Maynard v. Cartwright – Oral Argument – April 19, 1988

Media for Maynard v. Cartwright

Audio Transcription for Opinion Announcement – June 06, 1988 in Maynard v. Cartwright

del

William H. Rehnquist:

We’ll hear argument first this morning in No. 87-519, Gary Maynard v. William Cartwright.

Ms. Dickerson, you may proceed whenever you are ready.

Susan S. Dickerson:

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

The issue before the Court is whether the United States Court of Appeals for the Tenth Circuit applied the principle of Godfrey v. Georgia too restrictively when it invalidated the Oklahoma Court of Criminal Appeals determination and interpretation that the murder of Hugh Riddle was especially heinous, atrocious or cruel.

Godfrey, in the plurality opinion, stated that the capital sentencer’s discretion must be channeled by clear and objective standards.

The State submits that the Tenth Circuit, by its ruling, applied that principle in a manner that effectively requires a finding of serious physical abuse prior to a finding of this particular statutory aggravating circumstance.

It is our position that physical abuse to the victim is not a necessary element of a constitutional interpretation of this circumstances, and that, moreover, the jury’s discretion was channeled appropriately in this case.

Sandra Day O’Connor:

Ms. Dickerson, have the appellate courts in Oklahoma since this court was decided, specifically I think in the Stouffer case and the Brown case, recently adopted the Tenth Circuit’s view of the requirements for narrowing the especially heinous, aggravating circumstance?

Susan S. Dickerson:

Yes, Justice O’Connor.

As a direct result of the Maynard decision, the Oklahoma Court of Criminal Appeals, less than 40 days after the en banc pronouncement, narrowed the interpretation.

The State’s position would be that that narrowing was an accent to the current status of interpretation of federal constitutional law.

Sandra Day O’Connor:

Was that decision, those decisions a matter based on both state and federal law, do you think?

Susan S. Dickerson:

No, Your Honor.

Our interpretation would be that they were solely premised upon federal constitutional law.

All of the citations in the Stouffer case refer only to Maynard v. Cartwright and to the prior opinions of this Court.

Harry A. Blackmun:

What do those opinions do to your case?

Susan S. Dickerson:

Justice Blackmun, we would contend that jurisdiction is still appropriate with this Court, and that it is the ultimate decision of this Court to determine, as a matter of federal constitutional law, whether or not a state is limited to a finding of serious physical abuse.

Harry A. Blackmun:

In other words, you are taking the position that the Tenth Circuit, and it was unanimous wasn’t it?

Susan S. Dickerson:

Yes, Your Honor, it was.

Harry A. Blackmun:

Misinterpreted our decisions here?

Susan S. Dickerson:

Yes, Your Honor, it is our contention.

Harry A. Blackmun:

You are swimming upstream, aren’t you, with an en banc case?

Susan S. Dickerson:

In Godfrey, there was a dissent which indicated that psychological torture could be used as a measure of determining whether or not that–

Sandra Day O’Connor:

That was a dissent, wasn’t it?

Susan S. Dickerson:

–Yes, it was, Your Honor.

Sandra Day O’Connor:

Are you asking us to overrule Godfrey?

Susan S. Dickerson:

I don’t believe it’s necessary, Justice O’Connor, to overrule–

Sandra Day O’Connor:

Well, it sounds very much, to me, like it would be necessary to reach the result you are asking for.

How do you distinguish Godfrey?

Susan S. Dickerson:

–The distinctions in Godfrey are that–

Sandra Day O’Connor:

Other than by reliance upon the dissenting opinion.

Susan S. Dickerson:

–In Godfrey, Godfrey was a domestic situation in which the killer had immediately prior to the killing engaged in a heated conversation with this estranged wife, proceeded immediately to the same, shot his wife and killed here, and then proceeded to shoot and kill the mother-in-law.

In Godfrey, only a portion of the statutory language of the (b)(7) subsection circumstance was given.

And in our case, the entire language of the especially heinous, atrocious, or cruel circumstance was given.

Additionally, in Godfrey, there was no further definitional instruction given to the jury.

And in our case, in Instruction No. 16, which is found at Page 12 of the joint appendix, definitions were given which provided guidance to the jury in this instance.

At the outset I would note that this Court has held that qualifying language used in an instruction can render acceptable and appropriate an instruction which might otherwise be infirm.

In the case of California v. Brown, this Court approved of the giving on an anti-sympathy instruction during the capital sentencing stage of a trial due to the fact that the instruction cautioned against the use of mere sympathy as opposed to sympathy alone.

Instruction No. 16 defines the terms apart from “especially”.

However, the State would note initially that the use of the word “especially” heinous, atrocious, or cruel serves to channel and qualify those types of murders which are more evil than any murder which is certainly heinous, atrocious, or cruel.

In addition, the instructions given provided that heinous means extremely wicked or shockingly evil.

Atrocious means outrageously wicked and vile.

And cruel means pitiless or designed to inflict a high degree of pain, utter indifference to or enjoyment of the suffering of others.

These instruction and definitions were given in the disjunctive term and provided further guidance which was not provided to the jury in the Godfrey case.

As well in Godfrey, there was no other aggravating circumstances found, and in this instance, a second aggravating circumstance of great risk of death to more than one person was found.

Addressing specifically the definitions that were given, heinous and atrocious turn specifically to consideration of the killer’s attitude and the manner of the killing.

And because the discretion was channeled by use of definitions, and because the Oklahoma Court of Criminal Appeals then assessed the definitions and the application of the facts to those definitions, the State submits that sufficient narrowing occurred.

In this case, the heinousness and atrocity of the crime was evidenced by Defendant Cartwright’s intent to get even with the Riddles.

He had spent over four months harboring his grudge, and he had told two witnesses that he intended to get even with the Riddles.

As pointed out in the Oklahoma Court of Criminal Appeals’ opinion, the Defendant either lay in wait our returned under cover of darkness to commit his acts against the Riddles.

Additionally, he disconnected the phone.

He provided a note on the front door of the home to conceal his deeds.

He engaged in a larceny attempt, and rather than turn himself into the authorities immediately upon completion of the crime, as did the defendant in Godfrey, he fled the scene once the authorities arrived on the scene, and turned himself in only two days later at the convincing of his family members.

Antonin Scalia:

What is so especially atrocious, heinous or cruel?

It sounds like a routine murder to me.

Susan S. Dickerson:

Justice Scalia, we would contend that this intent, this laying in wait, this return under cover of darkness, all of the items I’ve mentioned previously, as well as the cruelty inflicted by virtue of the fact that there were psychological torture experienced by Mr. Riddle, although he died instantly, which would set this murder apart from other murders.

Antonin Scalia:

Well, I don’t see the latter.

I can see how there was a lot of psychological suffering by Mrs. Riddle, and I can see that his treatment of Mrs. Riddle was quite atrocious, slitting her throat and so forth.

But he just dispatched Mr. Riddle with one blast of his shotgun.

Susan S. Dickerson:

I think it is appropriate to put the entire crime scenario in perspective in that the Riddles had been in the living room.

Susan S. Dickerson:

Mrs. Riddle arose to go into the hall, was confronted by Defendant Cartwright; was shot once; fell to the floor; was shot again, and importantly, that second shot Defendant Cartwright did not shoot her in the chest or in the head where she would be rendered dead instantly, but left her there to suffer such that Mr. Riddle would then in turn hear his wife suffering in the hall, and then immediately was confronted by Defendant Cartwright.

The Defendant fired two shots at Mr. Cartwright, hitting him once in the chest and killing him instantly at that point, but there was a period of psychological torture involved.

And, in fact, unlike the situation in Godfrey where the prosecutor conceded that there was no torture, in this instance, in the closing remarks of the prosecutor at Page 633 of the transcript, the prosecutor noted that Mr. Riddle must have endured some psychological trauma from having heard his wife injured in the next room immediately prior to being killed himself.

Antonin Scalia:

Did the instructions here allow the jury to consider the atrociousness or heinousness of the crime as a whole?

That is, could it take into account the torture of Mrs. Riddle that went with the whole thing?

Susan S. Dickerson:

Yes, Your Honor.

And we would–

Antonin Scalia:

Do you think that that’s constitutionally permissible under our decision; that we can look at the whole crime and not just the murder of Mr. Riddle alone?

Susan S. Dickerson:

–Yes, Your Honor.

As long ago as Gregg v. Georgia, this Court indicated that the circumstances of the crime were appropriate for consideration by this Court in assessing the validity of a death penalty.

Just O’Connor, in her special concurrence to the California v. Brown opinion, indicated that validity of the death sentence must reflect a reasoned moral response to the defendant’s background, character and crime.

Arid part of the crime in this instance was the inflicting of pain and suffering that he inflicted on Mrs. Riddle.

Antonin Scalia:

Well, that seems to me a much stronger part of your case than whatever happened to Mr. Riddle who was dead quite soon.

But the Defendant here intentionally shot her in both legs rather than killing her.

And then after he had killed Mr. Riddle, came back and slit her throat.

Somehow or other she didn’t die.

Susan S. Dickerson:

In all fairness, the first shot may have been intended to have been aimed at another part of her body, but there was some evidence that she deflected the gun shot to her leg in the first instance.

But clearly, he shot her with the second shot in the leg as opposed to shooting her in the chest or the head where she certainly would have died instantly.

It is appropriate to consider the character of the Defendant in this case, and we are looking in this particular circumstance to see the evil character of a defendant.

And certainly the acts of this particular Defendant are more evil.

In connection with your question, Justice Scalia, I would note that in the prior opinion of the three judge panel of the Tenth Circuit prior to the reversal en banc, Judge Tacha, who wrote the en banc decision, validated the existence of the especially heinous, atrocious, or cruel finding upon the existence of suffering to Mrs. Riddle.

John Paul Stevens:

May I ask about Mrs. Riddle?

Is it your understanding of the facts that the shooting of Mrs. Riddle, the Defendant was trying to kill her when he shot her?

Susan S. Dickerson:

I would assume that his ultimate intention were to kill her in that he did return to the bedroom where she had managed to try to find the telephone working, he did slit her throat and stab her in the abdomen rather than assist her upon her plea for help.

John Paul Stevens:

The question I suppose I am wrestling with, because I have the same concern Justice Scalia does, should one view the attack on Mrs. Riddle as an attempt to torture her and cause her to suffer unnecessary pain before she would die, or was it just that he was kind of bungling the job of trying to kill her?

He hit her legs instead of shooting a fatal shot, and he failed to kill her by stabbing here, but he wasn’t just trying to inflict pain that would not result in death.

What position did the State take at the trial?

Susan S. Dickerson:

Justice Stevens, I think it would be a fair characterization of the evidence that he intended not only that Mrs. Riddle endure some torture, but that Mr. Riddle endure torture as it related to the suffering of Mrs. Riddle as well prior to the time that he did finally do what he thought would in fact kill her.

John Paul Stevens:

Did the prosecutor’s closing argument explain why the State thought this was cruel, unusual and atrocious?

Susan S. Dickerson:

Not to the extent relied upon on review by the Oklahoma Court of Criminal Appeals, but there was reference made to the torture, the psychological trauma to which Mr. Riddle had been exposed.

Susan S. Dickerson:

Which Mr. Riddle had suffered, yes.

Yes, Your Honor.

There was also a lengthy discussion as to the circumstances of Mrs. Riddle’s torture, because conjointly with the trying for murder, there was a count of shooting with intent to kill.

John Paul Stevens:

What would your view if… as a matter of the law.

Assume the facts were clear, and they never are as clear as we make them in our hypothetical question, but assume it was perfectly clear that the Defendant had tried to kill Mrs. Riddle as promptly and efficiently as he could, but he missed and he was just a bungler and caused her to suffer the equivalent of the same kind of physical torture that if he was just trying to do.

Would that satisfy the aggravating circumstance?

Susan S. Dickerson:

In that instance, I believe it would in that there would be actual suffering, and the end result, the end circumstance of the crime would be that there would be some suffering endured there such that the jury could rely upon a finding of cruelty.

John Paul Stevens:

So that you don’t focus really on the mental state of the Defendant, but rather, on the pain suffered by the victim.

It really doesn’t matter whether he was deliberately a malicious sort of person or just a bungler.

That really wouldn’t make any difference.

Susan S. Dickerson:

Well, Justice Stevens, I think our approach would validate a finding of looking at the killer’s attitude as well as the circumstances of the crime.

John Paul Stevens:

But you don’t have to look at it is what I am asking, in your view.

The element doesn’t focus on the Defendant’s mental state, in your… it focuses, rather, on the impact of the hardship on the victim.

Susan S. Dickerson:

I would think it could focus on both.

John Paul Stevens:

Either one would be sufficient.

Susan S. Dickerson:

I wouldn’t say that one would be mutually exclusive of the other.

And I think that that’s what the Oklahoma Court of Criminal Appeals had done is allow all of the circumstances of the crime as well as the killer’s attitude to come into play based upon previous holdings of this Court which would validate looking at the circumstances of the crime and the killer’s attitude.

Antonin Scalia:

Ms. Dickerson, I would like to come back to Justice Stevens’s question about specifically whether the jury was asked to take into account the suffering that the wife endured.

Was that part of the prosecution’s argument, that this was heinous and atrocious because of the torture of the wife; was that part of the State’s case?

Susan S. Dickerson:

It was part of the general closing argument made to the jury; yes, Your Honor.

It was not emphasized to the great degree that it might have been, but it was part of the closing argument.

Antonin Scalia:

And the whole thing went to the jury together, not just the killing of the husband, but the whole incident, including the wounding of the wife?

Susan S. Dickerson:

That’s correct, Your Honor.

Both were tried simultaneously.

Harry A. Blackmun:

Could I bring you back to your comment before the last series of questions?

You made a reference to the panel opinion, and I didn’t quite follow you there.

What is the significance of the panel opinion by Judge Tacha?

Susan S. Dickerson:

I believe, Justice Blackmun, I was trying to indicate that prior to the panel opinion, prior to the en banc opinion the three judge panel opinion involved an opinion by Judge Tacha that the circumstances surrounding the torture and abuse to Mrs. Riddle could appropriately be used to assess–

Harry A. Blackmun:

But wasn’t that vacated by the en banc opinion?

Susan S. Dickerson:

–Yes, Your Honor, it was.

Harry A. Blackmun:

Therefore, what significance is it?

Susan S. Dickerson:

I has no precedential value.

Harry A. Blackmun:

Then I wonder why you mention it.

Susan S. Dickerson:

I mention it merely in connection of the fact that at least at one time one judge was of the opinion that that information could be used.

Harry A. Blackmun:

But he is the same judge who wrote the en banc opinion.

Susan S. Dickerson:

It is, Your Honor.

William J. Brennan, Jr.:

Ms. Dickerson, the Oklahoma Court of Criminal Appeals, the new standard, as I understand their opinion, is that only where there is evidence that the death of the murder victim was preceded by torture or serious physical abuse.

Now, that was not something prescribed by the Tenth Circuit, was it?

Susan S. Dickerson:

The holding of the Tenth Circuit did not explicitly state that would be the only constitutional interpretation.

However, the State’s position is that it effectively mandated that particular interpretation by virtue of certain language in the en banc opinion.

William J. Brennan, Jr.:

I gather all that the Tenth Circuit did really was to say that, as a whole, the past construction of the especially heinous, atrocious, or cruel aggravating circumstance was unconstitutionally vague; wasn’t that it?

Susan S. Dickerson:

Yes, Justice Brennan.

William J. Brennan, Jr.:

And the Court of Criminal Appeals agreed that, yes, it was.

And then they established this new standard; is that a–

Susan S. Dickerson:

Yes, Your Honor.

Our position is that the–

William J. Brennan, Jr.:

–Yes, tell me, what does that do to your case?

Susan S. Dickerson:

–I think the issue remains with us in that the Oklahoma Court of Criminal Appeals merely responded to and assented to the current status of federal constitutional law as interpreted by the Tenth Circuit.

The en banc opinion in the Maynard v. Cartwright case indicated that initially the Oklahoma Court of Criminal Appeals in Eddings had referred to, and it had expressly adopted the profit standard, but had digressed from that standard.

And it was this digression from that standard which caused the Tenth Circuit consternation and concern.

And our position would be that the digression from that standard was not an unconstitutional digression, but was a digression which would allow and account for the circumstances of the crime and the killer’s attitude to be reflected in a finding of this particular circumstance that the murder was more evil than your ordinary murder situation.

William J. Brennan, Jr.:

But I gather were this case to come before the Court of Criminal Appeals at this time, that standard would say that the death penalty could not be imposed in this case.

Susan S. Dickerson:

Justice Brennan, our argument would be that it could be due to the fact that psychological torture took place.

Thurgood Marshall:

Ms. Dickerson, as between the Court of Criminal Appeals and the Supreme Court, does the Court of Criminal Appeals have to follow the Supreme Court?

Susan S. Dickerson:

When interpreting federal constitutional standards, yes, Your Honor.

Thurgood Marshall:

I mean, but there is no way to go from the Court of Criminal Appeals to the Supreme Court, is there?

Susan S. Dickerson:

Not directly in this case, Your Honor.

Thurgood Marshall:

Well, can it go indirectly?

Susan S. Dickerson:

I would think in the event that–

Thurgood Marshall:

I am trying to find… if the Court of Criminal Appeals says yes, and the Supreme Court says no, what is it, yes or no?

Susan S. Dickerson:

–Excuse me.

I thought you were speaking of this Court.

In Oklahoma–

Thurgood Marshall:

No, I am talking about the Oklahoma Supreme Court?

Susan S. Dickerson:

–In Oklahoma, the Oklahoma Supreme Court does not construe criminal law.

We are one of the few states–

Thurgood Marshall:

It doesn’t have any jurisdiction, does it?

Susan S. Dickerson:

–No, Your Honor.

Thurgood Marshall:

That’s what I thought.

But once a statute is declared vague from a federal standpoint, the only option the State has is to construe it again as a matter of state law.

And so we are now in the position that Oklahoma has construed this statute as a matter of state law, and that, I would assume, is binding on us.

Susan S. Dickerson:

Justice Kennedy, our position would be that they have construed it only as a matter of federal law in that they were directed, as it were, by the Tenth Circuit that their standard which they had previously employed did not comport to federal constitutional standards.

Anthony M. Kennedy:

If the Supreme Court of the United States says a statute is vague, and the state reinterprets it, the state is telling us what it means as a matter of state law.

And that is an interpretation that is binding on us.

Susan S. Dickerson:

Again, our position would be that they were forced to adopt this standard by virtue of their understanding of the Tenth Circuit–

Anthony M. Kennedy:

Well, they could have said that they can’t save the statute.

They could have said, we cannot construe the statute as a matter of state law.

Send it back to the legislature, but they didn’t.

The reconstrued it as a matter of state law, and we have to accept that.

That’s what the statute means in Oklahoma now.

Susan S. Dickerson:

–Under that court’s understanding of federal constitutional law.

Anthony M. Kennedy:

Well, we are back to where we started.

Is it your position, Ms. Dickerson, that if this Court were to disagree with the Tenth Circuit on the federal constitutional issue, then the Oklahoma Court of Criminal Appeals would take a different view of how the statute should be construed?

Susan S. Dickerson:

Yes, Mr. Chief Justice.

It very may well go back to the previous interpretation which it had held to be valid up until 40 days after the time of the Tenth Circuit’s opinion.

Antonin Scalia:

Did you try to bring up here, did the Attorney General’s Office try to bring up here, did somebody try to bring up here the case in which the Oklahoma court made the reinterpretation?

Susan S. Dickerson:

No, Your Honor, I don’t believe that was done in this case.

Antonin Scalia:

Pardon?

Susan S. Dickerson:

The other side petitioned for a writ of certiorari in Stouffer, but our side did not.

Antonin Scalia:

Well, why not?

Antonin Scalia:

Wasn’t that the place to fight out this issue?

I mean in that case, you could have said, you know, the Oklahoma court has reinterpreted its state law solely as a matter of federal constitutional law.

We think that’s wrong.

Essentially you are attacking that here in a collateral proceeding, aren’t you?

Susan S. Dickerson:

Yes, Your Honor.

It may very well have been a better tactic to have brought it up in that particular case.

However, because the entire Stouffer opinion is based upon interpretation of the federal standards, I can’t speak to why it was not done, but I would state that it would be appropriate to address it here.

Antonin Scalia:

Did the State win or lose in Stouffer?

Susan S. Dickerson:

The State won, because although they invalidated the circumstance, they found that other circumstances existed.

Antonin Scalia:

Well, then it would have been impossible for the State to bring it here, I presume.

What would the State have been asking us to do?

Affirm?

Susan S. Dickerson:

True, there would not have been an issue which the State could have brought.

Byron R. White:

Well, they not only reinterpreted the statute in that case, but they undertook… the appellate court itself took a weighing, didn’t it?

Susan S. Dickerson:

Yes, Your Honor.

Byron R. White:

Which it did not do in this case.

Susan S. Dickerson:

Prior to–

Byron R. White:

And until then, it had not been doing that.

Susan S. Dickerson:

–That’s correct, Justice White.

Prior to this case, contrary to the position of the Attorney General, the Oklahoma Court of Criminal Appeals had refused to conduct a reweighing in the event of an invalid circumstance.

Byron R. White:

And instead, they ordered a resentencing hearing.

Susan S. Dickerson:

Prior to the amendment of the statute, there was no resentencing hearing which was directly validated by statute–

Byron R. White:

Oh, I see.

Susan S. Dickerson:

–which they would automatically modify.

Byron R. White:

It would be life then.

Susan S. Dickerson:

Yes, Your Honor.

Byron R. White:

All right.

Susan S. Dickerson:

But they have changed that.

Byron R. White:

Now they reweigh it.

Susan S. Dickerson:

Yes, Your Honor.

Byron R. White:

And they might… and in a case like this, they might affirm a death sentence even in the face of an invalid circumstance.

Susan S. Dickerson:

That’s correct, Your Honor.

In the event that this Court were to agree with the Tenth Circuit, it would still be the prerogative of the Oklahoma Court of Criminal Appeals to reweigh on remand and determine whether or not the crime would still merit the death penalty.

William J. Brennan, Jr.:

Ms. Dickerson, getting back to the question I asked you earlier, under the new standard I think you answered me that psychological… what did you say, psychological torture or something?

Susan S. Dickerson:

Yes, Your Honor.

William J. Brennan, Jr.:

Well, the way this reads is… I’m quoting from it,

“Only where there is evidence that the death of the murder victim was preceded by torture or serious physical abuse. “

You are suggesting to me that torture means psychological torture?

Susan S. Dickerson:

It can, Justice Brennan, and several other states have included psychological torture.

William J. Brennan, Jr.:

What about your court?

Susan S. Dickerson:

They have never directly construed that.

We would state that sufficient channeling has occurred in this instance such that the opinion of the Tenth Circuit should be reversed.

And I would reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Thank you, Ms. Dickerson.

Ms. Welch, we will hear now from you.

Mandy Welch:

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

There was some questions asked of Ms. Dickerson which I would like to respond to, and hopefully clarify.

Just Scalia, you inquired with regard to whether or not the jury was asked to take into consideration the suffering of Ms. Riddle in its consideration of the heinous, atrocious, or cruel aggravating circumstance.

The portion of the State argument which does relate to this aggravating circumstance appears in the Joint Appendix, and a reading of that will demonstrate that the State did not at all rely upon the treatment of Mrs. Riddle in its argument or allegations that this crime, the murder of Hugh Riddle, was especially heinous, atrocious, or cruel.

It was noted that Justice Tacha, in her concurring opinion concurring with the initial decision by the panel, found that those circumstances, in her opinion, could distinguish this murder from other murders, and noted that it was not clear in her mind whether or not Oklahoma directed the especially heinous circumstance to the suffering of persons other than the murder victim, and that was an issue which we were asked specifically to brief on rehearing before the Tenth Circuit.

And when the Tenth Circuit considered on rehearing the interpretation and construction of this aggravating circumstance in Mr. Cartwright’s case, it determined that Oklahoma, that the Oklahoma Court of Criminal Appeals had not adopted a construction of especially heinous, atrocious, or cruel which provided any standard that guided and limited a jury’s discretion to impose death.

Sandra Day O’Connor:

Ms. Welch, has the Oklahoma Court of Criminal Appeals adopted a standard now as a matter of state law?

Mandy Welch:

Yes, Your Honor.

The Oklahoma court has adopted a requirement that in order for a murder to be heinous, especially heinous, atrocious, or cruel it must involve torture or physical abuse of the victim, the murder victim preceding–

Sandra Day O’Connor:

And it’s your position that they have made clear under Stouffer and Brown that it would not be relevant to consider what happened to another potential victim in the incident?

Mandy Welch:

–The facts in Stouffer are strikingly similar to the facts in Mr. Cartwright’s case.

In that case there was a surviving victim.

Mr. Stouffer was convicted of shooting with intent to kill in connection with the shooting of that victim.

The shooting occurred prior to the shooting which resulted in the death of Ms. Reeves.

It occurred in the same room.

Mandy Welch:

Mr. Ivans was shot twice by Mr. Stouffer with a gun that Mr. Stouffer had borrowed under some pretense.

After shooting Mr. Ivans, he turned to Ms. Reeves and shot her through her hand which she was holding up to protect herself from the attack.

And then he turned and shot Mr. Reeves again in the face.

Mr. Reeves survived and was able to call the officers and report the shooting of both himself and Ms. Reeves.

And considering whether or not the jury’s finding met the standard that Oklahoma adopted, it pointed out that the suffering of the murder victim did not meet the requirement of torture or serious physical abuse, because the evidence showed that she died shortly after being shot.

Sandra Day O’Connor:

So it’s your position that as a matter of state law in Oklahoma it is not possible to rely on what happened in this case to Mrs. Riddle.

Mandy Welch:

Yes, Your Honor.

Byron R. White:

Well, that would seem to… you would also argue then that that opinion for bad… construing torture to include psychological torture.

Mandy Welch:

No, I don’t… we do not content that the Tenth Circuit–

Byron R. White:

Well, what other kind of torture would it be in that case just because the lady saw somebody else being shot?

Mandy Welch:

–I’m sorry, I didn’t understand the question.

Byron R. White:

What was it you said the opinion for bad referring to?

Mandy Welch:

The Tenth Circuit does not forbade the consideration–

Byron R. White:

I know, in the state case Justice O’Connor was asking you about.

Mandy Welch:

–The State opinion does not take into consideration the suffering of a surviving victim in determining whether or not the murder was heinous, atrocious or cruel.

Byron R. White:

Okay.

I think Justice White’s point is that the only suffering that could have been incurred by the surviving victim there was psychological suffering, psychological torture.

Mandy Welch:

The surviving victim was shot three times in the Stouffer case.

Antonin Scalia:

No, I’m sorry.

The only torture imposed upon the dead victim that could have been attributable to the surviving victim was psychological torture.

Mandy Welch:

Yes.

Antonin Scalia:

Right?

So that seems to contradict what you said earlier that psychological torture is not something that the Oklahoma courts would take into account.

They felt it necessary to address it in this case, didn’t they?

Mandy Welch:

They did not address psychological torture in the Stouffer case.

Antonin Scalia:

What other kind of torture… what kind of torture could they have been referring to then when they felt it necessary to say the surviving, what happened to the surviving victim is irrelevant?

It would have been unnecessary to address it if–

Mandy Welch:

They didn’t say it was irrelevant.

They just did not take it into consideration.

They did not address the treatment of Mr. Reeves when it decided Stouffer.

Mandy Welch:

It adopted a standard which says, in order to prove that a murder is especially heinous, atrocious, or cruel, there must be presence of torture or physical abuse of the victim preceding death.

It did not take into consideration and did not discuss the impact of the shooting of Mr. Reeves on Ms. Ivans.

Byron R. White:

–So you say that might be taken into account.

In the case before us now, the fact that the… you could take into account the effect on the husband of the treatment of his wife–

Mandy Welch:

You might be able to–

Byron R. White:

–prior to his being shot.

Mandy Welch:

–You might be able to take into account a suffering, suffering of the victim if it falls within a clearly defined standard which focuses the jury on that aspect of the murder.

But, in my opinion, the language torture or serious physical abuse of the victim would not focus the jury’s attention on the malsuffering which is not caused by any deliberate intent to inflict mental or physical suffering on the part of the victim.

Byron R. White:

Well, an intruder in a bedroom in a home clearly tortures the wife before he kills her, or before he… he doesn’t kill her but he then turns around and kills the husband instantly.

Now could the jury’s attention properly be focused on the effect of the torture of the wife on the victim?

Mandy Welch:

I don’t think it could under… I think constitutionally I think it could under a standard that focuses the jury on that aspect of the murder.

All right, that was my question.

Mandy Welch:

Constitutionally I think it could if the court adopts a standard which clearly focuses the sentencer on that aspect of the murder.

But I do not think, as a matter of state law, that the standard Oklahoma has adopted–

Byron R. White:

Yes, all right.

Mandy Welch:

–treats it that way.

Byron R. White:

Oh, by the way… well, you say under the state adopted standard, you may not consider psychological torture?

Mandy Welch:

I do not think that the circumstances that you described would amount to–

Byron R. White:

What other kind of torture is it?

Mandy Welch:

–I think if a–

Byron R. White:

As Justice Scalia asked you, what other kind of an impact on the victim could there have been except mental?

Mandy Welch:

–An impact on the victim and torture which is directed toward the victim, in my mind, are two different things.

And if when the court focuses on torture it is focusing on conduct which is directed at causing either–

William H. Rehnquist:

You mean there must have been an intent to torture?

Mandy Welch:

–Under the… I don’t think there has to be an intent, because the court also–

William H. Rehnquist:

We don’t want a whole new body of law–

Mandy Welch:

–No.

William H. Rehnquist:

–just repeating of the elements of murder, I wouldn’t think.

Mandy Welch:

No, no.

Under Oklahoma’s standard, it requires torture or serious physical abuse.

Byron R. White:

By the way, what is the difference between those two under… torture, do you think torture has to be physical?

Mandy Welch:

No.

Byron R. White:

It does not?

Mandy Welch:

No.

Byron R. White:

So it’s an “or”.

Torture or.

Mandy Welch:

Or serious physical abuse.

Byron R. White:

So it must have–

Mandy Welch:

To the extent that–

Byron R. White:

–Why would they even use torture unless the word “torture”, it’s just repetitive of serious physical abuse except for psychological torture.

Mandy Welch:

–As torture is commonly understood, it encompasses acts which are intended to or which knowingly produce extreme suffering beyond–

Byron R. White:

Well, that would always be serious physical abuse except for psychological torture.

Mandy Welch:

–Well, I suppose it could be construed that way.

I don’t read the–

William J. Brennan, Jr.:

In any event, I gather that so far the Oklahoma Court of Criminal Appeals has not addressed psychological torture, has it?

Mandy Welch:

–No.

William J. Brennan, Jr.:

In any case.

Mandy Welch:

No.

I know in Brown, the victim in Brown was shot seven times, and it was unclear as to whether or not the… when the fatal shot was fired.

And the court found that for that reason they could not uphold a jury’s finding, because there was no evidence that the victim suffered before she died.

In that case the victim was fleeing from her husband who was attempting to shoot her, which would indicate that there was at least that amount of psychological trauma and panic that would accompany a person who knows that they are about to be killed.

And the court did not consider that to amount to the kind of suffering that’s necessary under its standard.

Antonin Scalia:

Ms. Welch, do you think that our standard requires that whatever torture or atrociousness there is in the crime have been directed at the victim?

That is to say, suppose you have a crime in which someone comes and tortures very maliciously eight people, kills the ninth.

There is no evidence that the ninth knew of the torture of the other eight, and the whole thing goes to trial together.

Could he receive the death penalty because the circumstances of the entire crime were especially heinous, atrocious and cruel?

He tortured nine people; only one of them died.

Mandy Welch:

I think that states can adopt standards that focus on things other than the murder.

And that–

Antonin Scalia:

That would be constitutional as you understand our rules.

Mandy Welch:

–Yes, I think that knowingly creating a great risk of death could very well apply in a situation where the murder victim did not know or was not involved in the specific act that created the great risk of death.

In fact, that was true… that has been true in Oklahoma and in other states.

I think the fact that it could be true does not validate an application of a vague, unconstitutionally vague and ambiguous circumstance just because some other state might have adopted or because Oklahoma constitutionally could adopt a standard that focused the jury’s attention on that aspect of the crime.

An example of that is Godfrey.

In Godfrey, the court found that Georgia had abandoned its previous construction of its outrageously and wantonly, vile, aggravating circumstance, and that based upon the language of the statute, there was no principled way to distinguish Godfrey from other murders, but it noted that other states had adopted a standard which made the killing of two people an aggravating circumstance that could result in the death penalty.

Since Georgia had not adopted that aggravating circumstance, it did not say the death sentence in Mr. Godfrey’s case.

William H. Rehnquist:

Ms. Welch, in Godfrey, the plurality opinion, after having analyzed the legal aspect, said that the facts of that case could not be brought under the outrageously wanton, vile, et cetera.

Now the Tenth Circuit’s opinion in this case did not track Godfrey in that respect.

The Tenth Circuit expressly paid it wouldn’t decide whether on the facts of this case it could be outrageously wanton or vile.

Why do you suppose the Tenth Circuit refused to opine on that subject when they purported to be following Godfrey?

Mandy Welch:

The Tenth Circuit said that it would not attempt to determine whether this crime was heinous, atrocious, or cruel, because it didn’t see that as its responsibility.

In Godfrey, the court was able to say, these facts don’t meet Godfrey’s… Georgia’s standard because Georgia had adopted a clearly defined standard.

Oklahoma had not, and if the Tenth Circuit had said this case can or cannot meet a constitutional interpretation of heinous, atrocious, or cruel, it would in effect have been dictating to the state an interpretation, or at least suggesting to the state an interpretation that it should adopt.

What the Tenth Circuit did was tell the court, you have not adopted any standard.

We cannot identify any standard in your construction of this aggravating circumstance that guides or limits a jury’s judgment.

And under Gregg, and Proffitt, and Godfrey, in order to impose the death sentence, a state must define those crimes for which death can be imposed in a way that obviates standardless sentencing discretion.

States must do that by providing standards, clear and objective standards that provide specific and detailed guidance.

What the Tenth Circuit said was Oklahoma had not done that, and that they would not presume to tell the state what they should do by saying whether or not this crime would fit any particular constitutional standard.

Byron R. White:

So what was the Tenth Circuit’s ultimate judgment?

They enjoined the execution of petitioner under the invalid death sentence, and this judgment is without prejudice to further proceedings by the state for a redetermination of the sentence on conviction.

Mandy Welch:

Yes, Your Honor.

Byron R. White:

So it did not anticipate that there was going to be an automatic life sentence.

Mandy Welch:

No, they left that up to the state to determine under the state laws.

Byron R. White:

I take it then that it anticipated that if the state court adopted a narrowing, if on remand on this very proceedings they adopted a narrowing construction, a satisfactory narrowing instruction, that there could be a death sentence imposed?

Mandy Welch:

I think the difference between Godfrey and–

Byron R. White:

Well, how about just answering my question.

Mandy Welch:

–Okay.

I think they anticipated that the court could, if state law permitted, conduct a new sentencing hearing.

Byron R. White:

Under a new standard that they would adopt in this case.

Mandy Welch:

Under a new standard, yes.

Byron R. White:

Well, then what did they mean in Footnote 8,

“We express no opinion concerning the constitutionality of a retroactive application of Oklahoma’s new remand procedure? “

Does that refer to the reweighing?

Mandy Welch:

No.

Oklahoma amended its death penalty statutes.

Byron R. White:

Yes?

Mandy Welch:

To provide for a resentencing if there an error in the sentencing stage.

In the same amendment, they eliminated proportionality review.

Byron R. White:

I see.

Mandy Welch:

The court has–

Byron R. White:

Oh, that’s what they referred to.

Mandy Welch:

–Yes, and the court has held, Oklahoma court has held that the elimination of proportionality review is retroactive, but they have not held that the resentencing portion of it is.

The issue is before the court but they have not definitively resolved that, and that’s what–

Byron R. White:

But anyway, you think the Tenth Circuit anticipated a new sentencing hearing at which a proper standard could be applied.

Mandy Welch:

–Yes.

Antonin Scalia:

Ms. Welch, the State relies upon the fact that we approved language precisely like this in the Proffitt case in 1976.

What’s your response to that?

Mandy Welch:

Well, Proffitt approved the language adopted by Florida courts that a crime must be unnecessarily torturous to the victim.

The Proffitt opinion does not even quote the definitions.

It does refer to the especially heinous, atrocious, or cruel language of Florida’s provision.

It noted that the terms could be applied to many murders.

The court pointed out that the grant of certiorari in Proffitt was limited to the consideration of the constitutionality of Florida’s death penalty statutes as a whole.

And it reviewed the vagueness challenges to the aggravating circumstances only to the extent that it was necessary to determine whether or not the statute in its entirety promised to alleviate the risk of arbitrary and capricious death sentences.

And it approved the Florida statute with this aggravating circumstance in it, considering it as construed by the Florida courts.

In other words, as limited to crimes which are unnecessarily torturous to the victim.

The irony in the State’s position is that it is seeking constitutional approval of a subjective and standardless sentencing process at all levels of the capital sentencing process.

It is asking the Court to approve an aggravating circumstance which is intended under Oklahoma law to limit the category of persons eligible for the death sentence which does not in fact do that.

Oklahoma law relies solely on aggravating circumstances to define those crimes which are eligible for the death sentence.

And if those aggravating circumstances do not guide an limit the jury’s discretion to impose death, then sentencing discretion is left unfettered and it becomes impossible to determine how a particular case differs in any principled way from any other cases.

It is also impossible under such an aggravating circumstance to determine the basis on which a particular jury finds that a particular person is eligible for the death sentence, and it is impossible to determine the basis on which the Oklahoma Court of Criminal Appeals upholds the finding of the jury.

Mandy Welch:

The arguments which are advanced by the State are premised upon a misreading of the Tenth Circuit’s decision.

The State’s arguments also reflect a disregard for the reasons behind the constitutional requirement that states guide and limit the capital sentencer’s discretion to impose death.

The decisions of the Tenth Circuit and the Oklahoma Court of Criminal Appeals are based upon constitutional principles that this Court adopted in Gregg and Proffitt, a requirement that states limits sentencer’s judgments in determining whether or not a person is eligible for the death sentence, an which were relied upon by the Court in Godfrey and have been reaffirmed by this Court’s decisions through Lowenfield.

William H. Rehnquist:

The Court in Godfrey, there wasn’t any Court opinion in Godfrey, was there?

Mandy Welch:

There was a plurality opinion and I believe Justice Brennan and Justice Marshall, in a concurring opinion, concurred with the finding of the plurality that Georgia’s construction of the aggravating circumstance was unconstitutionally vague.

William H. Rehnquist:

But there wasn’t any Court opinion.

Mandy Welch:

No, there was a plurality opinion.

Byron R. White:

Did you mean the Gregg case?

Mandy Welch:

Yes, Your Honor.

Byron R. White:

To the vagueness issue?

Mandy Welch:

To the question of vagueness, yes.

Antonin Scalia:

Ms. Welch, could I return for a moment to the argument, which I do see as a problem here, that Oklahoma has already construed its statute in a fashion that can’t well apply here?

What I am concerned about is if that construction by Oklahoma was believed to be under compulsion of federal law, that is, you wouldn’t have wanted the Oklahoma Court of Criminal Appeals to say, we’re going to ignore Federal Circuit Court’s opinion as to what federal constitutional law, you certainly wouldn’t want them to ignore that.

Indeed, they couldn’t ignore it because whoever is sentenced is going to have to go to federal habeas eventually.

Mandy Welch:

Yes.

Antonin Scalia:

But how does the state get review… assuming that that decision was erroneous, if it were erroneous, how would the state have gotten review of it if indeed in the case where that new interpretation is announced, the state wins even under the new interpretation?

Mandy Welch:

Well, if the Court continues to apply it, the state could resist that and present its arguments on direct appeal on rehearing.

And if it were to lose, it could file a petition for certiorari.

Antonin Scalia:

In a later case.

Mandy Welch:

In a later case.

Antonin Scalia:

But why not this one?

Mandy Welch:

Well–

Antonin Scalia:

Why is that any better than this case?

Mandy Welch:

–If I may, I would like to respond to the Court’s position… I mean to the State’s position that this is a response to a Tenth Circuit’s decision which they have considered binding and that they can’t get away from.

In Stouffer, the Court merely noted that the Cartwright decision held that the aggravating circumstance was unconstitutionally vague.

In Brown, the Court of Criminal Appeals specifically said, we agree with the Tenth Circuit’s decision that our past construction of this circumstance was unconstitutionally vague.

And the Oklahoma Court of Criminal Appeals has a history of disagreeing with decisions of Federal Courts and the Supreme Court.

And when it has felt–

Antonin Scalia:

And vice-versa, I suppose.

Mandy Welch:

–Right.

Mandy Welch:

And when it is felt compelled to follow along with a decision that it disagreed with, it has been quick to state that.

That is not what happened here.

I believe there was a question asked I believe by Justice O’Connor earlier about whether or not the Oklahoma court’s decision rested solely upon federal constitutional grounds.

And if I recall, the response was that it rested on Cartwright v. Maynard.

Oklahoma did its own analysis of the opinion of Godfrey, and looked at its previous construction of heinous, atrocious, or cruel, and said we find that our reliance upon the terms of the statute in these definitions did not guide the jury.

William H. Rehnquist:

But it was still relying on Godfrey, if not on Cartwright.

Mandy Welch:

That is correct.

It did rely upon Godfrey, but it relied upon its analysis of Godfrey, and just as important, it relied upon its analysis of Oklahoma law which was applied in Cartwright.

It noted that the construction which it did not think guided and limited juries was applied in Mr. Cartwright’s case.

And when it adopted a standard, it didn’t cite Cartwright v. Maynard.

It cited an Oklahoma Court of Criminal Appeals decision, Odum v. State, in which it said it had previously relied upon that standard, but obviously had not continued to construe the statute in that limiting fashion.

The State’s arguments also reflect a disregard for the reasons behind the constitutional requirement of the state’s guide, and limits sentencer’s discretion and a lack of understanding for the differences between the various stages of a capital sentencing process; differences which have resulted in part from the State’s efforts and this Court’s efforts to balance the need for uniformity and predictability that is essential in avoiding arbitrary and discriminatory decisions to impose death, and the equally important necessity that jurors have unlimited discretion to consider mitigating circumstances which may prevent or result in a decision not to impose death.

Standardless decisionmaking is the essence of arbitrariness.

Both the Oklahoma Court and the Court of Criminal Appeals have agreed that that Oklahoma’s past construction did not limit or guide a jury’s discretion to impose death in Oklahoma.

And they recognized that in order to avoid… in order for standards to avoid the risk of arbitrary application, those standards just be susceptible to–

William H. Rehnquist:

Thank you, Ms. Welch.

Your time has expired.

Ms. Dickerson, you have three minutes remaining.

Susan S. Dickerson:

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

There is no dictate in the Constitution of the United States or in the plurality opinion in Godfrey v. Georgia which would mandate a requirement of physical abuse prior to the existence of a finding that the statutory aggravating circumstance of an especially heinous, atrocious, or cruel existed.

As Justice Stevens pointed out earlier, an argument, and I would concur that the circumstance can be proven by either focus upon the Defendant’s intent, or upon the suffering inflicted by the victim regardless of whether or not there was an intent to torture.

In this case, we do have clear objective standards which provided guidance to the jury.

We have the existence of the use of the word “especially”.

We have the definitions which were given.

And although those definitions were not explicitly cited in Proffitt, they were in State v. Dixon which was cited to in the Proffitt decision.

The Proffitt language was approved by this Court.

However, the State would submit that Proffitt is not the only constitutional interpretation of this particular aggravating circumstance.

It is our position that the Oklahoma Court of Criminal Appeals, in the issue on rehearing in Stouffer, was compelled by what it felt to be the dictates of federal constitutional law to alter its long-time previous opinion, and it did so with great haste in order to avoid refusing to follow the current status of federal law.

There is not a subjective standardless approach used in this case.

Certainly the definitions, the application of the facts to the crime in this case, as reflected in the opinion of the Oklahoma Court of Criminal Appeals, indicates that this decision was certainly more objective in assessing that the crime was especially heinous, atrocious, or cruel more so than with regard to other circumstances.

Susan S. Dickerson:

All circumstances are not capable of equal objectivity.

Some states have, as an aggravating circumstance, that which is clearly objective.

For example, that the victim was pregnant at the time of the murder.

That is something that either exists or does not exist.

Along the lines of the continuum there, this Court has approved the existence of the notion that the Defendant constitutes a continuing threat.

And certainly that is less objective than the standard that we have here before this Court wherein you can look at the killer’s intent, or you can look at the suffering endured, be it psychological or physical suffering.

William H. Rehnquist:

Thank you, Ms. Dickerson.

The case is submitted.