Texas v. McCullough

LOCATION: Hardwick's Apartment

DOCKET NO.: 84-1198
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 475 US 134 (1986)
ARGUED: Dec 10, 1985
DECIDED: Feb 26, 1986

Jeff Blackburn - on behalf of the Respondent
Randall L. Sherrod - on behalf of the Petitioner

Facts of the case


Media for Texas v. McCullough

Audio Transcription for Oral Argument - December 10, 1985 in Texas v. McCullough

Warren E. Burger:

Mr. Sherrod, I think you may proceed whenever you are ready.

Randall L. Sherrod:

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

At the outset I would like to go over a couple of facts that I think is necessary in the analysis of this important case.

First of all, Texas has a bifurcated trial system.

Prior to a trial a defendant has a right to elect whether a judge or a jury will assess punishment in a given case.

The respondent at his first trial in this case was tried by a jury and found guilty of murder, having previously filed an election to have a jury assess punishment.

The jury assessed punishment at 20 years' confinement.

Respondent filed a motion for a new trial with the same trial judge.

The motion was granted by that judge.

A second jury again found the respondent guilty of murder.

Prior to the trial a motion had been filed, this time alleging that the judge should be the one that would assess punishment, and of course we think that is very significant.

The same judge at the second trial assessed 50 years' confinement, and at the request of the defendant in this particular case the trial judge also entered specific findings of fact on why the 50 years' sentence was given by the court at the second trial.

Of course, I think from looking at the specific facts that we are discussing in this case, there's two rather general questions that need to be answered by the Court.

The first question is, does the due process clause of the Fourteenth Amendment require the presumption of vindictiveness enacted in North Carolina versus Pearce upon retrial of a criminal case, or do any of the following three areas that I would like to discuss render the reasonable likelihood of vindictiveness, as the Court has said, de minimis.

First of all, I think that the most important and the strongest allegation that the state has is the very fact that the defendant in this particular kind of case, pursuant to Texas law, has the absolute right to determine which sentencing authority will have the power to assess the punishment at the second trial.

I think that's extremely important.

When you're discussing that particular element of the question, I think it's important to recall Pearce and understand and Pearce basically stands for the proposition that punishment assessed upon retrial of a criminal case should not be set in a certain amount because of vindictiveness of the sentencing authority toward a defendant for exercising his right to appeal.

Vindictiveness, as the Court has said, should have no place in setting punishment upon retrial.

A presumption of vindictiveness in Pearce was established because of the possible chilling effect a retaliatory motive could have upon a defendant's exercise of his legal right to appeal.

The presumption of vindictiveness is not required solely because of the possibility of a greater sentence that may possibly be assessed upon retrial.

Neither does the possibility of vindictiveness alone require a presumption of vindictiveness.

The presumption of vindictiveness has been held to apply only where there is a reasonable likelihood of vindictiveness, and I think when the Court looks at Colton, Caffin, Bordenkercher and Goodwin, that that's the interpretation that would now stand concerning the Pearce presumption of vindictiveness.

The presumption of vindictiveness was enacted by this court to protect against the chilling effect of retaliatory motivation in assessing punishment when a defendant has basically exercised his right to appeal, not the fact that vindictiveness may occur, but for the retaliatory vindictiveness that may occur by a trial judge at a second trial.

When we look at the most common application of Pearce, I think the validity is still there.

You take a situation where a defendant is tried the first time and a trial judge assesses punishment, and you take the fact that he exercises his right of appeal and that he receives a second trial.

When you consider the fact that if the judge assesses punishment greater than what he assessed at the first trial, there's only two reasonable reasons that the Court should consider motivated that increase, in sentence.

Of course, the first one is obviously that he was retaliating against the defendant for exercising his right of appeal.

The second option may be that the second trial has brought to light additional evidence that may in fact justify an increase in the punishment.

Now, the rationale in Pearce and those particular cases is still very valid, and there's a reason for it and it still applies, and that reason is that if in fact there was no retaliatory motive, it's not too difficult for the Court to place a list of those reasons upon the record.

So, under those facts--