Whitmore v. Arkansas – Oral Argument – January 10, 1990

Media for Whitmore v. Arkansas

Audio Transcription for Opinion Announcement – April 24, 1990 in Whitmore v. Arkansas

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William H. Rehnquist:

We’ll hear argument now in Number 88-7146, Jonas Whitmore v. Arkansas.

Mr. Allen.

Arthur L. Allen:

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

On February 10th of 1989 Ronald Gene Simmons was convicted of capital murder and sentenced to death by a lethal injection in the State of Arkansas.

His execution date was set for March 16th of 1989, approximately five weeks after his conviction.

Mr. Simmons expressed a desire that no appeal be taken in his case and that the sentence of the jury be carried out as ordered.

There was an intervention filed, as had been done in a previous sentence of death rendered against Mr. Simmons in the earlier case which we’ve called in our brief Simmons I for clarity.

The Arkansas Supreme Court ruled upon the question of the constitutionality of a mandatory appellate review in a death penalty case.

With a rather cursory look at some of the opinions of this Court, notably Gregg v. Georgia, Jurek v. Texas, Proffitt v. Florida, the Arkansas Supreme Court found no constitutional requirement of an appellate review.

And that trial and conviction occurred in 1988.

The trial in February of ’89 had no appellate record made, no… or no transcript prepared for appellate review.

There was, in accordance with ruling of the Arkansas Supreme Court, a hearing held in the trial court level to determine Mr. Simmons’ competency to waive appellate review.

He was examined by a psychiatrist at the Arkansas State Hospital and was determined to be competent to make that waiver.

Although in a later hearing there was some reservation expressed by the examining psychiatrist concerning some more recent expressions from Mr. Simmons that may have expressed a degree of mental disorder, neither the trial court nor the reviewing court on appeal found these to be significant enough to make his waiver involuntary.

William H. Rehnquist:

Mr. Allen, you represent Jonas Whitmore in this case?

Arthur L. Allen:

Yes, sir.

William H. Rehnquist:

And what is Mr. Whitmore’s standing before this Court?

Arthur L. Allen:

Your Honor, his standing is predicated upon several things.

In the State of Arkansas, although not constitutionally required to do so, our supreme court has committed itself since the 1970s to a system of comparative review in death penalty cases.

In other words, they have taken the issue that this Court looked in Pulley v. Harris and made it a part of state law to say that in each death penalty case they will review that individual’s crime against other capital cases in the State of Arkansas.

In this instance, the state has not put Mr. Simmons’ conviction and the attendant facts within that data pool that Mr. Whitmore is to be compared against.

William H. Rehnquist:

But hasn’t Mr. Whitmore’s conviction already been affirmed?

Arthur L. Allen:

It has… it has been affirmed on direct appeal.

It has been affirmed in state post-conviction proceedings, which have now been abolished in the State of Arkansas, at… and is currently in federal habeas.

At the state post-conviction stage, the State of Arkansas in its briefs conceded that Mr. Whitmore was entitled to a hearing.

Not a concession as to the merits, but a concession as to a hearing on several grounds in his case.

Mr. Whitmore’s position is unlike all other citizens of the state.

He has a particular concrete injury.

If he, as a member of that much smaller subset of people facing the possibility of a trial, is again convicted, then Mr. Simmons–

William H. Rehnquist:

Well, what do you mean?

William H. Rehnquist:

You mean if he’s convicted of a second capital murder?

Arthur L. Allen:

–No, sir.

If he obtains a new trial and is again convicted.

Of course, the state… and this is what the respondent has largely argued as their position… is that Mr. Whitmore does not have standing.

Byron R. White:

Well, have you been authorized to represent him?

Arthur L. Allen:

Mr. Whitmore?

Byron R. White:

Yeah.

Arthur L. Allen:

Are you referring to Mr. Whitmore, sir?

Byron R. White:

I’m referring to–

–Simmons is the guy that–

–Well, what is… what is Mr. Whitmore’s standing to even be here?

Arthur L. Allen:

Mr. Whitmore, under the standing, of course, to reach the Article III case for controversy, has to show an injury.

And of course, as the cases here have held, with perhaps not–

Byron R. White:

Was he… was he competent to waive any appeal or–

Arthur L. Allen:

–Mr. Simmons?

Byron R. White:

–Yes.

Arthur L. Allen:

On the record before this Court I cannot seriously dispute competency as it relates to mental competency.

Competency, though, is a two-part question.

One is, of course… or, a part of that question is his mental competency.

Despite some reservation from–

Byron R. White:

But you say Whitmore has got a separate interest?

Arthur L. Allen:

–Yes, sir.

He has a separate interest.

Now, concededly I… I cannot present to this Court that it is overwhelming, but I would suggest to the Court that the proper test to apply is the one of Justice Brennan’s comments in his dissent to Valley Forge, which is that the dividing line should be no injury and some injury rather than asking the Court to get into weighing and assessing the total weight of the injury.

To reach standing he needs to show a personal injury to himself.

William H. Rehnquist:

Well, of some substance.

Not just a trivial thing.

Arthur L. Allen:

Well, your Honor, again–

William H. Rehnquist:

Certainly, that was… that was the rule of Valley Forge, was it not?

Arthur L. Allen:

–It cannot be a hypothetical or–

William H. Rehnquist:

No, but I mean, even if it’s actual it has to be something beyond a mere peppercorn, so to speak.

Arthur L. Allen:

–Oh, I don’t think the Court used that expression.

One expression what was used in a slightly earlier case, the Scrap case, was that a mere trifle may be sufficient.

William H. Rehnquist:

And your claim here is that although your client has already had his conviction affirmed and the proportionality review conducted by the Supreme Court of Arkansas he… and has lost in state post-conviction remedies, he is now in Federal habeas and he might obtain a new trial there and then he would go through the proceeding again and would be affected by the fact that Mr. Simmons’ capital case was not in the pool from which a proportionality review is convicted?

Arthur L. Allen:

Yes, Your Honor, that’s correct.

And, of course–

Antonin Scalia:

Why isn’t that hypothetical?

You… you… you had just finished saying that the injury has to be something more than hypothetical.

Why isn’t it hypothetical that your… that your client will get his conviction set aside and be tried again?

Arthur L. Allen:

–Your Honor, the difference there is the difference between future or threatened injury and hypothetical.

Hypothetical assumes all facts, whereas… and again, the Court has in a number of decisions, including O’Shea, and in fact in a footnote to Valley Forge, looked at threatened injury.

So, it’s clear that the injury can be a future injury.

That’s Mr. Whitmore’s personal interest in this.

There are other reasons, as cited in the brief, for allowing standing to Mr. Whitmore.

Antonin Scalia:

Well, I assume the difference between future and hypothetical is sort of the difference between standing under a chandelier whose… whose connection has broken and is… is… is in the process of descending on your head.

That’s a future injury.

And a hypothetical injury would be standing under a chandelier that is perfectly well-attached to the ceiling.

Now, why isn’t your client in the latter case?

Arthur L. Allen:

Because–

Antonin Scalia:

In the latter situation?

There is nothing happening… about to happen to him.

It all depends on his getting his conviction set aside.

That’s purely hypothetical that it’ll do that.

If and when it’s aside, then I suppose you can say it’s… it’s sure that Mr. Simmons’ case will be left out of the pool.

That’s in the future to be sure, but not hypothetical.

At this stage it’s still hypothetical, though, isn’t it?

Arthur L. Allen:

–No, Your Honor.

I would suggest that it’s not hypothetical.

It is perhaps slight.

But there is a threatened injury to Mr. Whitmore of a right asserted to him by the State of Arkansas.

Arthur L. Allen:

However slight that may be, whether in fact the Court might consider it to be a trifle.

Within the context of Eighth Amendment death penalty considerations, virtually anything that influences the ultimate decision to impose a penalty of death should not be considered merely trifling or even hypothetical.

The other reasons for standing as regards Mr. Whitmore again go back… to look at earlier cases of this Court.

A part of the ability to proceed in behalf of a third person is the adequacy or inadequacy of the waiver made.

As the Arkansas court’s opinion, as set out in the joint appendix shows, they used the Rees v. Peyton test, which is the functional equivalent of competency to stand trial, to waive a jury.

What they did not look at was the adequacy of how knowingly and intelligently Mr. Simmons has made this wavier.

Who, for example, has said to him: you may not be eligible for the death penalty?

The only advice he has had as regards to this case is the advice of the trial counsel who have adamantly and vigorously advocated that their own client be put to death, who have filed as Respondent briefs in this Court statements which say that they are not familiar enough with the death penalty laws in the State of Arkansas to present that issue as opposed to the Attorney General for the State of Arkansas.

Anthony M. Kennedy:

Well, you’re not arguing that the Simmons’ waiver was invalid, are you?

Arthur L. Allen:

I seriously question the validity of that waiver under those circumstances.

The advice that he has had in this case, distinguishing it from his earlier conviction… no one other than the trial counsel have advised him as to trial errors.

Now, the trial judge, based upon representations made by trial counsel, has advised him of potential error.

Now, in Simmons I, the earlier case that was tried in 1988, it went into Federal habeas.

The Federal district court appointed an independent attorney, ordered a transcript to be prepared… and, in fact, I think had to threaten the court reporter with contempt to get a transcript prepared.

There was then a lengthy report filed with the Federal court outlining various potential errors.

And, in fact, that independent report on the first conviction showed at least seven grounds of reversible error, one of which would have negated the death penalty.

William H. Rehnquist:

Well, does any case from our Court require that extensive a proceeding as you’ve just described in order that a waiver be deemed competent?

Arthur L. Allen:

Your Honor, this Court has only addressed waivers in death penalty context after they have reached habeas… with the exception of Gilmore, which we have yet to discuss.

But this Court has never discussed it in the context of waiving a direct first appellate review.

You have looked at it in collateral proceedings, post-conviction and Federal habeas, wherein the harm that we are seeking to redress here did not occur because there had been an appellate review.

The probably best analogy for another reason to grant standing is a review of this Court’s cases in the area of the First Amendment, the heightened interest that the Court has shown.

For example, from cases going back through Raines, through NAACP v. Alabama, Griswold, Eisenstadt, the Court has not hesitated to allow… I shouldn’t say has not hesitated because not all opinions have been unanimous… but certainly the gist and the thrust of this is that the rights of third parties may in fact be asserted.

William H. Rehnquist:

By someone who himself has standing, who himself has suffered an injury.

Arthur L. Allen:

Yes, sir.

William H. Rehnquist:

Wouldn’t you agree with that?

Arthur L. Allen:

Yes, sir.

I would.

And, of course, to reach that point, to take it out of the realm of the hypothetical, there has to be an injury, which is what we are alleging on behalf of Mr. Whitmore.

And the Court has again–

Byron R. White:

xxx just any… any person… any member of the public can come in and say Simmons’ waiver was invalid and therefore I want to appeal his case.

Arthur L. Allen:

–Your Honor, as much, perhaps, as I would like to advocate that, I think this Court’s decisions are uniform in showing that generalized grievances are redressable through the political front rather than through the judicial front.

That almost–

Byron R. White:

So the fact that… so the fact that the waiver, you say, is questionable really doesn’t add anything to Whitmore’s standing, is it?

Arthur L. Allen:

–It does… it, of itself, doesn’t add anything more to his standing.

In other words, his injury is the first threshold that has to be addressed.

But in the presence of… again, to use phrases from the cases… weighty countervailing policies, which there can hardly be, even with the importance of the First Amendment, a weightier issue than the imposition of the death penalty, that the standing requirement, that threshold requirement, may in fact be lowered almost on a balancing basis.

The importance of the interest, the lowering of that first threshold question.

That–

Antonin Scalia:

Mr. Allen, could I ask you… assuming that you have standing, do you know any case where we’ve allowed someone who would… assuming he would be injured by something that occurred at the trial level, we’ve allowed someone not to intervene down there but to bring an appeal here on the basis of that standing?

I mean, I… I would think that if I sit out a proceeding in the district court that might affect me, I’m out of luck.

I can’t then come in at the court of appeals level and say I want to appeal that.

Now, maybe I can bring a separate lawsuit… maybe I can bring a separate lawsuit to set aside that district court judgment, but this… this seems to me a very strange procedure.

Assuming you… assuming there is a real interest here that would confer standing, does it… does it enable you to sort of jump into a lawsuit, in the middle of it, and appeal a… appeal a suit that hasn’t otherwise been appealed?

Arthur L. Allen:

–There is a strange… or an appearance of strangeness here, Your Honor, because of the absence of Simmons I from being with this.

In Simmons I, the intervenor was a Catholic priest, Father Franz, who filed at the trial court level to appeal and to order a transcript prepared.

The trial court dismissed that appeal at the trial court level and refused to have a transcript prepared even though that intervenor was, as I understand it, prepared to pay for the transcript.

So–

Antonin Scalia:

He wasn’t asserting his own standing.

He was… he was asserting the standing of the… of the convicted person himself, wasn’t he?

Wasn’t he just trying to come in as next friend?

Arthur L. Allen:

–Yes.

And that’s–

Antonin Scalia:

So that’s quite different from what you’re trying to do here.

Arthur L. Allen:

–Well, that’s the reason I believe that Franz v. State failed on its face, is that it did not express more than a generalized grievance over a constitutional defect.

That’s what distinguishes Mr. Whitmore’s position, is that rather than a generalized grievance saying the State of Arkansas, nor any other state, should execute an individual who has not had the full continuum of rights guaranteed under the Eighth Amendment.

The state would ask that the appeals process be looked at as a separate and discrete part of the process.

You go to trial and from whatever happens through that point on is separate.

That’s, I believe, not a correct position in the context of death penalty cases, partially because death is in fact different.

It’s entitled to higher safeguards, to perhaps unique procedures to ensure that it’s not unfairly imposed; that… excuse me… that it relates to appropriate penalties for certain crimes, as in Coker, for example; that it only is imposed on deserving defendants, as in Jurek v. Texas; that mitigation is allowed in its full scope… Lockett, Skipper.

And the importance… the constitutional importance of the appellate review has been addressed in a number of cases in this Court… that… I won’t go back through that argument at any length.

Arthur L. Allen:

As early as Gregg, of course, the Court has said that the presence of a mandatory appeal was an important component of allowing a state’s death penalty statute to stand.

More recently, the Court has looked at other statutes and has upheld them in part based upon the presence of that mandatory appeal feature.

Arkansas, of course, is the only one of 37 states that impose the death penalty that do not have this requirement of a non-waiverable death penalty, either by statute or by case law.

Even the State of Utah that carried out the execution of Mr. Gilmore amended its laws within six months after that execution so that it could not be carried out today in Utah without mandatory appellate review.

The… excuse me… the absence of that feature renders the Arkansas death penalty statute unconstitutional, unconstitutional as applied to Mr. Simmons.

Mr. Simmons and the State of Arkansas will assert some right to personal autonomy, that Mr. Simmons’ wishes should be respected.

The problem with that is that we’re dealing with something or right that also exists for the benefit of society as a whole.

We’re–

Byron R. White:

Well, what if… what if there isn’t mandatory appeal?

How would that… how do the other states handle this when, if it ever happens, the… the condemned person doesn’t want to appeal.

Do they just… don’t they just appoint a lawyer–

Arthur L. Allen:

–Yes, sir.

Byron R. White:

–for him?

Arthur L. Allen:

Yes, sir.

Byron R. White:

That doesn’t mean that any third person, cellmate or otherwise, could come in and appeal it.

Arthur L. Allen:

No.

But, of course, that would not be necessary in any of those 36 states since–

Byron R. White:

Well, I–

Arthur L. Allen:

–they have a procedure in place.

Byron R. White:

–I know, but that doesn’t help.

Having a mandatory appeal doesn’t help Whitmore very much.

Arthur L. Allen:

Your Honor, it only… that feature of it goes to the weight of the countervailing policy, which in turn affects the threshold of injury that Mr. Whitmore must show in this Court to achieve his standing.

Byron R. White:

Well, I’m just saying it doesn’t help him very much.

Even if there… there were a mandatory appeal, he wouldn’t have any more standing to exercise that right to appeal.

Arthur L. Allen:

If there were a mandatory appeal, of course, Your Honor–

Byron R. White:

You would be–

Arthur L. Allen:

–we would not be… be before the Court on this issue.

Anthony M. Kennedy:

–In the… the contingency I think the remote contingency that Whitmore is retried and sentenced to death again… couldn’t he at that time argue that it’s the state’s burden to show that his sentence is proportional and the state has in effect, by its own procedures, denied him the right to have a pool of cases and just put the burden on the state.

Arthur L. Allen:

Arkansas does not place the burden in that regard upon either the state or the convicted.

They do an independent review themselves.

Anthony M. Kennedy:

Well, but I mean, if by the state’s own actions that independent review is somehow inadequate, it seems to me that Whitmore again has no injury because then he’s going to be able to raise the very contention that you say he can’t make.

Arthur L. Allen:

Your Honor, if I understand you correctly, I don’t believe it would be a matter of him not having an injury, but it would be a matter of could he address it in another forum at that time.

Anthony M. Kennedy:

He… he wouldn’t have an injury because he tells the state that you have to show that my death penalty is proportional and you can’t do it.

So you’re not being injured by what’s happening here.

Arthur L. Allen:

Of course, at that time Mr. Simmons would have been long since executed.

That might–

Anthony M. Kennedy:

Well, but we’re talking about Whitmore’s injury by hypothesis.

Arthur L. Allen:

–Yes, sir.

And that might at that point be more closely attuned to the hypothetical question that Justice Scalia raised.

Mr. Simmons gone, no longer in the picture, was he hypothetically harmed?

That, at that point, might become hypothetical.

If there are no other questions, may I reserve my remaining time for rebuttal?

William H. Rehnquist:

Yes, you may, Mr. Allen.

General Clark.

J. Steven Clark:

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

The position of the State of Arkansas in this case is simple and direct.

First of all, Jonas Whitmore, the petitioner, does not present this Court a case in controversy, as required under Article III, Section 2 of the Constitution, simply because Ronald Gene Simmons is not a minor.

As to the issue of his competency, he has been found competent by trial counsel and also by counsel who… psychiatry… a psychiatrist who examined him on behalf of his own retained counsel.

He has never used incompetency as a defense.

He pled not guilty in either Simmons I and Simmons II.

And, thirdly, the protected right that Jonas Whitmore so allegedly advances to this Court, or the right that should be protected by this Court that gives him standing, is one that clearly is speculative or conjecture or hypothetical because, as you have heard, in his conviction for a capital offense he was sentenced to die by injection.

He had a direct appeal.

In that direct appeal there was a proportionality review made by the Arkansas Supreme Court.

In its opinion, it told us specifically how it did that.

It contrasted Jonas Whitmore against other death row inmates who were guilty of crimes similar to his.

He took the life of one individual in a robbery.

His proportionality study was against two other death row inmates, Mr. Woodward and Mr. Fretwell, who also took one life in the perpetration of a robbery.

They did not contrast him against a mass murderer, but they contrasted him against someone on death row who received the penalty of death similar to the circumstances in the case in which it was imposed against him.

I submit to you that simply what we have here after the post-conviction relief was denied was a situation where Mr. Whitmore is before this Court for the reason that he would love to frustrate the death penalty process in Arkansas because by frustrating it he slows its implementation against him.

But he has no standing here, none whatsoever.

J. Steven Clark:

He has not alleged or articulated one fact that shows that he has any particular legal interest that is at risk or at jeopardy by the state going forward with the execution of Ronald Gene Simmons.

But, secondly, if this Court should find for some reason that there is standing in this case, I further submit to you that the State of Arkansas’ death penalty procedures are constitutional and are not violative of the Eighth Amendment, and we do not impose the penalty of death in an arbitrary, capricious or freakish manner.

This Court has said since the trilogy of cases of Proffitt and Jurek and Gregg that when you decided the case in Spaziano that there was not one right way… you didn’t single out that there was one right way to have the death penalty process applied.

You further said in Pulley that when you looked at this process you looked at the whole of the process.

I submit to you that the Arkansas death penalty procedures provide more than adequate safeguards to ensure that there is no arbitrary or capricious application of this penalty of death by simply providing the following.

First, in Arkansas you can only have the penalty of death imply… applied against you by a jury.

You cannot come forward and plead guilty and have that penalty applied by a sitting trial judge.

Only by a jury.

In our bifurcated system, in terms of death penalty cases, we must first adjudicate guilt beyond a reasonable doubt, and then we move to the sentencing phase.

Additional safeguards that we find there are these.

First of all, the state must prove guilt beyond a reasonable doubt of one of seven aggravating circumstances, and the jury must unanimously concur in that and sign that they are of that opinion.

We are bound by strict rules of evidence in that phase of the sentencing.

Secondly, in that sentencing phase, the defendant is allowed to offer any evidence of mitigation that he would like to offer against the state’s aggravating circumstance.

He is not bound by strict rules of evidence.

And the jury must conclude, again unanimously, that the aggravation beyond a reasonable doubt outweighs the mitigation.

Thirdly, the State of Arkansas then is required to prove to that same jury that beyond a reasonable doubt the only proper punishment that can be assessed is the penalty of death, having a jury instructed that they are permitted to impose the sentence of life without parole.

Meeting all of that burden, there is one additional safeguard in the Arkansas death penalty procedures, and that is one that simply says that the trial judge, after hearing… yes, Your Honor.

Harry A. Blackmun:

I’m… I’m just curious.

How many do you have on death row in the State of Arkansas?

J. Steven Clark:

Thirty-two people on death row, Justice Blackmun.

Harry A. Blackmun:

Any females among them?

J. Steven Clark:

There was one, but her case was overturned and she’s now serving life without parole.

There are 32 males on death row, 11 of which are black, and the remainder are white or Hispanic.

The final safeguard, though, in the instance of a death penalty procedure in Arkansas is that once the trial judge hears the implementation of the sentence, the trial judge on his own motion can set aside the penalty of death and order the penalty of life without parole.

And so I’ll simply say to you that those safeguards rise to a standard that ensures that the Eighth Amendment is not violated in the sense that it is arbitrarily or capriciously applied or in some freakish fashion.

Sandra Day O’Connor:

Well, I suppose we don’t have to even get to that point if there’s no standing here.

J. Steven Clark:

Justice O’Connor, I agree.

If there is no standing, you do not need to get to those issues, and I submit there is no standing.

Sandra Day O’Connor:

So probably that’s the first thing we look at, isn’t it?

J. Steven Clark:

Yes, Your Honor.

J. Steven Clark:

I submit that that is the first thing you look at.

In this instance, Jonas Whitmore has failed to give this Court any indication that he has standing by decisions that you have articulated.

Simply, he has no right to be protected.

It is purely speculative that at some point in the future in his petition at habeas where he alleges a state of incompetence that he might… he might… get a court to set that aside and get a new trial in Arkansas and not have a proportionality review that includes Simmons.

Sandra Day O’Connor:

Do you think he would have standing if he were here in a situation where his own proportionality review had not been conducted yet?

J. Steven Clark:

No, Your Honor, I do not.

I think in the instance of Jonas Whitmore, had he not taken a direct appeal at this point, he still would not have standing before this Court because the proportionality review process in Arkansas is one that has never been articulated by rule by our Arkansas Supreme Court, though… or mandated by a public policy from the legislature.

The court simply says we do this and doesn’t outline for us the practice in which or the procedure in which they do conduct this review independently and on their own.

There is nothing to ensure, even if he had not taken a direct appeal that, when they contrasted the proportionality review with Jonas Whitmore, that they would include the crimes involving Ronald Gene Simmons.

We do know, as a matter of fact, that when he did take it to direct appeal they contrasted him by stated public opinion against people who were guilty of similar types of crimes, robbery and murder.

Not those involved in crimes in which he took the deaths of 16 individuals, which took place over a 24 or 48-hour period.

So, our supreme court at least has given us some insight to say they contrast people on death row with similar type crimes, although there is not an articulated procedure.

Thirdly, I would say to this Court, if there is some troublesome issue to this Court concerning waiver, I submit to you that there has been a clearly knowing and intelligent waiver and that the standard is actually higher than that in Arkansas, which is additional safeguards in the application of the penalty of death.

Please understand that after Simmons I was decided and Mr. Simmons said, “I want to die”, his case did go forward to the Arkansas Supreme Court, advanced by Father Franz as next friend, and the Arkansas Supreme Court found no standing.

And, in fact, that case went forward on habeas to the United States District Court, Eastern District of Arkansas, and Judge Isley found no standing.

Sandra Day O’Connor:

Isn’t that case on appeal now in the Eighth–

J. Steven Clark:

Yes, Your Honor, it is on appeal to the Eighth Circuit.

Sandra Day O’Connor:

–Circuit?

J. Steven Clark:

Yes, it is.

It’s on appeal to the Eighth Circuit.

Being stayed, waiting the decision of the Court in this case.

But in the issuance of waiver, when the first decision was made in Simmons, the Arkansas Supreme Court articulated a new rule.

It said in the instance of waiving the right of appeal… and the right of appeal is automatic in Arkansas and if Ronald Gene Simmons changed his mind this very day, appeal would move forward.

If he changed his mind the hour before his execution, an appeal would move forward.

But it said… you know, it’s not just knowing an intelligent waiver that’s enough.

It must also be the appreciation of the difference between life and death.

So, in Simmons II it was a two-pronged standard that was applied.

And to ask whether Mr. Simmons actually knowingly and intelligently waived, the transcript of the record indicates his trial counsel pointed out seven issues for which he could potentially be successful on appeal.

Each one separately, distinctly given to him.

He answered he was willing to waive.

J. Steven Clark:

In the conclusion of that evidence, which included speedy trial, double jeopardy, suppression of a search, separation… severance of trials, court-appointed counsel versus retained counsel, a whole series of–

Byron R. White:

xxx willing?

Or did he say, “I want to waive”?

Is that it?

J. Steven Clark:

–He said, “I want to waive”.

I understand–

Byron R. White:

And he doesn’t want… and he turns down any… has he turned down any kind of representation by anybody else?

J. Steven Clark:

–Yes, Your Honor.

He has simply said at the conclusion of both of his two trials,

“I am willing to accept the verdict. “

“I believe in the penalty of death. “

“I think it is just and proper in my case, and I ask no one, no one, to come forward to try to intervene, delay or stop this process. “

Byron R. White:

And has he purported to forbid Mr. Whitmore to represent him?

J. Steven Clark:

He has indicated in letters that are not a part of the record, Your Honor, that–

Byron R. White:

I… was this briefed?

Did he file a brief in this case?

J. Steven Clark:

–Yes, Your Honor, he did.

He describes Mr. Whitmore and others as interlopers in a decision that he has a right to make.

He is not, in that brief and in other documents we’ve seen before that he has published, that he indicates that he is not pleased that anyone is trying to frustrate this process for him.

Byron R. White:

And has he… has he read that brief?

J. Steven Clark:

Yes, Your Honor, he has read the briefs.

In the instance of the seven issues, though, that were brought to Mr. Simmons’ attention in Simmons II, the case at bar, the trial judge even went further than his own counsel, and his own counsel did have affidavit of record saying they had encouraged him repeatedly to appeal.

The trial counsel said,

“Please, Mr. Simmons, understand so I know that you’re making a knowing and intelligent waiver… please understand, all you have to do is decide one of these issues is worthy of appeal and your sentence of death will be stayed for weeks or months or years, or perhaps longer than the lives of all of us collectively in this courtroom. “

And he said,

“I understand that. “

“I waive. “

And then he simply said to him,

“Mr. Simmons, understand, the state is sincere about this… the implementation of this penalty of death. “

“If you waive and do not appeal, you will die. “

J. Steven Clark:

He accepted all of that.

And so there is clearly a knowing and intelligent waiver in this instance.

So this case, I think, fails from the petitioner’s standpoint for several reasons.

But the first and most important is he has no standing.

Jonas Whitmore has no right to be here in this courtroom today because he has no standing.

He’s advanced no issue of a legally protected interest that needs to be guarded by this Court.

But, secondly, even if he did, the death penalty procedures in Arkansas don’t violate the Eighth Amendment.

Clearly, they rise to a level to afford the protection to ensure there is no arbitrary, capricious or freakish application of this penalty in our state.

And so I submit to you for all those reasons that this Court should affirm the decision of the Arkansas Supreme Court.

Antonin Scalia:

Let me ask you one question, if I might, Counsel.

J. Steven Clark:

Yes, sir, Justice Stevens.

Antonin Scalia:

It’s running through my mind.

Supposing the case were different and that this man had… did not have clear access to the courts… and you demonstrate that he did have access to the courts.

But, say, you had a case in which an allegation by a stranger like the petitioner here came in and said, my only relationship with him is I’m in the same death row that he’s in and I’d like to have standing to assert on his behalf a claim that he’s been denied access to the courts because he’s been kept in a dungeon without being able to get to a lawyer or something of that kind.

Would he have standing then?

J. Steven Clark:

No, Your Honor, I think not.

I think in the instance of this third person that you’ve used as the hypothetical, who really is quite similar to Jonas Whitmore… the only similarity between Ronald Gene Simmons and Jonas Whitmore is they both are death row inmates and reside in the State of Arkansas.

That if he said, well, he’s been denied a fundamental safeguard in the process, he’s been kept in a dungeon, I don’t think that third person has the standing that this Court requires to create a case of controversy.

John Paul Stevens:

Would any person… just a citizen of Arkansas who says, we don’t really like having the state behave in this fashion… would any… would anybody have standing to bring that matter to the attention of a Federal court?

J. Steven Clark:

In your hypothetical, Your Honor, in this case, I think no.

Byron R. White:

How about a public defender who says, I want to go ahead and talk to this inmate?

J. Steven Clark:

Justice White, I think the answer to that is no also.

The fact that a public defender would like to speak to this death row inmate who desires to die, who has knowingly and intelligently waived his right to appeal–

Byron R. White:

Oh, no.

No.

That isn’t–

J. Steven Clark:

–Oh, I’m sorry.

Byron R. White:

–It’s on the standing argument.

Take Justice Stevens’ question.

Here is a public defender that represented him all up and down the line in the… in the proceedings and he shows up at the prison and he finds out that the fellow is in a dungeon and they won’t let… and they won’t let him talk to him.

J. Steven Clark:

Well,–

Byron R. White:

Could he get into court?

J. Steven Clark:

–In the instance… if, in your hypothetical the defendant is sentenced to die and has decided to accept that sentence and done so knowingly and intelligently and waived such and with the standard of Arkansas with the appreciation between life and death, though represented by a public defender through the entire process, and then the public defender shows up to the Department of Corrections and finds he’s in the hole, if you will, and is not permitted to talk to him, I don’t think that public defender has standing to raise this issue.

Byron R. White:

Well, I know, but you say that… you say that if this fellow changed his mind an hour before his execution was scheduled, he’d get an appeal.

J. Steven Clark:

That’s correct, Your Honor.

Byron R. White:

Well, then the public defender wants to be able to talk to him up till the minute of the execution and the people… and the prison says, sorry, the fellow’s waived and that’s the end of it.

J. Steven Clark:

Well, in the instance, Your Honor, I think in terms of the waiver.

I submit to you that it’s the position of the State of Arkansas, once waived, as the case is now with Ronald Gene Simmons, that’s not absolute.

That’s not… it is revokable.

He revoke that up until the hour before his execution.

That revocation, obviously, Your Honor, comes upon a knowledge and understanding on his own.

I don’t think that constitutionally is predicated on the right to give him particular access to a public defender or other counsel.

Your hypothetical is distinct from the case at bar because in this instance Mr. Simmons has retained counsel, and they were to be present the night of his… what would have been his execution on March the 16th… March the 15th.

They were there that night in 1989 before this Court stayed that execution.

John Paul Stevens:

The only thing I am suggesting, Counsel, is that perhaps you’re right on the merits with the waiver and all the rest of it, but the standing position could be quite extreme in some… in some cases, I think.

J. Steven Clark:

Justice Stevens, I–

John Paul Stevens:

Of course, maybe that doesn’t mean that it isn’t… it isn’t–

J. Steven Clark:

–I’ve asked myself that question and there is the potential that you can create, certainly in hypothetical–

John Paul Stevens:

–Yeah.

J. Steven Clark:

–and it seems grossly extreme.

John Paul Stevens:

Yeah.

J. Steven Clark:

But in the instances, I think this Court is bound by that standing provision of the Constitution.

And in this instance, this petitioner woefully is inadequate in his ability to rise to the level to show standing.

Anthony M. Kennedy:

He has appointed counsel now?

J. Steven Clark:

He has retained counsel, Justice Kennedy.

Anthony M. Kennedy:

Or retained counsel.

J. Steven Clark:

Yes, sir.

Anthony M. Kennedy:

Do… do we know that that retained counsel will remain with him throughout the period during which the sentence is being executed, up to the last hour?

J. Steven Clark:

We knew in the instance of the first case.

I can’t tell you… it… assuming the practice is what it was the first time, Justice Kennedy, in order to ensure that retained counsel was at the prison at the point where the execution would take place, my office was prepared to drive counsel from their residence some 150 miles to the prison so they would be there.

J. Steven Clark:

In addition, there were other safeguards added to ensure… in consultation with my governor, Governor Clinton, that we could ensure right up to the last minute because counsel was there, if he changed his mind and had access to his counsel, he could say, I change my mind, and it would stop.

Anthony M. Kennedy:

If he does, what’s the state of preparation of the trial transcript?

J. Steven Clark:

In Simmons II there is no trial transcript.

We would have to stay the execution back with the Governor.

We would have to then file petition for belated appeal, order the transcript and move forward that way.

Anthony M. Kennedy:

What… what does the transcript consist of?

Or, what’s the record of the trial consist of?

Of recorded notes or reporter’s notes?

J. Steven Clark:

The reporter’s note.

Yes, Justice Kennedy.

The Simmons II trial, which involves the 14 deaths, is the court reporter’s transcript… records, but not transcribed.

There is in Simmons II the transcribed record of the knowing and voluntary waiver of the right to appeal.

Anthony M. Kennedy:

Well, you’re not at all disturbed that there’s no extant record of this trial?

J. Steven Clark:

I am not disturbed by that at all, Justice Kennedy.

The fact that I know that in the instance of the waiver, the knowing waiver, that Mr. Simmons was given ample opportunity to discuss specifically deficiencies in the state’s case.

He had been given that private consultation by his retained counsel.

He had been given that consultation advise once again in a hearing conducted by the trial court.

And that was reviewed one more time by the Arkansas Supreme Court, in which specific points for appeal were enumerated.

And he said, “I knowingly and intelligently waive”.

That does not trouble me whatsoever.

I think in this instance that a criminal defendant in the process who can make a knowing and intelligent waiver, and with the additional standard from Arkansas with the appreciation of the difference between life and death, can take that action.

I ask–

William H. Rehnquist:

–Thank you… thank you, General Clark.

Mr. Allen, do you have rebuttal?

You have two minutes remaining.

Arthur L. Allen:

Very briefly.

In response to Justice Kennedy’s question, it bothers me very much, Your Honor, particularly when that answer is related back to an earlier statement of the Attorney General that there were seven issues presented that might have successfully set aside the death penalty.

There were that many issues presented in Simmons I.

Respondent has said there were that many in Simmons II.

What that is saying is that this may in fact be a person who is not eligible for the death penalty under the law.

Arthur L. Allen:

And Respondent is not bothered with that.

The question of retained counsel… and coming back to the adequacy of that waiver… and I believe Mr. Justice Kennedy asked about whether counsel would stay on the case.

There is no indication of that.

In fact, there has been some published comments made recently that would suggest they probably will not, other than perhaps a book deal coming through on this.

I would direct the Court’s attention to page 17 of those counsel’s Respondent’s brief only to give the Court a feel for the representation that Mr. Simmons received at his trial.

The counsel in there who speak of penumbras emanating from the Third Amendment in cases from this Court, who, as I said a moment ago, on that same page indicated that they were not familiar enough with the death penalty procedures in the State of Arkansas to present… to present argument on that point in this Court.

Thank you.

William H. Rehnquist:

Thank you, Mr. Allen.

The case is submitted.