Spaziano v. Florida

PETITIONER:Spaziano
RESPONDENT:Florida
LOCATION:The D&B Corporation

DOCKET NO.: 83-5596
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Florida Supreme Court

CITATION: 468 US 447 (1984)
ARGUED: Apr 17, 1984
DECIDED: Jul 02, 1984

ADVOCATES:
Craig S. Barnard – on behalf of the Petitioner
Mark C. Menser – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 17, 1984 in Spaziano v. Florida

Warren E. Burger:

Mr. Barnard, I think you may proceed when you’re ready.

Craig S. Barnard:

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

Mr. Spaziano is before the Court for review of a death sentence imposed by the State of Florida.

The questions presented here involve whether the procedures that were followed were adequate to assure reliability of either the guilt determination or the penalty determination.

Despite the evidence and the verdict, Mr. Spaziano may or may not be guilty of first degree murder.

This is so because the jury was not given options in its guilt deliberations.

The one option that the jury did have, the sentencing verdict it did choose to exercise, and that was overriden by a judge that was not… the judge that was not privy to the guilt deliberations of the jury.

The death sentence in this case thus results from–

Warren E. Burger:

Well, when you say the judge was not privy, the judge was there when the penalty jury took place, was he not?

Craig S. Barnard:

–My point was simply that the judge was not a part of the guilt deliberations, and that–

Warren E. Burger:

Well, of course, the judge never is, is he?

Craig S. Barnard:

–That’s correct.

Warren E. Burger:

And the jury… I see your point.

Craig S. Barnard:

Well, there are dual constraints on the power of the jury’s decisionmaking here.

There were constraints in the guilt phase on the jury’s ability to evaluate the defendant’s culpability in any reasonable manner.

The question here is whether, in the guilt phase, the jury must be given more than two options; or, if not, must the jury… the jury’s verdict for life in the second phase at least be accorded finality.

Warren E. Burger:

If you prevail in this case, counsel, what’s the consequence of your prevailing?

A new trial?

Craig S. Barnard:

I believe a new trial is appropriate under Beck.

Warren E. Burger:

On the imposition of a life sentence.

Would that be of any–

Craig S. Barnard:

The imposition of a life sentence, I believe, would be at least how far the relief had to go.

The question as to whether a new trial is required was not settled in Beck, but the logic of Beck would indicate that a new trial is required, because the harm in Beck was the harm of a distorted fact finding at a time when the defendant’s life was at stake.

John Paul Stevens:

–Mr. Barnard, you’re arguing two quite separate points, though, aren’t you?

That wouldn’t be true of both of your points, would it?

You have a lesser included offense argument, as I understand it, and also you argue that the jury should not have been overridden on the penalty phase.

Craig S. Barnard:

That’s correct.

John Paul Stevens:

As to the latter, you wouldn’t want to get a new trial, would you?

Craig S. Barnard:

No.

But the first issue is the Beck issue.

Craig S. Barnard:

It involves an application of the Court’s decision in Beck v. Alabama.

The Court held in Beck that the death sentence, very simply, may not be imposed, consistent with the Constitution, where it is imposed after a verdict of quilt of a capital offense, where the jury had no other options other than acquittal.

The Court reasoned that such a situation puts pressure on the jury, if you will, that threatens the efficacy of the reasonable doubt standard in that guilt determination, so much so that in a capital case, that risk can’t be tolerated; that the risk of an unwarranted conviction is just too great.

Therefore, in Beck, where the Alabama legislature had passed a statute preventing the jury from considering lesser offenses, that procedure was held to be unconstitutional.

Similarly, in Keeble, where the Court was faced with the prosecution of an Indian, and there was no jurisdiction in the lower court over lesser offenses for an Indian, the Court determined that nevertheless there was error.

So it is the unavailability of the–

Harry A. Blackmun:

And what was the result in Keeble, do you know?

Craig S. Barnard:

–I do not know.

The final result?

It was remanded.

Harry A. Blackmun:

I suppose the inference is that the Federal Court, despite the lack of jurisdiction, could find him guilty, try him and find him guilty of the lesser included facts.

He didn’t go free.

At least there is nothing… or did he?

Craig S. Barnard:

I do not know that.

It may have been… I do know that the Court here has since held that it did not decide the question of jurisdiction in Keeble.

Harry A. Blackmun:

I take it here, there was no request for lesser included offense instructions, in your case?

Craig S. Barnard:

Well, they never got to the point of the request, because the statute of limitations had run.

The only way that there could have been instructions is if there were no statute of limitations.

William H. Rehnquist:

But you’re now saying that there should have been such an instruction, I take it.

Craig S. Barnard:

Yes.

William H. Rehnquist:

And would you have had the judge charge the jury on the elements of the offense, and also tell the jury that the statute of limitations had run, and that no judgment could be entered on the verdict if they returned a verdict of that kind?

Craig S. Barnard:

No, I don’t believe it would, because the situation would be the same result as Beck.

William H. Rehnquist:

Then you’d have the judge charge the jury, and give the jury the impression that the defendant could be sentenced if they returned a verdict on the lesser included offense, even though, in fact, the defendant couldn’t be sentenced.

Craig S. Barnard:

Well, the jury would be doing precisely what the jury is doing, what it is supposed to do… excuse me.

See, our position is premised on the fact that a jury is the fact finder that returns a verdict and tells us essentially what offense has occurred.

And the statute of limitations, especially in Florida, is a separate legal decision that the judge can make.

It is made, most of the time, by a judge, not by a jury.

William H. Rehnquist:

Well, but if the theory of a lesser included offense charge is that the jury may be willing, in a doubtful case, may be willing to find someone guilty of a lesser included offense rather than a greater offense, if they think they have that option, rather than just the option between acquitting and finding guilty of the greater offense, isn’t it a little inconsistent to give the jury the impression that they can return a verdict of guilty on this lesser offense, and that there will be punishment for it when, in fact, there can’t be any?

Craig S. Barnard:

My answer is that I believe that it would not mislead the jury to instruct on the lesser offenses, because if the jury were instructed on the offense… the lesser offenses… determined, as juries do, what offense has been committed, and if it was the lesser offense, it would be doing precisely what a jury should be doing.

The judge would then determine the statute of limitations.

Craig S. Barnard:

But there are other options.

If it is believed that that would mislead the jury too much, the State has other options, one of which is to change its statute of limitations, which, incidentally, Florida has since done.

There are a number of options to get around the harm identified in Beck, which is simply the unavailability to that jury of the lesser offense.

Harry A. Blackmun:

And another of which is to indict sooner than it did.

Craig S. Barnard:

Indict sooner.

The State–

Harry A. Blackmun:

Certainly, if the statute weren’t present, your client would have been entitled, I take it, to the lesser included offense instructions.

Craig S. Barnard:

–Yes.

That is absolutely clear in Florida law.

Yes.

Warren E. Burger:

Was he asked to waive the statute of limitations?

Craig S. Barnard:

Yes.

And he did not want to waive the statute of limitations, and did not.

Sandra Day O’Connor:

Is there any role in Florida for the jury to make determinations in connection with the statute of limitations defense or point?

Craig S. Barnard:

Yes.

Juries can make… by their decisions, do speak to the statute of limitations in some cases.

It’s a jurisdictional–

Sandra Day O’Connor:

Is that only if there’s a factual dispute in connection with it?

How would the jury be involved in determining the statute of limitations issue?

Craig S. Barnard:

–If, for example, the statute of limitations… the offense was alleged to have occurred over a period, before the end of the statute and the period ended after the statute… what would be submitted to the jury would be just the period that fell within the statute as the charge on the offense.

It would be submitted to the jury in that way, not so much as a statute of limitations, but as just something that the jury–

Sandra Day O’Connor:

But the court itself would determine, as a matter of law, whether the statute had run.

Is that correct?

Craig S. Barnard:

–The court could determine it separately, yes.

The jury is told about time, but the court can determine it.

The cases cited by the State in their brief, in fact, are the courts determine the factual questions regarding the statute of limitations.

Warren E. Burger:

Are you suggesting that there is any possibility that if this instruction had been given and the verdicts had been returned on the lesser included offense or offenses, that he could have been sentenced on them?

Craig S. Barnard:

Not on the record that we have now.

Warren E. Burger:

No, of course not.

Craig S. Barnard:

But maybe the record… maybe there is something that we don’t know.

Warren E. Burger:

Well, the statute of limitations had either run or it hadn’t, and that was not difficult to determine with the aid of a calendar, was it?

Craig S. Barnard:

Well, it can be told by certain things, none of which are a matter of record here, and I don’t want to suggest to the Court that they are.

I am just saying that there are a number of determinations that could have been made that weren’t.

Byron R. White:

In Florida, suppose the instruction had been given and the jury had found guilt of a lesser included offense.

Would the jury in Florida… the jury then do that sentencing?

Craig S. Barnard:

No.

If there had not been a statute of limitations problem, no, the jury does not sentence.

Byron R. White:

Who does?

The judge does?

Craig S. Barnard:

Less than capital, yes, the judge sentences.

I think very clearly here, that the lack of a third option enhanced that risk of an unwarranted conviction in this case.

The record is quite easily viewed as demonstrating precisely what the Court predicted in Beck did actually come true.

The jury had a great deal of time wrestling with its two-option dilemma.

It deliberated it over a number of hours and there was judicial interruption, asking the jury if it could reach a verdict.

There finally was a reported deadlock and an Allen charge, and shortly thereafter we had the verdict.

Only after being dynamited was there a verdict.

And then, in contrast, when it got to the penalty trial, the jury rendered a very quick verdict for life imprisonment.

Those, I think, indicate–

John Paul Stevens:

Does the record tell us what the vote of the jury was on the life sentence?

Craig S. Barnard:

–I cannot tell you the vote.

It’s not a matter of our record, that I know of.

Warren E. Burger:

Well, under Florida law, would it be lawful, would it be possible to know, unless the jury foreman reported it affirmatively to the judge?

Craig S. Barnard:

It is–

Warren E. Burger:

Ordinarily, a judge instructs the jury foreman not to disclose the exact vote.

Craig S. Barnard:

–That’s correct.

In this case, however, the judge was going to poll the jury, and then they all decided not to, I guess, not to embarrass the jury.

So we might have known, had they not changed their minds.

John Paul Stevens:

Let me ask just one other question, because I don’t remember.

Under Florida law, for them to recommend life, what vote is required?

Does the majority have to vote in favor of life?

Craig S. Barnard:

The jury was instructed that it was a majority.

Currently, it’s only 6-6, the current practice in Florida is life.

It would take 7 for death and 6 for life under the current practice, but then–

John Paul Stevens:

At that time, it took 7 for life, at least.

Craig S. Barnard:

–Right.

So our position, very simply, is that the evil of unreliability predicted by Beck case true here.

The jury was deprived of the opportunity of fully evaluating the weight of the evidence in any reasonable manner, for precisely the reasons the Court said in Beck, the pressures that this Court identified in Beck.

Harry A. Blackmun:

Mr. Barnard, are you making any claim that the State purposefully delayed this case until the statute of limitations had run on the lesser offenses?

Craig S. Barnard:

We are making a claim, not as to intent so much, as to the possibility of intent.

I–

Harry A. Blackmun:

Would your case be different if you could prove that?

Or does the State have the right to do it?

Craig S. Barnard:

–I just don’t know.

If the State intentionally waited until after the statute of limitations, I think that the argument would be stronger, but nevertheless, I think under the facts of this case, which is–

John Paul Stevens:

Why would it be any stronger?

All you have to do is waive the statute.

I mean you could protect yourself from that.

Craig S. Barnard:

–Could, but that’s a penalty.

That’s a very harsh penalty for–

John Paul Stevens:

It just cancels out the delay is all it does.

I don’t see any harsh penalty about that.

If they’re deliberately delaying so that you’ll have a defense you wouldn’t otherwise have, then you waive the defense, it seems to me you’re back where you started from.

Craig S. Barnard:

–I think I understand that.

In this case, I think it’s important to know, however, that there was only a three-week delay, and that the State of Florida had, according to its records, our record, had known for a year about Dilisio’s allegations here… the complaining witness… had known for a year about them, and so we’re left, I guess, with an unresolved record, but one that certainly could be interpreted as indicating intent.

The second issue presented is the second issue or the second prong of the constraints on the jury’s decisionmaking ability.

The second issue is a narrow issue, an issue that concerns a narrow aspect of the Florida statute, the Florida capital sentencing statute.

And it is simply whether a trial judge may disregard a jury sentencing verdict after a sentencing trial, a verdict that is in favor of the defendant.

Warren E. Burger:

When the state legislature, as apparently the Florida State Legislature has done, gives the judge that power, are they not saying in so many words that the jury is permitted to make a recommendation to the judge for whatever use the judge wants to make of that recommendation.

Isn’t that what it amounts to?

Craig S. Barnard:

Well, to answer that two ways.

Craig S. Barnard:

First of all, Florida didn’t make such a decision.

Florida’s decision–

Warren E. Burger:

Isn’t that the effect of it?

Craig S. Barnard:

–It may be the effect of it, but the essential question that we’re presenting is whether that’s appropriate for the Court, constitutional for the legislature to do.

That is the question that we’re presenting.

Warren E. Burger:

Well, what if the legislature had, in so many words, expressly said the jury, at its option, may recommend to the judge the sentence to be given, but the judge shall have sole and final power?

Would you have any problem with that kind of a statute?

Craig S. Barnard:

Under the arguments that we’re presenting, yes, I would have a problem with that statute.

Our position is that the Eighth Amendment standards, as well as those standards being guided by the Sixth Amendment, require that there be jury’s input.

The unique nature of the capital–

Byron R. White:

I take it your position is that a judge should never be entitled to sentence anybody to death: that the jury in a death case… it always has to be the jury that is given the sentencing authority.

Isn’t that your position?

Craig S. Barnard:

–Our position probably will boil down to that, but the question that we have before the Court is whether, if there is a jury, may the judge overrule it.

Byron R. White:

I know that’s the question, but your submission really is that the judge should not be able to sentence a person to death.

Craig S. Barnard:

Well, yes.

Under the Eighth Amendment, that is our contention.

Under the Fifth Amendment, the Bullington, that would not be our contention.

But that involves different considerations.

Harry A. Blackmun:

Of course, as you know, jury sentencing is not the uniform rule of this nation of ours.

There are a lot of states where juries don’t sentence at all.

Craig S. Barnard:

Yes, but I think we need to examine that a little.

The vast majority of states require jury sentencing in capital cases.

There are only… there are 38 states currently with capital punishment; 31 of those states–

Harry A. Blackmun:

Your theory would outlaw judge sentencing in all crimes, wouldn’t it?

Craig S. Barnard:

–In all crimes?

I don’t believe so.

Our focus is on the unique nature of the capital sentencing decision; that capital sentencing brings considerations that are not controlling in non-capital cases.

Non-capital cases are concerned with rehabilitation and various aspects that the capital sentencing decision is not.

William H. Rehnquist:

Is your argument, Mr. Barnard, that for a special theory in capital cases, that the jury is a more reliable sentencer, or that you have to have perhaps both a judge and jury agree?

I am not sure which it is.

William H. Rehnquist:

Do you understand my question?

Craig S. Barnard:

Yes.

It is very simply that a judge may not impose a death sentence after a jury has ruled in favor of the defendant on that sentence, if the jury imposes life.

William H. Rehnquist:

What if Florida set up a system that just said the jury shall find on the question of guilt and innocence, and then will have another trial, and that will all be before a judge on whether the death penalty should be imposed?

That would not offend your theory.

Craig S. Barnard:

That there was no jury at all involved?

William H. Rehnquist:

Well, that the jury found the person guilty of first degree murder or capital homicide whatever the state called it.

But then all the sentencing trial was conducted before a judge, without a jury.

Craig S. Barnard:

The sentencing decision, under our Eighth Amendment analysis and Sixth Amendment analysis, would have to be by a jury.

William H. Rehnquist:

So it’s the jury factor, and not the kind of two bites at the apple factor you’re arguing for.

You’re not arguing that both a judge and a jury must concur.

Craig S. Barnard:

We’re arguing, in the alternative, of course, that Bullington at the very least says that a judge could overrule a jury if there is a jury involved.

William H. Rehnquist:

Well, I thought Bullington was just describing the Missouri procedure.

I didn’t think that it said that, as a matter of constitutional procedure, a judge had to be permitted to overrule a jury.

Craig S. Barnard:

No.

Under double jeopardy principles, which is at the base of Bullington, which that’s the Bullington decision, whether a jury’s verdict of a life sentence must be final, and that’s what the Court held, and that’s what we are urging here.

William H. Rehnquist:

Yes, but what if a jury didn’t return anything except the verdict on whether the person was guilty of the offense, and then the sentencing was turned over to a judge?

You still say that could not be done.

Craig S. Barnard:

That’s correct.

Sandra Day O’Connor:

You are aware that a number of states do that precise thing, and have a judge determine the sentence in a capital case at a separate hearing, with no jury determination.

Craig S. Barnard:

Yes.

There are–

Sandra Day O’Connor:

And it’s your position that all those states are operating under unconstitutional procedures.

Craig S. Barnard:

–There are four states currently.

And our position, we would think, would counsel that yes, a jury is necessary for the capital sentencing decision, at least under the Eighth Amendment.

That question, of course, is not presented.

We have not briefed it that way, but I think that that’s the logical conclusion.

Yes.

John Paul Stevens:

You said there are four states with a jury… with an override provision?

Craig S. Barnard:

Not with… oh, I’m sorry.

Craig S. Barnard:

With a judge only sentencing, where a jury is not involved at all.

John Paul Stevens:

There are four states.

How many have an override provision, as Florida does?

Craig S. Barnard:

Three.

John Paul Stevens:

So there are a total of seven states in which the jury does not actually make the decision, or is there a double-counting in there?

Craig S. Barnard:

No.

There are 38 total, 31 that require a jury’s consent for death.

John Paul Stevens:

And of those 31, in how many must the jury be unanimous?

Craig S. Barnard:

I have it in our appendix here.

John Paul Stevens:

Well, never mind.

I’ll find it if it’s in the papers.

Craig S. Barnard:

The number is there.

It’s 27, I think.

John Paul Stevens:

What’s your basic theory?

I kind of know what you want to win, but I don’t really understand what your theory is.

Why should the jury make this determination, under your view?

Craig S. Barnard:

At bottom, it’s because of the uniqueness of the death sentencing decision.

John Paul Stevens:

Does it have anything to do with the different theories of punishment that are at stake in the death case, as opposed to other cases?

You don’t sees awfully enthusiastic about your position, to be very candid with you.

I don’t really understand your argument from what you said orally.

Craig S. Barnard:

I am enthusiastic about our argument.

Our argument, very simply, follows the methodology of the Court, which is the Eighth Amendment testing the contemporary values.

And you can see, since the mid-19th century, the constant move towards jury sentencing.

And then, looking now at what’s going on, it is still jury sentencing, and the states did not move away from jury sentencing, including Florida, that had jury sentencing for 100 years, until the Court’s decision in Furman, suggesting, as it was suggested in Woodson v. North Carolina, that the states were not reacting in any judgment about whether a judge or a jury was a better sentencer, but simply trying to retain the constitutionality of the statute after Furman.

So our decision or our argument is, first, that the Eighth Amendment, tested by the evolving standards, requires it and that the Court’s independent assessment also should counsel that way, because the death decision is different.

It requires the conscience of the community.

The Court has repeatedly emphasized that the death penalty is an expression of moral outrage, that it is retribution that is at issue, and that can only be set by a jury.

Warren E. Burger:

Well, it isn’t just retribution.

It’s also deterrence with respect to the rest of the community.

Craig S. Barnard:

Deterrence is relevant for a legislature when it is deciding whether to pass a statute or not.

Craig S. Barnard:

It’s not, I don’t believe, relevant at the sentencing phase, selecting who is going to die, because that type of an issue is directed towards other people, not towards the uniqueness of the particular individual themselves.

Byron R. White:

Well, I suppose the irony of your position, if you really mean it, is that a judge would never have a role in whether or not to impose a death penalty, and if the jury imposed the death penalty, he could not override that decision.

Craig S. Barnard:

No, I don’t think that’s the result, any more than it would be the result in an acquittal.

Byron R. White:

Well, you say that the jury is the sole sentencer under the Eighth Amendment.

What business has a judge got overruling them?

Craig S. Barnard:

Well, the analogy is to trial and guilt.

A judge cannot overrule a jury’s verdict for the defendant, but can–

Warren E. Burger:

Well, are arguing that a judge should have the power to overrule the jury only one way?

That is, if the jury makes the wrong decision.

Craig S. Barnard:

–I don’t think I could argue that.

I don’t think it is either constitutionally required that the judge overrule death, or that it’s constitutionally prohibited.

I mean if it were, there would be a number of states that would be unconstitutional either way.

I think Florida can make that choice.

And if I could, I’d like to reserve the remainder of my time.

Warren E. Burger:

Very well.

Mr. Menser.

Mark C. Menser:

Mr. Chief Justice, may it please the Court.

Mr. Spaziano has presented three claims here today.

The first, of course, is the claim that he’s entitled to some relief from his tactical decision at trial to send this case to the jury on an all-or-nothing basis.

I think, in addressing this issue, we have to start right off by discovering who did what to whom here.

And the fact is that it was Mr. Spaziano who went to the Court, who said to the judge, if I did this thing, I ought to be killed, and then whose attorney went to the jury in closing argument, and he said, look, folks, here’s this man accused of first degree murder, here’s this man who’s accusing him.

And then he said, in a classic golden rule argument, he said would you want your life in the hands of Mr. Dilisio, who is a drug user and a reprobate, and who knows what else?

It was a very strong argument.

It led to the jury being out for a great length of time before returning a guilty verdict, but the fact is, it was Mr. Spaziano’s strategic choice to hit the jury right between the eyes with this argument.

And, having gambled and lost, he wants another roll of the dice up here.

And we don’t think it’s fair to the State of Florida to have constant retrials while defendants tests their alternate defense theories.

And that’s basically what they’re asking for here.

The statute of limitations defense is not a constitutional defense.

It is a statutory defense.

It was set up by the State of Florida, and it was placed in the hands of defendants in criminal cases to use as they see fit.

Mark C. Menser:

That’s the whole thing.

Mr. Spaziano chose not to use it.

Somebody else might choose to use it.

The very fact that he can use it as a bargaining chip does not render constitutionally suspect this proceeding, any more than a waiver of speedy trial would, or a guilty plea would, where he would waive his right to jury trial.

There is simply no constitutional problem here.

Mr. Spaziano, in fact, thought so little of this argument that he didn’t even appeal it to the Florida Supreme Court.

What he did was, he filed his brief, and then when the Beck decision cane out, he sent it up as supplemental authority.

So it didn’t even dawn on him that his rights had been so horrendously violated until someone told him about it.

On the jury override question, we would submit right off the bat, this is not a jury override case.

There was a Gardner remand here.

The first time this case cane up for cert to this Court, the Florida Supreme Court had decided to remand the case for resentencing pursuant to Gardner, because what had happened was, the original trial jury was not told that Mr. Spaziano had committed three other murders, four bombings, and then had raped a girl in Orlando and cut her eyes out so she couldn’t testify against him.

And there were some other cases where his fellow members of the Outlaws Motorcycle Gang had scared off the witnesses.

John Paul Stevens:

But, General Menser, isn’t it true that all those things could have been presented to the jury at the first hearing?

Mark C. Menser:

Yes.

The trial judge was under the mistaken impression that he could not tell them about it.

John Paul Stevens:

But did the prosecutor try to submit those to the jury?

Mark C. Menser:

No, he did not.

John Paul Stevens:

So I mean, isn’t this sort of the other side of the coin on the first point?

They had a fair opportunity to present it to the jury, and elected not to do so.

Mark C. Menser:

No, because in this particular case, the trial judge had ruled, at least as to the–

John Paul Stevens:

But ruled erroneously as a matter of Florida law.

Mark C. Menser:

–Correct.

That the issues could not be presented to the jury because he felt that since the one rape conviction was on appeal, that–

John Paul Stevens:

But he was wrong.

Mark C. Menser:

–So he was wrong.

John Paul Stevens:

So it seems to me you kind of want it both ways.

You can’t say the jury didn’t have a fair… you know, they considered everything the State submitted to them.

And if the State didn’t submit more evidence, I don’t know how you can say that the jury didn’t have a fair opportunity to judge the question of life or death.

Mark C. Menser:

When I presented this argument, in the context of it, it’s why there was a Gardner remand, not necessarily what was fair.

What we have in this case is a situation where the jury has rendered, as far as the State is concerned, the worst possible decision, okay, or advisory sentence.

Mark C. Menser:

They have recommended life.

That’s the bottom line.

That’s the most they could do.

What we’re concerned with here is the fact that that was not the proceeding which led to Mr. Spaziano being sentenced.

John Paul Stevens:

Well, he was sentenced to death in that proceeding also.

Mark C. Menser:

But that set aside and remanded, pursuant to Gardner.

When he was actually sentenced, there was no jury there.

It was a straight proceeding before the judge–

John Paul Stevens:

The net result is that the trial judge overruled the jury twice.

The jury recommended life, the only opportunity it had to pass on the question.

And the judge overruled that.

Mark C. Menser:

–We don’t know that the jury… what the jury would have done in the second sentencing.

John Paul Stevens:

Well, you can’t blame the defendant for that, can you?

Mark C. Menser:

No, but I can give the judge one, but I won’t hang two on him.

I think that he overrode the jury one time.

John Paul Stevens:

All right.

But still, that’s the issue in the case as to whether that’s constitutionally permissible.

And I understand you, of course, think it is.

Mark C. Menser:

Well, no, we don’t; because, quite frankly, the jury doesn’t sentence the man anyway.

The question was asked, when counsel was arguing about whether the Florida statute has a jury sentencing or a mere advisory sentence, counsel has indicated that he thought it was a sentence.

But the statute is very clear, the section… Florida Statute 921, 141(b)… I’m sorry… 2… is titled Advisory Sentence by the Jury.

And Proffitt and Barclay make it abundantly clear that the jury doesn’t sentence anybody.

This is a straight sentencing by the judge.

It’s in compliance with the Constitution, and we really have no problem here.

Byron R. White:

Well, your opposition says that a jury do the sentencing in this case, and if Florida purports to put the decision in the hands of a judge, it’s wrong, it’s not complying with the Constitution.

What have you got to say about that?

Mark C. Menser:

Well, Mr. Justice White, we have 200 men on death row.

We have 80 cases where the judge erred in overriding the jury verdict, and we have 120 cases where the judge blindly followed the jury and refused to exercise his discretion and superior abilities, okay.

The argument just doesn’t have any merit.

The fact is that Florida is a very unique state.

Mark C. Menser:

Mr. Spaziano may be happy going with a jury decision in Orlando or Seminole County, which is rather urban, but I guarantee you, if you put him in Ocoee or Apalachicola or Ku Klux Klan country somewhere, he’ll be thanking God every day that there was a judge there to override the jury.

So it’s just a specious argument.

John Paul Stevens:

May I inquire?

You say there are 120 cases where the judge followed the jury’s recommendation or advisory verdict of death, and 80 where they overrode.

How many are there in which the judge or jury recommended death, and the judge overruled and gave life?

Mark C. Menser:

That, I don’t know.

I’m sorry.

When the judge enters a life sentence, they do not have the automatic review by the Supreme Court of Florida.

When there is a life sentence, it would just go to a District Court of Appeal which would make the final determination.

John Paul Stevens:

So, in effect, the way it seems to work out is if the jury recommends death, it’s going to be death.

And if the jury recommends life, there may be a second opportunity for the State to impose the death sentence.

Mark C. Menser:

No.

In fact, this Court observed in both Proffitt and Barclay, that the Florida Supreme Court has rejected almost 80 percent of the jury overrides where death has been imposed.

And, in cases where the jury has recommended death, we don’t know how many times the judge has given life.

But we have to assume it happens.

William H. Rehnquist:

Those statistics you were citing were just from the people on Death Row who, I suppose, by definition, end up with a death sentence.

Mark C. Menser:

Correct.

That’s the long and the short of it, unless the Court has any particular question.

John Paul Stevens:

Well, let me ask you this question about it, because I am somewhat interested in the question whether it’s appropriate to impose a death sentence when the jury has apparently unanimously recommended life, which is fair to infer, I think, from the promptness with which they acted here.

What is the rationale for the death penalty, for Florida’s death penalty?

Is it rehabilitation?

Mark C. Menser:

Well, we do know that no one who’s received it has ever broken the law again.

But the fact is that… not to be facetious… but the fact is there are three prongs, okay.

There is the fact that society has to be protected.

In Mr. Spaziano’s case, perhaps 12 murders, 4 bombings, who knows how many rapes, okay.

John Paul Stevens:

But they would not be protected by incarceration for life, without possibility of parole, for example.

Mark C. Menser:

No, because the murders go on in prison, and there is a real and present danger to prison guards and other inmates.

The second one is the deterrence factor.

We do know that… well, we’ll never know how many people don’t commit murder because they might get the chair.

We do know, again, that the recidivism rate for executed prisoners is zero, and that… and if one life is saved that way, that’s fine with us.

Mark C. Menser:

It’s worth it.

And the third factor, of course, is so miniscule as to be nonexistent, but counsel refers to the retribution factor, which it’s discussed, but I personally don’t accept it.

Basically, it’s the protection of society and the prevention of future murders.

John Paul Stevens:

You don’t think retribution is a significant factor in Florida’s scheme?

Mark C. Menser:

I don’t… I don’t really see how.

I mean maybe if I was on a jury and got all worked up about some guy, maybe I would want to get even.

But I just can’t make that decision for someone else.

It’s there, I’m sure, but I just don’t know how important it is.

If I might digress, there was an article recently… there was a column by Jim Kilpatrick, regarding the fact that the federal system does not have a death penalty, and how two prisoners here in Washington, D.C. were trying to get into the Aryan Brotherhood, and to get in they had to kill somebody.

And all that could happen to them… they killed two prison guards in the space of an hour… and all the Federal Government could do was return them to their cell, because they were already under a life sentence.

This is what I mean when I say that we look at it in terms of protecting society, including the society within the prison walls.

Warren E. Burger:

This is why some penologists have said that the death sentence should be imposed for prisoners, life prisoners who commit a murder within the prison or in the process of escape… limiting the death sentence to that narrow category, because there is no other deterrence on them.

Mark C. Menser:

That could be.

If we have someone who managed to get himself a life sentence and then kept on going, yes.

Harry A. Blackmun:

Do you have any comment as to why the indictment here was delayed?

Mark C. Menser:

Your Honor, the bodies were discovered by some strangers in 1975.

There are actually two bodies that were discovered, but only one that they could piece together.

Mr. Spaziano’s modus operandi was to dismember his victims while they were still alive, and then scatter the parts.

They could not find any evidence directly linking Mr. Spaziano to the crime.

The prosecution did not commence from the record, only because they did not have enough information to get an indictment or information until the time they finally did.

They had Mr. Dilisio’s ramblings in the jail, but I would agree with the defense; he was not the most reliable individual in the world.

I wouldn’t go and put someone in jail on a first degree murder charge, just based on something he said, without getting some corroboration.

It was not our fault that Mr. Spaziano avoided arrest for two years, and he shouldn’t benefit from it.

Now, under the old… this case came up under Florida’s old limitations statute.

Under the new statute, the limitations problem would not exist, because when a defendant avoids arrest, the statute of limitations is told.

But, unfortunately, this was under our old statute where, if you just hid out for two years, you could get away with murder.

That’s all I have.

Warren E. Burger:

Very well.

Do you have anything further, counsel?

You have two minutes remaining.

Craig S. Barnard:

Very briefly, just to clear up some facts.

Justice Stevens’s question regarding overruling a death verdict, judges overruling a death verdict… those statistics are not kept, but there are some indications in our certiorari petition… the petition itself… we had attached an appendix which set out some of those statistics from data done by… collected by Linda Foley, Professor Foley, who has done a study.

That data reports… and again, it’s set out in the certiorari petition appendix… that where death is involved, either the jury or the judge is thinking about death, or has decided on death, the disagreement is about 6 percent the judge would impose life or the jury would impose death; in 28 percent, where the jury would impose and then the judge imposes death.

So the disagreement is quite vast there.

About avoiding detection, that is, of course, not true.

The… all that’s required in Florida is that the State file an arrest warrant, and that tolls the statute of limitations, so there is absolutely no indication in this record at all that Joe Spaziano was avoiding detection.

We would ask the Court to require a new trial under Beck v. Alabama or to require the imposition of a life sentence consistent with what the jury has said.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll hear arguments next in ARCC against the State Tax Commissioner of Virginia… West Virginia.