Burger v. Kemp

LOCATION: Florida Department of Labor

DOCKET NO.: 86-5375
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 483 US 776 (1987)
ARGUED: Mar 30, 1987
DECIDED: Jun 26, 1987

Joseph M. Nursey - on behalf of the Petitioner
William B. Hill, Jr. - on behalf of the Respondent

Facts of the case


Media for Burger v. Kemp

Audio Transcription for Oral Argument - March 30, 1987 in Burger v. Kemp

William H. Rehnquist:

We will hear arguments next in No1 86-5375, Christopher Burger versus Ralph Kemp.

Mr. Nursey, you may proceed whenever you're ready.

Joseph M. Nursey:

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

At the time of the offense Chris Burger and his older co-indictee were privates in the United States Army stationed at Ft Stewart, Georgia.

They were drinking heavily at a club on base, and when they ran out of money, the co-indictee devised a plan where they would rob a cab driver to obtain some more money.

The cab was called out to the base, and after riding with the cab driver for awhile, on a prearranged signal, the robbery was accomplished.

After the robbery was accomplished, the co-indictee forced the cab driver into the back seat of the cab where he sexually assaulted him, and the cab driver was forced by the co-indictee into the trunk of the cab.

Chris and the co-indictee continued driving to the Savannah, Georgia airport, where they went to pick up a fellow soldier who was flying home... was flying back to the base from his home.

This fellow soldier is the only uninvolved eye witness to any of the incidents which occurred that night.

This fellow soldier testified that during the ride from the Savannah, Georgia airport back to the base, the co-indictee was essentially gloating and bragging about the crime, while Chris essentially was driving the cab silently, occasionally agreeing with some of the statements that the co-indictee was making.

When the co-indictee during the drive suggested that they should kill the cab driver, Chris argued against this and said that they should just release the cab driver and get rid of the cab.

After the... after the fellow soldier was dropped off at the base, they continued riding in the cab for a period of time, and then the co-indictee directed Chris to drive the cab to an area in the woods in rural Wayne County, Georgia, that both he and Chris were familiar with.

The cab was parked at a pond at... in the woods.

The co-indictee then removed the CB radio from the front of the cab, and taking the CB radio to dispose of it in some bushes.

During this time, Chris opened up the trunk of the cab and asked the cab driver if he was all right.

After receiving an affirmative reply, he closed the trunk of the cab.

By this time, the co-indictee had returned to the cab and Chris began to walk away, and the co-indictee asked him, where are you going?

And Chris said, we're leaving now, aren't we?

And the co-indictee said, no, we've got to get rid of the cab, and directed Chris to drive the cab into the water, which he did, resulting in the death of the cab driver.

William H. Rehnquist:

When you say, he directed him, what do you mean by that, Mr. Nursey?

Joseph M. Nursey:

He... as Chris was starting to walk away, the co-indictee said, we have to get rid of the cab.

And he told Chris, you drive the cab into the lake, which he did.

William H. Rehnquist:

Was he a superior officer or something like that?

Joseph M. Nursey:

He was an older person.

They were both privates in the Army.

The order in which I'd like to address the issues before this Court is the failure of Chris' trial counsel to conduct reasonable investigation, a reasonable inquiry for the sentencing phase of trial; then the pervasive conflict of interest that existed in this case; and then the burden-shifting jury instruction on malice and intent that was given at the guilt-innocence phase of the trial.

The most important consideration in the death sentence which Chris received in this case is that this death sentence is not reliable as society's reasoned moral response to Chris' individualized background.

Chris was twice tried in Wayne County, Georgia.

After the first trial, the Supreme Court of Georgia affirmed the conviction but reversed the death sentence, sending the case back for retrial solely on the issue of sentencing, and he was again sentenced to death.

At both of these trials, the jury had absolutely no knowledge of the individualized characteristics of Chris or his background other than the state's version of the crime for which he was convicted.