# McGautha v. California (402 U.S. 183)

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## Dissenting Opinions

    Black
    Douglas
    Brennan
United States Supreme Court
402 U.S. 183
McGautha v. California
Certiorari to the Supreme Court of California
No. 203. Argued: Nov. 9, 1970 --- Decided: May 3, 1971
Petitioner in No. 203 was convicted of first-degree murder in California, and was sentenced to death. The penalty was left to the jury's absolute discretion, and punishment was determined in a separate proceeding following the trial on the issue of guilt. Petitioner in No. 204 was convicted of first-degree murder, and was sentenced to death in Ohio, where the jury, which also had absolute penalty discretion, determined guilt and penalty after a single trial and in a single verdict. Certiorari was granted to consider whether petitioners' rights were infringed by permitting the death penalty without standards to govern its imposition, and in No. 204, to consider the constitutionality of a single guilt and punishment proceeding.
Held:
    1. In light of history, experience, and the limitations of human knowledge in establishing definitive standards, it is impossible to say that leaving to the untrammeled discretion of the jury the power to pronounce life or death in capital cases violates any provision of the Constitution. Pp. 196-208.
    2. The Constitution does not prohibit the States from considering that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment resolved in a single trial than by focusing the jury's attention solely on punishment after guilt has been determined. Pp. 208-222.
       (a) Petitioner in No. 204 has failed to show that his unitary trial violated the Constitution by forcing "the making of difficult judgments" in his decision whether to remain silent on the issue of guilt at the cost of surrendering his chance to plead his case on the punishment issue. Simmons v. United States, 390 U.S. 377, distinguished. Pp. 210-213.
       (b) The policies of the privilege against self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt. Pp. 213-217.
       (c) Ohio does not provide for the common-law ritual of allocution, but the State need not provide petitioner an opportunity to speak to the jury free from any adverse consequences on the issue of guilt. Pp. 217-220.
No. 203, 70 Cal. 2d 770, 452 P. 2d 650, and No. 204, 18 Ohio St. 2d 182, 248 N.E. 2d 614, affirmed.
HARLAN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., BLACK, J., filed a separate opinion, post, p. 225. DOUGLAS, J., filed an opinion dissenting in No. 204, in which BRENNAN and MARSHALL, JJ., joined, post, p. 226. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 248.
Herman F. Selvin, by appointment of the Court, 400 U.S. 885, argued the cause and filed briefs for petitioner in No. 203. John J. Callahan, by appointment of the Court, 399 U.S. 924, argued the cause for petitioner in No. 204. With him on the brief were Dan H. McCullough, William T. Burgess, William D. Driscoll, and Gerald S. Lubitsky.
Ronald M. George, Deputy Attorney General of California, argued the cause for respondent in No. 203. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General. Melvin L. Resnick argued the cause for respondent in No. 204. With him on the brief were Harry Friberg and Alice L. Robie Resnick.
Solicitor General Griswold argued the cause for the United States as amicus curiae urging affirmance in both cases. With him on the brief was Philip A. Lacovara.
Jack Greenberg, James M. Nabrit III, Michael Meltsner, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Education Fund, Inc., et al. as amici curiae in both cases. Luke McKissack filed a brief as amicus curiae in No. 203. Briefs of amici curiae in No. 204 were filed by Richard F. Stevens for the Attorney General of Ohio; by Elmer Gertz and Willard J. Lassers for the American Civil Liberties Union, Illinois Division, et al.; and by Messrs. Lassers, Gertz, Alex Elson, and Marvin Braiterman for the American Friends Service Committee et al.

## Notes

* ↑ Together with No. 204, Crampton v. Ohio, on certiorari to the Supreme Court of Ohio.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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