Warren E. Burger: The Court will hear arguments in the first case, number 203, Dennis McGautha against the State of California. Mr. Selvin, you may proceed whenever you’re ready.
Herman F. Selvin: Mr. Chief Justice and may it please the Court. This case is here on certiorari to the Supreme Court of the State of California to review a judgment of death imposed by a jury upon the petitioner after his conviction of murder in the first degree. The question that is raised and to which the granting of certiorari was limited, is whether California’s procedure of imposing the death penalty by leaving the choice of penalty to the jury in its absolute discretion, unguided and uncontrolled by any standards fixed by law is a denial of due process that there are no standards governing the process on this law of California. As a fact, it has been noted of many times by the highest court of that state and the jury in this case was told that in so many words. But to them and in their absolute discretion was confided the choice of penalty for which choice the law fix no standards. It is by plan to discus that question for what it is, a question of law, not one of penology, not one of policy. The question of does not necessarily implicate the constitutionality of the death penalty per se. It is aimed primarily so far as our presentation is concerned at the procedure. The standardless procedure by which California imposes the penalty, that being so, I suggest that we are brought to grips with first principles arising under the due process clause. The main purpose, the basic purpose of that clause this Court has said time and time again is to prevent Government from imposing burdens upon a person from depriving a person of his life, liberty, or property without due process of law. Save as this Court set expressed at one case, save by the valid laws of the land. Now, that does not mean as this Court pointed out in one of the first cases of the rules after the Fourteenth Amendment had been adopted. That does not mean any law that a legislature may enact. It means only those laws that are consistent with the basic purpose of the amendment, that purpose being in a few words to impose upon the judicial process and the legislative process too for that matter, the rule of law. It is a requirement because it is inherent in that purpose that law shall mean not something for the occasion or for the moment but some fixed and ascertainable standards by which a rule is established. Not merely so that individuals may be able to conduct themselves in conformity to the law, but as well so that the courts may determine whether in fact they have conducted themselves in conformity with the law. In other words, the rule of law established by the due process clause, I submit, imposes a rule of decision or standards for a rule of decision as well as standards for a rule of conduct. We’d have, I suggest no trouble. No trouble with that concept if what were before this Court was statute of a sort said for instance that murder was simply any killing. That in the absolute discretion of a jury was determined to be deserving of some kind of punishment. We would have no trouble because the rule is thoroughly established. That a statute must so define proscribed conduct as to enable not only the person to conduct himself lawfully but enable to a court to determine whether he has conducted himself lawfully. If that is so, if that is so in respect of the determination of guilt, why should it not be in respect of the imposition of penalty? The process by which a person is deprived of his life is not a fragmented process even though the actual trial may as it is in California be divided into two stages. It is one process from accusation through the final imposition of sentence and there is nothing, nothing in the Fourteenth Amendment that provides that it shall be applicable only to a part rather than the whole of that process and as this Court has said in that connection. The sentencing procedure is not immune to scrutiny under the due process clause. Well then if in respect of determination of guilt, the rule of law imports that necessity for standards does it not in respect of the sentence. The sentence after all is the final culmination of the process by which the defendant is to be deprived of its life or liberty as the case may be.
Speaker: Mr. Selvin, how long has California had a statute providing for the bifurcated trial?
Herman F. Selvin: Since 1957, I believe Your Honor. It’s been quite a while.
Speaker: And under California procedure, has it always been the jury which fixes the punishment?
Herman F. Selvin: Since that bifurcated procedure, yes Your Honor. And indeed, even before the bifurcated procedure, the jury had fixed the punishment for good many years.
Speaker: If California has many other states, had a procedure whereby punishment was fixed by the judge, would you be making the same argument here today?
Herman F. Selvin: Not necessarily. My submission then would be alternatively. The first answer I would make is that if standards are required of the sentencing power, they are required of the judge as well as of the jury. But the cases of the judges are classifiably different situation. And the legislature might well distinguish between the two. There is the matter of the judge’s special training and experience and expertise. There is his greater knowledge of the purposes and objectives of the criminal law, a knowledge that goes beyond that which an ordinary person could be supposed or deemed to have. And there is the coordination of his own action, his own exercise of discretion to what he determines from his experience and from his knowledge of the law are the objectives and the aims of punishment. That being so, the likelihood that he would arrive about a result intended or dictated by the law as distinguished from personal preference or personal reaction in this situation is so much greater that a legislature could very well classify between the two and insulate that classification in submission for many contention on writable protection of due process.
Speaker: One last question while I have you interrupted, as I understand Mr. McGautha’s codefendant received a life sentence from the jury and I take it as your position that this difference in the imposition of penalty is indicative of depress in the part of the jury.
Herman F. Selvin: Well it is less indicative, it is not necessarily. So of course, I recognize as California argues that there were factors in the evidence upon which a jury might rationally have made a difference between the two men. The vice is we don’t know that that’s what they did. The particular vices they weren’t told that the law makes whatever it is they may have decided in that connection, a distinguishable or not a distinguishable but a significant difference between the two men. We, -- the California has said that the jury undoubtedly determined that McGautha was the triggerman. Well, I would say that’s a pretty good guess but it is by no means an unelectable inference or even an inference that probably should be drawn. The evidence on that score was in sharp conflict and under a statute imposing standards of a sort for instance that we find in the Model Penal Code. Notwithstanding that the jury ex hypothesi was satisfied that McGautha pulled the trigger. There might have been because of the sharp conflict, enough doubt in their mind so that under an appropriate instruction, they could have treated that doubt as mitigating circumstance. Now I am not saying the Constitution requires that that be treated as a mitigating circumstance, what I’m saying is that that’s an indication of the kind of standards that could be framed, that could be imposed and that might lead to the very result understandably and inferably at which here California only guesses.
Speaker: Is there anything in the record which indicates that anyone other than McGautha or Wilkinson pulled the trigger?
Herman F. Selvin: Yes, there is testimony. Mr. Wilkinson testified in the fact that it was McGautha. McGautha testified in the fact that it was Wilkinson. There are some evidence from the proprietor of the store, the lady involved describing the activities of the two men. Describing the activity of one of the man who from her description of the size and coloration and the rest must have been McGautha, which was inconsistent with McGautha having been being able to fire the shot. As I say, the evidence on that score was in sharp conflict. And the part then -- a matter of fact it was in conflict within the prosecutions own case, the jury didn’t have to wait till the penalty faces a trial for that conflict to develop cause neither of the defendants took the stand in the guilt phase. But from the ballistic testimony on the one hand, the testimony of the proprietor distort on the other. There was a conflict in the prosecution’s case about which one of the two fired the shot.
Warren E. Burger: Mr. Selvin, while you’re on that subject, let me go back to your observations about the expert’s posture of the judge imposing the sentence where you indicated, if I heard you correctly that the legislature could vest this power in the judge without standards. Is that your position?
Herman F. Selvin: Well, that the legislature -- yes, could classify the judge differently and treat the judge situation as different from that of the jury because of the --
Warren E. Burger: How does that square with the idea that was widely held, widely expressed that the jury and the whole process is to express the community conscience, it distinguish between the judge as an expert and the jurors as non-expert layman in that respect?
Herman F. Selvin: Well, I’d say, I distinguish between the judge and the jury in respect of their expertise in the law. So far as the conscience of the community is concerned --
Warren E. Burger: But when the judge fixes the sentence, is he making a legal decision in your view? Is that a question of law?
Herman F. Selvin: That when he considers the aims and objects of punishment, when he considers the material, the information that the normal practice every judge gets by way of pre-sentence reports, probation reports and the like. I think that there is a considered and designed effort to impose the particular penalty into circumstances of this particular case, in judge’s opinion as an expert of the law, is what the law had in mind as a general policy.
Warren E. Burger: But if you’re right in the proposition that it’s a question of law, then how can the jury be deciding it at all, with or without guidance?
Herman F. Selvin: Well, simply as a question of law simply because the statute did nothing that necessarily imposes upon on a state, a sharply defined division between the functions of judge and jury in the case. The common law for many years and it wasn’t it until facts’ act and others, the jury decided the law in libel cases among other things. That was submitted to them. It is not unknown to the law that questions of law may be submitted to the jury. But when they are, I suggest they generally admitted under recharge that attempts at least to put before the jury, the considerations of the law considers to be determinants of decision and that is what the California procedure does not do. Now, if I may say just a word, if Your Honor please, about the conscience of the community. There could be no question about the fact that the jury does reflect the conscience of the community. There can be no question about the fact that a link between the community and the jury is an important part of our judicial system, but that link must be maintained and that conscience must be exercised within the limits of the Constitution and the jury must have those limits, explained to it and those limits must be fixed to the extent that they need to be made specific by the law. I need only cite by way of example to comparatively recent decisions of this Court in Reitman against Mulkey at initiative measure expressing the conscience of the California community overwhelmingly and directly in adopting a certain constitutional amendment, and California was held on unconstitutional by this Court notwithstanding that it was the direct expression of the conscience of community. In Lucas, an initiative reapportioning the Colorado legislature was held to be unconstitutional notwithstanding that it represented the voice of the community. What I am saying is and what those cases illustrate is that conscience is in itself not an unbridle things so far as the law is concerned. It is confined by the Constitution just as much as the legislature, the judiciary or the executive is confined.
Speaker: Does California or do other states have jury sentencing in non-capital cases?
Herman F. Selvin: There is nothing that I can think of in California. California has the indeterminate sentence law. There is jury sentencing in non-capital cases in other jurisdictions, I understand.
Speaker: In case like that vary, and supposing that the range of punishment is 5 to 15 years were dignified, do you say under your argument that the jury had to give the sentence as to how they (Inaudible)?
Herman F. Selvin: Well, I suppose that’s a purely logical or abstract question, the answer is yes, that it should be. But there again, do we not have a classifiably different situation. In the first place, the range is a difference in degree, not in kind as it is in the capital sentencing case. The sentence is a much more irrevocable fact once it is established. The jury deals them with the type of situation and the pressures and the tensions and the simple means that lead to them with which they are much more likely to be familiar in the ordinary run of life than they are to be familiar with what it is that motivates someone who has killed another human being. Well, that’s a very rough idea if you are to please of factors again that make non-capital jury sentencing a classifiably different situation. I take it that the Constitution certainly doesn’t require complete conformity or uniformity. It certainly does not require logical perfection. There must be some room in the joints to work. I think as Mr. Justice Holmes’ famous phrase. And some latitude must be found in these things. Let me say just a word if I may before I reserve what’s left of my time to reply. I mentioned briefly what seems to be the argument in opposition to the position that we have taken in this case. So far as California is concerned, about what it comes down to is that the penalty phase of a murder trial in California is a pretty fair (Inaudible) and all relevant evidence is submitted, procedural niceties are observed, and review of errors of law is provided for. Well, that begs the question. The question is, our standards are necessary and if they are, are they given to the jury as the rule of law imposed in that phase of the case or isn’t it? It isn’t enough to say that the trial in its non-sentencing procedural aspect is a fair trial. The argument proves too much. You could say exactly the same thing about the guilt phase of the trial and yet even California would not argue that the question of guilt vel non, not guilt vel non, but definition of the alleged crime could be left to the jury without any guidelines or standards or without any fixing by the legislature. The argument in the brief of the Solicitor General seems to be that jury sentencing is an old practice. And being an old practice, we should retain. At least the question that it was -- the fact that it is unconstitutional has never been strongly enough urged apparently to have it decided -- to have it decided that it was. Well, this Court at the close of last turn seems to me answered that kind of an argument. The argument incidentally also begs the question because it doesn’t come to grips with the proposition of whether due process of law means law in the sense of standards. But the answer was made by this Court in Williams against Illinois. Neither the antiquity of the practice nor steadfast judicial or legislative adherence to it insulates it from attack under the Constitution. And it is that attack under the Constitution that we make here primarily for the reason to put it into one short sentence that it ignores the basic purpose of Fourteenth Amendment which is to establish the rule of law throughout the entire case, not just a part of it.
Warren E. Burger: Thank you Mr. Selvin.
Speaker: Mr. Selvin, one more question. If California provided that upon conviction for first-degree murder that death penalty were mandatory, would that in your view be unconstitutional?
Herman F. Selvin: I will say it first that it’s not necessary to my argument that it be unconstitutional. I am inclined to think that on balance, it would not be. Now the question might arise under the cruel and unusual punishment clause. It might arise under the due process clause. Under the cruel and unusual punishment clause, the argument that has satisfied my mind and my own reflection on it is that there were a 160 somewhat crimes for which the death penalty was a standard procedure to timely -- to time that Amendment of the Constitution was adopted. So far, as due process is concerned, I suppose it gets down ultimately to the question whether there was such a compelling interest on the part of the Government to make retribution of factor in the criminal law as to justify taking ones life. Because I would submit that only a compelling interest can justify the taking of ones life even for the commission of a heinous crime. But if retribution is not such a compelling interest, then rehabilitation and protection of society at all will rest of the purposes of the punishment that can be encompassed and can be furthered by a life imprisonment, but then will leave the answer to the question -- let me say, at least in doubt. But primarily from the standpoint of are more or less limited attack on the California procedure. There is nothing that needs to be decided in that connection that in anyway implicates the death penalty per se.
Speaker: Well, if the death penalty were a mandatory and were not unconstitutional, then you are here because California is more lenient than it might have to be.
Herman F. Selvin: Well, it is capriciously more lenient. It does not -- you see California, California hasn’t expressed any preference for one penalty rather than the other. Our Supreme Court has said so time and time again and in fact the juries told that and just about those words. The trouble with the California situation is that the penalty for murder has not been fixed by the law. Now that’s quite a different thing, I submit, from saying the penalty is death but someone, be at the jury, the judge the Governor, or some administrative commission has the power do we dispense clemency. In that case, an argument could be made. I don’t have to make it but an argument could be made at the requirement of standards does not apply because there is no constitutional right to mercy. But there is a constitutional right to know what it is that you can and can’t do and what happens to you if you do it.
Warren E. Burger: What your argument comes down to Mr. Selvin in the sense is that the legislature of California could vest this uncontrolled, unguided power in a judge or the legislature could reserve it to itself unguided and without articulated reasons by a mandatory death penalty?
Herman F. Selvin: Well, --
Warren E. Burger: Without pending the Constitution in either case.
Herman F. Selvin: So far as the legislature is concerned, when it defines the crime with constitutional adequacy and says the penalty for that crime is one thing or the other, it has by necessary -- by implicitly set the standard and it has the legislative power within the confines of the Constitution to set the standard. So far as the judge is concerned, I’ve answered that question somewhat ramblingly before I think it’s classifiably different situation the legislature might do it and that justification for doing it would be found in the strong likelihood that the judges knowledge and sense of obligation and more particularly his knowledge of the objectives of the criminal law would in effect see to it that the sentence is oppose in accordance with the law’s purposes and intentions in the matter. That is in substance but the California Court so set with respect to it’s indeterminate sentence law except that they find from the language of the statute some rather more specific standards than that but it comes down at to the same thing that having set the generalized standards than that but it comes down at the same thing at having set the generalized standards the objective of the statute, it’s then permissible for the legislature to imposed on one having the necessary qualifications of expertise, the job of seeing whether those standards are met in a particular case.
Warren E. Burger: Thank you Mr. Selvin. Mr. George.
Ronald M. George: Mr. Chief Justice and may it please the Court. This case on direct review from the California Supreme Court involves the single issue whether petitioner was deprived of due process of law under the Fourteenth Amendment by the procedure under which the jury was entrusted with the decision whether he should be punished alternatively with death or life imprisonment and the resolution of this issue will affect the sentences of each of the over 550 prisoners in the nation under sentence of death. The procedure which is involved in petitioner’s case under California law provided that after the jury found petitioner guilty of first-degree murder, additional evidence and argument on the issue of punishment was received and the jury return of penalty verdict after being instructed as follows. First of all that the proper factors to consider in guiding its discretion in fixing the punishment were so and so I’ll get into those and more detail but they were instructed as to certain factors. I’ll mention in summary form these factors included all the evidence of the circumstances surrounding the crime of each defendant’s background and history and of the facts and aggravation or mitigation of penalty. The jury was further instructed to base its decision on the evidence received in Court. The jury was instructed as to the necessity of not being arbitrary or governed by mere conjecture, prejudice or public opinion. However, and if anything these tips the scales in the defendant’s direction, the jury was instructed that it could be influenced by pity, mere sentiment, or sympathy for the defendant. Thus, the question at bar is not whether it is Constitutional to submit the jury of penalty in a capital case to a jury without any standards. The question properly before this Court in this case is whether the standards which are provided by California are constitutionally adequate. I might mention in response to Mr. Justice Harlan’s question that there are indeed two offenses that I’m aware of under California law which provide for the jury to fix the punishment. Those happened to be Penal Code Section 193, vehicular manslaughter and Section 264, statutory rape. Now I’d like to give a very brief outline of the factual situation.
Potter Stewart: Neither of those I suppose involves the death penalty?
Ronald M. George: That is correct.
Potter Stewart: What is the range of punishment allowable for the jury to fix in those two offenses?
Ronald M. George: In statutory rape, I believe it is one to fifty years.
Potter Stewart: One to fifty?
Ronald M. George: Fifty (50), yes. And in vehicular manslaughter, it’s lesser range. There is a choice in some offenses I would just guess about three or four that the jury is entrusted with whether to send the defendant to state prison or instead to county jail and then in those situations specified terms are provided by statute. Now, outlining briefly the factual context of this case because I think it’s very important to approach this case is a living reality and not as a in a factual vacuum not a metaphysical exercise here but we’re dealing with the rights of one individual and specific facts here. The offense itself, well, the victim was the owner of a little market which he and his wife operated. The death of the victim occurred during a holdup committed by petitioner and his co-defendant Mr. Wilkinson. Petitioner was 41 years of age. Wilkinson was 25. This was an unnecessary cold-blooded execution of Mr. Smetana the owner. He offered no threat, he was unarmed. He didn’t attempt to obtain a weapon. He was five foot, three inches tall, a hundred and thirty-five pounds, 52 years of age. He could have been robbed without a weapon. There was certainly no reason to kill this man. Petitioner -- there’s evidence showing that he told and Mrs. Dupree later on that he was the one who had killed Mr. Smetana. He also told the man who drove him up to Baker’s field that he had killed Mr. Smetana. It was McGautha’s gun I believe that was established is the one that fired the fatal shot although McGautha later indicate that he had loan the gun to Wilkinson had somehow -- that somehow exchanged weapons right before going in and of course the jury was entitled to weigh that evidence for what it was worth and what’s very significant was that the jury apparently stressed in its fixation of penalty who was the triggerman. What’s significant is on the issue of guilt, this was insignificant under California’s felony murder rule both men had committed first-degree murder and either or both could obtain the death penalty from the jury. However, after the jury brought in that verdict of guilt, it was then that they’ve -- on two occasions as to have read back to them evidence of witnesses on that precise question as to the admissions made by petitioner that he had shot the man and other evidence bearing on that question. The district attorney’s argument which was very calm and collected ended with the sentence, “Members of the jury, I urge you to waive this evidence as to who fired the fatal shot and to give the man who fired the fatal shot the death penalty.” Now furthermore, what do we have, we have two men with remarkably different backgrounds. Petitioner is a four-time loser. He committed theft, robbery by assault, robbery and a prior murder. By contrast, Wilkinson had no prior convictions. All we know is that he had some arrests which did not result in a conviction for a bad check account. And finally, petitioner at the trial refused to accept responsibility even as to the prior convictions which he admitted outside the presence of the jury. So we have a vivid contrast here. Now basically, respondent affirmatively believes that the death penalty and the procedures by which it’s imposed in California are constitutional but perhaps the best approach to the question in the case at bar is to consider the various objections which petitioner and his amici curiae have raised to the procedure. And these objections are basically three. They are that the absence of fixed standards prevents defendant from knowing to defend himself at the penalty proceedings. Secondly, that the jury is permitted to impose the death penalty for arbitrary reasons, dislike of the defendant’s expression on his face, the color of his eyes, the color of his skin, anything. Thirdly, that there is no meaningful review of this decision. It’s an arbitrary decision and that’s it. Well, an evaluation of these claims requires a brief outline of the special procedures provided under California exclusively for the conduct and review of penalty to determination in capital cases. First of all, even handed discretion is conferred upon the jury by Penal Code Section 190.1 and the standard instruction and counsel are allowed broadly way in their voir dire examination of the jurors. And this case is a very good illustration of that, there were specific mention by the jurors that they would not take into effect -- into account rather the race of the defendants, no bias, no personal preconceptions nothing that they would base their evidence on the matters before them. Secondly, there are special rules as far as the admissibility of evidence is concerned and this is in accordance with modern penological views to allow the jury to judge the offender and not merely the crime. So other offenses are admissible to show the defendants background but the prosecution must establish these other offenses beyond a reasonable doubt. Secondly, prosecution evidence is excluded where it’s merely inflammatory and has slight probative weight. There’ve even been cases excluding evidence that the victim died in an unusual pain where the California Supreme Court said, “Well, there’s nothing to indicate that the defendant intended this unusual pain to occur.” Thirdly, there is a very wide scope of evidence allowed in mitigation. The defendant can bring in and usually does bring in everything and anything. He can bring in that he was kind to his dog when he was a little boy at the age of five, that he was nice to his mother, that he had tough breaks all along the way, everything he wants.
Speaker: Does the record show along the jury was out of the sentence?
Ronald M. George: The jury was out a bit longer than they were on the guilt phase and I believe it was the better part of the day. But I’m not clear as to the exact amount of time but something in the neighborhood of that. Fourthly, in this respect the California Supreme Court has gone a way beyond what this Court held in the William’s case no hearsay or incompetent evidence is permitted on the issue of penalty, the prosecution can’t comment and say, “Joe Blow heard that the defendant did this and all that.” No, everything must be established by the same strict rules which govern the admission of evidence on the issue of guilt. Now the argument that too is strictly curtailed, the prosecution is precluded from mentioning such things as the fact that the defendant might be out on parole in seven years if he gets the life sentence .He is not allowed to argue all sorts of things about the fact that the death penalty is considered by some to be a deterrent, he is not allowed to argue that the trial court might reduce the punishment in its complete discretion nor that the State Supreme Court or the Governor might do that. This is not to dilute the jury sense of responsibility so none of that can be done. There is a special rule of prejudicial error any substantial error whatsoever requires reversal even where the California Supreme Court would affirm had that same error occurred at the guilt trial of a defendant. And finally, we have very meaningful review by the trial judge who has complete discretion which he often exercises to reduce the death sentence to life imprisonment and he need not find any reason, he need not find any error of law, he need not do anything, he can reweigh the evidence de novo and for his own reasons which need never be disclose reduce that death sentence to life and that is done.
Warren E. Burger: Is that done -- is that done sua sponte or only on application?
Ronald M. George: It can be done either way but I think it’s a fairly routine motion which is made. In California, there’s always a two or three-week gap between the return of the verdict and the imposition of sentence at which time routinely a motion for new trial and for reduction of punishment is made and as I cited in my brief, no figures kept on this but I was able to find two cases in one week in Los Angeles County this year wherein this was done, that sentence was reduced to life. And finally, the California Supreme Court, that review is certainly meaningful 69% of some 58 cases decided in the last three years capital cases have been reversed by that court on the automatic appeal that that court has evolve death penalty cases and the governor too has commuted approximately 40%. The ratio is run like that of the death sentences.
Speaker: The Supreme Court has power to reverse the imposition of the death sentence for a new penalty trial alone while leaving the finding of conviction --the verdict of conviction undisturbed. We know that as you told us from many cases we’ve seen here. Does it also have power, as you told us the trial judge has to simply reduce the sentence in that method?
Ronald M. George: It’s a different type of power. It cannot decide by its own self-imposed restriction that a different punishment would be more appropriate but what it can do is reduce the degree of the offense and I’ve cited I believe five recent cases in which the California Supreme Court has done this. They said, “Well, we’re not going to reweigh the evidence here as to whether or not this man should have receive the death penalty. However, we find that for this reason or other there wasn’t really enough evidence of premeditation. We reduce it to second degree and of course that automatically immunizes the defendant from the death sentence and under California law by the way a defendant can never under any circumstances contrary really to what this Court said in the Pierce case received a death sentence the second time around. Once he has a death sentence reduced to a lower degree, he can never get first-degree murder again.
Speaker: Yet the Supreme Court should reduce it to a lower degree of homicide, then is that the end of it or is there a new trial on penalty or a new trial on anything?
Ronald M. George: No, that is the end of it.
Speaker: It’s just that we find that the evidence on the guilt phase was not sufficient to show any, whatever it is, deliberation or premeditation and therefore the most thing he can guilty of is second-degree murder?
Ronald M. George: Yes.
Speaker: Affirm it and automatically then that carries the sentence of what one year to life or whatever it is?
Ronald M. George: That’s it.
Speaker: In the discretion of the Adult Authority and that’s the end of it and there’s no new -- there are no new proceedings in the trial court?
Ronald M. George: That is correct. That’s’ right and aside from reweighing evidence of premeditation in the case of People v. Anderson which we’ve cited there the Supreme Court said this was a murder of first degree by virtue of the felony committed and we find that there’s insufficient evidence to indicate that the defendant was engaged in a deviate sexual conduct and therefore the first-degree murder conviction can’t stand so we reduced it to second, so that is done too. And finally I’d like to indicate in this respect that --
Speaker: The defendant doesn’t get another shot under those circumstances for a new trial and the most he could be convicted now would be second-degree murder?
Ronald M. George: You mean when it’s reduced?
Speaker: Yes. When the Supreme Court said the evidence in this case doing it more strongly in favor of the prosecution simply does not show a case of first-degree murder. We therefore reduce it to the conviction to second-degree murder and affirm the conviction, is that what they do?
Ronald M. George: That is true as modified, it is affirmed but an important qualification is that there must affirmatively appear in the records sufficient evidence to uphold it on that second-degree theory. When there is any doubt as to that, the thing is reversed completely and sent back for a new trial, so that’s only done when let’s say the mental element clearly indicates malice aforethought but there’s some doubt as to whether it rises to the level of premeditation.
Warren E. Burger: When you say for a new trial, you mean on penalty only?
Ronald M. George: Well that would depend exactly what was involved in the case, it can be done either way.
Warren E. Burger: The basis of reversal you mean?
Ronald M. George: Yes, two questions are dealt with somewhat separately and sometimes only the penalty is reversed and sometimes both the guilt phase and the penalty.
Warren E. Burger: If it goes back for a new trial on penalty only, a new jury is whose panel then?
Ronald M. George: That’s’ correct and that usually means that the prosecution has to present much of its, if not all of its evidence on the question of guilt because the jury has of course to be informed of that as the main basis really for its determination whether the defendant is fit to live. Now, the death penalty is a very selective thing in California. There is the statistics that we’ve cited indicate it’s a small proportion of murders which become murders in the first degree. In turn, it’s a small proportion of first-degree murders which received the death penalty and the statistics I think clearly wipe out any semblance of basis for the argument that there’s a racial overtone to the death penalty as far as California is concerned. In fact, those statistics affirmatively show that if anything, it’s the Caucasians who have received more death sentences than racial minorities in proportion to their conviction of first-degree murder. Now, what I’d like to do is go back to these three basic objections now which have been raised and know how they bear out. It’s pretty clear that the defendant doesn’t have any trouble knowing how to defend himself. At the penalty phase, he is free to take anything he wishes and his background and the most heinous criminal is always able to come up with some story, some excuse, some explanation for the jury so this isn’t any problem. As far as the jury being permitted to impose the death penalty for arbitrary reasons, it is essential to note that the jury is free to do this under any system, a system of fixed standards they can still do it, they can bet told don’t consider his race, don’t consider the expression on his face and they can still come back and do that and there is no system devisable by man that can preclude that possibility. And in fact, the Royal Commission in Great Britain found that jurors were exercising their discretion in mandatory capital offenses where they felt that they didn’t like the death penalty for this particular individual, they would find the man not guilty or find him guilty of a lesser offense admittedly for that purpose to preclude imposition of the death penalty so there is no system that can get away from the possibility, humanly acceptable of some discretion. Now the standard which have been proposed by petitioner an amici curiae fixed standards this I think are rather unrealistic attempts to try and categorize every conceivable factual situation and this is impossible. But what’s significant is I was frankly even startled when I reviewed each of the 128 capital cases decided by the California Supreme Court in the last five years I could not find one that did not include at least one of the aggravating circumstances specified by the Model Penal Code such as more than one victim, a victim of police officer committed during the course of a rape or robbery, during an attempt to escape custody or particular heinousness. Everyone of these elements or rather one of them was always present and what’s almost amusing is that the fixed standards not only or they not workable or effective as far as their aim. They don’t escape the so called vice of vagueness or arbitrariness because since it’s impossible to make an exclusive list of all mitigating circumstances and this is what really can re-down to the disadvantage of the defendant or aggravating factors they leave a loophole they say or anything else that would particularly indicate cruel unusual cruelness or depravity. So it’s still open ended and I think that fixed standards would result in more death verdicts because jurors would feel inclined to say we’ll hear we find two or three of this things here. The man has a prior record to that he shot more than one victim. I guess this is in a proper case for the exercise of our mercy function. And how is an appellate court going to review something under these fixed standards? How are they going to decide? There’s enough evidence of aggravation or there isn’t enough of mitigation and there some of each and we’re going to reweigh this. This is, I think an impossible task to try to impose upon an appellate court and of course despite petitioner’s denials it’s very obvious that his arguments implicate judge sentencing not only in capital cases but judge sentencing in other criminal cases. It implicates the granting and denial of probation. It implicates the fixing of indeterminate terms by an administrative agency and it implicates parole proceedings and possibly even clemency although that may be an extra legal function. Now, this is basically what the fixed standard proposal means that the jury needs a list defining all the aggravating and mitigating factors and a formula for weighing them something like A+B+C-X and Y. This I would like to inquire how does this aid the juries function in determining as this Court said in Witherspoon whether a defendant is fit to live. This is not a matter for expertise. This is a matter of expressing the conscience of the community. The proposals that petitioner has advance would turn the fact-finding process. It would rather turn the fixing of punishment into a fact-finding process and this is totally foreign to the concept of punishment fixing even with special verdicts. This couldn’t properly be evaluated. And I think this is important that to be effective, fixed standards would have to impel a death verdict in some factual context. They would have to say if you find these aggravating circumstances in return a verdict of death, however they leave a loophole, they say despite aggravating circumstances even if there are no mitigating circumstances you can still return a verdict of life. Now this is probably just and proper but it shows that what these proposals for fixed standards really amount to in the last instance is a contention that there is a constitutionally impelled preference for life. And this by the backdoor and this is a different thing from saying that there is a permissible legislative preference for life. Where does the Constitution express a preference for life? It doesn’t and yet this would be the end-result. On the contrary, the Constitution and the Fifth Amendments speaks of capital offenses and recognize them. And if you don’t have this loophole which the proponents of fixed standards that may then you have unavoidable and desirable jury discretion and --
Speaker: Is there in the brief on the other side showing context statement is what standard they say a Constitution requires.
Ronald M. George: No there is not a specific one but I would like to read to you what petitioner advances as his suggestion for standards and inquire whether this would meet constitutional requirements objections to vagueness and I quote from petitioner’s brief and that stated page 27 of his brief in note 19. “Consideration of the choice of penalty could be standard around these objectives that is a penalty with a view of choosing that one which having regard to the circumstances of the case and the character and temperament of the defendant with mostly nearly further rather than frustrate them.” Now I inquire if this is any kind of standard, I don’t know what the jury would do in trying to follow this or an appellate court trying to review this.
Speaker: Is that nearest to a set of standards that have been proposed?
Ronald M. George: That is the nearest to accept cross-reference to the Model Penal Code set of factors which I’ve discussed. Now in a very short time remaining I would like to note this as Mr. Justice Blackmun stated California could abolish the degrees of murder and fix the penalty of death where there was a certain standard of aggravation consisting a premeditation or felony murder in the absence of mitigating circumstances which they could define as the statute does, the defendant being under 18 years age or else there could be a first-agree mandatory death sentence as Delaware has with the judges’ power to reduce it to life. A discretionary power when the jury recommends that. But the logical end result of petitioner’s arguments is this, either no death penalty or a mandatory death penalty and we submit that either one is undesirable. And in conclusion, I would like to state this first of all petitioner is no, in no position to raise this contentions which are not really applicable to his situation or himself these vague claims of arbitrariness, racial bias possibility and all that. The record affirmatively discloses a constitutional basis for this and as this Court said in Harris we shouldn’t permit the possibility that abuses occur to give sinister coloration to procedures that are basically reasonable. Now, finally we submit that jury discretion is an unavoidable feature of capital punishment as the Royal Commission indicated even where there is a mandatory death sentence. Aside from being unavoidable it is desirable from the standpoint of fairness as it enables the jury to best carry out its function of expressing the conscience of the community as Witherspoon sets out and not only is it desirable it is to the defendants advantage as we have indicated it would result in more death verdicts to have fixed standards. And as some of petitioners amici are ready to admit their theoretical and unrealistic campaign for fixed standards, artificial and arbitrarily fixed standards is only a device to abolish the death penalty at least with respect to the 550 men now under sentence of death and they admitted in Maxwell v. Bishop that they are ready to urge the very unconstitutionality of those fixed standards whose absence they now decry as constitutional error. So before accepting the theoretical arguments of petitioner and his amici that fixed standards are the only procedure that a state may enact for jury determination of penalty in capital cases, it must be remembered that over 550 dangerous persons who committed the worst of the most vicious crimes would be perhaps permanently immunized from receiving the death sentence despite to considered judgment of thousands of jurors and hundreds of judges that the interest of society demanded the extreme penalty.
Warren E. Burger: Thank you Mr. George. Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice and may it please the Court. At the invitation of the Court and with the assistance of Mr. Lacovara, we have tried to be as much help to the Court as possible in this difficult matter. Before I begin my argument I would like to make two emendations in the brief we have filed and the first is in the tabulation on page 130 showing the chronological development of the introduction of jury discretion into all of the statutes of all the states near the bottom of page 130. There’s a reference to the New York statute at which they’re dated 1937. Actually, the New York statute of 1937 applied only to felony murders. It was not until 1963 that New York extended jury discretion to all murders and then on page 138 where we list the federal statutes authorizing jury discretion they first to the federal statute there cited 18 U.S.C. 837 (b).
Potter Stewart: I beg your pardon, what page?
Erwin N. Griswold: Page 138. The first to the Federal Statute 18 U.S.C. 837 (b) is now been repealed since our brief was filed and they say this was not a lack of foresight on our part. It was repealed by the organize Crime Control Act of 1970 signed by the President on October 15 and by the same Act Section 844 of Title 18 was added and that statute gives the jury or the judge a power to fix the death penalty thus admitting the problem disclosed by the Jackson case. Because of the importance of these cases this case in the following one it’s especially important to bear in mind what is not involved here. These cases do not directly involve the general question of the validity of the death penalty although they are of course an indirect attack on that. In order to involve any question of the application of the death penalty in cases of rape at which was involved in Maxwell against Bishop. In both cases, the convictions before the Court were for the crime of murders. And finally, there is no suggestion on the record and no contention on behalf of the petitioners that there has been discrimination here on the basis of race either in the selection of the jury in the evidence presented or in the ruling as to charge of the trial court. In this case, the McGautha case the only question is whether the Constitution requires the legislatures of the States and Congress to spell out what are called standards so they’re never disclose which must be put before the jury as a part of the process by which they determine whether the penalty for the particular murder shall be death or life imprisonment. That question too is involved on the Crampton case and my argument here will be applicable to that case too. The Crampton case also involves the additional question as to whether the Constitution then requires a split or bifurcated trials separating the question of guilt from the question of penalty that is not involved here as California does provide a split trial and I will discuss that in the time allocated to me for argument in the Crampton case. Both of these questions --
Speaker: Mr. Solicitor General, excuse me, has California had a bifurcated trial beginning -- in getting a jury sentencing?
Erwin N. Griswold: No Mr. Justice, California has had the bifurcated trial since 1957 and jury discretion came into California in 1874 which was 83 years before. California was one of the relative early states to adopt jury discretion. Both of the questions in these two cases it seems to me fall within the realm of federal state relationships how far are these matters which fall within those areas which ought to be for determination by the several states or are they matters where the states have yielded up their power by joining the federal compact. And in another sense, the cases may be thought of as presenting a problem of separation of powers. How far these matters for determination by the legislative branch of the Government are both state or federal? Or how far are they matters for determination by the judiciary. In either aspect, the questions are of course appropriate for decision by this Court as the ultimate arbiter on federal constitutional questions for the nations. With respect to standards, there are certain things that are clear. In the first place, there is nothing specific in the Constitution relating to this matter. We have only the general provision of the Fifth Amendment adopted in 1790 that Congress shall not deprive any person of life, liberty or property without due process of law. A provision made applicable to the states by the Fourteenth Amendment in 1868. Perhaps, it may be said that the concept to due process of law does not provide standards for the guidance of the Courts on this question and is not nourish for that. However, it is clearly a very general concept and it would be at least surprising if it was found to have a meaning today which no one had ever conceive it had a doing the first 175 years or so of its existence. Of course, I’m familiar with Holmes statement that it’s revolving to have no better reason for a rule of law than so it was in the time of Henry II. But it is also equally true I think that it is at least surprising to find things in the Constitution today which no one dreamed were there as recently as five years ago and with which we live for 175 years without even raising the question. Theoretically, I supposed a requirement that there must be legislative standards for jury sentencing and murder cases would be equally applicable to jury sentencing in non-capital cases. And the fourth of our states have extensive jury sentencing in non-capital cases doesn’t particularly appeal to me but it also it seems to me to be the sort of thing which the States ought to be free to determine in their own way and it would apply indeed it seems to me the sentencing by a judge in capital and non-capital cases and as suggested by counsel for California to parole boards and I can’t find any theoretical reason why it wouldn’t be equally applicable to the action of the Governor or the President in extending Executive clemency. It is clear though that jury sentencing in non-capital cases predated the Constitution. There was no jury sentencing in capital cases at that time because they all carried the death penalty. As a matter of fact, the problem we have here is -- has a great deal of background behind it very early in our history. There were efforts to mitigate the harshness of the unvarying death penalty for serious crimes. It was on 1794 that Pennsylvania adopted the device of dividing murder in the two degrees one with the death penalty and the other covering murders where the extreme penalty was thought unwarranted. Over the years, this solution was adopted in nearly every state but it was soon found that the degree system though helpful was too rigid and mechanical and that indeed is a part of the problem with so-called standards. It could not take care of all the variations or new answers all the factors that might be relatively involved. There were pressures on the jury system and jury sometimes felt forced to reach verdicts of acquittal though guilt had been proved because they felt the penalty was too severe. An effort to meet this problem took the form of introduction of jury discretion as to the penalty. The first statute of this sort was in Tennessee in 1838, a 132 years ago. That statute provided no standards and no one of the statute subsequently enacted has undertaken to provide standards. Such statute has now been past in one form or another and every one of the 46 dates which have the death penalty and in relevant acts of Congress. Moreover, these statutes have been repeatedly before the courts and the courts including this Court had repeatedly sustained them often with illusions to the fact that the determination of the penalty lay within the complete discretion of the jury. The contention for standards in this field is I think essentially diversionary. It is really a part of an attack on the death penalty itself that is surely understandable and it’s a wholly appropriate matter for the consideration of the legislative authority. But beyond that, I think that the contention is essentially illusory. In one guise it would simply call for the proliferation of the definitions of the degrees of murder. Long experience is already shown that this is too rigid, too mechanical that it leads indeed to resolves that are harsher than the community as prepared to accept. If by standards it is meant that these are factors which the jury is to take into consideration and reaching its judgment. All of the evidence and experiences that this just what juries do not. There is no reason to think that property selected juries today do not approach it this task conscientious then thoroughly. Though their standards may not be wholly articulated, they are in fact the standards of the community and that is what the jury is for and careful inquiries have shown that this is what juries in fact do. Further specification in detail would probably not have much effect since juries as representatives of the community do in fact, taken to account the aggravating and mitigating circumstances that I included in the best know formulations. The chief, one of this is the list of aggravating and mitigating factors in the American Law Institutes draft of a Model Penal Code and none of which have been adopted in any state though many other provisions of that proposal have been adopted. This is a little like the problem of defining insanity and instructions to the jury. This is a great question on which much psychiatric, academic and judicial time and energy had been spent but has never seem to me that the exact definition made much difference and no matter what the formulation is, the jury knows that its task is to determine whether this particular defendant under the circumstances appearing in this case should be held to be responsible for what he has done in the light of general standards of the community. Moreover, the specification of these aggravating and mitigating circumstances would and all likelihood lead to harsher verdicts rather than more lenient ones, in so far as the specification of standards had any effect at all. Murder and first-degree murder is all we are talking about is inevitably a grisly business and any murder there will be circumstances within the aggravation list as the counsel for California has pointed out that was true and every one of a 128 murder cases in that state in the past five years. If and every murder trial, these aggravating circumstances are put before the jury as one of the matters which as a matter of law they are to take into consideration. The conscientious jury, recognizing the presence of this aggravation in this case will find it more difficult to reach a lenient verdict. We will have, I suspect, in many cases a request on behalf of defendants to omit all charge as to standards and to leave the matter to the judgment and discretion of the jury. Opposition to capital punishment is surely understandable. But as long as it is the law of a land, the mitigating provisions develop in the law over many years first, the establishment of degrees of murder and second, discretion in the jury as the people surrogate to fix the penalty of life imprisonment rather than at death should not be found to violate the due process clause. This is a resolution of an extraordinarily difficult problem which has been brought over many years with surprising unanimity at legislative and judicial. Our present solution has been devise with great care and thought by the very processes which may and all fairness be called, the due processes of law. Adoption of the petitioner’s contentions here is unwarranted both practically and theoretically and would in fact be illusory. The ultimate solution of this problem is a matter for the judgment of the representatives of the people in their legislatures.
Warren E. Burger: Thank you Mr. Solicitor General. Mr. Selvin.
Herman F. Selvin: Mr. Chief Justice and may it please the Court. Due to the difficulties of practicing laws on 3000 miles from the seat of the court and more importantly from the location of the brief printer, the reply brief on behalf of the petitioner was not available until this morning. In fact, I only received my copy this morning. I call the court’s attention to that fact because some, not all, of what I am about to say in reply is covered I think more grammatically in any event in that brief. It isn’t long --
Potter Stewart: Which brief? Assuming this brief? The reply brief?
Herman F. Selvin: The reply brief, yes.
Potter Stewart: Filed here in November 6?
Herman F. Selvin: I think that’s November 6. Yes, November 6, yes.
Potter Stewart: Yes.
Herman F. Selvin: But I just got my copy this morning. I didn’t -- Perhaps, I was confused by the fact that the (Inaudible) of time didn’t permit the printer to send proof to me. So, you may find a couple of typos and I’m sure you’ll find some awkwardness of language that might have been ironed out that I have approved it. In any event, there are two or three preliminary matters referred to by the State of California that I think I should mention. Whether this case will affect the faith of some 550 other prisoners is the fact that none of us I suppose can escape considering. In the cases of those 550 or very likely most of them, whether this case will affect them or not will depend pretty largely on the decision that is ultimately laid as to whether this case assuming a result favorable to the present petitioner would have retroactive effect. I mentioned that for only one reason, this is McGautha’s first time around. He is still on direct review of his original sentence. There is no question or element or retroactivity that needs to be decided so far as he is concerned. And I submit with all the earnestness that I can, that not withstanding the traditional processes by which a determination between two individuals or between the state and an individual may have an effect upon the law generally and have an effect upon the cases abolished cannot implicate McGautha’s constitutional right whatever they may be. It is no approval necessarily either by counsel or by the court of the crime of which McGautha was found guilty to determine that he is entitled to be found guilty and entitled to be sent to his doom if it all, only by the processes of law required by the Constitution of the United States. And that is what he sees here. Now, reference has been made by the Attorney General of California to the number of reversals that have emanated from the Supreme Court of California in death penalty cases. It’s true there have been a pretty large percentage of reversals, none of them for reasons involving anything that is at issue in this case. We have as Your Honors are certainly aware from reading California’s brief and reading our brief in this case. We have in California something called the Morris Rule which prohibits argument or evidence about what the Adult Authority may do in the way of paroling a life termer. Most, not most of those reversals with a very large part of them went off on that particular local rule of practice. A great many of them went of on Witherspoon grounds after this Court came down with Witherspoon and may I say they went all upon Witherspoon grounds somewhat grudgingly so far as the Supreme Court of California was concerned but nevertheless they went off from those. Nothing in that series of reversal has anything would ever to do with a proposition that the absence of standards nevertheless assures a defendant but the question of his penalty will be decided by the law rather than by the personal reactions of the jurors unguided and uncontrolled.
Speaker: Mr. Selvin, may I ask you a question. I assume you’ve given this case much thought, you show it by your brief and you told us. Do you have any suggestion as to standards anymore than that in your page 27, note 19?
Herman F. Selvin: No, I have nothing. I have nothing to add to that in the way of a suggestion for a minimal standard beyond the references to the work of the American Law Institute.
Speaker: It’s a question of language, isn’t it?
Herman F. Selvin: To a considerable extent perhaps it is. If not, well, he run and know not exactly of language except as language channels thought and consideration. And confines thought and consideration to the channels into which the law wants it to flow. And that I suggest that is the important thing about standards for a jury. Instead of living them completely at large, it tells them, “These are the things you want to be thinking about and deciding whether to put this man to death or to give him a life term just to say are told in the case of guilt. What do you want to be thinking about? Was there premeditation? Was there malice aforethought? What there appropriate identification and so on right down the line?
Speaker: But now when you get to standards, you would say, why is that applied?
Herman F. Selvin: I am sorry, I did not hear from last part.
Speaker: You were just telling about the judge in case of the murder. Premeditation, you said you would have told them, why is that this? What would you suggest that the judge could say to the jury why is that this?
Herman F. Selvin: Well, I would suggest something that perhaps that needs an elaboration or a specification of the general suggestion that I made on the footnote on page 27. I myself so far as my own thinking on the subject concern have somewhat taken by the approach of the American Law Institute which is much more specific and yet flexible enough than the approach that I have taken. And incidentally, the Commission to study the revision of the Federal Criminal Code as taken substantially the same kind of an approach although not exactly the same, they differ. The fact that those two Commissions, studying the problem from conscientious and scientific point of view arrived at a general propositions that was alike but different. It shows that this is not a delicate question of federal state relationships since the Solicitor has made it. The States will be left free within a very broad range to frame whatever standards they think fit the conscience and standards of their own particular community. All of the Constitution would require is minimal standard. Now, it’s true the Fourteenth Amendment says nothing. The Fourteenth says nothing about standards. May I suggest but it says nothing. It says nothing about a statute defining a crime being so certain that a person will know what it is that he can or cannot do. Doesn’t say anything but there’s no question if that’s what it means to saying anything --
Speaker: Mr. Selvin, although we’re pretty late in the argument and perhaps I’m obtuse, or I missed something but I still – it’s not at all clear to me what your concept is when you talk about standards? I just know an answer to my brother Black, you said repeated two or three times that the jury should be told, “This is what you ought to be thinking about in deciding whether or not to impose a death sentence.” Well, that’s one kind of standard. Another, quite different kind and it is different in kind, not in degree is that the jury must be told, “You may not sentence this man to death unless you find this and that and the other or unless you find the absence of this or that and the other.” Now, those are two quite different concepts of standards and I don’ frankly know which one you’re talking about?
Herman F. Selvin: Well, the latter is the American Law Institute approach and the approach of the Commission studying the revision of the Federal Criminal Code. It is the approach that I personally prefer because it is specific. It gives the jury something they can get their teeth into. It gives them something concretely that can be discuss in.
Speaker: And you don’t mean that the jury should just merely be told, “These are the kind of things you ought to be thinking about.”
Herman F. Selvin: Oh, no, no, not that at all without --
Speaker: Which is the -- would the Constitution on your submission be satisfied by either kind of standards?
Herman F. Selvin: I think as minimal standards, yes. If they can be general standard I would, while it’s a much less serious thing, I think you would find an analogy as to form in the decisions relating the delegation of legislative power to administrative agencies. The standard that must accompany such a delegation can be a very general and a very broad one. It doesn’t have to be specific and not to indicate to the body who its given the power what it is that the delegating body thinks they ought to be doing and how they ought to go about doing it now. I realized Solicitor General Propositions, if we want -- if a state wants the specific, it finds a model in the Model Penal Code. It can work with that. If it wants something that’s broad and general and has much flexibility, as much room for what has been called the conscience of the community as it is possible, still keeping the operation of that conscience confined within the broad boundaries. It can take the kind of approach that I have suggested.
Speaker: And you think either would satisfy the Fourteenth Amendment?
Herman F. Selvin: In my opinion they would. I think so.
Speaker: So, you’re not confining yourself to either one concept or the other.
Herman F. Selvin: No, not at all and I am happy at the opportunity to make that clear. We are not. I am not seeking a result that will impose upon the 50 States of this union, a uniform necessarily adoptable procedure with respect to standard. They’ve got as much scope there. It seems to me as they have been defining which constitute murder -- of murder in the first degree or the murder at varying degrees. And while I’m in that, may I interject that it has nothing really to do with what I have just been saying except with the use of murder suggested to me. It’s true that Mr. McGautha is a four-time loser in the language of Mr. George. All of those four convictions were in the State of Texas beginning I think when he had attained the ripe age of 17. One of those was for the crime that in Texas it is called murder without malice. Now, murder without malice is a somewhat pejorative name for what elsewhere is called manslaughter. Now, I am not saying that that makes a lighter, trivial offense, of course it doesn’t. But it is still not quite the serious thing that is implied by the word murder without any explanation or qualification. Now, my reason --
Speaker: How old is he?
Herman F. Selvin: At the time of that?
Speaker: Yes.
Herman F. Selvin: I don’t --
Speaker: I mean at the time he committed this crime.
Herman F. Selvin: This crime, I think he was in his early 40’s, Your Honor.
Speaker: What?
Herman F. Selvin: Early 40’s, 41 I believe, the evidence says 41. He had been in California, I think just a few years before that time having spent about half of the time from -- he became 17 years of age until he moved to California having spent about half of that time in Texas Penitentiary. He was convicted four times. He did serve in the Armed Forces in between apparently without trouble. Now, having spent perhaps too much time on what my personal ideas are about what the jury should be told in respect to standards. I would like to read very briefly what McGautha’s jury was told and whatever California jury in this kind of a case is told particularly because it disposes I submit of California’s argument that the penalty phase of the trial is so fair and so scrupulously guarded, that anything that the defendant wants to put before the jury can go in and the jury will know what it is they can do with that evidence. And this is what the jury has told. I am not going to read the whole long instruction but the parts that go really to the question of standard. “It is the law of the State,” page 222 of the appendix Your Honor. “It is the law of the State that every person guilty of murder in the first degree shall suffer death or confinement in the state imprison for life at the discretion of the jury.” And then it says a few --choose one or the other you may say so and then it goes on. Notwithstanding facts isn’t proved in mitigation or aggravation in determining which punishment shall be inflicted, you are entirely free to act according to your role of judgment, conscience and absolute discretion. That verdict must express the individual opinion of each juror. They don’t even have to agree on the reasons why they are going to give death or life as the case maybe.
Warren E. Burger: Do you think that should be required?
Herman F. Selvin: No, but it’s an indication of the extent to which the procedure is completely uncontrolled or unconfined by law, by standards, by criteria as to what the law says are the determinants that go into making a decision, a judicial decision. No, I don’t say that they have to agree on all reasons.
Warren E. Burger: Jury might disagree on the reasons for finding a verdict if not guilty or unless charge, isn’t that true?
Herman F. Selvin: They could, yes, except if they disagreed on whether there was or was not premeditation for instance actually having regard with the definition of murder in California that might not be a valid verdict. There, they all have to agree that there was premeditation. And they all have to agree that there was malice and they all have to agree that it was the defendant who did it. While that charge goes on and this is the important thing because despite all of these evidence, despite everything that goes in, this is what they are told about the extent to which they can deal with the situation on their own. Now, beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury in selection of a penalty. But rather commits the whole matter of determining which of the penalties should be fixed to the judgment, conscience, and absolute discretion of a jury. In the determination of that matter if the jury does agree it must be unanimous. And that’s what they’re told. Despite everything that may have been put before them. It is a matter entirely of their judgment conscience and absolute discretion. Now, --
Warren E. Burger: But they are affirmatively told, are they not that they make this decision on all the evidence that they have heard?
Herman F. Selvin: They are told to consider all the evidence, yes, Your Honor.
Warren E. Burger: And the defendant -- would you say that the defendant has any real limits on what he can put before the jury?
Herman F. Selvin: Well, there are some. They are not as broad -- I mean they are not as narrow as perhaps might be the case. I think the general rule in California is that anything may be put before the jury that it would be put before the judge if he were taking evidence for the purpose of determining what the sentence should be. And that’s, [Voice Overlap] that’s very broad. But there are limits and one of the most important limits for instance is the limit imposed by the Morris rule. I should think that a very relevant circumstance in determining whether one should have life or death is to consider the possibilities that a life term might not be a life term, that the man even though not rehabilitated might be out on the street sometime within a comparatively short period of years. And yet that’s one of the importance that they can’t be told, they can’t be evidence about it and it can’t be argued.
Warren E. Burger: You don’t suggest that that would be helpful to a defendant in this situation, do you?
Herman F. Selvin: Well --
Warren E. Burger: He would have to be told that he might -- have the jury told that he might be out on the street very soon?
Herman F. Selvin: Well, no but on the other hand if he can be told what the parole system is like and how difficult it is to get out on the street under an Adult Authority performing his function, it might be helpful. If the jury were worried as California suggest was the case here. If the jury were worrying about turning a murder loose on the streets, they might be very well want to know how effective or ineffective as the case may be the parole system was. Now, it could be helpful to the defendant, it could be harmful to him. The essential point from the standpoint of the Constitution is that the jury have been given something relevant and something that under a proper set of standards they would be told. It was a factor to take into account and how to take it into account.
Speaker: Is that included in the ALI proposed standards?
Herman F. Selvin: No, I don’t think so.
Speaker: So, it’s not a necessary part of the set of standards.
Herman F. Selvin: No, nothing that I suggest is a necessary part of any set of standards beyond the fact that it should set some kind of a basis, some kind of a propositional rule that would govern the deliberation.
Thurgood Marshall: Well Mr. Selvin, am I correct when Mr. George said the State cannot show that? That it is mainly getting on a parole?
Herman F. Selvin: No not anymore, not since Morris. They could have at one time and that’s how the problem arose.
Thurgood Marshall: As in this case they couldn’t do it?
Herman F. Selvin: No, the jury inquired about the possibility of parole and the judge then gave them the so called Morris instruction which was prepared by the Supreme Court in the Morris opinion to be given in that situation. What that instruction comes down to is that yes, he can be paroled but it’s really none of your concern in fixing sentence. And it says so in this --
Thurgood Marshall: Are you saying you want the rights of a petitioner to put that in?
Herman F. Selvin: Well, what I want is the right to have standard, leaving it to the legislation to determine what those standards should be.
Thurgood Marshall: I wasn’t worried about just one standard you suggested which I don’t understand how it would benefit the petitioner?
Herman F. Selvin: It may not benefit the petitioner. I mentioned it to show that the rules of evidence aren’t completely down so far as the penalty hearing is concerned. There are limits up to which that the prosecution can not exceed. There are limits that the defendant can not exceed.
Speaker: May I, excuse -- did the defendant ask any instructions?
Herman F. Selvin: No. No, Your Honor. It would have been an idle act for and to have done so because in the health case which I have cited in the brief and in the case has been decided since. Instructions that would have told the jury they could do take this into account and they should give such significance to these various things have been held properly refused. It would have been a completely idle act to have asked.
Speaker: You mean that you can’t ask any instructions of any kind?
Herman F. Selvin: Oh, they could ask, yes. They can ask but when they start going beyond the kind of an instruction that I have read and start specifying specific thing specific things bearing upon aggravation or mitigation as the case may be on litigation of courts when it comes to defense, our Supreme Court has consistently ruled that that’s proper. It was not error. The refusals instructions because as they said in the Holt case, the instruction that I read to, he was given and that’s enough and that’s all that they’re entitled to.
Speaker: Well, except you gone a little far back. It really begins in the bottom of page 221 and the result at 222 and most of page 223 and does reflect does it not particularly on top of 222, the cases decided by your Supreme Court which the States have mentioned at least do constitute standards. In this part of the trial, a law does not forbid you from being influenced by pity for the defendants and you may be governed by merely sentiments and sympathy for the defendants in arriving at a proper penalty in this case. However, the law does forbid you from being governed by mere conjecture, prejudice, public opinion, or public feeling and so on. Each one of those expressions in the court’s instructions reflect does it not a decided case by your Supreme Court. And to that extent, it reflects a standard if you want to, the statute states and that’s what they are.
Herman F. Selvin: In the sense, they are judicially created limitations on the extent to which the jury can go. Yes, there’s no question about that. That jury is adjourned completely. Let say, they are given that proprietary charge, don’t be arbitrary, don’t be influence by public opinion. I’m a little of a lost how to reconcile but don’t be influenced by public opinion or public feeling and the conscience of the community that they are suppose to represent and to which they are supposed to give force when they are ready. I see my time is up Your Honors. I thank you.
Warren E. Burger: Thank you Mr. Selvin. You acted at the appointment of the Court and at our request and we thank you for your assistance, not only to the petitioner but your assistance to the Court. Thank you Mr. Solicitor General, Mr. Attorney General. The case is submitted.