McGautha v. California

PETITIONER:McGautha
RESPONDENT:California
LOCATION:Former New York Times Headquarters

DOCKET NO.: 203
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 402 US 183 (1971)
ARGUED: Nov 09, 1970
DECIDED: May 03, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – November 09, 1970 in McGautha v. California

Warren E. Burger:

We’ll hear arguments next in number 204, Crampton against the State of Ohio.

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

John J. Callahan:

Mr. Chief Justice and may it please the Court.

The Crampton case presents a similar challenge to the imposition of the death penalty or cases of murder in the first degree under the Ohio procedure.

Similar to McGautha, the McGautha case in California, we decry the lack of standards to guide a jury in the selection of its penalties.

We have the added feature in Ohio of contending that a procedure which permits a jury to consider and determine the issues of guilt and punishment in a single proceeding violates the defendant’s rights under the Fifth Amendment to be free from self-incrimination.

The statutes involved in the Crampton case are the statute which defines murder in the first degree in Ohio which sets up the felony type murders and the necessity of deliberate or premeditated malice and also prescribes the punishment.

The statute says that the punishment is death unless the jury recommends mercy in which event the punishment is imprisonment in the penitentiary for life.

We are also bringing to the attention of the Court the statute which provides the right of allocution to a defendant in a criminal case.

The factual context of the Crampton situation is this.

James Crampton was a man approximately 40 years of age at the time of this incident, and he had been married to Wilma Crampton approximately four months at the time of the murder.

In November of 1966, shortly after the couple were married, Crampton admitted himself voluntarily to a hospital for treatment for drug addiction.

He later was confined under the court order of the Probate Court of Lucas County, Ohio to the Toledo State Hospital.

Shortly before the holidays of 1966, Crampton was released to his wife Wilma on a trial visit by the State Hospital authorities.

In January of 1967, she remonstrated with him to return to the hospital.

He refused then he left the family home. He remained away for approximately ten days to two weeks during which time, he was with a friend whom he admit in Pontiac, Michigan and traveled throughout the Ohio, Michigan and Indiana area procuring drugs with money that they obtained from thefts generally in motels.

On January 17, he returned to Toledo, Ohio and came to the residence of his wife at approximately seven o’clock in the evening.

Later the same evening, he was found driving a stolen car in the streets of downtown Toledo with a 45 caliber automatic on the front seat.

His wife’s body was discovered the following morning having been shot through the head with what appeared to be a 45 caliber automatic.

When he came to the Lucas County Court, he entered a plea of not guilty and not guilty by reason of insanity to the charge of murder in the first degree.

At the trial of his case before a jury, he did not testify.

He supplied in order to support his plea of not guilty by a reason of insanity, the medical records from the hospitals that he had been in both before and after his arrest, and also his mother testified on his behalf with reference to his background.

The jury had to decide at a single seat whether or not the defendant was guilty or innocent, whether or not he was insane at the time of the crime or possess its faculties at the time of the crime and whether his punishment should be life imprisonment or death.

The instruction given to the jury and we have no quarrel with the instructions with reference to the guilt or the insanity issues involved.

The instruction given to the jury on the question of punishment was, if you find the defendant guilty of murder in the first degree, this appears at page 5 five of the petitioner’s brief, the punishment is death unless you recommend mercy in which event the punishment is imprisonment during the penitentiary for life.

The jury found the defendant guilty of murder in the first degree did not recommend mercy and the defendant came before the court and was sentenced to death by electrocution in Ohio.

His appeal to the Ohio courts, the judgment of the lower courts have been upheld and this court has granted certiorari on the question of the standards question and what has been alluded to as the single verdict question.

In view of the fact that the standards question has been treated in depth to this point, I will address myself first to the question of Fifth Amendment problem as it arises in the Crampton case.

Warren E. Burger:

Can the trial judge in Ohio or the reviewing court alter the sentence?

John J. Callahan:

No Mr. Chief Justice, the — once the jury in Ohio imposes the penalty of death it cannot be modified or affected by the trial court or by any appellate court unless there is a legal error found in the record with reference to the conviction and if the conviction falls of course the punishment falls with it but the sentence of death in and of itself imposed by the jury is absolutely immune at all stages in the trial and appellate procedure in Ohio.

Warren E. Burger:

Do you consider that an important — further important distinction from the McGautha case?

John J. Callahan:

I do indeed, Your Honor.

The petitioner Crampton contends that he has under the Federal Constitution, two rights involved in this case.

One is the right not to incriminate himself under the Fifth Amendment, and the second is the right if he is found guilty of the charge made against him to have his sentence be imposed on a rational basis.

We contend that this is a due process right and that this latter right includes the right to a hearing on the question of life or death and the right to address evidence to the question of his punishment, address evidence to his sentence under the Ohio unitary trial procedure however, there is a dilemma confronting the defendant in a capital case.

If he invokes his Fifth Amendment right, the jury decides his punishment without ever hearing from the man whose life they hold in their hands.

If he waives his Fifth Amendment right, he will take the stand and subjects himself not only to the possibility of incriminating himself but also he had subject to impeachment as to his credibility and in Ohio this covers a great range of inquiry not only prior convictions for felonies and statutory misdemeanors in the civilian courts and in the military courts, he can be queried about his dishonorable discharge from service, any changes in employment and indication in a recent cases that he can be subject to impeachment by questioning about pending indictments, not convictions but only pending indictments.

The only limitation placed upon the subject by the courts of Ohio is that his limitation is within the discretion of the trial court and if the trial court does not abuse this discretion and it clearly shows by the record that there is an abusive discretion, there is no error.

So to avoid this —

Thurgood Marshall:

Mr. Callahan, in Ohio, how do you prolong the testimony other than the defense that would be for sentencing purposes rather than guilt or innocence?

John J. Callahan:

Under the Ashbrook case in Ohio, Mr. Justice Marshall, it would appear that the question of punishment is not an issue and no evidence can be addressed by the defendant to the question of his sentence.

He must only go and present evidence on the question of his guilt or his responsibility for the crime.

Thurgood Marshall:

So no place can put on the usual evidence that’s well for example like it’s done in California [Voice Overlap]?

John J. Callahan:

No, Your Honor.

Not directed to it directly.

Now, I will admit that in many cases in Ohio and I think this is in one of the opinions written by the Honorable Chief Justice at an earlier time indicated that in many cases a plea of not guilty by reason of insanity is entered and many mitigating factors directed toward the sentencing come in, in an indirect fashion under the plea of not guilty by reason of insanity.

What about the State?

Did it put in evidence beyond the issue of guilt, evidence that goes on and the issue of punishment?

John J. Callahan:

Mr. Justice Harlan, I believe that it would be difficult to distinguish whether the state’s evidence is directed to the issue of guilt or punishment because the aggravating factors that would be necessarily involved in a proving the crime itself would also be directed toward the punishment phase of the matter.

Well, not necessarily he might have a lot of prior convictions.

It would admissible on each of guilt.

It would be an issue of punishment.

The State I gather cannot put in that kind of evidence.

John J. Callahan:

Not unless the defendant comes on to stand himself or subjects his character or reputation to inquiry then of course the State can put on that type of evidence.

Warren E. Burger:

May I ask you this question while you’re pausing here.

Is it not as practical matter possible for a defendant in any capital case to put the whole range of his right in evidence by use of psychiatric and other expert testimony as to his background, his boyhood, his habits, his narcotic addition if any, the whole range of his behavior pattern, and his lifestyle?

John J. Callahan:

Yes, sir.

Yes, he can put it in.

It’s possible for him to put it in.

Warren E. Burger:

And he can put it in without being subjected himself to cross-examination, put it in through the mouth of an expert.

John J. Callahan:

That’s correct, but there is incriminating evidence that comes in with this psychiatric testimony or testimony of the psychiatric type.

In the course of entering these hospitals, a full and complete record is taken with respect to his case history.

If he has been involved in prior criminal incidents, they are appearing not only in the admission’s report, in the psychologist report and many times in the findings by the psychiatrist and he is when he submits the evidence of his background through medical records off times incriminating himself vicariously through what he has said to the psychiatrist at an earlier occasion.

Warren E. Burger:

Well, you say this often happens but it doesn’t necessarily happen does it that this incriminating evidence comes in?

John J. Callahan:

It doesn’t necessarily, no sir.

It would be difficult however to try a case in front of the jury and attempt to block part of the medical records from a technical standpoint to deprive the jury of some part of the medical record when you are submitting the others for their examination.

So there is a certain compulsion to submit to the jury the entire medical record and when there is this evidence in it.

When the defendant Crampton was confronted with the dilemma in the present case, he elected to invoke his Fifth Amendment right and he thereby surrendered his right to address the jury who is in effect the sentencer in this case on the right of his punishment.

Now the statute in Ohio, with reference to allocution is a mandatory statute so held by our Supreme Court and we go through the ritual in Ohio of bringing the defendant before the court in a capital case after he has been found guilty without a recommendation of mercy by the jury and asking him if he has anything to say as to why sentence should not be imposed upon him.

The court is not the sentencer in this case.

It merely imposing the verdict on the basis of the mandatory allocution statute he has asked this but the statute is meaningless totally meaningless in the cases of murder in the first degree but even — where a death penalty has been imposed.

Now, if you can conceive of a situation wherein the judge asks the question, “Do you have anything to say why judgment should not be imposed against you” and a reason where to be advanced by the defendant in this hypothetical situation.

There is a serious question as to whether the judge, the trial judge could modify or in any way reach the sentence that has been imposed by the jury to amend it.

It’s totally insulated under the laws of Ohio once the jury has made this decision.

In light of the (Inaudible) did, typify the allocution right as of constitutional dimension?

John J. Callahan:

It has not Your Honor, its statutory right in Ohio and the Ohio Court has said that it is a mandatory right to be accorded the defendant.

And that your position that under the situation with the jury fixes punishment that is totally or close to totally meaningless?

John J. Callahan:

That is correct, Your Honor because the judge is not the sentencer.

The jury is the sentencer in the capital case and if allocution is to have any meaning, the meaning that the legislature intended for it, since it is a mandatory statute it should permit the defendant to address the sentencer the actual sentencer and not the man who merely echoes the words or the findings of the jury.

Warren E. Burger:

Is that not essentially a question for the State of Ohio however, the Ohio courts, the Ohio legislature.

John J. Callahan:

I believe, Your Honor that if under the due process clause, that this Court has said that the defendant has a right to an opportunity to be heard on the matter of his punishment.

In Specht versus Patterson and on Mempa versus Rhay, that I feel that the matter of allocution in a capital case rises to a constitutional level because there is more involved in a capital case allocution than there is involved in the case of the ordinary crime where the judgment is for a term of years.

Here, it’s a matter or life or death.

Here is the one place under the Constitution where the right of allocution should rise to the requirement of the due process clause.

Harry A. Blackmun:

If you don’t take a position, then your dilemma is one between a constitutional right and a right which is less than of constitutional dimension?

John J. Callahan:

That is correct, Your Honor.

Harry A. Blackmun:

Of course, this may be of no significance.

I’m already mentioning that because this is the position to which you’re driven.

John J. Callahan:

We are aware that it is in Ohio a statutory right that it must be accorded to the defendant, and we are asking this Court for the decision with respect to the whether or not the right in a capital case rises to a constitutional level.

The — It has been suggested in the briefs that the testimony with respect to the defendant’s background and the other factors that he would wish to get before the jury may be supplied by others other than the defendant.

John J. Callahan:

For instance in the present case, the mother of the defendant testified.

But I don’t believe that the problem that we face is cured by the testimony of others because the jury during the course of the trial sees the defendant in the courtroom each day hears the testimony of others with respect to his background and never hears from him because he has invoked his Fifth Amendment right.

And I think that the jury — the individual jurors are inclined to draw inferences from the fact that he did not testify and that if he does not testify particularly in a case where he has pleaded not guilty, not guilty by reason of insanity, if they do not hear from him, the inference is that he is hiding something and that in their punishment phase they can punish him for not being full, free, fair and candid with them.

It is the sort of a Priscilla Mullins – John Alden syndrome of why don’t you speak for yourself?

Why come in with these other witnesses to have them testify about what you could tell us much better?

Under the system in Ohio, the unitary system, the —

How many states have the unitary system?

John J. Callahan:

All, except six, Your Honor.

The States which have it, there are number states of course which do not have the death penalty but in the states which do have the death penalty only Connecticut, Pennsylvania, New York, Texas, California and Georgia have the bifurcated system of trying a case, that is a trial on the guilt phase and a hearing on the penalty phase after the hearing on the guilt phase either by the same jury or with another jury.

Warren E. Burger:

Some states which have had bifurcated trials in some areas of the criminal justice have abandoned it after trying it out have they not?

John J. Callahan:

I believe they have Your Honor but I do not know of any in the capital case area where it has been abandoned.

Warren E. Burger:

What was the earliest date of any state adopting the bifurcated trial on the issue of capital punishment?

California was 57 [Voice Overlap]

John J. Callahan:

I believe California and New York were almost simultaneously adopted the matter.

Warren E. Burger:

Fine, we’ll recess for lunch.

John J. Callahan:

Thank you, Your Honor.[Lunch Recess]

Warren E. Burger:

You may proceed Mr. Callahan.

John J. Callahan:

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

The petitioner Crampton in this case when he was confronted at the outset of his trial with the dilemma as to his rights shows to exercise his Fifth Amendment right and because he feared that if he feared that if he tried to address his sentencer, the jury in this case, he would subject himself to the broad range of impeachment and inquiries and also subject himself to incriminating cross-examination.

This selection is coerced by the unitary trial system in Ohio.

He is compelled to select one of the rights either the right to avoid incriminating himself or the right to allocution because he fears the consequences that may come from selecting the other.

In this case, his choice was not a completely free one and this compulsion is induced by the system that prevails in Ohio.

It has been suggested that this choice of rights is no more than a dilemma that confronts any criminal defendant as to the matter of his trial tactics or trial strategy.

But we would submit to this Court that in making this selection, it is far more than a selection of trial tactics or a choice trial tactics.

In this case, the petitioner laid his life on the line in making this selection.

He knows as he goes into the trial that the jury will be informed and instructed on what to consider and what not to consider on the issue of its guilt.

But on the issue of his punishment, he knows that they may condemn him to death for any reason for 12 different reasons or for no reason at all.

Couldn’t it be true in the — wouldn’t that be true in the regular trial?

John J. Callahan:

It would be Your Honor that he would.

And looking at the issue of punishment, there is no instruction with respect to punishment in the state of Ohio.

John J. Callahan:

The jury is merely told as they were in the Crampton case that they had to decide after he was found guilty if they found him guilty of first-degree murder whether or not they should recommend mercy.

Warren E. Burger:

Mr. Callahan as a practical matter isn’t it true that the overwhelming majority of defendant’s have other factors that inhibit him from taking the stand whether there’s a death penalty involved or not?

John J. Callahan:

I would agree with you Your Honor that there are an unlimited number of other factors in addition to the death penalty in this cases but the capital — the reason of paramount importance.

Warren E. Burger:

You mean this choice is that much more important than the capital case?

John J. Callahan:

Because of the capital case, [Voice Overlap].

Yes I beg your pardon sir?

Warren E. Burger:

That’s the only real difference, isn’t it?

John J. Callahan:

Yes, sir.

Warren E. Burger:

Every defendant in every criminal case is somewhat chilled or otherwise discouraged about taking the stand in most cases isn’t that true?

John J. Callahan:

Most if not all yes and but in the capital case, we submit there is a distinction because of the punishment involved and because of the manner in which that punishment is meted out in Ohio.

Warren E. Burger:

UBut you’re not suggesting that either this defendant or defendants generally in capital cases would take the stand except for this factor?

John J. Callahan:

I believe Your Honor that the choice that the defendant makes in a capital case at the outset of the case, if he were aware that he could address his sentence or on the matter he would be more inclined to take the stand in the penalty phase of the trial similar to California which we do not have in the Ohio case, if I understand Your Honor’s question.

Warren E. Burger:

But that’s just another way of saying that if you have a bifurcated trial he has nothing to lose because he doesn’t reach the second stage until he has been found guilty —

John J. Callahan:

That is correct.

Warren E. Burger:

— wherever he has nowhere to go except to prove his posture that’s the reality of it isn’t it?

John J. Callahan:

It’s true but it’s also a possibility that is in a bifurcated trial is has the penalty phase could work against him permitting the state to introduce evidence of aggravation.

Now his character and reputation are at issue and but they’re not at issue in the guilt phase unless he puts them at issue.

So I submit that the difference is that when he makes the selection, he is considering its point.

Warren E. Burger:

Well, but take this bifurcated situation whether it’s a second trial on penalty only.

He is not compelled to take the stand is he?

John J. Callahan:

No, sir.

Not under the present procedures of which I’m aware.

Warren E. Burger:

And the States in the cases where they have the two-stage trial may put in very wide range of evidence adverse to him factors and aggravation, whether he takes that stand or whether he doesn’t.

John J. Callahan:

I agree.

And there’s that possibility but it has when you consider that that evidence cannot be introduced by the State in a single trial, unless the defendant puts it into issue himself then the defendant’s choice in avoiding the testimony and avoiding getting under the stand gives him the — deprives him of the opportunity to discuss this matter of punishment with the people who actually are going to decide whether he lives or dies.

Mr. Callahan was there any request for a bifurcated trial?

John J. Callahan:

There was no request made in this case, Your Honor.

Subsequent to this case there have been requests for bifurcated trials made by the defendants in Ohio.

I know of no case in which it has been granted a motion made prior to trial by the defendant.

May I ask you, in your study of this case that you are able to tell us when this objection that you’re making was first made to this kind of a trial?

John J. Callahan:

Yes, sir.

By whom?

John J. Callahan:

The objection was made by the defendant on filing his application.

I’m not talking about your case.

I’m talking about when anyone after the adoption of our Constitution first raised the question that you’re now presenting with reference to coercion on account of this kind of proceeding?

John J. Callahan:

The first instance that I know of in my study of this case, Your Honor is the case of Maxwell versus Bishop which was before this Court in the 1968 term, I believe.

Did you find any suggestion before that?

John J. Callahan:

No, sir I did not.

This procedure of Ohio, it forces the defendant to make his selection between these two rights is we claim similar to the procedure that was condemned by this Court in the Simmons case that in a constitutional right should not have to be surrendered in order to assert another constitutional right.

We submit that the Ohio single verdict procedure compels this type of a surrender.

The procedure also imposes —

In that statement, are you equating the right of allocution with the constitutional right?

John J. Callahan:

I am, sir.

The right of allocution — the right to offer evidence on the question of his punishment and the right to have an opportunity to be heard by his sentencer, I submit is a right guaranteed under the due process clause.

Does any case state or federal so held?

John J. Callahan:

The only cases that we refer to as supporting this contention Your Honor are the cases of Specht versus Patterson and Mempa versus Rhay.

This Court has also considered the burdens that are placed upon the assertion of a constitutional right in United States versus Jackson and in Crampton we contend that there is a impermissible burden placed upon the defendants exercise of his Fifth Amendment right against self-incrimination in violation of this Court’s holding in the Jackson case.

The procedure in Ohio has the quality of needlessly encouraging a waiver of this Fifth Amendment right if he wishes to talk to the jury and it needlessly chills the right to present evidence on the question of punishment relevant to his rational sentencing.

The court under the United States Constitution has held that the defendant need not do anything to defend himself against a charge brought against him but it has likewise observe that he certainly cannot be required to help convict himself.

We submit that the Ohio procedure requires that he help convict himself and that the judgment below should be reversed for that reason.

Thank you, Your Honor.

Warren E. Burger:

Thank you Mr. Callahan.

Mr. Callahan, let me ask you one other question.

As I understand it, this record contains evidence bearing upon the defendant’s sanity or alleged insanity, does it not?

John J. Callahan:

That is correct, Your Honor.

Is this not in itself a mitigating to a degree in any event?

John J. Callahan:

It is to a certain extent.

However, introducing the medical records to support the plea of not guilty by reason of insanity, the defendant had to take another calculated risk as to its trial tactics because in those records was contained his prior criminal record which he had told the admissions officer and the doctors and the psychiatrists at the hospitals from which the [Voice Overlap].

That leads me to my next question.

Doesn’t the record contain already evidence as to his alleged addiction and his prior convictions?

John J. Callahan:

Yes, sir it does.

Well then what prejudice was he concerned about in not taking the stand?

John J. Callahan:

The prejudice of incriminating himself, the possibility of incriminating himself in this case in violation of his rights under the Fifth Amendment, the basic contention is that the jury having at one seating to consider guilt or innocence, sanity or insanity, and punishment either death or life is a procedure that compels the defendant to make certain choices which are needlessly made which he does not have to make if there were a bifurcated trial, if there were judge sentencing or review of the sentence by judges in Ohio or if the death penalty were abolished.

Well, I understand your general argument, I’m trying to be a little pragmatic at this point and you have answered to my inquiry that the record does contain already evidences to his prior convictions.

It already contains evidence as to his difficulty with drugs and it already contains evidence with respect to the issue of sanity and I think my question therefore is how otherwise as a practical matter would if he had been prejudiced by taking the stand?

John J. Callahan:

He would be subjecting himself to by the state’s questions to testimony about the crime itself, the prejudice is in the — in incriminating himself.

He would be in effect helping the state to convict himself — convict him of his crime.

What was the na —

Do you have any comment about the Spencer against Tracy, this was against Texas?

John J. Callahan:

Spencer, against Texas?

Texas, yes.

What was the name of the case to which you referred me?

It was the first time you’ve seen this right here?

John J. Callahan:

Maxwell versus Bishop, Mr. Justice.

Versus Bishop?

John J. Callahan:

Maxwell versus Bishop which was —

I don’t find if cited, didn’t you?

John J. Callahan:

I do not believe it was cited.

I’m disappointed.

John J. Callahan:

It was on the — decided by this Court during the last term.

Warren E. Burger:

Well have you answered Mr. Blackmun’s question yet fully?

John J. Callahan:

This was.

Now that I have my characters straightened out, it is Spencer. [Laughter]

That shows that I do.

John J. Callahan:

With reference to Spencer versus Texas, the syllabus report being made available to the jury prior to the trial of the case prior their consideration of the crime.

The only manner in which we can distinguish that case Your Honor is that the — this was if I recall not a capital case and I would feel that there would be a great deal more concerned about the defendant’s right to speak to a jury or the right of records coming in, in violation of his Fifth Amendment right in a capital case.

Do you feel that a decision in your favor here would compel an overruling of Spencer against Texas?

John J. Callahan:

No, sir I do not.

Warren E. Burger:

Just one more question.

You have me a little bit confused when you referred to a separate stage trial on the issue of criminal responsibility or the insanity claim.

Warren E. Burger:

You don’t raise that as the constitutional question?

John J. Callahan:

No, sir.

I do not raise that as a constitutional question.

I’m merely contending that in this case the defendant was entitled to a trial on the issue of his guilt and an opportunity to address his sentencer on the issue of his punishment.

The trifurcated trial with the California problem, we are not saying in our submission is a constitutional matter.

Thank you, Your Honor.

Warren E. Burger:

Thank you Mr. Callahan.

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

Melvin L. Resnick:

Mr. Chief Justice and may it please the Court.

The petitioner’s basic decision in regard to the question of bifurcation of trials and capital cases consist of three matters.

His first position is that there is a collision of constitutional rights.

In this particular case, he claims his Fifth Amendment privilege against self-incrimination and his alleged Fourteenth Amendment right to allocution are colliding, and that one impermissibly burdens the exercise of his privilege not to testify.

His reliance in that regard on the cases of U.S. versus Jackson, Simmons and cases were two specific constitutional rights were involved.

It is further the amici claim that we have a question of fundamental fairness under the due process clause.

It is the position of the State of Ohio that there is no collision of constitutional right in that number one, allocution has never risen to a constitutional right.

Secondly, that there is no burden or penalty on the exercise of his right against self-incrimination because allocution evidence can be admitted by other witnesses.

Secondly, the petitioner had a choice to do what he considered would benefit him the most when he made his decision not to take the stand.

There was no compulsion, there was no extra burden it was a pure voluntary choice.

It is also our position that the unitary trial is fundamentally fair.

And indeed, better on the facts than in the case of Spencer versus Texas which Justice Blackmun referred to.

Thurgood Marshall:

Mr. Resnick, in this allocution testimony do you tell us that in Ohio in the trial on seat you can put witnesses on who know nothing about crime at all but just being the nice fellow?

Melvin L. Resnick:

In this —

Thurgood Marshall:

Would you do that?

Melvin L. Resnick:

In this specific case Mr. Justice Marshall, the mother of the defendant who knew nothing of the facts of the actual crime testified as to the petitioner’s entire life background, his trouble with the law, his marriages, whatever.

Thurgood Marshall:

As a prosecutor, have you ever been worried about mother’s testimony urging your opinions?

Melvin L. Resnick:

Pardon, I’m sorry.

Thurgood Marshall:

As a prosecutor, have you ever heard of a defendant’s mother’s testimony right in your case?

I’m saying that general (Inaudible) testimony.

People in the neighborhood, church people, you don’t put that on the regular hearing on guilt, am I right?

Melvin L. Resnick:

The Ohio statute provides for character witnesses as to reputation and background and character.

Thurgood Marshall:

— you can put on it anytime?

Melvin L. Resnick:

The defendant —

Thurgood Marshall:

If the witness does not take the stand?

Melvin L. Resnick:

I’m talking about the defendant’s case Your Honor.

In his case —

Thurgood Marshall:

Well, I’m talking about the Law of Ohio, if the defendant does not take a stand he can still put on character testimony?

Melvin L. Resnick:

The defendant may put in his character in issue other that through himself.

Yes, under Ohio Law.

Thurgood Marshall:

Yes, but until it’s in issue it’s not in.

I just had difficulty in seeing that he has all of the benefits of a sentencing hearing in his regular trial that’s my only point.

There must be some difference you know how?

Melvin L. Resnick:

Well, the difference in Ohio Court place is that the defendant himself and I think this is what the petitioner is getting to — the counsel for petitioner is getting to.

He cannot personally appeal to the jurors in the case that is his main contention.

He is not contending that other witnesses may not testify as to his —

Thurgood Marshall:

Certainly, he cannot tell the jury which he could do and in sentencing hearing, “Of course, I admit my guilt and I’m sorry for it and I ask for mercy.”

Of course, he couldn’t take that position.

Melvin L. Resnick:

That is correct.

We have no argument —

Thurgood Marshall:

Now, he loses that much, doesn’t he?

Melvin L. Resnick:

That much we would go on with.

Thurgood Marshall:

I mean you don’t have to win all of this in order to sustain your point that’s all.

Otherwise, it’s a little broad.

Melvin L. Resnick:

We submit to this Court that as argued by counsel, the allocation statute in the State of Ohio as in most other states is really only a legal objection and it is so historically, and this Court has noted that distinction in the case of Schwab versus Berggren decided in 1892.

As stated in me Government’s brief, it is usually something like be pleading of a pardon or any other type of legal objection.

It actually has nothing to do with the sentencing discretion regarding the defendant’s opportunity to give mitigating evidence.

The only place where I could imagine that this plea of allocution under the Ohio statute reply would be where the defendant could claim that there is an insufficiency of the evidence upon which the verdict was based.

These are the normal things that will be brought up on a motion for new trial.

In regard further to allocution, the Court in Williams versus New York, Williams versus Oklahoma held that the due process clause did not require a hearing and to give a convicted person an opportunity to participate in a sentencing procedure.

The Hill case in 1962, although not a capital case, specifically stated that allocution was not a constitutional right.

Petitioner claims his only claim as to elevating allocution to a constitutional right is base on the decision of the Court in Specht.

Melvin L. Resnick:

But that case is easily distinguishable, that case had its defendants upon another fact-finding determination which had to be made.

From these cases, we submit that the petitioner’s reliance on cases such as Simmons, Jackson-Denno is misplaced.

We are not dealing with two specific constitutional rights and we submit that the issue is very similar indeed to the case of Spencer versus Texas is a two-part trial necessary purely because the jury must decide two issues.

We submit that it is not.

As noted in the discussion with Justice Marshall.

In this case, the defendant’s mother did testify, there was testimony of two psychiatrists, there was testimony of a physician and there was introduced them to the record three different hospital records.

All of these we submit can only serve one purpose and that was to mitigate the penalty in this case.

In this case, the petitioner did not take the stand and he then claim that the procedures of the unitary trial necessarily chilled the assertion of his privilege.

His decision to take the stand or not is a decision similar I submit to the guilty plea cases decided by this Court last term.

The question is, was it compelled?

Was it a voluntary decision?

We state that the case of Williams versus Florida, the alibi — notice of alibi case, this Court stated that the defendant faces such a dilemma demanding a choice between complete silence in presenting a defense has never been thought to be an invasion of the privilege against self-incrimination.

In the instant case, either impeachment evidence or similar acts of evidence was introduced into the record.

If it had been, the Court under Ohio law would have had to give limiting instructions to the jury as to the nature of that evidence and how they could consider it.

This Court has held that under the doctrine of Spencer versus Texas, those types of leavening instructions are perfectly proper.

The petitioner in this case introduced practically everything he could introduce.

If the procedure in Spencer versus Texas was fundamentally fair, were prior crime evidence was introduce without any question now I submit in a unitary capital case where impeachment is only possible if the defendant takes the stand that we have a trial more eminently fair than in Spencer.

We submit further that the sentencing in a unitary trial is rational when based on the evidence in the case.

All of the facts in this case came out in that trial.

All of the facts of the defendant’s background, the jury saw this defendant sitting there for the week that the case tried.

They saw the witnesses.

They heard his psychiatrist.

We would also submit, pardon me.

I would like to come back to one other thing the question of the jury instruction in this particular case.

The Court will find in volume 1 of the record in this case that on the — before their examination of the entire veneer of the juries, the Court did a little more than what was found in a final charge on it described the duties of juries functions when it came to the recommendation of mercy.

The Court there stated that, that decision must be based upon the facts and circumstances in the evidence.

We also submit to the Court that the alternative of the bifurcated trial is — the alternative of a bifurcated trial is not free of potential harm.

Just again as in the guilty plea cases where this Court stated that it would not be fair or that would be cruel to make all defendants submit to a jury trial we respectfully submit that it would also be cruel to make all defendants submit to a penalty trial.

The use of the unitary trial has a very long history in this country.

Only six states as the Court has noted have the split verdict procedure.

Melvin L. Resnick:

The States have a very valid interest and purpose in maintaining that unitary trial.

The alternative of bifurcation and I submit possibly trifurcation and quadfurcation, if a constitutional principle is to be announced could only add to the time, cost and complexity of criminal trials and appeals.

That burden became very evident this very morning when it was stated that 69% of the penalty trials in California had been reversed requiring new juries, more court time.

The extra burden would be disproportionate we submit to the alleged possible benefits and in some instances actually detrimental to the defendants.

There have been cases where defendants have complained that they had to stand a penalty trial.

We submit that the convenience of a single proceeding weighs heavily against an added procedure which this Court has stated is not constitutionally required.

In regard to the standards issue, as I have stated in the bifurcated trial argument, the decision is based upon the evidence in the State of Ohio.

The Ohio Supreme Court cases have so held the Howell case, the Caldwell, the Shelton case.

The Ashbrook case which has been cited by the petitioner here that there can be no evidence introduced pointing towards mercy was a Court of Appeals case.

The Supreme Court of the State of Ohio in this very case indirectly overruled the Court of Appeals holding.

I think that the question is ultimately, have any type of standards ever be attainable?

We submit that it would be almost impossible to articulate any type of list of factors in advance for every conceivable situation that might arise in the future.

To say that on one hand there are required findings a jury must make or to say no on the other hand that it is just a matter of reference to the jury so it can guide them.

We think is an inconsistency.

Constitutionally, if it is required it would have to be findings.

This Court in the past in the Winston case and in the Enbridge case approved full jury discretion.

We don’t believe and we submit earnestly that regardless of any standards that the decisions of the juries would not be any different in what they are today and the two cases the Court is now hearing.

The jury discretion expresses the conscience of the community as this Court has held in Witherspoon and it is in the end a value judgment as to the sentence and not to guilt and it should not be subject to the same formalities of the guilt determination process.

The long standing and widespread use of absolute discretion which this Court noted plus the fact that no Court has ever ruled in favor of the defendant on this particular issue and there had been many, many cases as cited in the briefs, we believe reflects that the principle of the unitary trial was standardless discretion to the jury is not only constitutionally sound but one in the administration of criminal justice is now required.

Thank you.

Warren E. Burger:

Thank you Mr. Resnick.

Mr. Solicitor General.

Erwin N. Griswold:

May it please the Court.

This case too involved the issue of standards which was the only issue in the McGautha case — the McGautha case.

I have only a little more to say about that.

No one has been able to put before the Court just what the standards are or should be.

They have never been formulated the closest that has come to that is a very serious effort made by Professor Wexler as reporter for the American Law Institute for the Model Penal Code in which they were included some eight or ten aggravating factors and mitigating factors.

Much the same factors are included in the recently publish preliminary or study draft of a New Federal Criminal Code by the National Commission on Reform of Federal Criminal Laws but it’s not surprising that they are very similar to those the Model Penal Code because Professor Schwartz who was the director of that study was the associate reporter for the American Law Institute Study of the Modern Penal Code.

In the massive investigation into the actual experience in California which is published a year ago in the Stanford Law Review, there were some 175 factors which they work out and undertook to tabulate to see what the actual experience had been and I would hazard a guess that putting a 175 factors before a jury and in particular without any clear instruction is to how they should be weighed and I don’t know how such instructions could be given would not be a productive assignment.

There’s one more factor with respect to standards that I think might be worth mentioning.

Erwin N. Griswold:

The statutory pattern in these two cases vary somewhat.

In California, the jury is given discretion to determine the penalty.

In Ohio, the statute provides that the penalty for first-degree murder is death but that if the jury recommends mercy and then it shall be life imprisonment.

There’s some suggestion in some of the briefs that this is a very vital distinction.

I do not believe that it is any distinction.

I think that it is considering the solemnity and the obvious significance of the task with which the jury is confronted and all experience shows the juries are particularly properly selected.

Juries are extremely conscientious on this test that it does not make any difference either in result or in law as to which formulation is used.

Now, I will turn to the split trial or bifurcated trial issue which is presented only in the Crampton case and first, I would like to ask to enter a question asked by Mr. Justice Black, he asked when the question of the necessity for a bifurcated trial was first raised and we believed that it wasn’t in the New Jersey case cited in our brief at page 29 of State against Johnson.

And that was in 1961 and appeal was taken from that decision to this Court and it was dismissed for one of a substantial federal question in 1961.

I understand from my reading of the history of the bifurcated trials which this question was raised before legislature long before that.

Erwin N. Griswold:

I believe so Mr. Justice.

I was referring to being judicially raised and particularly before this Court.

It was raised in that case before this Court in 1961.

I know of no previous allusion to it either in court or before this Court.

What was the earliest legislative action?

Erwin N. Griswold:

The earliest legislative act was 1957 in California and I am not aware of any serious presentation of the matter either in academic journals, law review articles or before legislatures prior to that time.

And since then how many states?

Erwin N. Griswold:

Six states now have it including one or two which have adopted it within recent years that would last two to three years.

New York, California and Texas are large and important States which now have the procedure.

With respect to the bifurcated —

Potter Stewart:

What page of your brief can we turn to?

Erwin N. Griswold:

It’s on page 29 Mr. Justice, the State against Johnson.

Potter Stewart:

Thank you.

Is the — is there any legislative history available as to the prompt of the California legislature in 1957 to act a bit?

Erwin N. Griswold:

Mr. Justice, I’m unable to answer that.

I do not know.

Potter Stewart:

Any claims in California that this is constitutionally required.

Erwin N. Griswold:

I am not, I do not believe it was ever contended that it was constitutionally required.

It has been contended that this was wise, safe penology and good way for state to set up its criminal law.

I have never seen a serious contention except in these cases that it is constitutionally required.

Erwin N. Griswold:

Incidentally, State against Johnson also involved the standards issue and there again the Court dismissed the appeal on the ground that it did not raise a substantial federal question.

With respect to the bifurcated trial, we have again a question that seems to me essentially is separation of powers even assuming that the bifurcated trial is a good thing or is a desirable innovation.

Is this a determination which should be made by the people through their representatives in the legislatures or in Congress or is this something that this Court should now as an exercise of the judicial power find to be required by the very general language of the due process clause of the Fifth and Fourteenth Amendments.

This Court has already in various ways indicated that bifurcated trials are not constitutionally required.

The clearest example is Spencer against Texas to which in reference has already been made and which is discuss at pages 84 and 87 of our brief decided just three years ago and with a clear statement there that there is no basis for finding it required by the Constitution whatever its merits may otherwise be.

The constitutional intention — constitutional contention made there was surely more serious than that advanced here.

That case strikes me as a tougher case than this one do decide but the court did not accept it making it plain that the details or procedure in criminal cases are to a very great extent matters to be decided by the legislature of the several states.

It may be noted too that this Court has never required a two-stage trial in the exercise of its supervisory power over the trial of federal criminal cases though such trials have been required or at least authorized in certain circumstances by the Court of Appeals for the District of Columbia.

As I’ve been indicated, bifurcated trials have been adopted in this country now by six states.

The first being California in 57 are experienced so far as relatively limited and the procedure is surely in the experimental stage hardly a situation for constitutional mandate.

Incidentally, California has trifurcated trials by the express provision of its statute.

If there is an issue us to sanity, you have guilt sanity and penalty as separate trials.

It has been suggested that some other issues like alibi and self-defense are just logically susceptible to this treatment and you could have great multiplication on trials at least theoretically.

Now, it’s argued that split trials must be provided in order to avoid a violation of the defendant’s privilege against self-incrimination.

But this contention will not with stand analysis as several decisions of this Court show.

The guilty plea cases of last spring a very close to this.

But the privilege against self-incrimination does not mean that only matters adverse to the defendant are barred while he remains free to show those things which are favorable to him through his own testimony.

On the contrary, the privilege means that the defendant cannot be called as a witness at his own criminal trial.

On the other hand, he is always free to be a witness if he chooses but if he is a witness he is a witness for all purposes including cross-examination.

The effort of the trial is to get at the truth including facts which are adverse to the defendant as well as those which are favorable to him.

For basic policy reasons, the Constitution limits the effort to develop the truth by providing that the defendant cannot be compelled to testify.

That is his privilege.

It is for him to decide whether to exercise it, guided by the assistance of his counsel.

It is often a hard choice for the defendant would like to show favorable matters without getting himself involved in the unfavorable.

But the pressure comes from the facts which have been adduced that the trials through witnesses other than the defendant.

He is not deprived of his privilege merely because he would like to testify to favorable matters.

This is well-illustrated by the record in this case.

In fact, the defendant here did exercise his privilege against self-incrimination.

He did not testify.

It cannot be said here that he was deprived of his privilege.

Erwin N. Griswold:

Moreover, as a matter of the record he did not ask for a bifurcated trial.

It is true that the Law of Ohio does not provide for such a division of the trial but the fact remains that he did not seek it and there may well have been reasons for that decision as I shall explain in the moment.

Moreover, he did have an opportunity to show favorable matters, true witnesses other than himself.

The defendant’s mother testified and he introduced substantial medical evidence on the insanity issue, thus, putting before the jury much material bearing on the defendant himself and his backgrounds a favorable to his interests.

It is true that he did not testify himself but that surely does not mean its exact opposite that he was denied his privilege against self-discrimination.

And indeed, this highlights the basic difficulty with the bifurcated trial as it has been developed in the six American States which now use it.

In the penalty trial, the State can and does show things adverse to the defendant which would not be admissible in the unitary trial and I think the McGautha case itself is a very clearly example of that.

If there had not been a separate trial, much that was harmful to McGautha and much that serve to distinguish him from his co-defendant, I would not have before the jury because there was a separate penalty trial, the State showed the prior convictions, the two co-defendants testified each one trying to charge the other with having a fire to shot and the jury drew its conclusions from that.

Notable among the things which can be shown are the prior criminal convictions and other evidence reflecting adversely on the defendant’s character.

Thoughtful students have concluded that a death penalty is more likely in a bifurcated trial than it is a unitary one.

Indeed, we might well have arguments before this Court that the bifurcated trial deprives the defendant of due process of law though such an argument would presumably be in effective in the light of this Court’s decision in such cases Spencer against Texas and the two Williams cases.

It would be improvident we believe to freeze this ambivalent procedure with its merits and demerits still elusive into a constitutional directive.

With a clear indication that separate penalty trials may have an adverse effect on defendants who are exposed to them, there is a need for prudent restraint in deciding that the Constitution requires their adoption as an integral feature of due process.

Certainly, our experience with bifurcated capital trials over the past 13 years is empty of any genuine or compelling indication that such procedures are more fair to an accuse than the traditional unitary trial.

In this situation, a procedure never thought of when the due process clause became part of our Constitution in 1790 and again in 1868, you’ll remember in 1790 the trial had to be began and completed between sunup and sundown and never seriously advance in the first 175 years of our constitutional history should not now be read into the due process clause where it surely cannot be found by any accepted process of construction.

If that were to be done perhaps it could be said that it would be hard to articulate the standard which lead to the conclusion.

The judgment of the Supreme Court of Ohio should be affirmed.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Callahan, you have 10 minutes.

John J. Callahan:

Thank you Mr. Chief Justice.

I will not repeat what has been said generally with respects to standards but I would submit to the Court that Ohio as it has been suggested in a couple of briefs filed in this case could be considered to have a standard cited on page 20 of the petitioner’s brief is the case of Howell versus State in which the Ohio Supreme Court held that was error — not error to charge the jury in the capital case “to consider and determine whether or not in view of all the circumstances and facts leading up to and attending the alleged homicide as disclosed by the evidence you should or should not make such recommendation of mercy.”

I will submit that that is merely an instruction to the jury that they should consider all of the evidence in the case and it may be a standard.

But if not an adequate standard and it was not given in the Crampton case, the only instruction that was given to the jury that is other, that is the seated jury, the 12 people appears at page 5 of the petitioner’s brief.

If you find the defendant guilty of murder on the first degree the punishment is death unless you recommend mercy in which case it is life.

But the instruction goes on and is diametrically opposed to the instruction which follow the penalty trial in California and the instruction which appears at page 6 of the brief says you must not be influenced by any considerations of sympathy or prejudice.

I submit that when you tell the jury that one of the things that must not consider is sympathy, you have effectively stopped any argument by the defendant for mercy in the case.

The distinguished Solicitor General has indicated that the single verdict trial, the bifurcated trial would be available also to a defendant.

In cases of self-defense defenses or in case of alibi defenses, the distinction that I would point out with reference to those two observations is that both of this matters self-defense and alibi relate to the question of the defendants guilt.

They do not go to the question of his punishment.

Warren E. Burger:

Well, does not the criminal responsibility also go to the question of guilt in the legal sense?

John J. Callahan:

That is correct, Your Honor.

Warren E. Burger:

But we, California at least bifurcates that trial good enough?

John J. Callahan:

That is correct.

Warren E. Burger:

So it wouldn’t be very remarkable if someone would build on the analogy of bifurcated trials for insanity question to bifurcated trial for alibi or self- defense?

John J. Callahan:

I submit that it could be argued that way, Your Honor but it is not part of the submission in this case that we require a — that they require a bifurcated trial under self- defense and alibi.

Warren E. Burger:

But wouldn’t you agree that the arguments might be just as valid so to take the self-defense case?

John J. Callahan:

I don’t think that they could be just as valid as the insanity argument.

The insanity plea has been — is a different type of plea involving a certain admission by the defendant.

Warren E. Burger:

Well each of them is in the nature at least in broad sense in the nature of plea of confession and avoidance, isn’t it?

John J. Callahan:

That is correct.

Warren E. Burger:

So in that nonsense to have a common genesis and common thread of logic?

John J. Callahan:

That is correct but to say that — they do not however, self-defense or insanity or alibi relate directly to the question of punishment and what we are contending in this case is that the bifurcated trial should permit the defendant after he has been found guilty and responsible to address the sentencer on the question of his punishment.

The trilogy of guilty plea decisions made by this Court last term, I believe can be effectively distinguished from the Crampton case as the Crampton case — in Crampton, he entered a plea of not guilty and stood on that plea throughout.

Whereas the cases decided by the Court in the last term the Brady, McMann and Parker cases involved originally a guilty plea.

A concession by the defendant and that he was guilty of the crime.

I submit to the Court that for the reasons that we have argued, the decision of the Ohio courts should be reversed and the cause remanded for determination with respect to punishment.

Warren E. Burger:

Your colleague in other case, Mr. Selvin suggested that as far as he could see, there was no constitutional barrier to having a legislature vest in the judge the power to fix the sentence without standards or to fix a mandatory sentence.

Do you have a view on that, Mr. Callahan?

John J. Callahan:

Yes, I don’t do see no constitutional barrier for prohibiting the legislature from fixing standards for the judge.

Warren E. Burger:

Well, I know.

My question is just the reversed, vesting the power of imposing the death sentence in the judge but without any standards?

John J. Callahan:

Oh!

I would have to let go somewhat of Mr. Selvin said in his case.

The judge is in effect a professional sentencer by his training, by his expertise that he and his background he brings a certain criteria to a case.

And I think, it’s the essence of the judgeship that he should not have to have standards imposed by the legislature.

It is only for the layman who sees — who seats at one time and is in effect an ad hoc legislature on the question of the punishment in the case that we need standards to guide them.

Warren E. Burger:

I have never been satisfied as to the value or utility of these studies which are done because of the difficulty involved, but in the study of the jury function by Professor Calvin and his associates of the University of Chicago.

There conclusion was that judges having the power to impose the death sentence imposed that exactly twice as often over a big number of cases as juries did.

John J. Callahan:

I recall it conclusion on the Calvin reports.

Warren E. Burger:

At that would not certainly lead defendant as to want to move this out of juries and put it judges really, would it?

John J. Callahan:

No sir not that conclusion.

They — with reference to the problem of standards, there appears in the petitioner’s brief at page 21 probably the best evidence with respect to the necessity for standards where a foreman of a jury comes before the Court and asks the Court what criteria?

What are the grounds for granting mercy in the case and there is a colloquy there between the judge and the foreman of the jury that betrays the jury’s curiosity as to the standards necessary for the granting of mercy.

Even to the point where they want to consider the sociological and environmental factors in it and it’s possible that these standards should not be as detailed as the standards in the Model Penal Code but there should be some guidelines given to the jury so that they could move ahead on this question of standards with guidelines rather than operate in the vacuum as they appear to be doing in Caldwell case which we have cited.

Accordingly, I submit that the decision below should be reversed.

Thank you, Your Honors.

Warren E. Burger:

Mr. Callahan, like Mr. Selvin, you acted at the request of the Court and by the appointment of the Court.

We thank you for your assistance to the petitioner and to the Court for your services.

John J. Callahan:

Thank you, Your Honor.

Warren E. Burger:

Thank you Mr. Solicitor General.

Thank you.

The case is submitted.