Blystone v. Pennsylvania – Oral Argument – October 10, 1989

Media for Blystone v. Pennsylvania

Audio Transcription for Opinion Announcement – February 28, 1990 in Blystone v. Pennsylvania

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William H. Rehnquist:

We’ll hear argument next in Number 88-6222, Scott Wayne Blystone against Pennsylvania.

Mr. Gettleman, you may proceed whenever you are ready.

Paul R. Gettleman:

Thank you, Chief Justice, may it please the Court:

The issue before the Court in this case is does the mandatory language in the Pennsylvania death sentence… death penalty statute, prevent a sentencer from making an independent determination as to whether death’s a appropriate sentence in a given case.

In California v. Ramos, in a majority opinion written by Justice Connor, she approved a far-reaching inquiry into the countless facts and circumstances by a sentencing jury, and she indicated in that opinion that once an individual defendant becomes death eligible, then the jury can take into consideration a myriad of facts and circumstances which might warrant a sentence of less than death.

In Pennsylvania, the Pennsylvania legislature has unconstitutionally, in my opinion, limited the types of mitigation that a jury can consider in determining whether or not there is mitigation.

For instance, Pennsylvania only allows a jury to consider extreme mental illness or substantial impairment.

But in this particular case, Mr. Blystone gave an extended confession to a police informant, and in that confession he alluded to things like, well, it was thrilling to kill somebody, and you really don’t have to be a bad person to kill, and alluded to aspects of the person’s brain coming out of his head.

Now, a juror who heard all this might think that this individual is mentally ill to think like that, to have no regard at all for life, but might feel that under the definition of Pennsylvania’s extreme mental illness, or substantial impairment, it wouldn’t qualify, because he might feel extreme would be locked up in a mental institution or taking thorazine.

And what happens is that he is not allowed to consider mental illness or substantial impairment in making a decision as to whether or not death is the appropriate sentence.

The Respondent had suggested that in the catchall, number 8, the jury could then consider whether or not an individual is simply mentally impaired or simply mentally ill.

But I think that… that analysis is incorrect for this reason.

When the Pennsylvania legislature wrote this statute, they included a burden of proof, proof beyond a… proof beyond a preponderance of the evidence, that there is a mitigating factor.

So if the… the statute required proof beyond a preponderance of evidence that it–

Sandra Day O’Connor:

Proof beyond a preponderance or proof by a preponderance?

Paul R. Gettleman:

–Proof by a preponderance of the evidence.

Sandra Day O’Connor:

Thank you.

Paul R. Gettleman:

Thank you.

Proof by a preponderance of the evidence that an individual was severely mentally ill or extremely mentally ill.

If it could be picked up in this catchall, then that would destroy the burden of proof, because the jury would no longer have to find it by a preponderance of the evidence.

In addition, the language of the statute is any other factor, and a fair reading of the word other would probably mean other than the first seven factors.

So, a defendant in Pennsylvania would probably be left… a defendant in Pennsylvania who is just simply mentally ill, or whose judgment was just substantially impaired, would be left with a situation where the jury could not consider that, or give any weight to it, in making a determination as to whether or not death is the appropriate–

Sandra Day O’Connor:

Well, I thought the Pennsylvania law allowed full consideration of relevant mitigating evidence.

Paul R. Gettleman:

–It does.

But what I was suggesting to the Court is this.

Before that catchall, it has a… a specific mitigating circumstance of extreme mental illness or a substantial impairment.

Now, if a jury, in viewing all the evidence, goes down the list and determines that he wasn’t extremely mentally ill, or severely emotionally impaired, he would set that aside, or she would set that aside, and go on down the list to see if it fit in any other category.

And I would suggest to Justice O’Connor that when they got down to the catchall, and it says any other evidence, a juror who was instructed probably wouldn’t retrieve it back and conclude–

Sandra Day O’Connor:

Don’t you think that an attorney would argue on the basis of all of the mitigating evidence that came in, including whatever degree of mental impairment there might be?

Paul R. Gettleman:

–Well, it is for a jury to give whatever weight they consider to any particular factor, and it could well be that amongst the 12 they might consider something that would be mitigating which an attorney wouldn’t have brought up.

Paul R. Gettleman:

In this particular case, the closing… there was no mitigation presented by Mr. Blystone.

The closing argument by his counsel probably was a minute and a half to two minutes, because that was reflected upon one page of the transcript.

And the basic plea was don’t execute him.

There was no argument vis a vis mitigation.

And, as I also have suggested, I think a juror who was told that there was a certain burden of proof that had to be met wouldn’t go back, after he couldn’t meet that burden, to just apply it like that.

All the cases that the Court has talked about in terms of Lockett, Eddings, Jurek, they all suggested that a juror should be allowed to weigh whatever is mitigating and give whatever weight he feels it should have to make a determination as to whether or not that–

John Paul Stevens:

Mr. Gettleman, I have some difficulty understanding how this argument relates to the question we granted certiorari to decide.

Paul R. Gettleman:

–Well–

John Paul Stevens:

Is whether the mandatory feature of the statute requires death when there is one aggravating circumstance and no mitigating circumstance is valid.

Paul R. Gettleman:

–It does–

John Paul Stevens:

And so we are assuming for purpose of decision there are no mitigating circumstances.

Paul R. Gettleman:

–Right.

John Paul Stevens:

xxx your question.

Paul R. Gettleman:

But the argument suggests that because of the limiting nature or the limitations that Pennsylvania puts on the mitigating circumstances, that’s the reason why there were no mitigating circumstances in this particular–

John Paul Stevens:

Well, that may be true, but I don’t see how that is relevant to the question you presented in your certiorari petition.

Paul R. Gettleman:

–Okay, well then, let me just go right to that, then.

In Pennsylvania the situation is that if there is one aggravating and no mitigating circumstances, then the jury is instructed that they must return with the verdict of death.

In that particular case there is no weighing, as had just been suggested in the last argument, in North Carolina, as to the strength of the aggravating circumstance.

I think, in an opinion that you co-authored in Barclay, you had suggested that if the aggravating circumstances outweighed the mitigating, but weren’t so weighty as to require death, then the jury should be permitted to return with the verdict of life, because it wouldn’t have been the appropriate sentence.

Also, in North Carolina v. Smith, you had suggested again that there is almost a constitutional right for a jury to exercise its discretion and return with a verdict of life, even though there might be more aggravating than mitigating, when the strength of the aggravating is not such that would require the death sentence.

In Pennsylvania, what happens is that if there are no mitigating circumstances, the jury is instructed that they must return with the verdict of death.

They have absolutely no discretion at all.

And it seems to me that this falls under the same problem as Caldwell v. Mississippi.

In that case the jury was told that it’s really not ultimately up to you to decide whether the person is going to die.

The Mississippi Supreme Court has an overview of that.

In Pennsylvania, what they tell the jurors are that you really have no choice, or you have no discretion.

The verdict is mandatory; you must return with the verdict of death.

William H. Rehnquist:

Well, but Caldwell was at least in part based on the idea that the… there were… wrong statements of law, misleading statements of law made to the jury about their responsibility.

Here, it seems to me, that when the judge says the jury… tells the jury you don’t have any choice, they don’t have any choice.

You say that is wrong, but I don’t think it makes it a Caldwell case.

Paul R. Gettleman:

Well, only to suggest that in Caldwell this Court spoke about the… the awesome responsibility it… is upon a jury when they decide whether or not to take somebody’s life.

And the fact that that responsibility is somewhat delegated by suggesting that it… the… that the Supreme Court could review that.

In this particular case, the analogy would be that some of the responsibility for the jury, in deciding whether somebody should live or die, is being taken away from them when they are told that it’s really not up to you.

Once you find an aggravating circumstance, then you must return with the verdict of death.

William H. Rehnquist:

Well, your… your argument then is that… that… the jury must always be permitted, no matter what sort of facts it finds, to find in its discretion, whether it’s life or death.

Paul R. Gettleman:

I do.

I think that the Eighth Amendment would suggest that there is a certain reliability necessary to make a determination as to whether death is an appropriate sentence.

In Pennsylvania–

William H. Rehnquist:

Well, what has this got to do with reliability?

Paul R. Gettleman:

–Well, reliability in the… in the respect that a jury really doesn’t get to consider whether there is an… just because there is an aggravating circumstance, that death is an appropriate sentence.

It is not a situation like had been suggested in the North Carolina legislature, where even though mitigating circumstance… excuse me, even though aggravating circumstances are found and no mitigating circumstances are found, the jury still makes an independent determination as to whether the strength of that aggravation is enough to warrant a sentence of death.

William H. Rehnquist:

But… but I… I know Pennsylvania is different from North Carolina.

But here the jury has considered all the mitigating evidence, I guess by hypothesis, and found that no mitigating circumstance exists.

Paul R. Gettleman:

Well, I would only like to suggest, and what I was trying to suggest to Justice Stevens, is simply this.

It is our position also that Pennsylvania limits the types of mitigation that can be considered–

William H. Rehnquist:

But that really isn’t your question presented, is it?

Paul R. Gettleman:

–Well, only in the respect that you had suggested to me Pennsylvania had already found that there was no… there was no mitigation.

But I am suggesting the reason that they found that there was no mitigation is because they were limited by the statute in finding that mitigation to engage in a weighing process.

In Pennsylvania there is no weighing process at all.

It could be the most minimal of felony murders, and a defendant would be sentenced to death if the jury didn’t find any aggravating circumstances beyond a reasonable doubt.

So what I am suggesting is that–

Byron R. White:

Any mitigating circumstances.

Paul R. Gettleman:

–If they didn’t find any mitigating circumstances that outweighed aggravating circumstances, the verdict would have to be death.

Or if they found no mitigating circumstances at all, then the verdict would have to be death.

And I think that it goes also in line with what Justice Blackmun was saying about the dangers of having a mandatory sentence.

The dangers of having a mandatory sentence are that you can’t judge or evaluate the strength of a mitigating circumstance.

Anthony M. Kennedy:

So, in your view, I take it, if in Pennsylvania, and I’m not sure that this is the case, the killing of a police officer in the line of duty is an aggravating circumstance, you think the Constitution requires a system in which the jury can find no mitigating circumstances, and then say well, really I don’t think killing a police officer is a crime that deserves the death penalty.

You, constitutionally, you say that that is constitutionally required, that the jury has that authority.

Paul R. Gettleman:

I think it is constitutionally required that the jury can weigh an aggravating circumstance to make a determination–

Anthony M. Kennedy:

Well, what about the case that I put?

Anthony M. Kennedy:

They find no mitigating circumstances, but some jurors think well, killing a police officer in the line of duty is really not the kind of thing that we should impose the death penalty for.

You think the Constitution requires that the jury have that kind of authority to second-guess the legislature?

Paul R. Gettleman:

–I think the Constitution would require that the jury could look to that single circumstance to make a determination as to whether or not that was strong enough, or the facts that went into killing the police officer were such–

Anthony M. Kennedy:

Well, the facts are all mitigating circumstances under Section 8 of the Pennsylvania code.

I am asking you, in my case, whether the jury could say that in their view killing a police officer, as an abstract matter–

Paul R. Gettleman:

–Okay.

Anthony M. Kennedy:

–is simply not the kind of crime that calls for the death penalty.

Paul R. Gettleman:

Yes.

Anthony M. Kennedy:

All right.

That is your position.

It seems to me that that is exactly contrary to what we required in Furman v. Georgia.

And it seems to me then, then we have gone absolutely full circle.

Paul R. Gettleman:

Well, I would only suggest, Justice Kennedy, that different legislatures around the country have addressed that very issue.

Obviously, North Carolina has, Florida has, Arkansas has, Nebraska has, and they all suggest that even when an aggravating circumstance is found, that the jury should still make a determination as to whether or not that aggravating circumstance is substantial enough to warrant death.

I had suggested, when I… when I was addressing Justice Stevens, that he had also suggested in certain cases that even though you find an aggravating circumstance, and he didn’t identify that as either killing a police officer or any other of the enumerated circumstances, but he did suggest that there are cases where you do have aggravating circumstances and no mitigating circumstances, but the aggravating circumstances in and of themselves aren’t so weighty, or aren’t so substantial that would require death sentencing.

If you do have–

Anthony M. Kennedy:

Because of the particular case.

Paul R. Gettleman:

–And because of the aggravating circumstance and the facts that surround the aggravating circumstance.

Because, in the opinion that he authored, there was no evidence necessarily as to what the facts were of the aggravating circumstances.

All I am suggesting is… what was suggested in that opinion, is you can have a situation where you do have an aggravating circumstance, you don’t have any… excuse me, you don’t have any mitigating circumstances, but the jury makes an independent determination that the aggravating circumstances wasn’t substantial enough to warrant the death sentence.

And that is the only thing I was suggesting by that answer.

John Paul Stevens:

What was the aggravating circumstance in this case?

Paul R. Gettleman:

Felony murder.

John Paul Stevens:

I mean, what… what was the… what was the aggravating, what… what… this was a robbery, was it not?

Paul R. Gettleman:

It was a felony murder.

The aggravating circumstance was a felony murder.

John Paul Stevens:

Was the robbery–

Paul R. Gettleman:

The robbery.

John Paul Stevens:

–a $13 robbery from the–

–It wasn’t felony murder, was it?

John Paul Stevens:

It was murder in the course of committing a felony.

Paul R. Gettleman:

Murder… first degree murder in the course of committing a felony.

When they found Mr. Blystone guilty of the crime they in effect had already proven aggravating circumstances.

As a matter of fact, when the prosecutor closed to the jury in his… in the sentencing phase, he had indicated to them that we have already established that a felony murder has been committed, and then he spoke about their duty to return a verdict of death.

John Paul Stevens:

Well, they clearly here, as I understand the statute, clearly had to… assuming they didn’t find mitigating circumstances, the fact that the defendant, rather than one of the other occupants of the car, stole the $13 from the victim is what not only authorized the death penalty, but actually mandated it.

If there had been no… if he had not taken the $13, there could not have been a death penalty in this case, is that right?

Paul R. Gettleman:

No, I think that if he was found guilty of… well, maybe under Enmund he couldn’t, but in Pennsylvania… if he had been found guilty of first degree murder, as an accomplice–

John Paul Stevens:

But he had… assume he had nothing to do with the robbery of the $13.

Then he couldn’t have gotten the death penalty, could he?

Paul R. Gettleman:

–Well, he could have as a co-conspirator, as a… in other words, because he didn’t actually take the money–

John Paul Stevens:

Assume he didn’t… if somebody didn’t even know the 13–

Paul R. Gettleman:

–No, probably not.

John Paul Stevens:

–So, not only probably not, the aggravating circumstance that authorized and also required the death penalty in this case was the fact that he was found guilty of the $13 robbery.

Paul R. Gettleman:

Correct.

John Paul Stevens:

And all the other facts are irrelevant to the… all the other aggravating circumstances are irrelevant to the death… to the penalty determination.

Paul R. Gettleman:

Right, to the penalty determination, that’s correct.

I only suggest that the courts have indicated that there is a constitutional requirement that before a sentence of death may be imposed, it is the sentencer that must decide whether death is an appropriate sentence.

In this particular case the sentencer is precluded from making the determination that death is an appropriate sentence in this case.

Once the aggravating circumstance is found and no mitigation is found, then he has no say in it.

It is a type of mechanical, rigid process that the Court suggested was inappropriate.

Antonin Scalia:

I guess I am just repeating what Justice Kennedy suggested, but you’re… you’re… you’re sounding like the opposition in Furman.

Wasn’t Furman directed exactly against leaving it up to the jury whether in a broad category of cases you want to impose the death sentence?

Paul R. Gettleman:

But the… but… Justice Scalia–

Antonin Scalia:

And here you’re saying that that is really what we ought to do, leave it up to the jury.

Paul R. Gettleman:

–Well, what I would like to suggest is that in the Furman case the reason that they spoke about unbridled discretion, it was because of the broad spectrum of people who were death eligible.

And I think when they spoke about unbridled discretion or that kind of discretion which you had suggested to me, it dealt with situations where the pool of death-eligible people was too broad, and it was–

Antonin Scalia:

That’s not what they said.

They didn’t say too many people are eligible for death.

What they were concerned about, quite the contrary, was like situations being treated differently.

And what we were trying to develop was a system in which that kind of inequity, insofar as possible, wouldn’t occur.

Antonin Scalia:

And here Pennsylvania has created one.

It says we decide what is aggravating.

If you find it, and if you find no mitigating circumstances, every jury should impose the death sentence.

Paul R. Gettleman:

–But the problem with that is that that conflicts with the Eighth Amendment requirement that a jury should make a determination that, under the facts and circumstances of the case, it’s… this is the appropriate decision.

And in Pennsylvania there is no way to do that, and there is no way to in any way measure the degree or the strength of the aggravating circumstance that would justify the imposition of death.

I understand what you’re saying as it relates to the unbridled discretion.

I would only suggest to you that this Court has held in… in various of these… in various cases, that in considering mitigation, for instance, the jury could have unbridled discretion.

Mr…. Justice Stevens had suggested that also that.

I think you have to make a distinction between the two.

Antonin Scalia:

[inaudible]

Paul R. Gettleman:

I know that.

So, with permission of the Court I would like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Gettleman.

Mr. Preate, we’ll hear from you now.

Ernest D. Preate, Jr.:

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

Pennsylvania’s death penalty statute is not a mandatorily unconstitutional statute.

It is a constitutional guided discretion statute.

It allows the jury to consider all relevant mitigating evidence in making the decision as to whether or not to impose the death penalty.

It is not the kind of statute that this Court addressed in Woodson and Roberts, and in Sumner v. Shuman, where–

Byron R. White:

xxx doesn’t it, except that they require or allow mitigating evidence to be considered.

Why isn’t it like Woodson?

It’s a direction to… to have the death penalty if a person commits a felony murder.

Ernest D. Preate, Jr.:

–The evil, Justice White, in those cases, was that the jury never got to make the individualized determination that they’re required by the statute to make.

Byron R. White:

Well–

Ernest D. Preate, Jr.:

It was simple finding–

Byron R. White:

–they, except for the mitigating evidence side, I don’t know why it is different from Woodson.

Ernest D. Preate, Jr.:

–Well, they… they… the statute in Woodson–

Byron R. White:

Which is a big difference, I agree, but once they find no mitigating evidence, their discretion is at an end.

Here’s the crime; here’s our orders.

Ernest D. Preate, Jr.:

–Well, there are two thresholds that the Pennsylvania statute requires the jury to cross before it finds that this is a death penalty case.

Ernest D. Preate, Jr.:

The first threshold is, of course, given, is a first degree murder.

And the second threshold is whether or not there is a valid aggravating circumstance which must be established beyond a reasonable doubt, unanimously by the jury, and then it must go further.

The inquiry does not stop, in Pennsylvania statute, by simply finding that the aggravating factor exists, and that’s perhaps the evil of… of some of the cases that we had heard from… had seen before.

In Pennsylvania the jury must then consider, they are forced to consider whether or not there are any mitigating circumstances in the record.

And if there are none, then they are, of course, obligated at that point, constitutionally, I believe, to come in with a death penalty.

It is appropriate that, at that particular stage, the post-consideration stage, that the statute takes its effect.

The mandatory feature does not take effect in the beginning; it takes effect at the end of the reasoning process, so that the result is a rational, reasoned, moral response, rather than–

John Paul Stevens:

May I ask, do you have a bifurcated system where the penalty hearing is separate from the trial?

Ernest D. Preate, Jr.:

–Yes, Justice Stevens, we do.

John Paul Stevens:

And, if… if you had such a hearing… I take it you have the same jury though that hears both.

Ernest D. Preate, Jr.:

Yes, yes, we do.

John Paul Stevens:

If you had a different trier of the fact in the sentencing hearing here, would the evidence… there is some very bad evidence in this case, this is obviously a very mean person… and had no remorse, and that tape recorder thing really makes him to be a pretty bad person.

None of that would have been admissible in the sentencing hearing, would it, because that is all irrelevant because the death really was… was required as soon as they proved the $13 robbery?

Ernest D. Preate, Jr.:

There was, there are two things that are… three things that are required under the valid aggravating circumstance–

John Paul Stevens:

I understand.

Ernest D. Preate, Jr.:

–It requires a murder.

John Paul Stevens:

Right.

Ernest D. Preate, Jr.:

It requires a robbery–

John Paul Stevens:

Right.

Ernest D. Preate, Jr.:

–And then in this, the jury must–

John Paul Stevens:

And no mitigating circumstance.

Ernest D. Preate, Jr.:

–Well, that this–

John Paul Stevens:

Say there is no… everybody agrees there is no mitigating circumstance here.

Therefore, all the other evidence about the real aggravation, the stuff that makes many objective people think this man may well deserve the death penalty, that all would have been irrelevant, wouldn’t it?

Ernest D. Preate, Jr.:

–Well, it would not be considered.

It could not be considered because under Pennsylvania statute the only thing that the jury can consider in… as an aggravating factor, is that exclusive list.

Certainly there was a lot of aggravation there, but they could not consider that.

John Paul Stevens:

And it was all put before the jury.

Ernest D. Preate, Jr.:

It was put before the jury, Your Honor.

There is no question about that.

Ernest D. Preate, Jr.:

But the statute–

John Paul Stevens:

And I take it, if it had been a sentencing hearing as opposed to a trial… I suppose it all went to intent, and I am not suggesting it was improperly received, but if you’d had a test to… you know, a separate hearing on penalty only, that evidence would have been irrelevant, wouldn’t it?

Ernest D. Preate, Jr.:

–That’s correct.

It would have been irrelevant.

But the point of the matter is… that, by having the jury consider only the factors of first degree murder and robbery, and then they have to add the third element of whether that… that murder occurred in the perpetration of the robbery, that’s not a… that’s a step that had to be taken by this jury.

And that’s not a step that should be treated lightly.

So, in this particular case, the… the function of aggravating is to narrow the class of death eligibles.

And that… that’s… that’s good facet of Pennsylvania’s statute, because it helps to reduce arbitrariness.

Anthony M. Kennedy:

Well, in answer to Justice Stevens’ question, I… I assume that if the state were trying to show there were no mitigating circumstances, it could introduce much of this evidence, I… i.e., to show that he was not acting under extreme emotional or mental disturbance when he went back and… and told his accomplices in the car that he was going to kill the victim, and… and then discussed it with the victim for a while.

I assume that is all relevant to show that there is no mitigating circumstance.

Ernest D. Preate, Jr.:

It… it… Justice Kennedy, that is correct.

At that particular time the prosecutor could argue to the jury that… that this was the product of a mind that was not extremely emotionally disturbed, that… that there was some relevance to that in rebuttal to… to an argument that might have been proposed.

Anthony M. Kennedy:

They could do it in rebuttal.

Does it have to be in rebuttal?

Can you, under this law, the state, as part of your case on direct in the sentencing hearing, show no mitigating circumstances?

Do you attempt to do that?

Ernest D. Preate, Jr.:

The state would show no mitigating… you mean aggravating?

Anthony M. Kennedy:

Does the state… does the state show absence of mitigating circumstances in its case in chief in the sentencing hearing?

Ernest D. Preate, Jr.:

No, it does not, Your Honor.

It does not.

The only… the only thing relevant that the state can establish is whether or not the facts establish a valid aggravating circumstance.

And the jury then makes that determination whether they have been established.

And the jury can, and in… in numbers of cases, say no that they haven’t been established.

It is… it is then up to the defendant to proffer evidence of mitigation.

The jury must consider it; it is not precluded by this statute from considering it, and is not precluded from giving effect to that evidence under the Pennsylvania statute.

It can do that through the various eight categories that are listed as part of the Pennsylvania statute, in which mitigation… mitigating factors are spelled out.

And this jury in particular was told what mitigation was.

It said that something less severe… and these seven factors, specific factors, and the eight catchall, (e)(8), give content to just what mitigating is under the Pennsylvania statute.

It gives the kind of guidance to a jury that a state ought to give in helping its citizens reach such a momentous verdict.

So that that verdict is the product of… of rationality and reason, rather than emotion and unguided discretion, so that go… we don’t go back to the… to the arbitrariness of Furman.

Ernest D. Preate, Jr.:

This is precisely why Pennsylvania’s statute is in the center of all… of the spectrum of… of… of statutes that cover the landscape in the United States.

We’re not in the extreme of unbridled discretion, as some of the statutes may be, or close to that.

Nor we are… nor are we in the other extreme, where a statute requires the finding of death on the simple finding of first degree capital murder without any consideration of mitigating.

This statute provides a fair balance of… of the competing interests that are involved here, of arbitrariness, and it encourages individualized sentencing, and it… and it… it makes the… jury’s verdict one of appropriateness and rationality.

And when their final verdict is in, it’s the kind of case in which speaks clearly that this is… this defendant deserves the death penalty because of the aggravating factors here.

They are proven beyond a reasonable doubt and there are no mitigating factors, or the aggravating outweighed the mitigating factors that had been established.

I… I would… I would point out that the question before this Court is whether or not Pennsylvania statute is mandatory, and the Defendant again seems to walk away from it, even here at oral argument.

And… and I would suggest to the… to this Court, that the… that his argument on whether or not there is a sufficiency of weighing of the aggravating, or… that there is insufficient consideration of degrees of mitigating, has nothing to do with whether the statute is mandatory.

If you took the “must” word out of the there, the word that says that the defendant… that the jury must find the… the… the defendant guilty… excuse me, must impose the death penalty after aggravating are found and no mitigating, or aggravating outweigh mitigating, if you took that word and put “may” in there, it… the problem would still be there, because it is a Lockett problem, it’s an Eddings problem.

It’s not… it’s not a mandatory sentence… it’s not a mandatory statute under those circumstances.

So, we have, we… we really have to focus here.

I think, on… on… on what the question is that has been asked by this Court.

And this statute is not mandatory because it permits the jury to consider all relevant evidence in making a decision.

Mitigating, as mitigating factors, just as this Court has required, Pennsylvania has spelled them out.

This statute came into being in 1978 after Lockett.

Those factors are… are… are there because this Court has indicated to the states that… that juries need to be guided.

We have taken the advice of this Court and the states have decided that this is the way that they have gone.

There are 14 states that have similar statutes like Pennsylvania’s.

They have structured the mitigating to give it content.

They have… they added factors in there that permit mitigation to be considered.

In relation to the… the argument that the Defendant makes that… that they ought, we ought to weigh the sufficiency of the aggravating, I’ll address that even though it’s… I don’t think it is relevant to the question.

Because there is no… no case of this Court, neither does the Constitution require that we weigh the sufficiency of aggravating.

For example, your Jurek case, this Court did not have a… a weighing process approved there.

There was none under the Texas statute.

But… but the point to be made here is that Pennsylvania allows the circumstances of the offense.

And that’s all this Court requires, and that the Constitution requires is.

And the real question here is, does the jury get to look at the circumstances of the offense.

That is what the question is here.

And in Pennsylvania statute, they are required to look at the circumstances of the offense as a mitigating factor, just as this Court has said in Lockett.

And it lists them, all of them, that… that the major, as this Court has called them, the… the major categories of mitigating evidence, and then… then it provides an (e)(8) that the jury can consider, and this is what the judge in this case termed it, a catchall, that any other evidence of mitigation concerning the character and the record of the defendant, and the circumstances of the offense, are considered in mitigation.

Ernest D. Preate, Jr.:

And that–

Byron R. White:

I think that the verdict of the jury, and the way it was announced in court, was that the jury unanimously found no mitigating evidence.

Ernest D. Preate, Jr.:

–That is correct, Your Honor.

We differ from North Carolina in that respect.

And importantly, our court has interpreted our statute as not requiring a unanimity of finding of mitigation.

One juror finding mitigation, under Pennsylvania law, causes all jurors to consider all of those factors–

Byron R. White:

But the… and the verdict here–

Ernest D. Preate, Jr.:

–And the verdict must be unanimous.

Byron R. White:

–But the verdict here was that there was… they unanimously found no mitigating evidence.

Ernest D. Preate, Jr.:

That is correct.

And the statute… the statute gives the jury the option to do that, properly so.

There may not be mitigating in a case.

That… that there are cases in which there are no mitigating factors.

The Defendant seems to want the statute to say here is the evidence, and you must now find it, as if the statute should do all the work for him.

He ignores the fact–

William H. Rehnquist:

Well, what would the verdict have said, Mr. Preate, if one juror had found mitigating circumstances and 11 had not?

Would… would the verdict have… have read differently than the verdict in this case?

Ernest D. Preate, Jr.:

–Mr. Chief Justice, it certainly would.

It would have read, we the jury find, aggravating factor, and they would, must list the aggravating factor, they just, it is not… so there is review by the [inaudible] court.

William H. Rehnquist:

Okay, we know that, but let’s–

Ernest D. Preate, Jr.:

Pardon me?

William H. Rehnquist:

–Aggravating or mitigating?

Ernest D. Preate, Jr.:

It would have to list the aggravating and spell it out what they found.

William H. Rehnquist:

But I asked you about the mitigating.

Ernest D. Preate, Jr.:

If they found one mitigating–

William H. Rehnquist:

If one juror found one mitigating, and the other 11 didn’t.

Ernest D. Preate, Jr.:

–That’s correct.

William H. Rehnquist:

Well, how would the verdict read as to that aspect?

Ernest D. Preate, Jr.:

The verdict would read the aggravating outweighed the mitigating, or the mitigating outweighed the aggravating.

That is what the verdict slip would read.

Ernest D. Preate, Jr.:

We are different, therefore, from North Carolina.

That one juror, the concern that you had, Justice Stevens, would be able to give effect to his concern of the youth.

He might think that the youth of that… that defendant was mitigating, he would be able to give it effect, he would be able to vote for the… the finding… the finding of youth as a mitigating factor.

And if he did not find that the aggravating outweighed–

John Paul Stevens:

There was part of your brief on this subject… part of your brief on this subject puzzled me a little bit.

It seemed to me at one time you were arguing that an aggravating circumstance can be some of them are not quite as serious as others, and that a minorly aggregating is really mitigating.

Could the juror in this case have said that well, he only stole $13, so that’s mitigating?

Ernest D. Preate, Jr.:

–Certainly, because the… he could have… he could have… could have given effect to that evidence under, for example, (e)(7), the defendant’s participation in the act was relatively minor.

Or, without a label, without a label, under (e)(8), where the statute reads any other evidence of mitigation concerning the character and record of the defendant and the circumstances of the case.

John Paul Stevens:

So, in your view, a given circumstance can be both aggravating and mitigating at the same time.

Ernest D. Preate, Jr.:

It… it might be.

It might be.

There is certainly part of the same spectrum.

For example, if… I refer the Court to mitigating circumstance 1, the defendant had no significant history of prior convictions, and then on the other side, an aggravation, there is number 9, it says the defendant has a significant history of felony convictions, however, it is limited to those involving the use of threat or violence to the person.

So they are the same spectrum, and that is, whether the defendant has any record.

John Paul Stevens:

Even taking out those words, in one of your circumstances, as I remember it, is prior conviction of voluntary manslaughter.

That mandates the death penalty, but could you say that the defendant could say well, that’s really mitigating because they didn’t intentionally kill, or he, it wasn’t deliberate, or whatever the formula is to distinguish manslaughter from murder?

Ernest D. Preate, Jr.:

Certainly.

Under that… under the Pennsylvania–

John Paul Stevens:

So something the legislature has determined to be an aggravating circumstance that mandates the death penalty then can be considered by the jury to be mitigating.

Ernest D. Preate, Jr.:

–Certainly can, Your Honor, because he could introduce–

Antonin Scalia:

I’m… I’m not sure, is… is it really the same circumstance?

It seems to me the aggravating circumstance is that he stole money.

And the mitigating is that he didn’t… didn’t steal more than $13.

I don’t know that it’s the same one.

I don’t know… the fact that he stole $13, as such.

The fact that he stole is mitigating; the fact that he didn’t steal more… I’m sorry.

The fact that he stole is aggravating, the fact that he didn’t steal more than 13 is mitigating.

I wouldn’t… you really want to concede that… that it’s the same factor being used both ways?

Ernest D. Preate, Jr.:

–What I was responding to, Justice Scalia, was Justice Stevens’ point, that the prior conviction of voluntary manslaughter could be talked about as a mitigating factor under the Pennsylvania statute.

Ernest D. Preate, Jr.:

Because, number one, for example, (e)(8) says the defendant has no significant history of prior criminal convictions.

He could say that is not a significant history, and so argue the point of his prior conviction.

Antonin Scalia:

It is not a significant history, even though it mandates the death penalty if it’s found.

Ernest D. Preate, Jr.:

Well [inaudible], Justice Stevens, I don’t think that it mandates the death penalty.

The jury must–

John Paul Stevens:

In the absence of mitigating circumstances.

Ernest D. Preate, Jr.:

–The jury can consider… consider whether or not the aggravating statute, the aggravating factor has been proven.

The fact that he had a prior record of crimes of violence is what the aggravating factor is.

Antonin Scalia:

It seems to me that the manslaughter conviction would not be a mitigating factor.

The mitigating factor is that he didn’t have any other convictions beyond the manslaughter conviction.

Ernest D. Preate, Jr.:

That is possible.

Antonin Scalia:

The manslaughter conviction is an aggravating one.

The fact that he didn’t have any others is a mitigating one.

Ernest D. Preate, Jr.:

Well, that is possible, too, Your Honor.

That construction is possible too.

I suggest to the Court that… the important consideration here is whether or not this defendant could introduce and present to the… to the jury evidence of mitigate… that would mitigate, concerning his character, the record that he has, or the circumstances of the offense.

And as long as he is doing that, I think that the Pennsylvania statute, the statute permits him to do that, and the statute permits him to give it effect through its broad categories, that that statute is constitutional.

And it does it… and it does it precisely in the way that this Court in Lockett and Eddings has said, and that is as a mitigating factor.

Now, there may be something in the past that, or about this crime, that is mitigating, and… and he would have the opportunity to present it, even about his prior record.

He would have the opportunity to present it under this statute.

He is not precluded from doing that.

This is a… this is a statute that… interpret as a catchall, a broad statute, by our Supreme Court.

And I would like to then turn to–

Harry A. Blackmun:

Mr. Attorney General, just a matter of curiosity, how many people are on death row in Pennsylvania?

Ernest D. Preate, Jr.:

–There are 110 at this particular time, Justice Blackmun.

This is the first time that this statute has been before the Court for consideration.

We appreciate the opportunity here.

Harry A. Blackmun:

Have there been any executions up there recently?

Ernest D. Preate, Jr.:

Not, the last execution we had was in 1962.

This statute has been on the books since 1978.

Ernest D. Preate, Jr.:

There have been no executions that… pending the outcome of this case.

The important fact that I think also has to be remembered here in considering Pennsylvania’s statute, and Petitioner makes the argument that the jury is precluded from considering certain kinds of mitigating evidence because the enumerated examples of mitigation use words like extreme and substantial.

I suggest to this Court, in reality, this is no limitation for it.

It is the jury which makes the determination what extreme is and what substantial is in any given situation.

And since these words alone… since the jury alone decides what these words mean, they do not restrict the jury.

These words give content, as I have indicated, to what is meant by mitigating evidence.

And moreover, the, any evidence that does not fit precisely within the category of extreme mental or emotional disturbance, for example, or that the defendant acted under substantial domination, any evidence that does not fit in that category is considered in the catchall category, (e)(8), as referred to… as other, as any other evidence of mitigation concerning the character, the record of the defendant, the circumstances of his offense.

I think it is important here to recognize again the role of counsel in this process.

This is not a superfluous role, that counsel has the opportunity to present evidence under Pennsylvania’s statute.

He is not precluded from doing that.

He’s not precluded from having that evidence take effect.

He doesn’t have to put it under the label of extreme emotional disturbance, he could have the jury consider it in his… by presentation of the argument under any other evidence, that broad category of (e)(8).

And that’s I think what makes Pennsylvania’s statute a solid statute, that… that well balances the competing interests here that the Eighth Amendment through the Fourteenth Amendment requires of the states.

The Commonwealth is, in this particular case, has presented a statute to this Court for consideration that we do believe well balances those competing interests.

It is… it is… it fairly balances it, too.

Harry A. Blackmun:

And yet you haven’t really enforced it, have you?

Ernest D. Preate, Jr.:

Pardon me?

Harry A. Blackmun:

I say, yet you haven’t really enforced it, have you?

Ernest D. Preate, Jr.:

Well, our… our appellate court is required under this statute, Justice Blackmun, required in every death penalty case, to conduct three specific reviews.

And those reviews take considerable amount of time.

And I think it is important that our Supreme Court gives consideration to these cases so carefully.

It requires the Supreme Court to review the verdict, to determine whether it is a verdict that is not based on passion or prejudice, or some other arbitrary factor.

Harry A. Blackmun:

Of course there are those, I think Mr. Justice Powell among others, who have said if you are going to have a death penalty you ought to enforce it.

You have on death row the number of people equal to half of those in this room.

Ernest D. Preate, Jr.:

There’s those… there are those who will agree with that argument.

However, I think it is important, in my duty as the Attorney General of the state, would be to see that the laws are fairly enforced, and to ensure that every consideration is given to the defendant before the power of the state, the vast power of the state, is… is caused to take effect to an execution.

And so I support our Supreme Court in its careful review, and I support the process of appellate review.

And I think it is important, too, that our Supreme Court looks at the aggravating circumstance, it’s forced to look at the aggravating circumstances written down on the jury verdict.

And it is forced to see if that aggravating circumstance has validity in the record, there is evidence to support that finding.

So that we also have another review on the rationality of the jury’s verdict.

Ernest D. Preate, Jr.:

And thirdly, and lastly,… I am sorry?

Harry A. Blackmun:

When did this crime take place?

Ernest D. Preate, Jr.:

This crime took place in 1983.

The defendant was tried in 1984.

Harry A. Blackmun:

So that it… it’s comparatively recent compared to a lot of other cases that are pending across the country.

Ernest D. Preate, Jr.:

That… that is correct, Your Honor.

And finally, under Pennsylvania’s statute, a comparative proportionality review takes place.

And I think that the Pennsylvania statute has tried, the legislature has tried, given the exit… given its sovereignty under the Constitution, to take the kind of guidance that this Court over the years has set… set forth that should be taken.

And we have implemented in a fair way the… the–

If there are no further questions–

John Paul Stevens:

Mr. Attorney, I can’t resist saying I think the state is to be commended for not carrying out executions until the constitutionality of the statute has been determined in the first case.

Ernest D. Preate, Jr.:

–Thank you, Your Honor.

Thank you.

William H. Rehnquist:

Thank you, General Preate.

Mr. Gettleman, do you have rebuttal?

You have nine minutes remaining.

Paul R. Gettleman:

My rebuttal will be very brief, Judge… Mr. Chief Justice, and it would only be in response to just a couple of points that the Respondent made.

The Respondent seems to suggest that it is all right for the jury to weigh the strength of the aggravation, but the way it is done is it comes in through the catchall mitigating situation.

In this particular case, before the trial judge charged the jury, he said to them that he was going to list everything that they could consider as mitigation.

And then he went down the list and he suggested all the factors, the seven specific factors and the one catchall factor.

But a jury would have no way of knowing that if they found a specific aggravating circumstance, a felony murder by proof beyond a reasonable doubt, that they could then turn around and weigh that as a mitigating circumstance by a preponderance of the evidence under the mitigation.

There is no instruction whatsoever, and there is no way a jury could even have intuitively known that it was permissible for them to flip-flop on a particular aggravating circumstance, turn it into a mitigating circumstance, create a straw man and weigh the two against each other, and then come up with a… a determination as… as to whether an aggravating circumstance outweighed itself, or whether a mitigating circumstance outweighed itself.

Another thing that the Commonwealth had, or the Respondent had suggested, that it’s all right for a jury in Pennsylvania to consider just mental illness or substantial impairment, that that can be considered under the catchall phrase.

But, in a similar vein as California v. Brown, when the Court spoke about mere sympathy, well, you can’t take out that word mere, and in Pennsylvania you can’t take out the word other, as in other factors.

And other factors would be other than the first seven.

And if a jury who was going to listen to its instructions felt that the… the severity of the illness wasn’t extreme or wasn’t substantial, then they would be precluded from what this Court has suggested that they have every right to do, in Lockett and Jurek and those other cases, is to consider any mitigating evidence and give it the weight that it believes it deserves in arriving at the formula as to whether one outweighs the other.

And in conclusion, I think this Court has alluded to, and has specifically said through Justice Stevens, that there is a constitutional right to have the defendant… have the jury weigh the weight or the strength of the aggravating circumstance, even if it is weighed against itself, to make a determination that that’s the type and the strength of the kind of circumstance that would justify a death sentence as opposed to a lesser included sentence.

If there are no other questions, I have none.

William H. Rehnquist:

Thank you, Mr. Gettleman.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.