Jurek v. Texas – Oral Argument – March 30, 1976 (Part 1)

Media for Jurek v. Texas

Audio Transcription for Opinion Announcement – July 02, 1976 in Jurek v. Texas
Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Warren E. Burger:

We will hear arguments next in 75-5394, Jurek against Texas and 75-5844, Roberts against Louisiana.

Mr. Amsterdam you may proceed whenever you are ready.

Anthony G. Amsterdam:

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

As I know the Court has already been informed, during the first hour I shall be presenting the argument for the petitioners in both, Jurek v. Texas and Roberts v. Louisiana and the respondents in both of this two cases will then reply seriatim during the next hour.

Since these are the first of five cases in which the Court will be considering the constitutionally under the Eighth Amendment of varying in forms of capital punishment.

It may be useful of the outset to give the Court a brief description of the present state of capital statutes in the country, statutes now in effect and of the representative character of five that are in now before the Court.

Decision of these cases may go in broader and narrower grounds and I think it is useful for the Court to know how these cases fit against the total picture of capital legislation in the country.

Since the Court’s 1972 decision in Furman, capital punishment statutes have been enacted in 35 states of which 34 are now in affect because the Illinois Supreme Court has struck down the constitutionally of that state death penalty statute on the variety of state and federal grounds.

Potter Stewart:

Did the Massachusetts Court not also strike down its statute?

Anthony G. Amsterdam:

Yes, Mr. Justice Stewart, but was pre-Furman statute and I will come to those in just one moment, if I may.

I am talking only about statutes enacted since Furman.

The federal government of course has also punished with death, certain killings in course Air Piracy.

Now, these various statutes range in breadth in terms of the crime which is made capital, from the federal statute on the one hand which is narrow one and the statute in Rhode Island which punishes murder by a prison inmate, to broad statutes which make all first degree murders punishable by death and sometimes other crimes as well.

The pre-Furman statutes which this Court mentioned in Furman and whose constitutionally were reserved or I should say largely out of the picture now because they had either been superseded by new legislation as in Ohio, Rhode Island, Virginia, or in Massachusetts where they were not, the Massachusetts Supreme Judicial Court has invalidated as cruel and unusual punishment the pre-Furman rape-murder statute in that jurisdiction.

So, we are basically talking to that, about the 34 post-Furman statutes or 35.

Now, these assume a variety of forms, but I think they can fairly be characterize into four major categories.

First of all there are the statutes which involve a bi-fabricated trial, a two-stage trial proceeding, during the first of which, the jury determines whether the defendant is guilty of a crime to find this cap and during the second stage of which the jury considers or the judge considers and this may differ from jurisdiction to jurisdiction, there has been advisory jury, a list of aggravating circumstances and a list of the mitigating circumstances or there may just be aggravating circumstances as in judge with no listed mitigating circumstances, but the unique characteristic of this group of states is a weighing process in which aggravating and mitigating circumstances are supposed to be balanced in some way to determine their sufficiency for the purpose of the imposing the penalty of death.

Now, there are eight states which has have that kind of statute of which statutes of Florida and Georgia, now before the Court are quite represented.

The second of the four categories are statutes which require a finding of some specified fact, where circumstance or condition, in addition to the elements of the crime described as a capital crime, which has to be found, which must be found in order to support the imposition of the capital punishment.

Now, these statutes sometimes have a two-stage proceeding bifurcated trial.

Sometimes they have a one-stag proceeding.

Sometimes as in Wyoming they have both, that is depending on the crime, but the important characteristic here is that there is no weighing or balancing process.

Inquiry is made whether a particular circumstance and aggravating feature exists.

If it does then the death penalty is be imposed.

Sometimes there is a provision that if the aggravating circumstance is found, but a mitigating circumstance is also found, that the death penalty shall not be imposed.

This is the federal statute for example, the Air Piracy Statute and Texas is very good example of this kind of thing.

In Texas, as we will see shortly when we get to the Texas Statue, it is not enough to convict the defendant of capital murder in order to sentence him to death.

In addition to that, three special verdict questions are submitted to the jury and life or death depends on the answers to those three questions.

Now, the Texas Statute is the representative statute and that group is before the Court now.

It looks a little different on its face than many of the other statute in this category because it has this rather unique feature about the determining whether there a probability that the defendant would engage in a continuing course of criminal violence and would be a danger to the society, but it is interesting that the Texas Court of Criminal Appeals has read into it, some of the ALI aggravating and mitigating circumstances by saying that you answer that question by saying whether the defendant acted under duress, whether the defendant had emotional troubles and that sort of things, so Texas is a fairly representative statute of this second group.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Anthony G. Amsterdam:

Now, that has nine states in it plus the Federal Statute.

Alright, now third group of capital statutes.

The third group of statutes where, again, capital punishment turns on finding some particular designated fact or condition, but here the fact or condition is built into the definition of the capital crime as element of the crime and here we always have a single verdict trial by the definition and what we are talking about is states in which something narrower than first-degree murder is punishable by death, it maybe called capital murder, and maybe first-degree murder in five situations, but the Jury has to find at the single verdict trial whether the case falls within those situations.

Here there are 11 states and the Louisiana Statute is perfectly exemplary of those states.

The final class is the simplest to describe.

It is simply statutes making all first-degree murder capital, using the fairly common and traditional outlines of first-degree murder that is premeditated and deliberated murder, felony murder, the usual what has always been of some local variation.

First-degree murder in this country and there are seven states in that category and, of course, North Carolina is representative of that.

My bottom-line is obviously that this Court is seeing in the five statutes here before the Court, although all of these statutes are vary bit by bit, a very representative set of the capital punishment statutes which are now in effect in this country.

Now, I want to make one minor point and three major ones about that general description.

My minor point is that these statutes which were summarized in the appendices to the briefs, have to be looked at with some caution in mind because they generally do not fully reflect the local law governing the application of death penalty.

For example, the Georgia Statute says in terms that after a conviction of capital offense, the Court shall resume the trial and hold the penalty trial.

But in fact we know and briefs demonstrate that, a solicitor at that point can simply waive the death penalty and there will be no penalty trial.

The brief of Colorado Public Defender System’s amicus curiae in this case points out that the similar Colorado practice is simply to stipulate not to have a penalty trial that practice is used in Texas as well so that there are variety of outlets that do not appear on the face of the statute when the Court examines the description of statute it would be aware of that.

Secondly, there are, of course, general principles of criminal procedure that make these statutes look differently than they look on their phase.

A good example is California where in theory, again, after the defendant is convicted of a capital of crime, the Court if the so-called special circumstances, aggravating circumstances are alleged in the indictment, shall convene a penalty jury.

However, there is a general principle of California Criminal Procedure under 1181 sub-division 7 of the Penal Code, that a Trial Judge has complete discretion to strike from a in indictment allegations of factual matters which enhance penalty, so that the aggravating circumstances can be struck out at the discretion of the Court.

I simply am going to give a sense that the statute should not taken as they are written.

There are couple rather obvious propositions.

One, the statutes are tidier in print than they are in operation and number two, they are a lot tidier at this point in time than they will be if they go on for any period of the time because of the natural tendency of any system to develop shortcuts and outlets and that sort of thing.

Now, the three major points that need to be made.

First, the use of the death penalty at this point in time is therefore characterized in this country by elaborate winnowing processes, involving a selective screening of cases potentially subject to the death penalty and an array of outlets for avoiding the actual use of the death penalty, either by the second stage penalty proceedings in which aggravating and mitigating circumstances are either balanced or adjudicated or else by definitions of the capital crime which narrow the capital crime and set it off from others along often intangible and impressionistic lines.

The contrast I think is striking between capital punishment as it is authorized by these statutes and the next more severe penalty known to our law, life imprisonment, where if you look you will find statute —

Harry A. Blackmun:

Mr. Amsterdam what did you say was what like what, the second most?

Anthony G. Amsterdam:

Life imprisonment.

Harry A. Blackmun:

You do not think this compelled by the holding in Furman?

Anthony G. Amsterdam:

I am sorry?

Harry A. Blackmun:

You do not think this is compelled by our holding in 1972, what you just said?

Anthony G. Amsterdam:

No, all I was saying at the moment was draw to a factual distinction between the ways in which the states statute use capital punishment and use life imprisonment, it is ultimate thrust of my argument, yes.

Harry A. Blackmun:

And all I am saying is or asking was this not compelled, this very thing compel by our holding in the prior case?

Anthony G. Amsterdam:

No, I do not think that it was necessarily, Mr. Justice Blackmun.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Anthony G. Amsterdam:

That is the way the states chose to use capital punishment, the decision to have a very narrow class of cases to draw the lines to have aggravating and mitigating circumstances.

I think the very variety of responses indicate that the states could have responded by making all crimes, including jaywalking punishable mandatorily by death, that would have been response to Furman as well.

The particular form which the response took was not dictated by Furman, although of course, the response was a response to Furman.

Harry A. Blackmun:

Are you surprised that we have these new statutes?

Anthony G. Amsterdam:

No, but I think it is remarkable, even though our submission does not basically turn on the nature of there legislative shape, I think it is significant that the statutes are as narrow as they are and the contrast I am seeking to make is between life imprisonment statutes which exist in 52 jurisdictions in this country for 408 crimes without all of these elaborate post talk justifications, the special circumstances, trials, the aggravating and mitigating circumstances, and the very narrow roster of a capital crimes all encrusted with and surrounded by procedures which permit selective application and draw the bottom-line, wholesale evasion of the provisions of the death penalty statutes.

Harry A. Blackmun:

Well, of course selective application is what you argued before twice, is it not?

Anthony G. Amsterdam:

Yes.

Harry A. Blackmun:

And you cannot have been surprised, if you read the opinions in 1972 because this kind of thing was forecast, at least in one opinion?

Anthony G. Amsterdam:

The suggestion was certainly made that the legislatures might respond this way and what I am describing simply is I think something that one might not have predicted which is the perpetuation of a whole array of mechanisms for selectivity after Furman.

You might have expected simply that the states would come back and enact mandatory death statutes, for the most part they have not.

For the most part, they have come back with these highly elaborate and articulated winnowing devices.

Now, I am not suggesting for the moment Mr. Justice Blackmun, I think the mandatory statute is mandatory in any sense and that is the point I am going to come back to the moment, but in specific answer to the question, I do think the form that the statutes have assumed is indicative of something less than a broad based acceptance of the death penalty in our society.

It is a regular part of the penal armamentarium of American Society, Life imprisonment, yes, broadly accepted, generally accepted, no particular care to winnow it down, but when the death penalty is involved, all of these selective procedures.

Now my second major point is that in addition to these winnowing devices, there are other procedures in every state in here I come back the mandatory death penalty statutes, so called mandatory death penalty statutes, which permit additional outlets through which potentially capital cases can be processed to non-capital conclusions and the dearth penalty can averted from some defendants, while being applied to other defendants in distinguishable cases on unaccountable grounds.

Some of these procedures are unique to capital cases.

For example, the statutes may provide that in order to charge capital crime, there must be special allegations in the indictment which the prosecutor can simply choose not include.

Some of these procedures are not unique to capital case.

There are common to non-capital and capital cases, but they assume particular importance in capital cases such a commutation, for example, where the action has always been on the death case.

The attention or focus of concern, the intensity of using that sort of thing or the procedures very commonly found in jurisdictions where otherwise lesser offenses are not submitted generally, that in capital trial the judge will always, as matter of routine, give the jury the lesser options, so that it can let the defendant off the death penalty.

Some of these outlets and procedures are common in all cases, but assume a particular character in significance in capital cases for a variety of reasons I am going to come back to, but the most important of which is that the life death decision is inevitably enormous out of all proportions to the factual differences in the particular cases in which the choice of life or death is made and the nature of the decision by judge or jury to kill a human being, involves an intense, unique, condemnatory judgment that has to be made in often sensational atmosphere of the capital trial.

Now, the third point and this will lead me into the constitutional issues specifically about the general array of statutes, Is that I think the difference is among the states are less impressive than the similarities.

Although these states differ in technical detail, the government’s brief I think is right in it is amicus presentation in talking collectively about all of them and describing all of the administration of criminal justice in this country as providing, if you will, the road to death with avenues that discretionary mercy shooting of from the beginning of the process to the end.

The avenues are different in different jurisdictions.

They work differently as technical matter, but basically the sameness, the remarkable sameness of this process appears in all of the five records and all of five statutes that this Court has and in the other statutes as well.

Now, that brings me to the two constitutional submissions which are made by the petitioners Jerry Lane Jurek and Stanislaus Roberts in these two cases and by the petitioners and the companion cases and they are first, that death sentences imposed pursuant to systems of arbitrary selectivity of this sort are unconstitutional under Furman.

The square a holding in the Furman decision rightly concedes, compels that result and secondly that apart from this specific holding in Furman, the death penalty as it is used or as it is proposed to be use today is an excessively cruel punishment when it is assessed against the history of this country’s use of the punishment in this century.

Now, these are separate contentions, although they are closely connected and in part three of our brief in Jurek we describe the interrelationship as best we can between the two arguments.

Potter Stewart:

Mr. Amsterdam, if I may interrupt you before you proceed.

I want to be sure I understand your second point.

You qualified it.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Potter Stewart:

You said the death penalty as composed to be used today, what it is that qualification mean, if anything?

Anthony G. Amsterdam:

Mr. Justice Stewart, I misspoke myself.

I said the death penalty as it is use until somebody dies it will not be used and all I meant by the qualification was that states are proposing to use it in these cases.

I put the qualification important because we still do not know how these statutes will be used, executive clemency, further proceedings that sort of thing remains.

All I meant to say was that we are challenging in our second contention, the forms of law under which, it is now proposed to execute people in United States.

Potter Stewart:

But your second contention was broader that the execution of a death sentence upon conviction in any state of a person of any crime is a cruel and unusual punishment, no matter what the technique, whether it be electrocution or hanging or shooting or gas chamber and no matter how is serious the offense —

Anthony G. Amsterdam:

That is —

Potter Stewart:

— and no matter how much how completely a fair trial he may have been given, now is that not your point?

Anthony G. Amsterdam:

That is precisely the second contention, yes.

Potter Stewart:

That is what I thought.

(Inaudible)

Anthony G. Amsterdam:

Oh! Yes! They are both cruel and unusual punishment arguments and nothing else.

Warren E. Burger:

But your point, I take it, the point you have made on both of these aspects is that there can be no statute by a state to avoid the contours that would meet the problems posed by the two separate opinions which did not join the plurality in Furman, is that right?

Anthony G. Amsterdam:

I would distinguish Mr. Chief Justice between our two arguments.

I think that the first argument does not necessarily assert that proposition.

I think that the first argument asserts that and this is why we have turned out 40, 50, 60-page briefs in each of these states, that an accurate, appropriate assessment of the way the criminal justice system functions under the laws of each of these states demonstrates a quality of selective decision making which is arbitrary both in its potency, its potentially and in fact in the way which it operates, which brings the capital punishment statute to those states within the two opinions to adjourn or referrals.

That not does necessarily say that no other statute could ever be drafted or any other procedure might not be come up with, that might meet it.

The second argument thus —

Warren E. Burger:

I got intimation is that you thought that since there is always an initial discussion on the part of the prosecutor and that other, the far end, a power of clemency by an executive, that if those two things are present then no statute can meet these standards?

Anthony G. Amsterdam:

I would eventually take the position, Mr. Chief Justice that one or the other or certainly both of those two things in combination would a render a statute bad under the first of our two arguments, but that is not a position that needs to be taken in this case because in both, the Jurek case and the Roberts case and in the next three cases that are coming up, we have prosecutorial charging discretion, prosecutorial charged reduction discretion, discretion by the jury at a guilt phase, sometimes at a punishment phase and in addition a discretion at the commutation stage or it maybe in Louisiana, you do not even have to formally have commutation, you do not have an execution once the governor signs a warrant.

Now, when all those things are in the system, our contention is that the two opinions to which Your Honor refers, outlaw the death penalty.

Byron R. White:

I take it that you are going to tell us, why you think so?

Anthony G. Amsterdam:

Pardon?

Byron R. White:

I take that you are going to tell us why you think so?

Anthony G. Amsterdam:

Yes, at the moment I am responding, I will get there and indeed I hope to get there right now.

Let me describe the Texas Statute for the Court.

By the way, just one word before I do and this is in the nature kind of an index through the briefs.

I just want to point out that the primary briefing of this argument is in part two of the Fowler (ph) brief that we did not re-repeat these arguments.

I know it is difficult to read and apologize for that.

We thought it would be more difficult, if the Court had to read the same darn thing, six different times.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Anthony G. Amsterdam:

The major argument about discretion and why we think that the system is brought within the holding of Furman is made in part two of the Fowler (ph) brief.

There is in appendix to the Jurek brief at the pages 2-27 and 2-42, a further development of that argument in terms of the theoretical basis that we thought we did not have to establish again after Furman, but since the Government has made a somewhat veiled challenge to Furman itself, we thought it was worth repeating in laying before the Court again the theoretical principle that perhaps the most important function of the Eighth Amendment serves in a democratic society is to protect against penalties which are cast in such a form that through discretion in their use they can be applied selectively and sporadically to a numerical fuel, so that the ordinary pressure is on legislation to keep criminal penalties descent or diffused and that is found as I said in the Jurek appendix.

Now, the Fowler (ph) brief is written in terms of premeditated and deliberated murder, however, I just want to call the Court’s attention to the fact in Woodson and Waxton (ph) brief, in North Carolina brief, we draw the parallel between felony murder and other kind of murder.

We thought it was most useful to draw that parallel there because the Court could thus compare North Carolina Law as to both felony murder and premeditated and deliberated murder.

And finally, part two the Jurek brief and part of the Roberts brief discuss the specific procedures in Texas and Louisiana that we challenge.

Now, Mr. Justice White with my apologies for having going amiss let me come back and answer Your Honor’s the question, if I may, which is the critical question I think.

Let me describe that Texas statute involved in Jurek.

The Texas statute is a bifurcated trial statute, in which capital trial is divided into two stages.

The first, to the determine guilt and to determine specifically whether the defendant comes within one of the five categories of murder which are defined as capital murder which make his crime punishment by the death or life imprisonment.

If he is found to fall within one of those five categories and there is a second stage, at which the life or death choice is made, by the submission of specific questions to the jury to answer.

Let me start by describing the second stage, the so-called sentencing proceeding not because this is the only stage at which arbitrary selectively enters into the choice of those who have not died, but because an examination of that stage will point up how little change has in fact been made from the statutes as they existed in Texas and elsewhere prior to Furman.

The first thing, I want to note is that at the outset of a Texas Capital Trial, the jury is death qualified.

It is required to be death qualified by statute and it is required to be told prior to trial that the question of life or death is an issue and the Texas Court of Criminal Appeals has held that Furman governs that death qualification for reason I think is quite important realistically in assessing the Texas Statute.

And I refer to Howella (ph) case which is cited on Page 48 in a footnote of our brief in which the Texas Court held Furman applicable because it said, “The fact remains that the jury will know that their answers to the specific questions, submitted at the penalty phase, will determine whether the defendant is to be punished by death or life imprisonment.

To say that the jury’s answers would not affected by their attitude toward the death penalty as a punishment for crime simply because they will not bring forth ultimate verdict, simply because the law attaches death to the answer to factual questions, would be to disregard the obvious.

Now, in petitioner’s case —

Disregard the obvious?

Anthony G. Amsterdam:

Disregard the obvious.

In other words, the Court is saying look everybody knows that when the jury answers these questions.

In petitioner’s case the following proceedings occurred and you know one of these marvelous things lets the cat out the bag, page 62 of the brief.

During the death qualification of the jury, the judge says to the jury, trying to figure out whether they are at — explain to them why they are being death qualified.

The questions you are called upon to answers whether it is two or three, you must answer them anonymously, if they are going to answer them in affirmative.

In other words, you must answer them yes.

If it is your decision that death penalty should be invoked by the Court, not by you, it is mandatory on the part of the judge to enter the sentence.

In other words, under this mandatory scheme in which specific factual questions are being submitted to the jury, what the judge is saying to the jury is, if it is your decision that the defendant should be sentenced to death by the law then answer to the question is yes.

This is the way in which, in fact, the jury will understand it and the way in which in fact the statutes operate.

Potter Stewart:

But always the same jury in Texas, Mr. Amsterdam in both phases of the procedure?

Anthony G. Amsterdam:

Yes.

Potter Stewart:

Always the same by law, the same jury?

There cannot be a second jury for the trial?

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Anthony G. Amsterdam:

Texas Law anticipates one jury.

Potter Stewart:

Yes.

Anthony G. Amsterdam:

Now, two of these three questions and of course the relevant questions are set out at page 8 of petitioner’s brief, two of the three relevant questions that are submitted for the jury’s consideration at the penalty phase are submitted in every case without regard to the evidence and one of them is submitted, if it is raised by the evidence.

Now, the first question, warning question three whether the conduct of defendant causing death was the committed deliberately and with reasonable expectation that death would result and whether there was provocation, are questions which the jury has already answered before finding the defendant guilty of capital murder because the definition of the category requires a resolution of both of those issues.

The respondent does not dispute this, but simply says in it is brief that it would not be a logical to rephrase substantially the same question in other way before imposing the death penalty given the infinite variety of human conduct and the imprecision of the English language.

The plain fact remains, however, that the jury is being asked to use the same criteria, both to put people into the class of capital murderers and then to the distinguish among those in the class with the result that this a clear invitation to the jury to deal inconsistently with the facts in it is supposedly factual answers to supposedly factual questions if it wishes to spare the defendant’s life.

The second statutory to a question is whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Now, I am cannot rehash the obvious problems to that question which we noted both by the dissenting opinions of two out of five judges of Texas Court of Criminal Appeals and have been noted in Professor Black’s book.

The one thing that I do want to hammer home, I think it is awfully important because I think that the way these statutes operate is the real answer to Mr. Justice White’s question and the real to the consistency of these new statutes with Furman.

I think it is important to hammer home how this record shows this provision is going to be applied.

In this case, the evidence on which the jury solemnly decide that the defendant, that there was probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, that evidence consisted of one; the fact that defendant have committed a capital murder which of course is true in all cases and two; the one line hearsay opinions of four local citizens in the community that the defendant’s reputation for peace and good order was bad.

Now, this case was tried under this statute exactly the way it would have been tried before Furman.

The state’s position was simple.

The defendant is reprobate, the defendant killed daughter of local peace officer, the defendant ought to die.

Those prepositions have nothing to do with the issues submitted under Texas Statute which theoretically guide the jury sentencing decision.

In fact, however they determine life or death and the ironic thing, the thing that is most devastating I think, is that you cannot even challenge the jury’s finding because the question to which it responds are so meaningless.

You can say on this record that the jury in this case found without sufficient evidence, that the defendant was guilty of capital murder on the theory of attempted forcible rape.

I mean, that is a question that has meaning and the answer to it is that the evidence here is not sufficient.

That is the kind of question you can challenge and answer, but how can you, even on the absurd basis on which this jury condemned this defendant to die for hearsay statements that the defendant’s reputation is bad.

How can I say that the evidence is or is not sufficient to establish that there is a probability that the defendant may engage in the future criminal conduct that may be a danger to the community.

The question is to void of intangible meaning and the answer is unchallengeable and Mr. Justice White that is one of the reasons why the statute is exactly where we were in Furman.

The issue of life or death is simply commit to a unfettered power of the jury without accountability or review, the determination being made in the answer to supposedly factual questions which are simply predictive judgments as disguised for determination of life or death, no less free, no less in unfettered, no less arbitrary than prior to Furman.

Now, this explicit sentencing discretion is itself both precedent and followed under Texas procedure by a series of other equally arbitrary decision making processes that decide the question of life or death.

The respondent again is not —

John Paul Stevens:

Mr. Amsterdam, before you leave the jury point and go on to other aspects of discretion, do you think your position on this aspect of the pick-array of discretion is consistent with the McGautha holding?

Would you discuss that?

Anthony G. Amsterdam:

Yes, in one sense it is and another sense it is not.

To the extent that Furman is not consistent with McGautha neither is our position, but I do not think Furman is inconsistent with McGautha.

When I come back to deal with overall issue of not only jury discretion, but also the other stages, one of the points that I would like to make and let me anticipate it at this point in answer to Your Honor’s question is that what the federal constitution is primarily concerned with is not specific state procedure in their shape or form.

It is the total impact of state process on the federally protected interest and rights and that is why I think that McGautha —

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John Paul Stevens:

Let me rephrase the question so you have it in mind.

Do you think that the distinguish McGautha, you must rely on matters such as executive clemency and prosecutorial discretion or may you do just within the area Jury of the discretion?

Anthony G. Amsterdam:

No way.

I think that we do not have to rely on that.

I think the jury discretion alone make this statutes bad under Furman, not withstanding McGautha and the reason for that is that what McGautha was concerned with was the validity of specific procedures used by the state and our whole point is that Eighth Amendment question is not a Due Process question of the validly of this procedure or that procedure.

It asked about total impact, the result of the state procedure on federally protected interest.

Now Furman, some has said is inconsistent with McGautha, some have said that the jury discretion which was recognized in Furman as invalidating the death penalty under Eighth Amendment was no more or less than the jury discretion that the McGautha and how it is consistent with the Fourteenth Amendment.

If you take that you and I do not, then our position is inconsistent with McGautha, but my I am answer to your question specifically Justice Stevens is, we would rely on jury discretion alone without anything else if they were nothing else.

We think that the is squarely controlled by Furman and we think that the Furman is not in consistent with McGautha because Furman is an Eighth Amendment decision which looks to the consequences of jury discretion rather than simply whether the procedure is good or bad.

I would like to talk to the broader question of the impact not only of jury discretion, but all of these processes in tandem, not so much in connection with Jurek, but rather Roberts because it will be easier to put them all together there.

So if I may, let me just describe now, the parallel process in Louisiana and then see if I can draw it all together.

Louisiana Procedures for the handling of capital cases have much in common with those in Texas and other states, but they also have certain localized features that deserve some mention.

Louisiana has unitary trial procedure, a one state, not a bifurcated procedure and the decision whether the defendant shall suffer death is made at this single stage trial by a verdict determining whether or not this case falls within one of five categories, designated as first-degree murder in the Louisiana Statutes.

Prior to Furman, Louisiana did not divide murder into degrees.

It provided that all murders were punishable by life imprisonment or death.

Then as now, murder cases were tried under a single stage procedure.

Then as now, they were governed by the characteristic Louisiana procedure of what they called responsive verdicts.

In Louisiana, there is statute there is a statute provides which verdict should be submitted to the jury upon any charge of a given offense.

Now, prior to Furman, the responsive verdicts that had to be submitted to Louisiana jury on a murder charge were, guilty which carry the death sentence, guilty without capital punishment which is of course a verdict of death penalty, guilty of manslaughter and not guilty.

When it became apparent that this scheme has been invalidated by Furman because it offered the choice to the jury of guilty verdicts with and without capital punishment.

The legislature enacted a new law in 1973 which now provides is as follows.

Murder is subdivided into first and second-degree.

The responsive verdict statute has correspondingly been amendment and now on a trial for capital first-degree murder, there are still four responsive verdicts; Guilty of first-degree murder which entails the death penalty; guilty of second-degree murder which of course averts the death penalty; guilty of manslaughter and not guilty.

Like the four responsive verdicts submitted to the jury prior to Furman, these four responsive verdicts must be submitted to the jury in every capital case without regard to the evidence and whether or not there is a slightest evidentiary basis for finding the defendant guilty of anything less than first-degree murder.

The jury is death qualified in advance so that they know the their choice of verdicts determines life or death and the bottom-line in short is that jury is permitted to return a non-capital, second-degree murder verdict in every first-degree murder prosecution.

This is called the Louisiana Law and always has been.

If the Court would look at page 62 and 63 of brief in Roberts, Louisiana Supreme Court puts it this way under our peculiar jurisprudence when trials for murder, the jury may find the prisoner guilty of manslaughter, although the evidence may show him to be guilty of murder.

Next page; the Peterson case.

In Louisiana where there is evidence to prove the greater offense, it is the jury’s province to determine the existent of well known of lesser culpability and exercise the statuary right to return a manslaughter verdict.

This Court will now look to the evidence to make such a determination, that is now to a second-degree for which Louisiana Legislature has now upped the minimum penalty to 40 years to life, so that what is has done in this pass of legislation is in fact give the jury a non-capital option exactly like they had before, except the names of the verdicts have been changed.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Anthony G. Amsterdam:

Now, it may be useful here to compare the practice in Louisiana with that in other states because this Louisiana practice is also quite common, although it is not called responsive verdicts and there is no statuary basis for it elsewhere.

Some states like Florida for example which is before this Court in one of the five cases always submit lesser degrees of homicide to the jury regardless of the evidence, just like in Louisiana.

The state’s brief in Florida seems to suggest that that is not so.

That the submission of less sentence depends on the evidence, but the states pretty simply fail to draw out the distinction that Florida Law draws which is distinction between lesser degrees of an offense and lesser totally different offenses.

In Florida lesser degrees of an offense are always submitted without regard to the evidence so —

John Paul Stevens:

Mr. Amsterdam let me interrupt again to be sure I understand your argument.

Is this argument you are making now about that total discretion of the jury to return a non-capital verdict depended all on the size of the category of capital crimes?

Supposing just one crime, say Air Piracy and nothing else and assume for the moment that your second argument fails, would your argument about total discretion render such a statute unconstitutional?

Anthony G. Amsterdam:

My position —

John Paul Stevens:

Let me rephrase it just a little bit before you.

Is your argument affected at all by the universe of capital crime?

Anthony G. Amsterdam:

The answer to Your Honor’s second question is yes, although I would have said it in my view even the narrowest capital crime would be assailable on this ground, if there were total discretion with in it.

However, I could see one who rejected that argument nevertheless saying perhaps where a statute like killing a guard by a prison inmate under a present life sentence, something like that, that may be so narrow in terms of the group that it hits that you might allow something in that kind of the case that you would not allow for punishment for all first-degree murders.

John Paul Stevens:

And why?

Anthony G. Amsterdam:

I myself am not arguing that.

John Paul Stevens:

So now why would one that and be consistent with your argument?

Anthony G. Amsterdam:

I think that one might do it on the ground that the amount of arbitrariness which is exhibited in practice might be thought to be diminished by the smaller range over which you have to apply it.

However, Mr. Justice Stevens, I would argue the other way which is that the smaller the range, the more arbitrary the distinction because the cases by definition are all the same to start with, that is they are so close together at the beginning that discretion within those cases is more arbitrary and that is why, Your Honor, I find it difficult to answer conclusively to the question, I do not think it makes a difference.

In my argument, if I were arguing that kind of the case, I would say even the narrowest beats a definition of a crime.

If it allowed total and absolute discretion to sentence the life or death within it or glossed over that discretion, papered it over with these kinds of procedures would be bad.

But I could see, Your Honor, a possibility that one might disagree with that, but still not these statutes then because they are broad.

Now, as far as I say in a number of other states, always submit as in Louisiana, lesser degrees without regard to the evidence.

In some states, like Georgia and North Carolina and Texas which are now before the Court, lessers are theoretically supposed to be submitted only where there is evidence to support them.

However, in fact a couple of practices should be noted.

First of all, appellate decisions admonish trial judges to submit, to err on the side of submitting lessers in any case where the question is doubtful.

Secondly, convictions of unsupported lessers that is if judge in the case where the evidence shows only first-degree murder, submits second-degree murder and manslaughter and the jury convicts of second-degree or manslaughter, the Appellate Court, virtually everywhere affirms on the ground, well the Texas statutes says expressly that a verdict is not contrary to law in evidence, where it convicts a defendant of an inferior grade of the offense that is proved.

North Carolina reaches the same result.

Florida reaches the same result on the theory that defendant can look at a gift horse in the mouth.

Now, but I think the important point here, we are talking about defendants who are sentence to less than death looking gift horses in the mouth, once is a gift to them is by ineluctable logic as Professor Charles Black says, very much less than a gift to the defendant who is does not get grace and is not spared and is not in the exercise of an equally unaccountable discretion, save from going to death.

In other point, that in a total look at the way capital punishment functions under the various statute so to be made, is that where lessers are not submitted, lesser degrees of murder as in some felony murder case where the evidence may make out felony murder or not, it is almost invariably so, at least for the prosecutor exercising his discretion, chargers the felony in the same trial that the felony is submitted separately from the murder and the jury has a choice convicting of the felony and letting the defendant off of the capital count.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Potter Stewart:

Did I understand Mr. Amsterdam that in Louisiana the lessers, the lesser included offenses are always submitted to the jury?

Anthony G. Amsterdam:

In Louisiana they are always submitted.

Potter Stewart:

Even in a felony murder case?

Anthony G. Amsterdam:

Oh! Yes, absolutely.

Potter Stewart:

That is what I thought?

Anthony G. Amsterdam:

Manslaughter is submitted in the felony murder case.

Potter Stewart:

And regardless of what the evidence is?

Anthony G. Amsterdam:

With regardless of what the evidence is.

Potter Stewart:

In a case, where the evidence is either that person is guilty of first-degree murder or innocent, those are the only rational inferences, nonetheless the lesser included offenses are —

Anthony G. Amsterdam:

Everything.

Potter Stewart:

— always and invariably and inextricably and inevitably submitted to the jury, is that correct?

Anthony G. Amsterdam:

Yes, by statutory command, yes.

Potter Stewart:

That is what I thought.

Anthony G. Amsterdam:

Yes, every case and that as I say it is true in every state, including Florida.

Now —

John Paul Stevens:

Is that the only capital crimes, is that — characteristic of the criminal —

Anthony G. Amsterdam:

No, no Louisiana, the so-called responsive verdict procedure in Louisiana is statutory procedure that characterizes each criminal trial in all, but the Statute 814 which identifies what are responsive verdicts has a sub-section dealing first-degree murder.

There is also a sub-section dealing with many other crimes.

Now, in addition to the availability to the jury of lesser offense convictions and other feature of the system that ought to be pointed out is the often amorphous lines that separate the greater from the lesser.

And here again Mr. Justice Stevens, perhaps in answer to your question another distinction that might be made, although I do not make it, might be the extent of amorphousness of the line between the greater and the lesser that the jury or the judge or the prosecutor has to work with.

Mr. Justice Cardozo pointed out, for example, the fact that premeditation and deliberation in such other mystical minnow concepts, premeditation is different from intense somehow because it must precede the killing, although it means only be a split second before the killing and Justice Cardozo rightly pointed out that this is simply a dispensing power conveyed in a mystifying cloud of words, to use his terminology.

Now, it may be that a statue which draws different lines more narrow might be thought to be less susceptible to challenge, but these statutes and those in United States generally today are characterized by questions of intentionality, premeditation, voluntariness, subject to made allowance.

It is important that all of these discretionary procedures interact against the background of the definitions of the crimes and to come now specifically to the bottom of Justice White’s inquiry about how this all squares with Furman.

What we have is a system in which often amorphously defined undistinguished capital crimes of considerable breath, narrower questions make come up later, but now a considerable breath, are submitted to a legal process in which the decision to move the defendant forward toward death or let him escape, avoid death is made in series of stages.

With each decision maker asking the question in theory, this is premeditation deliberation or not?

Was this in a direct case a killing in the course of forcible rape or was is not?

But in which in fear in fact, in actual fact unaccountable discretion is allowed to the following actors; the prosecutor at the charging stage, the prosecutor once again at the stage of now processing or dismissing, formally or informally reducing the charges, sometimes the Trial Judge has to approve and sometimes he does not, but in each case the vagueness of the law gives him virtually no basis to disapprove.

John Paul Stevens:

Mr. Amsterdam, I should not interrupt, but a thought just occurred and let me I like to ask you as it is on my mind.

Again, focusing just on the jury base and putting to one side for the moment the prosecutorial and the clemency phases, do you suppose statutes such as these would be saved if the defendant were given the option of the asking for na instruction in the alternative, just the capital verdict or not guilty, if the defendant were given the option to insist on their choice?

Anthony G. Amsterdam:

No.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Anthony G. Amsterdam:

The problem is that it is the defendant, all defendants would want the option of the lesser offense.

This is strange kind of a constitutional issue in which procedures which unquestionably help some defendants disadvantage others.

The procedure that Your Honor suggests or describes would simply allow a defendant to gamble or not gamble on jury pardon or mercy.

Those defendants who gambled in one would nevertheless make the system arbitrary as to those defendants who lost.

The choices made by one defendant surely are going to affect the constitutional rights of the other.

It is the ones who end up at the short end of the step, the ones who loose in the lottery, whose deaths are arbitrary and thereby we think under Furman issue, giving the other defendant’s the choice which they may exercise to get out from under it, does not seem to me to affect the ultimate arbitrariness of the result in the case of the defendant that gets sentenced to death.

John Paul Stevens:

You really are not concentrating on the fairness of the procedure in the particular case at all?

Anthony G. Amsterdam:

No, not at all.

It is the fairness of the overall system and that is what I think Furman focused on.

Let me see, if I can describe why I think Furman covers this process.

I do not think Furman was concerned with the fairness —

William H. Rehnquist:

Mr. Amsterdam, when you say Furman what do you mean?

Anthony G. Amsterdam:

I mean, the lowest possible denominator of interpretation of the opinions in Furman v. Georgia.

Furman could not I think had been concerned with the fairness of the procedures in each individual case.

If it were, it would have been inconsistent with McGautha.

I think what Furman did was to say, and this seems to me very consistent with the body of this Court’s general jurisprudence, that the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment are two very different animals, even though it is through the Fourteenth Amendment that the Eighth becomes applicable to Sixth.

As matter of due process, the states are given a great deal of leeway to shape their procedures as they met and I do not think that you could quarrel about one form of discretion or another nor said McGautha about any form of discretion simply as a matter of the fairness of deciding a particular case.

What Furman said was that when a procedure off the sort resulted in an arbitrary dispensation of death across the total range of those cases in which it was authorized, so that the infliction of the death penalty on a particular individual was senseless.

His case indistinguishable from that of others who were spared, the ultimate imposition of that the death penalty on him was cruel and unusual in the constitutional sense because he was being selected out of an indistinguishable group for no reason to suffer a penalty inordinately greater than suffered by others.

No rhyme or reason, no justification.

This arbitrariness defeated they phrenological justification for capital punishment.

This arbitrariness made the death penalty unusual in constitutional sense and it is our submission that it does not matter whether one device or another is used to achieve that result.

The Federal —

Potter Stewart:

Mr. Amsterdam, does your argument not prove too much?

In other words, in our system of adversary criminal justice, we have prosecutorial discretion.

We have jury discretion, including jury nullification as is known.

We have the practice of submitting to the jury the option of returning verdicts of lesser included defense offenses.

We have Appellate Review and we have the possibility of executive clemency and that is true throughout our adversary system of justice and if a person is sentence to anything as the end-product of that system, under your argument, his sentence, be it life imprisonment or five years imprisonment is a cruel and unusual punishment because it is a product of this system, that is your argument, is it not?

Anthony G. Amsterdam:

No.

Potter Stewart:

And why not?

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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Anthony G. Amsterdam:

It is not.

Our argument is essentially that death is different.

If you do not except the view that for constitutional purposes death is different, we loose this case.

Let me that very clear.

There is nothing that we argue in this case that will touch imprisonment, life imprisonment any of those things.

Now, why do we say death is different?

One, because this Court in Furman said it was different.

It seems to me that there is no doubt that this Court did not mean to strike down in Furman sentences of life imprisonment 20 years, 10 years although judges had just this broad discretion to sentence to those things or less as they did to life or death under the systems invalidated in Furman.

Secondly, the legislatures of the states have recognized that death is different and this is the thrust of my point, that in responding to Furman, 35 legislatures have come back with this narrow, technical approach, allowing avoidance, very careful winnowing procedures that allow wholesale outlet, whereas, 52 jurisdictions and 400 made life imprisonment sentence to just you know use the penalty, death is different, the legislature says it is different.

Our legal system has always treated death differently.

We allow more preemptory challenges.

We allow automatic appeals.

We have different rules of harmless error.

We have indictment requirements, the anonymous verdict requirements in some jurisdiction because death is different and finally death is factually different.

Death is final.

Death is irremediable.

Death is unknowable.

It goes beyond this world.

It is legislative decision to do something and we know what we do.

Death is different because even if exactly the same discretionary procedures are used to decide issues of five years versus ten years or life versus death, the result will be more arbitrary on the life or death choice.

Now, why do I say the result will be more arbitrary in life or death choice?

It will be more arbitrary on the life or death choice because the magnitude of what it is stake in choosing to kill somebody or spare them, it works the factual differences on which the decision is to be made, renders them as Professor Kelvin in (Inaudible) said, the meaningly trivial compared to the states in a way that no such other decision is unrelated to the factual basis on which it was made.

The decision is different, the discretion is different and the result is different Mr. Justice Stewart in a death case than is a case where lesser penalties are an issue because as the history of capital punishment under the discretionary system struck down in Furman shows, the death penalty has become so repugnant to those who must actually apply it in the particular cases as distinguished in the abstract question how to get on the books.

That in order for a jury and judge and a prosecutor and governor to condemn a defendant, an intense at Furman in condemnatory judgment has to be made which is very different from the kind of judgment applied when it is a five or ten-year question which is a judgment, which is uniquely difficult to control, uniquely difficult to rationalize or regularize.

Now, that combines with the breath of discretion which is in the system.

Some of which is like the discretion involved elsewhere and some of which is not, create a total pattern whose result is that the infliction of death on specific defendant condemned to die is cruel and unusual.

Warren E. Burger:

Very well Mr. Amsterdam.

Mr. Attorney General?

John L. Hill:

Mr. Chief Justice and may it please the Court.

To Mr. Amsterdam’s first point that the system of selectivity such as was condemned in Furman still exists.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John L. Hill:

We would say certainly has applied to the Texas Statutes and I hope that I will able to demonstrate this before I am done, that is not a correct statement and that the system of selectively condemned in Furman does not presently exist in the Texas Statute either in theory or the best evidence of actual practice.

Now, as to his statement that the prosecutorial discretion, jury discretion, discretion on behalf of Chief Executives of our State, that type discretion, no statute obviously can cure that nor should it.

As Justice Stewart observed in his argument, indeed thus prove too much.

It would be an anomaly to say the least, if where to condemn today in this country as unconstitutional, the very procedures that our constitution created, the same constitution that created the cruel and unusual punishment provision relied upon by petitioners.

It would be an anomaly to say that we cannot constitutionally carry out a sentence today of death in this country solely because it is being carried under the very constitutional procedures that created this country and upon which is founded.

Indeed, that argument proves too much and I am sure it will be summarily rejected by every justice.

Now as to preposition that the execution of the death penalty in this country, regardless of circumstances, regardless of the crimes that are selected out by the states by which it has to have application, the wisdom of state legislature, regardless of the procedures that are used, regardless of how careful one may be, regardless of the time span in selecting a fair and impartial jury, regardless of the impartially of the prosecution, regardless of the facts, regardless of the circumstances of the crime, regardless of affording all the due process for which this country is noted, regardless of all that, Mr. Amsterdam would tell us that execution of the death penalty in America is cruel and unusual punishment, even in those events it must be condemned.

Need one today, say more to this Court than that statements stand without any legal precedent.

He stands utterly alone.

The unchallenged law of this country as I speak is to the contrary.

Indeed, he should carry a very heavy and compelling responsibility to ask the Court to overturn everything that ever been said by this Court and other courts in this country to the effect that the infliction of the death penalty in the United States of America today is not unconstitutional per se.

The truth is and it becomes more and more obvious as this litigation proceeds that there are those to hold very strongly, the view and the conviction, that the death penalty should no longer be used for any purpose in this country.

There was a very agonizing statement by one of Justices of this Court, expressing his sentiments, where that is the only issue before the case and before the Court, there would be no need for any of us to proceed.

That is of course not the issue.

This Court is not a super legislature.

This Court is not the keeper anymore than Mr. Amsterdam is, of the social values and the conscience, the moral standards of the people of this country, that is why we have a federal system of government, that is why we have a republican form of Government, that is why we entrust decisions of this path, subject always of course to review on constitutional standards to state legislatures.

Now then, he tells us that really what has happened here in Texas is nothing more than that we just decided that there was a person that was a reprobate and that he killed a young girl, whose father happen to be a policeman and that we decided he ought to die and that bound what made can anyone sees to grow great to say that about this case in view of this record.

It is the same thing as conceding in questioning from Justice Stevens that in his view, there could be narrowly defined circumstances, narrowly defined crimes by legislature which might even meet his constitutional standards.

He illustrated with one, that is a lifer in a prison who takes the life of someone working there, but the theory seems be, let me say what this case is about, let me say what the Texas case is about and what facts are if any.

Let me say where we draw the line.

Let me determine what if it should come within the purview of the capital punishment in this country.

Let me decide what constitutes proper social goals.

Let me decide where retribution is possible and proper and where is not.

Let me decide, when if ever, the death penalty will deter and thus serve a legitimate social faction and let me decide where and when incapacitation of a defendant is justified.

And I say to all of that, may it please Court and it is run through both the Furman presentation and through this presentation.

The basic fallacy of asking this Court to blindfold yourself to any view point other than that expressed by the petitioners, to blindfold yourself to any data or evidence or experience other than that to which they point and the standards for which they have arbitrarily established as the guide post in this case.

John Paul Stevens:

Mr. Attorney General, I wonder if that is really fair statement of his argument.

He has two separate arguments of course, but the first argument as I understood it was that the under the Texas System, there is total discretion in the jury to return a verdict other than the one that requires the death sentence and as I understood his argument, he says the first and third of the three aggravating questions that are submitted to the jury in the punishment hearing have already been answered by the jury, and therefore, there really is no standard guiding them.

John L. Hill:

Yes.

John Paul Stevens:

Do you have a response to that argument?

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John L. Hill:

The first question, may it please the Court that we ask on the sentencing stage and that is whether the conduct is deliberate, deliberate conduct causing the death.

Under our definition of murder, our definition of murder is a person commits an offense, if he intentionally or knowingly causes the death of an individual.

Now, we had a case brought under the statute it happened in Beaumont where an individual was trying to break into the jail and release some prisoner.

He went in heavily armed and he went in shooting, but in the process actually the policeman that was killed by a guard that was trying to resist the entrance.

So in that particular case, the jury convicted of capital murder, but found no to this first question of his, of a deliberate conduct causing the death.

His conduct was deliberate in the sense that he was in and been all mischief and shooting, but it was not and it may have been a knowing thing on his part, but there is a distinction between the deliberate conduct it asked about in the first question and some types of capital murder not in all.

It is a last sovereign look by the jury where can in fact be a distinction in circumstances of the case and we have 15 if the Court please, no answers to these questions.

They have not been just idle academic gestures.

The second one that deals with whether or not the person will probably commit criminal acts of violence such it would constitute to continuing threat in the future.

The last case in which that was answered no; there was young 21-year-old black that killed a white policeman in the City of the Austin.

There was some evidence presented, not sufficient to convince the jury that there was a provocation, but there was some evidence of a degree hassling and the individual had no prior record of any kind.

He was 21 years of age and that question was answered no and his life was spared.

And so I submit Mr. Justice Stevens that the question served the valid purpose of trying first to tie down that this is a deliberate, cold-blooded, voluntary type of killing without any degree, if there was any provocation at all, it cannot be utilized and to try to separate out those individuals who from the type of crime that they have committed, have shown themselves to be likely recede of it.

John Paul Stevens:

Mr. Attorney General just finish my thought about the first to the three questions, putting aside for a moment the second.

Would it be your view that those 15 cases in which the jury answered no to the first question at the penalty hearing, there was in the record a basis for differentiating between the kind of intent required to support the guilty verdict of murder on the one hand and the kind of intent required to satisfy the statutory command or would you, in the alternative, say that this was merely an exercise by the jury of its power to be lenient in a particular case?

John L. Hill:

I think there was real difference in the jury’s mind in those cases.

I should, in fact my co-counsel has handed me a note that I should state to be more clear on the point.

There were 15 cases in which one of these questions was answered no.

There were 12 of those as I recall my facts in which it was question number 2, that was answered no along with the three times that this particular question was answered no.

And if I am not correct, that is Mr. Pluymen is correct.

So there were three instances in which question number one triggered the invoking of the life sentence rather that the death sentence and that were 12 other instances in which the question, on number two was answered no and that is that person would not probably commit criminal acts or violent acts in the future as constituted continuing threat to society.

John Paul Stevens:

Then I wonder if you would response to the argument of Mr. Amsterdam makes that if this case is typical that the evidence supporting and affirmative answer to the question number two consisted of nothing more than offense itself plus four hearsay statements by local citizens that they did not approve of this man’s reputation, that that question really is kind of escape hatch by which the jury may exercise leniency.

You think that the —

John L. Hill:

No, not at all.

I have cited first 12 instances in where the jury found, I recited the one instance of killing of the policeman that I believe is the case in point where there was absolutely no evidence other than the crime itself which would have indicated recidivism and the crime itself was not in the jury’s mind of such a heinous character under the circumstances described as to justify a yes answer.

Now, then in our case, Mr. Jurek, a 22-year-old white father, who kidnapped a 10-year-old white girl where her grandmother had taken her for two-hour swim and had left her in the custody of the pool people, put her in the back of his pickup truck, ran her through the City of Cuero with her screaming at the top of her voice “please help me,” had already told people he was going to get that girl or one like her that they were not too young to have sex with and he intended have it.

He took her to Hill’s Bridge, got her out of the truck, under took the have sex with her, choked her and so she fell into unconsciousness and threw her in the river and left her to the die, which she died almost immediately, went back with his friends and his beers with no remorse, came back by the bridge with his friends looking around in the river to see what he could see and with confessions in the record plus Your Honor, the only we prove bad character in Texas in these cases is by hearsay.

You cannot get up on witness stand in Texas in the courtroom and say I believe this person is bad.

From my experience you have to be from the person’s reputation with the community.

So this quick pass off, that it was hearsay testimony does not do justice to this record.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John L. Hill:

These were four fine citizen of Cuero that testified from that his general reputation in the community for a being law abiding and peaceful citizen was bad.

I do not know how much prudence the jury gave to the two questions about the prosecutor that did you know that he done the same thing to a girl in Louisiana and one in Cuero, before I do not know whether he had any probative force or not.

John Paul Stevens:

Mr. Attorney General has the Texas Supreme Court told us whether evidence of the offense itself, if it was a sufficiently heinous offense would be sufficient to satisfy the second question of aggravating the circumstance question?

John L. Hill:

No, they have not and I believe though that the crime itself can show such as incorrigibility, such as free for any remorse.

Here he was driving through the town with the girl in there.

Get out on my way, get off to the road.

He announced then that he was a menace to the society.

You can have it by the kind of conduct itself, but in this instance we had more, but the point is that that kind of question can be judged by the sufficiency of the evidence.

Our Court of Criminal Appeals has already told us that you could have the defendant himself testify, you can have psychiatric test testimony as to whether or not the person would likely be recidivist or not.

There are all kinds of the evidence and there must be substantial enough evidence to support that verdict.

That is a point that can be appealed directly to our Court of Criminal Appeals.

We sent one case back, involving a person of Spanish surname today because of the feeling that there was inadequate evidence.

These are matters that can be that taken care of under due process and under equal protection.

It has nothing in the world to do with Eighth Amendment and if I might —

Thurgood Marshall:

Mr. Solicitor General, he was given life imprisonment, he will not worry about recidivism, would he?

John L. Hill:

Well, interestingly enough —

Thurgood Marshall:

I mean your type, I mean real life?

I mean life?

John L. Hill:

I know what you mean Mr. Justice Marshall.

Thurgood Marshall:

You would not worry about recidivism then, would you?

Warren E. Burger:

Except perhaps as regardless to another inmates and employees of the prison, I suppose that is always a possibility, is it not?

John L. Hill:

Well, our source we had a lifer who escape, you might have read about it.

We just lost three women as hostages in the course of it I guess life to them was rather important and to their families and he was a lifer, what did he had to loose under clout that the Court put as under because we did not know whether we have a statute —

Thurgood Marshall:

You get it all kind of cases, but I say if an actual life imprisonment, you would not have worry about recidivism unless you want get some way out case someplace?

John L. Hill:

Well, but to that victim —

Thurgood Marshall:

Do you think that the mere fact that a man is subject to commit another crime, intends then to be killed just to prevent him from committing another crime?

John L. Hill:

I think that —

Thurgood Marshall:

Why did you not pick him up the first time and killed him?

John L. Hill:

I think the public is entitled to make —

Thurgood Marshall:

(Inaudible)

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John L. Hill:

I think Mr. Justice Marshall that the legislatures of the states on behalf of the people they represent are entitled to make that judgment.

Potter Stewart:

That just has to be affirmative to each of these three questions?

John L. Hill:

It has to be unanimous.

Potter Stewart:

An affirmative to answer to a single one of them does not?

John L. Hill:

No sir, it has to be unanimous answer to all —

Potter Stewart:

Unanimously affirmative to each of the three?

John L. Hill:

Exactly.

Potter Stewart:

If it is a negative answer by the 10-12 vote by the members of the jury (Inaudible) to anyone of the three then —

John L. Hill:

Exactly.

Potter Stewart:

— the death sentence cannot imposed, is that correct?

John L. Hill:

That is correct.

Potter Stewart:

I understand.

John L. Hill:

That is correct.

Potter Stewart:

Well, while I have interrupted you Mr. Attorney General, may ask you this?

Since the statute has been in existence has there been an opportunity for sufficient development of the case law so that you can tell me what limits, if any, are there on the evidence that can be adduced to this second phase of the proceeding, this penalty phase?

John L. Hill:

No limit other than constitutionally of the evidence under the United States constitution.

Thurgood Marshall:

You said almost unlimited, did you not?

John L. Hill:

I did and that is almost unlimited, but it is limited Mr. Justice Marshall by the United States Constitution —

Potter Stewart:

Or surely it cannot be —

John L. Hill:

I mean that it will be —

Potter Stewart:

— a violation of somebody’s right against compulsory self- discrimination I suppose if he wants to assert it, but and this is unlimited for both parties?

John L. Hill:

For both parties.

Potter Stewart:

Thank you.

John L. Hill:

And the question of recidivism, it seems to me is same as question on deterrent.

Mr. Amsterdam himself, it seems to me acknowledged the significance of deterrent when he said that if given a choice these defendant would choose the life sentence, when he was debating about whether or not they should have a choice during the sentencing process.

And of course, that just is simple recognition by him of his intuitive extinct of human nature to seek, to sustain our own life, the life that we all know is important to every individual.

That is an extinct of every human being and if that be so, then why is not it and why should not it be allowable as the deterrent, as social goal of deterrent to prevent a lifer in a prison from taking life with immunity.

Why should it not be a deterrent to prevent someone who had small child that he intends to rape or kidnap, to have not the incentive of his own life to return that child?

Why should not we permit a law in our states such as in Texas, 70% of our crimes under this statute has with been murder with armed robbery, 70% of them.

And incidentally they broken, I want to talk a little bit more about that from ratio of standpoint to show that our statute once it begins to operate, it operates free of the any racial discrimination.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John L. Hill:

Why should not there be a deterrent for a person who goes to inconvenience store and undertakes to take someone’s life not to have the deterrent of his own life, when he is snuffing out the only eye witness to that crime in most instances?

So, I do not want to debate all of the reports that are here before you, and about deterrence and there values, but I think Mr. Amsterdam admitted the thing that it appeals to our own logic and common sense when he said that the criminal himself will always seek life rather than the extreme penalty.

Of course, it is excessive in its severity, but not in a constitutional sense and that is where we differ.

I will take the backseat to no one in revering human life.

We are talking here about a constitutional question and our very constitution created the right, I submit, on the part of our state legislators to make this discriminating choice, painful as at it is, difficult as at it is.

We tried to meet the objections and criticisms that this Court lay down as best that we could discern them and we turn to a statute where we selected out, murder first, murder.

Now under our prior Texas Statute that you condemn, we could put people to death for rape alone, for rape alone, we could put them to death.

In our old statute we could put people to death for lying in a death penalty case.

We could put him to death for armed robbery.

We could put him to death for (Inaudible) or burglary.

We could put him to death for treason.

We had all kinds of randomness and differentials between our treatment.

Now, we change that.

Our Senate sat down on the one hand of the hall and they wrote a statue done in Texas and put all of the code materials in about mitigating circumstances and extenuating circumstances and aggravating circumstances.

Our House sat out on other hand and wrote a statute like North Carolina and said guilt-death.

We compromised.

We went to a House Conference.

I went over and worked.

We tried to pull over Furman.

We tried to understand it.

What did Justice Burger say when he said he might not like a mandatory sentence?

What was the right thing to do?

And we wrote in three, first place we just wrote in five categories of murder.

The worst one known as far as calculation and design, murder for hire, when you go pay for it.

Certainly, if there is any state saying as a crime that we ought to be able to deter in exact not an excessive punishment, but at least a proportionate one for that type of activity and we said armed robbery and I have already demonstrated what a problem that has been in our state.

The taking of life; it is bad enough to commit the crime of armed robbery, but the consistent taking of life that is gone with it.

Do you mean our people have no right in our state to try deal with that question and with feeling that there is some deterrent to this excessive, but constitutional penalty?

I mentioned the present situation.

Well, we already had it in our state and fortunately, now if this Court will say so, you take our statute out from under a cloud and say to the next person who is a lifer in a penitentiary in the State of Texas that if you kidnap women who are in there teaching and you kill them, the state has right to ask you to pay in a proportionate way.

Those are the kinds of crimes that we dealt with under our statute, crimes arising out of robbery, burglary, rape, arson and kidnapping and then we said to our police officers that we believe we have a right to set a standard to say if someone kills a police officer in our state that they know is in course of his job that it is not an excessive and severe punishment to ask for his life.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John L. Hill:

Now, in that particular category of cases under our statute, we have had three whites kill policeman, two of them received death, one have received life.

We had one Spanish surnamed defendant kill a peace officer, hung jury.

We had nine blacks in cases involving police officers, six death penalties, two life and one hung jury.

There is no evidence that once our system begins that there is racial discrimination.

In the armed robbery — sir?

Potter Stewart:

Before you leave that it is not involved in the present case, but you brought it up.

Is there requirement under Texas Law that the defendant had known that the victim was a police officer?

John L. Hill:

No, that he is in the course of duty and that —

Potter Stewart:

No, (a) must he know that he is a police officer?

John L. Hill:

Frankly, I do not know.

Potter Stewart:

Perhaps, that has not been decided perhaps?

John L. Hill:

I frankly wish I had the answer.

Thurgood Marshall:

They were in uniforms?

John L. Hill:

I beg your pardon?

Thurgood Marshall:

Most of the Texas cases, they were in uniform, am I right?

John L. Hill:

Yes sir, but I think what Justice Stewart maybe asking Justice Marshall that if someone is impersonating or perhaps you just simply are not aware he is a plain clothes officer, you are not aware that he is in the course of duty.

I would — I will check it for you and —

Potter Stewart:

Well, it is not relevant today (Voice Overlap)

John L. Hill:

My impression is that knowingly would be involved.

Now, in those armed robbery cases, we had 23 blacks that were tried.

Ten of them received the death penalty.

We had 20 whites tried for that same bad crime and ten of those received the death penalty.

We had nine Spanish surnamed defendants commit that horrible crime and six of those received the death penalty and one of those is going back on remand.

So in our category we are 70%.

I am sorry, my light is off.

I could go on to show without any question not only in theory that the Texas Statute meet all of criticisms by having these narrow categories with questions that deal with recidivism and incapacitation and deterrence and retribution, but also that in practice and in actual practice it has met those standards and is working constitutionally in our state.

Harry A. Blackmun:

Mr. Attorney General, just to save you the trouble looking, I think I quote from your code, “if the person murdered was a peace office or fireman who was acting in lawful discharge of an official duty and who the defendant knew was a peace officer or fireman.”

The defendant knew.

John L. Hill:

I appreciate that very much Mr. Justice Blackmun.

I tried to prepare very diligently for this matter and I obviously did not do a 100% job.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John L. Hill:

I think it is —

Harry A. Blackmun:

think it is an obvious answer.

You do not have a (Inaudible)?

John L. Hill:

No.

Warren E. Burger:

Mr. Babin?

James L. Babin:

Mr. Chief Justice and may it please the Court.

The case of Robert versus Louisiana pertains to a young black man who killed a 61-year-old white man, while engaged in the armed robbery of a filling station on August 18, 1973.

The statute which existed in Louisiana prior to the Furman decision was the Murder Statute which provided that if you had a specific intent to kill or inflict great bodily harm on anyone and he died as result of that then you could receive the death penalty or would receive the death penalty, if you were found guilty as charged.

However, in the list of responsive verdicts to the prior murder charge in Louisiana prior to Furman, one of the responsive verdicts was that the jury could return a verdict of guilty without capital punishment, if the jury saw fit to give mercy to the person who was being tried and who was found guilty then they could return a responsive verdict of guilty without capital punishment.

However, after the Furman decision was the decided by this Honorable Court, the Governor of the State Louisiana appointed the commission and they met and they enacted certain laws in special session in Louisiana which takes a two-thirds vote to open such special session to legislation such is this which would could be considered normal legislation.

The commission discussed the Furman decision and the Statutes of Louisiana as they were at that time and we came up with the first-degree murder statute and a second-degree murder statute.

The first-degree murder statute which Louisiana now has encompasses those types of killings where the defendant himself initiated the action.

In another words, he started or put into motion whatever later caused the death.

In other words, he took a gun and he went into as service station and he held that service station up and as result of his being there with this dangerous weapon and as a result of his specific intent to kill, someone died.

These types of crimes where placed into the first-degree murder statute.

You take the crimes of murder where you have the family argument, you have the bar room brawl where there is specific intent to kill, but it is not initiated by you committing a felony or you killing a policeman while he in the engagement of his duties or while you are in the prison or while you are committing aggravated rapes or other more serious felonies.

First-degree murder encompasses those particular items.

Second-degree murder takes care of those items or those murders which were not initiated by the defendant himself while he in the perpetration of those particular instances.

The first-degree murder statute in Louisiana carries with it the mandatory death penalty.

Potter Stewart:

A family argument would be covered by first-degree family type of brawl, the kind your bar room brawl?

James L. Babin:

No sir.

Potter Stewart:

It would be covered, would it not if more than two people were killed by the same?

James L. Babin:

If he had the intention to kill more than two.

Potter Stewart:

Yes and if he did?

James L. Babin:

He walked into the bar and he had gun and he decided to shoot all five men standing at the bar, then it would come under the first-degree murder statute, yes sir.

Potter Stewart:

If there were two or more victims?

James L. Babin:

Yes sir.

Potter Stewart:

They could?

James L. Babin:

But he would have up to show specific intent or the state would that he intended to kill more than in one person.

Potter Stewart:

(Inaudible)

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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James L. Babin:

The first-degree murder statute as I have said carries with it the mandatory death penalty.

The jury in this case, in the case of the first-degree murder case has to find every element of that crime before they can return a verdict of guilty.

They must find specific intent to kill.

They must find if it is an armed robbery case that all of the elements of armed robbery are present.

They must find of course jurisdiction and they must find the other elements of a crime.

They are sworn members of that Court.

They are sworn to find a person guilty if he is proven guilty of first-degree murder if the state has proven its case beyond a reasonable doubt each and every one of those elements.

Now, if the state fails to prove each and every one of those elements then he of course is instructed to return a verdict of not guilty or he is given a list of responsive verdicts which he can return.

Now, this was discussed at the commission when the new laws were enacted.

It was at first thought that it would be best just to have guilty or not guilty, but suppose that the state proven a man — was unable to prove a man guilty of first-degree murder, but he is able or does prove him beyond a reasonable doubt guilty of second-degree murder, should he go free?

The state has proven that he committed a crime.

They have not proven that he committed a crime of first-degree murder, but they have proven beyond a reasonable doubt all of the elements of another crime.

Therefore, the Jury can bring in a responsive verdict of the particular crime that has proven to it beyond a reasonable doubt.

Now, when the judge instructs that jury and he must instruct them each time, if you find that the state has proven beyond a reasonable, all the elements of first-degree murder, it is your duty to return a verdict of guilty.

Then the Court instructs as they did in this case, if you do not find that the state has proven its case beyond a reasonable doubt as to first-degree murder, but that you do find that the state has proven its case beyond a reasonable doubt as to second-degree murder then it is your duty return a verdict of second-degree and own down to responsive list of verdicts until it comes, if the state has not proven any elements of any these crimes then you shall return a verdict of not guilty.

Then if this jury returns a verdict of guilty as charged, the first-degree murder, it has no discretion whatsoever.

The Judge has no discretion whatsoever is then a mandatory death sentence.

There is no discretion by a person as to whether a particular person will die or not die.

If he is found guilty of first-degree murder then he is sentenced to death.

The Court has no ability nor discretion either.

It has to and as the statute provides, it must give the death penalty in those cases where the defendant is found guilty of first-degree murder.

Potter Stewart:

Under Louisiana Law is the judge (a) authorized or (b) required to tell the jury the consequences of its verdict to first-degree murder?

James L. Babin:

No, Your Honor.

Potter Stewart:

He must not and he may not?

James L. Babin:

He does not and must not, yes sir.

However, of course a jury as a matter practicalities is questioned on the death penalty when he is questioned as a juror and he not naturally will know if he is going to be accepted by juror that it is going to pertain to the death penalty, that is matter of practicalities.

However, the judge, the Jury in Louisiana has no right to sentence in no case whether it is the death penalty or death of whatever it maybe that it is the judge’s prerogative and it is not left to the jury.

The part or the part of the argument that has been made —

John Paul Stevens:

Mr. Attorney General is it permissible argument for defense counsel to explain to the jury that the second-degree responsive verdict would avoid the death penalty?

James L. Babin:

No, Your Honor.

Audio Transcription for Oral Argument – March 31, 1976 (Part 2) in Jurek v. Texas

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John Paul Stevens:

It is not.

James L. Babin:

The argument that has been made by Mr. Amsterdam that there are certain prerogatives to the District Attorney that he can (Inaudible) that he has control of the case that he can charge as he sees fit.

In Louisiana, you cannot charge a capital case without bringing it a grand jury, presenting your evidence and having that accused rebut it, bring the charge so the DA certainly does not have the right to bring a capital case or charge one as he sees fit.

He has to do it though a grand jury.

The DA does have a right to (Inaudible) even to a grand jury indictment, but this is something that the District Attorney stands as a barrier between the law enforcement and the defendant himself.

This is something that is to the benefit of the defendant.

The other thing that is brought out by the defendant —

Warren E. Burger:

We will resume there 10 o’clock in the morning.

James L. Babin:

Alright sir.