Schad v. Arizona – Oral Argument – February 27, 1991

Media for Schad v. Arizona

Audio Transcription for Opinion Announcement – June 21, 1991 in Schad v. Arizona

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William H. Rehnquist:

We’ll hear argument first this morning in No. 90-5551, Edward Harold Schad, Jr. v. Arizona.

Ms. Young.

Denise I. Young:

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

Edward Schad was convicted of first degree murder and sentenced to death after a trial at which the evidence presented was that the victim was strangled, and that sometime later Mr. Schad had possession of some of the victim’s property.

Two rules Arizona mechanically applied in Mr. Schad’s case allowed the prosecution to obtain this verdict based on this then evidence.

The question… both issues presented in this case presents is whether that verdict obtained by the rigid application of these two rules is constitutionally reliable.

William H. Rehnquist:

This was a verdict in the guilt phase, Ms. Young?

Denise I. Young:

Yes, Mr. Chief Justice.

Although I’m going to discuss each rule separately, that is not how they worked at Mr. Schad’s capital trial.

These two rules, Arizona’s one form of verdict rule and Arizona’s no lesser included offenses for felony murder rule worked together, mutually reinforcing one another and increasing the risk that the verdict returned against Mr. Schad was erroneous.

I will first address the second issue we present in our brief, Arizona’s rule that there are no lesser included offenses of felony murder, because it presents a more narrow constitutional issue and it is controlled by Beck v. Alabama.

The prosecutor’s case for felony murder was built circumstantially.

No direct evidence tied Mr. Schad to the homicide of the victim.

The only evidence connecting him to that crime was his possession of the victim’s property.

The prosecutor argued that because he had possession of the property, the jury could find that he robbed the victim and that he killed the victim during the course of that robbery, and was therefore guilty of felony murder.

The defense used that same evidence to argue their defense that, because he had possession of the property but because there was no evidence directly tieing him to the homicide, that perhaps the jury could find him a thief, perhaps a robber, but not a murderer.

Because of Arizona’s mandatory rule precluding lesser included offenses for felony murder, the judge refused to instruct the jury on the offense of robbery or on the offense of theft, which under Arizona law is a lesser included offense of robbery.

William H. Rehnquist:

Ms. Young, did the judge give any lesser included offense instruction at all in this case?

Denise I. Young:

The judge did give an instruction for second degree murder which was a lesser included offense instruction for premeditated murder.

William H. Rehnquist:

And do you think Beck requires, as a matter of Federal constitutional law, any number of lesser included offense instructions if… if the evidence makes them out.

Denise I. Young:

Yes.

Beck requires that the jury be given all rational lesser included offenses where supported by the evidence.

Now that is not as broad as it may seem.

Beck of course is limited to capital cases.

And a state can define its offenses in such a manner that they are not a lesser included offense of the greater offense.

But that’s not what Arizona did here.

Mr. Schad was tried for felony murder based a killing which occurred during the course of the… of a robbery.

The jury was instructed that it could find Mr. Schad guilty of felony murder if it found that he robbed the victim and that a killing occurred during the course of that robbery.

As instructed, felony murder incorporated all of the elements of robbery.

The State could not prove its case of felony murder here without inescapably proving robbery.

Denise I. Young:

But the jury was not given the option to return that verdict because of Arizona’s mandatory rule… here not different than the rule in Beck v. Alabama.

Sandra Day O’Connor:

Well, is it… is it all that clear that Beck should be read as requiring the giving of every potential lesser included offense rather than just a less drastic alternative than the death penalty which was given here?

I would think one could read Beck to require no more than that.

Denise I. Young:

Your Honor, I just–

Sandra Day O’Connor:

And if not, why shouldn’t we read it that way?

Denise I. Young:

–Because, Your Honor, of the principle that Beck was based on which was eliminating the distortion in the fact-finding process and ensuring the integrity and reliability of the verdict.

In the Beck situation, the fact-finding process was distorted, because the jury was not able to consider a lesser included noncapital, homicide offense.

Byron R. White:

Wasn’t that… wasn’t the… Beck was confined to capital cases, wasn’t it?

Denise I. Young:

That’s exactly right, Your Honor.

Byron R. White:

And so it was to give the jury an option to imposing the death penalty.

Denise I. Young:

Yes, Your Honor, but also giving them an option to return a rational verdict.

Beck is based on rationalizing the fact-finding process, not derationalizing the fact-finding process.

Anthony M. Kennedy:

So you’re saying if the jury in the jury room agrees at the outset that first degree premeditated murder has not been proven, at that point, if they… they cannot consistently go to second degree murder?

Denise I. Young:

That’s right, Your Honor.

Felony murder as defined by Arizona law has two elements, a killing occurring during the course of some statutorily enumerated felony… here, robbery.

Those jurors here who had a doubt as to whether Mr. Schad had anything to do with the killing… and that was the very factual issue in dispute here, and there was considerable doubt here whether he did… were unable to return a verdict consistent with that doubt, which is exactly what this Court was concerned about in Beck, concerned about letting the jury have a rational option if they are not convinced that all of the elements of the greater offense have… have been committed.

Because of the substantial risk where the jury believes that one of the elements has not been established beyond a reasonable doubt, but that they do believe the defendant is clearly guilty of some wrong doing as occurred here, there really was very little question that Mr. Schad done something.

He did have possess of the victim’s property.

The Beck court… this Court recognized in Beck that there was a substantial risk that such a jury would convict… would resolve its doubts in favor of conviction rather than… not… excuse me… not because it was convinced of the defendant’s guilt, but simply it did not want to let the defendant go free.

This case presents a preclusion rule no different than Beck.

And we ask this Court to reverse the conviction of Mr. Schad on that basis because this jury was not able to return that verdict.

And we must remember here that the prosecution based its theory of felony murder on robbery, told the jury this is the premise of the felony murder, and then wiped out their option by… of returning a verdict consistent with that premise because of Arizona’s mandatory rule.

The second issue that we bring here today–

Byron R. White:

Well, if we agree with you, we needn’t reach your second issue?

Denise I. Young:

–That’s right, Your Honor, you do not.

Antonin Scalia:

The respondent here contends that robbery is not indeed a lesser included offense of first degree murder if you look just to the statutory definitions.

Denise I. Young:

Yes, Your Honor, that is what the State contends here.

Antonin Scalia:

Do… do you agree with that?

Denise I. Young:

No, I do not agree with that.

Here, Mr. Schad was tried for felony murder based on a robbery.

Denise I. Young:

Felony murder could not have been found by that jury without it finding the elements of robbery.

This jury was instructed on the elements of robbery so that they were able to return a felony murder instruction.

So they had the elements of robbery.

They were instructed on that.

They had the felony murder instruction allowing them to return that verdict.

As instructed, robbery was a lesser included offense.

Antonin Scalia:

Well, but no, you could have… they had a first degree murder instruction.

That’s your other point.

Denise I. Young:

Yes, Your Honor.

Antonin Scalia:

They could have found him guilty of the defined offense, first degree murder, without having found him guilty of robbery, isn’t that correct?

Denise I. Young:

Yes, Your Honor, they could have.

Antonin Scalia:

And pursuant to our prior law and what constitutes a lesser included offense, that wouldn’t suffice.

So this argument of yours, in a way, hinges upon your first argument that you can’t define first degree murder that generally to include both felony murder and murder with intent.

Denise I. Young:

I don’t believe it does, Your Honor.

Under Arizona law, a lesser included offense is an offense where the greater offense cannot be committed without committing the lesser offense and where the evidence supports a lesser offense.

Here, that’s exactly what happened.

And–

Antonin Scalia:

I thought we just… I thought we just went through that.

The greater offense is first degree murder and your client could have been convicted of first degree murder without being convicted of robbery.

Isn’t that right?

Denise I. Young:

–That’s true, Your Honor.

Antonin Scalia:

So it’s not necessarily included.

Denise I. Young:

In the overall scheme of first degree murder that’s–

Antonin Scalia:

But that’s the offense.

Denise I. Young:

–That’s true, Your Honor, which… which brings us to our second issue, of course.

Antonin Scalia:

As I said.

Denise I. Young:

But… but this jury was not just… they weren’t given an instruction of this is just first degree murder.

They were given instruction of first degree murder is either premeditated murder or felony murder and let me tell you what murder is.

They were then instructed on that.

Anthony M. Kennedy:

But… but in felony murder, the defendant must cause the death in Arizona?

Denise I. Young:

No, Your Honor, felony murder is basically a strict liability offense in Arizona.

The defendant does not have to play any part in the killing whatsoever.

It’s just a killing occurs during the course of a felony.

Anthony M. Kennedy:

And there was no instruction to that effect in this case?

Denise I. Young:

The–

Anthony M. Kennedy:

In this case, there’s no instruction that the defendant must have caused the death for there to be a capital conviction?

Denise I. Young:

–No, Your Honor.

Now, there was a instruction for premeditated murder that he must have caused it.

Anthony M. Kennedy:

I understand that for premeditated–

Denise I. Young:

Not for felony murder.

Anthony M. Kennedy:

–And that’s not… that’s not required in a capital case?

Denise I. Young:

Not in Arizona.

Byron R. White:

Well, what about the penalty phase?

Denise I. Young:

At the penalty phase it is performed by a judge.

We have judge sentencing only.

Byron R. White:

Well, I know.

But what’s… what must he find?

That the defendant killed or intended to have a killing?

Denise I. Young:

Yes, Your Honor, he must, in order to be eligible for the death sentence, make an Inman-Tison finding.

That’s exactly right.

Byron R. White:

But that’s after sentencing phase.

Denise I. Young:

That’s at the sentencing phase.

Antonin Scalia:

But that’s just… the sentencing phase.

But just to be clear about it, there is no Arizona crime of felony murder?

Denise I. Young:

Yes, there is, Your Honor.

There is an Arizona crime of felony murder, and Arizona tries defendants often on… just based on felony murder… just as Arizona defines–

Antonin Scalia:

I thought the defined crime was first degree murder, and there are various ways of proving first degree murder.

But there’s no separate penalty denominated for felony murder.

It’s just one way of showing first degree.

Denise I. Young:

–It’s… it’s under the first degree murder degree statute.

Denise I. Young:

That is right, Your Honor.

But–

Antonin Scalia:

So I think your answer should have been yes.

Denise I. Young:

–A defendant can be tried in Arizona only for felony murder, though.

A defendant can be tried in Arizona only for premeditated murder.

Antonin Scalia:

He can be tried for first degree murder with the State arguing only one theory of first degree murder… to whit, the felony theory… if the State wishes to proceed that way.

Denise I. Young:

That’s right, Your Honor.

That’s right.

That question of course brings us to the second issue… our first issue actually in our brief.

The–

Byron R. White:

Well, I’ll ask it later I guess, whether you must win on this in order to win on the first.

Denise I. Young:

–No, Your Honor, I do not believe we must win on this issue in order to win on the first at all.

The second rule that Arizona applied in Mr. Schad’s case is the one form of verdict rule that we have been discussing.

That rule applies in a capital case whenever a prosecutor seeks a first degree murder instruction based on either premeditated murder or felony murder.

When a prosecutor invokes that rule, he eliminates the defendant’s right under the constitution in Arizona to a unanimous jury verdict.

This is how that rule worked in Mr. Schad’s capital trial.

The prosecutor had only two facts on which to obtain a conviction here.

The victim was strangled, and Mr. Schad later had possession of some of the victim’s property.

The prosecutor told the jury that it could find Mr. Schad guilty of first degree murder if it found either premeditated murder or felony murder and that there were two different, factual routes that the jury could take in order to reach a conviction on each of those crimes.

The prosecutor first argued the premeditation route.

He told the jury that he could find… that they could find the defendant guilty of premeditated murder if it found one fact… excuse me… based on one fact, that the victim was strangled.

The prosecutor argued that that fact alone showed he premeditated the crime.

The prosecutor then argued an entirely different factual route for the jury to reach the other crime, the crime of felony murder.

The prosecutor told the jury that they could find Mr. Schad guilty of felony murder based on a completely separate fact, that Mr. Schad had possession of the victim’s property.

He must have robbed him then.

And he must have killed him during that robbery.

The jury was told that they only had to return a verdict of first degree murder, and that either premeditated murder or felony murder constituted first degree murder.

Anthony M. Kennedy:

Is that any different from saying you can convict a burglary if he broke through the door or broke through the window, and six jurors think he went through the door and six jurors think he went through the window?

Denise I. Young:

Yes, Your Honor, I think that is different.

Anthony M. Kennedy:

What’s the difference?

Denise I. Young:

Here the difference are the completely separate factual routes that the jury must take in order to establish the essential elements of the crime–

Anthony M. Kennedy:

Well, you can’t go… you can’t go through both the door or the window.

Your go through one or the other.

Denise I. Young:

–But… but the crime of burglary requires entering into a struction without a legal–

Anthony M. Kennedy:

Well, but first degree murder in Arizona requires that you… one of two possible ways of doing it.

Denise I. Young:

–But let’s look at how Arizona defines these crimes.

Arizona defines premeditated murder to have three elements… that the defendant killed, that he did so with malice intent, and that he did so with premeditation.

Those are the elements Arizona has chosen to make essential to the crime of premeditated murder.

Anthony M. Kennedy:

Well, is it unconstitutional for Arizona to draft its statute in this way?

Denise I. Young:

No, Your Honor, it is not.

Of course, Arizona can… can draft its statute this way.

But once it has set up those elements, Winship requires that the jury find each of those elements beyond a reasonable doubt, and the facts supporting each of those elements beyond a reasonable doubt.

Antonin Scalia:

But they are not required elements.

You don’t have to find any of those elements, because there is no crime of premeditated murder.

There is only a crime of first degree murder.

The judge’s instructions to the jury said, you may come to one of three verdicts.

And two of them were not felony murder and premeditated murder.

First, you may return a verdict of guilty of murder in the first degree, guilty of murder in the second degree, or guilty… or not guilty.

Those were the only three choices.

Denise I. Young:

That’s right, Your Honor.

But how are they able to find that conviction?

We have to go back to look at what the elements were that the prosecution had to establish and the jury had to find.

Now, here–

Antonin Scalia:

Which is this… which brings you to Justice Kennedy’s question.

The person had to break into the house… could have come in through the window or through the door.

Either one would satisfy it.

Denise I. Young:

–That’s not an essential element required.

Here the essential elements required–

Antonin Scalia:

Yeah, a break-in is an essential element.

Denise I. Young:

–Yes, but not breaking and entering by one certain means.

William H. Rehnquist:

But by one or the other.

Denise I. Young:

By break–

William H. Rehnquist:

You’ve got to have some finding as to the burglary to make it felony murder.

Denise I. Young:

–Yes.

William H. Rehnquist:

Then don’t you think under your theory you would also have to find all the elements of burglary?

Denise I. Young:

Unanimously?

William H. Rehnquist:

Yes.

Denise I. Young:

Well, Your Honor, it would depend on the case.

William H. Rehnquist:

Well, why would it depend on the case?

Denise I. Young:

It would depend on the facts.

William H. Rehnquist:

Why would it depend on the facts?

Denise I. Young:

–of the case.

If in fact the facts of the case were such that they… there weren’t the two possibilities but that he just entered, then, no, the jury… the prosecution would have presented the case in such a manner that the jury could have only found one way.

But once you must… once the law… the State law has defined the crime in such a way that there are different elements that the prosecutor can rely on, different facts to establish those elements, the jury must choose which way.

William H. Rehnquist:

Well, is… is the key to your theory the fact that you… you must prove burglary as one… as one element if you’re going the felony murder route to first degree, but you don’t have to get into the details of burglary, so to speak?

Denise I. Young:

Your Honor, if the… if the burglary required that the jury have to choose one of… if the elements of burglary were such that, like the elements of premeditated murder and felony murder, the jury must choose one of the two, then yes, I would agree that they would have to unanimously find that.

William H. Rehnquist:

So why… why aren’t you insisting on that here or rather why don’t you say that the… if… if the jury splits as to whether it was a door or window, that is unconstitutional?

She just… she just did.

If… if it was… if the jury was required to choose.

Denise I. Young:

If… if the elements defined by State law and… I don’t have the elements of burglary… but if the elements defined by State law required them to do so, then yes, that they had to choose, then yes.

Byron R. White:

But do you think Arizona requires the jury to choose between premeditation?

Denise I. Young:

No, I… Arizona does not and that’s why we’re here.

Byron R. White:

I know.

Denise I. Young:

But that’s the problem.

Arizona should.

Once it has defined these two crimes in the way it has with the essential elements of premeditation on this side… and the prosecutor argued the case this way to the jury.

He outlined the elements on the blackboard to the jury.

Here they are, three elements of premeditated murder.

Here’s how you find it.

Antonin Scalia:

Well, I assume–

Denise I. Young:

He strangled the victim.

Antonin Scalia:

–I assume you would say the same thing if we granted your… your claim in this case.

The next step would be, what if the jury disagrees as to what the felony was in felony murder?

Six jurors think that the felony was attempted rape.

Six jurors think that it was robbery.

The individual can’t be convicted.

Is that right?

I mean–

Denise I. Young:

Yes, Your Honor.

Antonin Scalia:

–All right, where… where do you stop.

I mean the next level down, there are various ways of… of robbery, as Justice Kennedy said.

And where does it all end?

Denise I. Young:

It can end with the capital case.

It can end at the first degree murder statute.

It does not need to go any further than that.

But the way–

John Paul Stevens:

Well, I don’t understand that.

If your theory is right.

You… I understood your theory to be it ends with different elements of the offense.

Denise I. Young:

–That’s right, Your Honor.

John Paul Stevens:

With the… with Justice Kennedy’s example, it’s the same element, namely entry, that you don’t care how he got in if they all thought he broke in.

But here you’ve got two different elements that are mutually exclusive, really.

Not necessarily mutually exclusive, but he either robbed or he intended to kill.

Those are different elements.

I thought that was your theory–

Denise I. Young:

That is–

Anthony M. Kennedy:

–not just capital cases.

Well, unless… unless it was defined as an… just an element is a felony.

You might semantically say that in Justice Scalia’s example that the elements are the same whether it’s robbery or rape.

Denise I. Young:

–You might, but that’s… I think a unanimous jury verdict would have to–

Anthony M. Kennedy:

There are not many indictments–

–But you don’t need… in other words, you can say that and still prevail in your case, because you can say the elements of premeditated murder and felony murder are different.

Denise I. Young:

–That’s right.

That’s right.

David H. Souter:

But doesn’t… doesn’t that then just raise the further question, why… why isn’t it appropriate to analyze the Arizona statute as simply requiring a guilty mental state which may be proven either as premeditation or may be proven as a element in the intent to commit robbery in the course of which there is a killing?

Your argument depends on the assumption that there are two different mental states involved, and hence two different elements.

If we don’t accept that assumption, then your argument falls.

Denise I. Young:

But… but there are, Your Honor.

Under… as Arizona has defined felony murder, there certainly are two different mental states.

The mental state for felony murder has nothing to do… no connection whatsoever to the homicide.

It is a mental state for the underlying felony that cannot be substituted over here for the premeditation when the jury may have found that Mr. Schad had no involvement in the killing.

Antonin Scalia:

Well, there are many more than two mental states required.

I mean there are as many mental states required as there are all the felonies in Arizona plus one more for… for the intentional killing, right?

Denise I. Young:

For the premeditated murder–

Antonin Scalia:

I mean every felony if it’s… if it requires mens rea, I assume, has a different intent, right?

So there are as many intents required under this statute as there are felonies in Arizona you say?

Denise I. Young:

–Intents… intents that the statute has required for that particular felony, that’s right.

Antonin Scalia:

Well, and for… and for this first degree murder.

Denise I. Young:

That’s right.

We know what the… we know what the mental state is for that, of course… the intent and the premeditation for the… the premeditated murder.

Antonin Scalia:

That’s… that’s one intent.

Denise I. Young:

Yes.

Antonin Scalia:

And then there’s not just a second, which is an intent to commit a felony.

You… there’s a different intent for each one of the felonies, right?

So there are 30 different intents here.

Who knows?

Denise I. Young:

There could be.

But… but this is not a great burden we’re asking the State to take on.

All we’re asking is that they give the jury separate forms of verdict.

Anthony M. Kennedy:

Well, I think it is unless you want to have some special rules for capital cases.

Anthony M. Kennedy:

And I certainly don’t think your logic takes you there.

What about that Federal statute that punishes as an accomplice anybody who aids, counsels, procures, abets, commands?

Does the jury have to be instructed… do they have to be… it was either commanding or counseling or procuring?

They have to all agree on which of the three?

Denise I. Young:

They… they–

Anthony M. Kennedy:

Because those are really a different act.

Denise I. Young:

–If in fact the evidence is such that it is, they do have to unanimously agree on the facts essential to that crime.

And if those facts are so disparate as they are here and can establish such two entirely different crimes as they do here–

William H. Rehnquist:

You say that’s… that’s the present state of Federal law?

Is that what you’re saying?

Is… are you saying that the answer to Justice… that the present state of Federal law is that if a particular statute says aids, abets, counsels, et cetera, that a jury must have a separate form of verdict and unanimously find either one or the other of those?

Denise I. Young:

–No, I–

William H. Rehnquist:

No.

Denise I. Young:

–I do not know that to be so, Your Honor.

I know that there’s been at least no decision out of this Court along those lines.

The circuit courts have come out various ways when in fact they were faced with the statute that the jury could have understood required… the… the… them to go off on… the jury to go off on two separate factual routes as it did here.

But the prosecution here can certainly argue 11 different ways if that’s how you want to look at this case.

We believe… it’s our position that these are two separate crimes regardless of what Arizona calls it.

But the prosecution can throw out 11 different ways for the jury to find first degree murder.

All we are asking is that that jury unanimously agree on which one it is.

Here we’ve got a case where six jurors may have believed that felony murder was committed.

And you can’t look at this case in isolation.

Remember they were given the opportunity to return anything else if they had a doubt.

But six jurors may have believe felony murder was committed, and six jurors may have disbelieved that.

You had as many believing that… that crime as disbelieving.

Antonin Scalia:

But you had 12 who believe that killed the person and 12 who believed that he had the kind of intent that the State made unlawful.

Denise I. Young:

No, Your Honor, I don’t believe you did.

Antonin Scalia:

Are you sure?

Denise I. Young:

First of all, if… if six–

Antonin Scalia:

One or the other of the various kinds of intent that the State made unlawful.

Denise I. Young:

–No, Your Honor, if the six people who believe felony murder… and setting aside the Beck issue for a while… those six people may not have had… believed he had anything to do with the killing but simply was present during a robbery.

That is far different from the other six jurors who believed there was premeditation.

Byron R. White:

Do you… do you say that it must be clear that the jury was unanimous on each… on whatever theory that… on one theory or the other?

Denise I. Young:

On either premeditated murder or felony murder?

Yes, I do, Your Honor.

Byron R. White:

What is… what is your case that says that, in a State case, there must unanimous verdicts?

Denise I. Young:

Under Arizona law, the constitution requires that their verdict be unanimous.

Byron R. White:

I know, but do you have any case here that says it must be unanimous?

Denise I. Young:

A United States Supreme Court case?

No, no, there’s no case by this Court that it must be.

There are certainly circuit court cases… the Gipson case–

Byron R. White:

Well, what makes it… let’s assume that there’s… that there’s a clear rule here that… that… that there may not be unanimous verdicts in the state criminal cases, including capital cases.

Let’s just assume that.

Denise I. Young:

–Okay.

Byron R. White:

But Arizona requires it.

On what ground would you then say we should reverse this case?

It’s just because Arizona has this rule, but is it unconstitutional to have a… in a… for Arizona to do it this way?

Denise I. Young:

Well, the possibility that the jury here split evenly–

Byron R. White:

Yes.

Denise I. Young:

–even violates this Court’s minimum requirements.

Byron R. White:

So that’s… you really get down to a 6 to 6 thing then?

Denise I. Young:

Yes, Your Honor, or–

Byron R. White:

It would have to be a majority.

Denise I. Young:

–At least a majority.

Here we have them splitting evenly.

William H. Rehnquist:

You say you have them.

That’s your hypothesis, isn’t it?

Denise I. Young:

That’s… yes, Your Honor.

William H. Rehnquist:

We don’t know how the jury–

Denise I. Young:

We have no idea here what the jury did.

Denise I. Young:

Thank you.

I’m going to reserve the rest of my time.

William H. Rehnquist:

–Very well, Ms. Young.

Mr. Ford, we’ll hear now from you.

R. Wayne Ford:

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

What this case presents is the classical death by strangulation/drowning situation that you often see raised in the law schools by the law professors where a victim is found at the bottom of the swimming pool.

And when he’s pulled out and goes to the morgue and the medical examiner examines him, finds also that the death could have been… there’s conclusive evidence that could have been also strangled as well as drowned.

And the question that this case presents is whether the jury is constitutionally required which of the two had happened.

In this case, of course, there’s not a drowning.

My position in this situation is that it is a question of–

John Paul Stevens:

May I ask you right there?

Supposing Arizona had… in your very hypothetical… one statute prohibiting death by… killing by drowning which had a… which was not a capital case, where as death by strangulation was a capital case.

Would they then be required to find out which way it was done?

R. Wayne Ford:

–I… my assumption was that the death by drowning by a forcible… it was a killing… and that the jury ultimately decides that way.

If it was an accidental drowning–

John Paul Stevens:

No, no, no.

I just said that your two examples as I understood you were death by strangulation and death by drowning, wasn’t it?

R. Wayne Ford:

–My… my presumption should have been that it was death by drowning… by forcible drowning.

And the jury unanimously decided there was a killing.

Must they then… are they then constitutionally required to decide whether the killing was by forcible drowning or whether–

John Paul Stevens:

And my question to you is… I think to put your question, you have to assume the statute only applied… there’s a special crime of killing by drowning.

And then would they not have to find that there was killing by drowning?

R. Wayne Ford:

–Under the… if the statute said killing by drowning?

John Paul Stevens:

Right.

R. Wayne Ford:

Then the jury would have to be unanimous in making that finding.

However, under the Arizona statute, it does not specify killing by drowning.

The Arizona legislature, in its prerogative of defining a crime, said that first degree murder is the killing with malice of forethought.

That is the crime.

That is the level that… to be attained.

That is the offense under our statute.

R. Wayne Ford:

Then they realized that there were different methods of committing first degree murder, and–

Anthony M. Kennedy:

Well, but that… counsel for the petitioner I think will say that that’s not her argument.

She’s saying that there are different… in the example you’ve put, killing by strangulation and drowning, the… the mental state is the same.

The elements of the crime are the same.

But here you do not need to be participate… to have caused the death of the victim for… of felony murder.

R. Wayne Ford:

–If that’s the position that the petitioner is taking, I’d say–

Anthony M. Kennedy:

Then you’d need only… and you need only have been intended to engage in the robbery.

R. Wayne Ford:

–Pardon me?

Anthony M. Kennedy:

When you need only to have intended to engaged in the robbery.

R. Wayne Ford:

That… that is an issue that is determined in Arizona at the sentencing stage.

What the… if you’re asking about the mental intent that was involved in it.

Anthony M. Kennedy:

So the… you’re saying… are you saying that the elements are the same for felony murder and for premeditated murder in Arizona?

R. Wayne Ford:

The elements of the crime were… are the same for first degree murder in Arizona.

There are two doctrines under which the… there are multiple doctrines under which an individual may be… the… the charge may be presented to the jury, but as far as the conviction… as far as the verdict that’s returned… as far as the statute that’s used to charge it, it is first degree murder.

Anthony M. Kennedy:

How about the petitioner’s argument that the prosecutor told the jury, now there’s two different routes you can go, two different prongs to this statute.

And the argument is that those are different elements in each case.

R. Wayne Ford:

No, I disagree that the prosecutor presented that to the jury in the first place.

And if… even if he did, the court’s instructions to the jury were not to that effect.

The court’s instructions to the jury were the defendant is charged with the crime of first degree murder.

You may find that he committed first degree murder.

If you find that he premeditatedly committed the crime, then we also find first degree murder if you find that he committed… was… committed the killing during the commission of a robbery.

So that–

Anthony M. Kennedy:

It’s not… not immediately clear to me that those aren’t different elements.

R. Wayne Ford:

–Those not elements of the crime per the statute.

The elements of the crime of murder in the first degree is a killing with malice of forethought.

Then the legislature decided to, for sentencing purposes at least, for punishment purposes, to categorize whether it would be first degree murder or second degree murder and put that burden on the jury and make that determination.

Whether they should find this happened with… with these different events that they found more reprehensible, they would put it under a first degree murder category.

The second degree category… or the first degree category they punish by either death or life imprisonment.

But the second degree category is a lesser punishment.

And those are the less reprehensible.

R. Wayne Ford:

So as far as the elements are concerned, it is a fact finding that the jury must find that the defendant was guilty of first degree murder and it is one of the findings.

But it is not an element of the crime as defined by the statute.

Antonin Scalia:

Well, how far does that go toward Arizona… just abolish all of its specific felonies and adopt a new crime called a generic felony.

And there are various ways you can prove a generic felony.

You can prove fellow committed homicide.

You can prove he committed robbery.

You can prove he committed burglary.

And those would not be elements of the crime.

The crime is felony.

And it just goes to the jury.

And you say, you know, you figure out whether he did any one of these things.

If we get nine of you to think he did nine different things, we got him.

Do you believe that?

R. Wayne Ford:

I believe that the legislators… the legislature’s prerogative would be able to do… if you’re talking about the traditional type crime, which would be like the homicide crime, if you place that… if you say not as a felony.

But if you say the crime in this case is homicide and you may find that the defendant committed homicide by these different fashions and include second degree murder and manslaughter and perhaps even negligent homicide.

Antonin Scalia:

You can do it for homicide, but you can’t go above homicide.

Why can’t you just do it for a felony?

The crime is defined as felony.

And you tell the jury you can find that he committed a felony in various… in various ways, just as the prosecutor here directed them.

You can find that he committed homicide.

You can find that he committed robbery.

You can find that he’s a tax cheat… whatever.

If I… you know, if I can pick up nine votes for one or the other, I have a conviction.

Can you do that?

R. Wayne Ford:

It would depend on how the statute would be written.

I was–

Antonin Scalia:

I told you how it’s written.

R. Wayne Ford:

–Okay.

Antonin Scalia:

It’s a felony.

R. Wayne Ford:

If… if you mean that there a robbery independent and we’re going to punish him for a… a homicide, I don’t believe that they could do that.

R. Wayne Ford:

If you’re saying that he commit a homicide by robbery, then I think the legislature–

Antonin Scalia:

Well, take homicide… I think you’re getting confused by homicide.

Take homicide out of it.

R. Wayne Ford:

–Okay.

Antonin Scalia:

It’s a… it’s a new crime called a nonhomicide felony, and it includes every felony in the world except homicide.

R. Wayne Ford:

Okay.

Antonin Scalia:

All right?

But they are not elements of it.

They are just like the two elements of intent in this statute.

Could Arizona do that?

R. Wayne Ford:

I believe that Arizona… that the legislature would not be allowed to do that.

I believe you’d be running into a due process, a reasonable doubt standard, which–

Antonin Scalia:

Uh-huh.

Now, why is this different?

How do you… how do you draw the line between that statute and the one you’re defending here?

R. Wayne Ford:

–Because you’re talking about a traditional category of crime here.

You’re talking about the legislature has decided to define the offense of homicide or murder in this specific instance.

That is a category I believe that the legislature should be allowed to designate as an offense… call it homicide or call it murder which ever you call it… and should be allowed to say if you commit a homicide by any of these means, then you have committed the crime of homicide.

Anthony M. Kennedy:

Well, what’s… what’s the standard that you using in order to answer Justice Scalia’s question in which you said that the hypothetical statute he put of a generic felony statute has a due process problem?

What is this standard you have to meet in order to be consistent with due process?

R. Wayne Ford:

You would have to look at the way this statute is written and determine whether or not the jury is making the determination of the crime that is charged in that case, as opposed to–

Anthony M. Kennedy:

Well, but the crime is the one Justice Scalia put.

It’s… it is the crime of being a dangerous person.

And you can do it by robbing a bank, committing arson, or reckless driving.

R. Wayne Ford:

–If you define it that way, then you’re beyond… I foresee the problem there as… what you’re doing is you’re giving up the jury’s… the defendant’s right to a jury trial and giving it over to the judge merely because the jury is deciding, okay, he did something wrong.

Three can find it this way, and six can find it that way, and three the other way.

Anthony M. Kennedy:

Well, that’s… that’s the argument in this case.

R. Wayne Ford:

I disagree, because in this case–

Anthony M. Kennedy:

What’s the difference in the two cases, and what’s the standard you use to determine that… that one is valid and the other is invalid?

R. Wayne Ford:

–The line that I would draw would be if it falls within one of the traditional type of crimes, then it would be all right for the legislature to say, you have committed a homicide.

R. Wayne Ford:

But they can’t throw in and say that you will be guilty of… we will find you under the law guilty of a homicide if you commit speeding in an automobile.

That’s without–

Anthony M. Kennedy:

Well, would you say there has to be a close conceptual mens rea between the acts that are grouped in this same statute?

R. Wayne Ford:

–That has been one of the factors that has been considered in classifying crimes throughout history.

Yes, the–

Anthony M. Kennedy:

But you don’t think that has anything to do with due process analysis?

R. Wayne Ford:

–Oh, it… due process is certainly involved in that, yes.

Due process under the reasonable doubt statute would be… or under the reasonable doubt standard of proof would be involved in that.

However, it brings us back to this crime when you classify it under a murder.

We’re very, very narrow in the traditional category of crimes now.

We’re saying that you can commit murder.

The legislature has said you can commit murder by poison, or torture, or lying in wait, premeditation, or during the commission of any of these felonies.

That has… is something the legislature can say.

That is something… there is no constitutional bar to the legislature making a single statute and putting–

Byron R. White:

Well, Mr. Ford, suppose that Arizona did have a third valid and they want… they want the jury to say what the verdict is.

And it turns out that six jurors thought… voted on premeditated murder and six on felony murder.

Would… would the judge then enter a verdict of guilty?

R. Wayne Ford:

–If… if they had… if they came back with separate verdicts itself, yes, under the Arizona statute.

Byron R. White:

Six and six?

R. Wayne Ford:

We’re talking about the way… the manner in which the murder was committed as opposed to whether a murder was committed.

Byron R. White:

So, so… so you’re… you’re quite content with the assumption that six on one and six on the other would still produce a guilty verdict constitutionally?

R. Wayne Ford:

If six jurors found, yes, that there was… that he killed by premeditation and six found that he commit… that he killed during the commission of a felony, there’s no problem under that.

There’s no constitutional bar to the legislature defining such a crime.

Those are merely different ways.

Byron R. White:

Because… and you would say the State law rule of unanimity is satisfied, because there’s 12 people who voted for first degree murder?

R. Wayne Ford:

Because 12 people voted for the offense.

The focus on a murder crime is on the killing and not on how it was committed.

As–

David H. Souter:

In effect, you’re… you’re saying then that if there’s a 6-6 split on how it’s committed, we don’t have a due process problem keyed to reasonable doubt?

We do not have to say, as a matter of law, you can’t have reasonable… you can’t have a finding beyond a reasonable doubt even though there’s a… there’s a split 6 to 6.

David H. Souter:

But if we got a greater number of fractioned possibilities… if we maybe got three-three-three-three, it would be an implication for reasonable doubt.

Is that what you’re saying?

R. Wayne Ford:

–No, no.

If I said that or implied that, I misspoke.

David H. Souter:

Well, I guess then… let me if I may just ask you one other question, and that is when… when you were… when were answering Justice Kennedy’s question, he said, well, what is the due process implication that bothers you in Justice Scalia’s hypothesis in which there might be, you know, 30 ways to commit the generic felony.

And I thought you said that the due process concern that you had was somehow keyed to the concept of reasonable doubt.

Maybe I misunderstood you there.

R. Wayne Ford:

Due process would be, under Winship, keyed to reasonable doubt.

But I was… trying to answer Justice Kennedy’s question was as to a generic crime of a felony… I believe it was originally–

David H. Souter:

And… and weren’t you saying… I guess I misunderstood you… weren’t you in effect saying that in… in a system in which there might be 12 different theories, one for each juror about how the generic felony had been committed, the requirement of proof beyond a reasonable doubt would not be satisfied.

Wasn’t that what you were in effect saying?

R. Wayne Ford:

–I was saying that there would not be a reasonable doubt question if you’re talking about a category of crimes such as, in this case, the way it’s defined in Arizona, of murder.

You’re talking–

David H. Souter:

Okay, why is that so when there would be a question about it on Justice Scalia’s hypothesis in which we might have 12 different theories within the jury about how the crime was committed?

R. Wayne Ford:

–As I understood Justice Scalia’s question, it spoke to the fact that we have several… we just designate one crime as being a felony, and that could include from homicide all the way down to traffic–

David H. Souter:

Right, and that means that among 12 jurors… in theory 12 jurors might come to 12 different views about how… one juror might say, well, you know, this fellow robbed.

Another one might say, no, he simply received stolen property.

And a third might say he was reckless driving and so on.

I thought… I thought that possibility was what implicated the reasonable doubt concern that you had raised.

R. Wayne Ford:

–I… I do foresee the problem there, when you start crossing the lines between categories of crimes.

David H. Souter:

Okay, and you’re now saying that when there are only two possibilities, so that the worst that we might have would be six jurors feeling one method, six another.

That does not have the same implications for the reasonable doubt standard.

R. Wayne Ford:

I’m saying that where it falls under a certain type category of crime that you wouldn’t have the reasonable doubt problem.

If you only have two theories, such as murder and reckless driving, then I think that you would have a problem, because what you’re doing is your taking away from the jury that decision to make reasonable doubt and you’re giving it to the judge.

And you’re talking about a preponderance of the evidence standard.

Antonin Scalia:

xxx–

–I didn’t understand… I understood you to ask… [inaudible] I misunderstood your answer.

I thought you… you overtly appealed to tradition which is okay with me.

I mean, I’m big on tradition.

But I thought you basically said that my generic statute is no good, because we’ve just never done things that way.

Antonin Scalia:

And you say we’ve always done it this way for first degree murder.

And I must say I have to take your word for it.

I don’t recall any lengthy discussion in your brief about how common this practice is in other States.

Is it… has it been done this way for a long time?

Is it generally done this way in other States?

R. Wayne Ford:

You mean as a generic felony or as a–

Antonin Scalia:

No, no, no, no, no.

Not the generic felony.

First degree murder, which can include either felony murder or… or… or intent.

R. Wayne Ford:

–That’s… in almost all States, including the Federal Government, murder is defined.

Federal statute, in fact, is almost identical to the Arizona statute.

Antonin Scalia:

And this could happen, you assert, in any State?

The same conviction could possibly come in with a 6-6 split on the jury?

Six thinking that a felony murder had been committed and six thinking there was… there was intent to kill… premeditated intent.

R. Wayne Ford:

Absolutely.

Byron R. White:

Yeah, but the statutes may be that way, but how about the practice of submitting separate verdict forms?

Do you think that’s done everywhere?

R. Wayne Ford:

With the court… the trial court actually submits the different forms?

They are a… they have done that in some cases in Arizona, and the practical effect–

Byron R. White:

No, and your supreme court even says it’s a good idea to do it, doesn’t it?

R. Wayne Ford:

–For a different reason than what we’re talking about here.

Byron R. White:

Well, nevertheless it says go ahead and do it.

R. Wayne Ford:

It has suggested–

Byron R. White:

What about other jurisdictions?

What about in the Federal practice?

R. Wayne Ford:

–I’m unaware of it being done in the Federal system or any other system.

To carry on with that thought, the reason that the Arizona Supreme Court is doing that is so that what it’s talking about is the punishment.

It has a better view of what is going to happen, and it specifically states that in Smith and the other… and the other case that we’re… that happened here.

So that the judge… the sentencing judge and at the reviewing court has a better idea of how the jury concluded this, so that the trial judge can make the decision whether or not this individual was the one that either killed or intended to kill or–

Byron R. White:

And deserves the death penalty.

R. Wayne Ford:

–That’s the death penalty exclusively.

Yes, it is.

John Paul Stevens:

May I just be sure we don’t have a dispute about one rather fundamental thing?

As I understand it in the premeditated murder, there’s the element of the killing, the element of malice which can proved by the use of the weapon, and thirdly, there’s premeditation.

And that in the other theory, all that’s necessary is to prove that there was robbery and a killing.

And there’s no requirement of premeditation.

Is that correct?

R. Wayne Ford:

That is correct to a point.

First, it presumes that there’s two different offenses, which there aren’t.

But–

John Paul Stevens:

Well, no, that are two different ways of proving the same offense, and–

R. Wayne Ford:

–Right, and if you prove first degree murder and–

John Paul Stevens:

–What I’m really asking is can you prove the offense at issue in this case by proving robbery and that a death occurred in the course of the robbery without proving that the defendant had any intent to kill?

R. Wayne Ford:

–Yes.

John Paul Stevens:

Well, I just wanted to be sure.

R. Wayne Ford:

The statute so reads that because we’re… what we’re doing in all felony murder situations… you’re transferring the specific intent from the felony to satisfy the premeditation issue which all comes down… that’s why they’re satisfied in that way.

Byron R. White:

But you may not be able to impose the death penalty without proof of that element… without proof of intent.

R. Wayne Ford:

Without… yes, that’s correct.

David H. Souter:

Let me… let me just get the terminology right.

The common element is what?

Premeditation?

No.

R. Wayne Ford:

For first degree… for murder?

David H. Souter:

What is the common element for first degree murder?

R. Wayne Ford:

There’s killing with malice of forethought.

David H. Souter:

It’s the… it’s the killing with malice?

R. Wayne Ford:

That’s the way the statute was defined at the time–

David H. Souter:

The malice may be supplied by premeditation or it may be supplied by the intent to commit the felony?

R. Wayne Ford:

–Either way.

It can be express or implied, as it’s stated in the statute.

R. Wayne Ford:

So it is my position in this case that the Arizona legislature can constitutionally create a statute that is… shows one offense that can be committed in several different ways and the jury is not constitutionally required to make a distinction between the ways it happened.

John Paul Stevens:

May I just… because I don’t think this makes a difference in the end result, but I just want to get my thinking straightened out.

In this particular case and the judge imposed the death penalty, it is possible, is it not, that the basis for his decision that Inman and Tison were satisfied was his own finding of fact, because he couldn’t be sure whether the jury had found the kind of intent that Tison required?

R. Wayne Ford:

In Arizona the trial court is required to make the finding during the sentencing phase, yes.

John Paul Stevens:

Right.

R. Wayne Ford:

Independent of what the jury may have found.

John Paul Stevens:

Would he have been permitted to do that if the jury had only been instructed on felony murder and in effect… or had two separate counts and rejected the premeditated and found felony, would he still be permitted under Arizona law to impose the death penalty?

R. Wayne Ford:

Yes, he would have been.

Under the facts, the judge has to make that decision, regardless of how the jury returns the verdict.

With respect to the second issue of lesser included offense, the petitioner is asking this Court to adopt a theory that it has already rejected, which is called the inherent relationship theory.

She has asked the Court to say that where some fact during the trial establishes the existence of a crime other than that crime charged that the jury must have that option to return that verdict as opposed to the verdict that’s charged merely because the jury may decide it wants to see another… it doesn’t want to impose the capital crime.

That is not the case in Arizona.

Under Arizona law robbery is not a lesser included offense of first degree murder.

It’s not a lesser included offense of felony murder.

It is a separate, independent crime that can be charged separately, prosecuted separately, convicted and punished independently.

That makes it an independent, not a lesser included offense.

This Court and Arizona have both adopted the statutory elements test, which is to analyze the statute of both offenses and determine whether or not the elements are the same with the exception of one element.

In this case, can murder be committed without necessarily committing robbery.

And of course you–

William H. Rehnquist:

In what case do you say this Court established that rule?

R. Wayne Ford:

–It’s a matter of procedure and established that in Schmuck v. United States, Your Honor, 1989 case out of this Court.

It was for that express… it didn’t limit it to, but it said that it would be for purposes of Rule 31, the rules of procedure, that the inherent relationship test is not the test to apply to determine whether or not it’s a lesser included offense.

That’s the same test that is used in Arizona.

And because of that it is not a lesser included offense.

And this Court in Spaziano v. Florida, for example, said that if there is no lesser included offense, if it does not exist, then it should not be instructed on it.

I would also, in passing, state that Beck is limited, in my opinion, to capital cases.

It was never intended to extend beyond a capital case to give the jury the option of finding a nonhomicide issue.

It was for the purpose… what Beck said was that the state cannot pass a law that would prohibit a jury from considering an existing lesser included offense.

Byron R. White:

What is second degree murder that… there was an instruction on second degree murder?

R. Wayne Ford:

There was in this case, Your Honor.

Byron R. White:

What is that?

R. Wayne Ford:

Second degree murder is any type of murder that is not first degree.

In other words, if there’s no premeditation, no willfulness, no deliberation, no felony–

Byron R. White:

Well, what… so to get to that, you would have to say no felony murder… no premeditated murder, no felony murder… but murder.

R. Wayne Ford:

–To get a second degree murder?

Under the way the jury was instructed in this case that was not matter… it is a matter of law in Arizona.

But under the way that they were instructed… I’d refer the Court to page 26 and 27 of the joint appendix.

They were instructed merely if you have a doubt in this case as to first degree murder, then you may find the defendant guilty of second degree murder.

The court did not distinguish between if you find him guilty of premeditated murder, you may.

But you can’t if you find him of felony murder.

So practically speaking, this jury was not faced with that problem.

Byron R. White:

Well, they… but they would have to find him not guilty of either premeditated or felony murder in order to hold him guilty… to let him off with second degree murder?

R. Wayne Ford:

Right.

They would find him as the court–

Byron R. White:

As a matter of law under Arizona law and under those instructions.

R. Wayne Ford:

–Under the… the instructions didn’t exactly follow the law.

That’s right.

Byron R. White:

Well, they… yeah, but the instructions said if you don’t find him guilty of first degree murder, you may find him guilty of second degree murder.

R. Wayne Ford:

That’s right.

Byron R. White:

Well, to find him not guilty of first degree murder, you would have to say he wasn’t… they weren’t guilty of either premeditated or felony murder.

R. Wayne Ford:

Under the instructions, that’s exactly what happened… would have happened.

The jury had the option in this case of finding the defendant guilty of first degree murder, a capital offense, or guilty of second degree murder, a noncapital offense.

Byron R. White:

What’s the penalty for second degree murder?

R. Wayne Ford:

At that time I believe the capital… the top end was 15 years… either 10 or 15 years in Arizona.

I believe the bottom end was 5.

Byron R. White:

5 to 15?

R. Wayne Ford:

5 to 15.

Byron R. White:

What was the penalty for robbery?

The felony of robbery?

R. Wayne Ford:

I’m not sure of that, Your Honor.

R. Wayne Ford:

It would be in the same type of category.

They’re both… if it was an armed robbery, it would have occurred… it would have been in the… in the same… felony… second class felony.

It would have been approximately the same.

John Paul Stevens:

May I ask this about second degree murder?

What if… does he have to have done the killing to be guilty of second degree murder?

Now, supposing the facts showed that he… he did not kill and had no intent to kill, but he was a participant in the robbery.

And he intended to rob and there was a death in the course of it, but an accomplice did the killing.

And he’d be guilty of felony murder.

Would he also be guilty of second degree murder?

R. Wayne Ford:

No, he could not be.

There is no second degree felony murder in Arizona.

So that if the jury’s… if the… the critical evidence in this case was the… evidence that he had the property an the proceeds of the robbery and all.

If they believe that he was a robber, they could not have found him guilty of second degree murder?

If they found that he had–

John Paul Stevens:

I mean, you had to follow the law, that they could not have done that consistently with the law.

R. Wayne Ford:

–Yes.

If they… if they had been instructed that if you find that he is guilty of robbery, then you cannot find him guilty of murder.

John Paul Stevens:

Well, no, I’m just saying… forget what these instructions… as a matter of Arizona law–

R. Wayne Ford:

Okay.

John Paul Stevens:

–if the jury was totally convinced and properly instructed that he did… had nothing to do with the killing except his participation in the robbery, but he was guilty of the robbery, could they… and consistently with Arizona law, find him guilty of a second degree murder?

R. Wayne Ford:

No.

Anthony M. Kennedy:

So your position is that if you have an indictment in which you’d alleged just the felony murder aspect of the Arizona statute, there is no requirement for any lesser included offense under Beck?

R. Wayne Ford:

That’s correct.

Under Beck, under Arizona law, there is no allowable… there is no lesser included offense.

Byron R. White:

Well, if they… if there was proof in the question of robbery… of course in a lot of felony murders I suppose you can prove who killed him?

R. Wayne Ford:

That’s correct.

Byron R. White:

And if there’s proof that… of the… if the jury believes that there was not only a robbery, but this defendant killed him, would they give him second degree murder?

R. Wayne Ford:

Not under Arizona law, no.

Byron R. White:

Why not?

R. Wayne Ford:

That the Arizona–

Byron R. White:

That’s the way it is?

R. Wayne Ford:

–court has decided that there is no lesser included offense of… for felony murder that includes second… second degree or the lesser… any homicide.

There is no second degree murder as a lesser of actually murder.

Byron R. White:

So it’s only a second degree to premeditated?

R. Wayne Ford:

Under the Arizona law, that’s correct.

William H. Rehnquist:

Thank you, Mr. Ford.

R. Wayne Ford:

Thank you.

William H. Rehnquist:

Ms. Young, do you have rebuttal?

You have 1 minute remaining.

Denise I. Young:

Thank you, Mr. Chief Justice.

That’s exactly our point on the Beck issue, that this jury had no rational option if they did have a rational doubt about one of the elements of felony murder.

And the supreme court, when it reviewed this issue, and it set forth in the joint appendix, found that the evidence would have supported a verdict for robbery.

But that this jury was not given that option to return that verdict because of the preclusion rule.

I also want to very quickly state that, contrary to what Mr. Ford said, the prosecutor in this trial very clearly argued the different factual routes, and we have set out that portion of the argument in our joint appendix at page 6 and 7.

William H. Rehnquist:

Thank you, Ms. Young.

The case is submitted.