Baldwin v. Alabama

PETITIONER:Baldwin
RESPONDENT:Alabama
LOCATION:United States District Court House

DOCKET NO.: 84-5743
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Alabama

CITATION: 472 US 372 (1985)
ARGUED: Mar 27, 1985
DECIDED: Jun 17, 1985

ADVOCATES:
Edward E. Carnes – on behalf of Respondent
Edward Earl Carnes – on behalf of respondent
John L. Carroll – on behalf of Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – March 27, 1985 in Baldwin v. Alabama

Warren E. Burger:

We’ll hear arguments next in Baldwin against Alabama.

Mr. Carroll, I think you may proceed whenever you’re ready.

John L. Carroll:

Thank you, Mr. Chief Justice, and may it please the Court:

The Petitioner in this case, Brian Keith Baldwin, is an Alabama death row inmate who was tried, convicted, and sentenced to death under the 1975 Alabama death penalty law that was the subject of this Court’s opinion.

In Beck versus Alabama, this Court dealt with what came to be known as the lesser included offense provision, that is, the provision of this statute which forbade the jury from returning a verdict which would have comported with a lesser included offense.

Today we are before this Court to discuss the sentencing provisions of that particular statute.

By way of information, it would be helpful at this point in time to review exactly what the statute says on its face.

A jury, upon deciding that a defendant is guilty of capital murder, under this Alabama law is mandatorily required to sentence that defendant to death.

There is a mistrial provision which the State relied on in great measure to save the defect this Court identified in Beck, which allows a jury that cannot agree on a verdict of guilt to return a verdict of mistrial, and also allows a jury who cannot agree on a sentence of death to return a verdict of mistrial.

Once the jury has reached this decision that the State has proven beyond a reasonable doubt that a defendant is guilty of capital murder, it mandatorily sentences that defendant to death.

The trial then holds a sentencing hearing, wherein he decides what the sentence ought to be.

And the statute specifically requires the trial judge to weigh, along with the aggravating and mitigating circumstances, this mandatorily imposed standardless jury sentence of death, and therein Petitioner contends lies the constitutional flaw with the Alabama sentencing scheme.

Harry A. Blackmun:

Mr. Carroll, has the scheme been changed since that in effect at the time this all took place?

John L. Carroll:

It has, Justice Blackmun.

The scheme no longer exists and has not been utilized by the State of Alabama since 1980.

Following the decision of this Court in Beck v. Alabama, the Supreme Court of Alabama rewrote this law in a case called Beck versus the State.

What the rewritten law says is that there are now lesser included offenses in capital trials under the Beck procedure, that the sentencing authority is the jury, that the jury hears evidence of aggravation and mitigation separate and apart from its decision on the issue of guilt.

And then, should the jury return a verdict of death in a case, that verdict is then again reviewed by the trial judge.

If the jury returns a verdict of life imprisonment without parole, that is the sentence which is imposed.

So the State of Alabama rewrote the procedure to comport essentially with Georgia and Florida, and then in 1981 the Alabama legislature enacted an entirely new death penalty scheme, again which incorporated in the main the procedures of Florida and Georgia.

Again, the guilt-innocence determination is separate from the punishment determination, and it is a statute in line with the decisions of this Court.

Warren E. Burger:

Let me back up a little bit.

When the jury is considering the sentencing only, the punishment, what are the options?

John L. Carroll:

The options that the jury has are, they may, if they find that a defendant is guilty beyond a reasonable doubt of capital murder, then they must mandatorily sentence the defendant to death.

Warren E. Burger:

In a separate proceeding?

John L. Carroll:

In the same proceeding, Mr. Chief Justice.

Now we’re talking about the old law, the law that is before this Court.

The jury decides sentence and guilt in the same proceeding, and that was again one of the defects that this Court identified in Beck, although it did not specifically address the constitutionality of that provision.

That provision has since been changed by both the legislature and the Alabama Supreme Court to comport with the decisions which require guilt, innocence, and punishment to be determined in separate proceedings.

So Mr. Justice Blackmun is exactly correct; this procedure simply does not exist any more and has not been in existence since December of 1980, when the Alabama Supreme Court issued its opinion in Beck versus the State.

John L. Carroll:

The State’s response to what the Petitioner contends is obvious unconstitutionality is in essence a four-pronged argument.

The first prong of the argument, the State tries to compare the sentencing process under this statute with the sentencing processes under the Georgia, Texas, and Florida schemes by saying, well, the sentencing authority is required to weigh aggravating and mitigating circumstances, the sentencing authority is required to sentence to death if the aggravating outweighs the mitigating.

All those things are true, but what that argument ignores is, this is not the Georgia, Florida, or Texas statute, because none of those statutes require the sentencing judge, as part of the process for determining whether a defendant lives or dies, to take into account a standardless, unguidelined and arbitrary jury sentence of death as a factor in making that life or death decision.

So plainly the argument that this is similar to other statutes fails, because it plainly is not.

Byron R. White:

Well, the jury doesn’t have any standards to apply in imposing the death penalty.

It’s told, if you find the defendant guilty you impose it; you have no discretion whatsoever.

John L. Carroll:

That’s exactly correct.

Byron R. White:

That’s not standardless.

John L. Carroll:

Well, it’s standardless in the sense–

Byron R. White:

That’s about as clear a standard as I can imagine.

If you find him guilty, you enter a sentence of death.

It’s a sort of a ministerial act.

John L. Carroll:

–Well, it is but then again it isn’t, because it suffers from the flaws that mandatory death sentences have suffered from in the past when this Court–

Warren E. Burger:

But then the judge has another crack at it, doesn’t he?

John L. Carroll:

–The judge does indeed have another crack at it, Mr. Chief Justice.

Harry A. Blackmun:

And the judge knows the system.

He knows why the verdict has been brought in.

The jury has to bring it.

John L. Carroll:

Well, he does, but then again he doesn’t.

You’re referring to what I’ve identified as the third argument that the State presents, and that is: Look, everybody ignores this statute.

The judge knows that it’s a mandatory death sentence, so therefore he doesn’t take it into account.

And I think, quite simply, that that argument is just flawed.

What the argument of the State in essence is, we’ve got this statute that everybody ignores and therefore you should hold it to be constitutional.

Let’s take for example, suppose it were not a mandatory jury sentence of death that was at issue, but suppose the Alabama statute said, in sentencing a defendant to death the trial court must take into account the defendant’s race.

If you take the State’s argument to its logical conclusion, all the State would then have to do is come before this Court and say: Hey, look, the trial judges in Alabama know that they really shouldn’t take into account that race of the defendant, so you should uphold that kind of a statute because they really don’t follow the statute.

The State’s argument is an invitation for this Court to uphold the constitutionality of this statute on the grounds that everybody ignores it.

Harry A. Blackmun:

Well, I think we all recognize that it’s a most curious statute, the product of some legislator’s convoluted mind, I would think.

John L. Carroll:

I think you are being kind when you call it curious, Mr. Justice Blackmun.

It is indeed a one of a kind.

No other state has ever enacted one like it.

John L. Carroll:

No other state every will.

But I think it’s a dangerous precedent to set if we say that, because everybody ignores it, it’s constitutional.

I think it’s further compounded by the fact that there’s no indication that everybody ignores it.

In fact, the specific legislative mandate requires that the judge take the jury sentence of death into account in weighing the aggravating and mitigating circumstances.

Another argument that the State presents with this Court is an argument that there has been a reinterpretation of this statute.

The State has artfully, ten years after the statute was enacted, come up with some reasons why this mandatory jury sentence of death, which is clearly aberrational, is in the sentencing phase.

And it argues two points.

It says it serves a function in that it conveys into the sentencing stage the jury’s fact-finding that an aggravating circumstance exists; and it also says, the State, expresses legislative policy that death is appropriate unless there are mitigating circumstances to outweigh.

Well, the answer to that argument is plainly, you don’t need a mandatory jury sentence of death to do that.

Under Alabama law, a finding of guilt conveys to the sentencing stage the jury’s fact finding that an aggravating circumstance exists.

So this sentence of death exists over and above that particular function, and we can only assume if the legislature put this in the statute that they meant that it ought to have some effect.

It’s not necessary to do what the State says it does.

A simple finding of guilt would do the same thing.

And that’s exactly the way the statute operates now.

A finding of guilt allows a death penalty case to get into the sentencing phase, so that the jury can then decide whether the punishment ought to be life or death.

The second argument is the same, that it expresses this legislative policy that death is the appropriate punishment where an aggravating circumstance exists, unless the trial judge finds the mitigating circumstances outweigh it.

And again, the mandatory jury sentence of death is not necessary to perform that function.

Again, because that language is not necessary to perform any function under the statute, we have to assume that the legislature intended that the trial judge do exactly what the statute requires him to do, take into account the mandatory jury sentence of death.

Had the legislature not wanted the mandatory statute… the mandatory death sentence to mean something, they would not have included it in the statute.

And the fact that they included it in the statute indicates that we cannot ignore the fact that it is there.

Again, it is the height of irony to say that this Court should uphold the constitutionality of this statute on the basis of the fact that everybody ignores its existence.

Finally, the Appellant… I’m sorry.

Finally, the Respondent raises the issue concerning the appellate review process under the statute and, coupled with that, raises a harmless error kind of argument.

The appellate review process under this particular statute is, as the State describes it, very elaborate.

The State goes into great detail talking about this independent weighing of the aggravating and mitigating circumstances that exist.

It goes on in great detail about how the appellate courts perform their function under this statute.

But when you sift through all of this verbiage, you come down to the hard, cold fact that the Alabama appellate courts in their history in construing not only this death penalty statute but the ones that have come after it have set aside one death sentence based on this independent weighing of aggravating and mitigating, and that death sentence was imposed on a 20 year old retarded black man who was a non-trigger man in the case, who had an IQ of 45.

I think the fact that he was sentenced to death under this statute indicates how the statute operates and the importance of the fact that the trial judge takes into account this mandatory jury sentence of death.

Again–

Warren E. Burger:

Excuse me, counsel.

Warren E. Burger:

When you said the appellant here was not the trigger man… is that what you said?

John L. Carroll:

–No.

If I did say that, Mr. Chief Justice, I misspoke.

I was referring to the one case that the Alabama appellate courts have set aside a death sentence in, which is a case styled Lewis versus the State, where the individual in that case I believe was the non-trigger man and had an IQ of 45.

Again, though, the existence or non-existence of an appellate weighing process is not the answer to the constitutional dilemma that this particular statute poses, because this is an unconstitutional sentencing factor, and it is a sentencing factor upon which a sentencing authority may not take evidence because of its unconstitutionality.

Consequently, it is the kind of factor the inclusion of which requires automatic reversal.

The existence or non-existence of an independent appellate weighing process cannot cure this kind of a constitutional defect.

And again, if I could analogize to the situation involving a defendant’s race.

Let us say again that if, instead of the requirement that the trial judge take into account the mandatory jury sentence of death, the Alabama statute said he must take into account the fact that a defendant is black, clearly this Court would not say that the appellate weighing process would cure that constitutional defect and allow that kind of a statute to be continued to be used by the State of Alabama.

There’s a final argument that the State makes, and that argument’s embodied in Appendix A of its brief, where it lists the remaining persons in the State of Alabama who are affected by that statute.

What it is is an invitation to this Court to ignore this statute’s constitutionality because the only people left that are affected by it are people who have committed seriously bad crimes.

But that’s not something that this Court has ever done.

The fact that these people have committed serious crimes should not override the fact that all of these people have been sentenced to death under a process that is unconstitutional, a process that is fatally flawed by the very nature of the Alabama death penalty law.

Again, the State asks you to ignore the unconstitutionality of this statute because the remaining individuals left who are affected by it are people who have committed serious crimes.

In conclusion, and I’ll reserve the rest of the time for rebuttal, we are not asking this Court to tell Brian Keith Baldwin that he can go out on the street again.

We’re not asking you to release Brian Keith Baldwin.

What we are simply asking you is to say that if the State of Alabama wants to have a death sentence imposed in Brian Keith Bladwin, that they do so in a manner that comports with the federal Constitution, and that the present manner in which his death sentence was obtained was pursuant to an unconstitutional state statute which ought to be reversed.

Warren E. Burger:

But it is a two-step process, is it not?

John L. Carroll:

It is indeed a two-step process, Mr. Chief Justice.

Our argument is and was that there is a factor included in the second step of the process which is unconstitutional, therefore making the sentencing scheme unconstitutional.

Warren E. Burger:

You’d better give that to me again, just to be sure I have it.

John L. Carroll:

The statute requires the sentencing judge to take into account the mandatory jury sentence of death.

Warren E. Burger:

That means he can accept it or reject it, doesn’t it?

John L. Carroll:

But in the process of accepting it, he is required, in order to impose a death sentence, he is required to weigh the aggravating and the mitigating circumstances, like every other statute in the country.

But the Alabama statute includes a requirement that he weigh the mandatory jury sentence of death, which we contend is an unconstitutional factor.

Hence, the statute injects into the weighing process a factor that is unconstitutional, that has no place in it, that’s irrelevant, that’s immaterial for sentencing; and that that makes the statute unconstitutional.

Warren E. Burger:

What if the statute provided that the judge could ignore a jury recommendation of a life sentence, rather than a death sentence?

Would you think that would be more unconstitutional than this one?

John L. Carroll:

No, I think the Court’s clearly upheld statutes similar to that.

But those statutes aren’t this statute.

John L. Carroll:

This isn’t the Florida statute.

The Florida statute doesn’t require the judge to take into account as part of his sentencing decision a standardless… I’m sorry… an unguidelined sentence of death.

I almost said it again.

Warren E. Burger:

Justice White pointed out that the standards are pretty strict here.

John L. Carroll:

Indeed he did, and as soon as that word came out of my mouth I regretted it.

Byron R. White:

Also, it seems to me that if the jury is just automatically required to impose the death sentence and the judge knows it, to tell him to take into consideration that the jury imposed the death sentence is like saying take into consideration the fact that the jury found him guilty.

John L. Carroll:

I think that that line of reasoning ignores two things: both the flaws of the mandatory sentencing scheme and also the fact that the jury may or may not return this mistrial, which is an option available to them under the statute.

And we don’t know, quite frankly, how the trial judge views the jury’s ability to mistry.

And the problem with this case from the State’s standpoint is, we don’t know exactly what the trial judge thinks about this statute or what he does.

We knew on the face of it he’s required to take into account the mandatory sentence.

John Paul Stevens:

Mr. Carroll, may I ask a question.

Supposing you have a man found guilty.

The jury must say sentence him to death.

Then you have a separate sentencing hearing before the judge, and the prosecutor says, I’m not going to offer anything else, and the defendant offers nothing else.

Is it not true that the judge must then sentence him to death?

John L. Carroll:

The judge may conduct an independent analysis into whether or not the aggravating circumstances the jury found exist.

So arguably he could find that the jury’s verdict of beyond a reasonable doubt did not… that there was no aggravating circumstance present.

So in those circumstances he would not be required to sentence the defendant to death.

In fact, in order to sentence the defendant to death he must, as part of his sentencing order, find that an aggravating circumstance is present.

Byron R. White:

And that it outweighs any mitigating circumstances.

John L. Carroll:

And that it outweighs any mitigating circumstances.

Byron R. White:

And there can’t be a death sentence unless there’s an aggravating circumstance proved.

John L. Carroll:

That’s true.

Byron R. White:

And found by the jury.

John L. Carroll:

That’s also true.

Byron R. White:

Beyond a reasonable doubt.

John L. Carroll:

Beyond a reasonable doubt.

Warren E. Burger:

Then if the judge thinks the jury went off on the wrong tangent, he can correct that error, can’t he?

John L. Carroll:

He has the ability to correct that error, that’s correct, Mr. Chief Justice.

But again, to rehash the argument, he’s still required, in sentencing somebody to death, to take into account that jury verdict.

Warren E. Burger:

But if he thinks they’re dead wrong, how much weight do you suppose the judge will give to it?

John L. Carroll:

If he thinks they’re dead wrong, then arguably he would have the ability to set aside that sentence.

But I think the comment that this Court made in the Beck opinion and also the statistics as to how the statute operates bears out the fact that that rarely, if ever, happens.

Thank you.

Edward Earl Carnes:

Mr. Chief Justice–

Warren E. Burger:

Mr. Carnes.

Edward Earl Carnes:

Mr. Chief Justice and may it please the Court:

The issue in this case is whether this statute as a whole, as interpreted and applied by the trial court in this case and by the Alabama appellate courts in this and other cases, provides sufficient reliability in the sentencing process.

The issue is not whether the statute as interpreted by my friend is constitutional or whether the statute as this Court might have interpreted it on initial review is constitutional, or even whether the statute as written in its plain language is constitutional.

One of the most fundamental propositions of this Court’s jurisprudence is it must take state statutes as they have been interpreted by state courts, and you held that in Proffitt v. Florida.

And indeed, Jurek v. Texas is the best proof of that, because the Texas statute as written did not provide for any mitigating circumstances.

Indeed, the plain language precluded that.

However, the Texas court, the Court of Criminal Appeals, interpreted mitigating circumstances into the statute, and accordingly this Court upheld it.

The Alabama Supreme Court has not interpreted the statute the way Mr. Carroll does, nor did the trial court.

The State is not arguing that everybody ignores this statute, and it is not asking this court to set a precedent that if everybody ignores a constitutional defect it is okay.

Instead, the State is saying, asking this Court to reaffirm its precedents that statutes have to be judged by this Court as they’ve been interpreted and applied by the trial courts and the appellate courts of the State.

One of the most fundamental disagreements that Mr. Carroll and I have is his statement that under the statute the jury mandatorily sentences the defendant to death.

The Alabama appellate courts have repeatedly held that what the jury does is not sentence the defendant to death.

Of course, the State has no quarrel with the proposition that if the jury exercises sentencing power then it should be permitted to consider mitigating circumstances and should be given guidelines.

But the jury under this statute is not given any guidelines because it has no sentencing power.

The jury is not permitted to consider mitigating circumstances because it’s not a sentencing authority.

The jury is neither forced to nor permitted to make a sentencing decision.

It does not say what the sentence should be.

Instead, the sole decision the jury makes is whether or not the defendant is guilty of the aggravated homicide capital offense with the serious aggravating circumstance defined into it which he is charged in the indictment with.

If the jury finds the defendant guilty, then it is true that, as a matter of law and automatically, the jury must return a verdict form containing formal language “fixing the punishment at death”.

But every time the Alabama appellate courts have looked at this procedure they have said, that’s not a sentence, that is just a necessary consequence of the guilt verdict, and what it means is that the jury has found him guilty.

Mr. Carroll argues, and quite properly so, that one of the most important things is how the trial court interpreted the statute, because I will be candid with this Court: All the decisions we cite in our brief save one came out after the trial court acted in this.

But this Court need not speculate how the trial court interpreted it, because the sentencing order the trial court entered on page 18 of the joint appendix indicates that the trial court, after finding the aggravating and mitigating circumstances, the trial court said:

“The court having considered the aggravating circumstances and the mitigating circumstances, and after weighing the aggravating and mitigating circumstances, it is the judgment of the court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by this jury should be and is hereby accepted. “

As the Alabama Supreme Court explained in this very case, saying that the death penalty as fixed by the jury is hereby accepted or rejected if it’s a life without parole sentence, it simply necessarily follows as a matter of form and as a matter of semantics from the fact that the decision the judge enters either agrees with or disagrees with the verdict form language, not with any sentence imposed by the jury, because the jury doesn’t impose one.

John Paul Stevens:

May I ask this one question.

Your brief’s been very helpful in this case.

If the jury finds that there was an aggravating circumstance… in this case I guess it was robbery, at least it was one of them, in connection with the crime… and therefore it was appropriate to return, then they must return the death sentence, then if the judge at the sentencing hearing… whether you call it a sentence or not, that’s what the verdict form says.

But then the judge at the sentencing hearing, first he has to find out whether there was in fact that aggravating circumstance.

And say he finds it was.

There’s no doubt about the fact robbery was present.

And then assume there’s nothing else put into the record except that finding.

Is it not true that on those circumstances as a matter of law he must impose the death sentence?

Edward Earl Carnes:

It depends on whether there is any mitigating circumstance established either by the evidence at the guilt stage or by the evidence at sentence stage.

Now, of course there is not an inquiry into mitigating circumstance at the guilt stage, but sometimes it could come in anyway.

For example, if there was an insanity defense and the defendant didn’t quite make the insanity defense, but showed he was emotionally disturbed at the guilt stage, the judge could consider that as a mitigating circumstance.

However, if there are no mitigating circumstances, statutory or nonstatutory in the broadest sense of the term, then the legislature has directed, in part through this verdict form language, that the sentence should be and must be death.

And that’s one of the functions of the verdict form.

It conveys from the legislature to the judge… the jury is merely the messenger, merely performs a ministerial duty… that the penalty should be death if the judge agrees there’s a statutory aggravating circumstance and if there are no mitigating circumstances, which we see as substantively… not procedurally, but substantively… indistinguishable from the Florida statute that this Court upheld in Proffitt.

Indeed, Justice White’s opinion points out in Proffitt that the Florida statute had been interpreted… it must be accepted as interpreted… as requiring a death sentence if there was an aggravating circumstance not outweighed by mitigating.

That’s not a unique provision there.

That substantive judgment, 15 state statutes embody it.

And also, it really only makes common sense, because an aggravating circumstance, as you all have limited them in Zant v. Stephens, has to be something that reasonably justifies the imposition of the death sentence and sets this defendant apart from all of the others.

If you’ve got that proven beyond a reasonable doubt, the jury and the judge both agree that that was proven, and there is no reason under Lockett, as broadly applied in this and other cases, there is no reason not to impose the death penalty–

Byron R. White:

Well, were there mitigating circumstances in this case?

Edward Earl Carnes:

–There was only one mitigating circumstance.

Byron R. White:

Well, but nevertheless there was one and the judge weighed it?

Edward Earl Carnes:

Yes, Your Honor.

Byron R. White:

So we’re not dealing with a case where there is no mitigating circumstance?

Edward Earl Carnes:

No, Your Honor, we are not.

In fact, as in most cases–

Byron R. White:

And the judge here would not have been required to impose the death penalty.

Edward Earl Carnes:

–No, Your Honor, he certainly was not.

And the weighing process… and the Alabama Supreme Court made this clear in the Cook case and other cases… the weighing process is not a numerical tally.

There are no assigned weights, as in Florida.

Edward Earl Carnes:

Instead, once there is a mitigating circumstance and an aggravating circumstance, what the statute requires is a guided, individualized determination in the judge’s discretion, but with guidance, as to whether the death penalty should be imposed or not.

And the judge makes that decision.

The other function that the verdict form language serves in addition–

Thurgood Marshall:

Was that also considered by the jury?

Edward Earl Carnes:

–No, Your Honor, the jury does not make any sentencing determination and does not consider–

Thurgood Marshall:

The judge… the jury didn’t consider the mitigating circumstances?

Edward Earl Carnes:

–Absolutely not, Your Honor.

Thurgood Marshall:

And when the jury sentenced to death, that was it.

Edward Earl Carnes:

No, Your Honor.

When the jury returned a verdict form containing this language, that was the end of the guilt stage, and that proved only that the jury had found a serious aggravating circumstance set out in the indictment beyond a reasonable doubt.

The other function that the verdict form serves is to convey… and this is why the Alabama cases say, they talk of it as an advisory fixing of the penalty of death or an advisory indication… it conveys into the sentencing stage the fact that the jury has found that aggravating circumstance, the definitional one, which is essential, beyond a reasonable doubt.

And indeed the judge is not bound by it.

We’ve had cases, cited in the brief, where the judge has said: The jury found it but I don’t; I’ve heard some other stuff in this sentence hearing and I’m not going along with it.

Indeed, we had one case where the judge said: Well, I don’t dispute the fact that there was sufficient evidence for the jury to find this beyond a reasonable doubt to convict.

But we’re talking about the death penalty here and I just don’t think it goes beyond a reasonable doubt plus some, which I require for the death sentence, and accordingly I’m going to sentence him to life without parole.

Mr. Carroll says, you don’t need the verdict form requirement to embody these two purposes.

Obviously you don’t.

The State doesn’t contend that you do.

But the State does contend that merely because this procedure is odd or convoluted or unique or unnecessary doesn’t make it unconstitutional.

Instead, that determination has to be on whether it adversely affects any rights recognized by this Court that the defendant has, and we maintain that it does not.

Of course, if unique provisions made provisions unconstitutional I would imagine that Spaziano would have come out the other way, so would Jurek.

Nobody has… talk about an odd procedure.

The Texas three-question procedure is not only unique, but it comes close to Alabama’s in terms of being weird.

The statutory provision that the judge may enter a mistrial on the failure of the jury to agree on the verdict of guilty or not guilty or on the fixing of the penalty of death does not indicate that the jury has a choice about fixing the penalty of death.

Instead, that is simply a safeguard to prevent the jury from coming up with an unjust acquittal should it rebel at the legislative directive that it include the language in there.

And indeed, in this case the jury was not instructed on the mistrial provision, although they were in the Beck case.

Mr. Baldwin through Mr. Carroll makes an argument in his brief that the jury is forced to play a hobbled and distorted role, and the jury is torn between frustration and temptation.

But of course, the issue is not whether serving in one of these cases is a meaningful life experience for the jury.

Instead, the question is whether this procedure, odd as it may be, adversely affects any rights of the defendant.

Now, the verdict form language Mr. Carroll argues affects the jury’s guilt determination and in fact, because of the verdict form provision, it may indeed appear to the jury and may have appeared to the jury in this case that if it convicted the defendant the death penalty would inevitably follow from that.

Edward Earl Carnes:

But that could only have benefited Mr. Baldwin.

The opinions in Woodson and Roberts establish that if it has any effect at all, it makes the jury more reluctant to convict and more willing to acquit.

The State is willing to concede that we took too much of a burden on ourselves and made it too difficult for us to convict Mr. Baldwin.

But in fact we did convict him, and surely he is not entitled to a new sentencing procedure because the guilt stage procedure made it too likely that he would be acquitted.

Now, Woodson and Roberts did hold that under some systems, if the jury feels the death penalty is inevitable upon conviction, as they may have in this one, there could be so many unjust acquittals as to skew the sentencing pattern.

But that was the prediction or the assumption for those systems.

This is a different system that this Court need not predict or assume anything about, because the system is closed.

As has been pointed out, every case that will ever be tried under this system has been tried.

The results are in and they show, and it is undisputed, that there was only a four percent acquittal rate.

Therefore, there can have been no unjust acquittals.

Of course, any argument that the verdict form may have caused unjust convictions would not only run contrary to Woodson and Roberts and the common sense historical evidence, but would also be contrary to this Court’s decision in Hopper v. Evans.

The verdict form language does not harm the defendant in front of the judge either, because the provision that the judge is to weigh or consider it means only the two things that I have said, that he is to consider as substantive advice that the jury found the aggravating circumstances defined into the capital offense and that he is to consider, not weigh but consider, the legislative determination that if there are no mitigating circumstances then death must follow.

It can’t mean that the jury… the judge is to consider it as a recommendation that aggravation outweighs mitigation.

Or as to what the sentence should be.

The judge knows the jury didn’t consider that.

Mr. Carroll’s arguments that the judge may or may have in this case considered it that way run contrary to the Alabama Supreme Court cases about how it should be interpreted, also run contrary to the judge’s own sentence order.

He said: I’m imposing the death penalty because the aggravating circumstances far outweigh the mitigating circumstances.

And that is precisely what he’s supposed to do.

Mr. Carroll’s argument would also assume that the judge is ignorant of the fact that the jury had no choice.

Yet he in fact instructed him that they had no choice.

The fact that… there is some troubling language, troubling for our side, in Beck v. Alabama… I prefer to call it dictum… that the jury’s verdict must have had a tendency to motivate the judge to impose the death sentence because in such a substantial number of cases there was a death sentence imposed, two-thirds in fact.

But with all due respect to the Court, that is a classical example of the logical fallacy of assuming that because something comes after a fact it is caused by the fact.

It is, with all due respect, not fair to assume that, because what has happened in this case is we have narrowed the field down tremendously at the guilt stage.

The only people entering the sentence stage are those in which a very serious aggravating circumstance has been found beyond a reasonable doubt.

John Paul Stevens:

Mr. Carnes, refresh my recollection.

Did not one of the members of your Supreme Court in one of the dissenting opinions make the same argument to the same effect as the comment from the Beck opinion, that there was a kind of a psychological tendency to follow the jury verdict, even though logically you don’t have to?

Edward Earl Carnes:

Yes.

Justice Jones of our State Supreme Court, contrary to the other eight members, did say that he thought that there was a danger that there would be public pressure from the announcement of the jury verdict form and it would somehow pressure the judge or could pressure the judge.

Of course, the majority answered that by saying that the very judge that you say has been unfairly criticized we note has continued to impose life without parole sentences.

And indeed, the case he pointed out as an example of unfair criticism, when it got up to the court of criminal appeals, the court of criminal appeals looked at the case and also criticized the judge for imposing a life without parole sentence in that, because they said the aggravating circumstances indicated it should have been death.

Edward Earl Carnes:

But to argue that in a sense demeans the judicial office, because we call on judges every day.

Every day a judge has a serious trial.

He is forced to make decisions which may be unpopular.

To assume that they won’t be willing to do so because of public clamor or comment is not really a fitting assumption.

Also, that would assume that the public is ignorant of the fact that the jury had no choice.

Yet, if it is a high profile, highly publicized case, the public will know that.

In any event, the majority of the Alabama Supreme Court pointed out that, be that as it may, there was a safeguard to prevent any undue effect from that, and the safeguard was that, whatever the judge did, they were going to independently redetermine whether the sentence of death was proper or was unproper.

Appellate review of death sentence cases in Alabama is enhanced by three special rules: search the record, the plain error rule, and two-tier.

No death sentence leaves our system unless both the court of criminal appeals and the Alabama Supreme Court uphold both the conviction and the sentence.

I point out and I would direct the Court’s attention to the fact that the Alabama appellate courts have taken their duty very seriously.

In fact, we’ve had cases, Mr. Evans’ case, where he said: I don’t want to appeal my case; I want to die.

And the Alabama Supreme Court said: We don’t care whether you want to or not; we’re not going to… we’re going to see.

It’s our responsibility that the death penalty is imposed in this State only for the utmost of compelling legal reasons, and we’re going to review these cases.

We’re going to go over them with a fine tooth comb whether it’s requested or not.

And in fact, of the pre-Beck cases, before Beck v. Alabama and when the preclusion clause defect led to the reversal of so many cases, up to that time and not including the preclusion clause defect there had been 34 cases reviewed at one stage or another of the Alabama appellate process.

The convictions were reversed in 18 percent of those capital cases.

The death sentences were reversed in 44 percent of those cases.

So that the conviction or death sentence, one or the other or both were reversed in 62 percent of the cases.

In only 38 percent of the cases, including this one, were both the capital convictions and the death sentence affirmed on the basis of the initial trial guilt stage and the initial sentence proceeding before the judge.

Appellate review of the propriety of the death sentence itself is the point which we stress.

It has three facets under our system.

Both appellate courts, not just one but both appellate courts, determine whether the death sentence is imposed under the influence of passion, prejudice, or any other arbitrary fact.

That’s like the Georgia system.

And both of them determined in this case that it was not.

They also determine, secondly, whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases.

That’s the so-called cross-case proportionality analysis that you held in Pulley was not constitutionally required, but certainly was nice if the State had it.

Well, they do have it.

We do have it and both states… both appellate courts held that it wasn’t excessive, and they cited other cases.

The Alabama Supreme Court particularly cited the co-defendant case.

The third facet… and this is the important one… there is an independent weighing by the appellate courts themselves of the aggravating and mitigating circumstances to determine whether death is the proper sentence in this particular case.

Edward Earl Carnes:

In other words, they in effect re-sentence.

If aggravation outweighs mitigation, then they affirm the death sentence.

If mitigation outweighs aggravation, then they remand for new sentencing.

Now, Mr. Carroll points out that there has only been one case under this system where they remanded and ordered a new sentence.

But the whole story shows that in fact 44 percent of the death sentences were reversed on other grounds.

And in addition, Georgia’s system–

William H. Rehnquist:

Well, what would the other grounds be?

Questions as to guilt?

Edward Earl Carnes:

–No, Your Honor.

The death sentences would be reversed because of a defect in a misapplication of an aggravating circumstance.

William H. Rehnquist:

So 44 percent of the death sentences were reversed for flaws in the sentence, not the guilt.

Edward Earl Carnes:

Flaws in the sentence and flaws in the sentencing process.

It could have been something wrong in the judge’s sentencing order or in the hearing.

He didn’t let the defendant introduce hearsay evidence, which is admissible; or he mischaracterized an aggravating circumstance; or he failed to find a mitigating circumstance.

Byron R. White:

Or he just, he didn’t weigh them correctly.

Edward Earl Carnes:

Didn’t weigh them properly.

And admittedly, some of these when they went back, when the judge corrected his error he reimposed the death sentence.

But in some of them he didn’t.

John Paul Stevens:

Do these include cases that were sent back after Beck was decided?

Edward Earl Carnes:

No, Your Honor.

After Beck there were just a whole host.

All but ten cases have been reversed because of that.

These are exclusive of Beck, and I thought in the analysis it was only proper to exclude Beck because of that.

Thurgood Marshall:

In how many were the death sentences changed?

Edward Earl Carnes:

By or under direct order of the appellate court, as opposed to as a result of a correction when it got back, only one.

Thurgood Marshall:

No, I’m talking about after it gets corrected.

Edward Earl Carnes:

After it gets corrected, Your Honor, I do not know.

I know in addition to the one in which the appellate court said–

Thurgood Marshall:

Well, isn’t that rather important?

Edward Earl Carnes:

–It is, Your Honor, except that if death is determined to be a proper sentence after the errors are corrected, I would admit that… I would contend that that’s what the Constitution requires.

Edward Earl Carnes:

I know there’s been at least one where the judge corrected the error and said, well–

Thurgood Marshall:

Now we go from 44 to one.

Edward Earl Carnes:

–No, Your Honor.

Thurgood Marshall:

Well, that’s my figures I get from what you said.

Edward Earl Carnes:

Your Honor, I did not mean to imply that the Alabama Supreme Courts weren’t letting anybody be sentenced to death under this, simply that they were very careful in the way they applied the review of the death sentence.

I would also point out that Georgia’ much-vaunted system, according to the statistics that you put, I believe in the Pulley opinion–

Thurgood Marshall:

Well, I’m not hearing the Georgia case this afternoon.

Edward Earl Carnes:

–Yes, sir.

But I would like to, if I may, respond to Mr. Carroll’s argument that the Alabama Supreme Courts haven’t reversed enough death sentences.

Georgia has reversed seven death sentences and ordered them to be reduced, but five of those were in non-homicide cases, rape or robbery with no killing, which couldn’t even be a capital offense in Alabama.

One of the remaining ones was where the defendant had been sentenced to life without parole the first time, a classic Bullington problem.

There’s only been one case in Georgia in ten years, in spite of the fact that they had two and a half times as many people on death row as we did at the time of Beck, there’s only been one case where they ordered a comparable sentence reduced.

Both Alabama appellate courts expressly determined in this case that the death sentence was proper because the aggravating circumstances in their own opinion “greatly outweighed”, was the phrase they used, the lone mitigating circumstance.

There’s been no evidence, suggestion, or even hint that what Mr. Carroll calls the arbitrary factor of the jury’s verdict was considered by them.

The language in Zant v. Stephens that says that if a State treats as an aggravating circumstance something constitutionally irrelevant or impermissible harmless error analysis doesn’t apply is not applicable here because all the aggravating circumstances were proper and permissible.

In any event, we’re not arguing at this point harmless error.

What we’re saying is that you have to consider, as you have in the past, the system as a whole.

And when you consider the system as a whole, one important part of it is the appellate review, the re-sentencing, in effect, at the appellate level.

This Court has often held in the past that the whole system has to be considered because what counts is the final result.

The only death sentence or the only sentence that matters is the one on the case when it leaves the appellate system.

What we are saying is that this system in substance… substance over form… this system in substance has provided a constitutional way to reliable determine which murderers should be sentenced to death and which should not.

Now, Mr. Carroll points out that I have included in Appendix A to my brief citations and summaries of the nine of other pre-Beck death sentence cases.

He misinterprets the reason I did so.

I didn’t say that these folks ought to be executed simply because they’re bad people.

I’ve been before this Court too many times to know… to think that this Court would buy an argument like that.

Instead, the reason I put that up there is to say: This is a unique opportunity; this case is different from every one this Court has ever had, not just because of the nature of the procedure, but because this is a closed system.

You don’t have to predict and assume how it will apply, how it will result in future cases.

You’ve had to do that ever other post-Furman case you’ve ever decided.

You’ve had to make some kind of prediction or assumption.

You don’t have to do it here.

Edward Earl Carnes:

All you have to do is look at this case and the nine other in the appendix cited.

And the State thinks that when you do that you will agree with the state that, whatever its oddity, whatever the procedural quirks, and however the language of the statute may be written, there can be no doubt that this system has operated in a rational bottom line manner so that the ten people left on death row under it are some of the most heinous murderers, some of the most vicious murderers, and have committed some of the most heinous crimes that have ever been committed in our State.

And that is, after all, the whole point of Furman and the two dozen some-odd cases since then, to ensure that the ones we separate out and make eligible for the death penalty are those who are truly deserving to die.

If we assume that anyone is to be sentenced to death, then what we want to do is to separate out a group through some procedure of the folks most deserving to die.

And the State submits that that has been done.

This particular case is a paradigm example of that.

Eight years ago, Mr. Baldwin escaped from prison while he was serving a robbery sentence and kidnapped, robbed, raped, beat, sodomized, choked, ran over, and stabbed an innocent young girl.

Then he locked her, naked and bleeding, in the trunk of the car while he drove across four states.

It was only after he had done all that and only into the second day that he, according to his own testimony, bought the drugs which Mr. Carroll said is a mitigating circumstance.

And after she had suffered some 40 hours, he took her out of the trunk, ran over her again, and then chopped her to death with a hatchet.

When the court of criminal appeals in this case was doing its own review of the case to determine whether the conviction was proper and whether the sentence was proper, it took the tape recording of the confession which went up with the case and it listened.

And they wrote in the opinion, and this was the first opinion back in ’78 that the court of criminal appeals issued, that we’ve listened to this and the Petitioner relates these events and what he did with no more emotion than if he were describing how he changed a car, and he does not express any remorse and has never expressed any remorse for having

“treated this unfortunate innocent victim with a brutality not found in animals, and had mercilessly slaughtered this defenseless young girl. “

Now, we submit that, whatever the procedural oddities, this is the kind of case, this and the nine other cases, some of which come close to rivaling this case in terms of pure viciousness, this is the kind of case that ought to be singled out for the death penalty.

Of course, to re-sentence Mr. Baldwin now we would have to in effect retry the whole case before a new sentencing authority and start that long appellate process all over again.

Six to eight years from now, we could be back in front of this same court with a new set of lawyers and a new set of issues.

And all the while, no one can seriously doubt that, if anyone is to be sentenced to death for his crime, this particular Petitioner deserves it.

Of course, if the Constitution requires that, then so be it.

But our position is simply that the State of Alabama and its people submit that the Constitution does not require that.

Warren E. Burger:

Do you have anything further, Mr. Carroll?

John L. Carroll:

I’ll be very brief, Mr. Chief Justice.

By way of statistical analysis, Mr. Carnes has relied in great measure on how this statute operates.

And he in his own brief in a footnote tells the Court there were 65 people that were sentenced under this statute.

If you remove from that 65 sample the 13 people who pled guilty as a result of a plea bargain, only four sentences of life imprisonment without parole were imposed by trial judges in the State as a result of a contested proceeding.

So what Mr. Justice Stevens said in Beck is exactly correct, that this procedure that we have created where the trial judge is required to take into account the death sentence skews the death sentencing process in favor of a death sentence.

I’m troubled very deeply by what I sense, that, yes, this is a strange statute, yes, no other court in the country has one like this, but it’s okay because we know what the judge knows and how the judge acts.

But there is not one jot, speck, or iota of evidence in this record about how trial judges in Alabama treat this statute, other than the fact that we know in the great majority of cases they sentence defendants to death underneath it.

This is a facial constitutional attack on this statute, and I’ve not heard serious arguments out of the State that there is anything really constitutional about this procedure on its face.

What I hear is an argument that the judge knows what it is, ignores it, and therefore everything’s fine.

And the Court cannot uphold this facial constitutional attack… or deny this facial constitutional attack on its perceptions or Mr. Carne’s perceptions or my perceptions about what judges may think or may not think.

John L. Carroll:

We know that on its face this statute says the jury must return a mandatory sentence of death.

We further know that the jury has a mistrial provision, so it doesn’t really have to return a mandatory sentence of death.

And the trial judge, if he reads the statute, knows that the jury may disagree on the sentence of death.

So to the trial judge, does the mandatory sentence mean that the jury didn’t disagree and therefore I ought to take it into account?

The statute requires him to do that.

Mr. Carnes makes a great deal about the interpretation that the Alabama Supreme Court has placed on this statute.

Well, let’s look at the interpretation that the Alabama Supreme Court placed in this very case.

It didn’t mention anything about the verdict form being a messenger to convey an aggravating circumstance to the sentencing authority or that it embodied a legislative judgment.

The Alabama Supreme Court says in this case: 56 of the joint appendix:

“We hold the sentence procedure is constitutional. “

“The statute is saved by the fact that the court, which is the sentencing authority, considers the circumstances of the particular offense and the characters and propensities of the offender, the aggravating and mitigating circumstances in a separate and independent sentencing area. “

It didn’t say anything about what the judge knows.

What this statute requires the trial judge to do is take into account an unconstitutional factor, and if this Court’s opinion in Zant v. Stephens means anything at all it means that a sentencing process where that is required is unconstitutional, and we simply ask the Court to so hold.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until Monday next at 10:00.