Sawyer v. Smith

LOCATION: Oregon Department of Human Resources

DOCKET NO.: 89-5809
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 497 US 227 (1990)
ARGUED: Apr 25, 1990
DECIDED: Jun 21, 1990

Catherine Hancock - on behalf of the Petitioner
Dorothy A. Pendergast - on behalf of the Respondent

Facts of the case


Media for Sawyer v. Smith

Audio Transcription for Oral Argument - April 25, 1990 in Sawyer v. Smith

William H. Rehnquist:

We'll hear argument next in number 89-5809, Sawyer against Smith.

Ms. Hancock, we will wait just a minute until the court clears, very well Ms. Hancock, you may proceed.

Catherine Hancock:

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

I represent the Petitioner, Robert Sawyer, and I'll be reserving five minutes for rebuttal.

Robert Sawyer is here today seeking a resentencing hearing as a remedy for his prosecutor's violation of the Eighth Amendment which occurred when the prosecutor made repeated references during closing argument to the fact that the jury's decision was not final, was reviewable and ultimately would be corrected on appeal.

Robert Sawyer was on the verge of receiving the relief for the Caldwell violation in his case from the Fifth Circuit Court of Appeals en banc when Teague v. Lane was decided, and the question of Caldwell's retroactivity was raised.

We submit that this Court should find that Caldwell does apply retroactively to this case under Teague and that the Court should grant a re-sentencing hearing, because the Caldwell violation in this case was worse than in the Caldwell case itself.

Here, for example, there were four episodes of repeated argument.

It appears almost to be calculated argument.

William H. Rehnquist:

In... in Caldwell the bad statements came from a judge, did they not?

Catherine Hancock:

Your Honor, in Caldwell the context was that the prosecutor stood up in response to defense counsel and said, what the defense counsel's telling you is not true, it's automatically reviewable, your decision is not final.

Your Honor is correct that following those statements, the judge did affirm the truth of what the prosecutor was saying.

So, it was a combined violation.

William H. Rehnquist:

And here did the judge say anything?

Catherine Hancock:

No, Your Honor.

William H. Rehnquist:

Did defense counsel object to the--

Catherine Hancock:

No, Your Honor, defense counsel did not object.

In this case, the Caldwell violations are revealed on page 3 and 4 of our brief where we cite from the transcript of a closing argument.

Specifically, the messages came across as follows.

The jury was told, you yourself will not be sentencing Robert Sawyer to the electric chair.

What you are saying to this Court, to any appellate court, to the Supreme Court of this state, to the Supreme Court possibly of the United States, is that you are of the opinion that this is the type of crime that deserves the penalty.

It is merely a recommendation.

In the second episode of argument, the prosecutor said, you are the people who are going to take the initial step and only the initial step.

All you are saying to all the judges who are going to review this case is that this man could be prosecuted.

No more, nor less.

Finally, Your Honor, in the third episode of argument, the prosecutor reached the level described in the Caldwell dissent where the court in dissent said... the dissenter said, if you go so far as to tell the jury that the appellate court's going to correct them if they're wrong, then that is the most severe kind of violation imaginable.

And even the dissent was willing to recognize that kind of statement would violate the Constitution.

It was in this third episode where the prosecutor said, don't feel like you're the one.

It is very easy for defense lawyers to make each and every one of you feel like you are pulling the switch.

That is not so.