to swering the three special issues they could live with us. The evidence beyond a take into consideration all the evidence sub- reasonable doubt shows that Gary Gra- mitted both at the guilt-innocence stage ham is not fit to live in this society, that and at the punishment stage. 0 The three he will constitute a continuing threat to special issues called for by art. 37.071(b) society. Compassion? They ask for were submitted, and each was answered in compassion. We ask you for his life.... the affirmative. Neither side objected to Rights of the individuals of this society. the charge or the issues submitted or re- The life of Bobby Grant Lambert. They quested any other or further instructions say look at his youth. When does a or issues." human life taken the way he took that life of Bobby Grant Lambert cease to have meaning? It ceases to have mean- Discussion ing when the terror and the degradation In Jurek v. Teras, 428 U.S. 262, 96 S.Ct. of a man such as him holds that life in 2950, 49 LEd.2d 929 (1976), the Supreme his hand. ... Compassion? Care? Court sustained the Texas capital sentenc- Have you just looked at him? ... Death ing procedure of art. 37.071. This case is the only protection that you, as the requires us to examine what, if anything, jury, and society can protect from people remains of Jurek and art. 37.071 after Pen- and especially Gary Graham. The seeds ry. To provide context for this examina- of our past are the harvest of the future tion, an overview of some of the other and what seeds has Gary Graham plant- leading decisions of the Supreme Court in ed? And where has he sowed those this area is appropriate. seeds? In the fertile earth? No. He buried Bobby Grant Lambert in the Context cases earth. His seeds are death. Pain. Suf- In Furman v. Georgia, 408 U.S. 238, 92 fering. Humiliation. Degradation. S.Ct. 2726, 33 LEd.2d 346 (1972), the Court What do those things bring? But one effectively struck down all capital punish- thing tell you what Gary Graham is. ment statutes then in place. The crucial You have seen his actions. You have votes in Furman were those of Justices heard from the mouths of these people. Stewart and White, who, as Justice Scalia Deliberate conduct... ." observed in Walton v. Arizona, - U.S. Neither side made any objections to the -, 110 S.Ct. 3047, 3061, 111 L.Ed.2d 511 other's argument The court instructed (1990) (concurring opinion), "focused on the the jury in accordance with article 37.071, infrequency and seeming randomness" including informing them that the sentence with which the death sentence was imposed would be either "death or confinement in under the then existing discretionary sys- 10. The jury was also instructed that the state plained that "Article 37.071 leaves with both the still had the burden of proof, which never shift- judge and the jury a vas(t] residue of discretion ed to the defendant, and that 'each special issue which is precisely what the Supreme Court in submitted must be proved by the state beyond a Furman (v. Georgia, 408 U.S. 238. 92 S.Ct. 2726, reasonable doubt" and none could be answered 33 LEd.2d 346 (1972) ] condemned" and argued 'yes unless all jurors were convinced beyond a that "Ic]onsequently, the inquiry [of the article reasonable doubt that it should be so answered. 37.071 issues] is fraught with standardless dis- 11. Prior to trial, the court bad denied defense cretion in the hands of the jury." counsel's motion to "hold article 37.071 ... un- There was no suggestion in the motion or constitutional and void." This motion was memorandum that defendant complained of in- rounded on the contention that the special sufficient discretion (or an insufficient vehicle ussues called for were too "vague and indefi- to give effect to it) to determine that the defen- nitc" and thus "allow total discretion to a jury dant would not receive the death penalty, or to make unfavorable findings against a Defen- that the jury was not given an adequate basis to dant, and such findings may be based on any consider or give effect to its conclusions con- Prejudice the jury may have, individually or as a cerning defendant's age or background. The whole." The supporting memorandum ex- complaint was indeed the reverse. 1018 950 FEDERAL REP ORTER, Zd SERIES tem.'2 Following Furman some thirty-five system that does not create a substanta states adopted new capital sentencing stat- risk of arbitrariness or caprice." I. It utes that reduced or narrowed the sentenc- 2939. Proffitt applied the Gregg rationae er's discretion in determining whether or to uphold the somewhat similar Florid not to impose the death penalty. The Su- scheme. Woodson, however, struck down preme Court ruled on five of these statutes the North Carolina statute under which the on July 2, 1976. Gregg v. Georgia, 428 death penalty was made mandatory for U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 first degree murder, in that case murder (1976); Jurek; Proffitt v. Florida,428 U.S. during the course of robbery. The Court 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); noted that among the "constitutional short. Woodson v. North Carolina, 428 U.S. 280, coming[s]" of this statute was "its failure 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Rob- to allow the particularized consideration of erts v. Louisiana, 428 U.S. 325, 96 S.Ct. relevant aspects of the character and 3001, 49 L.Ed.2d 974 (1976). Gregg sus- record of each convicted defendant," and tained the Georgia statute, which directed that in capital cases the Eighth Amend the sentencer to consider listed and unlist- ment "requires consideration of the charac ed aggravating and mitigating circum- ter and record of the individual offender stances, but allowed a death sentence only and the circumstances of the particular of- if at least one listed aggravating circum- fense." Id., 96 S.Ct. at 2991. Rober stance were found. The Court observed applied the same rationale to invalidate the that "Furman mandates" that the capital Louisiana statute under which the death sentencer's "discretion must be suitably di- penalty was likewise mandatory for first rected and limited so as to minimize the degree murder. risk of wholly arbitrary and capricious ac- the same tion," id. 96 S.Ct. at 2932, and warned We turn now to Jurek, decided to uphold against sentencing standards "so vague day. There seven justices voted in art. 37.- that they would fail adequately to channel the Texas scheme as embodied than the sentencing decision patterns of juries 071, but no opinion attracted more Court with the result that a pattern of arbitrary three votes. The judgment of the and capricious sentencing like that found was announced in Justice Stewart's opin' unconstitutional in Furman could occur." ion, which Justices Powell and Stevens Id at 2935 n. 46. Gregg goes on to note, joined, and this opinion has generally been of however, that "the isolated decision of a understood as expressing the rationale Stewas jury to afford mercy does not render un- the Court's action.'3 Justice at constitutional death sentences imposed on opinion summarizes the facts adduced Jurek "22 defendants who were sentenced under a trial, including evidence that power to & 12. Justice Stewart, for example, observed that of not extend to juries discretionary of capital crimes "many just as pense mercy, and it should not be assumed t those convicted nullify their instrucuol reprehensible as these, the petitioners are juries will disobey or among a capriciously selected random handful Id., at 2959. upon whom the sentence of death has in fact Justice White, joined by then Chief Ju4c been imposed" and that the Constitution could Burger, Justice Blackmun, and then Justic 96 S.CL I not tolerate systems that 'permit this unique Rehnquist, dissented in Roberts, id, penalty to be so wantonly and so freakishly 3008-3020. and also in Woodson. Justice Blck' imposed." Furman, 92 S.CL at 2762-63. Justice mun wrote a separate dissent in Woodsonrs at issue White observed that under the statutes did not join Justice White's dissent there. "there is no meaningful basis for distinguishing S.CL at 2992-93. In Jurak Justice Blackodn is 96 the few cases in which it [the death penalty] separately concurred in the judgment, with 00 which it is J3016 imposed from the many cases in a brief reference to his Furman dissent.M not." Id. at 2764. 96 S.Ct. at 2960. Justices Brennan and Maflw as well as in Gre M in an opinion in which then dissented in Jurek, 13. Justice White. that the death PK"_ Chief Justice Burger and then Justice Rehnquist Proffitt, on the grounds joined, likewise found the Texas statute consti- was unconstitutional per se. 96 S.Ct. Id, 96 S.Ct. at 2959-60. Justice 2977. They concurred in the result in Wood tutional. and Roberts, i, 96 Si.C White's opinion quotes the statutory special is- id., 96 S.CL at 2992, sues in full and observes that "[tlhe statute does 3007, on the same basis. GRAHAM v. COLLINS 1019 Citea 950 F2d 109 (5th Clr. 2992) old at the time, had been drinking tions the questions could, however, compre- in the afternoon" of the offense, and hend such an inquiry." Id at 2956 n. 7. In turning to the second tbt he "had always been steadily em- special issue, the *yed since he had left school and that he opinion notes that "[t]he Texas Court of strbuted to his family's support." Id., Criminal Appeals has yet to define precise- s S.Ct. at 2954. In describing the Texas ly the meaning of such terms as 'criminal gtencing procedure, the opinion states acts of violence' or 'continuing threat to Ag at the punishment phase the jury is society.'" Id. at 2956. It goes on to state .,presented with two (sometimes three) (96 S.Ct. at 2956-57): questions, the answers to which determine "In the present case, however, it [the iwbether a death sentence will be imposed." Texas Court of Criminal Appeals] indi- ix (footnote omitted). It observes that cated that it will interpret this second only the first two issues specified in art. question so as to allow a defendant to h1.071 were submitted, that both were an- bring to the jury's attention whatever swered yes, "and the judge, therefore, in mitigating circumstances he may be able accordance with the statute, sentenced the to show- -petoner to death." Id. The opinion then "'In determining the likelihood full text of the three that -quotes verbatim the the defendant would be a continuing 37.071, and contin- issues specified in art. threat to society, the jury could ua by stating "[ilf the jury finds that the consider whether the defendant had a signifi- State has proved beyond a reasonable doubt that the answer to each of the three cant criminal record. It could consider the range and severity questions is yes, then the death sentence is of his prior crimi- imposed." Id. at 2955. nal conduct. It could further look to the age of the defendant and whether or not In evaluating the constitutionality of the at the time of the commission of the Texas scheme, Justice Stewart notes that offense he was acting under duress or under Woodson and Roberts "[al jury must under the domination of another. It be allowed to consider on the basis of all could also consider whether the defen- relevant evidence not only why a death dant was under an extreme form of sentence should be imposed, but also why it mental or emotional pressure, some- should not be imposed." Id. at 2956. The thing less, perhaps, than insanity, but -opinion then observes that "[t]he Texas more than the emotions of the average statute does not explicitly speak of mitigat- man, however inflamed, could withstand.' mg circumstances; it directs only that the [Jurek v. State ] 522 S.W.2d [934], at jury answer three questions," and "[tihus, 939-940 [Tex.Crim.App.1975]." (empha- the constitutionality of the Texas proce- sis added). dures turns on whether the enumerated questions allow consideration of particular- After briefly considering one other Texas ized mitigating factors." rd The Court Court of Criminal Appeals decision," Jus- Proceeds to answer this inquiry in the af- tice Stewart's opinion states "the Texas firmative, but only with regard to the see- capital-sentencing procedure guides and fo- Od-the future dangerousness--special is- cuses the jury's objective consideration of sue, because "(tihe Texas Court of Crimi- the particularized circumstances of the indi- nal Appeals has not yet construed the first vidual offense and the individual offender and third questions ... thus it is as yet before it can impose a sentence of death." Undetermined whether or not the jury's Id at 2957. The opinion concludes by ob- consideration of those questions would serving- Properly include consideration of mitigat- "By authorzing the defense to bring mg circumstances. In at least some situa- before the jury at the separate sentenc- '~ The case considered was Smith v. State 540 sufficiency of the evidence to support the jury's S.W.2d 693. 696-97 (Tex.Crim.App.1976), cerr. affirmative answer to the second special issue. dere4 430 U.S. 922. 97 S.C. 1341, 51 LEd.2d Jurek, 96 S.Ct. at 2957. 601 (1977), where the Texas court examined the 1020 950 FEDERAL RE PORTER, 2d SERIES ing hearing whatever mitigating circum- consideration of relevant mitiging stances relating to the individual defen- factors." Id. at 2967. The scope of th ensured plurality dant can be adduced, Texas has opinion is unclear. It focuses o that the sentencing jury will have ade- the fact that under the Ohio statute the quate guidance to enable it to perform its defendant's lack of specific intent to kill -S sentencing function.... Because this relevant for mitigating purposes only if it system serves to assure that sentences is determined that it sheds some light a of death will not be 'wantonly' or 'freak- one of the three statutory mitigang ishly' imposed, it does not violate the factors" and that "consideration of a defg Constitution. Id. at 2958 (emphasis add- dant's comparatively minor role in the of. ed). fense, or age, would generally not be pe. Two years later, in Lockett v. Ohio, 438 mitted, as such, to affect the sentencing U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 decision." I. at 2966-67. Similarly, the (1978), the Court considered an Ohio death plurality notes that the Ohio statute's "cow sentence imposed for the murder of a stitutional infirmities can best be undwr pawnshop operator in the course of an arm- stood by comparing it with the statute ed robbery of his shop while the defendant, upheld in Gregg, Proffitt and Jurek" iS at an accomplice, waited outside in the geta- 2965, and "the statute now before as b way vehicle. Under Ohio law, as the Court significantly different" than those statutes. construed it, the sentencing judge was re- Id. at 2966. More broadly, however, the quired to impose the death sentence for the opinion states that: offense unless he found, by a preponder- "... a statute that prevents the senteae ance of the evidence, one of the three statu- er in all capital cases from giving ind tory mitigating factors, namely (1) that the pendent mitigating weight to aspects of victim induced or facilitated the offense, or the defendant's character and record and (2) that the defendant committed the of- to circumstances of the offense proffered fense under "duress, coercion, or strong in mitigation creates the risk that the provocation," or (3) that it was "primarily death penalty will be imposed in spite of the product of" the defendant's "psychosis factors which may call for a less severe or mental deficiency." Id. 98 S.CL at 2959, penalty. ... that risk is unacceptable 2966. "No one planned to kill the pawn- and incompatible with the command of shop operator in the course of the rob- the Eighth and Fourteenth Amend- bery." Id at 2957. The presentence re- ments." Id. port reflected that the defendant, a twenty- "indO one-year-old female, had committed "no If the quoted language concerning major offenses" and that in the opinion of a pendent" mitigating weight is understood the Lock* psychologist her "prognosis for rehabilita- in its most apparent literal sense, tion ... was favorable." Id. at 2959. The ett plurality would seem to be wholly incoow it is clear sentencing judge found that the offense sistent with Jurek for in Jurek was not the product of psychosis or mental that the Supreme Court understood what deficiency, did not address the other two the Texas statute so obviously facially pro' statutory mitigating factors, and sentenced vides, namely that although a wide rang* the defendant to death, stating "that he of evidence concerning the defendtfs had 'no alternative, whether [he] like(d] the character and record and the circumstances in detet law or not' but to impose the death penal- of the offense is to be considered ty." Id The plurality opinion by Chief mining whether or not to impose the death Justice Burger, joined by Justices Stewart, penalty, the consideration of that evidene Powell and Stevens, held that "[t]he limited is not "independent" of such relevance a to the special range of mitigating circumstances which the jury may find it has may be considered by the sentencer under issues. But such a construction of Lock the Ohio statute is inconsistent with the is not only much broader than the fact Eighth and Fourteenth Amendments. ... there, but is also at war with the plurali was "sit a death penalty statute must not preclude statement that the Ohio statute GRAHAM v. COLLINS 1021 Cits As9SO F.d 1009 (5thCir. 1992) aiicantly different" than the Texas enact- turbed and his mental and emotional devel- ment and that the former's deficiencies opment were at a level several years below "can best be understood by comparing it his chronological age, and that the offense with" the valid Texas statute. was a product of these circumstances. Id. Justice Blackmun concurred specially in 102 S.CL at 873 & nn. 1 & 2, 877. The Lockett, "for a reason more limited than opinion also observed that the Oklahoma that which the plurality espouses," namely Court of Criminal Appeals, in reviewing the that the Constitution forbids imposition of sentence, had noted that defendant's con- "the death sentence for a defendant who tention " 'that the killing was in actuality only aided and abetted a murder, without an inevitable product of the way he was permitting any consideration by the sen- raised,'" but held that "'the petitioner's tencing authority of the extent of her in- family history is useful in explaining why volvement, or the degree of her mens rea, he behaved the way he did, but it does not in the commission of the homicide." Id. at excuse his behavior.'" Id. at 874. The 2969 (initial emphasis added). Justice Mar- plurality opinion states that under Lockett shall likewise concurred specially, adhering "the sentencer in capital cases must be to his view that the death penalty was permitted to consider any relevant mitigat- always unconstitutional, but also observing ing factor," id. at 875, and that "the evi- that the defendant "was sentenced to death dence Eddings offered was relevant miti- for a killing that she did not actually com- gating evidence." Id. at 877. The rule of mit or intend to commit" pursuant to "a Lockett was violated because the trial statutory scheme that precluded any effec- judge "found that as a matter of law he tive consideration of her degree of involve- was unable even to consider the evidence" ment in the crime, her age, or her pros- and the state appellate court "took the pects for rehabilitation." Id. at 2972 (em- same approach," id at 876, so that "it was phasis added). Justice White concurred as if the trial judge had instructed a jury to specially, expressly disagreeing with the disregard the mitigating evidence Eddings plurality opinion, but concluding that "it proffered on his behalf." Id. at 877. violates the Eighth Amendment to impose the penalty of death without a finding that Justice O'Connor did not join Justice the defendant possessed a purpose to cause Powell's opinion, but specially concurred, the death of the victim." Id. at 2983.1s stating that "the reasoning of the plurality Then Justice Rehnquist dissented, and Jus- opinion in Lockett compels a remand so tice Brennan did not participate. that we do not 'risk that the death penalty will be imposed in spite of factors which The next significant decision in this con- may call for a less severe penalty.'" Ed- text is Eddings v. Oklahoma, 455 U.S. 104, 102 S.CL 869, 71 LEd.2d 1 (1982), where dings, at 879 (quoting Lockett). A remand the Court struck down a death sentence was necessary for this reason because "it imposed on a sixteen year old, whom the appears that the trial judge believed that sentencing judge found posed a continuing he could not consider some of the mitigat- threat of violence to society. There, Jus- ing evidence in imposing sentence." Id. tice Powell's plurality opinion focused on Then Chief Justice Burger, joined by Jus- the fact that the sentencing judge appeared tices White, Blackmun and then Justice to have determined that "in following the Rehnquist, dissented. law" he was not permitted to "consider" In the case sub judice, not only was no the defendant's troubled background, the evidence tendered by the defense excluded, evidence showing the defendant's neglect- but the trial court's instructions expressly ful and turbulent family environment, ex- authorized consideration of all evidence ad- cessive physical punishment by his father, mitted in answering the special issues, and, that the defendant was emotionally dis- unlike Eddings, there is nothing to affirm-

IS. A modified version of this view subsequently 1140 (1982): Tison v. Arizona, 481 U.S. 137, 107 gained majority support. See Enmund v. Flor- S.Ct. 1676, 95 LEd.2d 127 (1987). ida. 458 U.S. 782, 102 S.CL 3368, 73 LEd.2d 1022 950 FEDERAL REPORTER, 2d SERIES atively indicate that the jury believed they Justice Powell, with then Chief Jusf could not consider any of the evidence for Burger and then Justice Rehnquist join. that purpose. concurred in the result, conceding that , The Court applied Eddings in Skipper v. versal was required on due pm South Caroiina,476 U.S. 1, 106 S.CL 1669, grounds because the death sentence had 90 L.Ed.2d 1 (1986), to reverse a death been sought on a factual basis the deo sentence because at the sentencing hearing dant had not been allowed to rebut, but' the trial judge had excluded as irrelevant rejecting the notion that Eddings san the defense's proffered "testimony of two Lockett applied. Id. at 1673-1675. Justi jailers and one 'regular visitor' to the jail to Powell-author of the Eddings plurality, the effect that petitioner had 'made a good concluded that the States retained authors adjustment' during his time spent in jail," ty "to determine what particular evidenc and the prosecutor had nevertheless ar- within the broad categories described la gued to the jury "that petitioner would Lockett and Eddings is relevant in the fir pose disciplinary problems if sentenced to instance," that these determinations should prison and would likely rape other prison- be respected provided "they do not fom ers." Id 106 S.Ct. at 1670. Justice close consideration of factors that may White's opinion for the Court states that tend to reduce the defendants culpability. under Eddings the capital "sentencer may for his crime," id. at 1674, and that "States not refuse to consider or be precluded from are only bound to consider those factors considering 'any relevant mitigating evi- that are central to the fundamental justice dence."' Skipper at 1671 (quoting Ed- of execution." Id at 1675. Nothing in ding$). Justice White went on to hold: Justice White's opinion appears inconsist. "Consideration of a defendant's past con- ent with these general premises. 7 duct as indicative of his probable future behavior is an inevitable and not undesir- In Hitchcock v. Dugger 481 U.S. 393, able element of criminal sentencing: 'any 107 S.Ct. 1821, 95 LEd.2d 347 (1987), Jus- sentencing authority must predict a con- tice Scalia, for a unanimous Court, me victed person's probable future conduct versed a Florida death sentence where the when it engages in the process of deter- record "could not be clearer that the adva- mining what punishment to impose.' Ju- ory jury was instructed not to consider, and rek v. Texas, 428 U.S. 262, 275, 96 S.Ct. the sentencing judge refused to consider, 2950, 2958, 49 LEd.2d 929 (1976).... evidence of nonstatutory mitigating cr- [E]vidence that the defendant would not cumstances." Id. 107 S.Ct. at 1824. The pose a danger if spared (but incareerat- defendant had requested that there be tak- ed) must be considered potentially miti- en into account "the testimony concernist gating. Under Eddings, such evidence petitioner's family background and his a' may not be excluded from the sentenc- pacity for rehabilitation," matters which er's consideration." Id (footnote omit- were not included in the statutory mitigat" ted).t ing circumstances. Id. at 1824.18 Tb 16. The opinion concludes that because the ex- 8. The Florida statutory mitigating circ* cluded evidence was the only evidence from stances as set out in the opinion. id at 1823 1. disinterested witnesses tending to contradict the did not include potential for rehabiUation or prosecutor's argument, it appears reasonably lack of future dangerousness or any ana likely that the exclusion of evidence bearing consideration (nor any general or residual tuiL upon petitioner's behavior in jail (and hence, gation category). Nor did they include users likely future behavior in prison) may such as troubled family history or urbt upon his upbringing (here, evidence that as a child tbo have affected the jury's decision to impose the twenty-year-old defendant had the habit of iv death sentence." 14 at 1673. haling gasoline fumes, as an apparent result of which his mind tended to wander, and th" b 17. Indeed, Justice White's opinion indicates evi- was one of seven children of a poor dence such as that of good personal hygiene whose father died of cancer). although they practices while in prison might properly be include whether the crime was committed w treated as irrelevant. Id at 1672 n. 2. .under the influence of extreme mental or GRAHAM v. COLLINS 1023 Cli " 950 F.2d 1009 (5th Cir. 1992) to the Qrt held that "the exclusion of mitigat- jury's consideration of ... mitigat- j evidence of the sort at issue here ren- ing factors," id., and that "we have never d" the death sentence invalid," citing suggested that jury consideration of miti- ?Abl~r and Eddings. Id." gating evidence must be undirected or un- focused." Id at 2331. Recognizing 7he next year the Court revisited the that "two lines of cases"-Eddings fa statute in Franklin, where it found and Lockett iconstitutional error in the refusal of a on the one hand and Gregg and Proffitt on Auested jury instruction that any of the the other-"are somewhat in 'tension' with issues could be answered negatively each other," Justice White notes that V you find any aspect of the Defendant's nevertheless "the Texas capital sentencing bacter or record or any of the circum- system has been upheld by this Court ... aes of the offense as factors which precisely because of the way in which the itigate against the imposition of the death Texas scheme accommodates both of these plity." Id 108 S.Ct. at 2325 & n. 4. concerns." Id. He continues by stating: He only mitigating evidence was that de- "Doubtlessly this is why this Court origi- fmdant's prison service for several years nally approved Texas' use of Special Is- both before and after the offense was with- sues to guide jury discretion in the sen- eat any disciplinary incident. Id at 2324. tencing phase, notwithstanding the utice White's plurality opinion, joined by fact-expressly averted to in the plurali- Justices Scalia and the Chief Justice and ty opinion for the Court-that mitigating Kennedy, observed that "the Texas courts evidence is employed in the Texas have expressed resolute adherence to Lock- scheme only to inform the jury's consid- st" in the decade since it was decided, id eration of the answers to the Special at 2326, and rejected the contention, based Issue questions." Id. (emphasis added). on the "'independent' mitigating weight" laguage of Lockett, that defendant's Justice Stevens, joined by Justices Bren- "prison disciplinary record reflected so pos- nan and Marshall, dissented, concluding the iively on his 'character' that the instruo- defendant's evidence of freedom from disci- ions ... should have provided the jury plinary violations during several years of with a 'mechanism through which to im- imprisonment was relevant as mitigation in pose a life sentence' even if the jury other- respects other than simply as it bore on his wise believed that both Special Issues future dangerousness. Such evidence indi- abould have been answered 'yes.'" Id. at cated "that petitioner's character was not 2329. Justice White also expressly reject- without some redeeming features" and ed the claim that the Constitution required that he "may have virtues that can fairly that the jury, even if it answered the spe- be balanced against society's interest in eal issues affirmatively, be "still entitled killing him in retribution for his violent to cast an 'independent' vote against the crimes," id. at 2335, and, by suggesting death penalty," stating that "this submis- that his commission of the offense was sion is foreclosed by Jurek, which held that "not in keeping with his ... usual qualities Texas could constitutionally impose the or fruits," bore on his "culpability" for the death penalty if a jury returned 'yes' an- offense as well as on his future dangerous- swers to the two Special Issues" and that ness. Id. at 2336. Justice Stevens con- "Jurek has not been overruled; and we are cluded that absent some special instruction not inclined to take any such action now." such as the defendant had requested "it is. Id at 2330. The plurality opinion asserts probable that the jury misapprehended the that "Lockett does not hold that the state significance it could attach to mitigating has no role in structuring or giving shape evidence that was descriptive of petition- tional disturbance" and whether defendant's ca. relevance of these latter factors to the "family pacity to appreciate the criminality of his con- background" claims of petitioner. duct or to conform it to the requirements of law was "substantially impaired." The opinion con- 19. The opinion observes that no harmless error tains no discussion whatever of the possible argument was made. 1024 950 FEDERAL REPORTER, 2d SERIES predictive of his that er's character rather than the defendant, 22 years old and 0 future behavior." Id. at 2337. This in parole from a prior rape conviction at tas Justice Stevens' view rendered the sen- time of the charged offense, "suffered tence invalid under Lockett and Eddings from organic brain damage and moderat and related cases. retardation, which resulted in poor impu Justice O'Connor, with whom Justice control and in inability to learn from exp., Blackmun joined, specially concurred. Id. rience." Id. 109 S.Ct. at 2941. The braa at 2332-2335. She considered Lockett, Ed- damage was likely present from birth, "but dings and Hitchcock as standing for the may have been caused by beatings and proposition that "punishment should be di- multiple injuries to the brain at an e rectly related to the personal culpability age." Id. Penry's mother had "frequently of" the defendant, and she concluded that beaten him over the head with a belt whe "a state may not constitutionally prevent he was a child," and he was "routinely the sentencing body from giving effect to locked in his room without access to a toilgt evidence relevant to the defendant's back- for long periods of time." He "was unable ground or character or the circumstances to learn in school and never finished the of the offense that mitigates against the first grade." Until age twelve, Penry "wa death penalty." Id. at 2333. In Justice in and out of a number of state schools a O'Connor's view, the evidence of defen- hospitals." Id. Thereafter, it took him dant's good conduct in prison "had no rele- over a year to learn to print his name. I& vance to any other aspect of petitioner's at 2942. The two psychiatrists testifying character" than his future dangerousness. for the State both opined that Penry was Id. Hence, no special instruction was re- sane, but they also acknowledged his "ex- quired. Justice O'Connor contrasted "[t]he tremely limited mental ability, and that be limited probative value" of that particular seemed unable to learn from his mistakes," mitigating evidence to "[e]vidence of volun- one indicating that Penry had "an inability tary service, kindness to others, or of reli- to learn from experience and a tendency to gious devotion [which] might demonstrate be impulsive and to violate society's positive character traits that might miti- norms." Id Defense counsel unsuccess- gate against the death penalty." Id. Her fully objected to the sentencing charge on opinion also states: several grounds, including its failure to "If, however, petitioner had introduced define "deliberately" as used in the first mitigating evidence about his back- special issue, its failure to "authorize a ground or character or the circumstances discretionary grant of mercy based upon of the crime that was not relevant to the the existence of mitigating circumstances, special verdict questions, or that had and its failure to condition a death sentence relevance to the defendant's moral cul- on a determination "that any aggravatg pability beyond the scope of the special circumstances ... outweigh any mitigsting verdict questions, the jury instructions circumstances." Id At sentencing, de would have provided the jury with no fense counsel argued, among other things, vehicle for expressing its 'reasoned mor- "that if a juror believed that Penry, be- al response' to that evidence. If this cause of the mitigating evidence of his were such a case, then we would have to mental retardation and abused bsek- decide whether the jury's inability to ground, did not deserve to be put to give effect to that evidence amounted to death, the juror should vote 'no' on 0* an Eighth Amendment violation." Id. of the special issues even if it believed (emphasis added). the State had proved that the ansWe However, Justice O'Connor did not express- should be 'yes.'" Id. at 2950. ly proffer an answer to that question. In response, the prosecutor noted that tbe Penry defense counsel had not argued the specl At long last, we turn to the crucial deci- issues or shown how the state had failed W sion in Penry. There the evidence showed meet its burden of proof on them. GRAHAM v. COLLINS 1025 CIte as 950 F.2d 1009 (5th CIr. 1992) moral response to the defendant's back- The Cour in an opinion by Justice ground, character, and crime.' " Penry at (yConnor, joined in this respect by Justices 2947. Penry's contention is again de- grnnnan, Marshall, Blackmun and Stevens, Sg aside the death sentence, concluding: scribed as being that the Texas statute was "In light of the prosecutor's argument, applied in a manner "precluding the jury and in the absence of appropriate jury from acting upon the particular mitigating istructions, a reasonable juror could evidence he introduced." Id. Yet again, well have believed that there was no his claim is characterized as follows: vehicle for expressing the view that Pen- "Penry argues that his mitigating evi- ry did not deserve to be sentenced to dence of mental retardation and child- death based upon his mitigating evi- hood abuse has relevance to his moral dence." Id" culpability beyond the scope of the spe- Justice O'Connor first determined that cial issues, and that the jury was unable "reasoned moral response" the rule Penry sought to establish-that to express its where evidence of the defendant's "mental to that evidence in determining whether retardation and abused childhood ... is death was the appropriate punishment presented, Texas juries must, upon re- We agree. Thus, we reject the State's quest, be given jury instructions that make contrary argument that the jury was it possible for them to give effect to that able to consider and give effect to all of mitigating evidence"-was not a "'new Penry's mitigating evidence in answering rule"' for purposes of Teague v. Lane, 489 the special issues without any jury in- US. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 structions on mitigating evidence." Id. (1989), "because it is dictated by Eddings The opinion goes on to explain this con- and Lockett" Penry at 2947. The opinion clusion. Respecting the first special issue, goes on to explain that "Eddings makes the opinion, though suggesting some doubt dear that it is not enough simply to allow about the matter, assumes, arguendo, that the defendant to present mitigating evi- "'deliberately"' was understood by the dence to the sentencer. The sentencer jury in this connection to mean "something must also be able to consider and give more than" simply " 'intentionally'" (which effect to that evidence in imposing sen- had already been established by the guilty tence." Id. at 2947. Quoting her concur- verdict). Id. at 2948. It concedes that ring opinion in California v. Brown, 479 "Penry's mental retardation was relevant U.s. 538, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 ... to whether he was capable of acting (1987), Justice O'Connor states that "defen- 'deliberately.' " Id at 2949. Nevertheless, dants who commit criminal acts that are "[plersonal culpability is not solely a func- attributable to a disadvantaged back- tion of a defendant's capacity to act 'delib- ground, or to emotional and mental prob- erately.'" A "rational juror" could have lems, may be less culpable than defendants concluded "in light of Penry's confession" who have no such excuse" and that a capi- that he "deliberately killed ... to escape tal sentence "'should reflect a reasoned detection." 21 However, "that same juror a Justice Scalia, joined by the Chief Justice and Kennedy agreed with it (although disagreeing Justices White and Kennedy, dissented from with a portion of Justice O'Connor's reasoning this holding. Id. at 2963-68. in this respect). 1a at 2963-64. This aspect of Justice O'Connor's opinion also held that the Penry is not implicated in our present consider- Constitution did not prohibit execution of the ation of the case sub judice. mentally retarded, although recognizing that that issue was within the first exception to the 21. The opinion does not detail the content of the doctrine of Teague v. Lan, 489 US. 288, 109 confession. However, it is described in the S.Ct 1060, 103 LEd.2d 334 (1989), barring ret- opinion of the Court of Criminal Appeals on roctive habeas application of new rules. Id. at direct appeal. Penry v. Stat, 691 S.W.2d 636 2952-2958. All Justices concurred in the Teag- (Tex.Crim.App.1985), cert. denied. 474 U.S. 1073, aspect of this holding; but Justices Brennan, 106 S.Ct. 834, 88 LEd.2d 805 (1986). as reflect- = 11.Blackmun and Stevens dissented from ing that Penry "had been planning for months the substantive holding, id at 2958-2963, while to rape somebody and that in the three weeks the Chief Justice and Justices White, Scalia and prior to the instant offense appellant had fo- 1026 950 FEDERAL REPORTER, 2d SERIES could also have concluded that Penry"- not allow the jury to consider a n because his "mental retardation" made him thrust of Penry's evidence as mitga, "less able than a normal adult to control evidence.' 832 F.2d at 925 (foo his impulses or to evaluate the conse- omitted) (emphasis in original)." Id. t quences of his conduct," and "because of 2950 (initial emphasis added). childhood abuse"-"was less his history of Justice O'Connor then turns briefly to morally 'culpable than defendants who the third special issue, concerning whetbge have no such excuse,' but who acted 'delib- the killing "was unreasonable in respons erately' as that term is commonly under- to the provocation, if any, by the &. in the absence of a stood." Id Thus, ceased." Although the opinion recites tho sufficiently broad definition of deliberately evidence supporting the affirmative answw "we cannot be sure that the jury was able to this issue," it does not expressly say or to give effect to the mitigating evidence of even suggest that the mitigating evidene Penry's mental retardation and history of had any relevance to abuse in answering the first special issue." the question (nor doe. it recite that the State asserted any see& relevance). Zd at 2950. As to the second special issue dealing Justice O'Connor concludes that rese. with future dangerousness, Justice O'Con- tencing is required because "the that Penry's mitigation evi- jury was nor observes not provided with a vehicle for expressing as an aggravating dence "is relevant only its 'reasoned moral response' to" the ev factor because it suggests a 'yes' answer dence of Penry's "mental retardation and dangerousness." to the question of future abused background" in "rendering its Id at 2949 (initial emphasis added). She see- tencing decision." Id. at 2952. continues by stating that the evidence of Penry's "mental retardation and history of [8] Penry clearly stands for the prop. abuse," though diminishing his blamewor- sition that merely because the mitigating thiness, "indicates that there is a probabili- evidence has any relevance to a negative ty that he will be dangerous in the future," answer to one of the special issues does not and then quotes with approval from Judge necessarily suffice in all cases to sustain Reavley's opinion for this court in that application of the Texas statute. Penry's case, including the following: evidence had some such relevance to the "'If anything, the evidence made it more first issue. The more difficult question is likely, not less likely, that the jury would whether the Texas statute can operate as answer the second question yes. It did written in any case where the mitigatin cused on the deceased and [another] as possible 22. Judge Reavley, writing for the court in our victims." id at 653. that on the morning of the consideration of Pemy, observed concerning the offense when he decided to go to the victim's deliberateness issue. house (where he forced his way in) and rape "Having just found Pery guilty of an int her "I knew that if I went over to the chick's tional killing, and rejecting his insanly d6' house and raped her that I would have to kill fense, the answer to that (the first] isse wa her because she would tell who I was to the likely to be yes. Although some of Peays police and I didn't want to go back to the pen." mitigating evidence of mental ret da id at 641. 652-53, and that while the victim was might come into play in considering delibr lying helpless on the.floor following the rape "I ateness, a major thrust of the evidence of hia came back and sat on her stomach. I told her background and child abuse. logically, d that I was going to kill her and that I hated to not.' Penry v. Lynaugh, 832 F.2d 915. 9 but I thought she would squeal on me." Id at (5th Cir.1987) (emphasis added). r-vd Po" 641. v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934. The opinion of Justice Clinton. concurring in LEd.2d 256 (1989). the result on the direct appeal, espouses the view that the failure to define "deliberately" was 23. "Penry's own confession indicated that b error (the majority held it was not error), but killed her after her struggle had ended and 21 that the error was harmless "due to the fact that was lying helpless." Id. at 2950. S -bo - 1 the evidence of 'deliberateness' was uncontested. supra (indicating that killing was to avoid dtlg* overwhelming and in large part gleaned from tion and was contemplated for thiS p"hX" appellant's written admissions." Id. at 657. from the beginning). GRAHAM i . COLLINS 1027 Cite as 950 F2dI 1009 (5th Cr. 1992) .ridence, though all clearly relevant to sup- al distress incident to one of life's many more of crises to which all are subject such as port a negative answer to one or the issues, nevertheless also has any miti- divorce or loss of a loved one or a job- may, when they committed an offense, pting relevance whatever beyond the scope of the special issues. Penry can have been less able than those not so af- fairly be read as precluding use of the flicted to control themselves and evaluate Texas statutory scheme in any such situa- their conduct and its consequences. If tion. But, Penry can also fairly be read as Penry is read broadly, then in none of addressing only a situation where some these cases can the Texas statutory scheme major mitigating thrust of the evidence is pass muster. Every one of these cases- substantially beyond the scope of any of the case where a month previously the the issues. That, indeed, was the case in defendant broke up with his girl friend or Penry, where as to the third issue the lost his job, the case where as a youth the mitigating evidence was all essentially ir- defendant volunteered to mow a neighbor's relevant, as to the second issue it was only yard or was in his early twenties when the affirmatively harmful to the defense, and offense was committed, and all the oth- as to the first issue its favorable relevance ers-would demand some other system of was essentially minor but its "major sentencing trial. The Texas statutory thrust" was beyond the scope of the issue scheme would be essentially meaningless (see notes 21 and 22 supra). and Jurek would have in substance been overruled. [91 We conclude that Penry does not We doubt that the Supreme Court intend- invalidate the Texas statutory scheme, and ed this. Not only has the Court not ex- that Jurek continues to apply, in instances pressly overruled Jurek, but to the con- where no major mitigating thrust of the trary it has cited Jurek with approval nu- evidence is substantially beyond the scope merous times. As an early example, in of all the special issues. That is particular- Adams v. Teas, 448 U.S. 38,. 100 S.Ct. in a case such as this, where ly appropriate 2521, 65 L.Ed.2d 581 (1980), the Court not- there is no "major thrust" of any of the ed that Jurek upheld the Texas statutory not relevant to mitigating evidence which is scheme which "mandates a sentence of support a negative answer to the second death" if the three "statutory penalty ques- special issue, the only special issue which tions" are answered affirmatively, id. 100 Jurek addressed. Any other holding, it S.CL at 2524 n. 1, and observed that Texas seems to us, would effectively render Ju- could properly ensure that its capital case re) and the Texas statutory scheme which jurors "be willing not only to accept that in it sustained, dead letters. certain circumstances death is an accept- It is a commonly accepted truism that, able penalty but also to answer the statu- Just as none of us is all good, so also none tory questions without conscious distortion of us-not even those who will probably or bias," while nevertheless recognizing commit criminal acts of violence constitut- that "jurors under the Texas ... procedure ing a continuing threat to society-is all unavoidably exercise a range of judgment bad. The number of capital crime defen- and discretion while remaining true to their dants who have nothing in their back- oaths." Id. at 2527. See also Godfrey v. ground which might tend to reflect a posi- Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1764, tive character trait-who have never per- 64 LEd.2d 398 (1980). As we have previ- formed any voluntary service or exhibited ously noted, Lockett states that the defi- any kindness to others or supported their ciencies of the Ohio statute "can best be family, to mention but three possible exam- understood" by comparing it to, inter alia, Ples-must be miniscule at most. And this, the "significantly different" Texas statute of course, has been obvious all along. So which Jurek upheld. Lockett, 98 S.CL at too has it always been obvious that many 2965, 2966. While the Eddings plurality defendants-because of some transitory does not cite Jurek, many decisions of the condition such as relative youth or emotion- Court since then have. We have noted the 1028 950 FEDERAL RE PORTER, 2d SERIES

prominence gfven to Jurek in Skipper, 106 108 LEd.2d 255 (1990), joined in by J. Other post-Eddings deci- S.Ct. at 1671. tices White, O'Connor, Scalia and sions citing Jurek with approval include describes Kennedy Jurek and the Texas system in a Lowenfield v. Phelps, 484 U.S. 231, 108 way which obviously would be wholly map. S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988); propriate if either were viewed as still va Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. in no more than a small minority of cse. 2716, 2721, 97 L.Ed.2d 56 (1987); Lockhart The same can be said for the opinion of v. McCree, 476 U.S. 162, 106 S.Ct. 1758, Justice Kennedy, joined in by the Chief 1770, 90 L.Ed.2d 137 (1986); Pulley v. Har- Justice and Justices White, O'Connor and ris, 465 U.S. 37, 104 S.Ct. 871, 876, 879, 79 Scalia, in Saffle v. Parks, 494 U.S. 484, 110 LEd.2d 29 (1984) (declining to "effectively S.Ct. 1257, 1261-42, 108 LEd.2d 415 (1990) overrule Jurek "); California v. Ramos, the here pertinent language of which b 463 U.S. 992, 103 S.CL 3446, 3453-54, 77 quoted in the marginA' Plainly, Justice L.Ed.2d 1171 (1983); Barefoot v. Estelle, Kennedy regards Penry as the exception to 463 U.S. 880, 103 S.Ct. 3383, 3396, 77 Jurek, not Jurek the exception to Penry. L.Ed.2d 1090 (1983); and Zant v. Stephens, Moreover, as Justice Kennedy points out 462 U.S. 862, 103 S.Ct. 2733, 2742 n. 13, 77 in Saffle (see note 24, supra), a broad LEd.2d 235 (1983). The Franklin plurali- reading of Penry is inconsistent with Pws. ty relied principally on Jurek and observed ry 's holding that its result was "dictated that the Texas "method for providing for by" Lockett and Eddings for purposes of the consideration of mitigating evidence Teague. has been cited repeatedly with favor." Id Similar considerations require rejection 108 S.Ct at 2331 (footnote omitted). Nei- of any notion that a broad reading of Pow ther the Franklin concurrence nor Penry ry is consistent with stare decisis because purports to jettison Jurek. Although Pen- the Texas courts have not kept the "asse ry clearly makes an exception to Jurek, it ance" of Jurek, or the Texas scheme is gives no express indication that the excep- really different than it appears on its face tion made is conceived of or recognized as or had been described by the Texas courts being vastly broader than the rule itself, or prior to the Supreme Court's decision in that Jurek and the Texas scheme will Jurek. The opinion in Jurek-rendered thereafter remain valid only in the very the same day as Woodson required "partic- rarest of cases. ularized consideration of relevant aspects Since Penry, the Court has continued to of the character and record of each convict- cite Jurek with approval. Thus, the Chief ed defendant"-explicitly recognizes that Justice's opinion in Blystone v. Pennsylva. the Texas jury is only allowed to answer nia, 494 U.S. 299, 110 S.CL 1078, 1081-82, "yes" or "no" to three statutory questions 24. Justice Kennedy's opinion states: to consider mitigating circumstances Prof- fered by the defendant.... Having thus cOO. 'To the extent that Penry's claim was that the of Texas system prevented the jury from giving strued Jrek, we concluded that resolution any mitigating effect to the evidence of his Penrys claim that 'those assurances were no mental retardation and abuse in childhood. fulfilled in his particular case,' 492 U.S.. a the decision that the claim did not require the [3181, 109 S.CL, at 2947 (emphasis in orif creation of a new rule is not surprising. nal). did not involve the creation of a new rule.... Penry, ... must be understood in Locken and Eddingp cdmmand that the State 1 its must allow the jury to give effect to mitigating terms of the Court's ruling in Ju ek and evidence in making the sentencing decision; application in later cases. We did not view Penry's contention was that Texas barred the Locken and Eddings as creating a rule differ jury from so acting.... ent from that relied upon in Jurek; rather, we ?enry's claim, moreover, did not ask us to indicated that Locken and Eddings reaffirmed apply the reasoning of Locker and Eddings so the reasoning in Jurek . . .. Id- 110 S.CL a much as it required us to apply our decision 1261-62 (initial emphasis added). in Jurek v. Texas 428 U.S. 262. 96 S.CL 2950, Justice Kennedy goes on to cite Jurek 49 LEd.2d 929 (1976). Pmr interpreted Ju- example of "our long-standing recognition th. rek as holding that the Texas death penalty above all, capital sentencing must be relisbk statute is constitutional so long as it is inter- accurate, and nonarbitrary." Id. 110 S.CL I preted by the Texas courts to permit the jury 1262. GRAHAM v. COLLINS 1029 Ct 95 FId I0 09 (5th Cir. 1992) id that if these are answered "yes" the and helping others-are adequately cover- j penalty is automatic. The exact ed by the second special issue. Penry can- Woding of the questions is reflected in the not hold otherwise and at the same time CUrt's opinion. The Court holds that the not be a "new rule" for Teague purposes. ise is whether these specific "enumerat- The decisions in Eddings and Lockett do -i questions allow consideration of particu- not justify a contrary conclusion, as Saffle 4rzed mitigating factors." Id. at 2956. says "[w]e did not view Lockett and Ed- !o Court gives an affirmative answer not dings as creating a rule different from that ,* the basis of any assumed special in- relied upon in Jurek rather" these cases stuctions or definitions being given to the "reaffirmed the reasoning in Jurek." Saf- , but rather entirely on what evidence fle at 1262. th Texas courts have said may be brought before and considered by the jury in an- [11] We believe that what Penry repre- sweing the second (future dangerousness) sents is a set of atypical circumstances of a question. Thus, the Court relies on the kind that, quite understandably, neither the Texas court opinion which it describes as Texas Court of Criminal Appeals nor the hterpreting "the second question to allow Supreme Court in Jurek had in mind, g defendant to bring to the jury's atten- namely circumstances where the defense's tn whatever mitigating circumstances he mitigating evidence would have either no show." Id. (emphasis add- may be able to substantial relevance or only adverse rele- ed). The Court next quotes the Texas vance to the second special issue. Typical- enurt's language in which it says "the jury could consider" various items of evidence- ly, evidence of good character, or of trans- feluding matters such as presence or ab- itory conditions such as youth or being ence of past criminal conduct, "age of the under some particular emotional burden at defendant" and "mental or emotional pres- the time, will tend to indicate that the sure"-"[ijn determining the likelihood crime in question is not truly representa- that the defendant would be a continuing tive of what the defendant's normal behav- threat to society." Id (emphasis added). ior is or may become over time, and that The Supreme Court then says "[b]y autho- the defendant may be rehabilitable so as rising the defense to bring before the jury not to be a continuing threat to society. whatever mitigating circumstances re- The core of Jurek-which we cannot con- lating to the individual defendant can be clude has been abandoned-is that the miti- adduced, Texas has ensured that the sen- gating force of this kind of evidence is tencing jury will have adequate guidance to adequately accounted for by the second enable it to perform its sentencing fune- special issue. But in Penry the Court was tion." Id. at 2958 (emphasis added). This faced for the first time with a wholly dif- assurance" has not been broken or even ferent type of mitigating evidence. Not slightly bent, but on the contrary has been evidence of good character, but of bad fully performed. Texas has continued to character, not evidence of potential for interpret its sentencing statute just exactly rehabilitation, but of its absence; not evi- s the Supreme Court in Jurek assumed it dence of a transitory condition, but of a would. permanent one; but nonetheless evidence (101 The Supreme Court's opinion in Ju- which was strongly mitigating because rek reflects that the defendant there was these characteristics were due to the twenty-two years old, had been drinking uniquely severe permanent handicaps with beer earlier in the day of the offense, and which the defendant was burdened through had been steadily employed and contribut- no fault of his own, mental retardation, ed to his family's support. Id at 2954. At organic brain damage and an abused child- the very least, Jurek must stand for the hood. There was no way this type of evi- Proposition that these mitigating factors- dence could be given any mitigating force relative youth and evidence reflecting good under the second special issue. To recog- character traits such as steady employment nize that, as Penry did, is not necessarily 1030 950 FEDERAL RE PORTER, 2d SERIES

to deny the validity of Jurek as it applies to 1977); Ear-in v. State, 582 S.W.2d 74 the more typical case. 798-99 (Tex.Crim.App.1979); Brasfield % We conclude that the core of Jurek re- State, 600 S.W.2d 288, 293 n. 3 (Tex. App.1980); mains intact, and we now apply it to the Keeton v. State, 724 S.W.2d 5% circumstances sub judice. 61 (Tex.Crim.App.1987). The Supreme Court's opinion in Arg Youth affirmatively reflects that the defendat (12] The primary mitigating factor was "22 years old at the time" of the which Graham urges was not adequately offense, id. at 2954, and, in upholding the encompassed in the special issues is his death sentence and the Texas scheme, youth. We disagree. quotes the portion of the Court of Criminal For at least five years before Graham's Appeals' opinion stating that in answerng trial, it was established Texas law that the the second issue the jury can consider jury, in answering the second special issue, "'the age of the defendant.' " Id. at 29u. could consider "the age of the defendant." Jurek thus squarely answers the question Jurek v. State, 522 S.W.2d 934, 940 (Tex. of whether "youth" is adequately taken Crim.App.1975), aff'd sub nom. Jurek v. into account by the second special issue. If Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 Penry compels a different result, it would LEd.2d 929 (1976). Since then, the Texas have been a new rule for purposes of Tes. decisions have consistently followed this ue, as Saffle makes clear. Indeed, if .hrsk rule. For example, in Roney v. State, 632 may not apply to the very type of case that S.W.2d 598 (Tex.Crim.App.1982), the Court was then before the Court, it has ben of Criminal Appeals, noting that the defen- overruled. But, as noted, the Supreme dant was seventeen and that "the age of Court has not so treated it. Moreover, the defendant" was "relevant in deciding Penry itself involved a twenty-two-yearold the second punishment issue," id. at 601, defendant, id. at 2941, and the opinion cow held that considering the entire record, in- tains no suggestion whatever that this fac cluding the defendant's "young age," the was one which could not be adequately evidence was insufficient to support the taken into account in answering the sta' jury's affirmative answer to the second tory special issues.n issue. Id. at 603. See also, e.g., Robinson Since Penry, the Texas Court of Criminal v. State, 548 S.W.2d 63, 64 (Tex.Crim.App. Appeals has continued to hold that the see- 23. Nor can we accept the notion that twenty-two statements in closing argument (see note 28 is not youthful for purposes of any constitution- infra: see also text at note 9 call supra). We do ally mandated rule that the capital sentencer not believe that for this purpose a caterfl must be able to take into account the defen. distinction is proper based on some specific 0 dant's "youth' at the time of the offense. Texas such as eighteen, which is often the 3 ag clearly regards those in their early twenties as majority (in Texas minors are those under eiO youthful for this purpose. See e.g., Lackey v. teen who have never been married: Te. P"' State, 819 S.W.2d 111. 129 (Tex.Crim.App.1991) bate Code § 3(t)) or the minimum age for Pur (describing as a mitigating circumstance "youth- poses of engaging in certain conduct (cf. US ful age (23) at the time of the offense"); Trevino Const.Am. XXVI). The Supreme Court v. State, 815 S.W.2d 592. 622 (Tex.Crim.App. in holding that the Consti 1991) ("There is also mitigating evidence of ap- such an approach tion does not forbid the death sentence for 4 pellant's youth; appellant was twenty-one years or save offense"); Madden v. fenses committed at age sixteen old at the time of the SM State. 799 S.W.2d 683. 684 (Tex.Crim.App.1990) Stanford . Kentucky, 492 US. 361. 109 ("Appellant, however. introduced substantial 2%9. 106 LEd.2d 306 (1989). Moreover, mitigating evidence. He was only twenty-one an approach would be at war with the coUo years old at the time of this offense). The of individualized capital sentencing which salient factors which make "youth" mitigating- derlies Penry. It is common knowledge tb principally inexperience with resultant dimin- individuals develop and mature at dif ished judgment and self-control-are all gener- rates, and it will frequently be the case' ally present among those in their early twenties. example, that one eighteen and. say. albeit to a lesser degree than in those still months, is actually less "mature and TO younger. And this, indeed, is the approach tak- "youthful" than another who is seventee en by Graham's counsel, as reflected in his eight months. GRAHAM v. COLLINS 1031 Cite as 950 F.2d 009 (5th Cfr. 1992) d special issue provides an adequate ve- says that evidence of a defendant's back- the ground and character is relevant because ls for the jury to take into account 'sdat'syouth. See Ex parte McGee, "'defendants who commit criminal acts go S.W.2d 77, 80 (Tex.Crim.App.1991); that are attributable to a disadvantaged ' Cv V.State, 819 S.W.2d 111 (Tex.Crim. background, or to emotional and mental Apl991); Trevino v. State, 815 S.W.2d problems, may be less culpable than defen- a 622 (Tex.Crim.App.1991). We, too, ap- dants who have no such excuse.'" Id. at to have recognized this. See DeLuna 2947 (quoting Justice O'Connor's concur- a Lynaugh, 890 F.2d 720, 722 (5th Cir. rence in California v. Brown, 479 U.S. S1)(evidence that defendant was twenty- 538, 107 S.CL 837, 841, 93 L.Ed.2d 934 s when offense committed would not (1987)) (emphasis added). See also Boyde ag him within Penry). v. California,494 U.S. 370, 110 S.CL 1190, As the panel majority and dissent each 1199, 108 LEd.2d 316 (1990) (same).2 To rrectly recognized, youth is mitigating the extent that Graham's criminal conduct bemuse insufficient experience has not al- was a product of his youth he was for that kwed judgment and self-control to fully reason not only less culpable but, to the dvelop, but the limitations attributable to same extent, also less likely to be danger- loath are all necessarily transitory. Gra- ous when no longer young. To the extent Asm at 898, 899. Therefore, whatever is Graham's criminal conduct was not attrib- .itgating about youth tends to lend sup- utable to his youth, his youth neither report to a "no" answer to the second special duced his culpability iue, and its tendency to do so is essential- nor his future danger- ) proportional to the degree to which the ousness. Nothing in the present record Jury concludes such factors were influ- suggests that the jury here might have etial in the defendants criminal conduct. viewed the matter in any other lightr The greater the role such attributes of Finally, the evidence here, and the man- youth are found to have played in the de- ner in which the case was approached and ftendant's criminal conduct, the stronger tried in this respect, do not suggest any the inference that, as his youth passes, he special factor or circumstance militating will no longer be a danger to society. against application of what we conceive to Thus, the second special issue affords an be the appropriate general rule, namely adequate vehicle by which the jury can give that the mitigating force of the defendant's effect to the mitigating aspect of youth. youth at the time of the offense may be (131 We reject the contention that the adequately taken into account in answering second special issue is inadequate for this the second special issue. In marked con- Purpose because the jury may believe that trast to Penry, there is here nothing to Youth mitigated the defendant's culpability suggest that defense counsel desired to though not his future dangerousness. But have the mitigating force of youth present- Youth is not mitigating with respect to con- ed or considered in any other manner than duct not attributable to it. Thus, Penry as a basis for a negative answer to the

"6 It is true that a hypethetical juror might 27. Moreover, to say that the second special issue conclude that death is always an inappropriate is for this reason inadequate to take youth into penalty for capital murder committed by a sev- account, is necessarily to also say that it is "teen year old simply because the offender was inadequate to take into account any other miti- seventeen, and regardless of whether the of- fen" was to gating factor which is not wholly coterminous any extent attributable to his and youth. However, such a conclusion synonymous with future dangerousness. is not based Yet, as previously indicated, that would be con- On individualized consideration of the offender but merely on a characteristic which is precisely trary to the core holding of lrek, and would in the same for him as for every other human effect render lurek and the Texas statute it up beiag who attains that age, and as such amounts held a dead letter. We do not read Penry as to no more than disagreement with the Texas going that far. law which allows execution of seventeen year olds for capital murder. 1032 950 FEDERAL RE PORTER, 2d SERIES second special issue. 8 Cf Lowenfield, 108 stepfather, cared about and was clo* to S.Ct. at 552 (even where absence of objec- his mother, gave his grandmother no N tion is not a waiver it may reflect posture lems or trouble, was never violent, ft, and understanding of trial participants). had weapons, would willingly help am We reject Graham's contention that, in around the house, went to school and W light of Penry, the mitigating force of his church, "loved the Lord," worked and co. youth could not adequately be given effect tributed to the support of his two cha&,Mu in answering the special issues. It appears to us that the principal mj Other circumstances gating thrust of all this evidence is to mg [14] Although the mitigating factor pri- gest that the events of May 13-20 wee marily at issue is youth, Graham also con- aberrational and atypical of Graham's tr tends that under Penry the testimony of character and that he thus had potental his stepfather, Samby, and his grandmoth- for rehabilitation, and would not be a cow er, Chron, constituted mitigating evidence tinuing threat to society. As such, the which could not adequately be given effect mitigating force of this evidence can Ws. in answering the special issues. We dis- quately be given effect under the se=coa agree. special issue. With one exception to be noted, the testi- This evidence does not seem different le mony of Samby and Chron simply consti- kind from that before the Supreme Cort tuted rather mild evidence of normal, in Jurek, where the defendant's father to good-though not exceptionally good- tified that "the petitioner had always bega character on Graham's part: he had re- steadily employed since he had left scho spect for and was nice to his mother and and that he contributed to his family's sup 28. Counsel in essence argued that Graham's We reject Graham's contention in this coot youth explained his May 13 to 20 crime spree that his case is like Pemry because here t and that he would grow out of it: 'A young prosecutor's argument (especially in respect a man, hasn't even reached 20 years old. He goes "direction" and "seeds of our past) amounted a on a rage for 7 days. 7 days out of his life. He an implied assertion that Graham's youth itsd is not going to ever forget.... Gary Graham. favored an affirmative answer to the seonMd 17 years old, went on a rage for 7 days." and: special issue. We disagree. The clearly Og "... what you are called upon to do is predict reasonable understanding of this unobjected U whether some time in the future Gary Gra- argument is that it is no more than the me ham could become a person fit to return to assertion that Graham's criminal conduct a0 society. At least he is alive. See, when you the most reliable predictor of the direction hi are 17 or 20, you are young. hot-to-trot. You future would take. There is absolutely nothin are going to set the world on fire one way or the other, right or wrong. When people come in the argument which implies that this is any in their middle 20's and middle 30's. a change more likely so because the events of May 13-2 a little bit from your more radical stands to a 1981 occurred while Graham was sevente a more somewhat upright posture because you .opposed to, say, thirty-five (nor even that to have had not only time to think, but to see was as likely so as it would have been i what is in the world. Most of the crime is ham had been thirty-five in May 1981).*b committed by young people. By the time you prosecutor was not required to concede that juw get to 25 or 35. it's different. 35 and because of Graham's youth he would not intt above.... because there is something about future be a danger to society. And there'* human nature that not only changes you, but nothing inconsistent in the assertions that. 0 slows you down as you live. If you live. If the one hand, some youthful criniidls Of you live....' pose a danger to society even after they iwa^ The only dissatisfaction counsel expressed with and, on the other hand, that crimiad wb the charge or special issues was by pre-trial youths are less likely to be predictive of funo motion asserting that the special issues left too such behavior on their part as a matur much standardless discretion to the jury. See than are similar acts by those who are note It. supra. mature adults. Moreover, we ate aware d Nothing in the evidence indicates any basis nothing to suggest that Texas has ever for believing that the offense charged was any youth in this connection as anything othn b more (or less) a product of Graham's youth than a factor tending to favor (albeit not ne= . any of his other criminal conduct shown by the a "no" answer to the second evidence, and neither side ever suggested other- to require) wise either at trial or in this court. issue. GRAHAM v. COLLINS 1033 Cite as 950 F.d 1009 (5th Ctr. 1992) .' Sgat 2954. Nor does this sort of dition" or "mental illness." In an appropri- OWL tr evidence seem other than wholly ate context, evidence of this general kind OW of what might be expected in a vast might well form part of a proper Penry. of cases. As noted, were evidence presentation. We conclude that it does not tls kind held to invoke Penry, then do so in this case, however. There was no and the Texas statutory scheme evidence of any effect this had on Graham, I for all practical purposes be wholly or of any reaction on his part to it, and no *bwmated.n Further, this sort of evi- attempt was made to even explore that dinm is different in kind from that in- subject. Further, the entire context in t~jed in Penry, as its relevance to each of which this testimony was presented, from special issues, and particularly the sec- the point of view both of Chron's testimony is entirely in the direction of a nega- as a whole and of all the defense evidence answer, and it has no tendency to at the sentencing hearing, suggests that ?rod= culpability for the particular crime there was no adverse effect on Graham. j'ged in any way not encompassed with- There was no suggestion that he was un- bone or more of the special issues. Un- happy, withdrawn, moody, difficult to con- 1*1 Penry type disability evidence, which trol or the like, or that he had any mental ain reduce culpability where it is inferred or psychological problems. The entire bt the crime is attributable to the disabili- thrust of the defense evidence, both from (7 while other similar offenders have no Samby and Chron, was the exact opposite, suc "excuse," good character evidence namely that Graham was a good, stable, eroides no variety of "excuse." Further, nonviolent, ordinary youth. There is no absent some unusual indication of an essen- substantial evidence that Graham's crimi- tdy permanent adverse change in char- nal conduct was "attributable to a disad- aete (e.g., brain damage), to the extent vantaged background, or to emotional and tht the testimony is convincing that the mental problems," as Justice O'Connor ddendant's general character is indeed used those terms in Penry. Id. at 2947. good it will also, to essentially the same See also Boyde, 110 S.CL at 1199. In this Uteant, be convincing that he will not con- respect, the evidence as a whole is simply ine to be a threat to society. not comparable to that in Penry or Ed- dings. (151 There remains only to consider the brief portion of the testimony of Chron (16] In sum, not only Graham's youth that Graham's mother was frequently hos- but also his other mitigating evidence could Ph~ihed, commencing when he was approx- adequately be taken into account in an- hastly three, with what Chron character- swering the special issues, particularly the 4e without elaboration as a "nervous con- second.3 3% We observe that since Penry, the Texas couns S.W.2d 105. 111-112 (Tex.Crim.App.1991), the have held that this kind of evidence is not Penry court considered evidence that appellant 'was a evidence and does not mandate departure from good worker and was promoted." "was always the Jurek format. Se4 eg., Ex parre Baldre4 polite, nice and helpful," "always behaved in a 810 S.W.2d 213, 216-17 (Tex.Crim.App.1991) respectful manner." and helped his sister "with (evidence that defendant 'has been caring, kind. her asthma" and his mother 'when she hurt her and nonviolent to others ... is ... reflective of ankle." Id at 111. In rejecting a Penry claim, his character and bears upon his propensity, or the court said that this evidence "was given full lack thereof. for committing future violent acts* effect within the second special issue" and "Itlo ad thus is adequately covered by the second hold otherwise would be tantamount to declar-. pecial issue without further jury instructions): ing the capital sentencing scheme facially unconstitutional." Id. at 112 (footnote omitted). .dsonState, 1991 WL 99949 (Tex.Crim. App. June 12. 1991, No. 68934) ("evidence of 30. We have focused throughout on the second appellanes religious devotion is Franklin evi- special issue because it is with respect to it that "cle and could be properly addressed by a jury Graham's evidence had the most apparent and a"*ering issue number two": Mooney v. State, strongest mitigating relevance, and because that 17 S-W.2d 693 (Tex.Crim.App.1991) (same). is the issue addressed in lurek. We do not S abo Trevino v. State, 815 S.W.2d 592. 622 imply, however, that Graham's evidence lacked ('lex.CrimApp.1 99 1). In Boyd v. State, 811 mitigating relevance to the first (or even to the M 02 1034 950 FEDERAL RE PORTER, 2d SERIES

- Conclusion duces an exclusion to the Penry rule se holds that As directed by the Supreme Court, we no instruction or jury decision I have further considered our previous af- needed for transitory circumstances of s, firmance of the district court's denial of igation. This court says that any dzc., habeas relief in light of Penry. We con- stance relevant to whether the defendan h rehabilitable clude that our prior disposition is consistent may be adequately treated by with Penry, and remain convinced that it the answer to the second issue. Con" Supreme Court wrote, the was proper. Accordingly, we reinstate our to what the Fifth Circuit prior mandate affirming the district court's explains Penry as an atypia case where dismissal of Graham's habeas petition. the mitigating evidence eithW had no substantial relevance, or no advert AFFIRMED. relevance, to the second special issue qt future dangerousness. I believe my co. REAVLEY, Circuit Judge, with whom leagues have gone beyond and contrary t POLITZ, KING, DAVIS, and WIENER, the directions of the Supreme Court ad Circuit Judges, join, dissenting- have usurped the role of our superis. The Supreme Court directed this court to Graham was 17 years old, legally a ask reconsider Graham's petition in the light of nor, when he committed the crime. It is Penry, not to modify Penry or to shape beyond dispute that this fact was a mig* Penry for a comfortable fit with Jurek In ing circumstance, material to the "mora Penry, Justice O'Connor wrote for the culpability" of the defendant The jury's Court that the jury must be able to fully sentencing role is to consider such factom consider and give effect to all "evidence and determine whether the defendant is that mitigates against the death penalty" indeed personally and morally culpabl. and is relevant to a defendant's back- But "culpability" at the punishment phase ground, character, or the circumstances of is not simply a question of guilt or "blame' the crime. 109 S.Ct. at 2947, 2951. If worthiness," but rather a question of youth is an important mitigating factor- "deathworthiness." See Lackey v. Sat and the Court has said that it is '-then 819 S.W.2d 111, 129 (Tex.Crim.App.1991) Penry requires that the sentencing jury be (en banc). To say that evidence mitigates a allowed to decide that the death penalty is defendant's culpability is not to say that be an inappropriate penalty for Gary Graham. is any less guilty or deserving of blame. That decision could not have been given but that he is less deserving of death. SO effect in his case, and the writ should be Penry, 109 S.CL at 2950 (a juror could granted. believe that "Penry lacked the moral culpe The panel majority stated the Penry rule bility to be sentenced to death"). as follows: "a jury sentencing a capital The special issues of the Texas statute defendant who provides evidence about his demonstrate how evidence can be relevant character, his background, or the circum- to a defendant's culpability. The guilty stances of the offense that is relevant to defendant may be less deserving of death personal culpability beyond the scope of because the evidence shows that he did not the statutory questions must receive in- act deliberately, or that he does not Pose a structions that allow the jury to give effect continuing threat to society, or that his to such evidence." 896 F.2d at 896. The conduct was not unreasonable in respOus en bane majority, after 21 months, pro- to provocation by the deceased. Indeed, third) special issue; it does have such relevance, "All this does not suggest an absence of r and that relevance strengthens our conclusion sibility for the crime of murder, delibcW* that the special issues were adequate in this committed in this case. Rather, it is to say case; but whether such relevance to issues other just as the chronological age of a minor is' than the second would alone suffice to take this a relevant mitigating factor of great vCIa5 case out of Pen"rys scope is another matter. must background and emotional develOp 1. See panel opinion; 896 F.2d at 897-98. In be duly considered in sentencing. 102 S.CL Eddings v. Oklahoma the Supreme Court said: 877. GRAHAM v. COLLINS 1035 Ct as 950 F.2d I 009 (5th Cr. 1992) have been allowed to weigh that factor in , evdence is mitigating only because it WhigMt to one or more of these issues. deciding whether Graham deserved to be sentenced to death. S,,N'nklin v. Lynaugh, 487 U.S. 164, Ct. 2320, 2333, 101 LEd.2d 155 (1988) The majority of this en banc court insists , J., concurring) (evidence of the upon crafting its own exclusion and follow- &W.ast's good conduct in prison had no ing Penry only where there is a "major to his character outside of the mitigating thrust of the evidence ... sub- issues). But the message of Penry stantially beyond the scope of all the spe- some evidence may make the defen- cial issues." It even declares that youth is Wg less deserving of death for reasons mitigating only with respect to conduct at- 1jyond the scope of the special issues." tributable to age, and that the mitigating Ag"s 109 S.CL at 2948. The evidence of factor of youth at the time of the offense pg's mental retardation and history of may be adequately taken into account by a A may not have made his crime less Texas jury in answering the issue of future eRmte or his continuing threat to socie- dangerousness. But the Supreme Court gr ibe probable, but it may nevertheless requires the sentencer, before assessing is" made him less deserving of death the death penalty, to consider all mitigating Vtesase it may have made him "less able evidence, not only mitigating factors that .ha a normal adult to control his impulses contributed to particular criminal conduct. V to evaluate the consequences of his con- And the Court does not weigh the "thrust" ho." Id at 2949. Presented with the of the mitigating evidence as between spe- special verdict questions, and "in the ab- cial issues and the decision to sentence to me of appropriate jury instructions, a death. jusonable juror could well have believed bt there was no vehicle for expressing Youth, like mental retardation or crip- the view that Penry did not deserve to be pling circumstances in the defendant's sntenced to death based upon his mitigat- background, may be related to deliberate- ig evidence." Id at 2950. ness or to future dangerousness, but those This case presents the same dilemma. facts of a defendant's life may also affect an entirely different "thrust" and decision. The jury found that Graham's youth did nt make his crime less deliberate or his They may reach the much broader ultimate future threat to society less probable. But question: Is death the appropriate re- a reasonable juror could also have deter- sponse to this human being, considering his mined, if given the opportunity, that Gra- moral culpability as a person? Graham's ham did not deserve a death sentence be- jury was not told that it could consider ause, at the age of 17, he was less able to evidence in this light or that it could give en0trol his impulses or evaluate the conse- mitigating effect to it in imposing sentence. quences of his conduct, or because of other The majority opinion is heavy with schol- relevant reasons. The majority seems to arship and fine legal argument. It un- overlook the fact that "there is no constitu- doubtedly alleviates problems in reviewing naOl infirmity in a procedure that allows a the cases of Texas prisoners on death row. JU7 to recommend mercy based on the I fully appreciate the problems. The Texas mitigating evidence introduced by a defen- Court of Criminal Appeals is struggling &t-" Id at 2951. In this case, as in with them too. See Black v. State, 816 PenrY, "in the absence of instructions in- S.W.2d 350 (Tex.Crim.App.1991); Ex parte forming the jury that it could consider and Harvey Earin,816 S.W.2d 379 (Tex.Crim. give effect to the mitigating evidence of App.1991); Lackey v. State, 819 S.W.2d [Graham's youth] by declining to impose 111 (Tex.Crim.App.1991). This does not the death penalty, ... the jury was not justify the failure to follow the dictate of Provided with a vehicle for expressing its the Supreme Court. I would follow that 'reaoned moral response' to that evidence dictate unless the Court, which alone has a4 rendering its sentencing decision." Id the authority, chooses to modify our in- at 2952. Under Penry, the jury should structions. 1036 950 FEDERAL REPORTER, 2d SERIES PATRICR E. HIGGINBOTHAM, Circuit decision for the jury-his moral Judge, dissenting: ty.3 question in this case is The ultimate The state may insist upon the whether the mitigating value of Graham's "reasoned" moral sev- decision, but the coat youth and family circumstances-age bution of Graham's youth to his moral V& enteen at the time of the offense-is fully pability, beyond the issues of delibemg the jury in its answer to two expressed by ness and future dangerousness, has act deliberately and no questions: did Graham trinsic measure Graham present a future danger. or objective weight. the does is a point at which opinion, after first concluding we must accept that te The majority moral culpability of that any deficiency in the two questions a particular person t a particular crime must be substantial, holds that the answer is what the jury says is yes. I am unpersuaded that the jury's that it is. With all deference, this quiat assessment of Graham's moral culpability sential blackbox decision yields to no lo. is fully, or substantially as the majority has cal or explainable divison whether you* it, exhausted by concluding that he acted has some residual "mitigating force after deliberately and presents a future danger. the Texas questions have been answerd." A jury's reasoned response could be that It is not a "legal" question at all, but it although Graham acted deliberately, and is rather like asking judges not to reason but likely to do so again, when Graham's to look to the sky, presumably, and res& tender years and family circumstances are Such discrete Rorschach-like inquiries do entered in the account of moral culpability, not produce or draw upon normative rules a death sentence is not warranted. That we are asked to perform such tasks is It was true before Penry that "[t]he a powerful signal that something is wrong state may not by statute preclude the sen- The wrong is not difficult to locate. As tencer from considering any ... relevant Justice Harlan put it in McGautha- mitigating evidence." I That did not neces- Those who have come to grips with th sarily mean, however, that the state could hard task of actually attempting to draft not limit the effects of mitigation. There means of channeling capital sentencing was a powerful argument that, given Ju- discretion have confirmed the lesson rek, the Eighth Amendment allowed the taught by the history recounted above. state to limit the effects a sentencer might To identify before the fact those charsoc give to mitigating evidence. Justice Scalia teristics of criminal homicides and their made the argument in Penry, but his was perpetrators which call for the death pen' the dissenting view. alty and to express these characteristics I intend no criticism of the majority's in language which can fairly be under, able struggle, but I am not persuaded that stood and applied by the sentencing au- we have the freedom to define again the thority, appear to be tasks which aft jury's sentencing role in Texas. I say beyond present human ability (empha "again" because two decisions of the Su- sis supplied).' preme Court control this case. The first is Furman repudiated McGautha, but Jut that the state, without fettering effect, tice Harlan's wisdom is validated with each must give the jury the means for express- of dead ends in the resulting response.2 The sec- encounter ing its reasoned moral puzzle. And a puzzle it is. ond decides that Graham's youth and fami- conceptual ly circumstances are relevant to the core For example, the Supreme Court in C2- 1. Eddings v. Oklahoma, 455 Us. 104, 113-115. Thompson v. Oklahoma, 487 U.S. 815. 108 S.C 102 S.Ct. 869, 876-877, 71 LEd.2d 1 (1982). 2687, 2698, 101 LEd.2d 702 (1988). U.S. 302. 109 S.Ct. 2934. 2. Penry v. Lynaugh, 492 v. California. 402 U.S. 183. 2, 91 106 LEd.2d 256 (1989). 4. McGautha S.CL 1454, 1466. 28 LEd.2d 711 (1971). 3. Stanford v. Kentucky, 492 US. 361, 109 S.CL 2969, 2978, 106 LEd.2d 306 (1989); see also SKELTONi . WHITLEY 1037 Cte as 950 F.2d I037 (5th Cr. 1992) sen- jas v. Bullock s upheld the death NgO while observing that "the jury may Kenneth David SKELTON, weB have sentenced Bullock to death de- Petitioner-Appellant, he had neither killed t concluding that V. intended to kill." 6 This despite the wor T lt that in Enmund v. Florida the court John P. WHITLEY, Warden, Louisiana :id that the Eighth Amendment forbids State Penitentiary, et al., the death penalty for "one ... who aids Respondents-Appellees. and abets a felony in the course of which a No. 90-3904. nyde is committed by others but who do not himself kill, attempt to kill, or United States Court of Appeals, btend that a killing takes place, or that Fifth Circuit. force will be employed." 8 I would me..l Jan. Ive supposed that whether an accused 6, 1992. Wanded to kill lies at the heart of moral of intent to kill culpability; that the finding Defendant sought habeas corpus relief would be left with the sentencer. Stated after his conviction for another way, if a state's procedures must first-degree murder was affirmed on direct appeal by the Loui- allow a defendant's mitigating evidence to fInd expression in its verdict it is puzzling siana Supreme Court, 340 So.2d 256. The United to allow a state appellate court to supply States District Court for the East- the critical finding of intent to kill, a find- ern District of Louisiana, Marcel Livaudais, g missing from the jury's verdict It is a Jr., J., denied habeas relief. Defendant appealed. The Court of Appeals, Edith H. lng road from McGautha to Penry, but Jones, Circuit Judge, held that: (1) decision the resulting jurisprudence is perverse in that reasonable that it insists on a reasoned moral response doubt jury instruction was unconstitutional of the jury, an assignment we jurists have did not apply retroactively, failed. and (2) even if decision applied retroactively, defendant failed to demonstrate The solution must be left to the Supreme prejudice required to overcome abuse of Court, at least in cases as this one where writ and procedural default. we are left no meaningful latitude. In any Affirmed. *went, this case is already so postmarked by the predictable scattering of judges required -to react, not reason. 1. Habeas Corpus 4385 To invoke federal writ of habeas corpus, petitioner must first have obtained ruling from state court on constitutional issue which is asserted. 0KEY tiMER SYSTEM 2. Habeas Corpus <-314 State procedural bar to federal writ of habeas corpus may arise if petitioner did not preserve error in state court. 3. Habeas Corpus -894 Habeas petitioner may not ordinarily file serial petition unless petitioner establishes cause. 474 U.S. 376. 106 S.Ct. 689, 88 LEd.2d 704 7. 458 U.S. 782, 102 S.CL 3368, 73 LEd.2d 1140 (1986). (1982).

I474 U.S. at 384, 106 S.Ct. at 696. 8. 458 US. at 797, 102 S.CL at 3376. RICHMOND v. LEWIS 1473 Cite as 948 F.2d 1473 (9th Ctr. 1990) Id at 406-07 (footnote and citation to the acting the death penalty). The defen- record omitted). dant had numerous convictions, but none The majority conceived a new scenario, for major offenses. His is an unlikely regarding aggravating circumstances, by selection for the death sentence, when piling an inference upon an inference to some juries assess it and some do not. arrive at a conclusion that a "rational ju- Grubbs, 724 S.W.2d at 502 (footnotes omit- ror" might find that defendant and his ted). brother went to the victim's home to rob Accordingly, I would grant habeas relief him, then later murdered the victim in or- in this case and require that the State of der to avoid arrest for the robbery. Su- Missouri retry the penalty phase of the pra, at 1469-70. That theory, it seems to trial or reduce the sentence to life imprison- me, hangs by a chimerical thread, without ment without the possibility of parole. support in the record or prior judicial opinions. This writer need not add to the percep- tive findings of the district court and the apt observation of Justice Blackmar. I disagree, however, with any conclusion that the death penalty would have been imposed, absent these mistaken conclusions by the jury based upon the improper sub- Willie Lee RICHMOND, Petitioner- mission of aggravating circumstances. Appellant, Though I do not dispute a finding that the murder was aggravated by "outrageously v. or wantonly vile" circumstances, no court Samuel A. LEWIS,* Director, Arizona should invade the jury's province and say Department of Corrections; and Roger that the jury would have decreed death in Crist, Superintendent of the Arizona this case on the basis of this single aggra- State Prison, Respondents-Appellees. vating circumstance. No. 86-2382. I would observe that Lewis v. Jeffers, - U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606 United States Court of Appeals, (1990), cited by the majority, does not Ninth Circuit. change the analysis, inasmuch as no evi- Argued and Submitted Sept. 18, 1987. dence exists relating to the aggravating Submission Vacated Sept. 22, 1987. circumstances, here in question. Reargued and Submitted Sept. 27, 1990. Finally, as Justice Blackmar cogently observed in his concurring opinion: Decided Dec. 26, 1990. This case seems to have arisen out of a As Amended on Denial of Rehearing drinking session.' The killing was shock- and Rehearing En Banc Oct. 17, 1991. ing and senseless, but numerous life sen- As Amended Jan. 14, 1992. tence cases are reported in which the ultimate punishment is much more appropriate than in this case (if, indeed, we Petitioner appealed from denial of ha- must depart from the practice of nations beas corpus relief from state capital mur- who follow the western tradition in ex- der conviction. The Court of Appeals, 774

1. This comment relating to drinking seems sup- State v. Grubbs, 724 S.W.2d 494, 496 (Mo.) (en ported by Chief Justice Higgins' opinion for the banc), cert. denied 482 US. 931, 107 S.Ct. 3220, Missouri Supreme Court, stating in part: 96 LEd.2d 707 (1987). Defendant testified that he and his brother had been drinking when they went to the Samuel A. Lewis and Roger Crist have been trailer. Although they entered the trailer with substituted for their respective predecessors in Thornton's permission, Thornton, who had office, James R. Ricketts and Donald Wawrzasz- been drinking heavily, told defendant he did ek, pursuant to Federal Rule of Appellate Proce- not like him and wanted him to leave. dure 43(c)(1). d2 RIES 1474 948 FEDELAL REP ORTER 2S, F.2d 957, reversed and remanded. On re- prosecution did not impermissibly shift bur- mand, the United States District Court for den of proof. the District of Arizona, Alfredo C. Mar- 5. Homicide 8351, 357(11) quez, J., 640 F.Supp. 767, denied petition, Arizona Supreme Court clearly provid. and appeal was taken. Superseding its ed limiting construction for F.2d 933, the Court of Ap- admittedly opinion at 921 vague statutory aggravating circumstance Circuit Judge, held that: peals, O'Scannlain, of committing murder "in especially hei- (1) Arizona's death penalty law was not nous, cruel or depraved manner" so that, unconstitutional as applied; (2) defendant although terms of aggravating circum- on was not entitled to evidentiary hearing stance were facially vague, defendant's death penalty claim that administration of constitutional rights were protected for and was unconstitutionally discriminatory; purposes of death sentence; definition giv. 16 (3) fulfillment of death sentence after en to "especially cruel" provision by Ari- un- years on death row was not cruel and zona Supreme Court was constitutionally usual punishment. sufficient and supported finding that mur- Affirmed. der committed by defendant warranted Pregerson, Circuit Judge, dissented death penalty. A.R.S. § 13-703, subd. F, from denial of rehearing en banc and filed par. 6. opinion in which Hug, William A. Norris 6. Homicide 4-343 and Reinhardt, Circuit Judges, joined. Invalidation of one aggravating circumstance in sentencing for capital murder does not automatically require remand for 1. Habeas Corpus 4898(1) resentencing as long as sufficient other Habeas corpus petitioner was barred aggravating factors remain. from challenging capital murder conviction on grounds that were available to him 7. Homicide 4-343 when he filed first postconviction petition; Invalidation of aggravating circun- after petitioner's sentence was vacated but stance in Arizona capital murder prosecu- his conviction affirmed in response to his tion did not mandate reweighing or resen- first petition for habeas relief, petitioner tencing where court had found that prose failed to appeal affirmance of conviction. cution had met its burden of establishing 28 U.S.C.A. § 2244(b); Rules Governing aggravation sufficient to warrant State's § 2254 Cases, Rule 9(b), 28 U.S.C.A. foIl. harshest penalty two or three times and § 2254. defense had failed to establish mitigating circumstances sufficiently substantial to 2. Habeas Corpus -897, 898(1) call for leniency. A.R.S. § 13-703, subds. Habeas corpus petitioner was entitled C, E. to challenge reimposition of death penalty Homicide 4358(3) - even on grounds available but unraised 8. when contesting first sentence and on Even if trial court never specifiml defendant intended to cause Or grounds raised in first petition and decided found the to cause victim's death, death against him by district court. attempted penalty could still be imposed where jury 3. Homicide 4358(1) received instructions on both premeditaW Judicial determination of existence or and felony-murder and evidence was a0* nonexistence of aggravating circumstances cient to support finding that defendant iW in capital murder prosecution did not im- tended to participate in murder- usurp jury's fact-finding func- permissibly 9. Habeas Corpus 00751 tions. U.S.C.A. Const.Amend. 6. Defendant seeking habeas corpus not eD* 4. Homicide 0358(1) lief from murder conviction was on his claim Ai. Requiring defendant to establish exist- tied to evidentiary hearing of death peft ence of mitigating factors in capital murder Arizona's administration RICHMON ) v. LEWIS 1475 Cite as 948 F.2d I473 (9th Cir. 1990) was racially, sexually, and socioeconomical- is fundamentally different from the statute ly discriminatory; defendant offered statis- at issue in Clemons [v. Mississippi, 494 tical disparities which, even if proven, U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 would not support inference of purposeful (1990) ]. The Mississippi law that Clemons discrimination. considered authorizes the death penalty if 10. Criminal Law e-1213.8(8) "'there are insufficient mitigating circumstances ... to outweigh the aggravating Fulfillment of death sentence after de- circumstances.'" Id. 110 S.Ct at 1446 n. 2 fendant had spent 16 years on death row was not cruel and unusual punishment; de- (quoting Miss.Code-Ann. § 99-19-101(3)(c) (Supp.1989)) (emphasis added). Arizona's lay incurred during hearing of defendant's failed claims did not accrue into substan- law mandates the death penalty "if the tive claim. U.S.C.A. Const.Amends. 6, 8, court finds one or more of the (enumerat- 14. ed] aggravating circumstances ... and that there are no mitigating circumstances sufficiently substantialto call for lenien- Timothy K. Ford, MacDonald, Hoague & cy." Ariz.Rev.Stat.Ann. § 13-703(E) (em- Bayless, Seattle, Wash., for petitioner-ap- phasis added). The difference is signifi- pellant. cant: a conclusion by the Arizona courts Jack Roberts, Asst. Atty. Gen., Phoenix, that there are no substantial mitigating Ariz., for respondents-appellees. circumstances is separate from and independent of any conclusion regarding the Appeal from the United States District existence of aggravating circumstances. Court for the District of Arizona. Invalidation of an aggravating circumstance does not mandate reweighing or re- Before ALARCON and O'SCANNLAIN, quire resentencing where the court has Circuit Judges, and STEPHENS," District found that the prosecution has met its bur- Judge. den of establishing aggravation sufficient to warrant the state's harshest penalty two ORDER or three times and that the defense has The opinion reported at 921 F.2d 933 (9th failed to establish mitigating circumstances Cir.1990) is hereby amended as follows: in sufficiently substantial to call for leniency. the block quotation in the second column See id. §§ 13-703(C), (E). Under the stat- on page 943 of the opinion, twenty-two ute at issue in Clemons, the invalidation of lines from the bottom of the page, delete an aggravating circumstance necessarily the ellipsis and insert in lieu thereof: "In renders any evidence of mitigation [State v.] Gretzler, [135 Ariz. 42, 659 P.2d "weightier" or more substantial in a rela- 1 (1983) ] supra, we discussed factors tive sense; the same, however, cannot be which lead to a finding of heinousness or said under the terms of the Arizona statute depravity. One factor is the infliction of at issue here. Nothing in the Arizona stat- gratuitous violence on the victim; another ute suggests the need for plenary reweigh- related factor is the needless mutilation of ing where the record still reveals that there the victim." are "one or more of the [enumerated] ag- The final paragraph in Part IV-D on gravating circumstances ... and that there page 947 of the opinion is hereby amended are no mitigating circumstances sufficient- to read as follows: ly substantial to call for leniency." Id. In this case, there is no similar doubt § 13-703(E). Elimination of the challenged factor would The panel has voted to deny the petition still leave enough support -for Richmond's for rehearing. Judges Alarcon and sentence because the statute at issue here O'Scannlain have voted to reject the sug-

"The Honorable Albert Lee Stephens, United California. sitting by designation. . . States District Judge for the Central District of 1476 948 FEDERAL RE PORTER, 2d SERIES gestion for rehearing en bane and Judge a second time, Corella observed what Stephens so recommends. seemed a considerable amount of cash, and On the request of a judge in regular she communicated her observation to Rich- active service, the suggestion for rehearing mond. All four individuals then proceeded en bane was put to a vote of the full court, in a borrowed station wagon to Corella's and the majority of the court voted to deny motel-room apartment. There, just as Ca rehearing. Fed.R.App.P. 35(b). Judge rella and Crummett emerged from the bed- Pregerson dissented from the denial of re- room, Richmond whispered to Erwin his hearing and was joined by Judges Hug, intention that they rob Crummett, explain- Norris and Reinhardt. The dissent is filed ing that they should not commit the crime as an attachment to this order. in the apartment because Crummett might remember the surroundings. The petition for rehearing is DENIED and the suggestion for rehearing en bane is The group then left the motel and with REJECTED. Richmond as their driver proceeded to the end of a road on the outskirts of Tucson. OPINION Richmond thereupon stopped the car, and either Richmond or Corella-the testimony O'SCANNLAIN, Circuit Judge: conflicts-told Crummett to get out be- Willie Lee Richmond, who was sentenced cause the car had suffered a flat tire. to death upon conviction of first-degree Richmond then assaulted Crummett, beat- murder in Arizona state court, appeals ing him with his fists and knocking Crum- from the district court's denial of his peti- mett to the ground. As Crummett lay tion for habeas corpus. He contends that motionless, Richmond pelted him with imposition of capital punishment will vio- rocks. Corella, meanwhile, grabbed Crum- late his rights under the sixth, eighth, and mett's wallet According to Erwin, who fourteenth amendments. We now affirm. admitted that she was vomiting and "coming down" from heroin during the incident, I the following events then transpired Q. [Mr. Howard, Prosecutor] A Then what happened? This case arises from Richmond's convic- A. [Erwin] tion in 1974 for first-degree murder in the Well, they all got in the car, and Becky death of Bernard Crummett. On an Au- [Corella] was getting the wallet and gust evening seventeen years ago, the vic- what else, you know. I looked over to tim met Rebecca Corella, a nude dancer, at see what else was taken. And Becky the Bird Cage Bar in Tucson, Arizona. Af- [Corella] was getting the wallet and ter leaving the bar, the pair met Richmond we came in the car and left. in the bar's parking lot where Corella at- Q. And where did you go from there? his tempted to persuade Richmond to allow A. Back to the Sands Motel. fifteen-year-old girlfriend, Faith Erwin, to Q. Did you run over anything? prostitute herself with Crummett. Rich- It was a bump, after mond and Erwin refused, and after a brief A. Yes, a man. conversation, Corella agreed to have sex we were leaving. with Crummett herself. Crummett there- Q. After you felt that bump, was say when you felt that upon produced a twenty-dollar bill, which thing said in the car Corella handed to Richmond and which bump? Richmond palmed and surreptitiously ex- A. Becky [Corella] said, it felt lke - changed for a ten. A brief argument en- man's body. sued as Richmond and Corella insisted that Q. Who was driving the car? e Crummett had only given them ten dollars. A. Willy (sic]. Crummett eventually yielded and agreed Under cross-examination, Erwin stood to pay more. As he reached into his wallet her contention that Richmond had been - RICHMONID v. LEWIS 1477 Cite as 948 F"d I473 (9th Ctr. 1990) driver at the time the car ran over Crum- getting up and I reached down and mett. She admitted, however, that she was punched him again. So my old lady, suffering greatly under the influence of Faith [Erwin], she couldn't take it. She her drug injections at the time and that she got out of the car and she looked and she was lying back on the car seat with her started crying, you know. And about eyes closed. that time I am looking at her, and going The police found Crummett's body at five through his change. And this rock, you o'clock the following morning. The exam- know, like that, and dip, dip like that, you ining pathologist testified at trial that the know. And I said, wow, to myself, you body exhibited signs of three forms of ex- know. Come on let's get ifi the car and treme force. First, there were wounds and me and her [Erwin] get in the car, and I indentations in the head consistent with a am talking to her [Erwin] and Rebecca contention that the victim had been pum- [Corella] gets in the car and she backed meled with rocks. In conjunction with this up and she throws up in gear and comes observation, he noted that several blood- back over. And we were going on down stained rocks were found in the immediate further and she was all over the fucking vicinity of the body. Second, he testified road, and said, give me this mother-fuck- that the victim's head had suffered severe ing car and let me drive, you know. trauma and "bursting" from a crush injury most probably attributable to an automo- At the conclusion of the evidentiary bile tire. He identified this second injury phase of the trial, the judge instructed the as the probable cause of death. Third, he jury that Richmond could be convicted of testified to the presence of a second crush first-degree murder upon either a finding injury along the trunk and the abdominal of premeditation or a felony-murder theory: section. This too the pathologist attributed Murder is the unlawful killing of a hu- to an automobile tire, which impacted the man being, with malice aforethought. body from the opposite direction at least thirty seconds after the fatal blow. He concluded, therefore, that the victim was The unlawful killing of a human being, twice run over--once while alive but pre- whether intentional, unintentional or ac- sumably unconscious and a second time cidental, which occurs as a result of the after death. A police detective also testi- perpetration of, or attempt to perpetrate, human blood and fied to the discovery of the crime of robbery and where there hair on the undercarriage of the recovered was in the mind of the perpetrator the station wagon. specific intent to commit such crime, is Shortly after the night of Crummett's murder of the first degree. death, Richmond was arrested on two unrelated murder charges. As he awaited proceedings on those charges in jail, he If a human being is killed by any one of was served with an arrest warrant for the several persons engaged in the perpetra- Crummett, and he agreed to murder of tion of, or attempt to perpetrate, the waive his rights and make a statement at crime of robbery, all person[s] who either that time. Although he admitted to robbing and beating Crummett, he claimed directly and actively commit the act constituting such crime or who knowingly that he was not the driver when Crummett was run over. In his statement, which was and with criminal intent aid and abet its taped and played at trial, Richmond insist- commission or, whether present or not, ed: who advise and encourage its commis- I opened the door. I snatched the dude sion, are guilty of murder in the first- out by his collar, and bam, he falls degree, whether the killing is intentional, straight out I wanted to go through his unintentional, or accidental. pockets, but she [Corella] was already Upon these and other instructions, the jury going through his pockets and he was found Richmond guilty of first-degree mur- 1478 948 FEDERAL RE PORTER, 2d SERIES der on February 5, 1974.' After the United States Supreme Court denied certiorari on direct appeal, Rich. B mond petitioned for a writ of habeas corpus in the federal district court of Arizona. He After a separate hearing held before the argued that the Arizona statute unconstitu- its trial judge alone, the court pronounced tionally deprived him of the opportunity to sentence: present non-statutory mitigating circum- The court rendered a special verdict find- stances before the judge at sentencing. ing the existence of two aggravating cir- The district court upheld Richmond's con- cumstances: 1) that the defendant was viction but ruled the Arizona statute uncon- previously convicted of a felony involving stitutional under the eighth and fourteenth the use or a threat of violence on other amendments for its failure to allow consid- persons, and 2) that the defendant had eration of a convict's character. Rich. committed the offense in an especially mond v. Cardwell, 450 F.Supp. 519 heinous and cruel manner. It found (D.Ariz.1978). The court therefore vacated 2 none of the statutory mitigating circum- Richmond's sentence. stances to be present Based on its find- At a second sentencing hearing in March ings, the court sentenced the defendant 1980, the state trial court again found no to death. mitigating circumstances sufficient to war- State v. Richmond, 114 Ariz. 186, 189, 560 rant leniency, and it resentenced Richmond P.2d 41, 44, cert. denied, 433 U.S. 915, 97 to death. Once again, on mandatory ap. S.Ct. 2988, 53 L.Ed.2d 1101 (1976). peal, the Arizona Supreme Court affirmed Richmond petitioned in state court for the sentence. State v. Richmond, 136 post-conviction relief claiming the discovery Ariz. 312, 666 P.2d 57, cert denied, 464 of new exculpatory evidence. He present- U.S. 986, 104 S.CL 435, 78 L.Ed.2d 367 (1983). - Independently reviewing the ed an affidavit from Daniel McKinney, a 3 former boyfriend of Corella, in which record, the state supreme court found that McKinney stated that Corella had admitted Richmond had actively participated in the to being the driver when the car ran over robbery and had played an integral role in Crummett. The state countered with a the events leading up to Crummett's death. transcribed tape recording in which McKin- Although it acknowledged that the force of ney claimed that Richmond had threatened Richmond's manual blows had not caused him in prison. The petition for relief was the death, the court held that circumstan- denied. On automatic appeal, the Arizona tial evidence supported Erwin's testimony Supreme Court affirmed both the convic- that Richmond had been the lethal driver. tion and the sentence, holding inter alia It found that the sentence was appropriate that (1) Richmond's case was properly sub- under these conditions. Again on direct mitted on a theory of felony murder, (2) review, the United States Supreme Court post-conviction relief was properly denied, denied certiorari. 464 U.S. 986, 104 S.CL and (3) the Arizona death penalty statute 435, 78 L.Ed.2d 367 (1983). was constitutional, both as written and as Richmond then pursued a second writ of applied. See 114 Ariz. at 190-98, 560 P.2d habeas corpus in federal court. After a at 45-53. brief hearing, the district court denied te

1. On August 9, 1974, Richmond was convicted Richmond was acquitted of the other nurder of first-degree murder on one of the two un- See id. related charges and sentenced to life imprisonment. "It is not disputed that the killing that 2. The Arizona death penalty statute was was the basis of th[at] conviction occurred prior quently revised to cure this defect. Se A*t- Rich- to the murder of Bernard Crummett." Rev.Stat.Ann. § 13-703(G), as amendad by 19" mond v. Ricketts, 640 FSupp. 767, 780 (D.Ariz. ArizSess.Laws ch. 144, (effective MAYL 1986). At the time of that earlier murder, "the 1979). death [penalty] had not yet become effective (in Arizona] so that the sentence of life imprisonment was the only possible sentence." Id 3. See infra note 10. RICHMOND v. LEWIS 1479 Cite as 948 F2d 1 473 (9th Ctr. 1990) writ and dismissed the petition. Four days al. - U.S. -, 110 S.Ct. 3047, 111 later, a panel of this court stayed Rich- L.Ed.2d 511 (1990), reh'g denied, - U.S. mond's execution and issued a certificate of -, 111 S.Ct. 14, 111 L.Ed.2d 828 (1990). probable cause to provide time for a full- In a companion case decided that same day, fledged appeal. In due course, the court Lewis v. Jeffers, the Court restated and affirmed dismissal for failure to exhaust elaborated upon its Walton holding. - state remedies, but it remanded with in- U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606, structions to allow amendment to permit reh'g denied, - U.S. -, 111 S.Ct. 14, the prosecution of any claims that had been 111 L.Ed.2d 829 (1990). On. the following properly exhausted.' Richmond v. Rick- day, the Court denied certiorari in Adam- etts, 730 F.2d 1318 (9th Cir.1984). Follow- son. Lewis v. Adamson, - U.S. -, ing such amendment, the district court 110 S.Ct 3287, 111 L.Ed.2d 795 (1990), de- again denied Richmond's petition, and this nying cert to Adamson v. Ricketts, 865 court again reversed, remanding for a full F.2d 1011 (9th Cir.1988) (en banc). review of the state record. Richmond v. In light of these developments, this court Ricketts, 774 F.2d 957 (9th Cir.1985). Af- ordered the parties to file supplemental ter reviewing the full record, the district briefs, and on September 27, 1990, the court denied Richmond's petition for the court entertained a second oral argument third time in a thirty-five page opinion. to consider the effects of Walton, Jeffers, Richmond v. Ricketts, 640 F.Supp. 767 and other recent Supreme Court decisions (D.Ariz.1986). on this appeal. The court thereafter took Richmond now appears before this court the entire appeal under submission for deci- with the assistance of counsel to appeal sion. this most recent denial order. This court originally entertained oral argument in his II appeal on September 18, 1987, but deferred submission pending the en banc decision of A this circuit in Adamson v. Ricketts. See The district court had proper jurisdiction No. 84-2069 (9th Cir. Aug. 14, 1987) (en under 28 U.S.C. § 2241. This court has bane) (order scheduling oral argument for proper jurisdiction under 28 U.S.C. § 2253. Oct. 20, 1987, in light of Ricketts v. Adam- We review the denial of a habeas corpus son, 483 U.S. 1, 107 S.CL 2680, 97 L.Ed.2d 1 (1987)). Adamson presented a similar petition de novo. See Weygandt v. Duc- challenge to the constitutionality of Ari- harme, 774 F.2d 1491, 1492 (9th Cir.1985). zona's revised death penalty statute. A However, under 28 U.S.C. § 2254(d), the year later, in December 1988, the Adam- factual findings of state trial and appellate son court ruled the Arizona statute.uncon- courts are presumed correct if fairly sup- stitutional. 865 F.2d 1011 (9th Cir.1988) ported by the record. See Sumner v. (en bane). Arizona petitioned the Supreme Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, Court of the United States for review of 768-69, 66 L.Ed.2d 722 (1981). that decision, and this court further deferred submission pending that outcome. B In the meantime, on direct review from Richmond has presented four arguments: the state's highest court, the Supreme (1) that Arizona's death penalty law is un- Court of the United States announced in constitutional both on its face and as ap- Walton v. Arizona that the Arizona death plied, (2) that the trial court never specifi- penalty statute is not unconstitution- cally found that he caused, intended to 4. Under the "total exhaustion rule" announced mand order was intended to satisfy this rule. by the Supreme Court in Rose v. Lundy, 455 U.S. See 730 F.2d at 1318. 509. 102 S.Ct. 1198. 71 LEd.2d 379 (1982), a Upon amending his petition. Richmond con- federal court cannot adjudicate a habeas petition if it contains any unexhausted claims--even tinued to asser eighteen claims. See 774 F.20 if it also contains exhausted claims. The re- at 959. 1480 948 FEDERAL REPORTER, 2d SERIES cause, or attempted to cause Crummett's to prevail on appeal on these claims, he death and that imposition of the death pen- could not be resentenced. The district alty would therefore violate the rule of court could properly decline to reconsider Enmund v. Florida, 458 U.S. 782, 102 these underlying-conviction claims when S.CL 3368, 73 L.Ed.2d 1140 (1982), (3) that raised in a second petition. he was improperly denied an evidentiary Richmond, 774 F.2d at 960 (emphasis hearing on his claim that Arizona's admin- in original). Whether termed abuse of the istration of the death penalty is unconstitu- writ or res judicata, the reassertion of such discriminatory, and (4) that fulfill- tionally claims is not permissible at this stage. ment of his sentence after so many years on death row would constitute cruel and [2] Richmond, however, has focused his unusual punishment. Respondent Arizona attention in the current appeal on challeng. has challenged all four contentions and has ing the re-imposition of his sentence. This further argued that Richmond's petition he certainly may do, and in so doing, he constitutes an abuse of the writ. We ad- may challenge the death penalty on dress the state's latter contention first and grounds that were available to him but that then address Richmond's arguments se- he did not raise when contesting his first quentially. sentence: Previously unadjudicated claims must be III decided on the merits unless the petitioner has [1] In its 1978 judgment on Richmond's made a conscious decision deliberately first petition for habeas relief, the district to withhold them, is pursuing "needless piecemeal litigation," or has court vacated Richmond's sentence but af- raised the firmed his conviction. The State of Ari- claims only to "vex, harass, or delay." None of these zona argues that because Richmond failed three situations applies to Richmond's petition. to appeal the affirmance of his conviction at that time, it is abuse of the writ to Id. at 961 (citing Sanders v. United States, challenge the conviction now. See 28 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 U.S.C. § 2244(b); Rules Governing Section L.Ed.2d 148 (1963)). Richmond may also 2254 Cases, Rule 9(b). A prior panel of renew challenges to the death penalty that this court has already addressed this con- were raised in his first petition and decided tention. See Richmond, 774 F.2d at 959- against him by the district court 61. We are bound to adopt its conclusions [W]hen the district court enjoined Rich- as the law of the case. See Handi Inv. Co. mond's [initial] death sentence, it relied v. Mobil Oil Corp., 653 F.2d 391, 392 (9th solely on the [original] Arizona statute's Cir.1981); see also lB J. Moore, J. Lucas & failure to consider mitigating factors of T. Currier, Moore's Federal Practice an individual's character. Richmond v. 110.404(1], at 119 (2d ed. 1988) ("If there is Cardwell, 450 F.Supp. at 526. Because an appeal from the judgment entered after Richmond had obtained the sentencing remand, the decision on the first appeal relief he sought, he had no incentive to establishes the law of the case to be fol-. appeal the adverse determination of his lowed on the second."). other grounds for challenging the death Thus, to the extent that Richmond seeks sentence, and perhaps would not have to challenge his conviction on grounds that been permitted to do so on mootness or were available to him when he filed his ripeness grounds. The ends of justice Rich- first petition, we agree that he is barred would not be served by denying from doing so now: mond appellate consideration of these the The relief obtained on the first petition other constitutional challenges to because he ob- went only to the sentence. The incentive death penalty merely remained, therefore, for Richmond to ap- tained relief on a different ground. peal the rejection of his challenges to the Id. at 960. With respect to any of the underlying conviction, since if he were proffered challenges to his sentence, there- RICHMOND v. LEWIS 1481 Cite as 948 F.Zd 1473 (9th CLr. 1990) fore, "Richmond's petition does not consti- involving the use or threat of violence tute an abuse of the writ." Id. at 961. on another person.

IV (6) The defendant committed the offense in an especially heinous, cruel or de- A praved manner. At the time of Richmond's conviction in § 13-703(F). By the time of Richmond's 1974, Arizona law defined first-degree mur- resentencing in 1980, subsection G of the der in relevant part as follows: "A murder statute had been revised to read as follows: which is perpetrated by ... any ... kind of Mitigating circumstances shall be any wilful, deliberate and premeditated killing, factors proffered by the defendant or the or which is committed ... in the perpetra- state which are relevant in determining tion of, or attempt to perpetrate ... rob- whether to impose a sentence less than bery ... is murder of the first degree." death, including any aspect of the defen- Ariz.Rev.Stat.Ann. § 13-452 (repealed dant's character, propensities or record 1978) (current version at § 13-1105). For and any circumstances of the offense, those convicted of first-degree murder, the including but not limited to [(1) the de- Arizona code provides a sentencing hearing fendant's incapacity to appreciate the independent of the trial. § 13-703(B). wrongfulness of his conduct or to con- Here, the trial judge must choose without form his conduct to the requirements of the assistance of a jury between the op- law, (2) the defendant's suffering of un- tions of life imprisonment and capital pun- usual or substantial duress, (3) the defen- ishment. § 13-703(AHB). For purposes dant's relatively minor participation in of this determination, a special verdict is the crime, (4) the defendant's reasonable required regarding the existence or non- inability to foresee that his conduct existence of any aggravating or mitigating would cause or would create the grave factors. § 13-703(D). The statute puts risk of causing death, and (5) the defen- the burden of establishing the existence of dant's age]. any aggravating factors on the prosecution § 13-703(G). and the burden of establishing the existence of any mitigating factors on the de- B fense. § 13-703(C). The statute then Richmond challenges the constitutionali- channels the court's discretion: ty of this revised sentencing scheme on [he court ... shall impose a sentence four grounds. First, he contends that j-1di- of death if the court finds one or more cial determination of the existence or non- of the aggravating circumstances enu- existence of aggravating circumstances im- merated in subsection F of this section permissibly usurps the jury's fact-finding and that there are no mitigating circum- function. Second, he claims that requiring stances sufficiently substantial to call for the defense to establish the existence of leniency. any mitigating circumstances illegitimately I 13-703(E) (emphasis added). shifts the burden of proof. Third, he ar- Subsection F enumerates ten aggravat- gues that the Arizona statute creates an ing circumstances, including the following unconstitutional presumption that death is three: the proper sentence. Finally, he insists (1) The defendant was previously con- that imposing the death penalty upon find- victed of a felony in the United States ing that the killing was "especially heinous, for which under Arizona law a sen- cruel or depraved" is unconstitutionally tence of life imprisonment or death vague. was imposable. (3] The Supreme Court's recent deci- (2) The defendant was previously con- sion in Walton v. Arizona specifically ad- victed of a felony in the United States dressed and rejected the first three conten- 1482 948 FEDERAL REPORTER, 2d SERIES tions, and Richmond has not forcefully ad- [4] The Walton Court likewise rejected vanced these arguments since.s With re- the contention that requiring the defendant spect to the judicial determination of sen- to establish the existence of mitigating tencing factors, the Court stated: " 'Any factors impermissibly shifts the burden of argument that the Constitution requires proof. Denying that the practice violates that a jury impose the sentence of death or the eighth and fourteenth amendments, the make the findings prerequisite to imposi- Court ruled: tion of such a sentence has been soundly So long as a State's method of allocating rejected by prior decisions of this Court.'" the burdens of proof does not lessen the Walton, 110 S.Ct. at 3054 (quoting Clem- State's burden to prove every element of ons v. Mississippi, 494 U.S. 738, 110 S.Ct. the offense charged, or in this case to 1441, 1446, 108 L.Ed.2d 725 (1990)). In- prove the existence of aggravating cir- deed, even before Walton, it was well set- cumstances, a defendant's constitutional tled that "'the Sixth Amendment does not rights are not violated by placing on him require that the specific findings authoriz- the burden of proving mitigating circum- ing the imposition of the sentence of death stances sufficiently substantial to call for be made by the jury.'" Id (quoting Hild- leniency. win v. Florida,490 U.S. 638, 640, 109 S.Ct. Walton, 110 S.Ct. at 3055; see generally 2055, 2057, 104 L.Ed.2d 728 (1989)); see id. at 3055-56 (Part III of the opinion). generally id. 110 S.CL at 3054-55 (Part II Finally, the Walton of the opinion). As the district court noted Court also rejected the claim when it rejected this argument in Rich- that the Arizona statute creates an impermissible mond's first petition: presumption that death is the proper sentence for first-degree mur- "[The Supreme Court] has never sug- der. Like Richmond, Walton had chal- . gested that jury sentencing is constitu- lenged the statute's directive that a court tionally required. And it would appear "shall impose a sentence of death" if it that judicial sentencing should lead, if finds one or more aggravating circum- anything, to even greater consistency in stances and no substantial mitigating cir- the imposition at the trial court level of cumstances. Ariz.Rev.StatAnn. § 13- capital punishment, since a trial judge is 703(E) (emphasis added). Walton had con- more experienced in sentencing than a tended, as Richmond does here, that this jury, and therefore is better able to im- provision violates the proscription against pose sentences similar to those imposed mandatory death sentences announced in in analogous cases." Woodson v. North Carolina,428 U.S. 280, Richmond, 450 F.Supp. at 523 (quoting 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The Proffitt v. Florida, 428 U.S. 242, 252, 96 Court disagreed, citing its recent decisions S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976)).' in Blystone v. Pennsylvania,494 U.S. 299, S. We have already had occasion to note Wal- has stressed the alternative argument that the ton 's rejection of the first and third contentions. equal protection clause does require jury fact- See Sinith v. McCormick 914 F.2d 1153, 1169-70 finding at sentencing. Because Arizona law (9th Cir.1990). We also note in passing that provides for jury factfinding in many similar Richmond's able and experienced counsel, Tim- circumstances. Richmond contends, it is arbi- othy K. Ford, is intimately familiar with the trary and irrational not to provide for it here. Walton case. Mr. Ford represented Jeffrey Alan We find this argument unpersuasive. As the Walton in his petition before the United States Supreme Court noted in Proffitt, there is indeed Supreme Cduzt. This fact-in addition to the a rational reason for committing the factfinding cases' underlying similarity-may help to ex- function to the judge at the sentencing phase in plain why several of the arguments raised here capital punishment cases, and it probably pro- are identical to arguments decided by the Court motes more evenhanded justice to do so. Seg in that case. See infra note 7 (noting the factual at 2966. More- similarities between the two cases). Proffitt, 428 US. at 252, 96 S.Ct. over, the Court's sixth amendment holding on 6. Since the Walton decision, Richmond has ap- this issue in Walton would make little sense if parently conceded that the sixth amendment the broader, less specific terms of the equal does not require jury factfinding at the sentenc. protection clause could be read to require the ing phase in capital punishment cases, but he opposite result. RICHMOND v. LEWIS 1483 CIte as 948 F.2d 1473 (9th Cir. 1990) 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), and 865 F.2d 1011 (9th Cir.1988) (en banc), cert. Boyde v. California, 494 U.S. 370, 110 denied sub nom. Lewis v. Adamson, - S.Ct. 1190, 108 L.Ed.2d 316, reh 'g de- U.S. -, 110 S.Ct. 3287, 111 L.Ed.2d 795 nied, - U.S. -, 110 S.Ct. 1961, 109 (1990). We are not persuaded. L.Ed.2d 322 (1990), both of which had up- In Walton, another Arizona inmate who held similarly worded capital punishment was convicted of first-degree murder and laws. The Court ruled that so long as the sentenced to death challenged his sentence statute provides individualized sentencing on constitutional grounds.7 The Supreme and does not automatically impose death Court denied all four of his claims and for certain categories of murder, it passes affirmed the sentence. Despite this result, constitutional muster under Woodson. See Richmond contends that Walton's fourth generally Walton, 110 S.Ct. at 3056 (Part claim and the Court's disposition of that IV of the opinion). claim bolster his petition.8 In short, the Supreme Court has specifi- (5] In his fourth claim, Walton alleged cally rejected three of the constitutional that the aggravating circumstance found arguments raised here, and it has done so and relied upon by the sentencing judge- in the context of reviewing the very same his commission of the crime "in an espe- statute. cially heinous, cruel or depraved manner"-was unconstitutionally vague. Ariz. Rev.Stat.Ann. § 13-703(F)(6); see 110 S.Ct. C at 3056-57. The Supreme Court agreed Richmond insists, however, that his that the relevant statutory provision was fourth constitutional challenge to the stat- vague but did not agree that it was uncon- ute survives Walton. Indeed, he contends stitutional. In essence, the Court held that that Walton itself renders his death sen- facial vagueness alone does not decide the tence unconstitutional and that this court's question: one must look beyond the lan- en banc decision in Adamson v. Ricketts guage of the suspect provision and consid- mandates resentencing. See Adamson, er the full circumstances attending its ap- 7. The facts of the Walton case are strikingly dered unconscious by the shot but was not similar in many respects to the facts of the immediately killed. Instead, Powell regained present case. Walton. who also acted with the consciousness, apparently floundered about assistance of two friends, "went to a bar in in the desert, and ultimately died from dehy- Tucson, Arizona,. ... intending to find and rob dration, starvation, and pneumonia approxi- someone at random, steal his car, tie him up, mately a day before his body was found. and leave him in the desert.... In the bar's Id. parking lot, the trio encountered Thomas Pow- ell, a young, off-duty Marine." 110 S.Ct. at 8. Walton's first three claims, which were also 3052. Forcing Powell to accompany them, the raised by Richmond. were the three claims dis- three commandeered his car and drove to a cussed in Part IV-B above. First. Walton al- remote area on the outskirts of town. When they stopped, they leged that "every finding of fact underlying the sentencing decision must be made by a jury, not forced Powell out of the car and had him lie compare Ariz. face down on the ground near the car while by a judge." 110 S.Ct. at 3054; they debated what to do with him.... Wal- Rev-Stat.Ann. § 13-703(B). Second, he alleged ton then took a .22 caliber derringer and that the Arizona statute unconstitutionally "im- marched Powell off into the desert. After poses on defendants the burden of establishing, walking a short distance, Walton forced Pow- by a preponderance of the evidence, the exist- ell to lie down on the ground, placed his foot ence of mitigating circumstances." 110 S.Ct. at on Powell's neck, and shot Powell once in the 3055; compare Ariz.Rev.Stat.Ann. § 13-703(C). head. Walton later told [his two accompany- Third, he alleged that the Arizona statute "cre- ing friends] that he had shot Powell and that ates an unconstitutional presumption that death he had "never seen a man pee in his pants is the proper sentence" because it requires the before." death penalty "if one or more aggravating cir- 1d Despite the similarities, the circumstances cumstances are found and mitigating circum- of Powell's death were somewhat more grue- stances are held insufficient to call for lenien- some than those of Crummett's- cy." 110 S.Ct. at 3056; compare ArizRev.Stat. Powell's body was found approximately a Ann. § 13-703(E). The Supreme Court rejected week later.... A medical examiner deter- all three of these claims as well as the fourth, mined that Powell had been blinded and ren- which is discussed herein. 1484 948 FEDERAL RE PORTER, 2d SERIES plication. Safeguards built into the sen- (1989)) (emphasis added). By injecting this tencing scheme through other provisions- limiting definition into a sentencing process and even extra-statutory procedural safe- already restricted to judges, Arizona pro. guards-may preserve the scheme's consti- vided ample protection for Walton's constitutional integrity. See generally Walton, tutional rights. 110 S.Ct. at 3056-58 (Part V of the opinion). If the Arizona Supreme Court has nar- The Court found three such safeguards rowed the definition of the "especially within Arizona law. First, the Arizona heinous, cruel or depraved" aggravating scheme provides for sentencing by a judge, circumstance, we presume that Arizona not by a jury. That fact alone distin- trial judges are applying the narrower guished Walton from Maynard v. Cart- definition. It is irrelevant that the stat- wright, 486 U.S. 356, 108 S.Ct. 1853, 100 ute itself may not narrow the construc- L.Ed.2d 372 (1988), and Godfrey v. Geor- tion of the factor. gia, 446 U.S. 420, 100 S.Ct. 1759, 64 Id. at 3057 (emphasis added). L.Ed.2d 398 (1980), two cases relied upon Third, the Court reasoned: by Walton in which the Supreme Court had [E]ven if a trial judge fails to apply the invalidated death sentences due to similarly narrowing construction or applies an im- vague statutory definitions of aggravating proper construction, the Constitution circumstances. Where a judge makes the does not necessarily require that a state sentencing findings there is less danger of appellate court vacate a death sentence impermissibly broad applications of statu- based on that factor. Rather, as we held tory terms: "Trial judges are presumed to in Clemons v. Mississippi, 494 U.S. know the law and to apply it (correctly] in [738), 110 S.Ct 1441, 108 L.Ed.2d 725 making their decisions." Walton, 110 S.Ct. (1990), a state appellate court may itself at 3057. determine whether the evidence supports Second, the Court found, the Arizona Su- the existence of the aggravating circum- preme Court had effectively salvaged the stance as properly defined or the court suspect provision by affording it a "limit- may eliminate consideration of the factor ing definition" in the course of reviewing altogether and determine whether any the trial judge's sentencing decision. What remaining aggravating circumstances the state legislature had improvidently left are sufficient to warrant the death penal- out, the state supreme court properly in- ty. serted: Id. The Arizona Supreme Court stated that In his reliance on Walton, Richmond "a crime is committed in an especially points out as an initial matter that the cruel manner when the perpetrator in- same aggravating circumstance at issue in flicts mental anguish or physical abuse that case was cited by the Arizona Su- before the victim's death," and that preme Court in its review of his death "[m]ental anguish includes a victim's un- sentence. Richmond insists that the terms certainty as to his ultimate fate." ... of this aggravating circumstance-"espe- * ** * * * cially heinous, cruel or deprave -are ia- cially vague. He is undeniably correct; Reco gnizing that the proper degree of Walton held so explicitly. Richmond then definition of an aggravating factor is not argues, however, that whereas the Arizona susc eptible of mathematical precision, we Supreme Court cured this potential defect conc lude that the definition given to the in Walton, it failed to do so in his case. "1especially cruel" provision by the Ari- The court, he maintains, applied no comPa- zona Supreme Court is constitutionally rable "limiting construction" in its review suffi cient because it gives meaningful of his sentence. This contention is empiri- guid to the sentencer. callyince incorrect. Id. at 3057-58 (quoting State v. Walton, In reviewing Richmond's sentence, the 159 Ariz. 571, 586, 769 P.2d 1017, 1032 Arizona Supreme Court quite clearly did RICHMONI v. LEWIS 1485 Cite as 948 F.2d 14473 (9th Cir. 1990) provide a limiting construction for the ad- victim. Here the victim was already un- mittedly vague aggravating circumstance. conscious and bleeding when he was run In fact, if anything, the state court provid- over not once, but twice, each time from ed a more narrowly tailored and more obvi- a different direction. The evidence indi- ously sufficient limiting construction in cates that the first run by the vehicle Richmond's case than it did in Walton's: was over the victim's head crushing his "Cruel" has been defined as "disposed to skull and killing him. The second run of inflict pain especially in a wanton, insen- the vehicle was over the body of the sate or vindictive manner- sadistic." victim. The investigating-officers found, State v. Knapp, 114 Ariz. 531, 543, 562 at the location of the murder, two large P.2d 704 (1977), cert. denied, 435 U.S. pools of blood separated by about 30 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). feet, which was consistent with the body Cruelty involves the victim's pain or suf- having been run over and dragged to fering before death. State v. Gretzler, where it was found.. .. [135 Ariz. 42, 659 P.2d 1 (1983) ]; State v. ... We believe the facts of this case Poland, 132 Ariz. 269, 645 P.2d 784 set it "apart from the normal first de- (1982); State v. Lujan, 124 Ariz. 365, 604 gree murders." State v. Brookover, 124 P.2d 629 (1979). The offense must be Ariz. 38, 601 P.2d 1322 (1979). committed in an especially cruel, heinous Richmond, 136 Ariz. 312, 319, 666 P.2d 57, or depraved manner to be considered an 64 (plurality opinion) (finding Crummett's aggravating circumstance. State v. Lu- killing especially heinous and depraved but Jan, supra.... not especially cruel); 9 compare id. with "Heinous" has been defined as "hate- Walton, 159 Ariz. at 586-88, 769 P.2d at fully or shockingly evil; grossly bad," 1032-34. and "depraved" is "marked by debasement, corruption, perversion or deteriora- As in Walton, the sentence in this case tion." State v. Knapp, supra. Heinous was (a) imposed by a trial judge presum- and depraved involve the mental state ably knowledgeable in the law, (b) thor- and attitude of the offender as reflected oughly and independently reviewed by the Arizona Supreme Court, and (c) reimposed in his words and actions. State v. Gretz- 0 ler, supra; State v. Poland, supra,- under a sufficiently limiting construction.1 State v. Lujan, supra. In Gretzler, su- Under a fair reading of Walton and the pra, we discussed factors which lead to a record alone, therefore, Richmond's conten- finding of heinousness or depravity. tions must fail. One factor is the infliction of gratuitous Richmond attempts to avoid this conclu- violence on the victim; another related sion by challenging the legal accuracy of factor is the needless mutilation of the the Arizona Supreme Court's limiting con-

9. Richmond argues that only two of the five More importantly, Richmond's observation is Justices of the Arizona Supreme Court con- irrelevant in light of the fact that lour Justices curred in this portion of the court's opinion. concurred in the finding of two other aggravat- He is correct. Two other Justices voted to af- ing circumstances, either one of which could firm the sentence but on other grounds. They constitutionally have justified imposition of the explicitly rejected the argument that the killing death penalty. See infra Part IV-D. had been especially heinous and depraved. See Richmond, 136 Ariz. at 322-24, 666 P.2d at 67- 10. See Richmond, 136 Ariz. at 317, 666 P.2d at 69 (Cameron. J., concurring and Gordon, V.CJ., 62 ("[I]n each case where the death penalty is joining). The fifth Justice dissented altogether. imposed, this court conducts an independent See 136 Ariz. at 324-26, 666 P.2d at 69-71 (Feld- review of the record to assure a just result. We man. 3., dissenting). The fact that a majority of have reviewed the record in the instant case the court did not concur in this finding, how. ... "); 136 Ariz. at 320, 666 P.2d at 65 ("In death ever, does not deny that the Justices who did penalty cases, this court will conduct an inde- concur in it provided an adequate limiting con- pendent examination of the record to determine struction. The relevant point is that members for ourselves the presence or absence of aggra- of the court who premised their votes on the vating and mitigating circumstances and -the. challenged factor undertook the deliberations weight to give to each. We also independently and analysis constitutionally required. determine the propriety of the sentence."). 1486 948 FEDERAL REPORTER, 2d SERIES struction. He cites several state court de- sels against the sort of de novo review cisions, most notably State v. Gretzler, 135 undertaken by the Court of Appeals in Ariz. 42, 659 P.2d 1 (1983), for the proposi- this case.... Where the issue is solely tion that the court applied a definition of whether a state court has properly found the aggravating circumstance that is un- existence of a constitutionally narrowed tenable under Arizona law. This court, aggravating circumstance, we have nev- however, is foreclosed from engaging in er required federal courts "to peer ma- any such inquiry. A federal appellate jestically over the [state] court's shoulder court cannot challenge the Arizona Su- so that [they] might second-guess its in- preme Court on matters of Arizona law; in terpretation of facts that quite reason. that realm, the authority of the state court ably-perhaps even quite plainly-fit remains supreme. within the statutory language." . . . Both Walton and its companion case, Rather, in determining whether a state Lewis v. Jeffers, - U.S. -, 110 S.Ct. court's application of its constitutionally 3092, 111 L.Ed.2d 606 (1990), support this adequate aggravating circumstance was analysis. As Walton pointed out, the rele- so erroneous as to raise an independent vant focus for this court's attention is not due process or Eighth Amendment viola- upon the language of the Arizona statute tion, we think the more appropriate stan- per se or even upon the sentencing decision dard of review is the "rational factfind- of the state trial judge; rather, it is upon er" standard established in Jackson v. the constitutional legitimacy of Richmond's Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 sentence as that sentence stands today af- LEd.2d 560 (1979). We held in Jackson ter review by and exhaustion of the state that where a federal habeas corpus court process. See Walton, 110 S.Ct. at claimant alleges that his state conviction 3057-58. The only question for this court is unsupported by the evidence, feder is whether the final state result violates courts must determine ... "whether, af- constitutional law so as to warrant grant- ter viewing the evidence in the light most ing a writ of habeas corpus. Walton re- favorable to the prosecution, any ration- quires this court to pay due deference to al trier of fact could have found the state judicial systems in the administration essential elements of the crime beyond a of their own criminal sanctions and to rec- reasonable doubt" ognize both the competence and duty of state courts of general jurisdiction to en- Jeffers, 110 S.CL at 3102-03 (quoting God- force federal constitutional law. frey v. Georgia, 446 U.S. 420, 450, 100 S.Ct. 1759, 1776, 64 L.Ed.2d 398 (1980) Jeffers thoroughly reinforces the Walton (White, J., dissenting) and Jackson v. Vir- In Jeffers, the Supreme Court re- rule. ginia, 443 U.S. 307, 319, 99 S.Ct. 2781, reapplied the Walton holding to stated and 2789, 61 L.Ed.2d 560, reh'g denied, 444 deny another Arizona prisoner's challenge U.S. 890, 100 S.Ct. 195, 62 LEd.2d 126 to the legitimacy of his death sentence. (1979)) (emphasis in original). Because Jeffers was before the Court on collateral review, the Court concluded that In short, this court's focus must not be even greater deference was owed to the on the underlying sentence but on whether state system than the Court had urged in the state system in both imposing and re- Walton, which it had heard on direct reviewing that sentence committed an inde- view. The Court never reached the merits pendent constitutional violation. To va- of Jeffers's constitutional claims, and it cate Richmond's sentence, this court would certainly never approached any questions have to find that there is no rational basis of state law; rather, the Court reached its in law or fact for the state supreme court's decision upon formulation of the appropri- final evaluation that- the circumstances ate standard of review. Writing for the warrant the sentence of death: Court, Justice O'Connor explained: [A] federal court should adhere to the [Riespect for a state court's findings of Jackson standard even when reviewing fact and application of its own law coun- the.decision of a state appellate court RICHMONI v. LEWIS 1487 Cite as 94 F.2d 1 473 (9th Cir. 1990) that has independently reviewed the evi- three aggravating circumstances and an dence, for the underlying question re- insufficient showing of mitigating circum- mains the same: if a State's aggravating stances. See Richmond, 136 Ariz. at 318- circumstances adequately perform their 21, 666 P.2d at 63-66. The second aggra- constitutional function, then the state vating factor relied upon was Richmond's court's application of those circum- conviction for another murder six months stances raises, apart from due process after his initial conviction. Although this and eighth amendment concerns, only a latter conviction postdated Richmond's question of the proper application of first, "[i]t is not disputed that the killing state law. A state court's finding of an that was the basis of th[at] conviction oc- aggravating circumstance in a particular curred prior to the murder of Bernard case-including a de novo finding by Crummett." Richmond, 640 F.Supp. at an appellate court that a particular 780; see supra note 1. In any event, both offense "is especially heinous ... or convictions were duly on record by the time depraved "-is arbitrary or capricious if of Richmond's resentencing in 1980. and only if no reasonable sentencer could Furthermore, although the state su- have so concluded. preme court explicitly found and addressed Id. 110 S.Ct. at 3103 (emphasis added). only these two aggravating circumstances, We therefore reject Richmond's invita- it held that "[t]he trial court correctly tion to "conduct(] a de novo, case-by-case found three aggravating circumstances." comparison of the facts" of various state Richmond, 136 Ariz. at 320, 666 P.2d at 65. court precedents. Id. at 3101. Like the The third was an entirely separate prior Supreme Court in Walton, we "conclude conviction for kidnapping-statutorily rele- that the definition given to the 'especially vant for death penalty purposes as an of- cruel' provision by the Arizona Supreme fense "involving the use or threat of vio- Court is constitutionally sufficient." Wal- lence on another person." Ariz.Rev.Stat. ton, 110 S.Ct at 3058. Applying Jeffers, Ann. § 13-703(F)(2)." Arizona law explic- we further conclude that under that defini- itly provides that a single aggravating cir- tion a rational factfinder could indeed have cumstance may suffice for imposition of found Crummett's murder heinous or de- the death penalty. See § 13-703(E). praved so as to warrant the penalty of [61 Richmond does not contend, nor death. could he reasonably, that the statutory definitions of these two other factors are un- D constitutionally vague. See § 13- Even if Richmond were to prevail in his 703(F)(1H2). Rather, he sidesteps consid- claim that the Arizona Supreme Court eration of these additional factors by citing failed to provide a sufficiently limiting con- this circuit's en banc decision in Adamson struction for the aggravating circumstance v. Ricketts for the proposition that invalida- discussed above, however, his contentions tion of any one aggravating circumstance would still lack merit. The Arizona Su- requires resentencing. See 865 F.2d at preme Court rested its affirmance of his 1037 n. 42, 1038, 1039. We have just held sentence upon a finding of not one, but that the aggravating circumstance to which

11. The court also hinted at the possible applica. Court's majority opinion does not address it bility of a fourth aggravating circumstance: the except to express general agreement with the defendant's commission of the crime in expecta- trial court's reliance upon it. The concurrence, tion of pecuniary gain. See Ariz.Rev.Stat.Ann. which was endorsed by two Justices, is some- § 13-703(F)(5); Richmon4 136 Ariz. at 320, 666 what more explicit in its embrace of the lower P.2d at 65. Although noting that the trial court court's reliance on both the prior murder con- had improperly analyzed this factor in reaching viction and the prior kidnapping conviction. the conclusion that it did not apply, the Arizona See Richmond 136 Ariz. at 323-24, 666 P.2d at Supreme Court declined to determine whether 68-69 (Cameron, J., concurring and Gordon. under a proper analysis it would apply. V.CJ., joining). - With respect to consideration of Richmond's kidnapping conviction, the Arizona Supreme 1488 948 FEDERAL REPORTER, 2d SERIES Richmond refers is not invalid, but assum- would have been ipso facto unconstitution- ing for the sake of argument that it is, al. Rather, it implicitly recognized that Richmond's reliance on Adamson is not reliance on a single aggravating factor can well taken. be constitutional. See id at 1446, 1450-51. The Supreme Court granted certiorari in The Court remanded because once the Walton specifically because of this circuit's vague factor was removed from the analy- en banc holding in Adamson,12 and Walton sis, it was unclear from the Mississippi reached the opposite conclusion regarding Supreme Court's opinion whether the one remaining the Arizona statute's constitutionality. circumstance still outweighed all the mitigating Even if the portion of Adamson upon evidence. See id. at 1449-51 which Richmond relies survives Walton, it (Parts III-IV of the opinion). still does not support his claim. Contrary (7] In this case, there is no similar to the suggestion, Adamson did not hold doubt. Elimination of the challenged that invalidation of one aggravating cir- factor would still leave enough support for cumstance automatically requires remand Richmond's sentence because the statute at for resentencing; rather, the court simply issue here is fundamentally different from noted that it is the common practice of the the statute at issue in Clemons. The Mis. Arizona Supreme Court to remand for re- sissippi law that Clemons considered au- sentencing when that court invalidates an thorizes the death penalty if "'there are aggravating circumstance. Id. There is insufficient mitigating circumstances ... to no suggestion in Adamson that the United outweigh the aggravating circum- States Constitution requires remand when stances.'" Id. at 1446 n. 2 (quoting Miss. one aggravating factor is eliminated from Code Ann. § 99-19-101(3)(c) (Supp.1989)) the analysis if sufficient other aggravating (emphasis added). Arizona's law mandates factors remain. the death penalty "if the court finds one or more of the [enumerated] aggravating cir- The Supreme Court's recent decision in cumstances ... and that there are no miti- Clemons v. Mississippi, 494 U.S. 738, 110 gating circumstances sufficiently substan- S.Ct. 1441, 108 L.Ed.2d 725 (1990), upon tial to call for leniency." Ariz.Rev.Stat. which Richmond also relies, is not to the Ann. § 13-703(E) (emphasis added). The contrary. In Clemons, a Mississippi indifference is significant: a conclusion by mate challenged the constitutionality of a the Arizona courts that there are no sub- death sentence imposed partially on the stantial mitigating circumstances is sepa- basis of a court's finding that it had been rate from and independent of any conclu- an "especially heinous, atrocious or cruel" sion regarding the existence of aggravat- killing. Id. 110 S.Ct. at 1445. The Missis- ing circumstances. Invalidation of an ag- sippi law in question permitted imposition gravating circumstance does not mandate of the death penalty upon a finding of only reweighing or require resentencing where one aggravating circumstance so long as the court has found that the prosecution that aggravating circumstance outweighed has met its burden of establishing aggrava- all mitigating circumstances. Finding the tion sufficient to warrant the state's harsh- state supreme court's consideration of the est penalty two or three times and that the "especially heinous" factor impermissibly defense has failed to establish mitigating vague, the Supreme Court remanded for circumstances sufficiently substantial to resentencing. call for leniency. See id. Hg 13-703(C), (E). The Court did not hold, however, that Under the statute at issue in Clemon, the imposition of the death penalty on the basis invalidation of an aggravating crum of the single remaining aggravating factor stance necessarily renders any evidence Of

12. See Walton. 110 S.Ct. at 3054 ("Because the Ricketts, 865 F.2d 1011 (1988) (en banc). w United States Court of Appeals for the Ninth granted certiorari."): id 110 S.CL at 3059 (S Circuit has held the Arizona death penalty stat- lia, I., concurring) (describing Adanue'"s- ute to be unconstitutional for the reasons sub- Walton as "essentially identical" cass). mitted by Walton in this case, see Adamson v. RICHMON ) v. LEWIS 1489 Cite as 948 F.2d I473 (9th Cir. 1990) mitigation "weightier" or more substantial mond expressly intended to participate in in a relative sense; the same, however, and to facilitate that murder. Moreover, cannot be said under the terms of the Ari- the Supreme Court's holding in Enmund zona statute at issue here. Nothing in the was predicated upon the attenuated nature Arizona statute suggests the need for ple- of the defendant's responsibility for the nary reweighing where the record still re- deaths in that case. As the Supreme Court veals that there are "one or more of the pointed out more recently in Tison v. Ari- [enumerated) aggravating circumstances zona, 481 U.S. 137, 107 S.Ct. 1676, 95 ... and that there are no mitigating cir- L.Ed.2d 127, reh'g denied, 482 U.S. 921, cumstances sufficiently substantial to call 107 S.Ct. 3201, 96 L.Ed.2d 688 (1987), En- for leniency." Id. § 13-703(E). mund does not stand for the blanket proposition that capital punishment is unconsti- V tutional in cases of felony murder: 181 Richmond next contends that be- (S]ome nonintentional murderers may be cause the trial court never specifically among the most dangerous and inhu- found that he caused, intended to cause, or mane of all-the person who tortures attempted to cause Crummett's death, im- another not caring whether the victim position of the death penalty would violate lives or dies, or the robber who shoots the rule of Enmund v. Florida, 458 U.S. someone in the course of the robbery, 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). utterly indifferent to the fact that the The defendant in Enmund had been con- desire to rob may have the unintended victed of felony murder and sentenced to consequence of killing the victim as well death for his involvement in the killing of as taking the victim's property. This two robbery victims, even though the reckless indifference to the value of hu- record only suggested that he was the driv- man life may be every bit as shocking to er of the get-away car. In vacating En- the moral sense as an "intent to kill." mund's sentence, the Supreme Court held ... [WMe hold that the reckless disregard that imposition of the death penalty vio- for human life implicit in knowingly en- lates the eighth and fourteenth amend- gaging in -criminal activities known to ments in the absence of a specific finding carry a grave risk of death represents a by the trier of fact that the defendant highly culpable mental state, a mental actually killed, attempted to kill, intended state that may be taken into account in to kill, or contemplated that life would be making a capital sentencing judgment taken: when that conduct causes its natural, Enmund himself did not kill or attempt though also not inevitable, lethal result. to kill; and, as construed by the Florida Supreme Court, the record before us ... [W]e simply hold that major partic- does not warrant a finding that Enmund ipation in the felony committed, com- had any intention of participating in or bined with reckless indifference to hu- facilitating a murder. Yet under Florida man life, is sufficient to satisfy the En- law death was an authorized penalty be- mund culpability requirement. cause Enmund aided and abetted a rob- 481 U.S. at 157-58, 107 S.Ct. at 1687-88 bery in the course of which murder was (footnote omitted). committed. Furthermore, in its independent review Id. at 798, 102 S.Ct. at 3377; see id at 801, of the record in this case, the Arizona Su- 102 S.Ct. at 3378. preme Court explicitly did consider En- Enmund, however, is clearly-distinguish- mund, and it set forth findings sufficient able from the present case. The jury that to satisfy both that test and the Supreme convicted Richmond received instructions Court's later pronouncements in Tison on both premeditated and felony murder, Even if we accept appellant's conten- and the record before us clearly provides tion that he was not driving the car.when sufficient evidence for a finding that Rich- the victim was run over, we do not be- 1490 948 FEDERAL RE PORTER, 2d SERIES lieve this case falls within the parame- the defendant's culpability has been ters of Enmund. The facts from the made. appellant's version indicate that he was Cabana v. Bullock, 474 U.S. 376, 386-87, the leader of the group; he was the first 106 S.Ct. 689, 696-97, 88 L.Ed.2d 704 (1986) to use violent force on the victim; he was (footnote omitted). Accordingly, we con- aware that the victim, if allowed to live, clude that the Arizona courts have predi- could identify him. Appellant, from his cated Richmond's sentence upon a suffi- version of the facts, was willing to leave cient finding of criminal intent. the wounded and unconscious victim alone in the desert to an uncertain VI fate.... There is no evidence that appellant protested or showed any emotion [9] As a black male of moderate means, when the victim was twice run over. Richmond next contends that the district The appellant's version of the facts indi- court erred in denying his request for an cates appellant played an integral part in evidentiary hearing upon his claim that Ari- the events which caused the victim's zona's administration of the death penalty death, and he willingly assisted in the is racially, sexually, and socio-economically acts which were intended to cause the discriminatory. We disagree. A habeas victim's death. corpus petitioner is entitled to an evidentia- The evidence presented by the state ry hearing both if he "alleges facts which, was that the appellant drove the vehicle if proved, would entitle him to relief" and if over the victim, thus killing him. The he did not receive a full and fair evidentia- testimony of Faith Erwin was that the ry hearing on the issue in the state court. appellant was the driver at the time the Townsend v. Sain, 372 U.S. 293, 312, 83 victim was run over. The circumstantial S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); see id. evidence supports Faith's testimony. at 312-19, 83 S.Ct. at 756-60. The facts Richmond, 136 Ariz. at 318, 666 P.2d at that Richmond has alleged, even if proven, 63.1 would not entitle him to relief. Nor does it matter that the Enmund In support of his request for a hearing finding was made by the state supreme on this issue in the district court, Richmond court rather than by the original sentenc- made an extensive proffer of what he seeks ing court: to prove: At what precise point in its criminal pro- The proffer included that, although 15% cess a State chooses to make the En- of the victims of homicides in Arizona mund determination is of little concern since 1973 have been black, every person from the standpoint of the Constitu- under death sentence was convicted of tion.... killing a white victim; that [although] ... [WJhen a federal habeas court re- approximately 10% of the persons con- views a claim that the death penalty has victed of homicide in Arizona since 1973 been imposed on one who has neither have been women, no women are on killed, attempted to kill, nor intended death row. All three experts who had that a killing take place or lethal force be examined the Arizona death sentencing used, the court's inquiry cannot be limit- process from 1973 to the present [March ed to an examination of jury instructions. 1987] found significant discrepancies Rather, the court must examine the en- based on the victim's race; two found tire course of the state-court proceedings evidence of discrimination based on the against the defendant in order to deter- defendant's race, and one demonstrated mine whether, at some point in the pro- significant disparities based on sex and cess, the requisite factual finding as to economic status as well.

13. Interestingly, the Arizona Supreme Court States Supreme Court decided Ennund in 1982; conducted its Enmund analysis in this case be- the Arizona Supreme Court affirmed Rkbf fore the United States Supreme Court narrowed mond's sentence in 1983; and the United StZO the Enmund holding in Tison. The United Supreme Court decided Tison in 1987- RICHMONI v. LEWIS 1491 Cite as 94 Fd 1473 (9th Cir. 1990) Brief for Appellant at 38-39 (citations omit- an independent constitutional violation, and ted). This proffered evidence, however, is Richmond has cited no such decision. precisely the sort of generalized statistical On the other hand, the State of Arizona evidence that was rejected as unactionable has directed the court's attention to two by the Supreme Court in McCleskey v. relevant, though not controlling, prece- Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 dents. In a decision affirmed two years L.Ed.2d 262, reh'g denied, 482 U.S. 920, later by the Tenth Circuit, the United 107 S.Ct. 3199, 96 L.Ed.2d 686 (1987). States District Court for the District of Even if proven, the statistical disparities to Utah rejected a similar claim brought by a which Richmond points would be insuffi- habeas corpus petitioner who had been on cient to support an inference of purposeful death row for ten years. Andrews v. Shul- discrimination in his own case. To require sen, 600 F.Supp. 408, 431 (D.Utah 1984), the district court to weigh this evidence affd, 802 F.2d 1256 (10th Cir.1986), cert would be to suggest that Richmond's death denied, 485 U.S. 919, 108 S.Ct. 1091, 99 sentence could conceivably be invalidated L.Ed.2d 253, reh'g denied, 485 U.S. 1015, solely on the basis of his physical or social 108 S.Ct. 1491, 99 L.Ed.2d 718 (1988). The affinity to other defendants who are not court reasoned that to accept the petition- now before this court but who may have er's argument would be "a mockery of suffered unconstitutional discrimination in justice" given that the delay was attributa- their receipt of the same sentence. This ble more to the petitioner's actions than to we cannot do. To prevail in challenging his the state's. Id. Like Richmond, the peti- sentence under the equal protection clause, tioner in Andrews had sought "extensive Richmond "must prove that the decision- and repeated review of (his] death sen- makers in his case acted with discriminato- tence." Id. Arizona also points to the ry purpose." McCleskey, 481 U.S. at 292, well-known decision of the California Su- 107 S.Ct. at 1767 (emphasis in original). preme Court in People v. Chessman, in Richmond has alleged no facts to suggest which that court rejected the same claim by that either the Arizona Supreme Court, the an eleven-year death-row inmate. 52 state trial court, or the prosecutor's office Cal.2d 467, 497, 341 P.2d 679, 699 (1959), acted with prejudicial or discriminatory cert. denied, 361 U.S. 925, 80 S.Ct. 296, 4 purpose in either seeking or imposing his L.Ed.2d 241, rek 'g denied, 361 U.S. 941, 80 sentence. The district court thus properly S.Ct. 383, 4 L.Ed.2d 362 (1960). Finally, we denied his request for an evidentiary hear- note the decision of the United States Su- ing on this issue. See generally id. at 292- preme Court in Harrison v. United States, 320, 107 S.Ct. at 1766-82. 392 U.S. 219, 221 n. 4, 88 S.Ct. 2008, 2009 n. 4, 20 L.Ed.2d 1047 (1968), which the district VII court cited in its rejection of this claim and (101 Richmond's final contention is that which held that an eight-year delay be- fulfillment of his sentence after sixteen tween an arrest and sentencing was not years on death row would constitute cruel unconstitutional where the delay resulted and unusual punishment in violation of the from the need to assure careful review of eighth and fourteenth amendments." We an unusually complex case. See Rich- know of no decision by either the United mond, 640 F.Supp. at 803 (citing Harri- States Supreme Court or this circuit that son). has held that the accumulation of time a Especially in light of the relative absence defendant spends on death row during the of contrary precedents, we believe that the prosecution of his appeals can accrue into reasoning of these cases is sound. A de- 14. Richmond actually alleged that fulfillment of submission of his appeal. We note, however, his sentence after thirteen years. on death row that because this appeal properly concerns Rich- would constitute cruel and unusual punishment. mond's sentence only as of the date of its reim- Because he raised that claim in his opening position in 1980. the relevant period of his resi- brief, which was filed in 1987, we have added dency on death row is actually ten years. the past three years during which we deferred 1492 948 FEDERAL REPORTER, 2d SERIES fendant must not be penalized for pursuing however, was the subject of a credibility his constitutional rights, but he also should dispute. Neither the jury nor the trial not be able to benefit from the ultimately court resolved that dispute, and the Ari- unsuccessful pursuit of those rights. It zona Supreme Court is incapable of resolv- would indeed be a mockery of justice if the ing it rationally. delay incurred during the prosecution of Moreover, the panel maintains that any claims that fail on the merits could itself error in the finding of an aggravating cir- accrue into a substantive claim to the very cumstance is harmless because the sentenc- relief that had been sought and properly ing judge concluded that the mitigating denied in the first place. If that were the circumstances were not sufficiently sub- law, death-row inmates would be able to stantial to call for leniency. The panel's avoid their sentences simply by delaying conclusion is based on the erroneous prem- proceedings beyond some threshold amount ise that Arizona law permitted the sentenc- of time, while other death-row inmates- ing court to arrive at such a conclusion less successful in their attempts to delay- without weighing the aggravating factors would be forced to face their sentences. against the mitigating circumstances. See Such differential treatment would be far Richmond v. Lewis, 921 F.2d 933, 947 (9th more "arbitrary and unfair" and "cruel and Cir.1990). By maintaining that Arizona's unusual" than the current system of fulfill- statute is not a weighing statute, the pan- ing sentences when the last in the line of el's opinion directly conflicts with Arizona appeals fails on the merits. We thus de- case law and the prior decisions of this cline to recognize Richmond's lengthy in- court. That case law demonstrates that in carceration on death row during the pend- Arizona, the sentencer evaluates whether ency of his appeals as substantively and the mitigating evidence is sufficiently sub- independently violative of the Constitution. stantial to warrant leniency by weighing it against the aggravating factors. When an VIII invalid aggravating factor is removed from For the foregoing reasons, we affirm the the scales, the equation can change. Some- judgment of the district court and deny one must reevaluate the mix of mitigating Richmond's petition for a writ of habeas factors in light of the reduced gravity of corpus. the remaining valid aggravating factors. AFFIRMED. I HARRY PREGERSON, Circuit Judge, The panel's opinion acknowledges that with whom Judges HUG, NORRIS and the "especially heinous" aggravating cir- REINHARDT join, dissenting from denial cumstance is unconstitutionally vague on of rehearing en banc: its face, but it concludes that the Arizona By declining to rehear this case en banc, Supreme Court applied a sufficiently nar- this court sends a man to his death without row construction of the facially vague undertaking even the minimal review that term. Once a state appellate court W the Supreme Court continues to find appro- articulated a constitutionally sufficient nM priate in habeas cases. In this case, even rowing construction of a facially vague sa the most deferential review of the record gravating circumstance, federal court! reveals that no rational sentencer could must still review the state courts' applie have concluded that Richmond's mental tion of that narrowed definition to the facts state was "especially heinous," as that of a particular case. That review is to be. term is defined by the Arizona Supreme conducted under the deferential "rations Court. The Arizona Supreme Court's con- factfinder" standard of Jackson v. clusion that Richmond's mental state was nia, 443 U.S. 307, 99 S.Ct. 2781, 61 LE.02 . "especially heinous" turns on the assump- 560 (1979). A state court's finding of s tion that he was driving the car when it ran aggravating circumstance, including ' over the victim. The identity of the driver, state appellate court's finding that a mo RICHMOND v. LEWIS 1493 Cite as 948 F.2d 1473 (9th Cir. 1990) der is "especially heinous," violates the of blood separated by about 30 feet, Constitution if no reasonable sentencer which was consistent with the body hav- could have made the finding. See Lewis v. ing been run over and dragged to where Jeffers, - U.S. -, 110 S.CL 3092, 3102- it was found. 03, 111 L.Ed.2d 606 (1990). Id., quoted in Richmond, 921 F.2d at 943. In this case, no rational sentencer could As this quotation demonstrates, the Ari- have found that Richmond's mental state zona Supreme Court clearly focused on the was "especially heinous" as that facially actions of the driver when it determined vague term has been narrowed by the Ari- that the facts warranted a that the zona Supreme Court. The limiting defini- finding killer's mental state was "especially hei- tion, as reported in the panel's opinion, nous." requires that the sentencer make a factual The Arizona Supreme Court ap- finding about the defendant's mental state. peared to assume that Richmond was the "Heinous and depraved involve the mental driver. Yet neither the jury nor the sen- state and attitude of the offender as re- tencing court ever found that Richmond flected in his words and actions." State v. was the driver. Richmond, 136 Ariz. 312, 666 P.2d 57, 64 Indeed, the driver's identity has been vig- (Ariz.1983), quoted in Richmond v. Lewis, orously disputed throughout this case. 921 F.2d 933, 943 (9th Cir.1990). In addi- Faith Erwin provided the only testimony tion, the Arizona Supreme Court tells us implicating Richmond as the fatal driver.' that "heinous" means "grossly bad" or Richmond has always denied being the fa- "shockingly evil." The Arizona Supreme tal driver, and he has witnesses to support Court applies several factors to determine him. In his statement to the police, Rich- whether the "especially heinous" aggravat- mond said that Becky Corella backed the ing circumstance applies. In determining car up over the victim, then drove forward in this case that Richmond's mental state and ran over him again. Richmond v. was grossly bad or shockingly evil, the Ricketts, 640 F.Supp. 767, 771 (D.Ariz. Arizona Supreme Court mentioned only 1986). Corella did not testify.2 A witness two of those factors: the infliction of gra- for Richmond testified that Erwin earlier tuitous violence on the victim and the muti- reported that Corella had been driving. lation of the corpse. I believe that by 640 F.Supp. at 778. The jury did not deter- focusing solely on those two factors in this mine who drove the car. Because the jury case, the Arizona Supreme Court could was instructed on felony murder, the jury's draw rational inferences about the mental verdict is consistent with either version. state of only one actor- the driver of the car. At the sentencing hearing, Richmond Here the victim was already unconscious .submitted additional evidence to show that and bleeding when he was run over not Corella was the lethal driver. 640 F.Supp. once, but twice, each time from a differ- at 778-79. According to affidavits signed ent direction. The evidence indicates by two witnesses, Corella admitted being that the first run by the vehicle was over the driver. Moreover, an affidavit signed the victim's head crushing his skull and by the prosecutor in the original trial stat- killing him. The second run of the ve- ed that Corella was prepared to testify hicle was over the body of the victim. "and accept blame for the killing." A The investigating officers found, at the Neither the jury, the sentencing court, location of the murder, two large pools nor the Arizona Supreme Court has ex-

1. Erwin received immunity in return for her 3. In discussing the procedural history of the testimony. Richmond v. Ricketts, 640 F.Supp. case, the panel's opinion mentions that Rich- 767, 792 n. 30 (D.Ariz.1986). mond filed one of these affidavits in a petition 2. Corella was granted immunity, but neither the for post-conviction relief. 921 F.2d at 936. It Prosecution nor the defense called her as a does not discuss the other affidavits. witness. State v. Richmond, 114 Ariz. 186, 560 P.2d 41, 44 (1976). 1494 948 FEDERAL REPORTER, 2d SERIES pressly resolved the dispute over who The Arizona Supreme Court's discussion drove the car over the victim's body. Yet of the Edmund argument is the only sec- the Arizona Supreme Court's conclusion tion of the state supreme court opinion that that Richmond's mental state was "espe- discusses the dispute over the driver's iden- cially heinous" turns on the tacit assump- tity. As I read the opinion of the state tion that he was the driver. supreme court, it determined that Rich- Just as the jury's verdict did not neces- mond's Edmund argument was a loser no sarily determine that -Richmond was the matter who drove the car. Even under driver, the trial court's finding that the Richmond's version of the facts, the court murder was "especially cruel or heinous" noted, Richmond's level of involvement in did not turn on any finding that Richmond the crime was substantial enough that it was the driver. Nor did it turn on any satisfied Edmund, without regard to conclusion about Richmond's mental state. whether Richmond was responsible for the At the time Richmond was sentenced in final lethal action. See State v. Richmond, 1980, the Arizona Supreme Court had not 666 P.2d at 63. yet narrowed the definition of "especially heinous" to restrict the application of that Although the Arizona Supreme Court aggravating circumstance to determina- discussed the dispute over the identity of tions of the defendant's mental state or the driver, the Arizona courts resolved the attitude. The sentencing court did not ex- Edmund question without determining plain why it concluded that the aggravating whether or not Richmond drove the car. circumstance applied, nor did it assume The Arizona Supreme Court was institu- that Richmond was driving the car when tionally incapable of resolving the credibili- the victim was run over. The findings and ty dispute over the identity of the driver. special verdict of the sentencing court do See Cabana v. Bullock, 474 U.S. 376, 388 not even discuss the identity of the driver. n. 5, 106 S.Ct. 689, 698 n. 5, 88 L.Ed.2d 704 Nevertheless, the identity of the driver (1986). Conceivably, the Arizona Supreme was an issue on appeal to the Arizona Court could have determined that the sen- Supreme Court. While Richmond's case tencing court actually made an Edmund was on appeal, the United States Supreme finding, and could have further determined Court decided Edmund v. Florida, 458 that such a finding was supported by the U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 evidence. The record, however, shows that (1982), which held that the Constitution for- the sentencing court made no Edmund bids capital punishment for certain types of finding, nor did it determine whether Rich- felony murder convictions. In Edmund, mond or Corella drove the car over the the Court determined that states cannot victim.4 The opinion of the panel confirms execute defendants convicted of felony that it was the state supreme court, not the murder unless they actually killed, attempt- sentencing court, that resolved the Ed- ed to kill, or intended that a killing occur. mund question. See Richmond 921 F.2d See Cabana v. Bullock, 474 U.S. 376, 378, at 948 ("Nor does it matter that the Ed- 106 S.CL 689, 693, 88 LEd.2d 704 (1986). mund finding was made by the state s1 Richmond contended that the ruling of Ed- preme court rather than by the original mund should spare him from execution. sentencing court").

4. The opinion of the Arizona Supreme Court identity. If so. then the court was mistake- includes one sentence that suggests that the sen- There is simply nothing in the record to suggest tencing court resolved the credibility conflict that the trial judge made any conclusion aboiu and made a factual finding that Richmond whether Richmond or Corella drove the car. If drove the car. The court said that "the trial any state court can be said to have determined judge was justified in concluding that appellant the identity of the driver, it is the Arizona Su drove the vehicle that was used to kill the vic- preme Court. not the sentencing court. Yet the tim." State v. Richmond, 136 Ariz. 312, 666 Arizona Supreme Court could not rationally do' P.2d 57, 63 (1983). This sentence suggests that termine whether it was Richmond or E the Arizona Supreme Court believed that the who was telling the truth. trial court made a finding about the driver's RICHMONI v. LEWIS 1495 Cite as 948 F.2d I 473 (9th Cr. 1990) In sum, although the sentencing court would result from actual reweighing of the may have been capable of resolving the mix of mitigating factors and aggravating dispute over the identity of the driver, it circumstances." Clemons, 110 S.Ct. at did not do so. The factfinder in this case 1450. There must either be a resentencing, can only be the Arizona Supreme Court. see Creech v. Arave, 928 F.2d 1481, 1489 Yet the Arizona Supreme Court could not (9th Cir.1991); Adamson v. Ricketts, 865 rationally resolve this factual dispute on F.2d 1011, 1038-39 (9th Cir.1988) (en banc), the basis of a cold record. See Cabana, or at a minimum, the Arizona courts must 474 U.S. at 388 n. 5, 106 S.Ct. at 698 n. 5. reweigh the defendan's mitigating evi- Nevertheless, the Arizona Supreme Court's dence against the valid aggravating conclusion that Richmond's mental state factors. was "especially heinous" depends on the assumption that Richmond, not Corella, de- In expounding its view that any error in liberately drove the car over the victim's the finding of the "especially heinous" ag- body. Applying the deferential standard gravating circumstance was harmless, the articulated by the Supreme Court, I do not panel begins with the erroneous premise, see how, under these circumstances, any which it advances without citing any case rational factfinder could conclude that the law, that Arizona is not a weighing state. "especially heinous" aggravating circum- See Richmond, 921 F.2d at 947. That stance, as narrowed and defined by the premise is simply wrong. The language of Arizona Supreme Court, applied in this the Arizona statute, as well as the cases of case. this court and the Arizona Supreme Court, establish that Arizona is indeed a weighing II state. Richmond was sentenced to death on the basis of three aggravating factors. Be- It appears that the panel misreads Ari- cause Richmond does not challenge the ap- zona law simply because the statute's text plication of two of those aggravating does not include the word "weigh." Never- factors, the panel asserts in part IV.D. of theless, it is clear that the statute requires its opinion that any error in applying the weighing. If the trial court finds any ag- "especially heinous" aggravating circum- gravating circumstances, it must then stance is harmless. I strongly disagree. make findings on the existence of mitigat- In Richmond's case, the trial court arrived ing circumstances. It is only after the trial at a verdict of death only after weighing court has made findings on the existence of the mitigating evidence against the aggra- both that it must make the sentencing deci- vating factors. Because the ultimate sen- sion. The statute requires a sentence of tencing determination in Arizona involves a death if there are any aggravating circum- balancing of the mitigating evidence stances "and there are no mitigating cir- against the aggravating factors, Arizona is cumstances sufficiently substantial to call a "weighing" state, as the Supreme Court for leniency." Ariz.Rev.Stat. § 13-703(E). used that term in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 1446, 1450, Without citing any. authority, the panel 108 L.Ed.2d 725 (1990). If the sentencing mistakenly concludes that the aggravating court's balancing included a constitutional- circumstances do not influence the Arizona ly invalid aggravating factor, the fact that sentencer's inquiry into whether the miti- the scales also contained a valid aggravat- gating circumstances are sufficiently sub- ing factor does not, as the panel believes, stantial. 921 F.2d at 947. On the con- dispose of Richmond's claim. In weighing trary, it is clear that the trial judge deter- states, the rule of Lockett v. Ohio, 438 U.S. mines whether the mitigating circum- 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), stances are "sufficiently substantial" by forbids such an "automatic rule of affirm- evaluating them in relation to the aggra- ance," because "it would not give defen- vating circumstances that exist. This.is a dants the individualized treatment that balancing, a process of weighing. 1496 948 FEDERAL REPORTER, 2d SERIES Numerous cases of the Arizona Supreme The panel has not simply misinterpreted Court confirm that the sentencer deter- Arizona law; it has also overlooked our mines whether mitigating evidence is "suf- prior cases. Although some portions of ficiently substantial" by weighing it our opinion in Adamson v. Ricketts, 865 against aggravating circumstances. See, F.2d 1011 (9th Cir.1988) (en bane), have not e.g., State v. Rossi, 146 Ariz. 359, 706 P.2d survived as good law, our description of the 371, 379 (Ariz.1985) ("Once the trial judge Arizona statute remains valid. We ex- finds that defendant's capacity was signifi- plained that after the parties have' estab- cantly impaired ... a mitigating factor lished the existence of aggravating and arises which is then weighed against any mitigating circumstances, "the court must aggravating circumstances that the trial weigh the aggravating circumstance(s) judge may find to determine whether miti- against the mitigating circumstance(s)." gating factors are sufficiently substantial Id. at 1040; see also id. at 1065-66 (Brunet. Adamson, the State to call for leniency"); State v. Harding, ti, J., dissenting). In 670 P.2d 383, 397 (Ariz.1983) ("We have of Arizona itself acknowledged that the statute requires described the formula of 'sufficiently sub- the sentencer to balance. id. at 1043.s stantial to call for leniency' as involving the See weighing of aggravating against mitigat- In Richmond's case, the trial court found ing circumstances on the basis of the gravi- that there were a number of mitigating ty of each circumstance."); State v. Gretz- circumstances. See State v. Richmond, ler, 135 Ariz. 42, 659 P.2d 1, 13 (1983) 136 Ariz. 312, 666 P.2d 57, 65 (1983). It (determining whether mitigating circum- was only by comparing them to the aggra- stances are sufficiently substantial involves vating circumstances that the sentencer weighing and balancing of aggravating and concluded that they were not sufficiently mitigating circumstances that are present). substantial to warrant leniency. If a re- The Arizona Supreme Court has clearly viewing court's analysis reduces the num- explained that determining whether miti- ber of valid aggravating circumstances, it gating circumstances exist is distinct from reduces the weight and gravity of the ag- the final balancing test: gravating factors that the sentencer may permissibly consider. The reviewing court [The trial court acts first as the fact can no longer rely on an earlier finding finder. It must consider whether the that the mitigating circumstances were not state has proven any of the aggravating sufficiently substantial to call for leniency. factors.... It must also determine A new balancing must be conducted in or- whether the defendant has shown miti- der to determine whether the mitigating gating circumstances .... After the trial circumstances are sufficiently substantial court has made these findings of fact, it in relation to the remaining valid aggravat- then engages in a balancing test in which ing factors. whether the mitigating it determines The panel fails to recognize that the find- substantial to call factors are sufficiently ings of no mitigating circumstances suffi- for leniency. ciently substantial to call for leniency is State v. Leslie, 147 Ariz. 38, 708 P.2d 719, simply the end result of the balancing or 730 (1985), quoted in Adamson v. Ricketts, weighing that the Arizona statute requires. 865 F.2d 1011, 1063 (9th Cir.1988) (en bane) It is not an isolated finding of fact. It (Brunetti, J., dissenting). The Arizona case depends on the nature and gravity of the law thus confirms that the panel in this aggravating circumstances. If the sen- case has misconstrued the operation of the tencing court weighed the mitigating cir- Arizona statute. cumstances against both valid and invalid

5. The panel's opinion also conflicts with our ciently substantial to warrant leniency by vie- previous reading of the virtually identical lan- ing it in relation to the aggravating circu0 guage of Montana's capital sentencing statute. stances that have been established. So Smith In Montana. as well as Arizona, the sentencer v. McCormick, 914 F.2d 1153 (9th Cir.1990) determines whether mitigating evidence is suffi- FEATHERSTON E v. ESTELLE 1497 CIte as 948 FId 1497 (9thClr. 1991) aggravating circumstances, then the sen- Central District of California, Pamela A. tence of death cannot stand. At a mini- Rymer, J., denied relief, and prisoner ap- mum, there would have to be a determina- pealed. The Court of Appeals, Trott, Cir- tion whether the mitigating circumstances, cuit Judge, held that: (1) evidence of prior when weighed against the remaining valid offense was admissible; (2) error in not aggravating circumstances, were suffi- giving limiting instruction was harmless; ciently substantial to call for leniency. (3) denial of motion for severance of charges did not deprive defendant of fair III trial; (4) use of photographic lineup identi- Because no rational sentencer could have fication did not violate due process; and (5) found that the "especially heinous" aggra- counsel was not ineffective. vating factor applied, Richmond is entitled Affirmed. to further proceedings in the state courts. Richmond presented a considerable amount of mitigating evidence at his sentencing hearing. Indeed, one justice of the Arizona 1. Criminal Law e369.15 Supreme Court would have reversed the Testimony that person identified as de- sentence of death on the strength of the fendant had committed prior rape and bur- mitigating evidence. See Richmond, 666 glary was properly admitted to establish P.2d at 69 (Feldman, J., dissenting). Rich- defendant's identity as perpetrator of rape mond is entitled to have the Arizona courts and burglary for which he was charged reevaluate the strength of that mitigating based on the similarities of the circum- evidence in relation to the valid aggravat- stances, and admission of the evidence did ing factors, with the invalid "especially hei- not deprive him of due process. U.S.C.A. nous" factor removed from the scales. Const.Amend. 14.

2. Habeas Corpus e=498 Failure of court to give limiting instruction when it admitted evidence of pri- or offense which was relevant to one of the Garry Vincent FEATHERSTONE, two sets of charges against defendant but Petitioner-Appellant, not to the other was harmless; court did

V. give adequate limiting instruction confining evidence to the issue of identity based on a Wayne E. ESTELLE, Warden, characteristic method, jury's verdicts indi- Respondent-Appellee. cated that it had not misused the evidence, No. 89-55090. defense counsel, as a tactical matter, did United States Court of Appeals, not want the court to mention certain Ninth Circuit. charges in the instruction, and deputy district attorney urged the jury to consider Submitted Oct. 30, 1989.* the evidence only in relation to the charges Submission Deferred July 16, 1990. to which it was relevant. Resubmitted Oct 24, 1991. 3. Habeas Corpus e478 Decided Oct. 31, 1991. Defendant's trial was not fundamentally unfair because court refused to separate State prisoner sought habeas corpus. two sets of charges, even though evidence The United States District Court for the of similar prior offense was admissible only

The panel finds this case appropriate for submis- Circuit Rule 34-4 and Fed.R.App.P. 34(a). sion without oral argument pursuant to Ninth PREVIEW OF THE COURT'S -DOCKET

Section: Reflections on the Recent Treatm t of the Death Penalty by the Supreme Court

Article: Dead End, John Tucker Article: The Rehnquist Rush to Execute, John Tucker Article: The Harris Execution, Henry J. Reske Press Commentary contrasting Bush's World War 1l record, experience in his detractors the wayJohn Kennedy did in 1960. whe-n roreign affairs, and leadership in Desert Storm with he appeared before Protestant ministers in Houston. Clinton's lack of experience and alleged draft dodging. Who would Clinton confront? Gennifer Flowers? Opal Republican consultants are adept at exploiting the Ellis, the 84-year-old draft official who says Clinton mis- commander-in-chief issue. In 1988 Roger Ailes pro- led his local draft board? duced an ad showing Dukakis riding in a tank, looking There are two lifelines for Clinton. One is for the silly. The ad mocked the notion of Dukakis as comman- campaign to turn inexplicably into a riveting issues der in chief. It was devastating. debate between Clinton and Bush. Clinton fared best in Is there a way Clinton might pull through? Yes, but the primaries when engaged with Tsongas in a debate don't count on it. Clinton advisers note that Bush's neg- of economic principles. Then voter concern about his atives are high too. impling that Clinton is no worse off character dipped. If Clinton finds a strong, single issue. than Bush. But Bush's low approval rating is based on he might "get the focus off personality and character." his performance as president. So long as the economy says Wirthlin, the GOP pollster. It would have to be an improves, his rating will rise. Clinton's negatives are economic issue more sweeping than the middle-class personal and harder to uproot. Clinton aides point also tax cut Clinton championed in the primaries. But if the to Bush's success in 1988 in shedding his wimp image. economy slips into recession again. Clinton may stum- But Bush was viewed more favorably once he became a ble onto the big issue he needs. The other lifeline is a presidential nominee-his wimp problem was largely a White House scandal. That would put Clinton's charac- product of being vice president (a veep isn't his own ter problem in a different context. Absent a scandal or man). Clinton doesn't have this luxury. Nor can he face economic collapse, Clinton's a goner. *

Roger Coleman vs. William Rehnquist.

DEAD END

By John Tucker

trend in this judicial reasoning than the case of the 1981 in the hardscrabble coala Marchtown ofnight Grundy, in Virginia, Brad McCoy bizarre, chilling-and still mysterious-murder of Onreturned home to find his wife, Wanda Fay, Wanda McCoy. raped and murdered, her throat cut so deep From the discovery of McCoy's body, the investigation that her head was nearly severed from her still warm of her murder was less an inquiry into who was responsi- body. Eleven years later Wanda McCoy's brother-in-law, ble than an effort to find evidence to convict Roger Roger Coleman, waits in the Virginia State Penitentiary Coleman. There were few compelling facts pointing to to be executed for her murder. There is a good chance Coleman's involvement, but police believed he was one the execution will take place on May 20, as scheduled. of the few people McCoy would have admitted into her There is also a good chance that Coleman is innocent. In house at night. More important, four years earlier Cole- the legal atmosphere created by the Rehnquist Supreme man had been convicted of attempted sexual assault. Court, however, he may never get a chance to prove it. At first, evidence against Coleman was hard to come by. From the time he joined the Court, William Rehn- No one could place him at the scene of the crime. and quist has campaigned to limit the scope of habeas cor- four independent witnesses corroborated his near-per- pus, and as the Court has changed, his efforts have fect alibi. However, by discounting the testimony of one borne fruit. Over the past decade the Court has chipped witness and ignoring the medical examiner's original away at access to habeas corpus, accepting state proce- estimate of the time of death, there was aperiod of fifteen dural arguments it once rejected, limiting the right to or twenty minutes in which Coleman could have entered file successive writs as new facts or theories emerge, and the house, struggled with the victim, dragged her into a holding that even the most compelling arguments may spare bedroom, removed her clothes, raped her, cut her be waived if they are not raised at the first opportunity. throat, stabbed her twice after she was dead, and made There are few more compelling arguments against this his escape undetected through the front (and onlv) door before Mr. McCoy came home to discover his wife's body. JOHN TUCKER is a lawyer and free-lance writer in Virginia. continued on page 24

MAY 4, 1992 THE NE% REP SLiC 21 It was a thin reed. but when forensic tests indicated timony was false. Matney denies it. that sperm found in the victim's vagina came from The Ramey home sits a few yards above the house someone with blood type B (a type shared by Coleman where Brad and Wanda McCoy lived, overlooking it. and about 13 percent of the population). some small When McCloskey knocked on the door in 1988 and spots of blood on Coleman's pants were reported to be explained that he was looking for information about the type 0 (the same as the victim and about 45 percent of murder, Mr. and Mrs. Ramey, their daughter, and one of the population). and two pubic hairs found on the vic- their sons, Donnie. were home. With the rest of the fam- tim were declared 'consistent' with Coleman's. the ily chiming in from time to time. Mrs. Ramev told a story authorities charged him with capital murder. Repre- that seemed odd. Yes, she said, she remembered the sented by appointed lawyers who had never defended a night vividly. Donnie and his brother Michael had gone murder case. Coleman was found guilty and sentenced out to the movies. When they got home about 9:45. to death. Donnie was angry because "that damn Roger Coleman s truck is parked in my parking space." Then Michael con- went outside to bring in the laundry but quickly Coleman's viction and death sentencethat led hasto begun to come returned and grabbeda fireplace poker. shouting that a apart sinceevidence his trial. If. as mineworker Phillip was lurking under the porch. He ran back out. but he web of man T Van Dvke testified, he spoke with Coleman the man was gone. miles from the murder scene at about 10:30 p.m., there Jim McCloskey was puzzled. but he knew two things was no time at all for Coleman to have committed the for sure. One was that Coleman's truck was not parked crime before Mr. McCoy arrived home. At trial the pros- in Donnie Ramey's parking space at 9:43-it was undis- ecutor argued that Van Dyke was guessing about when puted that he was miles away at that time. The other was his conversation with Coleman ended. However, the that the Rameys had not told their story to the police- possibility that Van Dyke was mistaken was largely elimi- if they had, it would have been used at trial to put Cole- nated by a time card showing that he had punched in at man at the scene of the crime. And yet it seemed equallk the mine at 10:41 p.m., exactly what you would expect unlikely that the Rameys would not have told their storv if, as he testified. Van Dyke left Coleman at 10:30, went to the police if it happened. McCloskey was coninced directly to his job, changed clothes, and punched in. the Rameys were lying-but why? The prosecutor had Van Dyke's time card at the time of trial, but it was not shown to the jury. 1990, two years after the Rameys talked to In McCloskey, Kitty Behan received an anonVMrOLLS Other elements of the state's case are disintegrating as well. According to the prosecution, the major reason report that someone had admitted to McCov'i Coleman was a suspect is that he was related to Wanda murder, and that the same person had tried to McCoy and there was no sign of forced entry. What the rape several other women in the Grundy area. cIti- prosecution did not reveal is that during the investiga- mately three women came forward and gave sworn affi- tion of the crime scene the police found a pry mark on davits that Donnie Ramey had sexually assaulted them. the McCoys' doorjamb. Close by the pry mark police (Ramey has not been charged in connection with any of found and lifted a latent fingerprint. No report of the these alleged assaults). One of the women, Teresa state's effort to identify the fingerprint has been pro- Horn, also swore that when she screamed and tried to duced. If it were Coleman's. the fingerprint would have fight Ramey off, he told her to "shut up, or I'll do you been introduced at trial with great fanfare. like I did that woman on Slate Creek." Wanda McCoy The most significant evidence that Coleman was lived on Slate Creek. wrongly convicted, however, emerged after Jim Mc- Two years ago the swabs that were taken from Closkey. a nationally known investigator, agreed to McCoy's vagina were submitted to an expert to see study the case in 1988, and Kathleen Behan, a young whether more sophisticated testing could identify or lawyer at Arnold and Porter, was assigned to it in 1990. eliminate Coleman as the source of the sperm that was McCloskey began his investigation with a visit to found. Like almost everything in this case, the results Grundy in the spring of 1988. It was McCloskey who were surprising. Though it was not possible to obtain a uncovered the police report mentioning the pry mark DNA "fingerprint" identifying the source of the sperm, and fingerprint. He also scoured the area for witnesses, the expert did isolate three blood components known as turning up a good deal of new information useful to "alleles." The bad news for Coleman is that two of them Coleman's defense, including a witness who says that were the same as his, and thus he could not be elimi- on the night of the murder Coleman's truck was not nated as the source of the sperm. Indeed, the state he parked where it had to have been under the state's claims the test results make it even more likely that theory. But McCloskey hit the jackpot when he inter- was the source. The good news is that there are only two viewed Goldie Owens and Mrs. Bobby Ramey. Owens is alleles in any one person's blood, so the sperm found in the mother-in-law of Roger Matney, a convicted felon McCoy's vagina came from at least two people. not just who testified that Coleman confessed to him when one. they were cellmates. After telling his story, Matney was Suddenly a lot of things began to make sense. released from the remainder of a four-year prison sen- McCloskey always believed there were two people tence. Owens swears that Matney later told her his tes- involved in the crime based on crime scene pho-

24 THE NEW REPUBLIC MAY 4. 1992 tographs. Then too, there was sperm in. McCoy's rectum before the truth is discovered, thus allowing death as well as her vagina. indicating she was both raped and penalty advocates to minimize their opponents' most sodomized, an unlikely feat for one man within the brief powerful argument. the possibility of mistake. period when the crime had to have occurred. There was Thus, although there are many examples of innocent also verifiable evidence that Coleman left home that men and women convicted of capital crimes. some of night expecting to go to work; was alone when he left whom came within a few hours of execution, there have work after his shift was canceled: was alone when he met been few if any executions of the factually innocent and talked to Van Dyke: and was alone when he was seen because the Warren Court provided state criminal a few minutes before the state claims he went to the defendants with realistic access to federal review by writ scene of the murder. of habeas corpus. That record, however, is about to As McCloskey puts it. -If you ask why Roger would change dramatically. The Rehnquist Court's reluctance rape and murder his wife's sister, it doesn't make sense: to interfere with state court decisions and its acceptance and if you ask how he had time to commit the crime, I of state procedural arguments in a manner eschewed by don't think he did; but if you ask how Roger Coleman, its predecessors mean that a case like Coleman's is par- after he was alone all night, recruited someone out of ticularly vulnerable. the clear blue sky to help rape and murder his sister-in- Last summer Coleman fell %ictim to the Court's law. I say it's impossible.' McCloskey believes Donnie increasingly skeptical approach to habeas corpus. Years Ramey and someone else killed McCoy and the Ramey ago one of his appointed lawyers counted the time for family knows it. That's why they made up the story about filing a document from the date an order was entered b. Coleman's truck and the man under the porch. Ramey a clerk instead of the date it was signed by ajudge. From denies it and has backed up his denial with an identifi- that day on, Coleman's case has proceeded with the cer- cation card that claims his blood type is A. taintyofa Kafka story. The Virginia Supreme Court held The next bizarre twist in the story came earlier this that the document was filed one day late, and therefore year, on Thursday, March 5. That day Teresa Horn met refused to consider Coleman's appeal on its merits. with Behan and gave an interview to a local television Next, Coleman filed for habeas corpus in federal court. station about her claim that Donnie Ramey had tried to but despite a 1963 Supreme Court decision to the con- rape her and confessed to the murder of Wanda McCoy. trary, a federal judge held that because the delay had The next day her bovfriend returned home in the late prevented Coleman from obtaining a decision on the afternoon and found Teresa unconscious. Two hours merits of his appeal, his claims would not be considered. later she was pronounced dead. Preliminarily the doc- Last year Coleman's case reached the Supreme Court tors think she died of an overdose of some drug- itself, and in June the Court overruled its 1963 decision whether self-inflicted or not may never be known. and held that because of the one-day delay in state At first it seemed that Coleman's last chance to sur- court, Coleman was not entitled to a hearing in federal vive had been buried with Horn, but the curious cir- court. cumstances of her death renewed public concern that someone other than Coleman, someone still at large, won- Coleman. waits in his cell on death row, may have killed McCoy. More important, within a week S deringo whether somehow his lawyers will find a of Horn's death two new witnesses reportedly told judge willing to make the state wait a little longer friends that Donnie Ramey had admitted involvement before killing him in order to try to find out who in the McCoy murder. Behan and McCloskey are now really murdered Wanda McCoy. His only hope, short of checking out their stories in hopes they will be able to the politically charged realm of executive clemency, is provide affidavits the way Horn did. that some court will decide that the evidence of his innocence is so strong that fundamental justice requires Roger Coleman innocent? With the legal and a hearing. But with the Rehnquist Court, even inno- Is question is before the investigative resources now available, an evidentiary cence may not be enough. That hearing before an impartial court should reveal the Court this term in the case of Leonel.Herrera, whose truth. Except for one problem-there may not be claim of innocence, supported by the affildait of an eye- any hearing. For most of this century courts have exam- witness to the crime, was rejected by a lower court on ined death penalty cases more carefully than others and the ground that innocence, even if undisputed, pro- created a system of appeals that would provide a dispas- vides no basis for a federal court to interfere with the sionate forum for reviewing convictions often obtained execution of a state prisoner. Since a majority of the jus- by zealous authorities in the charged atmosphere of a tices voted against even hearing Herrera's case, it brutal murder. This effort to avoid the irreversible appears that unless someone's mind is changed, that tragedy of executing an innocent defendant has had two decision will be upheld. opposing effects on the debate over the death penalty in With the decision in the Coleman case and the likely America. On one hand the effort to avoid mistakes result in Herrera, the Rehnquist Court's triumph over inevitably causes long delays between conviction and forty years of American death penalty jurisprudence is execution, a result that death penalty advocates bitterly substantially complete. On May 20 Roger Coleman may deplore. On the other hand this same care makes it far well become the first innocent victim of that triumph. less likely that an innocent person will be executed He will surely not be the last. *

MAY 4, 1992 THE NEW REPL BUC 25 The Rehnquist Rush to Execute Should States Get the Tnal Say?

By John Tucker HE EVENTS leading to the execution of Robert Alton Harris in California's gas chamber at dawn last Tuesday dramatically focused public attention on the final stages of Chief Justice William Rehn- quist's long crusade to limit the power of federal courts over the execution of prisoners sentenced to death by the states. While public attention was focused on the drama inside San Quentin and the concurrent drama in Wash- ington as the Supreme Court dissolved lower court stays of execution as fast as they could be entered, a broader and ultimately more significant story was gathering force in less visible cases inVirginia and Texas. No one seriously contended that Harris was innocent of the murders for which he was convicted, and in the end the question was only when and how he would be executed. But for Roger Coleman in Virginia and Leonel Herrera in Texas, for hundreds of other death row inmates across the country-and for thousands more who will be sentenced to death in years to come-the issues are quite different. Simply stated, they are these: w Whether the federal courts will continue to play a significant role in protecting defendants from the unfair trials and erroneous convictions that occur with surprising frequency in the emotional and political crucible See KECUTION, C4, COL I John Tudcer is a lawyer and writer who lives near Wilfiauurg, Va. He hasparticipated in and writen wwndy9do ~ O s...4P about death penalty cam sation with his lawyer. Leonel's brother Raul allegedly confessed that he. not Rush to Execute Leonel. killed the policemen. The lawyer's subsequent affidavit presented this account: Raul stated that he EXECUTION, From Cl has been focused on Roger Coleman. a Southside Virginia coal miner convicted of had driven his brother's car to South Padre created when someone is prosecuted for a murder and scheduled to die on May 20. Island for an appointment involving drug heinous murder. Coleman's lawyers have developed not only smuggling that his brother was too ill to a Or whether the courts instead will with- examples of unfair government conduct at keep. Raul said the first policeman killed draw from the process and leave the ac- his trial but also substantial evidence that was a participant in the drug ring, and the cused to the not-so-tender mercies of state he is innocent. But thus far Coleman has killing resulted from a dispute between the court judges and governors who may in turn been unable to obtain a federal hearing on two of them: the second officer was killed be subject to the pressures of an aroused his claims because in 1986 one of his ap- when he stopped Raul for speeding as he electorate that wants someone punished for pointed lawyers mistakenly filed a paper fled the scene of the first murder. (The sec- the crime. one day late. Last term, the Rehnquist ond officer signaled his identification of court held Leonel as the killer on his hospital death- review of state criminal that the lawyer's mistake re- Federal cases quired dismissal of Coleman's petition for a bed, but other witnesses have testified the occurs primarily under the federal writ of habeas corpus in federal court. Cole- brothers look much alike.) habeas corpus statute, which empow- man's lawyers, believing the decision left According to his lawyer's affidavit, Raul ers federal courts to order a state to release open the right to a hearing on a substantial said he and Leonel had always believed a citizen held in violation of due process and claim of actual innocence, filed a new fed- Leonel would ultimately be exonerated, other constitutional protections. If a defen- eral petition last Wednesday. since he was in fact miles away from the4 dant can show that a coerced confession But whether Coleman ever gets his hear- scene of the crime. Several weeks after was used against him, for example, a federal ing may depend on two questionable as- making his confession, Raul himself was court can order the state either to retry him sumptions: that his lawyers can obtain a murdered during an argument with another without the confession or release him out- stay of execution or a commutation to keep alleged member of the ring-and the stage him alive until the Supreme was set right. Court decides a for ultimate appeal to the Supreme Beginning case involving Texas inmate Leonel Her- Court. in the early 1950s, the Su- lawyers learned of preme Court substantially rera; and that the court will hold in that Leonel's appointed broadened the case that the Constitution requires consid- Raul's confession and in late 1990 suc- availability of habeas corpus to provide eration of a substantial claim of innocence ceeded in persuading the lawyer who had more protection against unfair state court based on evidence uncovered after the judg- heard it-a former Texas state judge-that trials. But for the past two decades, and ment of conviction becomes final. in light of Raul's death and the imminent with increasing success, Rehnquist has Leonel Herrera was convicted and sen- execution of Leonel, he was released from campaigned in opinions and speeches to lim- tenced to death for the 1981 murder of two the obligations of the attorney-client priv- it federal court use of habeas corpus to re- police officers, primarily on the basis of eye- ilege and should reveal Raul's statement. view state criminal cases-especially in witness identifications and proof that the The courts, however, were not persuaded death penalty cases. killer was driving a car owned by Herrera. by the lawyer's hearsay recitation of his In recent weeks, considerable attention Three years later, in a privileged conver- deceased client's statement. Then. Iast December, Raul Herrera 13 tivism as blatant as anything charged son. to the Raul Jr. came forward. Raul Jr. was 9 liberal members of the Warren Court, years old in 1981. According to his stato According to statistics ment. his father compiled by Prof. had taken him along on the James Liebman of Columbia Law School. trip the day of the murders, and he had wii nessed t- the potential for error inSthe kinds of ex- both killings. Raul Jr. swears that hi3 treme cases that result in the death penalty father killed both police officers and that hiS is so great that uncle between 1976 and mid- Leonel was not even in the car. 1991, approximately 50 percent of all cases hile the vast majority of American where the death penalty was imposed were s reversed now favor the death penalty, pre by the state reviewing courts. and sumably most of us would oppos another 20 percent were reversed by a fed- executing an innocent man for his brother' eral court in habeas corpus proceedings. Of crimes. And we probably would be shockei course, not all of these reversals occurred to learn that our legal system provides n because ihe defendant was not guilty: in the procedure for considering evidence of in majority, the defendant was retried and re- nocence once a conviction is final, even i f convicted or pleaded guilty. and not infre- the result is to execute an innocent man iquently he was again sentenced to death And yet that is the position the state court! after a new trial or sentencing hearing., have taken in both Texas and Virginia. anc ut there ire cases. some well known the lower federal courts B have said the same un some not, where the hearing or thing in the Herrera case. Many legal ob' retrial ordered by a reviewing court servers expect the Rehnquist court to af. or simply the passage of time has resulted firm that view when it decides the Herrera Iin the discovery of evidence that a man or case next fall, leaving Leonel Herrera and woman who was sentenced to die was in Roger Coleman-if he's still alive-without fact innocent. any court to consider the substantial evi- In Illinois, Lloyd Eldon Miller came with- dence that they are innocent. in a day of execution numerous times during For most of the men and women on death the 11 years he spent on death row. Finally row now and in the future. however, anoth- a federal court ordered a new trial when it er case from Virginia poses an even greater Was revealed that a pair of "blood-stained" threat to their chance of obtaining mean- undershorts the prosecutor had displayed to ingful federal court review of their convic- the jury were stained with paint, as the tions. Since at least 1953, the Supreme prosecutor knew from a laboratory report Court has held that in considering claims he had concealed from the defense. There- that a state prisoner was convicted in vio- after, it was shown that his confession was lation of the Constitution, federal courts are coerced and that the testimony of the only entitled to reexamine the correctness of witness against him was false, and Miller state rulings on mixed questions of law and was released. fact as well as pure questions of law. For In Florida in 1983. Joseph Brown was 15 example, if the question was whether a po- hours from his date with the electric chair lice officer struck a defendant while ques- when a federal court stayed the execution tioning him, and there was evidence on both to consider his clam that the prosecu~tor sides, the federal court is required to defer had knowingly used false testimony to se- to the state court finding because that is a cure his conviction. Three and a half years pure question of fact. But whether a beating later, his accuser recanted, and the recanta- resulted in sufficient coercion to violate the tion was corroborated by other witnesses defendant's constitutional rights is a mixed and a lie detector test. After 13 years on question of law and fact. As such, the fed- death row, Brown was finially released and eral court would be entitled to review de all charges against him were dropped. nove-that is to say, decide for itself with- Similarly, in the case which gave rise to out regard to what the state court decided. the widely praised documentary film 'Me The vast majority of federal reversals of Thin Blue Line.* Randall Adams was re- state court convictions involve this kind of leased by the state of Texas in 1989 after mixed question of law and fact If the stan- 13 years in prison when there could no dard were changed to require federal courts longer be any serious doubt that the murder to defer to the state court finding on such for which he had been sentenced to die was mixed questions, meaningful federal review in fact committed by his accuser. of state court convictions would cease to ex- Also in Texas, Clarence Brandley was ist in most cases. It is precisely this result released in 1990 after 10 years on death that Rehnquist has sought to achieve in lob- row. In 1987 Brandley had been six days bying Congress to change the habeas cor- away from execution for murder when his pus statute. lawyers obtained a stay after an eyewitness Last fall. after efforts in Congress to came forward ind named the real killers. amend the statute again failed, the Supreme After an evidentiary hearing, a Texas judge Court agreed to hear an appeal by the state held that Brandley had been the victim of of Virginia in a routine larceny case. The perjured testimony and misconduct by the conviction in that case had been overturned police, the prosecutor and the trial judge. by a federal court because it found that the Even so it took another three years and two undisputed evidence was insufficient to sup- epis!odes of "60 Minutes" before Brandley port the verdict and the conviction there- was finally released. fore violated the Constitution's due process Robert Alton Harris. executed last week clause. (Whether evidence is sufficient to in California, was not innocent, but. Lloyd satisfy due process is a mixed question of Miller and Randall Adam and the others law and fact.) were, It is doubtful that any of them would Although neither side had raised the is- be alive today if the courts had applied the sue, the Supreme Court asked the parties to rules that Chief justice Rehnquist is at- prepare briefs on the question of whether tempting to invoke in the handling of death federal courts should now be required to penalty cases in the future. His determina- defer to state court findings in such cases. tion to limit the availability of habeas corpus The Court has not yet ruled on the matter, and remove the federal courts from most but a majority decision to overrule 40 years death penalty decisions iscertain to have an of precedent and congressional acceptance enormous impact on the 2.594 prisoners on of the court's prior interpretation of the death rows across the country, some of habeas corpus statute would be judicial ac- whom are almost certainly innocent. 2- 0 >,

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ago2 I DEVELOPMENTS Courts Battle Over Harris Execution An impatient Supreme Court orders an end to last-minute stays by 9th Circuit

on-again executioi brought more than a decade ago. However, this was not the last T ofhe Robertoff-again, Alton Harris in Califor There is no good reason for this word. That came at 8:45 a.m. when nia represented everything that ob abusive delay. which has been com- the Court vacated yet another stay. servers on both sides of the issue sa, pounded by last-minute attempt.z to It had been issued by 9th Circuit is wrong with the death penalty ir manipulate the judicial process. Judge Harry Pregerson so that the America. Justice John Paul Stevens, gas chamber lawsuit could be con- In the hours before the execu joined by Justice Harr- Blackmun, verted from a civil rights action to a tion, Harris' attorneys engaged in . added some ire of his own with a habeas petition listing reasons why frantic, no-holds-barred search for E six-page dissent. 1 the claim was not raised earlier. stay that finally resulted in In its final order, the an angry and unprecedented Court sent an unusual re- rebuke from the U.S. Su- buke to the appeals court: preme Court. "No further stays of Robert Death penalty propo- Alton Harris' execution shall nents and opponents-albeit be entered by the federal for different reasons-agreed courts except upon order of that what went on in the last this Court." hours before the cyanide tab- Harris was hustled to lets were dropped into an the death chamber within 15 acid solution was both wrong minutes of the last Court and typical. order and was dead in another 20. Orders Lifted Stays He was executed for kid- The Supreme Court is- napping and murdering two sued its first order in the 16-year-old boys so that he case on April 21 at 2:20 a.m. and his brother could use (all times are Eastern Day- their car for a robbery. At light Time) vacating a stay the time, Harris was on pa- issued by an undisclosed role for the beating death of judge on the 9th U.S. Circuit a neighbor. Court of Appeals. The stay was to con- Questioning the Court sider claims that Harris' trial The episode has raised attorney had failed to obtain concerns, not only among records showing his client the expected partisans and suffered from brain damage opponents of executions, but and that the state had failed also among the judiciary. to disclose that Harris' Within days, two 9th Circuit brother, a witness against judges, who had joined the him, had failed a polygraph stay to consider the gas cham- test. ber's constitutionality, criti- At 6 a.m., an increas- cized the Supreme Court. ingly frustrated Court, which Judge John T Noonan, had seen three appeals by in a carefully worded opin- Harris in the 13 years after In the hours before the execution ion piece in The New York his conviction, issued an- Times on April 27, suggested other order lifting two stays. of Robert Alton Harris (above), his that the Supreme Court's Both had been granted in a attorneys engaged in a frantic, no- position is that the lower federal class action lawsuit court must "commit treason claiming that California's holds-barredsearch for a stay. to the Constitution and ab- method of execution, by cya- stain from exercising its juris- nide gas, is cruel and unu- diction" in such cases. sual punishment under the Eighth Afterdescribing in graphic terms "The Court has resolved the Amendment. what happens to someone who is national ambivalence and decided One stay had been issued by 10 killed by cyanide gas, the dissenters that it is intolerable for a federal 9th Circuit judges, eight of them said. "The barbaric use of cvanide court to delay an execution to decide Carter appointees. The other was gas in the Holocaust. the develop- a constitutional question," wrote issued by an undisclosed appeals ment of cyanide agents as ch,:mical Noonan, a Reagan appointee. judge upon the request of Harrii weapon . our ciontemporary Under- "Robert Alton Harris was a ACLU attorney, who was worried standing of execution by lethAl gas. casualty of this decision. Was the that procedural rules permitted only and the development of less cruel Constitution, too?" one judge to issue the stay. method nofexecution all demonstrate His colleague on the circuit, In its one-page ruling, the Court that execution by cyanide gus is Judge Stephen Reinhardt, issued his said: "This claim could have beer, unneesrianlv cruel own broadside in a speech at Yale 26 ABA JOURNAL / JULY 1992 s:P It Es Sm Rtnv"as'* Law School. An Associated Press tenced to die in the gai chamber is a ment had "evolved since Harris was story quoted the judge, a Carter perfect example of an abuse of the sentenced. "Nothing much has appointee, as saying, "I think it is process." he said. changed in the Eighth Amendment clear that the constitutional rights of He singled out Pregerson for recently. It'S one thing to say our individuals are no longer of para- special criticism. saying it was clear standards are different than two mount importance to the Court." from the Supreme Court's second centuries ago. but to say they've With a note of resignation, order that it considered the Eighth changed in the 13 years Harris was Stephen Bright, of the Southern Cen- Amendment claim to be too late. on death row is absurd. ter for Human Rights, said what whether raised in a civil or habeas He said the last-minute activity happened to Harris is typical in case. The judge. in Scheidegger's could be avoided with a law that death penalty litigation. He said view, disregarded the Supreme Court's guarantees one run through the ap- habeas petitions often charge that clear and controlling precedent when pellate system and no further claims key information-such as the evi- he issued the fourth stav. other than compelling new evidence dence Harris was afflicted with fetal He also disagreed with Lau- that the defendant didn't commit the alcohol syndrome-was not presented rence's claim that the Eighth Amend- crime. -Henry J. Reske to the jury. He acknowledged that in death penalty cases there often is a flurry of activity as the execution approaches because issues come into focus. Bright denied that the last- minute attempt to delay Harris' exe- "C cution was an abuse of the legal Ct system, noting that 10 judges of the -1 9th Circuit apparently agreed. He ii charged that the Supreme Court's role was yet another sign of its "growing impatience" with the pace of executions. a, Harris' attorney, Michael Lau- rence, the director of the ACLU of Northern California Death Penalty Project, said his challenge to the gas '-0 chamber was not raised 13 years earlier because cyanide executions may not have been unconstitutional then. They are now, he asserts, under the "Eighth Amendments evolving standards of decency." He also said he first filed the gas chamber class action as a federal civil rights lawsuit because 9th Cir- cuit precedent requires it when conditions of punishment are challenged. But Laurence thinks the Su- preme Court was scolding him in its second order for filing the civil rights suit-instead of a habeas petition- in its belief he did so to avoid, limits on successive habeas claims established in an April 1991 Supreme Court case, McCleskey v. Zant. You go where the business is. Stay an extra day. Add a city That is why Laurence tried to You can't be held back by a preset limit on some bankcard.* convert the suit to a habeas petition, You just don't worry about things like that. in which he hoped to show his failure to raise the claim earlier was due to changing constitutional standards rather than inexcusable neglect. A Berserk Circuit? Kent Scheidegger, legal director of the pro-death penalty group Crim- inal Justice Legal Foundation in Sacramento, Calif., has a different interpretation of the events. He be- THE GOLD CARD. lieves that the "9th Circuit went berserk." THE AMERICAN EXPRESs'GOLD CARD. "The claim that the gas chamber is cruel and unusual punishment Call 1-800-395-GOLD, to apply filed 13 years after Harris was sen- Court to Decide IfNew Data Can Continued from Al fore an execution proceeds? day morning. aExecutions flew evideice, the three-judge IWhen the court clerk informed Herrera's lawyers, who recount- panel said that it was too late to Herrera's lawyers of the justices' ed their all-night struggle to stop DAVID G.SAVA raise such a claim. split decision, they quickly typed their client's execution. said that .IMESSTAk. : "Herrera's claim of 'actual inno- up a "petition for certiorari" and they were shocked and dismayed cence' presents -no substantial an ex- faxed it back to the court about 4 by actions of the Texas state attor- WASHINGTON-After claim for relief" under federai law, traordinary series of middle-of- a.m. Wednesday. neys and the federal judges in- the appeals court ruled. The court then issued an unusual volved. the-night phone calls, the Supreme .When Herrera's lawyers filed a Court at the insistence of four order. Herrera's petition was "We were embroiled in a . . . Wednes- midnight appeal at the Supreme granted a full review by the court. fiasco of litigation unparalleled in justices agreed early last justices split, whether the Consti- Cburt, they found the But the five justices reiterated that our combined experience," said day to rule on on the issue. Because the tution forbids the execution of a ,5:to 4. they would not block Herrera's McGlasson of the Texas Resource in Texas who high court decides issues of law, execution so that~he would be alive Center, which represents murder convicted murderer Chief Justice may be innocent. 'not factual disputes, when his case is heard in the fall. defendants. "In the view of these high William H. Rehnquist has insisted About 4:30 a.m., Robert McGlas- But, at the same time, the that the court avoid second-guess- life-tenured federal judges, inno- court turned down an appeal for a son, Herrera's attorney in Austin, cence was, the state had argued, of the man, whose ng decisions made by juries and Tex.. was told that state prison stay of execution state judges. Joined by Justices irrelevant." lawyers say can be proved not officials wanted to proceed with new evidence. And, had it -Antonin Scalia, Byron R. White. Herrera's execution, despite the Texas could not guilty by 'Ahthony M. Kennedy and Clarence Attorneys for not been for the intervention of high court's willingness to hear his Ibe reached for comment late the execution Thomas, Rehnquist refused to legal -case. But two judges on the Friday or Saturday but in court two state judges, block would have been carried out within Herrera's execution. state court of criminal appeals. papers, they did not concede that a short time. *. nder the high court rules, it when told of the Supreme Court's Leonel Herrera was innocent. In- The blunt legal question came A-) takes five justices to grant a action, agreed to issue an order deed, they argued that the evi- before the justices in the hours stay. However, it takes only four stopping the execution. dence against him was over- before Leonel E. Herrera, a Texas justices to grant a "petition for Supreme Court spokeswoman whelming. He had .een seen by Death Row inmate, was scheduled certiorari,"whereby a case is fully Kathleen Arberg confirmed the eyewitnesses at the time of the to die for the murder of a police grgued and decided by the Su- unusual sequence of events. When murder and had br :n identified as officer in 1981. Little notice was preme Court. the. justices were called at home, the killer by the victim before he taken Wednesday of the justices' Four justices-Henry A. Black- they continued to split, 5 to 4, on died. Joan C. Barton, an assistant actions outside of Texas. pnun, John Paul Stevens, Sandra the issues raised by Herrera, she state attorney general. told the In recent weeks. Herrera's law- Day O'Connor and David H. Sou- said. appeals court last Monday. yers had compiled strong evidence er-said that Herrera's execution Quite often, the justices are called at home to vote on emergen- But she also argued that it was that his brother. Raul. actually should be blocked. They also noted too late for the federal courts to committed the murder. The con- that his case raised an important cy orders, including requests to block an execution. But rarely does take a new look at the evidence in victed man's nephew, Raul Herre- legal issue that had not been decid- the case. ra Jr., who was 9 at the time of the id. Does the Constitution require the court officially grant a full crime, says in a court affidavit that that 11th-hour evidence of "actual review of a case in other than its U.S. District Jucm Rcardo H. he saw his father, not his uncle innocence" be fully considered be- regular conference session on Fri- Hinojosa of McAllen. Tex., had Leonel, kill the policeman. But Texas state attorneys de- a scribed this new evidence as granted Herrera a stay of execution convictions in the execution. They process, the Texas state lawyers appeal their "ploy" to stop the so that the new evidence could be argued, relying on recent Supreme federal court system. Herrera's insisted that Herrera should have fully considered. case already had been to the Su- lethal injection at dawn last Court rulings narrowing the basis died by .But Barton persuaded the 5th for federal judges to get involved in preme Court once before on a legal Wednesday. Circuit Court to lift that order. issue. Tuesday afternoon, the U.S. state death penalty cases. On "The rule is well-established that In one of several cases on the The 5th Circuit Court agreed 5th Circuit Court of Appeals had officials 'Tuesday granted claims of newly discovered evi- issue, the high court ruled last year .with the Texas lifted a stay of execution not subject to federal afternoon, setting the stage for the by a federal judge. Without dence" are that state Death Row inmates earlier review at this late stage in the should have only one chance to middle-of-the-night drama. ruling on the validity of Herrera" . Please see COURT, Al -x *c , Q. ag

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4p, Fed up with death-row petitions High court's unusual order shows its impatience By Aaron Epstein prosecutors and a majority of Supreme Court "There is no good reason for this abusive INQUIRER WA.HINGTON HUREAU justices, the system encourages an irrational delay, which has been compounded by last- WASHINGTON - The execution of Robert maze of piecemeal, chaotic and seemingly minute attempts to manipulate the judicial Alton Harris yesterday provided the most endless appeals. process." dramatic demonstration yet of the conserva- Nearly 14 years have passed since Harris Justice John Paul Stevens, joined by Jus- tive Supreme Court's mounting impatience killed two San Diego high school boys. He tice Harry A. Blackmun, dissented. Stevens, with last-minute petitions from death row. was convicted and sentenced to death 13 recalling the "barbaric use of cyanide gas in Awakened through the night by four at- years ago. But he remained alive while his the Holocaust," cited the conclusions of nu- tempts to put off Harris' execution, the jus- resourceful lawyers carried numerous issues merous medical and legal experts that execu- tices issued an apparently unprecedented through 75 state and federal court reviews, tion by cyanide gas is "extremely and unnec- order forbidding any more federal court including four separate appeals through the essarily painful." delays. Harris was pronounced dead 36 min- federal courts up to the Supreme Court. An hour and 15 minutes later, at 7:15 a.m.. utes later. . For the last three years, the justices have the justices received notice of the fourth - "To my knowledge, it's never happened been cracking down on the power of federal and final - stay of execution from the Ninth before." said University of North Carolina judges to upset state convictions. Circuit. law professor Jack Boger, who handled death In a battle of faxed messages on the final This time, Judge Harry Pregerson, ap- penalty cases for the NAACP Legal Defense night of Harris' life, the justices received pointed to the appeals court by President Fund from 1978 to 1990. "It's a more authori- four requests from California Attorney Gen- Jimmy Carter, had authorized a one-day de- tarian act of the Supreme Court than I've eral Daniel E. Lungren to cancel successive lay to permit Harris' lawyers to present "un- ever seen." stays of execution obtained by defense law- exhausted claims" to the California Supreme Even before Harris died at dawn in San yers from the Ninth U.S. Circuit Court of Court. Quentin's gas chamber, his case had come to Appeals in San Francisco. At 8:45 a.m., the frustrated court majority symbolize a criminal appeals system gone At 6 a.m. Eastern time yesterday. the jus- called a halt, declaring: "No further stays... awry. It is a system that has consumed an tices voted 7-2 to nullify the second and third shall be entered by the federal courts except average of six or seven years from sentence stays with a blistering attack on Harris' de- upon order of this court." Stevens and Black- to execution. fense lawyers for an "obvious attempt at mun again disagreed. .Many legal experts argue that a lengthy manipulation." The lethal gas was released in the chamber process of federal review is necessary to Harris' claim - that his execution by le- 20 minutes later; Harris died at 9:21 a.m. (6:21 uncover injustices. During the last 15 years, thal gas would be cruel and unusual punish- a.m. Pacific time). federal judges have found serious constitu- ment, in violation of the Eighth Amendment "The message to defense lawyers has been tional errors in nearly 40 percent of all death - "could have been brought more than a clear for some time: If you have Ireasonablel penalty. cases brought before them. decade ago," the court majority declared in claims, you'd better put them in early and But to families of victims of crime, most an unsigned opinion. not at the last minut-," Boger said. Bush crime bill stirs habeas fight PEALS, from 1-E Prank v. Mangum, refused to help IAlOM. Frank, a Jewish man found guilty of raping and killing a young Crsin woman In Atlanta. . The Bush bill Despite evidence that an antiSe- Would bar federal mitic mob bad prejudiced Franks trial, the high court refused to hear appeals by many his claims because they had already been denied by Georgia courts after on death row. .A full review.""-"- t o l Later it was disclosed that the mob. CritiCS say it would dominated atmosphere had fright.u h l vnu is ened away a witness able to testify t uphold even unjust Frank s innocence. By then, it was too late. Frank had been executed. State ourt The administration's proposed re o form of habeas corpus, Curtin told convictioRs. the Senate Judiciary Committee, Jack Carlton House "might well be the Leo M.Frank bill Lawyers "too busy" to prepare case -a bill to make the discredited rule 'and the barbaric result of Frank v. Mangum the:! law of the United-. they undermine the integrity of the der the prisoners brought into court. ,States." .s. . - entire criminal justice system." ., where they could challenge their .vrBut.administration officials, Chief :.. John A. Collins. who .directs a. confinement Justice:William H. Rehnquist, hi ,lcrime victims' organization in IntheUnitedStates.federalhabeas rconservative goleagies on the So. ,Springfield, Va., summed up the case corpus has been widely used not to -preme Court, most prosecutors and. for the victims' families in a recent decide the guilt'or innocence of a [the families of victims of crime take ,Senate appearance* . defendant, but to' be certain that va far different view of habeas corpus. : "Justice aplenty for the killer, with even the guiltiest., most depraved- '!iTo them, habeas corpus is a consti. delays, continuances. reviews, stays, killer gets fair treatment utional. guarantee jgone. out of ,tests, hearings, examinations. re.'.1 The purpose of federal review is to back, an extraordinary maze of re hearings, appeals and petitions. determine whether 'state proceed- petitive, precemeal' chaotic and . "For us, the victims, neglect. un- ings - often overseen by elected seemingly endless appeals 'certainty, waiting, frustration, more judges closely tied to their communi- -They see457 convicted murder- waiting. Injustice and a growing ties-were, In the words of the great ers on death row filing 13,000 habeas sense of despair." ''. jurist Oliver Wendell Holmes, "more petitions a year In a convoluted sys Collins has bad a long wait of his than an empty shel" tem in which only 146 killers have own. His daughter was raped and But state courts have Improved sig. been executed since the Supreme murdered in 1985. The convicted nificantly in recent decades, and Court restored the death penalty in killer, having completed four years state judges resent implications that 197&...... :r.....of appeals in state courts, is. just they cannot protect the constit*- Pi ales executed in 1988 the beginning his federal appeals. tional rights of criminal defendants. average time from sentence to execu- "What we are trying to do," said Still, significant constitutional er- tion was six years and eight months. White House chief of staff John H. rors continue to be uncovered in I " It has been 13 years since Robert Sununu, "is to make sure that some. federal courts. In 1989,when theN" Alton Harris killed two San Diego thing that is a principle of protection Ninth U.S. Circuit Court of Appeals I high school boys, shooting one of the; does not become a mechanism for overturned a Montana death sen- boys as he prayed for;his life - and ' unlimited procrastination. ... It's tence, Judge Stephen Reinhardt ob. tthen finished the victims' half-eaten .where the Supreme Court is headed." 'served.' 'hamburgers: V Indeed it is. .t:.: * ' ' "The mockery ofourcriminal jus., c" Harris has remained aliveon death *a

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