Lewis v. Jeffers

PETITIONER:Samuel A. Lewis, Director of the Arizona Department of Corrections, et al.
RESPONDENT:Jimmie Wayne Jeffers
LOCATION: United States District Court of Arizona, Tucson Division

DOCKET NO.: 89-189
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 497 US 764 (1990)
ARGUED: Feb 21, 1990
DECIDED: Jun 27, 1990

ADVOCATES:
Gerald R. Grant – on behalf of the Petitioners
James S. Liebman – on behalf of the Respondent

Facts of the case

In May of 1976, Jimmy Wayne Jeffers and his girlfriend, Penelope Cheney, were arrested for possession of narcotics and receipt of stolen property. Jeffers posted bond for Cheney but was unable to post bond for himself. While in jail, Jeffers learned that Cheney was cooperating with the police. He offered another inmate money to kill Cheney, but a detention officer seized the note. Jeffers was released on bond in October of 1976. He quickly contacted Cheney and invited her to his motel room to give her heroin. When Doris Van der Veer, the woman with whom Jeffers had been living since his release from prison, entered the room a few hours later, she saw Cheney comatose on the bed and Jeffers injecting liquid into her arm. Van der Veer reported seeing Jeffers choke Cheney to death and then beat her body while calling her dirty names. Van der Veer and Jeffers then wrapped the body in newspapers and plastic bags and buried it in a shallow grave.

A jury convicted Jeffers of first-degree murder. At sentencing, the court found two aggravating circumstances and no mitigating factors, so Jeffers was sentenced to death under Arizona state law. On direct review, the Arizona Supreme Court vacated the death sentence and remanded the case for resentencing. On a second direct appeal, the Arizona Supreme Court conducted an independent review of the evidence and affirmed the death sentence. Jeffers petitioned the district court for a writ of habeas corpus and argued that Arizona’s standard of an “especially heinous…or depraved” aggravating circumstance was unconstitutionally vague. The district court rejected Jeffers’ challenge. The U.S. Court of Appeals for the Ninth Circuit held that the standard was unconstitutionally vague as it applied to Jeffers and struck down the death sentence.

 

Question

Can a federal district court conduct an independent review of the evidence of a state court’s finding of a constitutional aggravating circumstance?

Did Arizona’s construction of the “especially heinous…or depraved” aggravating circumstance contravene Supreme Court precedent?

William H. Rehnquist:

We’ll hear argument next in No. 89-189, Samuel A. Lewis v. Jimmy Wayne Jeffers.

Mr. Grant, you may proceed whenever you’re ready.

Gerald R. Grant:

Thank you, Your Honor.

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

The issue in this capital case is what standard of review should a Federal habeas court apply in reviewing a state court’s finding that an aggravating circumstance exists.

It’s our position that once the Federal habeas court has examined the aggravating circumstance and determined that the state court has adopted a proper narrowing construction of it, that the state court finding that the aggravating circumstance exists is not generally subject to Federal review.

Only in those instances where the finding is so unprincipled or arbitrary as to somehow violate the Constitution should that finding be reviewed by a Federal habeas court.

William H. Rehnquist:

I suppose it would be reviewable under the Jackson against Virginia standard at… at any rate if it were argued that there were no… no juror could possibly or no court could possibly find him beyond a reasonable doubt.

Gerald R. Grant:

That’s an additional standard that the dissent in the Ninth Circuit recognized.

It’s also a standard we’ve mentioned in our briefs.

However, our one problem with that is that we do not, and this Court has not, equated aggravating circumstances with findings of guilt.

The Jackson standard does apply to standard of guilts… findings of guilt, and for that reason we would prefer the standard stated in Barclay which is the… so unprincipled or arbitrary.

Briefly, in this case the Arizona trial court found two aggravating circumstances in Mr. Jeffers’ case.

He found that in committing the murder he created a grave risk of death to others.

He also found that the murder was committed in an especially heinous, cruel or depraved fashion.

In the Arizona State Supreme Court’s independent review of this case, it set aside the first aggravating circumstance, the grave risk of death.

And with regard to the second, it set aside the cruelty portion of it.

It found that cruelty had not been shown beyond a reasonable doubt.

It, however, affirmed the finding that he had committed the murder in an especially heinous and… and depraved fashion.

Mr. Jeffers then petitioned for cert. to this court.

Cert. was denied.

He then subsequently filed a Federal habeas corpus petition.

In that petition he made a number of attacks on his… on his sentencing.

Two of those attacks were that the cruel, heinous or depraved aggravating circumstance was void on its face, and, secondly, that it was void as applied to him.

The district court ruled against him on both.

He then went to the Ninth Circuit and the Ninth Circuit… with regard to the first question, the Ninth Circuit, relying on its prior decision in Chaney, found that the circumstance was not void on its face.

It then went on to address the question he had presented, essentially that it was void as applied to him.

The Ninth Circuit concluded, after reviewing some Arizona cases, that the evidence presented did not meet Arizona’s definition of cruel, heinous or depraved, the narrowing decision… the narrowing construction that they had previously found had been made by the Arizona Supreme Court.

It’s our position that what the Ninth Circuit essentially did, and what Respondent is asking this Court to do, is to allow Federal habeas courts to act as a third sentencer.

Our position that’s not the… not the responsibility–

Byron R. White:

What do you think its holding was in the Ninth Circuit?

Gerald R. Grant:

–My interpretation of the Ninth Circuit’s holding was they first looked at Arizona’s definition of cruel, heinous or depraved.

They said, yes, this is properly narrowed.

Byron R. White:

Uh-huh.

Gerald R. Grant:

They then looked at the facts and they accepted the facts… the historical facts–

Byron R. White:

Yes.

Gerald R. Grant:

–concerning what Mr. Jeffers had done.

They accepted those as correct.

They then made their own determination of whether those facts met the standard.

In essence, what they did was resentence Mr. Jeffers.

They made their own determination as to whether or not these factors… this evidence, excuse me, met the definition of the factor.

William H. Rehnquist:

Well, didn’t the Ninth Circuit in reaching that conclusion take into consideration other Arizona cases in which the death penalty had not been imposed?

Gerald R. Grant:

They looked at… they looked at six cases.

Essentially they all dealt with the cruel, heinous or depraved circumstance, and I believe four of them… four of the decisions were ones in which the state supreme court had found that the circumstance did not apply.

Again… and essentially what they did, besides acting as a third level of sentencer, was to conduct a proportionality review.

They compared this case with various other Arizona cases.

Our position is that under Pulley versus Harris that sort of proportionality review is not constitutionally required and it should not have been done.

Sandra Day O’Connor:

Now, what do you say the standard for review is for this so-called as applied challenge?

Gerald R. Grant:

My position is that… is that once the determination has been made that the circumstance has been narrowly defined.

The actual finding that the circumstance exists is not subject to Federal review unless that finding is simply so unprincipled or arbitrary as to somehow violate the constitution.

And that test I take from the plurality opinion in Barclay.

Sandra Day O’Connor:

In… in what case?

Gerald R. Grant:

Barclay, Barclay versus Florida.

Our basic position is that since Furman this Court’s consideration in death penalty cases has been that states should narrow the class of people eligible for the death penalty and that this Court… and that state courts should guide and minimize, but not eliminate, the discretion of the sentencing authority.

The two main decisions that I think are relevant here from this Court are Godfrey and Maynard.

Neither of those support the action taken by the Ninth Circuit.

Neither of those dictate the result that the Respondent would like from this Court.

The problem in Godfrey and what caused this Court to reverse Godfrey’s death sentence was not that this Court found that Godfrey’s conduct was somehow less atrocious… I believe was the language in Godfrey… than that of other people in Georgia.

The problem in Godfrey was that Georgia had adopted a narrowing construction of their aggravating circumstance, which is similar to Arizona’s.

I believe they used the word atrocious rather than… than heinous and depraved.

Gerald R. Grant:

This Court recognized that… that Georgia had done that, they had adopted a narrowing construction.

The problem with Godfrey, however, was that the jury who sentenced Mr. Godfrey was not instructed in accordance with that narrowing definition, and, therefore, their finding that the circumstance existed was subject to uncontrolled discretion.

And, secondly, on review by the state supreme court of Georgia, the state supreme court also failed to apply their own narrowing construction of the aggravating circumstance.

Because of those two things, this Court concluded that the danger of excessive discretion in an unchanneled sentencing decision was too great and therefore reversed Mr. Godfrey’s death sentence.

In Maynard, which followed Godfrey, the problem again was not… or, the reason for the holding was not that Mr. Maynard’s conduct was somehow less atrocious or less heinous than that of anyone else in Oklahoma.

John Paul Stevens:

May I just interrupt a second, Mr. Grant?

Why in Godfrey… what was the standard that you understand was applied to decide that the… Georgia’s narrowing construction had not been followed?

I want to be sure I get the… what you’re saying the difference between Godfrey and this case is.

I’m not sure I… I… I may have lost you.

Gerald R. Grant:

Well, I think the difference is, simply by looking at the record this Court could determine, number one, that the jury who sentenced Godfrey were not instructed on the meaning, the narrowing construction–

John Paul Stevens:

Right.

Gerald R. Grant:

–of the meaning of the aggravating circumstance.

There wasn’t any instruction to the jury.

Secondly, this Court could determine by reviewing the Georgia Supreme Court’s review of Mr. Godfrey’s situation, that the Georgia Supreme Court had not adopted… or, had not applied that definition.

The distinction here is that, first of all, we have judge sentencing in Arizona, not jury sentencing.

The judge is presumed to know the law.

John Paul Stevens:

But as to the second point… is what I’m most interest in.

Gerald R. Grant:

As to the second point, you can look at the Arizona State Supreme Court’s opinion and you can see… it’s in the Joint Appendix at, I believe, page 69 and following… that they refer to the narrow definition and they then proceed to apply it to Mr. Jeffers’ case.

The only… the difference here is that the Federal court went beyond those questions, whether or not there is a definition, whether or not the definition is narrow, and whether or not the definition was applied by the state supreme court.

Those are the considerations that this Court talked about in Godfrey and Maynard.

It went beyond those three and essentially substituted its own judgment as to what the appropriate sentence should be.

John Paul Stevens:

Well, I thought the… I thought… I’m… I… it’s kind of a confusing opinion.

But I thought they in effect had said that the… a proper reading of the narrowed definition was not applied here.

I’m… I’m stating it backwards.

That the facts here don’t fit the narrowed definition.

Gerald R. Grant:

I think that’s what they said.

But I think the effect of that is we’ve looked at these facts and we don’t think this murder is especially heinous and depraved.

Byron R. White:

Under the narrow definition?

Gerald R. Grant:

Correct.

They said… they acknowledged that Arizona had applied the definition.

Gerald R. Grant:

They simply disagreed with the result that Arizona had reached in applying that definition.

It’s our position that that final step, disagreeing with the result, is not a Federal question subject to review in habeas cases unless that finding is somehow so unprincipled or arbitrary.

Respondent’s position and, by extension, that taken by the Ninth Circuit, essentially would open almost every step of a state court’s sentencing process in capital cases to Federal review.

There is no logical reason why Respondent’s position and that taken by the Ninth Circuit could not be extended to allow a Federal habeas court to in effect find mitigation that the state court had rejected, to allow a Federal court to in effect find that mitigation, which the state court had found was insubstantial and insufficient, was substantial to call for a leniency, was indeed sufficiently substantial to call for a leniency.

All of these things, the state would submit, are simply beyond the power of the Federal habeas court and are things that the Federal court should not be doing.

Respondent’s position also asks this Court to… and their answering brief demonstrates that fairly well… wants this Court to conduct a wide ranging, case-by-case comparison of Arizona cases and in effect any other state.

Byron R. White:

Well, tell me… tell me again why… why a… why you think that the Jackson-type review to a… where… where it’s been found either in the trial court or the… by the appellate court that an aggravating circumstance exists.

Now, that means you know what the aggravating circumstance is defined as and if it… it’s an application of that definition of the facts.

Gerald R. Grant:

I don’t have a major problem with the Jackson standard.

My only problem is the reservation that aggravating circumstances are not equated with the finding of guilt.

I certainly think the–

Byron R. White:

Well, that’s true.

Gerald R. Grant:

–in a Jackson-type standard–

Byron R. White:

Well, what’s… what’s the difference between the Jackson-type standard and what you’re promoting?

Gerald R. Grant:

–To a certain extent we’re… we’re discussing semantics.

I think the Jackson standard and this… and this principle… unprincipled or arbitrary standard could be read–

Byron R. White:

Because a lot of people… a lot of people, including some maybe around here, thought there was going to be a terrific terrible result from Jackson.

But that hasn’t proved to be the case, has it?

Gerald R. Grant:

–I don’t think so.

I think the Jackson standard is… is something… as long as the distinction between aggravation and finding of guilt is maintained, I think the Jackson standard is appropriate because it pays deference to the state court finding, which the Ninth Circuit in this case did not do under any standard.

My position is that the Barclay standard would perhaps pay a little more–

Byron R. White:

I thought the court went on to say that because the… because on these facts the circumstance doesn’t exist… I thought they concluded that the circumstance therefore, as defined, wasn’t… wasn’t sufficiently… well, it wasn’t… as applied in the courts, it was sort of a crazy quit.

It was just… you could… it was… it was just an arbitrary system.

Gerald R. Grant:

–I disagree with what the Ninth Circuit did in that respect.

I think… again, the Ninth Circuit was presented with two questions.

The circumstance is overbroad on its face.

When it dealt with that question, it–

Byron R. White:

It said no.

Gerald R. Grant:

–resolved it against–

Byron R. White:

Yeah.

Gerald R. Grant:

–Petitioner.

It then went on to… to discuss whether or not it was applied properly here.

I mean, that… on that question, it ruled against the state.

Byron R. White:

And I thought it… I meant to say that if the Arizona court thought that on these facts that circumstance existed, the whole system… or, that whole aggravating circumstance wasn’t adequate to avoid an arbitrary system.

Gerald R. Grant:

I don’t… I don’t think they went that far.

I think all they said was under these facts… these facts cannot be plugged into that definition and maintain a narrowing construction as to Mr. Jeffers.

I don’t think they related it back to the first question and… and somehow undermined what they had done with respect to that.

John Paul Stevens:

May I ask you another question, Mr. Grant?

In the later case, contrary to this one, the Ninth Circuit said the circumstance is… is void on it’s face, or something, didn’t it?

That it’s too broad?

Gerald R. Grant:

Yes.

John Paul Stevens:

Now, if… I’m not saying we should… but if we should agree with… have that same view, what do we do with this case?

Do we… are we bound sort of by the law of the case that we must assume this is a valid aggravating circumstance even if we don’t think it is?

Gerald R. Grant:

Well, my first answer would be that question is not before the Court in this case, although Respondent disagrees with me.

John Paul Stevens:

But it’s… it would be sort of… if this is the sole aggravating circumstance and if we’re convinced, based on the Ninth Circuit’s reasoning in the other case that it’s an invalid circumstance, I find it rather difficult to say we should execute this man.

Gerald R. Grant:

Well, my second response–

John Paul Stevens:

You see?

Gerald R. Grant:

–then would be, first of all, that issue is before this Court in Walton, which–

John Paul Stevens:

Right.

I understand that.

But I’m just… I’m really… it’s kind of hard to divorce them completely in thinking about this.

I’m just trying to be candid with you.

Gerald R. Grant:

–Assuming… assuming the Court ruled against the state’s position in Walton–

John Paul Stevens:

Yeah.

Gerald R. Grant:

–the question would then become under Teague and Penry whether or not that rule, whatever rule it is that the Court adopts,–

John Paul Stevens:

Well, assume they not only ruled against you but they thought it was covered by Godfrey or something like that so it wasn’t a new rule.

Gerald R. Grant:

–If it is not a new rule under the Penry and Teague analysis, it could be applied to this case.

My position would be that it is a new rule,–

John Paul Stevens:

I see.

Gerald R. Grant:

–it’s not dictated by Maynard and it’s not dictated by Godfrey.

Gerald R. Grant:

It goes beyond what two… two cases authorize.

John Paul Stevens:

And, of course, you say it’s wrong too.

I mean, you say this circumstance is… is proper?

Gerald R. Grant:

Correct.

John Paul Stevens:

Yeah.

Gerald R. Grant:

But assuming, as your hypothetical was–

John Paul Stevens:

Yeah.

Gerald R. Grant:

–that… that this Court were to rule against us on that point, that would be my response.

My position is that indeed Arizona has adopted a narrowing construction of the–

John Paul Stevens:

Yeah.

Gerald R. Grant:

–of the circumstance.

Getting back to the comments I made regarding this Court’s general holding since Furman, the need for narrowing the class and restricting sentencing discretion in capital cases, I think if you examine the Arizona sentencing scheme, you’ll see that Arizona has done just that.

First of all, Arizona provides for sentencing by a judge, rather than by a Jury, which this Court has noted on some occasions should provide for more consistent reasoned application of the death penalty.

Arizona also requires the sentencing judge to make written findings to file a special verdict so that the appellate court can review what it is that the… that the trial court based its death sentencing decision on.

Arizona also requires that the aggravating circumstance which qualify a defendant for the death penalty must be proven beyond a reasonable doubt.

Arizona further provides for automatic appeal in every death penalty case.

The Arizona Supreme Court conducts an independent review of the evidence concerning both aggravation and mitigation.

It does not defer to the trial court’s finding; it makes its own decision as to whether or not the evidence is sufficient to meet the aggravating circumstance or the mitigating circumstance.

And, also, as a matter of state law, the Arizona Supreme Court conducts a proportionality review in which it compares the sentence imposed in the case before it with those in other cases.

That proportionality review is done as a matter of state law, and not as a matter of Federal law.

As Pulley makes clear, one problem with that sort of proportionality review being done by a Federal court is that the Federal court… this Court or any other Federal court… is not going to have the same access to the record in the other death penalty cases from the state that the Arizona Supreme Court will.

The Arizona Supreme Court will have those records before it, will have the transcripts, will have the sentencing decisions, and can make a much more informed and complete analysis than a Federal court could do attempting to make a proportionality review.

With respect to what happened in this case, our position is that the standard applied is a constitutionally narrow one, that the facts fit plainly within that definition, and in fact fit within the core of that definition.

It’s our position that the Ninth Circuit, instead of acting as a Federal reviewing court, essentially acted as another sentencing court.

In doing so, it exceeded its authority and this Court should correct the mistake, set aside that finding by the Ninth Circuit, and reinstate the death penalty for Mr. Jeffers.

Unless the Court has additional questions, I’d like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Grant.

Mr. Liebman, we’ll hear from you now.

James S. Liebman:

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

The issues in this case have narrowed considerably as a result of the briefing and particularly the argument here.

James S. Liebman:

It seems to me it is clear that both parties agree that there are two questions, constitutional questions, that the Court has to address in a case such a this one, and it’s also clear that the parties agree on the standards that apply to both of those two questions.

What they disagree about is the answer to the first of those questions.

The first question is whether or not Arizona’s definition… Arizona has a definition of its especially heinous and depraved aggravating circumstance that satisfied the Eighth Amendment rule of Furman versus Georgia, that it narrowed the class of death-eligible first-degree murderers on the basis of an objective principle.

That question entails an inquiry, as in both Godfrey and Maynard, into first whether or not the state has defined its aggravating circumstance in a constitutional manner, and, secondly, whether it has applied a constitutional definition in the particular case.

William H. Rehnquist:

This… this is the point on which the Ninth Circuit ruled against your client?

James S. Liebman:

No, Your Honor.

The Ninth Circuit did not rule against Mr. Jeffers on either of those aspects of the Maynard and Godfrey rule.

William H. Rehnquist:

Well, it did… it did make one favorable ruling to the state.

What was that?

James S. Liebman:

That ruling was that the statute… and it says statute repeatedly… the statute on its face was not unconstitutional, and it cites Gregg.

That’s exactly the ruling this Court made in Gregg, which was that the reason the statute isn’t unconstitutional on its face is it is, as the Ninth Circuit said, capable of constitutional definition and application.

The question it set aside was are we going to throw out the Arizona statute lock, stock and barrel?

And it said no, we’re going to see if in the definition of that statute and in the application of that statute it was rendered constitutional before we’re going to throw the whole thing out.

And it concluded that it was not constitutional.

The state has said that that narrowing requirement is met.

In fact, the state began its argument by saying once the state has adopted a proper narrowing construction… that’s the critical premise… then you go on to its second question.

Well, we are challenging that premise, and the reason we challenge that premise is that the state has never told us what the narrowing principle is.

There is no statement of that in the state’s briefs and the state did not make that statement during the course of its argument.

We don’t know what that narrowing principle is, and it’s the absence of that principle that renders the Arizona definition as applied in this case unconstitutional.

And it seems to me–

Anthony M. Kennedy:

If… if the Supreme Court of Arizona had in effect said exactly what the Ninth Circuit said, I take it we’d have jurisdiction on direct review to reverse them under your theory?

James S. Liebman:

–If the Supreme Court of Arizona said–

Anthony M. Kennedy:

Let’s say… let’s say the Ninth Circuit opinion was really written by the Supreme Court of Arizona in this case, I take it under your theory we’d have jurisdiction on direct review if… assuming we granted cert…. to reverse them.

James S. Liebman:

–Absolutely, because it would have been decided on the–

Anthony M. Kennedy:

You have to say to say that for your theory of the case, I take it.

James S. Liebman:

–Yes, but I think that there’s no question but that what the Ninth Circuit intended to do here was to extract a standard.

If you look at footnotes 9 and 10 and the text accompanying them in the decision of the court of appeals, it very clearly says over and over again what we’re doing in this case is trying to extract a standard and then looking at the constitutionality of that standard.

If Arizona had done the same thing, said, well, here’s our standard, we decide that it’s constitutional or we decide that it’s unconstitutional, this Court could review it because the Federal question would be preserved in the case and would be available for review here.

I think it’s–

Anthony M. Kennedy:

Well, I’ll look at the case again.

Anthony M. Kennedy:

I… I had thought that the Ninth Circuit accepted the statute as setting forth a proper standard and accepted the cases as setting forth the proper standard but said that they… that they can’t be applied here.

James S. Liebman:

–Well, Your Honor, I think that’s not a fair reading of the decision of the Ninth Circuit and I would like to take the Court through that–

Anthony M. Kennedy:

Fine.

James S. Liebman:

–because it seems to be an important point.

I think this… the passage that we’re talking about is on 24 through 26 of the appendix to the cert. petition.

The first passage of this is really at the top of 24, it’s the first full sentence after the citation there, his, Mr. Jeffers’s, argument that the statute… the statute… is void on its face is foreclosed by our decision in Chaney.

You can’t throw out the statute because Chaney said the statute was okay.

Why did Chaney say that?

That’s the next sentence.

There, we rejected a similar challenge to the same statute, pointing out that although the statutory language is broad, as any murder could be cruel, heinous or depraved, the Arizona Supreme Court need not construe the statute open-endedly.

Anthony M. Kennedy:

Where are you reading?

James S. Liebman:

I’m sorry.

It’s on page 24 of the Appendix to the cert. petition.

William H. Rehnquist:

A-24.

James S. Liebman:

A-24.

So, first of all, it says we’re going to look at the statute.

Does the statute pass constitutional muster?

No, it doesn’t.

But we’re not going to throw it out because it’s capable of constitutional construction.

Byron R. White:

Well, yes, but on A-25 it says that… it says that in Chaney the court held that…

“the Arizona Supreme Court appears to have sufficiently channeled sentencing discretion to prevent arbitrary and capricious capital sentencing decisions. “

James S. Liebman:

Well, Your Honor, first of all, you changed a word there, and I think it’s an important word.

You said it held.

All it says is, “In Chaney, we”–

Byron R. White:

We stated in Chaney that–

James S. Liebman:

–That it appears.

Byron R. White:

–Uh-huh.

James S. Liebman:

Then it goes on to give in the next sentence… I think it’s important, Your Honor, because in the next sentence they do say the holding of Chaney… the holding of Chaney is that the application in that case was constitutional.

And then you go on to what I think is the critical passage, it’s the first sentence, full sentence, in the first paragraph that begins on the next page.

Anthony M. Kennedy:

Well, I want you to get there, but jut before you do… in other words, you’re going to interpret that as saying we imposed a sentence on Chaney under a statute that was not constitutional?

James S. Liebman:

No.

What I interpret the… the Ninth Circuit to be doing here is to be doing exactly the same thing with regard to the… the definition that Arizona uses that it was doing with regard to the statute.

It said, we don’t know whether the statute is constitutional.

We’re going to have to look for the construction of it.

We don’t know if the definition is constitutional because it will only become clear if it’s constitutional or not in the application–

William H. Rehnquist:

You’re… you’re attributing an extraordinarily Jesuitical approach to Judge Canby, I think.

James S. Liebman:

–Well, no, Your Honor, and there’s a very good reason why I don’t think I am doing that.

And that is that the Ninth Circuit in Adamson, which was decided several months after this case… at the end of the discussion of heinous and depraved there said, in order to find in Adamson that the definition in Arizona is unconstitutional of heinous and depraved, do we have to overrule any cases that this court has already decided?

And the answer it gave was no.

At page 1038 of the Adamson decision they said there is no prior case in the Ninth Circuit that finds the definition to be constitutional.

It then goes on to look at the Chaney case.

And it says all that Chaney says is… and it quotes the portion that Justice White read to me, underlines the word appears, and said that word was simply–

Byron R. White:

Was that the same panel?

James S. Liebman:

–It was an en banc court.

On this point it was without dissent and one of the judges who sat and signed–

Byron R. White:

Right.

James S. Liebman:

–the Adamson decision also signed the Ninth Circuit decision in this case, in the panel case, Judge Pregerson.

So essentially what you’re… if the state’s reading is correct, that the Ninth Circuit decided that the definition was constitutional, it would require this Court to believe that Judge Pregerson decided that in this case and a few months later signed on to another decision in which he said that there was no Ninth Circuit case–

Byron R. White:

Well, that may be a later interpretation of what they thought they said in Chaney, but we’re… we’re reviewing this case.

James S. Liebman:

–But, Your Honor, we’re reviewing–

Byron R. White:

We’re reviewing this case.

James S. Liebman:

–Excuse me.

But we’re reviewing the identical language that this Court used.

All it did is say–

Anthony M. Kennedy:

Well, I still don’t see how you’re helped because I think you’re going to go to A… the first paragraph on A-26.

James S. Liebman:

–Uh-huh.

Anthony M. Kennedy:

Isn’t that where you were going to take us on this same point?

James S. Liebman:

Yes, it was.

And if I could, it states that while Chaney establishes that the Arizona statute is not void on its face, and is capable of constitutional application, it naturally doesn’t answer the question of whether the Arizona statute was constitutionally applied.

The critical passage there–

Anthony M. Kennedy:

Applied to Jeffers in this case.

James S. Liebman:

–To Jeffers in this case.

But the critical passage is

“is not void on its face and is capable of constitutional application. “

That refers–

William H. Rehnquist:

But that… that isn’t the language.

You’re… you’re not using the words that you just quoted from.

James S. Liebman:

–Well, let me–

William H. Rehnquist:

Is capable of… it does not answer the question whether the Arizona statute was constitutionally applied to Jeffers in this case.

James S. Liebman:

–Right.

If I could, though, Your Honor, what it says is, while Chaney establishes… it’s going to tell us what Chaney established.

Chaney establishes that the Arizona statute… not the definition… the statute… is not void on its face.

And the next clause is, “is capable of constitutional application”.

Then it says, we’ve got to determine whether it was applied constitutionally, and it goes on to do that in the rest of the decision.

If I could just give you another explanation here of why I think this has to be the proper reading.

If you look at page 36 of this same opinion that we’re reading, the court goes on to say it looks at the varied Gretzler standard.

That is, the Arizona definition of heinous and depraved.

The Gretzler standard is that you’ve got to have a case that convinces the sentencer that based on the totality of the circumstances there’s something about that case that… quote… sets the case apart from the norm, that makes it unusually especially heinous of depraved.

That’s the Arizona definition.

William H. Rehnquist:

I’m not sure we’re not spending a disproportionate amount of time, considering each side has half an hour, on an interpretation of what the lower court meant.

That’s up to you… not entirely up to you because you have to answer questions.

James S. Liebman:

You may be right, Your Honor.

Let me move on because I think that the important point here is whether or not Mr. Jeffers can rely upon the Adamson or the Maynard analysis in this case whatever the Ninth Circuit did.

I believe that the Ninth Circuit did rely upon this ground.

But it doesn’t matter.

There are two reasons that I want to stress to the Court why this issue is here in this Court.

The first issue is it is included within the question presented.

Now, the question presented is whether a Federal court may set aside a state court’s finding of an aggravating circumstance in a capital case without applying a standard that requires some deference to the state court’s finding.

The answer to that question is if the aggravating circumstance, as applied in the case… as defined and applied in the case, is constitutional, you do defer.

But if it is not constitutional, you don’t defer.

William H. Rehnquist:

If you… are you talking about a case-by-case analysis of each case to see whether the aggravating circumstance was… quote… constitutional or not?

James S. Liebman:

No.

Your Honor, I’m not talking about that at all.

I think that the process by which you go about assessing that question is laid out very clearly in Godfrey and Maynard, and that’s exactly what I want to turn to now, to go through the Godfrey/Maynard analysis as applied to this case and show why it requires the result… the judgment that was granted below.

Godfrey and Maynard proceed according to a fourstep process.

That process indicates that the heinous and depraved interpretation by the Arizona courts and application in this case is unconstitutional.

The first step says you look at the words of the statute and you see if the words of the statute are capable of narrowing.

Most aggravating circumstances are going to win at that point and you would never get beyond that point with 95… 99 percent of the aggravating circumstances.

The problem is that as a result of the joint decisions in Godfrey and Maynard, Godfrey knocked out depravity and Maynard knocked out heinousness as on their face sufficient.

So you’ve got to go to the next question.

Was the problem with those words cured at the trial court level?

If it was cured at the trial court level, again, that would be the end of the case.

But there’s no argument here that it was cured at the trial level for two reasons.

First of all, all the trial judge did here was to recite the words of the statute, heinous and depraved.

Those words don’t suffice on their own.

Secondly, the only instructions that we can assume that the trial court used in this case were the instructions given to it by the Arizona Supreme Court in prior decisions.

And the only explanation or definition that existed as of 1980 in Arizona as to what heinous and depraved meant was that the dictionary synonyms were used.

That was the only definition existing at the time.

Those dictionary synonyms are that heinous is defined as grossly bad or shocking evil, and depraved is defined as marked by deterioration.

We know that those synonyms as a substitute do not constitutionally suffice because this Court held that they don’t in Maynard because those same dictionary synonyms from Webster’s Third International were read to the jury in the Maynard case at the trial level.

So, the trial definition is precisely the same in both cases and it’s constitutionally insufficient.

Then you get to the third step of both Godfrey and Maynard.

And that step says look at the constitutionality of the definition that the state supreme court has used.

And that’s what I want to go immediately because it’s the heart of the analysis here and that is the Gretzler definition.

Gretzler is cited in both of the briefs, all of the briefs, saying that’s the standard.

There’s no dispute about that.

And Gretzler begins… it’s a five-step process.

It begins by reciting once again the dictionary definitions.

The next thing it does is to say there’s some factors that we’ve looked at in the past in looking at whether those definitions are met, and it lists some factors.

They include such things as whether the violence in the case was gratuitous, whether there was relish, and whether the killing was senseless.

James S. Liebman:

Then, the third step of the process is the critical one.

The court states its standard at page 12 of Gretzler.

And there it says that the court will reverse a finding that the crime was committed in an especially heinous or depraved manner only… quote… where the circumstance… or, where no circumstances, such as the specific factors discussed above, separate the crime from the norm of first-degree murder.

And the court has made clear, not only because it said it three times in Gretzler, but in numerous cases afterwards, that those five factors that it set out do not need to be present.

You can find heinous and depraved if some factor beyond those five is present.

And, indeed, the Arizona Supreme Court in a number of cases has found heinous and depraved present without finding any of the Gretzler factors that were specifically mentioned because it’s factors such as those that are critical.

It’s also critical that those factors don’t control the outcome.

What controls the outcome is whether looking at those factors and those definitions the court decides that there’s something about the case that sets the crime apart from the norm of first-degree murder.

And that norm has never been defined.

So, therefore, there are a number of cases as well in which the Arizona Supreme Court has found the Gretzler factors present but nonetheless said that’s not a heinous and depraved case because those factors or no other factors set it apart from the norm.

By the way, the court has used a number of alternative phrases.

But they’re all to the same effect.

Elsewhere it has said that the case is heinous and depraved under the circumstance if it is more heinous or depraved than the usual first-degree murder.

Sometimes the phrase is that the case is… quote… particularly disturbing.

Or, oftentimes it simply says the case has to be especially heinous or especially depraved and it underlines especially.

The next step in the Gretzler procedure is to say, well, how are sentencers supposed to know whether the violence in a case is sufficiently gratuitous, for example, to suffice, or how are sentencers to go about identifying factors such as but in addition to the factors that Gretzler listed.

And it says very clearly the courts are to look and see whether there are any additional circumstances so as to set the crime apart from the usual or the norm.

It is clear in Arizona, as a result of Gretzler and as a result of all other cases, that the standard is you look at all of the factors, such as those listed in Gretzler, but not by any means limited to them… and the court has added since then about 20 additional factors… and you ask whether any of those factors, or something else in the case, adds up to something additional that makes this case especially bad.

William H. Rehnquist:

So that’s basically the way the Supreme Court of Arizona has defined for state law purposes that term in its capital statute?

James S. Liebman:

Right.

And that’s exactly what happened in Mr. Jeffers case.

In other words, the next step in the Godfrey/Maynard analysis is to see whether that same kind of definition was applied in the particular case.

And, again, there’s no dispute.

Gretzler was applied in this case.

Gretzler was decided about three weeks before Mr. Jeffers’ case.

Gretzler is cited numerous times in Jeffers’ case and his case follows the same protocol.

First, it says look at the dictionary synonyms.

Then it says you look at the various factors in the case, and it quotes about nine or ten such factors.

And it says that it finds that this case does satisfy the factor because there are… quote… additional circumstances that distinguished the murder from the usual or the norm of first-degree murders.

It applies the Gretzler standard.

James S. Liebman:

Most importantly I think, for your purposes here… for our purposes, it goes at the very end of the discussion of heinous and depraved and it confronts Mr. Jeffers’ argument under Godfrey that the Arizona definition was unconstitutional for lack of a narrowing construction.

And the court says we do have a narrowing construction.

That construction is… and this is how we satisfy the requirements of Godfrey… that construction is… and I quote… it says that the case has to be… has to stand apart from the norm and the killing has to be especially heinous and especially depraved.

Again, the especially underlined.

So, again, it’s clear that that same standard extracted from Gretzler was applied in Mr. Jeffers’ case.

That standard from Gretzler applied in Mr. Jeffers’ case is unconstitutional because it is identical to the standard that Oklahoma used in the Maynard case, and it has the exact same two defects that this Court identified in the Maynard case in unanimously overturning the Oklahoma construction.

The first problem is that the standard used in Arizona is a totality of the circumstances approach.

There is no objective factor that must be present for the murder to satisfy the–

Byron R. White:

Well, what if… what if the… the… what if the court says here is a series of things that will show that something is depraved… that the killing was depraved.

But there could be a lot of other circumstances.

And it turns in out in a lot of cases there are a lot of other circumstances.

But in this particular case suppose the court says, here is why this is depraved… A, B… and they apply this open-ended definition as though it had a closed-in.

James S. Liebman:

–Well, you’re suggesting–

Byron R. White:

And in application here is… so, shouldn’t the question be whether the factors that they used in concluding that this was a depraved murder are valid?

James S. Liebman:

–That’s exactly right, Your Honor.

I think you’re suggesting sort of the reverse of Godfrey.

Godfrey said we’ve got an okay standard–

Byron R. White:

Well, I asked you the question–

James S. Liebman:

–Okay.

And let me try and answer it.

That… in… in… if you had a case in which that kind of thing happened that you have hypothesized, I think it might be possible to save an application from an otherwise unconstitutional definition.

Byron R. White:

–Yes?

James S. Liebman:

The answer is yes.

But that is not what happened in this case.

And there are a number of reasons for that.

Byron R. White:

Well, you might… you might say that if you look at all of the cases that this definition they’re applying is just sort of… all it amounts to is saying especially depraved.

James S. Liebman:

That’s right.

Byron R. White:

That’s what kind of an argument you make.

But in my example if they said A, B, and… there’s no question that that would indicate depravity.

James S. Liebman:

Well, Your Honor, I… if I take your hypothetical–

Byron R. White:

Yeah.

Right.

James S. Liebman:

–I’m saying that you… you could save… you could save it in… in that way in an individual case.

But–

Byron R. White:

Yes.

But not here?

James S. Liebman:

–that’s the process that Oklahoma is now going through in looking at case after case in the wake of Maynard and saving some cases and not savings others because it’s finding that there were factors in those cases.

But that’s not this case, Your Honor, for a couple of reasons.

First of all, we obviously have to take the Arizona Supreme Court at its word here, and its word is that it followed the Gretzler standard and it didn’t rely on any one or two factors that are set.

It looked to see whether in its subjective judgment the facts of the case as a whole set it apart from the norm.

The second thing is the only two factors that one could point to are these words “relish” and “gratuitous violence”.

Those words don’t have any more content than the words “heinous” and “depraved”, and, therefore, even if you could have a case where there were just two factors and those factors would be enough, it couldn’t be where those factors are equally as unconstitutional as heinous and depraved.

The second and final point that I want to make here is really the point that Justice White suggested in his question, and that is that if you have a standard that uses a definitional strategy that says we’re going to define, looking at this totality of the circumstances, a qualifying case… a heinous and depraved case… as one in which we look at it all and we say it’s especially bad, this Court said quite clearly in Maynard that that kind of an approach is unconstitutional.

The Court actually said… it explicitly ruled in Maynard that the requirement that the crime be… quote… more than just heinous, does not satisfy the Eighth Amendment because it does not in the words of Maynard inform sentencers of what they must find to impose the death penalty.

If I might, it seems to me what the standard in Maynard is… is that you can’t just have an adjective and an adverb.

You’ve got to have a noun or a verb to go with it.

Especially what?

Abnormally what?

Unusually what?

And that what–

William H. Rehnquist:

Well, then you find another adjective than heinous to modify by that adverb or–

James S. Liebman:

–If you had another phrase… instead of heinous if you had some core definition that has, as Justice White I think put it in Jurek, that has a common sense core of meaning… for example, torture, or, for example, an intent to inflict great harm.

Those are concepts.

Or kidnapping or killing a police officer, all of the other aggravating circumstance have that common core of meaning.

But the words heinous and depraved don’t have that common core and no matter how many “especialies” or “particularlies” you put in front of them, you don’t give the content that this Court required in Furman to make it constitutional.

That was the problem that this Court found in Maynard, that indeed in Oklahoma they had said, we are going to look at the manner of the killing and we’re going to look at the attitude of the killer and we’re going to see if those factors, when we look at them, make this case especially bad.

And this Court said you can’t do that, you need to say what it is, what that factor is, or what those factors are that make it bad and that have that common sense core of meaning.

And that common sense core doesn’t exist here.

Just to answer one of the questions that the… was raised in the first argument here.

The Ninth Circuit did not conduct proportionality review in this case, and I don’t think that proportionality review would be appropriate in a constitutional review of an aggravating circumstance.

James S. Liebman:

It was very clear about why it looked at those cases, and it looked at cases… and it’s more than six… it quoted about 12 cases because it also looked at the ones that are discussed in Gretzler.

And it said, we can’t find the definition that Arizona has given to be constitutional on its face, but let’s see if we can look at cases and extract from those cases a better definition, a definition that would save the statute.

And that’s why it looked at those cases.

However, when it looked at those cases, it said, you cannot extract a definition from those cases that both saves the constitutionality of the standard by providing a principal means to separate death from life cases and that applies to this case.

There’s simply no definition that you could extract.

So, it’s not proportionality review at all.

It is simply a look to the cases to see if you can save an otherwise unconstitutional statute and definition by looking to the cases and finding in the application, as reflected in those cases, a definition that would be constitutional and would save the application.

But because the Court found that the line had not, as it put, been made clear… that line between a special and usual depravity, as it said… since that line hadn’t been made clear in Mr. Jeffers’ case and you couldn’t find a line that applied from the other cases, you had to find that as applied in this case it was unconstitutional.

It seems to me then, in conclusion, that this case is controlled by both Godfrey and Maynard’s use of Godfrey in that case.

Arizona’s construction of the especially heinous and depraved circumstance stands on exactly the same footing as Oklahoma’s.

It is open-ended and there is no common sense core of meaning to it.

For those reasons, Mr. Jeffers… the judgment of the court below should be affirmed, that Mr. Jeffers’ death sentence is unconstitutional, both as the definition of that circumstance has been given in the definition, and as it was applied in this case.

William H. Rehnquist:

–Thank you, Mr. Liebman.

Mr. Grant, you have ten minutes remaining.

Gerald R. Grant:

Thank you, Your Honor.

Respondent here in his argument, as he has done in his answering brief, essentially is attempting to resurrect an issue the Ninth Circuit decided against him that he failed to ask the Ninth Circuit to rehear and that he failed to cross-petition for cert. on in this case.

Going back to the Ninth Circuit, there were two arguments raised by Respondent there.

One, that (F)(6), the cruel, heinous or depraved aggravating circumstance was unconstitutionally vague on its face.

The second, that it was unconstitutionally vague as applied to him.

I think those two questions can be more accurately phrased in the following manner.

One, Arizona has not adopted a narrowing construction of the cruel, heinous or depraved aggravating circumstance.

That is his, on-its-face argument.

The as applied argument essentially is… what it boils down to is the evidence here doesn’t support the finding.

I think it’s plain that if you look at what the Ninth Circuit did here, that they ruled against Respondent on the first question… again, page A-24 of the Appendix to the petition for cert…

“his argument that the statute is void on its face is foreclosed by our decision in Chaney. “

If you look at what the Ninth Circuit said in Chaney, which is 801 F. 2d 1191 at page 1195, they stated… first of all, they said… they said what Mr. Chaney was claiming, which is the exact same thing that Mr. Jeffers was claiming in the Ninth Circuit.

He was challenging (F)(6) on its face and in its application.

The Ninth Circuit went on to state in Chaney, which is the decision that in Jeffers the panel of the Ninth Circuit found foreclosed that first question… they stated,

“the statute is not unconstitutional on is face. “

“Although the statutory language is broad, as any murder could be considered cruel, heinous or depraved, the Arizona Supreme Court need not construe the statute openendedly. “

Gerald R. Grant:

They then went on to say… and this is all at page 1195 of the Chaney decision…

“The Arizona Supreme Court appears to have sufficiently channeled sentencing discretion to prevent arbitrary and capricious capital sentencing decisions. “

“The court has defined each of the factors set forth in Section 13-703(F)(6). “

which is the cruel, heinous or depraved.

They then cited Gretzler and referred to the Gretzler definitions.

And they went on to say… and this sentence is left out of the decision in Adamson at page 1038, which Respondent referred to… this sentence is left out of that decision.

“These definitions have been applied consistently. “

That was the holding in Chaney.

That is why in Jeffers the panel of the Ninth Circuit found that that on its face issue was foreclosed.

It was decided against Respondent.

He did not move for a hearing.

In fact, in response to our petition for a hearing on the second issue… the as applied issue… and this is in his response to petition for a hearing with suggestion for a hearing en banc at page 4… Respondent acknowledged that that first issue had been decided against him.

In effect, he argued that the decision of the Ninth Circuit here was really not a significant one, it did not throw out the entire (F)(6) circumstance.

He acknowledged that it had been decided against him.

It’s our position, plainly, that that issue is not before this Court.

The only issue before this Court is the insufficiency of the evidence type claim, the on its… what he terms the on its face claim.

Harry A. Blackmun:

Yes, but he… he won below.

Gerald R. Grant:

He won below on the second issue.

Harry A. Blackmun:

And why can’t he… why can’t he defend the judgment on the other ground?

Gerald R. Grant:

I would have two responses to that.

One would be Rule… this Court’s Rule 14.1(a) which states that the statement of any question presented will be deemed to comprise every subsidiary question fairly included therein.

My response would be the as applied question is included within the on its face question, not vice versa.

If we were here on the… on the as applied, or the narrowing construction issue, we could get to the second issue.

But we’re here only on the second issue and, therefore, we can’t get to the first.

It’s not included therein.

Byron R. White:

Well, I know.

But he’s a Respondent.

Why can’t he defend the judgment, as Justice Blackmun asks?

Gerald R. Grant:

My second response would be… and the name of the case doesn’t jump to my mind at the moment, but it’s cited in the answering brief… essentially Respondent’s position is that he can defend the judgment below on any grounds available to him.

The logic of that would… would to me mean that he can defend it on any of the sentencing attacks that he made below, which were decided against him, and even those which were not decided.

Gerald R. Grant:

The Ninth Circuit didn’t rule on all of its sentencing attacks.

Byron R. White:

Yeah, but at least he can defend it on a… on a ground that was raised below and it was decided against him.

Gerald R. Grant:

Well, my second response then would be he can… and, according to that case which he cited in his brief, he can decide it… he can defend it on that ground so long as it does not expand the relief.

If you get to that first question.

My position is that it expands the relief.

The relief granted in this case was that Mr. Jeffers’ death penalty was set aside.

If you get to the first question, the on its face of the narrowing construction, it would expand the relief by essentially throwing out the entire (F)(6) circumstance, which the Ninth Circuit did not do here.

John Paul Stevens:

But that wouldn’t expand the relief for this particular individual.

Gerald R. Grant:

Correct.

John Paul Stevens:

I mean, he’s either got… may I ask, your–

Gerald R. Grant:

It would expand it for other cases because the Ninth Circuit would apply it there.

John Paul Stevens:

–Yes.

May I ask… your opponent in effect says you never do tell us what the standard is.

And… can you state the standard and are there any objective requirements for this particular standard?

Gerald R. Grant:

Well–

John Paul Stevens:

Is there any one fact that must–

Gerald R. Grant:

–First, as to why I didn’t state the standard.

Number one is because it is not within the… within the question presented.

Our… our position is–

John Paul Stevens:

–Well, I’m not… I’m not criticizing you for it.

I’m just asking you are you able to state the standard.

Gerald R. Grant:

–Well, I think the standard is–

John Paul Stevens:

Can you tell us one… one requirement that must be met?

Gerald R. Grant:

–I think the standard is stated in the Gretzler case, which I referred to in my reply brief.

John Paul Stevens:

I don’t have the Gretzler case in front of me.

Gerald R. Grant:

The first two–

John Paul Stevens:

Can you state the standard?

Gerald R. Grant:

–The first two examples, as Mr. Liebman stated, the Supreme Court of Arizona essentially first looked to the dictionary definitions of the terms.

It then went on in the Gretzler case to provide a number of examples.

The first two of those are relishing the murder and excessive or gratuitous violence.

Gerald R. Grant:

And our position is that under the evidence presented here Mr. Jeffers–

John Paul Stevens:

Now, is either one of those… is either one of those sufficient?

Gerald R. Grant:

–I think yes.

I think–

John Paul Stevens:

Does that mean… we had a case that I was thinking about during the argument in which the murderer was upset about what the victim had done to his sister and he participated in a brutal killing and there was… when the killing took place, he in effect said, you got what you deserved.

Would that satisfy the standard?

Was a… is a revenge killing always a relish factor?

Gerald R. Grant:

–I don’t think it is always, but I think what you have here went beyond a simple statement of you got what you deserved.

John Paul Stevens:

What… what revenge killings would and what would not comply with the relish factor?

Gerald R. Grant:

I would think a situation where the defendant after injecting his victim with heroin, an overdose of heroin, and finding that that wasn’t sufficient to kill her, after he makes statements to another person in the room that he’s given her enough heroin to kill a horse and that the bitch won’t die, where he then climbs on top of the victim, who is unconscious lying on a bed–

John Paul Stevens:

And is that climbing on top to finish the job off… is that the gratuitous violence where he–

Gerald R. Grant:

–That’s getting to it.

John Paul Stevens:

–thought it was–

Gerald R. Grant:

That’s getting to it.

John Paul Stevens:

–What?

Gerald R. Grant:

We’re not there yet.

John Paul Stevens:

What is the gratuitous violence?

Gerald R. Grant:

The gratuitous violence… he then, after climbing on top of her, choked her with a belt.

When that wasn’t sufficient, he choked her with his hands.

He then–

John Paul Stevens:

When does it become gratuitous is what I’m trying to figure.

Gerald R. Grant:

–At that stage.

John Paul Stevens:

Is it when it’s no longer necessary to kill?

Gerald R. Grant:

At that stage he eventually he… I believe at that point the evidence shows that Ms. Chaney was dead.

He then forced Doris Van Der Veer, who was also present, to get on top of her… of the victim herself, inject her with additional heroin and he photographed her while doing so.

He then got back up on top of–

John Paul Stevens:

When she did that was the victim already dead?

Gerald R. Grant:

–Yes.

He then got back on top of Ms. Chaney himself and began striking her in the face, which caused bleeding, according to the evidence.

John Paul Stevens:

I thought the lower court said that what happened after she died didn’t count.

Gerald R. Grant:

The lower court only stated that with respect to Ms. Jeffers’ conduct in disposing of the body three days later.

It did not state that with respect to the… to the conduct that he engaged in right at the time and immediately after death.

And what he did, as he was striking her in the face, was to state, “this one is for”, and he named a number of names–

John Paul Stevens:

Yeah.

Gerald R. Grant:

–of people who he felt that Ms. Chaney had informed on.

I think that sort of conduct clearly falls within those first two Gretzler definitions, which I submit would be the core of the Gretzler definitions.

Respondent’s basic position with respect to the Adamson-type issue is that the only definition that can be upheld is that which allows for no discretion.

I don’t think this Court has ever stated that.

And in… in Pulley it’s plainly stated that in state capital sentencing procedures there will be some anomalies.

But so long as the discretion is limited to a constitutional extent, the sentencing scheme will survive.

Additionally, Mr. Liebman referred… again, getting back to that type of Gretzler definition… he attempted to tie it to a finding of torture and in effect stated that if… if we could tie it to that, that would be sufficient.

I think this Court rejected specifically that type of argument in Maynard.

This Court stated in Maynard that we are not stating that merely because… merely tying it to such a finding as torture would be the only constitutionally sufficient way in which it could be defined.

Thank you, Your Honors.

William H. Rehnquist:

Thank you, Mr. Grant.

The case is submitted.

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