Warren E. Burger: We will hear arguments next in 76-5306, Dobbert v. Florida. Mr. Frost, you may proceed whenever you are ready, I think.
Louis O. Frost: Mr. Chief Justice, and May it please the court. Before I begin my argument, I would like to just take a brief moment to introduce to the court my chief deputy who is here with me today, Mr. William P. White III and for whose help I am deeply indebted in preparing and presenting this case to the Court. I would also like to publicly thank your very competent clerk, Mr. Rodec (ph) for all his assistance. My name is Louis Frost and I am the public defendant of Fourth Judicial Circuit of Florida and I appear here on behalf of the petitioner Earnest John Dobbert, Jr. on petition for writ of certiorari to the Supreme Court of Florida. The issues involved which we have to deal with today are one, whether or not the trial court in applying the 1972 Death Penalty Provisions of the Florida Statute to this Defendant, Earnest John Dobbert, Jr. violated the constitution of provisions of the United States Constitution prohibiting ex post facto laws. It also to this defendant when it is applied to him whether or not it violated the constitutional provision prohibiting one from having his equal protection laws violated under the Fourteenth Amendment of the Constitution. And third, whether or not the trial court erred in failing to grant the defendant in this case and the petition herein a change of venue in the circumstances as they existed in the Duval County, Florida. I think to place the case in better perspective before the Court I briefly summarize some of the facts. The petitioner in this case first came to the attention of the law enforcement authorities and City of Jacksonville in the spring of 1972 at which time his oldest son, Earnest John Dobbert III was found wandering around a motel in Jacksonville Holiday Inn. He was taken in protective custody. He appeared to have bruises upon his back in his hands and burns. He was taken before a Circuit Judge and questioned and there upon began to reveal a story of child torture and child abuse to himself, his two sisters, a brother and the ultimate combination of death of one of his youngest sisters and brother by the petitioner, his father herein. Immediately thereafter, a warrant was issued for was arrest and he was not found. Shortly thereafter, his younger daughter was found in a local hospital at Fort Lauderdale, Florida with a note pinned to her clothing asking that she be returned to a mother in Wisconsin. At that time almost simultaneously with that, the petitioner’s abandoned automobile was found near the inland waterway and there was an apparent suicide note left with it that the petitioner committed suicide. The petitioner was not heard of until then the spring of 1973 when he was apprehended in Houston, Texas. He elected to exercise his right to fight extradition back to the State of Florida which he did and which culminated finally in his extradition to Florida. He was appointed public counsel to the public defendant’s office, the judge did not solve and our office was appointed. He raised at pre-trial and during trial the questions presented herein which was denied by the trial court. The trial court proceeded to, attempt to pick a jury and the jury was finally selected after 4-1/2 days of order and the defendant was tried, convicted of one count of murder in the first-degree of one of his children, of one count of murder in the second-degree of another child, a one count of child torture as to one of his children and one count of child abuse, a lesser include offense of child torture. Immediately thereafter on the question of punishment, the jury who had sat in that case deliberated under the statute in effect at the time of the trial and recommended by 10 to 2 majority that the petitioner be sentenced to life imprisonment under the count of murder in the first degree. The court subsequently thereto overruled that recommendation of mercy and imposed a death penalty as to the petitioner. Now from that judgment and sentence, the petition appealed to the Supreme Court of Florida and Supreme Court of Florida ruled in their majority opinion that the Trial Court was correct and it did not violate the due process in failing to change venue, citing a recent decision of this Court of Murphy v. Florida, however, they failed to touch upon the question of equal protection and ex post facto as raised herein. We petition this court for certiorari and that petition was herein granted. During the time of the initial finding of the oldest son, Earnest John Dobbert III in Jacksonville, Florida, immediately thereupon the news media, the local television, radio, and newspaper to began to cover every gruesome detail and incidents surrounding this particular case and they did so right up until the taking into custody of the youngest daughter of the petitioner in Fort Lauderdale, Florida. After which when the petitioner was not found the press subsided until his apprehension in Houston, Texas and from the time he was apprehended in Houston and to the time he was tried, convicted and sentenced the media was continual and covering every incident involving every phase of this entire proceeding, this is more clearly pointed out by the appendix to the petition annexed hereto. The first issue that this Court must consider is whether or not by applying the 1972 Death Penalty provisions of the Florida Statute which had been recently held to be constitutional in your case in Proffitt v. State of Florida, whether or not application of that particular death penalty provision statute to this defendant and this petitioner for an offense which was allegedly committed prior to the enactment and also prior to your decision in Furman and the date of that offense for which he was convicted and sentenced to death was alleged to have been December 31, 1971.
William H. Rehnquist: He would have been punishable under that previous Florida Statute though by death, would he not have?
Louis O. Frost: Not after your decision in Furman.
William H. Rehnquist: But according to the terms of the Florida Law, he would have been, would he not?
Louis O. Frost: According to the terms, would he been punished by death, we do not know whether he would be punished by death.
William H. Rehnquist: I said punishable not punished.
Louis O. Frost: Would he be even subjected to death penalty if he had been tried at that time?
William H. Rehnquist: Did Florida Law apart from my decision in Furman authorize punishment by death for the offense of which he was found guilty?
Louis O. Frost: I submit no at the time that he was tried because your decision in Furman, by your decision in Furman, you left only life imprisonment for those people who have committed offense prior to that time.
William H. Rehnquist: My question Mr. Frost was apart from my decision in Furman, if you simply read the statute that Florida had on the books at that time?
Louis O. Frost: Well, if we did not have the 1972 statute to compare with it, yes that would be the answer, but if you eliminate Furman, then you have to go on and compare the two statutes. The one that was enacted effective December 8, 1972 with the one that was in effect at the time of the commission of his offense and to determine whether or not you got an ex post facto violation, you have to compare those two statutes.
William H. Rehnquist: Your claim then is not he could not have been punishable by death previous to the enactment of the New Florida Statute, but that there was enough difference in the factors to be considered?
Louis O. Frost: Well, it is two-fold Mr. Justice Rehnquist. One, that he could not receive the death penalty in any event because of your decision in Furman for a pre-Furman offense when it was tried subsequent to the enactment of the new statute. That is number one because there was no valid death penalty provision in effect in Florida after your decision in Furman.
William H. Rehnquist: And what is your second?
Louis O. Frost: And the second part is regardless of Furman, if you take Furman away and assume that you never decided Furman then you have to compare the two statutes and the second point is that, at the time of his trial, it is two-fold. Number one, the statute in existence at the time of this trial provided for recommendation of mercy as being a binding sentence of life imprisonment. In other words, if he would have been tried, convicted and a jury by 10 to 2 or whatever what majority had recommended mercy then he could not have received the death penalty. However, under the 1972 statute, under which he was tried and convicted, the judge did not have to follow that recommendation and the petitioner lost the right that substantive right to have that bonding recommendation of the jury regardless of whatever the verdict was. Regardless even if it was a recommendation under the first statute he had the right to the potential of having the jury came back with a majority recommendation and if so he would have only received a life sentence. Whereas under the new statute that would not be the case and could not be if the judge could have followed recommendation or could not have. The judge had the ultimate sentencing power under the new case.
William H. Rehnquist: Under the old law, was the judge bound by the jury’s verdict in either event or if the jury did not recommend mercy, could the judge nonetheless impose something less than that?
Louis O. Frost: No, if the jury did not recommend mercy, he got the death. Does that answer your question sir?
William H. Rehnquist: Yes.
Louis O. Frost: And the second point, in addition to the right to have that binding recommendation from the jury, he also had the right under the old statute that if he was convicted and sentenced to life imprisonment that he would be eligible for parole as decide upon by the Parole Board and Parole Commission at any time after he served six months in the State of Florida, he would be eligible, when and if he was paroled after that time except to the Board. However, under the new statute that he was tried and then was convicted under, under that statute if he is convicted and sentenced to life imprisonment he has to serve a minimum period of 25 years before he is eligible for any parole. So again, we submit that regardless of Furman, and if you just take Furman out when comparing this to two statutes that we have here, there was an additional substantive right that he is deprived of when the new statute is applied to him and that of being tried under statute which carries the potential of him being convicted, sentenced to life imprisonment and having to serve 25 years of that sentence before he would be entitled to parole.
William H. Rehnquist: But did that not happen and his case?
Louis O. Frost: That did not happen, but as I read your decision of this Court in Lindsey v. Washington, that is not the test. The test is whether the standard by which we go by whether or not that potential existed and not whether or not he actually got life imprisonment or not. It was inherent within the statute that that could have happened at the time that he went in.
William H. Rehnquist: But would you not think that that Lindsey v. Washington was limited to cases where the death penalty was actually imposed and laid down procedural guarantees where that happened?
Louis O. Frost: Well, that was not even a death penalty case Mr. Justice Rehnquist, but it was a 15-year penalty provision where it was subsequently changed that the judge had to give them a minimum sentence of 15 years and in the first case, it was any term of years up to 15 and in the trial, in the reverse they tried him under the new statute and the judge gave him 15 years which was the same that he had gotten under the original statute. However, under the second statute, he was not eligible for parole until he had completed the 15 years wherein the first instance he could or at least not eligible until the Parole Board considered whereas in the first case, he would have been eligible after he completed his time had nothing more hanging on his head. So they looked at the standard and he got was the same standards, he is got 15 years.
William H. Rehnquist: But he did different parole rights in his particular case, did he not, in Lindsay?
Louis O. Frost: Well, a different parole rights. He had to do 15 years before he was eligible for parole.
William H. Rehnquist: You are making an argument here that something which could not possibly have affected your client in view of the sentence of death is something which he is nonetheless free to challenge on an ex post facto basis?
Louis O. Frost: I think so, if the statute is standing there and would deprive him of the potential substantive right that could work to his detriment and we must look at the standard. Now, in the binding recommendation of mercy from the jury there is no question about it there. It was only potential there, but in fact it did happen in that case. The jury did come back 10 to 2 for life and the judge overruled that 10 to 2 and gave him death. Now, the petitioner also would argue that to apply the New 1972 Death Penalty Provisions to the petitioner was a violation of equal protection law as the Fourteenth Amendment. Now in that regard, we said in the brief that this may have been better framed in the past you have in due process argument in relationship to the constitution of provision that was in existence at the time the defense was committed. At that time, Florida had a savings clause in their constitution, Article 10, Section 9 of constitution and that saving clause was not applied in this case to this petition and that saving clause in our constitution which was in existence at the time of the trial regardless of the ex post facto.
Warren E. Burger: We will resume there at one o’clock.
Louis O. Frost: Thank you Mr. Chief Justice.
Warren E. Burger: You may resume counsel.
Louis O. Frost: Mr. Chief Justice and May it please the Court. Due to the lunch break, I like to just briefly capsule the petition’s position to this point. Number one, the petitioner asserts that because of your decision in Furman there was no longer a death penalty in effect in the state of Florida, and therefore, the punishment was changed when they applied the new statute to this petitioner. In other words, the punishment was changed from death to life. In other words, is should have been life, but he got death. Number two, regardless of the decision in Furman, the petitioner asserts that there has been a change in punishment to his detriment, a substantial change and that under the old law, if it had been applied, he would have received the sentence of life imprisonment because of the recommendation tended to by the jury. Two, that regardless of Furman, when the petitioner, if he went to trial on the old statute, he would have had the opportunity to have the binding recommendation of the jury to mercy which was not the case under the new statute to judge, whether that be right or wrong, he still had the right to have that binding recommendation and substantive right was taken away from him and in this case it worked to his substantive detriment. And number three, regardless of Furman that the new statute also had a right that was taken away from him in the old statute and that is the new statute had annexed to it a provision of 25 years without parole if he had a life imprisonment sentence and that is the petitioner’s brief capsule to this point. I just mentioned that at this point, when we recess that the petition also asserted that applying the new statute to his case was violation of Equal Protection Clause of the Fourteenth Amendment and I indicated to the Court that that argument may have been better framed in the brief in the case and also in the way of due process because of the fact that at the time that the petitioner was tried, the constitution of State of Florida provided and had a savings clause which saving clause was Article 10, Section 9 of the Constitution and provided that repeal of criminal statutes. The repeal or amendment of the criminal statute shall not affect prosecution or punishment for any crime previously committed. Now, the case law in Florida has continually interpreted that constitution of provision in the same manner as ex post facto. In other words, they say that you cannot apply a repeal or amendment of a statute that affects the prosecution or punishment retroactively, but only prospectively from the date of the new statute. In this case, the Court ignored that constitutional provision and applied it.
Warren E. Burger: Which court?
Louis O. Frost: The trial court, Mr. Justice.
Warren E. Burger: What happened on review?
Louis O. Frost: And the Supreme Court of Florida also, but they did not listen to our argument on that point, they did not mention this so, apparently they did not follow it because they said nothing about it.
Warren E. Burger: Should not that court decide that issue in the first instance?
Louis O. Frost: I wish they would.
Warren E. Burger: Should they not even now be required to decide that issue?
Louis O. Frost: If you would remand the case back to them? Well, I think they should follow their own law, yes sir, I think they should and I think the law was settled. In fact, the Attorney General of the State of Florida in construing that very provision of our savings clause in the constitution and asked them to a question from a State Attorney within our state wherein a statute had been changed regarding rape. Prior to 1972, the rape statute in the State of Florida, if a person was convicted and received a recommendation of mercy from the jury, the trial court could impose a sentence of any number of years up to and including life imprisonment. In 1972, our code was changed and it made rape a capital felony, but also provided if there was no recommendation of mercy, in other words, you could just get life imprisonment. He could not get any term of years up to including life and in construing that provision, the attorney general State of Florida in official opinion in that state took the position that this particular enactment could not be applied retroactively to someone who committed an offense prior to the enactment of a new code in January of 1972. So therefore anyone who committed a rape prior to the time he received a recommendation and was tried subsequently thereto still had the benefit of getting any term of years up to including life imprisonment and we say that to apply this law and to this petitioner in this case in the same fashion, whether it even... They even used this case in the State of Florida in its construction when they changed the mode of the imposition of the death penalty from hanging to electrocution and this Court has commented on that in its case of Malloy v. South Carolina and said well, that was not ex post facto as such. But even in the State of Florida, this savings clause provision and they cited in one of the cases in Florida, Washington v. Florida, they cited this savings clause provision and said that a man who brought a petition on habeas because they were going to electrocute him pursuant to the new statute that had been passed, said no, he is entitled to be hung under the provisions of the old statute and they applied the savings clause to him. Therefore, we say it is denial of equal protection law to this petitioner to not have old law apply to him as opposed to the new statute. In addition, on the equal protection argument, if we allow the petitioner to receive the death penalty as in this case, then we have denied him equal protection of the law because we placed him in the class that he is going to receive the death penalty simply because of the date of his trial when he is tried. And if we assume for example that a co-defendant had been his wife and that she was charged with the same heinous or atrocious acts which this petitioner was charged and she was apprehended, tried and convicted, prior to decision in Furman, she would have had convicted and sentenced to death, her sentence would have been commuted to life as everyone else’s sentence on death row in Florida was commuted to life. But because he is tried subsequent to the enactment of the new statute, then the obvious invidious discrimination is that he gets death simply because of the date of his trial. Now, what could be a more freakish application of the death penalty to this petitioner than to have him place in that class simply because of the date of trial and the recent decision before the Supreme Court in reversing in the case of Lee which was a crime committed pre Furman who had been sentenced to death had this sentence commuted to life. They went up and said it was an ex post facto, it came back, back before the Supreme Court again and they ruled that his attorney had made a motion to vacate and set aside his death sentence pursuant to your decision of Furman about three or four days after Furman came down and they said, well it is equal protection here that we cannot discriminate and put him in a class just because his lawyer was a student and have to file a motion shortly after your decision in Furman to satisfy and vacate his death penalty. So, we submit that to deny the application of the new statute and deny this to him also violates the equal protection clause of the Fourteenth Amendment. The additional point which we raise in this case is that the trial court erred in failure to change venue and change it to some other county in the state of Florida other than Duval County where the case was tried. And I think we have to look that in light of your recent decision, the opinion written by Justice Marshall in Murphy v. Florida and looking at it in that light, I would state that our case is distinguishable from the Murphy case for the following reasons; number one this case is a death case and this is not a robbery case or a burglary case as was a situation in “Murphy” to assert and in this case since it is a death penalty case and in other words the petitioner here is sentenced to death. I think we have to look at the circumstances that surrounded more closely to see that we do apply fundamental fairness in a situation such as this and that we are cautious in whether or not the trial court should have or should have not granted a change of venue. Number two, that this case is different because of the very nature of the offense; child torture and child killing of two of his minor children, and therefore, the very odious nature of these facts make people get prejudices just because they hear the case on voir dire, just when you mention it to them. And three..
William H. Rehnquist: But they are going to hear that at the trial anyway, are they not?
Louis O. Frost: Yes sir, they heard it at the trial. They heard it, but the mere fact that they heard it at pre-trial and they knew something about it, coupled with the continuous press that was going on from the time of the offense until a later part when he was tried, convicted, and sentenced to death. I am saying that alone may not be enough Mr. Justice Rehnquist, but the death penalty, the odious nature of the crime and three the mass local community scene, in other words, just is in the case like most of the cert had national publicity in the star of India surrounding him and possibly could have been may be tried nowhere else in the state, but this defendant could have been tried in another county other than the Duval County and because of this, we feel that the court should have changed venue and I would like to save the rest of my time for rebuttal, if it pleases the court.
Harry A. Blackmun: Mr. Frost before you sit down, what do you think is the purpose of the ex post facto provision?
Louis O. Frost: Well, as Justice Chase announced in Calder v. Bull, we say this is one of the category three that a person should not be subjected to an increased penalty at the time he has tried over what he could have received at the time of the alleged defense. In other words, when you compare the two statutes or you compare what was the punishment then and the punishment now, if it in fact increased that punishment or additionally deprived the defendant of a substantive right, some substantive right that he was entitled to under the old statute then it is ex post facto.
Harry A. Blackmun: Well, first of all it does not apply I take it to judicial decisions as distinguished in the legislative acts?
Louis O. Frost: Well, I would concede that, no sir.
Harry A. Blackmun: Do you know of any case where they have ever...
Louis O. Frost: Well, I think the Bouie case was one where it applied in judicial decisions.
Harry A. Blackmun: Which case?
Louis O. Frost: The Bouie.
Harry A. Blackmun: You do not feel that Profitt in effect there is a hold in here or that the Florida procedure before was much more rigorous than now which would eliminate your ex post facto argument?
Louis O. Frost: Would you repeat that, I am not sure I quite understand that Mr. Justice Blackmun?
Harry A. Blackmun: Well, you know the Profitt case?
Louis O. Frost: Yes Sir.
Harry A. Blackmun: And you think that your client is better or worse off now that Profitt has been decided?
Louis O. Frost: Well, I think that is really immaterial when we are considering ex post facto application of the law. We are nit her to go into that as to whether Profitt decided that this statute met constitutional muster and whether or not it was in fact a better statute than the previous statute that had the recommendation of mercy from the jury without guidelines, that is not an issue in this ex post facto application Mr. Justice Blackmun and I think that we have to remember that when we...
Harry A. Blackmun: Do you take the position at any procedural change results in the ex post facto consideration, any?
Louis O. Frost: Any procedural change, no sir, I do not take that position.
Harry A. Blackmun: Where do you draw the line?
Louis O. Frost: Whatever you call it, whether it be called procedural or not, this is certainly a procedure. If you want to say it is a procedure, one procedure for invoking the death penalty here, one procedure for invoking death penalty over here, but if that procedure deprives the defendant, the person that is being subjected to the new law of a substantive right then it is ex post facto. In other words, if that right is a substantive right and it works to his substantial detriment and what could be more than a substantive right of life itself and what could more of a detriment to this petitioner than to have his substantive right of life taken away and given death.
William H. Rehnquist: What would you say if they had increased the penalty from a minimum of 10 years to a minimum of 50 years? Would you say the ex post facto clause would bar the application greater?
Louis O. Frost: Yes sir, I would say that that would be a substantive right that he had been deprived off if they increase the penalty and has the penalty annex to the crime. Yes sir, I would.
Harry A. Blackmun: I see your comment gets back again to Mr. Justice Rehnquist’s early question whether at the time this crime was committed under Florida law, he was not subject to death.
Louis O. Frost: Well, the answer to that question.
Harry A. Blackmun: The only answer you can give is well the Proffitt case came along.
Louis O. Frost: No, Furman came along, Furman is the law. Your decision in Furman is the law and that law took away the death penalty.
Harry A. Blackmun: But it was not the law at the time of the crime.
Louis O. Frost: But under the law at the time of the crime, he would have gotten life imprisonment because it tended to recommendation of a mercy from the jury would have been binding on the trial court.
Harry A. Blackmun: Well, is it not a bit of speculation as to what the jury would have done?
Louis O. Frost: I do not think it is speculation Mr. Blackmun, they heard all this atrocious, heinous facts that came out in this trial for five days and they heard every one of these facts.
Harry A. Blackmun: But under a different statute?
Louis O. Frost: Sir?
Harry A. Blackmun: Under a different statute?
Louis O. Frost: They heard everyone of these facts and they still recommended mercy. Thank you.
Warren E. Burger: Mr. Musgrove.
Charles W. Musgrove: Mr. Chief Justice and May it please the Court. I am Charles Musgrove with the Office of the Florida Attorney General in Tallahassee. I represent the respondent, the State of Florida. Briefly, it is our position that the argument of the petitioner as to the ex post facto nature of the sentencing procedure is without merit because this is nothing but a procedural matter. We think the essence of the ex post facto provision is noticed. We think that was the gist of this court’s decision in Bouie. More recently, Mr. Justice Stevens wrote a case regarding the application of memoirs test in pornography matters in which you confirmed again that the essence of the ex post facto law is noticed and there is no notice problem in this case. If Mr. Dobbert were a student of the law, he would have known at the time he committed this offense he was indeed subject to the death penalty. At the time he stood trial, he was indeed subject to the death penalty. In fact there was no change whatever in the punishment to which he was subjected. At the time of the offense, the punishment was either life imprisonment or death. At the time he stood trial, the punishment was either life imprisonment or death. Now, there was an additional provision in the new Florida law which Mr. Frost has referred to this morning, which provides for no parole for a period of 25 years upon a conviction for a capital felony. Florida has conclusively construed that provision not to a part to any case such as petitioner’s where the offense occurred prior to the affective date of the statute. So, it is not simply a matter that because petitioner received the death penalty and not life imprisonment, he did not get the 25 years without parole. It is a fact that he could not have gotten it. It is the Lee decision which we have heard a lot about already today and you will hear some more for me and I am sure again from Mr. Frost, Lee decides that question. So we contend that there is simply no change in the punishment to which petitioner was subjected that distinguishes this case from the Lindsey case which was brought up I believe by Mr. Justice Rehnquist. Lindsey involved a case in which would have been a maximum punishment, 15 years suddenly became a mandatory punishment. The judge was required to impose the 15 years and the time that the person would then get out of prison was to be at the discretion of the parole authorities. That is not the case we have here because there has been no change whatever in the punishment imposable. You have heard this morning that it is a freakish thing to make the result depend upon the date of trial. I suggest too that in procedural matters, there is no other time to which a procedure can relate except the date of trial. The date when the procedure is to be applied and certainly no procedure can apply before its effective date and if this court wishes to assume that it is freakish to make the outcome of a case depend upon the date of trial then I would ask this court what it was deciding when it decided Johnson v. New Jersey, which applied as this Court will recall the dictates of the Miranda decision only to those cases which went to trial after the effective date of the Miranda decision. I realize this Court has not applied that test since that time. However, I would suggest that to tell the State of Florida that it cannot do the same thing this Court did in Johnson v. New Jersey that for Florida to do it would be freakish, would be inconsistent on the part of this Court.
John Paul Stevens: Mr. Musgrove before you leave that point, is it your submission that if the trial had taken place promptly after the offense and before the decision in Furman, and if then there had been an appeal to this Court and this court have vacated the death sentence in those circumstances that Florida could constitutionally have re-imposed the death sentence pursuant to one of that statute?
Charles W. Musgrove: I would take the position, -- yes sir that Florida could have than so, however as a practical matter Florida did not do so to all those people who were on death row at that time, Florida vacated the death sentences and imposed life imprisonment instead.
John Paul Stevens: And Florida did that as a matter of its policy decision rather than feeling was under any constitutional compulsion to do so?
Charles W. Musgrove: Mr. Justice Stevens, I cannot tell you what was in the minds of the Justices of the Florida Supreme Court. They indicated on one hand that they did not think there was any way to save their capital statute. However, they were faced at that very time with a brand new procedure. I have taken the position in the brief for the respondent that they could in fact have save it in a variety of ways. They could have simply adapted the same procedures that ultimately were adapted in the statute. However, they were already faced with a brand new statute which would supersede anything they could do and they did indeed go ahead and wipe out all then existing death penalties which we suggest is precisely what this Court said had to happen as a result of Furman, namely that all existing death penalties had been unconstitutionally imposed and could not stand.
John Paul Stevens: But if your view with the law is correct, I take it wherever there was a death sentence set aside if the state had elected to adapt a new statute and then have another penalty hearing and ending up in a death sentence, it could have done that?
Charles W. Musgrove: That is our position, yes sir and in fact that is precise with the wisdom with Rudolf Allenton Lee and Rudolf Allenton Lee not only received the death sentence, but his death sentence was affirmed.
Harry A. Blackmun: So that those that this Court vacated the death sentence, they would be vacated, but the other guy that was convicted under the same circumstances. The Florida Courts could re-impose the death sentence.
Charles W. Musgrove: That is our position, if it is not involved in this case.
Harry A. Blackmun: You got anything to back that up?
Charles W. Musgrove: The Florida Supreme Court thought it could do so and root off...
Harry A. Blackmun: Oh, if anything other than Florida Supreme Court?
Charles W. Musgrove: No sir. I think this is a really unique case. I do not think either side has found a case quite like it anywhere. I suggest that whatever decision this Court may make at this time, it would be plowing new ground. Now, Rudolf Allenton Lee was indeed ultimately reversed. The death sentence was cast out by the Florida Supreme Court in the second go round and the reason it did so, I suggest this court has nothing to do with the situation Mr. Dobbert finds himself in. It is simply this. Mr. Lee like all other who were on death row at the time this Court decided Furman should have had its death sentence set aside by either the Florida Supreme Court or upon remand. I think actually all death sentences were set aside by the Florida Supreme Court either in Baker or an Anderson v. the State. Now, Lee did not simply because his attorney made the mistake of following the advice of the Attorney General of Florida and rushing right back to the trial judge to get his sentence set aside at which point the state took an appeal. The appeal was ultimately decided after the effective date of the new statute and Lee thus became the only person who had been on death row prior to the Furman decision whose sentence to death was not forever set aside. The only one, not only that, but it can be said that his mistake was in relying on representations by the state. All the Supreme Court of Florida decided in Lee was that it would be fundamentally unfair to Mr. Lee to penalize him for what a competent attorney choose to do as a matter of tactics which produced a result that he and he alone of all those people was still subject to the death penalty. Now, the state certainly did not mislead Mr. Dobbert in any fashion and the fact that he did not stand trial by the way until after the new procedure took effect was surely not the state’s fault. The state for example did not hide the evidence of these crimes by lying to the authorities, by keeping the children out of school so their trustees could not be seen, by feigning a suicide in, Fort Lauderdale and hiding out in Wisconsin, New Orleans in Texas and fighting extradition so that he could not possibly have stood trial until after the new procedure took effect. None of that can be laid at defeat of the state, that was Mr. Dobbert’s doing himself. And as a consequence we say simply this is a procedural matter. It did not order the punishment, it is not ex post facto. I feel compelled to address the question that perhaps has already been resolved in the minds of Court to whether the new statute is in fact harsher or beneficial to the defendant compared to the old one. You will find a survey in the state’s brief of then existing cases. Subsequently, I have updated that, some seven additional cases have been decided. I do have case numbers and decision dates available, but of those seven additional cases that were decided by the Florida Supreme Court, three of those have been affirmed, the death sentences, four have been reversed that included by the way two cases in which the jury had recommended life and that decision was overridden. One of those was affirmed and the other was reversed. So, at this point of a total of 40 cases which the Florida Supreme Court has decided on Death Penalties, 22 of those had been affirmed, 18 of those have been reversed. The jury recommendations in those cases, I have included by my count 26 recommendations to death. Now, in addition I have included in the matters attached to the response and later to my brief some four cases that we are aware of and there may well be others because we do not routinely get those in our Tallahassee Office and the issue of the sentences is not one that is raised on appeal, but we know of least four cases in which the process went the other way and in which the jury recommended death and the trial judge overrode. So, we would say at this point that there are at least eight and now counting Gardner from this Court just took off death row, nine less people on death row in Florida there would have been under the old procedure in which the jury recommendation was binding. We think that is very strong if not conclusive evidence that the new procedure is favorable to the defendant, not unfavorable and we think that the defendant is engaging in Monday morning quarter backing when he says well, look my jury recommendation in this case would have produced a life sentence for me.
Harry A. Blackmun: Is this your only answer to that point? Your only answer being that looked at as a whole statute is more favorable?
Charles W. Musgrove: That is part of the answer, yes sir.
Harry A. Blackmun: What is the other part?
Charles W. Musgrove: Well, first of all we think he is merely speculating, he cannot say what sort of a verdict a jury would have returned under the old procedure. The jury would not have the benefit.
Harry A. Blackmun: That is quite the test, is it?
Charles W. Musgrove: Well, Your Honor.
Harry A. Blackmun: Under Lindsey?
Charles W. Musgrove: I do not understand Lindsey to have any application to a case such as this Your Honor. If it does, it eludes me because Lindsey was a case in which the potential punishment clearly went from maximum of 15 years imprisonment to a mandatory 15 years imprisonment. There was not longer any possibility for the judge to give any less than 15 years.
Harry A. Blackmun: Well, I know but under the old statute here, if the jury recommended mercy, the judge had no alternative?
Charles W. Musgrove: That is true Your Honor.
Harry A. Blackmun: He had to accept it.
Charles W. Musgrove: That is true.
Harry A. Blackmun: And here the same recommendation, he does not have to accept?
Charles W. Musgrove: And under the old system Your Honor, if the jury recommended death, the judge also had no...
Harry A. Blackmun: I understand that but again is that your only answer?
Charles W. Musgrove: No, my answer still is that what he just doing is engaging in Monday morning quarter backing and saying this is what would have happened under the old procedure and I suggest again that is speculation on his part. He cannot say as a matter fact what a jury would have done under the old procedure. The jury would not have had the benefit of instructions by the judge on the aggravating and mitigating circumstances. The jury would not have had the benefit of a separate proceeding in which aggravating and mitigating evidence was offered. Now, I have recognized it in this case, very little was offered. Certain psychiatric reports and the defense counsel read to the jury from Mr. Nizer’s book, The Implosion Conspiracy.
John Paul Stevens: Mr. Musgrove, under the old law, was there an absolute right of appeal to the Supreme Court of Florida?
Charles W. Musgrove: There was sir, but there was no appellate review and the Florida Supreme Court had no alternative to simply reduce the sentence. If the Supreme Court thought an unjust result was reached, all they could do is order a new trial, but they had no review of the sentence as such, a feature which this Court has found to be a very vital one in the present statutory set up and one which has produced, in fact, what we contend is a third opportunity under the procedure for a defendant to get life imprisonment rather than death wherein the past, he had only one chance. The jury verdict was it. If the jury said he die he died.
John Paul Stevens: Mr. Musgrove, may I ask you questions. First, I want to be sure I understand your statistics correctly. If I understand you there are 40 death cases where the trial court is supposed to sentence to death in Florida since under the new statute?
Charles W. Musgrove: Yes sir.
John Paul Stevens: Do I correctly understand that in those 40, 14 of those were cases in which the jury had recommended mercy?
Charles W. Musgrove: Yes sir.
John Paul Stevens: And in all 14 of those then the trial judge substituted the verdict of death for the jury’s recommendation of mercy.
Charles W. Musgrove: Yes sir.
John Paul Stevens: I see and the second question I had is, although we do not know what have happened under a different stature scheme before, at least it is true as it not that under the prior procedure, the jury might have returned a verdict of mercy and if it had, that would have been the matter on the sentence?
Charles W. Musgrove: Yes sir, that is true.
Speaker: In which cases, they jury did that?
Charles W. Musgrove: In this case, the jury recommended mercy however; the jury was also told that its decision was not final. It was told that this were the aggravating circumstances, these were the mitigating circumstances, you are to weigh all of these and reach whatever conclusion you deemed appropriate. None of that would have happened under the old procedure and certainly, there would have been no reading from the book, The Implosion Conspiracy to that jury under the old procedure. That just would never have happened, of those14 cases by the way in which the jury has recommended life imprisonment and the judge has overridden, nine of those 14 have been reversed on appeal in the Florida Supreme Court, only five were allowed to stand, one of which of course is before you now, in Dobbert. One I might mention was overturned by the very trial judge who imposed it in the first place, that is the Sawyer case which Judge Baker took it upon himself to throw out and still another one was the decision in Gardner which this Court just last week threw out. So by and large, I would say this, when the jury recommends mercy in Florida under the current procedure, it is a very exceptional case in which an override occurs and is upheld. Before the Supreme Court said that in affect in Tedder, when it said the jury recommendation should be binding in all cases except those in which no reasonable man could disagree. Obviously, they were not talking about judges and that since the judges rarely agree.
Speaker: That was not true in the Gardner case.
Charles W. Musgrove: That all reasonable men would agree.
Speaker: It did not say anything.
Charles W. Musgrove: No sir, Gardner preceded Tedder preceded Your Honor. However the Tedder standard was in effect at the time that Dobbert was decided and in fact one of the dissenting opinions addressed about it expressly. The other dissenting opinion, rather basically the jury instructions and referred briefly to the question of change of venue. All the other five Justices of the Florida Supreme Court concurred that the judgment and the sentence were proper.
William H. Rehnquist: The Florida Supreme Court did not consider the issue before us here now, did it?
Charles W. Musgrove: It was presented to the Florida Supreme Court, however, I would suggest that the Florida Supreme Court having already decided Lee and Miller , both of which were cited in my brief, did not feel compelled to again address the same issue.
William H. Rehnquist: There is no discussion of it?
Charles W. Musgrove: No discussion, no sir.
William H. Rehnquist: It was a subject to the motion for rehearing, was it?
Charles W. Musgrove: Yes sir.
William H. Rehnquist: And that was denied without discussion?
Charles W. Musgrove: Yes sir. However, in light of Miller and Lee, recent decisions of the Florida Supreme Court, I do not know why they would continue to plow the same ground when they had other issues to address.
John Paul Stevens: But it was presented?
Charles W. Musgrove: When it was presented, I am sure it was not just ignored entirely.
John Paul Stevens: Then if it was decided the other way, it would have been dispositive?
Charles W. Musgrove: Yes sir, well, it would have been dispositive of the sentence.
John Paul Stevens: So that you must conclude that the issue was decided in this case.
Charles W. Musgrove: Yes sir, it simply was not addressed. Now, I have heard some discussion here today about the savings clause and if I understood Mr. Justice Burger’s question correctly, it went to whether this was a federal question at all. I would suggest that it is not. However, I would also disagree with the petitioner as to the effect of the savings clause, Florida has held that it does not apply to procedural matters. Here again, this matter was certainly presented that was not addressed, but again had to have been decided as Mr. Justice White has just pointed out and I do not think that there is any basis for this Court to go behind what the Florida Supreme Court has done. Again, I do not understand that this should be considered a federal question. If there are no further questions on the question of the ex post facto application, I will address briefly the question of the request of change of venue. I think Murphy is the case in which this Court has most recently addressed this subject. I think this case is distinguishable from Murphy also and I think in every aspect save one in which it is distinguishable and it is distinguishable in favor of the state. Here, unlike Murphy there were some very excellent efforts made by the trial judge to control the extent and duration and the effect of what I would concede was indeed some fair amount of publicity. Here, the trial judge imposed an order couple of months before the trial limiting statements by court personnel. Here, he sequestered the jury throughout the trial and he even kept them separated in the jury selection. Initially, jurors were selected. In fact, the first 27 perspective jurors were brought before the Court one at a time. This proved to be taking too long so thereafter nine were brought in three at a time. Thereafter in varying numbers of either six or five at a time until jury was finally selected and tentative jurors were kept separate. Perspective jurors were kept separate from those being questioned and those which were tentatively accepted were kept still in another location. So, that even if one of the jurors would have say, oh I have read everything, one of the perspective jurors would have say, I have read everything and I am just convinced this man is an animal, he is guilty as charged, he deserves to die, nobody accept those jurors being questioned right then and initially as I said they were one at a time would have even heard this outburst. So the trial judge took some very excellent measures to preserve the integrity of this trial. Such measures, this Court thought in Shepherd would have been sufficient to preserve the integrity of that trial, a trial which this Court will recall was considered to have been conducted in a circus like atmosphere. Certainly, nothing like that happens here. Secondly, we have suggested that there is noting that was in that pre-trial publicity that the jury did not hear again at the trial, it was basically straight factual reporting. In fact, everything was there again for they jury to hear. We have examined the voir dire examination itself and discovered that unlike Murphy where everybody had heard of Murphy, a substantial number of perspective jurors had not heard of Mr. Dobbert. Far more jurors were unable to set aside their opinions on Murphy than they were in the Dobbert case. And like Murphy, they were even some in Dobbert who thought that perhaps he was innocent based on the fact that they could not find the bodies. Every step of the way the voir dire examination here demonstrated that this was not an impossible situation. It was possible to get a fair jury and then we examined the results of the trial to see if this premise proves to be correct and in fact it does. This jury deliberated for I think some six or seven hours, it has to have three witnesses re-read including this one. It considered lesser included offenses as to all four and actually returned verdicts on two of those lesser included offenses and then by the way as we all know, the same jury went out and deliberated for perhaps half an hour or so and returned the recommendation to life imprisonment and this Mr. Dobbert suggest was unfair jury that he could not get a fair jury in Duval County of Florida. I suggest to this court that death cases are indeed different and that is the only distinction between this case and Murphy. This is a death case. Death cases are different. I do not deny that, but by the very fact that death cases are different, they are the types of cases which invariably attract great attention in the press and unless this Court is prepared to say that every capital case must be tried on a change of venue then you must look to the selection of the jury where there is no change of venue to see if there is prejudice and I suggest to you, you will find not only no evidence of prejudice, but not even a basis on which to conclude that prejudice had to be there despite the protestations of the perspective jurors.
John Paul Stevens: What is the population of Duval County?
Charles W. Musgrove: At the time, it was slightly over half a million.
John Paul Stevens: Is Jacksonville the county seat?
Charles W. Musgrove: Well, I do not believe that have consolidated yet then. Subsequently, they consolidated, but Jacksonville was the County seen I believe at that time. And as one of larger population areas in Florida, Dade County is larger, perhaps the Fort Lauderdale area but it is one of the largest areas and I am not sure where this case could have been tried if not Duval County with the fair jury. I heard about the case in West Palm Beach which is far to the south. Certainly, Fort Lauderdale were he left the suicide note heard quite a bit about it, but the basic fact is that this I suggest was in fact a fair trial jury, very fair and there has been neither a showing of actual prejudice or even circumstances in which this Court did in Irvin v. Dowd. Protestations of the perspective jurors could set aside their pre-ordained opinions could not be believed. It is just not that type of case at all. Certainly, there was nothing like Murphy, they talked about prior convictions that were totally unrelated and were never heart about a trial. Everything here that the jurors could have learned, they did learn again at trial. So, we would suggest that the...
John Paul Stevens: Mr. Musgrove, may I go back to the ex post facto point for just a moment. Do I correctly understand your argument to apply to this situation? Last term as you know, the Court vacated death sentences in North Carolina and Louisiana. Could the legislatures of those dates today decide to authorize new sentencing procedures for all those individuals whose death sentences were set aside have re-hearings and give the courts power to re-impose those death sentences? I understand your argument, they could.
Charles W. Musgrove: Yes sir.
John Paul Stevens: There are no basic differences because of the peculiar way this case arose. It is the basic same constitutional issue.
Charles W. Musgrove: It is the same basic issue Mr. Justice Stevens and frankly the notice is still there which is essentially...
John Paul Stevens: Your point being at the time they committed the offense, they are on notice that it was a capital offense?
Charles W. Musgrove: Right, now as far as the significance of this case, whatever you all decide for Florida will not have any great significance. There are some people still subject to the death sentence, if you decide in favor of the state here. Mr. Dobbert is one and Mr. Miller is back up for review again in the Florida Supreme Court so he is another, I know of one myself which will yet go to trial. I think it is scheduled now in May and I am sure there are some others who for some reasons were not tried yet, perhaps they were in as it were in (Inaudible), held him (Inaudible) but if this decision is to have any effect at all and it may have some slight deterrent effect, it will not deter anybody in Florida except perhaps Dobbert who as this Court has recognized will never do this again if he is executed. It will not deter anybody in Florida because Florida’s procedure is now deemed valid. But in other states, just to illustrate, robbery is usually a planned offense and one of the things that robber has to calculate on is should I kill my witness and thus perhaps run the risk of a death penalty if there is one in my state or should I let the victim live and run the risk that he will put me in jail because of course eye witness testimony is the best possible evidence and the kind that the robber most wants to eliminate. Now, he may in his planning make the definite decision one way or the other based on his analysis of his law, if it has not been before this Court yet. But if this Court decides in Dobbert that even if the procedure is no good right then, it can be amended and the amendment correcting the procedure will be valid and will apply even to older offenses then there is a deterrent to him. He may live the victim alive, I realize it is perhaps only a slight deterrent, but as far as we are concerned if any innocent victims who had their lives spared as a result of the death penalty, it has served a very useful purpose.
Speaker: If all those you named that are on death row, those who have petitions pending here, they are saved, are they not?
Charles W. Musgrove: Pardon sir.
Speaker: Those that have petitions here, those that are on death row, you are not going to electrocute those, are you?
Charles W. Musgrove: Oh no, not right at the moment.
Speaker: I hope not.
Charles W. Musgrove: We hope, we will be allowed to when this Court is through reviewing their cases. Yes sir. Right, if there are no further questions, we would summarize briefly by saying that this is not an ex post facto application because it is merely procedural and that the argument relating to the change of venue should be rejected on grounds of Murphy because in every instance this case is more favorable for the state than was Murphy. Thank you.
Warren E. Burger: Thank you gentleman. The case is submitted.