Skipper v. South Carolina

PETITIONER:Skipper
RESPONDENT:South Carolina
LOCATION:Rhode Island District Court

DOCKET NO.: 84-6859
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: South Carolina Supreme Court

CITATION: 476 US 1 (1986)
ARGUED: Feb 24, 1986
DECIDED: Apr 29, 1986

ADVOCATES:
David I. Bruck – on behalf of the petitioner, appointed by this Court
Harold M. Coombs, Jr. – on behalf of the respondent

Facts of the case

Question

Audio Transcription for Oral Argument – February 24, 1986 in Skipper v. South Carolina

Warren E. Burger:

We will hear arguments next in Skipper against South Carolina.

Mr. Bruck, I think you may proceed when you are ready.

David I. Bruck:

Mr. Chief Justice, and may it please the Court, in this case the petitioner, Ronald Skipper, was convicted of murder and rape in the South Carolina Supreme Court, and was sentenced to death.

At his sentencing hearing before the trial jury, one of the mitigating factors which he attempted to submit for the jury’s consideration was evidence of his past good conduct and successful adaptation to a jail environment during the seven-and-a-half months between the time of his arrest and the time of his trial.

He attempted to prove this obviously for the purpose of persuading the jury whose sole decision of the sentencing phase was whether to send him to prison for life or whether to sentence him to death, that if he were sentenced to life instead of death, he could be expected to continue to conduct himself in a non-violent manner, and that he would adapt successfully and non-violently to the regime of imprisonment.

Sandra Day O’Connor:

Mr. Bruck, does the record disclose by an offer of proof or otherwise exactly what it is that the evidence of the two corrections officers, if that is what we are dealing with, would have consisted of?

David I. Bruck:

In terms of an offer of their testimony on the witness stand in camera, no, it does not.

This proffer, the proffer is contained primarily at Page 11 of the Joint Appendix, and it is counsel standing in place and representing to the trial judge what the witnesses would say.

We have under subpoena, Your Honor, two jailers to testify that the defendant has made a good adjustment, and at that point the court says that that issue is not relevant.

The actual testimony is not in the record.

Sandra Day O’Connor:

For our purposes, we should consider what the evidence would have been to have consisted only of past conduct while incarcerated, is that correct, without an element of prediction of future conduct?

David I. Bruck:

Yes, that is what was proffered.

It is that he made a good adjustment.

It was obviously being offered for the purpose of permitting the sentencing authority to draw the conclusion about his future conduct.

The South Carolina Supreme Court seemed to feel that both were offered.

Sandra Day O’Connor:

Now, under present South Carolina law, do I understand correctly that the state would now permit such evidence to be introduced?

David I. Bruck:

Yes, Your Honor, but for a very limited purpose.

South Carolina has again and again and again adhered to the position first expressed in Koon I, which was the basis of the ruling here that the issue of the future good conduct of a defendant in prison is irrelevant.

However, in Koon II, a case decided nearly a year after this trial, and thus of no relevance to what happened here, the Court said that past good conduct in jail is admissible but only as general evidence of the good character of the defendant.

It is not admissible on the issue of good conduct in jail, which the Court has continued over and over again to say is inadmissible, and proof of that, our position is that the South Carolina Supreme Court has repeatedly, beginning with Koon I and as recently as State against Chaffee, cited in my brief, upheld the exclusion of expert psychiatric testimony which was focusing solely on whether or not based on a psychiatric evaluation of this defendant his likely future conduct in prison would be good.

That conduct is always excluded, and it is always excluded under South Carolina law on grounds of relevancy, that is, the relevancy of the issue.

There has never been a case in which a psychiatrist offering his testimony was held to have offered him competent testimony, unreliable testimony.

South Carolina focuses solely on the issue of whether or not the question of his future conduct itself is relevant, and South Carolina says that it is not, and that is the issue before the Court.

Byron R. White:

But, of course, we did limit certiorari here, didn’t we?

David I. Bruck:

Yes.

Byron R. White:

To evidence of future adaptability?

David I. Bruck:

Evidence tending to prove future adaptability.

Byron R. White:

Yes.

David I. Bruck:

Obviously, the evidence was not offered idly.

It was not offered to satisfy the jury’s curiosity, but rather to allow the jury to make its own conclusions.

Byron R. White:

But doesn’t the state say now that that very testimony would be admissible at least for some limited purpose?

David I. Bruck:

For a very limited purpose, a purpose so limited that South Carolina has almost invariably found exclusion to be harmless error in all but one case since this time.

Byron R. White:

You tell me now that South Carolina would always exclude the testimony of an expert if he purported to predict how the prisoner would act.

David I. Bruck:

That’s correct.

There are, I think, three or four decisions that have been filed in the South Carolina Supreme Court dealing with not past testimony of guards, but–

Byron R. White:

Well, do you understand the state’s submission now to be to the contrary?

David I. Bruck:

–Well, yes.

As a matter of fact, the state seems at some point in its brief to say in the teeth of all of the South Carolina decisions that in fact the rule of State against Koon isn’t really such a rule, and that all South Carolina excludes is incompetent lay opinion testimony.

Well, there are two things wrong with that.

The main thing that is wrong with it–

Byron R. White:

Is that it is wrong.

David I. Bruck:

–is that it isn’t true.

0 [Generallaughter.]

The second thing that is wrong with it is that if it were true, this testimony in this case would not have been excluded because if you look at the record, the testimony was as to his past–

Lewis F. Powell, Jr.:

Mr. Bruck?

David I. Bruck:

–conduct.

Sir?

Lewis F. Powell, Jr.:

I am not clear as to your position in response to the questions that have been asked.

In this case the prosecutor injected by questions he asked the issue of conduct in prison.

David I. Bruck:

Yes, sir.

Lewis F. Powell, Jr.:

And he also included that in his final speech to the jury.

Suppose the prosecutor had not done either of those things?

Would, under your presentation here today, it have been appropriate for counsel for the defendant to have introduced, first of all, psychiatric testimony as to the likelihood of his being a good prisoner for the long-term future?

Yes.

Is the answer to that yes?

David I. Bruck:

The answer to that is yes.

Lewis F. Powell, Jr.:

That is your position?

David I. Bruck:

Yes, sir.

Lewis F. Powell, Jr.:

Now, let’s assume, instead of having psychiatric testimony, the only testimony to that effect came from the two prison guards and from the woman who visited the prison once a week.

David I. Bruck:

Yes, sir.

Lewis F. Powell, Jr.:

Not psychiatrists.

Is your answer still yes?

David I. Bruck:

Would it have been appropriate for that testimony to have–

Lewis F. Powell, Jr.:

Would that have been admissible?

It is purely speculation by lay people.

Would it have been admissible?

David I. Bruck:

–What was offered was not speculation.

It was his past record, and that would have been admissible.

Lewis F. Powell, Jr.:

Right, but–

David I. Bruck:

If the question is, would their speculation–

Lewis F. Powell, Jr.:

–you offer the past record for the purpose of showing–

David I. Bruck:

–Correct.

Lewis F. Powell, Jr.:

–the likelihood that he would not be dangerous in the future.

David I. Bruck:

Correct.

Lewis F. Powell, Jr.:

Well, now–

–If this ability by… excuse me.

Go ahead.

Testimony by prison guards would have been admitted for that purpose?

David I. Bruck:

Yes, sir.

Their observations, what they saw, not necessarily their opinions, but what they saw over seven-and-a-half months of day-to-day conduct with this man would most certainly have been admissible as an aspect of his character within the language of… an aspect of his record bearing on his character and enabling the jury to make an intelligent decision about one of the crucial issues that they had to confront.

William H. Rehnquist:

What if the state did not make future dangerousness an element of the sentencing process in any way.

Do you still think the constitution would require South Carolina to admit the sort of testimony that Justice Powell was asking you about?

David I. Bruck:

Yes, I believe it would.

Of course, that is not the situation we have in this case.

But I think there are… I have two responses to that.

First, I think that all of this Court’s capital sentencing case recognize the calculations of future dangerousness, of future behavior, whether it be bad or good, the capacity for rehabilitation is at the very core of what American judges and juries do when they pass sentence in all kinds of cases, and this Court’s cases go back half a century and more discussing that fact.

In Lockett itself, one of the mitigating circumstances that was excluded was the defendant’s capacity for rehabilitation, psychiatric–

Warren E. Burger:

I notice you rely a great deal on Lockett when it refers to aspects of the defendant’s character and record.

Now, the character and record, when were the character and record of this man made, before he committed the crime or after he committed the crime?

David I. Bruck:

–I read Lockett to say both.

Warren E. Burger:

Do you think Lockett contemplated some character evaluation of how he has acted after the crime and while he is awaiting trial?

David I. Bruck:

That is my reading.

Warren E. Burger:

Well, isn’t character an evaluation of past conduct?

David I. Bruck:

It is partly that, and it is partly an evaluation… the jury cannot avoid the question, if we spare this man’s life, then what?

The jury has a great responsibility when they sentence him to death, but they also have a great responsibility when they take a convicted murderer and allow him to live.

They cannot… the state cannot wish away the question that is going to arise in the jury room, will this person harm other people if we don’t sentence him to death.

That question is there.

It is inherent when a judge passes sentence.

It is inherent when a jury passes sentence.

The jury will make the question… will answer that question in one of two ways.

It will answer it on the basis of all relevant information, and if they are given that opportunity, they will answer it correctly as well as our judicial system can possibly allow, or the jury will answer the question in an artificially created blackout of information, as happened in this case, where the most reliable evidence of what was likely to happen if we spared this man’s life, the testimony of his jailers, the people that had had him and could see him day to day and could form a judgment of how he would likely do in confined–

Warren E. Burger:

Suppose they gave him a trial within a week.

Do you suggest that the evidence about his conduct the week between the time he committed the crime and the time he was tried has any bearing on this issue?

David I. Bruck:

–I would suggest that that would be of vanishingly small weight.

As a general matter, my answer would be that the weight to be accorded to mitigating evidence is for the sentencer, and all that Lockett and all that Eddings say is that the state may not give it no weight by exclusion.

Byron R. White:

Suppose a question to these two witnesses had been, in the hope of the court, well, now, we have asked you to describe how he has acted in the past.

What would be your prediction for the future?

Don’t you think that question would be proper?

David I. Bruck:

I would think that a jailer who is a person–

Byron R. White:

You mean there is no yes or no answer to that?

David I. Bruck:

–I would think as to the jailers the question would be proper, but I think that is a question on which the states enjoy a degree of latitude in deciding the reliability of evidence.

Under South Carolina law… would be admissible.

Byron R. White:

Out of state, so don’t permit testimony on the ultimate issue the jury has to decide.

David I. Bruck:

Well, of course, this isn’t the ultimate issue.

It is an issue of some importance.

Byron R. White:

It is pretty ultimate.

Well, it is pretty ultimate.

David I. Bruck:

I think if the witness was allowed to give all of the basis, all of the facts that he observed, I do not think the Constitution would require us to give a straight answer.

Warren E. Burger:

We will resume there at 1:00 o’clock, counsel.

Mr. Bruck, you may resume your argument.

David I. Bruck:

Thank you, Your Honor.

If I may complete my response to Justice White, I think basically petitioner’s position would be that where a lay witness is permitted to give all of his observations and provide all of what he has to say based on his own knowledge and experience and what he had seen, the Constitution would not require that that lay witness’s opinion also be admitted in mitigation of punishment.

Byron R. White:

Including a prison guard.

David I. Bruck:

I would say including a prison guard.

South Carolina law, I believe, state evidentiary law would admit the testimony as, I believe, would the federal rules, because that is someone whose knowledge is based on special experience.

Byron R. White:

But a state, if it permits the prison guard to testify on what he has seen and heard, wouldn’t need to permit an opinion from him.

David I. Bruck:

That is correct.

That is cur position.

All of this, as I mentioned briefly at the beginning, has to do with what the jury actually is required… what is actually required of the jury at the sentencing phase.

As the joint opinion in Jurek stated, any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what sentence to impose.

That is simply an inquiry which cannot be willed away.

At bottom, I read Lockett to be concerned with accuracy, with reliability, with the concern of the Eighth Amendment, and if we are to sentence people to death, let it not be in error.

Let it be only based on the facts as best we can bring them to the sentencer’s attention.

What we have here in this case, I think, is an exceptionally clear example of the sentencing determination fraught with the potential for error, because not only were the state’s own witnesses, the jail guards, who knew the most about how this man was likely to do in prison, prohibited from testifying–

Warren E. Burger:

Let me go back to the question I put to you before lunch.

Suppose within 60 days after the murder, the case comes to trial.

Is it your suggestion that Lockett requires, the Constitution requires that the Court admit evidence about his good behavior during the two months between the time of the murder and the time of the trial?

David I. Bruck:

–Yes.

I think that would again be for the weight, and the weight, as the Court said in Eddings, is not for the law, not for the legislature, but for the jury.

Warren E. Burger:

Ordinarily the character of a person like reputation is based on always past events, isn’t it?

David I. Bruck:

Yes.

Warren E. Burger:

Not necessarily current events, but things past.

David I. Bruck:

Well, things past up to the time when his character is being evaluated, which is at the time of the trial.

The way people… and this is often the case when you have people who are mentally ill or who suffer from character disorders, and there was abundant evidence in this record that this man was a product of an alcoholic home, of child abuse, of terrible domestic violence, and this is the sort of person that may well be unable to function out in society, and yet in a structured environment might well be able to function very well, and we all know of dramatic examples of that.

The Birdman of Alcatraz.

Warren E. Burger:

Are you saying he might be able to function very well in the controlled environment of a prison.

David I. Bruck:

Correct.

Warren E. Burger:

Is that the issue–

David I. Bruck:

That certainly was.

Warren E. Burger:

–that society is probing at, how he is going to act in prison?

David I. Bruck:

Yes, that is the issue.

A jail environment is certainly similar to a prison environment, perhaps not identical, and that would be an issue for cross examination by the state, to try to bring out ways in which this may not really be all that probative.

That is grist for the jury mill.

These are the things we have trials to determine.

William H. Rehnquist:

Yes, but some states bar evidence that is not ante litem motam, so to speak, evidence that may have been concocted by a party over a short period of time after the event which is being judged came into effect.

Now, you are saying, I take it, that the state can’t do that here, that it is strictly a matter for cross examination.

They can’t ever say that this conduct was shaped by the defendant in order to produce evidence for this trial.

David I. Bruck:

The prosecutor can certainly say that to the jury, but I don’t think the state can say as a matter of law that because of the danger that defendant is putting on an act, that therefore that cannot even be weighed by the jury, that the jury can’t even hear it.

After all, we have situations in which defendants have been incarcerated for two and three years, and then have a retrial, and their prison behavior can be assessed over a very long period of time.

Now, there is still the possibility that it was still concocted.

I don’t know that any arbitrary time deadline of a week or 60 days could ever be meaningfully developed.

We could say, well, this is too short, or there is too great a risk.

I mean, there are all kinds of dangers.

In Washington, for instance.

Texas recognized the danger that co-defendants would concoct their stories and try to swear each other off the charges, and therefore… and that is not a completely irrational concern.

Thurgood Marshall:

Counsel, maybe I am way off base, but I don’t quite understand.

Assuming that the trier of fact concludes that this man would not be helped out of jail, what would he do?

David I. Bruck:

Would not be helped in the sense that if the trier of fact concluded that his conduct would be bad, that he would be violent in jail, that he would rape other inmates, as the prosecutor argued in this case, that would be a consideration weighing in favor of death.

If the trier of fact included that probably this man’s conduct would be good in the sense of nonviolent–

Thurgood Marshall:

You put the testimony on.

David I. Bruck:

–That’s correct.

Thurgood Marshall:

He couldn’t withdraw it.

David I. Bruck:

Oh, you mean if the witnesses were called and they said, as a matter of fact, this guy was being a real problem, he banged on the bars and that is about all we have got to say about it.

Thurgood Marshall:

But you couldn’t blame that on the state, could you?

David I. Bruck:

Absolutely not.

Thurgood Marshall:

So you don’t begin to have the man electrocuted.

David I. Bruck:

That is right.

If we didn’t interview our witnesses first and call them, and indeed–

Thurgood Marshall:

You wouldn’t feel any counsel responsibility for it at all, would you?

David I. Bruck:

–I would feel grave responsibility if I called a witness and didn’t know what he was going to say and he hurt my client.

Thurgood Marshall:

I sure hope so.

David I. Bruck:

Yes, Sir.

I sure would.

By the same token, and we have absolutely no quarrel with the idea that if the defendant during the one week or the 60 days between his arrest and his trial attempted a jail break, I don’t think it can be seriously contended that that is not evidence relative to an aspect of his character and record that the jury ought to know and that they are entitled to know, and indeed, South Carolina law most certainly provides for consideration.

Indeed, in this record there is the slightest fragment of rather minor misbehavior which was admitted to by the defendant himself that when they first put him in jail he banged on the bars because they wouldn’t let him get a phone call, and the solicitor and prosecutor jumped on that, seized on that in his closing argument.

He said, didn’t he admit kicking on the bars over there.

That is the kind of prisoner he is, kicking on the bars, kicking on the bars.

Now, there was nothing improper about that argument.

What was improper about it is that Ronald Skipper’s side of the story was excluded from evidence, and that is all the jury heard.

Thurgood Marshall:

I doubt you will find any prisoner that at some time didn’t bang on the bars.

David I. Bruck:

Well, I agree with that, Your Honor, and I believe that is exactly what defense counsel proffered the jailers to say, that after this initial little problem he had the night he was locked up, he made a good adaptation and did fine, and the jury could fairly have concluded from that that he would have done all right if they spared his life and sent him to prison, and that, of course, is the testimony the jury never got to hear.

If the Court has no further questions, I would like to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Coombs.

Harold M. Coombs, Jr.:

Mr. Chief Justice, and may it please the Court, the state’s position in this case may, if you will, be reduced to one simple sentence.

Predictive testimony that is offered in mitigation may be properly excluded when it is merely based upon a lay witness’s opinion, and when the lay witness’s opinion is simply illustrated by evidence in the record, and the jury is free to consider that evidence for themselves.

Now, our position is that this properly focuses the jury’s attention.

By properly focusing the jury’s attention on the characteristics of the defendant, the characteristics of the crime that he has committed, and his prison record, and only allowing in relevant evidence.

Byron R. White:

What was excluded here?

Harold M. Coombs, Jr.:

What was excluded in this case, Justice White, was one thing, and that was predictive testimony from lay witnesses.

Byron R. White:

That wasn’t what was asked, was it?

Harold M. Coombs, Jr.:

That was my understanding, Your Honor.

Byron R. White:

What was the question that these prison guards weren’t permitted to answer?

Harold M. Coombs, Jr.:

Your Honor, there was never any specific testimony proffered.

The only fair inference from the record, I would submit to the Court, is that they were offered for one thing, and that was to speculate on his future conduct.

Byron R. White:

Weren’t they just going to… wasn’t it just said that they were going to testify about how he had conducted himself since he had been in jail?

Harold M. Coombs, Jr.:

No, Your Honor, I would disagree with that.

Sandra Day O’Connor:

But Mr. Bruck said this morning before noon.

Harold M. Coombs, Jr.:

Your Honor, I think if you look, for example, at the top of Appendix Page 4, the trial judge is confronted with what he is going to admit into evidence, and I think at Appendix Page 4 he very clearly says that insofar as evidence is offered which pertains to the characteristics of the defendant, it is admissible into evidence.

If we look at Appendix Page 10, we see that the defendant’s former wife is testifying.

Harold M. Coombs, Jr.:

She is permitted to use the very words that he has made a good adjustment to prison.

She is permitted to testify as to what she has seen about Ronald Skipper in prison.

Then, the defense attorney asks her to predict over an extended period of time what is your opinion as to whether he could make a good adjustment, and it is only at that point–

Sandra Day O’Connor:

And what page is that?

Harold M. Coombs, Jr.:

–That is at Appendix Page 10, Justice White.

It is only at that point that the solicitor objects.

The objection is sustained, and defense counsel proceeds to make his offer of proof, and when he makes that offer of proof, that is when very strangely he makes an offer of proof for past conduct.

Thurgood Marshall:

In South Carolina, is that the way you proffer proof?

You don’t get the verbatim statement?

Harold M. Coombs, Jr.:

A summary from counsel is usually considered–

Thurgood Marshall:

This witness, if permitted to testify, would testify as follows.

You don’t go that route, do you?

Harold M. Coombs, Jr.:

–Justice Marshall, they do it one of several ways.

It is done any number of ways.

Counsel may make the offer of proof to the court.

He may put the witness on the stand and have the offer go into the record that way.

So the trial judge’s discretion is my understanding.

Thurgood Marshall:

Do you consider this a proffer of proof?

Harold M. Coombs, Jr.:

I would consider this an offer of proof.

The trial judge–

Thurgood Marshall:

Of what?

Proof of what?

Harold M. Coombs, Jr.:

–I would say this is an offer of proof offered to relate back to the question he was attempting to elicit from the witness, which was a prediction of future conduct over a period of years.

It is only natural that when the trial judge is sitting there on the bench, and he is deciding, what am I ruling upon?

He is going to go back to the question that was asked, and what was that question?

It was a question concerning a prediction of future conduct.

Sandra Day O’Connor:

Well, Mr. Coombs, suppose, just suppose that all that they wanted to offer was the testimony of the corrections officers about past conduct while in jail?

Harold M. Coombs, Jr.:

Justice O’Connor, that would have been admissible.

Admissible.

Sandra Day O’Connor:

Pardon me?

Harold M. Coombs, Jr.:

Admissible.

Sandra Day O’Connor:

And would it be admissible for the purpose of proving future adjustability to prison life?

Harold M. Coombs, Jr.:

Okay, Justice O’Connor, at that point we come to what is meant by prison life.

I suggest to this Court that in light of the South Carolina Supreme Court’s decision in Plath, State v. Plath and Arnold, that when our Supreme Court talks about prison life they are talking about such things as how well the prisoner is going to be able to take one shower a week.

I will use the example used in Plath.

Or whether he is going to be personally happy.

They are not talking about his interaction with other prisoners.

Most certainly they are not talking about future dangerousness.

State v. Woomer was decided when the present case–

Sandra Day O’Connor:

Well, you didn’t answer my question.

Would the evidence of past conduct in prison be admissible to prove adjustability and behavior in the future while in prison in South Carolina?

Harold M. Coombs, Jr.:

–It depends what you mean by future adjustment in prison, Justice O’Connor.

If it is something that is going to be of consequence to the determination of whether or not this man lives or dies–

Sandra Day O’Connor:

Yes.

Harold M. Coombs, Jr.:

–yes, it would be admissible, very clearly admissible.

Sandra Day O’Connor:

Yes.

And yet the judge kept it out here even in the face of arguments by the prosecutor that this man would be likely to attack other prisoners in the future and behave badly in prison.

Harold M. Coombs, Jr.:

No, Justice O’Connor.

I do not believe that that is a fair reading of this record.

I believe that the defendant was able–

Sandra Day O’Connor:

Isn’t that the prosecutor’s argument at the end?

Doesn’t it touch in part upon the likelihood that this man would attack other prisoners in the future, and that he is likely to misbehave in prison?

Harold M. Coombs, Jr.:

–That was the prosecutor’s inference, Your Honor.

There is plenty of evidence in this record.

There is plenty of evidence in the record from which the prosecutor could have drawn that inference.

Sandra Day O’Connor:

But don’t you think that it is arguable that the defendant should have been allowed to rebut that inference with testimony of this type from corrections officers?

Harold M. Coombs, Jr.:

If the testimony from the corrections officers had been proffered for the purpose of testifying to things that they had observed concerning Ronnie Skipper when he was in jail, that testimony was admissible.

Byron R. White:

That is exactly what Mr. Dusenberry said.

Your Honor, we have under subpoena two jailers to testify that the defendant has made… has made a good adjustment.

Harold M. Coombs, Jr.:

Okay, that is from, I would guess, Appendix Page 11.

Byron R. White:

Yes.

You say that is very strange, but the court says, whether he can or cannot is not an issue in this case.

Even if they stay after this initial period, he has made a good adjustment.

The court says, read Koons.

That is not an issue.

So none of these witnesses would be permitted to testify, Dusenberry asked.

The court says no.

Harold M. Coombs, Jr.:

Justice White, again, you have to look at the question that was raised.

He was trying to introduce–

Byron R. White:

I thought I just did.

Harold M. Coombs, Jr.:

–That is part of the offer of proof, Your Honor.

The question where the solicitor objected was a question which called upon his former wife to predict future behavior over a period of years in prison.

When you examine this record, I suggest the record is replete–

Byron R. White:

So you would say that you would say, we should judge this case, at you say we should, on the basis that if all the wanted to do was to put on these two jailers to testify how these people had… how this defendant had behaved himself in prison in the past, it would have been admissible.

Harold M. Coombs, Jr.:

–I am sorry, Your Honor.

I don’t understand your question, Justice White.

Byron R. White:

Well, if the defense had said, I want to call these two prison guards, I want to ask them how this defendant has conducted himself in the past, while he has been in prison, admissible, I gather.

Harold M. Coombs, Jr.:

That would have been admissible.

Yes, sir.

William H. Rehnquist:

Well, that is hard to justify in light of the colloquy on Page 11, I think, Mr. Coombs.

The court had sustained an objection to the wife’s testimony about whether or not he could adjust, and then counsel says, we want to take up a matter of law outside the presence of the jury.

Now, the counsel didn’t reargue the wife’s admissibility.

He said, I’ve got two witnesses here, and as Justice White said, we have under subpoena to testify that the defendant has made a good adjustment, and then the trial court obviously thinks he is still talking along the same line as before, but he wasn’t, and surely… I mean, we can’t say that he didn’t make his point to the trial court.

Harold M. Coombs, Jr.:

I think, Justice Rehnquist, you have to look at the entire record, and I think at that point, on that one isolated page of the appendix, that the trial judge still has the objection on his mind from Page 10, but we can certainly look, for example, at Appendix Page 4.

We can look at the extensive record before the Court in this case.

For example, the defendant in this case testified from the stand that when he was in prison he had learned vocational skills.

He had applied those skills.

He was–

Byron R. White:

And his wife was permitted to testify about how he had conducted himself.

Harold M. Coombs, Jr.:

–His wife, his former wife was certainly permitted to testify about how he conducted himself in prison–

Byron R. White:

The same sort of things that the prison guards were going to talk about.

Harold M. Coombs, Jr.:

–If the prison guards limited their testimony to things that they had actually seen, that is exactly right, Your Honor.

Presumably it would have been very similar.

They would have been paralleled one another.

Warren E. Burger:

I am having difficulty following your argument, counsel.

You conceded in response to several questions that evidence about his conduct was admissible.

Harold M. Coombs, Jr.:

Evidence about his conduct certainly was admissible.

Warren E. Burger:

Now his counsel then offers to present evidence on precisely that question, and you say it is not admissible.

Harold M. Coombs, Jr.:

I think, Your Honor, the question is, what does the trial judge have on his mind in Appendix Page 11.

Warren E. Burger:

Well, we have to go on the basis of the record, not what is in his mind.

You have said, perfectly clear, several responses, that that evidence is admissible, and then the judge rules it is not admissible, and you either have to defend it or concede it, or say that it is totally irrelevant.

Harold M. Coombs, Jr.:

Our position, Your Honor, is that observations of past conduct are admissible.

Lay witnesses’ testimony which merely seeks to predict future conduct is inadmissible, and I suggest the record is entirely consistent with that view.

John Paul Stevens:

May I ask on that, directed at what issue is the evidence of past conduct admissible?

Is it admissible on the issue of adjustability to prison life?

Harold M. Coombs, Jr.:

Again, that means… you have to consider what you mean by prison life.

Might I suggest for the Court’s–

John Paul Stevens:

Whatever the judge meant when he said it is not admissible on adjustability to prison life.

In your view, is it admissible on that issue?

Harold M. Coombs, Jr.:

–If you mean showering, how often does he shower, that is not admissible.

If it means is he going to be a productive prisoner, it most certainly is admissible, and I would cite this Court to Transcript Page 1257.

John Paul Stevens:

Let me just keep you on this for a moment.

You concede that the evidence of past conduct would be admissible on the issue of adjustability to prison life if the term adjustability to prison life is properly understood.

Harold M. Coombs, Jr.:

That is correct, Your Honor.

John Paul Stevens:

Then how do you defend the judge’s ruling at the bottom of Page 11?

Harold M. Coombs, Jr.:

The only thing I can say there is that he still had on his mind the question that was raised at Appendix Page 10.

John Paul Stevens:

Where do you get your view of the law then?

Harold M. Coombs, Jr.:

I get my view, for example, from the whole–

John Paul Stevens:

Do you agree he committed error because he didn’t understand the question?

Harold M. Coombs, Jr.:

–I don’t think he understood one single question.

John Paul Stevens:

That just explains, it doesn’t justify the error.

Did he commit error?

Harold M. Coombs, Jr.:

No, he didn’t commit error because he let in everything that was offered to show past conduct and he put this to the jury.

He put it to the jury at Trial Transcript Page 1,257.

He charges the jury.

He charges the jury on nonstatutory mitigating circumstances.

And he says, nonstatutory mitigating circumstance number 4, the defendant is now and during the confinement under life sentence would be free of all alcohol and drug dependence.

One more, if I might read it to the Court.

Nonstatutory Aggravating Circumstance Number 5.

The defendant has shown a progressive positive adjustment to confinement, and he has the educational and employment skills that would enable him to be a stable, productive prisoner.

The only thing that was kept out in this case is simply the predictive testimony of lay witnesses.

What was included would be the observations of all the lay witnesses as to what they actually see.

Once that was in the record, then the jury was free to consider, to evaluate, and if they wanted to use that as a mitigating circumstance that mitigates against the death penalty, they were free to take that into consideration and give it whatever weight they chose.

Thurgood Marshall:

You agree that these two guards testify as to certain facts, and that would be admissible.

Harold M. Coombs, Jr.:

We don’t have that in the record, but just hypothetically.

Thurgood Marshall:

Do you agree that there are some things he could say that would be admissible?

Harold M. Coombs, Jr.:

I certainly do.

Thurgood Marshall:

And the judge kept it out?

Harold M. Coombs, Jr.:

I do not agree with that.

Thurgood Marshall:

What did the judge say?

I am not going to let it in.

Harold M. Coombs, Jr.:

He said at the top of Appendix Page 4, for example, he said anything–

Thurgood Marshall:

I am talking about Page 11.

He might get others off on Page 4, but I still think Page 11 is this case.

The judge says you cannot put these witnesses on.

Harold M. Coombs, Jr.:

–Transcript Page 11 or Appendix Page 11 takes place for one reason, because on Page 10 defense counsel has asked his former wife to make a prediction as to what his behavior in prison is going to be over a period of years.

That takes place the bottom third roughly of Appendix Page 10.

Under prison conditions over an extended period of time, what is your opinion as to whether he could make a good adjustment?

I say very clearly that is asking her to speculate on his future conduct.

It has nothing to do with what she herself has actually seen.

Harold M. Coombs, Jr.:

I remind the Court, suggest to the Court once again that his former wife was permitted to characterize her own testimony, to describe the testimony and then characterize it by saying that Mr. Skipper had made a good adjustment to prison.

The defendant’s mother could testify that he had been free of drugs.

Again, the jury could take that and give it whatever weight they might choose.

The defendant himself went into excruciating detail about his past conduct, his present conduct, and even his future conduct, and how detailed is his testimony, what kind of leeway did the trial judge give to this prisoner.

He even allowed him to predict that a South Carolina public school would be the school of choice for his own children.

I think based upon this record it is hard to imagine a factual scenario of where a trial judge has given a prisoner more leeway in putting before the jury the circumstances and the facts which the jury may consider and decide if they think that is a proper matter to use in mitigation of the death penalty.

Our position is that the evidence is to be presented by the witnesses.

Once that evidence is presented, it is for the jury to attach whatever weight, whatever meaning that they see is fit.

On the basis of this record, there is absolutely nothing in this record to show that his former wife or the prison guards or the jail visitors have any special knowledge, any special insight that can make their testimony, their observations more meaningful for that jury.

Warren E. Burger:

I am still having difficulty.

At the bottom of Page 11, they are discussing what they are trying to introduce.

They are trying to introduce evidence of three people which would bear on whether he could or could not adjust to prison life.

And the judge said, that is irrelevant.

They will not be permitted to testify.

But you have already conceded several times that that would be admissible evidence if there was no opinion given.

Harold M. Coombs, Jr.:

I certainly have, Mr. Chief Justice.

And the only thing I can suggest is at Transcript Page 11 or Appendix Page 11 has to be read along with Appendix Page 10, it has to be read along with the top of Appendix Page 4.

And it has to be read along with everything else the trial judge admitted in evidence during the course of this trial, which is some considerable volume, right here.

We are talking about–

Warren E. Burger:

The judge has told him categorically, whether he can or cannot adjust to prison life is not an issue in this case.

Harold M. Coombs, Jr.:

–Again, Mr. Chief Justice, the transcript at Page 1,257.

Obviously, there is some misunderstanding.

The trial judge at Transcript or Appendix Page 11 thinks we are still talking about future adjustability, because at 1,257 he says as a nonstatutory mitigating circumstance the defendant has shown a progressive positive adjustment to confinement, and he has the educational and employment skills that would enable him to be a stable, productive prisoner.

So, obviously the trial judge believed that that was proper, relevant, admissible testimony.

Warren E. Burger:

But he said the contrary, categorically.

Harold M. Coombs, Jr.:

That is exactly right.

At Appendix Page 11, he made a mistake, and why did he make a mistake?

Because once questions had been asked calling for a prediction of future conduct, and that objection was sustained, defense counsel then proceeded to make an offer of proof of past conduct, which is nonsensical.

The trial judge became temporarily confused at Appendix Page 11, and that is exactly what happened.

Sandra Day O’Connor:

So are you arguing that the error was harmless?

Harold M. Coombs, Jr.:

It was a mere number of words that made absolutely no difference whatsoever as to what was admitted or not admitted at trial.

The only reason he wanted those prison guards to testify, the only reason he wanted the jailhouse visitor to testify was for purposes of predicting lay testimony, predicting future adaptability to prison.

John Paul Stevens:

What do you say about the opinion of the South Carolina Supreme Court that says that the convicted murderer’s adaptability to prison life is not a matter of any relevance to the sentencing proceeding?

Harold M. Coombs, Jr.:

Justice Stevens, that again goes to what the South Carolina Supreme Court has considered prison life to be.

For example, in State v. Plath, they don’t think that… they consider prison life to involve simply matters of personal hygiene or something along those lines, how often he showers.

John Paul Stevens:

Where does the opinion in Koon I make that differentiation between kinds of adaptability to prison life?

Harold M. Coombs, Jr.:

I don’t believe it does, Your Honor.

You have to read the whole series of cases.

John Paul Stevens:

You are reading the opinion, not anything in the opinion itself.

Harold M. Coombs, Jr.:

Not in the opinion itself.

John Paul Stevens:

But it is clear, is it not, that the judge apparently read his reference to what is not admissible is exactly the same thing the South Carolina Supreme Court said, that adjustability to prison life… they used the word adaptability instead of adjustability… is not an issue at the penalty hearing.

Harold M. Coombs, Jr.:

With one exception, Your Honor.

I don’t know on the record here whether the trial judge said anything about State v. Woomer.

State v. Woomer is an opinion of the South Carolina Supreme Court which had been published at the time of the instant case.

State v. Woomer–

John Paul Stevens:

The same day as Koon I, right?

Harold M. Coombs, Jr.:

–I believe… I know it had come out one day apart, roughly at the same time.

It does on to say that future… testimony concerning future nondangerousness is admissible.

Woomer holds that expert testimony predicting future conduct is admissible.

Specifically, that holds that expert testimony concerning future dangerousness is admissible.

It goes on to say that future… testimony concerning future nondangerousness is admissible.

The only–

John Paul Stevens:

That is a little different from adjustability to prison life.

Or do you say that is the same as adjustability to prison life?

Harold M. Coombs, Jr.:

–I think future nondangerousness could well be construed as being the same thing as future good conduct in prison.

John Paul Stevens:

Let me just put it this way.

In your view, is testimony directed at the issue of whether an inmate is adjustable to prison life admissible or inadmissible in South Carolina at a penalty hearing?

Harold M. Coombs, Jr.:

In the present case, it was admissible.

John Paul Stevens:

As a general proposition?

Harold M. Coombs, Jr.:

It is generally admissible so long as it concerns matters of consequence.

Harold M. Coombs, Jr.:

It is not admissible if it concerns simply how often he might take a shower in prison.

John Paul Stevens:

What was the evidence at stake in Koon I that was excluded?

What was the Supreme Court talking about there when it said this evidence is totally irrelevant?

Harold M. Coombs, Jr.:

I think it was talking about predicted future conduct, Your Honor, not taking a shower.

I don’t believe it concerned a shower.

I think it concerned… is probably as vague… I believe it is as vague as in the present case.

Simply testimony from lay witnesses concerning their predictions of future conduct.

John Paul Stevens:

Do you think that the Supreme Court of South Carolina knew what it was saying when it wrote that opinion?

They apparently say the trial judge didn’t know what he was saying.

Harold M. Coombs, Jr.:

I just read the opinions, Your Honor.

I don’t have any special insight into that.

Sandra Day O’Connor:

Counsel, wasn’t the evidence excluded in Koon I evidence of an expert?

Wasn’t it psychiatric testimony?

Harold M. Coombs, Jr.:

I believe, Your Honor, it was expert testimony, but it was–

Sandra Day O’Connor:

It wasn’t lay testimony.

Harold M. Coombs, Jr.:

–It was expert testimony, I believe, that was concerned with prison life, adjustability to this very vague, nebulous term, prison life.

And again I say the South Carolina Supreme Court considered prison life often to involve matters which are not relevant.

We believe that it is inescapable, and it is inescapable because this Court has said so in Jurek v. Texas, that every time a sentencing authority has jurisdiction, every time that it has discretion, it has to make some sort of inherent prediction concerning future conduct.

We submit that this has been taken into consideration by the State of South Carolina.

We feel that by limiting testimony, by excluding testimony of things that are not relevant, the jury sentencing discretion is properly focused.

We think the state has made a valid decision in focusing the attention of the sentencing authority in this case, and we would ask that the judgment be sustained.

Unless there are any questions–

Warren E. Burger:

Do you have anything further, Mr. Bruck?

David I. Bruck:

Yes, Your Honor, only two points which I would like to touch on very briefly.

One, I think it should just be mentioned that what the state now argues is the very core of this case, and their entire submission is a point never before raised by the state below.

It is not until the state came to this Court that it asserted for the first time that all that was being offered to cite what the record clearly shows is some sort of incompetent lay opinion testimony.

There was no reason for the state to make any such argument, because South Carolina law is so clear that the issue of future conduct in prison at least when the behavior is likely to be good is inadmissible as a matter of law and is categorically excluded.

That is what State against Koon said, the exact testimony that was excluded by the psychiatric witness, and it is contained in Justice Marshall’s opinion in Patterson versus South Carolina in Footnote 3.

The expert said, I conclude that Koon would be a very good risk for good adjustment in an institution, and a very low risk for assaultive or violent behavior in an institutional setting.

I don’t think that has anything to do with how often he would have taken a shower.

David I. Bruck:

Counsel for the state keeps saying over and over again in his argument that these various family witnesses were permitted to testify, and he notes that a written mitigating circumstance was submitted to the jury dealing with future conduct.

There are inconsistencies in the trial judges’ actions in this case, but there is a way of explaining all of them.

That which was objected to by the state was excluded.

There was no objection to the wife.

There was no objection to the defendant’s own statements on the witness stand, and therefore the judge let it in.

There was no objection to the written mitigating circumstance that was submitted.

Therefore the judge submitted it.

The problem with the written mitigating circumstance is, it had virtually no evidence to back it up.

The prosecutor is the one who made use of that bit of writing in the sentencing instructions, because he gave the prosecutor the opening for his extremely effective jury argument about, if you send this fellow to prison, he is going to rape other boy inmates in the jail, because that is the kind of inmate he is, and you know that based on what you know about him, and on this record.

That is why there was no objection.

I don’t think the trial judge was all that confused.

His trial judge made no sui sponte rulings that I am aware of during this entire… during this entire–

William H. Rehnquist:

Well, there is certainly some evidence of confusion in the transcript on Page 11, where counsel says I am offering it to prove what did happen, and the trial judge says, well, his answer is such, he indicates he still thinks it is being offered to prove future conduct.

David I. Bruck:

–Well, it is being offered to prove future conduct, his past conduct.

That is the reason–

William H. Rehnquist:

Well, yes.

I suppose you could say that, but I don’t think it is entirely fair to say that the trial court ruled absolutely consistently throughout.

David I. Bruck:

–The main point I really got to my feet again to make was simply in the answer to Justice O’Connor’s questions and the answers to Justice Steven’s question were not correct.

That the state gave the law in South Carolina could not be clearer that the issue of future good conduct in prison is inadmissible as a matter of law.

In this case, the South Carolina Supreme Court cited Koon I in saying that evidence of future adjustability or adaptability to prison was properly excluded.

A few months later, in State against Elmore, the case… the South Carolina court made an identical ruling based purely… in a case which involved only the exclusion of three prison guards who had had this man for two years, and when the South Carolina Supreme Court upheld the exclusion of that testimony, solely evidence that there is prior good conduct, the state court cited State against Skipper as their authority, so I don’t think there is any question about what South Carolina law is.

My last point that I would like to make is simply that the state in a… at the last moment said that the evidence here is harmless.

This Court has never suggested that an actual violation the rule of Lockett against Ohio, that an actual exclusion of relevant mitigating evidence can ever be… If there ever could be harmless error, that is to say, if a reviewing court were ever able to say with certainty that an error of this sort could not have affected the jury’s judgment, surely this is not the case.

For all we know based on this record, Ronald Skipper is on death row today precisely because of the argument that the state made which he was prevented from responding to with competent evidence and the state’s own jailers prepared, ready, and willing to testify on his behalf, and on that basis we submit that this death sentence may not be carried out consistent with the commands of the Eighth Amendment.

Thank you.

Warren E. Burger:

Thank you, counsel.

The case is submitted.