LOCATION: Bleckly County Superior Court
DOCKET NO.: 81-6908
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Florida Supreme Court
CITATION: 463 US 939 (1983)
ARGUED: Mar 30, 1983
DECIDED: Jul 06, 1983
James M. Nabritt III - on behalf of the Petitioner
James M. Nabrit, III, - on behalf of the petitioner -- rebuttal
Wallace E. Allbritton - on behalf of the Respondent
Facts of the case
Media for Barclay v. Florida
Audio Transcription for Oral Argument - March 30, 1983 in Barclay v. Florida
Warren E. Burger:
We will hear arguments next in Elwood Barclay against Florida.
Mr. Nabrit, I think you can begin whenever you are ready.
James M. Nabrit, III,:
Mr. Chief Justice, and may it please the Court, I represent the petitioner, Elwood Barclay, who is here on a writ of certiorari to review a judgment of the Supreme Court of Florida which on direct appeal affirmed his murder conviction and a death sentence.
The death sentence was imposed by a judge of the Circuit Court of Duval County who entered written sentencing findings that are the focus of our argument here today.
The judge disregarded an advisory jury verdict which recommended that Barclay be given life imprisonment, and the Florida Supreme Court affirmed.
Barclay lost by a four-to-two vote, and his rehearing petition was denied by an equally divided court.
Petitioner brought the case here on certiorari, and the state filed a brief agreeing that this Court should review the case.
Now, let me begin my statement of the case before I describe the proceedings in the court below by briefly recounting five points about the Florida death sentencing statute.
It is a statute that has been in this Court before.
It was the statute approved in the Proffit case, and it was presented as having five procedural safeguards.
First, a requirement that the death sentence be based on specific written findings about aggravating circumstances, which was supposed to serve as a guide for the sentencer's discretion.
Second, the statute says that the list of aggravating circumstances is limited to eight factors, which are listed in the statute, and six of those I will just refer to in a moment are involved in this case.
Second, the statute provided for an automatic appeal, a review in which the Florida Supreme Court is supposed to keep the sentencing decisions under the statute in line with the statute.
Next, the jury had a special role.
Although it is called advisory, the jury... the jury's judgment is supposed to prevail under the Florida law unless no reasonable mind could disagree that the death sentence should be imposed, so that it is... and finally, the idea that both the judge and jury will make a judgment both about the sufficiency of the aggravating circumstances to justify a death sentence as well as a weighing of the aggravating and mitigating circumstances.
So, in summary, in the Proffit case, the Court said that after a verdict of guilt, there would be what this Court referred to as an informed, focused, guided, and objective inquiry into the question of whether a death sentence should be imposed, and that would be at... that kind of objective inquiry, at both the trial and appellate levels.
Now, in Barclay's case, Barclay was found guilty in March of 1975, along with a co-defendant Dougan.
He was found guilty of first-degree murder in the death of one Stephen Orlando, and two other co-defendants were convicted by the same jury of second-degree murder.
After the conviction, at the penalty trial, the jury recommended a death sentence for the co-defendant Dougan, but life imprisonment for Barclay.
And in the penalty hearing, the state argued for only one of the eight statutory aggravating circumstances, that the crime was heinous atrocious, and cruel, yet the state made no effort at that penalty trial to convince the jury that any of the other seven circumstances applied.
And the majority of the jury came back with a written finding, a written finding that sufficient aggravating circumstances did not exist to justify a death sentence, and a written finding that sufficient mitigating circumstances do exist which outweigh any aggravating circumstances.
The judge discharged the jury and directed a pre-sentence investigation report, and a month later entered his own written findings, and five years later, in 1980, the judge substantially repeated the findings when he reimposed the sentence after it was first vacated on the basis of Gardner against Florida.
And the judge found seven aggravating circumstances.
Now, let me review some of them.
The first one is quoted in our brief at Pages 29 and 30, and in this one... this is at the bottom of Page 29 and the bottom of Page 30.
In this one the judge found as an aggravating circumstance that Barclay had some prior arrests, and he had a prior conviction for forgery and for breaking and entering.
Now, it is acknowledged by the state that this was an error, and the reason is that what the judge found here was the absence of one of the statutory mitigating circumstances, and it is acknowledged as a matter of state law, it is acknowledged at Page 26, I think, of the state's brief, that under the state's Mikenas case, which the state cites, that it is not correct to make the absence of mitigating circumstances an aggravating circumstance, so that that was a finding that is a non-statutory finding.
It is a finding of an aggravating circumstance that is not listed in the statute.
There are two more points about that.
One is that mere arrests under... and again, I am referring to Florida law really as a predicate for the federal arguments that I'll make later, but I am merely trying to be descriptive.