SELECTED PROBLEMS IN THE
PUNISHMENT PHASE OF A TEXAS
DEATH PENALTY CASE;
MITIGATING CIRCUMSTANCES
Sammy Lee Ogan
Independent Research
for
Professor Benson
SELECTED PROBLEMS IN THE PUNISHMENT PHASE
OF A TEXAS DEATH PENALTY CASE :
MITIGATING CIRCUMSTANCES
"Though the justice of God may indeed
ordain that some should die, the justice
of man is altoghether and always insufficient for saying who these nay be."
Charles L. Black, Jr.
L. INTRODUCTION
An attorney entering into a death penalty case in
Texas must necessarily concentrate on two areas.
a- proper jury must be selected.
First,
Second, that jury must
be given some reason not to assess the death.penalty.
The
facts of the case seldom provide the jury with a solution
to the second problem.
ask for
Not often does the District Attorney
the death penalty unless he is fairly certain of
a guilty verdict at the guilt/innocence stage. Thus, a
defense attorney in a Texas capital felony knows that "almost
as surely as night follows day, the punishment phase of
trial follows the guilt phase."!
The punishment phase, therefore, becomes the focus
point in preparing for a death penalty case.
This is not
to say that the presumption of innocence is forgotten.
Error
must be preserved, of course, at the guilt/innocence phase
and in voir dire.
Reasonable doubt must be placed in the
juror's minds throughout.
However, it would be an unusual
lawyer who would pin his hopes of success in a capital
00346
Sarnriv Lee Ogan
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347
case on his client; receiving an acquittal.
To "win" in
a death penalty prosecution often means for the Defendant
to get a life sentence.
This, of course, is the only
option other than death if a Texas jury convicts of a capital
felony.2
Jury selection, the first problem area for the defense
attorney, has received extensive treatment both in the
court opinions and in scholarly journals.
Therefore, this
important topic will not be treated in this paper.
The
punishment pha se, on the other hand, has received much less
coverage and analysis.
There is little agreement among
lawyers and scholars on how best to approach it.
Much of
the literature on the subject consists of theoretical (or
even theological) discussions on the immorality of the
death penalty.
Anti-death penalty forces have coined the
phrase, "Why should we kill people who kill people to show
that killing people is wrong?"
While this is well and good
in helping to educate the public and attorneys on the social
and political ramifications of the death penalty, it does
little to help the average, conscientious juror solve the
dilemma of assessing life or death to a defendant found
guilty of a capital felony.
A lawyer entering into a capital case can help the
jurors off the horns of the dilemma they encounter at the
punishment phase.
It is the premise of this paper that
the jurors can remain true to their oath and still avoid
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348
giving a death sentence in even the most severe case.
The lawyer can provide them with an option, not through
slogans and rhetoric, but by careful preparation and
application of legal principles being developed in the
courts today.
II. SCOPE
The discussion which follows centers on
problem areas.
two
main
Each area has several rough subdivisions
0
and there is necessarily much overlapping.
No attempt at
scientific precision or formal, logical compartmentalization
has been made.
The jury will be looking at the case as a
whole, and the following analysis has been made with the
mental processes of Che jurors as the factor of paramount
importance.
The Texas death penalty scheme suffers from
extreme weaknesses in the area of mitigating circumstances.
The federal courts have steadily expanded the requirements
for consideration of mitigating circumstances in recent years.
Texas, partly because of its statute and partly because of
the unwillingness of a majority of the members of the Court
to Criminal Appeals to go along with this trend, has lagged
far behind.
An attack on the present methods of getting
"mitigating evidence to the jury might bear fruit in two places.
First, t:he jury could well be afforded more evidence in
mitigation of punishment than was previously believed
possible under our statute.
Secondly, if the trial court
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Page 4
refuses to Lot such evidence in, the Texas death penalty
statute might well be decLared unconstitutional on appeal.
Both of these possibilities will be probed in detail.
The
main research for this paper has been done in conjunction
with a pending death penalty case.3
For that reason, I
have used a format that will easily lend itself to transformation into trial briefs.
The motions these briefs
will support have been Included as Appendices.
III. I! IT i CAT INC CIKCUMSTAHCKS
The Texas death penalty scheme is constitutionally
deficient, in ::i: :
i.
• i»1 •.• no:
:hv ;-irv
»vi lie .1 median'i st.i to insure thai
i independent weight t.o aspect.1,
vi*,.
or * he do fondant 1
character and record.
; : does :io' ii low
i n:S t ruev i on >:• mi ; i
Si»* > rial court: t.o give an
r i tv; o i roums tances .
When :-'ur:ian 7 lieu i.y, i.a-/> abolished the death penalty
in -iu' Minted .>tn!os in I1'/!!, the chiet' concern of the
t»ni : ml Stat.es Supreme Court was that, the death penalty
r-"
was being applied in in arbitrary and capricious manner. J
The Furman decision invalidated all capital sentencing
procedures then in effect in the United States.6
The
Legislatures of thirty-1: i.ve states, Texas included, revised
their statutes or enacted completely new ones hoping to
ooir.niv with the ra'.her vague mandate oL: Furman. 1
The Suproi.h' Couri
19"/*:..
loviewed five of these statutes in
The rocus ol '..he L 7 6 Death Penalty Cases** moved
aw.iv fro'-t in emphas i..^ ^n racial and cLass discrimination
in 1 no ii.'.j>"»sit ion o! > iir dual h penally.
00349
Rather, the Court
Saninv Lee Ogan
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concentrated on procedural safeguards in an effort to
assure that the death penalty, when applied, would comply
with the constitutional requirements of due process and
equal protection of the Laws.
Florida,
The Statutes of Georgia, 9
and Texas I-» passed constitutional muster.
revised st.aLulo:; m
The
."Jori h Carolina and Louisiana were
declared unconstitutional . l«The Supreme C o u n
reviewed the Texas capital punish-
menL procedures in Jurek v Texas j--*
rejected the . i r r •
Eighth and Pourt'eentr.
in Jurek the Court
the Texas statute violated the
lendmonts to the United States
Const ltut i on:
,,,'Vi'X.!,: .: . .iro" idee
means to promote
t:he evenh.nuiea , rat.i.ona 1., and consistent
i.mpos i !. i on o; deat.'n sentences under law.
Because liii.. ,;vsi:ci!: serves to assure that
sentences o:' Jeath will not be 'wantonly'
or
1
freakishLy1
imposed, it does not violate
the Cons ti.tut ion: "14
The key issue in Jurek was whether the Texas procedures allowed the .jury i.o properly consider the existence
of aggravating and ni.t i :ra »:in>» circumstances.
Georgia
and Florida had adopteu a list of statutory aggravating
circumstances to enable the jury to decide whether the
death penalty should be imposed.-3
this approach.
Texas did not take
Fnsleae, live classes oi" murders are made
Samnv Lee Os'an
/
-
'
Page '/
capital by the Texas statute.^
For example, the Texas
s La Lute requires the jury .ML the guilt/innocence
phase
to consider whether the crime .was committed in the course
oj. a, particular feLony, whether it was committed for hire,
or whether the defendant was a. prison Inmate at the time
of the murder.
An . i L f i. rma t L .ve
Vi.ndins:
of one of these
.
tJ
factors transforms the murder into a capital murder.17
The (lour! upheld rhe Texas Method which, ".in essence
requires that, the jurv i'iiii! »;iie existence of a statutory
lmvat: i-ii'. c i rcur.>.Uanee be "ore ;:ne death penalty may be
•: •
!
:m'
. "' °
i'he Suproi re Court w'n: quick to note, however,
* he existence «>• •ii'.:,>ra.va(, lm\
circumstances is only
•;ii : i-i' r :-e niiM.urr , :%e;>uv f.iu- death p'enaLrv can be assessed,
..a jury must be allowed to consider on the
basis of all relevant i-vidence not
•inly why a death
;entence shouid be imposed,
but also v:\yr i.| s'louiii. not bo imposed.
Thus , in order to. meet the requirement of
tiie Klghth and Fourteent.ii Amendments, a capitalsonteneim', system musi a 1 Low the sentencing
authoriLv Lo consider mitigating circumstances. "19
The Texas Statute does not explicitly speak of mitigating
<• i rcuns I .a noes .
Parai'.rai'.h (a) of ArtieLe
T/. 07 L Code of
Criminal Procedure states:
i
ii;
"Upon
a finding that the defendant is guilty
of a capital offense, the court* shaLL conduct
.i separate sentencing proceeding Lo determine
Sarnriv Lee Ogan
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whether the defendant shall be sentenced
to death or life imprisonment....
In the
proceeding, evidence may be presented as to
any matter that the court deems relevant to
sentence."20
(emphasis added)
Paragraph (b) of 37.071 then requires the court to
submit issues to the jury.
Either two or three issues
are submitted depending upon the facts of the case:
"1) whether the conduct of the defendant that
caused the death of the deceased was committed
deliberately and with the reasonable expectation
that the death of the deceased or another would
result;
2) whether there is a probability that the
defendant would commit criminal acts of violence
that would constitute a continuing threat to
society; and
3) if raised by the evidence, whether the conduct
of the defendant in killing the deceased was
unreasonable in response to the provocation, if
any, by the deceased."21
Finally, paragraph (e) of 37.071 states that if the
jury returns an affirmative finding on each issue submitted,
the court shall sentence the defendant to death.
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The Supreme Court, in Jurek noted that the Texas
statute, unlike that of Georgia and Florida, did not list
statutory mitigating circumstances.
Great emphasis was
placed on the fact that such factors must, in some manner,
be given to the jury.
As the Court stated, "The constit-
utionality of the Texas procedures turns on whether the
enumerated questions allow consideration of particularized
mitigating
factors."22
The Supreme Court held that the Texas capital sentencing
procedure was constitutional on its face.
The continuing
validity of the scheme would depend upon its application:
"The Texas Court of Criminal Appeals has yet
Lo define precisely the meanings of such terns
as 'criminal acts ol violence' or
threaL to society.'
'continuing
In the? present case, however,
it indicated that it will
interpret this second
question so as to aL1ow a defendant to bring to
the jury's attention whatever mitigating circumstances he r.iay be able to
show.
"23
Thus, the Court was satisfied in 1976 that the Texas
statute would be applied in such a manner as to afford tha
jury full opportunity to consider evidence offered in
mitigation of punishment:
"The .jury may be asked to consider whatever
evidence of Mitigating circumstances the defense
can bring before it.
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It thus appears that, as
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in Georgia and Florida, the Texas capitalsentencing procedure guides and focuses the
jury's objective consideration of the particularized circumstances of the individual
offense and the individual offender before it
can impose a sentence of
death."24
Numerous decisions handed down since 1976 by the Supreme
Court, the Fifth Circuit Court of Appeals and the Texas
Court of Criminal Appeals give rise to questions on the
continuing validity of the Texas capital sentencing procedures.
The requirement that mitigating circumstances be
considered by the jury has been strengthened and enlarged
since l(>7o.
In addition, the Supreme Court's prediction
in Jurek that the Texas Court of Criminal Appeals would
interpret the "continuing threat to society" question to
mean that the jury could adequately consider mitigating
circumstances has proved unfounded.
Recent Cases
In July of 1978 the United States Supreme Court handed
down Lockett v
Ohio25
which invalidated the capital sentenc-
ing procedures then in effect in Ohio.
Lockett was an
attempt by the Supreme Court to clear up the confusion
following the 1976 Death Penalty Cases:
"£n the last decade many of the States have been
obliged to revise their death penalty statutes
in response to the various opinions supporting
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the judgments in Furman and Gregg and
its companion cases.
The signals from this
Court have not, however, always been easy to
decipher.
The States now deserve the clearest
guidance that the Court can provide; we have
an obligation to reconcile previously differing
views in order to provide that guidance."26
The Court noted that one problem the states had encountered in revising Lheir death penalty statutes was
deciding upon how much weight to give mitigation evidence.
The 1976 Death Penalty Cases had made it clear that such
evidence must be allowed.
Just how much discretion the
sentencer was to be afforded in evaluating the significance
of such evidence was, however, uncertain.
In analyzing
this problem, the Court made it clear that the death penalty
requires different considerations than the typicai case:
"We recognize that, in noncapital cases, the
established practice of individualized sentences
rests not on constitutional commands, but on
public policy enacted into statutes....
The
need for treating each defendant in a capital
case with that degree of respect due the
uniqueness of the individual is far more important than in noncapital cases....
There is no perfect procedure for deciding
in which cases governmental authority should
by used to impose death.
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But a statute that
Sarnriv Lee Ogan
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prevents the sentencer in all capital cases
from giving independent mitigating weight to
aspects of the defendant's character and record
and to circumstances of the offense proffered
in mitigation creates the risk that the death
penalty will he imposed in spite of factors which
may call for a Less severe penalty.
When the
ohoior is lu-1 \.< •• mi li!<- .mil ilc.it h, I ha! risk is
unaceept'ab I o and incompatible with the commands
of tiie Eighth and l-'onrteenth At lendments .
^
flie V.n.uri hold thi! "tiie Kightli and l-'onrteenth Arnendvont
re mi re (hat lis- ;en! m o o r ,
in all but the rarest
1; : nd oi c'jpitai case, not be precluded from considering,
as a mitigating factor, 'my aspect: of a defendant's character or reco'rd and any of tin.- circumstances of the offense
'•ii.it tiie defendant proffers as a basis for a sentence less
idian dea til.
Under the Ohio statute^-' overruled in Locket t, a
defendant was permitted to present the sentencing judge
with a wide range of potentially mitigating evidence.
However, the judge was precluded from considering it except
for the limited purpose of determining the existence of
three mitigating circumstances enumerated in the statute:
(i) victim inducement;
(ii) duress, coercion, or provocation;
ami ( i i i ) psychosis or mental
deficiency.^
The vice of the
Ohio statute was that the judge could consider mitigating
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factors such as youth, lack of specific intent, or the
defendant's minor role in the offense only if they shed
light on one of the statutory mitigating circumstances.31
Even though the judge, as sentencing authority, could hear
the mitigating evidence, the structure of the sentencing
procedure prevented the sentencer from giving independent
mitigating weight to the profferred evidence. 3 2
The Lockett decision made it clear that the defendant
has a constitutional right to a sentencing authority with
the power to consider all aspects of the defendant's
character, record, and offense offered.
As one commentator
noted:
"The Lockett decision thus does more than merely
expand the number of factors that must be considered bv a capital sentencing authority; it
alters the process by which that authority must
consider those factors.
The real significance
of the decision lies in its requirement that
the sentencer give all mitigating factors offered
by the defendant independent mitigating weight."33
Lockett also led to renewed criticism of the Texas
statute.
As mentioned earlier, the continuing validity
of the Texas statute depends, in large part, on the Texas
Court of Criminal Appeals allowing a defendant to introduce relevant evidence in mitigation of punishment.
Robinson v S t a t e t h e
In
Court of Criminal Appeals emphasized
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the requirement that the evidence be relevant.
"It
would appear," the Texas Court stated "that the statute
allows a trial judge broad discretion in determining
just what constitutes 'relevant evidence' at an Article
17.071 proceeding. "'J 5.
Similarly, in llovila v S t a t e d
the Texas Court of
('rii-iina! Appeal:: ei iphas i ::ed I. lie relevancy
In lit'vil.i
murder.
fin* »lt.' 1 en da ii t had been arcust'd of capital
lie was mistakenly released from jail and went
home to visit his mother.
to jail.
requirement.
four days later he was returned
The ilt* i e!ulan t. attempted to introduce evidence
that he !vui c.iri:.:i J "ed no crimes during his four days of
freodopi.
:!e i:v,tied that' the evidence would be relevant
in shov/itn', th.au he would not he a continuing threat to
society.
Lti i J'fi ».;i ling the trial court's refusal to allow
such evidence, the Texas court stated, "The evidence in
the instant case that liovi la did not murder or commit other
crimlnal acts during a four-day period would not show
that he probably would or would not be a continuing threat
to society.
More importantIv, the Court in Hovila
set forth what
it did consider relevant:
"This Court has stated that in determining
the probability that a defendant in a capital
murder case will be a continuing threat to
society, the jury could consider whether he had
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a significant criminal record; whether
his prior criminal conduct was severe;
whether he was young or old; whether he
was acting under duress or the domination
of another at the time of the commission of
the offense; and whether he was under an
extreme form of emotional pressure not far
removed from insanity."38
Decisions such as Robinson and Hovila
led commenta-
tors to question whether the Court of Criminal Appeals
felt that the relevancy requirement or the requirement
that the sentencer be afforded an opportunity to consider
mitigating circumstances was the real focus of the U.S.
Supreme Court's decision in
Jurek.39
This criticism
became especially pointed after Lockett:
"The Texas statutory procedure plainly violates
the independent mitigating weight requirement.
Like Ohio judges before Lockett, Texas sentencing
juries are permitted to consider mitigating
evidence solely for the purpose of resolving
three statutorily defined issues--the defendant's
intent to cause the death of the victim, the
continuing dangerousness of the defendant, and
the existence of provocation by the victim.
Insofar
as mitigating evidence offered by the defendant
and admitted by the trial court cannot help to
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answer any of these questions, the jury cannot consider and give mitigating effect to
this evidence.
And, as was true of the Ohio
law, the categories established by the statutory questions are not sufficiently broad to
allow the sentencer to consider any and all
factors that it might deem relevant to sentence."40
The Texas Capital sentencing procedures also fall short
of the mark with regards to jury instructions.
Article
37.071 C.C.P. requires that the trial court "submit the
following issues to the jury...."
the three issues set forth earlier.
The statute then lists
The Texas Court of
Criminal appeals in Quinones v State^l held that the issues
submitted under Article 37.071 are not so complex that
an explanatory charge is necessary "to keep the jury from
disregarding the evidence properly before
them.
"42
r
fhe
court went on to state, "The jury can readily grasp the
logical relevance of mitigating evidence to the issue of
whether there is a probability of future criminal acts of
violence.
No additional charge is
required."43
Under this
holding the defendant is not entitled to an instruction
informing the jury of its ability to consider mitigating
circumstances in answering the question of future dangerousness.
The jury cannot he presumed to give full consideration to mitigating circumstances unless it is informed of
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its ability to do so.
Nothing either in the statutory
questions or any other part of the statute expressly
refers to mitigating circumstances.
Indeed, the second
statutory question, referred to in Quinones, appears on
its face to refer to matters very different from the
existence of mitigating circumstances.
"Thus," it has
been noted "there appears to be good reason to doubt that
Texas sentencing juries will perceive in all cases the
proper role of mitigating circumstances in the sentencing
process, and will effectively consider mitigating factors
proffered by the defendant."44
In Shippy v
State45
the Court of Criminal appeals
upheld the trial court's refusal to submit a circumstantial
evidence charge on whether there was a probability the
defendant would be a continuing threat to society.
Justice
Roberts dissented:
"The majority appears to be laboring under the
assumption that punishment issue No. 2 only
inquires into the probability of the defendant
forming a futuristic intent.
I do not agree.
Punishment issue No. 2 inquires 'whether there
is a probability that the defendant would commit
criminal acts of violence that would constitute
a continuing threat to society.' Moreover, the
United States Supreme Court has discussed our
punishment issue No. 2 in terms of the prediction
of 'future behavior....'
0035 ]
Because there was no
Sarnriv Lee Ogan
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di rect evidence on one of the separate
ultimate facts of punishment, the trial judge
should have instructed the jury on the law of
circumstantial evidence as applied to the fact
question posed by punishment issue No. £"46
Judge Roberts then included a model instruction on the
issue.47
In King v S t a t e d the Court of Criminal Appeals held
that Article 37.0/1 requires no special definitions of
its terms.
Again, no instruction on circumstantial evidence
was required.
Again Judge Roberts dissented.
In February of this year the court handed down Johnson
v Stated
Johnson held that it was not fundamental error
for the trial court to deny the defendant's request that
issue No. 3 under Article 37.071 be submitted.
This time
Judge Clinton, joined by Judge Roberts, dissented:
"...though our statute does not explicitly
prescribe mitigating circumstances in terms,
the Supreme Court read issues one and three
facially to admit a consideration by the jury
of mitigating circumstances in some situations,
and on that bajis was able to uphold the entire
scheme.
That the constitutionality of our procedures
turns on whether the questions allow consideration of particularized mitigating factors...was
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quickly preceived
Jury consideration of
mitigating circumstances inherent in the third
special issue is, therefore, of constitutional
dimension....
We deal here with the sine qua
non of jury determination of death or life
imprisonment
In this light failure to
provide the guidance mandated by a constitutionally acceptable statute is fundamental error as
we know it in Texas for the error goes to the
very basis of punishment so that the charge fails
to permit the jury to consider the circumstances
constitutionally required for its
imposition."50
Though the Texas Court of Criminal Appeals has consistently held that jury instructions explaining the proper
role of mitigating circumstances are not required, other
Courts have held to the contrary.
Most notable are the
Fifth Circuit Court of Appeals and the Supreme Court of
the United States.
The Fifth Circuit has read Lockett to require clear
instructions on mitigation and the option to recommend
death:
"This const. lLiiL i ona I requ i rcnuMil. t.o allow con-
sideration of mitigating circumstances would have no importance,
of course, if the sentencing jury is unaware of what it
may consider in reaching its decision." 52
Further, the
court noted, "Antecedent support for the constitutional
requirement of clear sentencing instructions in capital
0035 ]
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cases derives from the Supreme Court's earlier conclusion
that the eighth and fourteenth amendments require that
'where discretion is afforded a sentencing body on a matter
so grave as the determination of whether a human life
should be spared, that discretion must be suitably directed
and limited so as to minimize the risk of wholly arbitrary
and capricious action.'"53
The Fifth Circuit in Spivey v Zant,54 gave an expansive
reading Lo Lockett:
"We hold that the eighth and fourteenth amendments require that when a jury is charged with
the decision whether to impose the death penalty,
the jury must receive clear instructions which
not only do not preclude consideration of mitigating factors, Lockett, but which also 'guide
and focus the jury's objective consideration
of the individual offense and the individual
offender..•' Jurek." 5 5
The Fifth Circuit then referred to the Texas scheme.
It noted that in some instances explicit instructions from
the judge might not be necessary:
"...if, for example, the state sentencing procedure
permits the jury to impose the death penalty only
after giving specified answers to special interrogatories, and if those interrogatories satisfactorily focus the jury's consideration on the
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circumstances of the offense and offender,
then the requisite guidance is achieved without explicit discussion of mitigating circumstances ."56 (emphases added)
Thus, instructions are required unless the interogatories under Article 37.071 "satisfactorily focus the jury's
consideration" on the mitigating circumstances.of the case.
As noted earlier, nothing in the statute specifically mentions mitigating circumstances or requires that the jury
i'.ive such evidence "independent mitigating weight" as required
ky Lockett.
Further, the Texas Court of Criminal Appeals
has narrowly cons trued the relevance of such evidence when
proffered by the defendant.
The same court has consistently
refused to require explanatory instructions in the punishment charge.
If the statute does not focus the jury's consideration
on the circumstances of the offense, and the trial court is
not required to do so through its instructions, how then is
the jury to know the importance of mitigating evidence?
Is
it up to the lawyers in their arguments to get this message
across?
The Supreme Court has said, "No."
Kentucky,37
In Taylor v
the Court stated that "arguments of counsel can-
not substitute for instructions by the
courtEarlier,
in Gregg v G e o r g i a , o n e of the 1976 Death Penalty Cases,
the Supreme Court emphasized the need for clearly intructing
the .jury at the punishment phase:
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Page 22
"The provision of relevant information under
fa ir procedural rules is not alone sufficient
to guarantee that the information will be properlyused in the imposition of punishment, especially
if sentencing is performed by a jury.
Since the
members of a jury will have had little, if any,
previous experience in sentencing, they are unlikely to be skilled in dealing with the information
they are given....
It is quite simply a hallmark
of our legal system that juries be carefully and
adequately guided in their deliberations."60
It is noteworthy that the instructions criticized in
Spivey were devoted almost exclusively to a discussion of
aggravating circumstances.61
At the end, the trial court
informed the jury, "You are authorized to consider all the
facts and circumstances of the case."^2
The Fifth Circuit
held that this was not enough:
"The charge does not begin to communicate to
the jury that the law recognizes the existence
of facts or circumstances which, though not
justifying or excusing the offense may properly
be considered in determining whether to impose
the death sentence."63
Where, it might be asked, does the Texas statute as it is
presently applied, even "begin to" communicate such knowledge to the jury?
The jury under Texas law is instructed
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to consider the two or three aggravating circumstances
enumerated in the statute.
finding on each issue,
to death."
If they return an affirmative
the defendant "shall be sentenced
There is nothing in this scheme to assure that
the jury will give the required weight to evidence offered
in mitigation of punishment.
In two major death penalty cases handed down this
year,the U.S. Supreme Court stressed the importance of
mitigating circumstances.
In Eddings v Oklahoma 6 ^ the
defendant was sentenced to death by the trial judge after
pleading nolo contendere to capital murder.
The Oklahoma
death penalty statute provided in part:
"Upon conviction...the court shall conduct a
separate sentencing proceeding to determine
whether the defendant should be sentenced to
death or life imprisonment....
In the sentencing
proceeding, evidence may be presented as to
any mitigating circumstances or as to any of the
aggravating circumstances enumerated in this a c t . " ^
The statute went on to list seven aggravating circumstances.
Nowhere did the statute define what was meant by "any mitigating
circumstances."
The st ate and t lie defendant presented several factors
for the court's consideration including substantial evidence
of Edding's troubled y o u t h ^
dence the trial court weighed
At the conclusion of the evithe evidence of aggravating
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and mitigating circumstances.
The judge found that
Edding's youth was a mitigating factor of great weight but
would not consider in mitigation the circumstances of Edding's
unhappy upbringing and emotional disturbance. 67
Finding
that the only mitigating circumstance was Edding's youth
and that this circumsLance could not outweigh the aggravating
circumstances present, the judge sentenced Eddings to death. 6 8
The Oklahoma Court of Criminal Appeals took the same
approach.
It held that the evidence in mitigation was not
relevant because it did not tend to provide a legal excuse
from criminal responsibility. 69
The Supreme Court reversed:
"We find that the limitations placed by these
courts upon the mitigating evidence they would
consider violated the rule in Lockett.
Just as
the state may not by statute preclude the sentencer from considering any mitigating factor,
neither may the sentencer refuse to consider, as
a matter of law, any relevant mitigating evidence.
In this instance, it was as if the trial judge
had instructed a jury to disregard the mitigating
evidence Edding proferred on his behalf."70
It is important to note that in Eddings the trial court,
learned in the law and experienced in sentencing defendants,
ran afoul oi: the "independent weight" requirement of Lockett.
This happened despite the fact that the statute specifically
0035 ]
Sarnriv Lee Ogan
Page 25
allowed for introduction of evidence in mitigation of
punishment.
Thus, it is not enough that the evidence merely
be present for consideration.
As the Court stated:
"We note that the Oklahoma death penalty statute
permits the defendant to present evidence 'as to
any mitigating circumstance' (citation omitted).
Lockett requires the sentencer to listen."71
Justice O'Connor, the newest member of the Supreme Court,
filed a concurring opinion in Eddings.
She stated that
"Lockett compells a remand so that we do not 'risk that the
death penalty will be imposed in spite of factors which may
call for a less severe penalty'....
Woodson and Lockett
require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the
trial court." 7 2
In the latest death penalty case handed down by the
Supreme Court, mitigating circumstances again played a key
role in the outcome.
2, 1982.
Enmund v
Florida73
was decided on July
Although the holding in Enmund dealt specifically
with whether a non-triggerman could be assessed the death
penalty, the Court referred to its previous holding in
Lockett:
"The question before us is not the disproportionality of death as a penalty for murder, but
rather the validity of capital punishment for
Enmund's own conduct.
The focus must be on his
culpability, not on that of those who committed
0035 ]
Sarnriv Lee Ogan
Page 26
the robbery and shot the victims for we insist
on 'individualized consideration as a constitutional requirement in imposing the death sentence',
Lockett (citations omitted) which means that we
must focus on 'relevant facets of the character
and record of the individual offender' Woodson. "7Zf
Justice O'Connor and three others dissented from the
holding in Lnmund that a non-triggerman may not receive the
death penalty.
She was joined by the Chief Justice, Justice
Powell, and Justice
R e h n q u i s t .
7 5
The dissent, however,
would not have affirmed Enmund's death sentence.
Rather,
they would have reversed based upon, inter alia, the
Lockett holding:
"In sum, in considering the petitioner's challenge,
the Court should decide not only whether the
petitioner's sentence of death offends contemporary
standards as reflected in the responses of legislatures and juries, but also whether it is disproportionate to the harm that the petitioner caused
and to the petitioner' s involvement in the crime,
as well as whether the procedures under which
the petitioner was sentenced satisfied the constitutional requirement of individualized consideration
set forth in Lockett."76
The Lockett requirement was discussed separately and at length
in the dissent.
Justice O'Connor reiterated its significance:
0035 ]
Sarnriv Lee Ogan
Page 27
"Repeatedly, this Court has emphasized that
capital sentencing decisions must focus 'on the
circumstances of each individual homicide and
individual defendant'....
Because of the peculiar
circumstances of this case, I conclude that the
trial court did not give sufficient consideration
to the petitioner's role in the crimes and thus
did not consider the mitigating circumstances
proferred by the defendant at his sentencing
hearing."7 7
The dissent would have vacated the death sentence and remanded for a new sentencing
hearing.78
Thus, in the last word on the subject, the Supreme Court
agreed 9-0 that mitigating circumstances must be given
independent weight for a death sentence to stand.
The dissent in Enmund contained language particularly
appropriate in analyzing the Texas death penalty scheme:
"Although the state statutory procedures did not
prevent the trial judge from considering any
mitigating circumstances, the trial judge's view
of the facts, in part rejected by the state supreme
court, effectively prevented such consideration."79
IV.
SUMMARY
The Texas death penalty scheme is constitutionally
deficient in that it fails the Lockett requirement and in
that it does not allow for jury instructions on mitigating
0035 ]
Sarnriv Lee Ogan
Page 28
circumstances.
There is no mechanism under Article 37.071
to assure that the jury gives "independent mitigating weight"
to evidence proffered in mitigation of punishment.
statute is silent as to mitigating circumstances.
The
Merely
allowing the jury to hear"any matter the court deems relevant
to sentence,"80 fa]_]_s f a r
s hort
of the requirements imposed
by the Fifth Circuit and the Supreme Court.
Contrary to the
Courts' prediction in Jurek, the Texas Court of Criminal Appeals
has not interpreted Lhe statute "so as to allow a defendant
to bring to the jury's attention whatever mitigating circumstances he may be able to show. "81-
Rather, the Texas
court has narrowed the factors which may be considered and
has emphasized the requirement that such evidence be relevant.
Further, the Court of Criminal Appeals has consistently
refused to require any jury instructions on mitigating circumstances.
The jury is left to consider only the aggravating
circumstances detailed in Article 37.071.
This falls short
of the constitutional requirement that the jury be adequately
instructed; the "sine qua non of jury determination of life
or death." 8 2
Therefore, Article 37.071 as presently applied
is unconstitutional.
This weakness in the Texas capital murder scheme, if
properly exploited, could have either of two effects.
If
the trial judge is educated on the issue he or she will likely
aLlow whatever evidence the defendant offers in mitigation.
No trial judge wants a case, especially a capital case,
0035 ]
Sarnriv Lee Ogan
Page 29
reversed for failure to let in evidence.
The second
possibility is that the trial judge will refuse such evidence
and will refuse to charge the jury on mitigation.
If this
happens and the trial attorney carefully preserves his or
her record, there is every possibility that the Texas statute
will be held unconstitutional on appeal.
0035 ]
APPENDIX A
003?;
NO. 24,465
THE STATE OF TEXAS
J
IN THE 72ND DISTRICT COURT
VS.
I
OF
PAUL BARRY BUSH
J
LUBBOCK COUNTY, TEXAS
DEFENDANT'S MOTION ASSERTING THE UNCONSTITUTIONALITY
OF ARTICLE 37.071 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES the Defendant in the above styled and numbered
cause, by and through his Court-Appointed Attorney of Record, and
would respectfully show unto the Court as follows:
I.
The Defendant stands charged by Indictment with a capital
offense, thus information concerning his background, childhood
development, and related background matters will be of critical
importance, particularly in the event: the punishment phase of the
case is reached after a conviction of a capital offense.
Such
information and evidence would, under the January 19, 1982,
decision of the United States Supreme Court in EddingSv. Oklahoma,
102 S.Ct. 86() (1982). constitute mitigating factors and circumstances
for the jury to consider.
II.
Article 3 7.1) /1, C.C.I'., does not require that the sentencer
in a capital
.»
•ase «$ive "independent mitigating weight to aspects
he :ierir.nd.iM" 1 i chancier
Supreme Court
md
-e-vord." as mandated by the U. S.
in sockett v. Ohio. A38 U.S. 586, 605 (1978).
00375
III.
Defendant would further show that Article 37.071, C.C.P.,
fails to require the Court to submit what the Fifth Circuit has
called "clear instructions...which guide and focus the jury's
objective consideration of the particularized circumstances of
the individual offense- and the individual offender."" Spivey v.
Zant, 661 F.2d 464 (5th Cir. 1981).
IV.
The Defendant has a federally secured right to be free from
punishment imposed arbitrarily and capriciously in violation of
the Eight and Fourteenth Amendments to the U. S. Constitution.
The special issue procedure of Article 37.071 creates "the risk
:hat the death penalty will be imposed in spite of factors which
•nay call for a less severe penalty." Lockett, at 605.
V.
WHEREFORE, PREMISES CONSIDERED, Defendant moves this Court
• o hi'Ld Article 3 7.0 7.1 of the Texas Code of Criminal Procedure
".neonstitutional under the Eighth and Fourteenth Amendments of
' he United States Constitution for che reason that it fails to
ul.de the iury's objective consideration of the particularized
* i renins nances of the offense- and doe:; not require that the jury
y.ive independent mitigating weight to the Defendant's character
and record.
RESPECTFULLY SUBMITTED,
FTOYD D. HOLDER, JR.'
805 Metro Tower, 1220 Broadway
Lubbock, Texas 79401
Phone (806) 763-9296
State Bar No. 09832500
ATTORNEY FOR DEFENDANT
'V.our r -Appointed)
0037C
FOOTNOTES
00377
Sammy Lee Ogan
Footnotes, p.1
FOOTNOTES
/
1.
F. Holder,Punishment Phase, in LUBBOCK CRIMINAL DEFENSE
LAWYERS ASSOCIATION CRIMINAL PRACTICE UPDATE 2 (1982).
2.
Art. 37.071 Texas Code of Criminal Procedure.
3.
STATE OF TEXAS VS. PAUL BARRY BUSH, NO. 24,465, 72nd
Dist. Ct. Lubbock Co", Tex.
4.
408 U.S. 238 (1972).
5.
Id. 240-57.
b.
MELTSNER, CRUEL AND UNUSUAL 292-93 (1973).
7.
England, Capital Punishment: in Light of Constitutional
Evolution, 52 Notre Dame Law 596, 596-600 (1977).
o.
Roberts v. Louisiana, 42 8 U.S. 3 25; Woodson v. North
Carolina 423 U.S.ToO; Jurek v Texas 428 U.S. 262;
Proffitt v. Florida 428 U.S. 242; and Gregg v. Georgia
428 U.S. 151; a 11 ITee i ded bv the Supreme Court on July
2, 19/6.
M#
Ga. Code Ann. 526-1101 (197 2).
10.
Fla. Stat. Ann. $782.04 (1) (Supp. 1976-1977).
11.
Supra note 2.
12.
See, Woodson, and Roberts, supra note 8.
13.
428 U.S.262 (1976).
14.
Id. 276.
15.
Id. 270.
16.
Texas Penal Code § 19.03(a)
17.
Id. para. (b) .
18.
Supra note 13, at 270.
Id. 271.
20.
Supra note 2.
21.
Id.
Supra note 1.3, at 2 72..
00 TO
Sammy Lee Ogan
Footnotes, p.2
23.
Id.
24.
Id. 273-74.
25.
438 U.S. 586 (1978).
26.
Id. 602.
27.
Id. 604-05
28.
Id. 604.
29.
Ohio• Rev. Code Ann.
30.
Id. para, (e) .
31.
Hertz and Weisberp,,
Ohio and the Capital Defendant's Right to Consideration
ot Mitigating Circumstances, 69 Calif. L. Rev. 317,326 (1981).
32
Id.
33
34
548 S.W. 2d 63 (1977) .
35
Id. 65.
36
562 S.W.2d 243 (1978).
37
Id. 249.
38
39
See, Davis, Texas Capital Sentencing Procedures: The Role
of the Jury and the Restraining Hand of the Expert"] 69 J.
Crim. L. & Criminology 300 (19/8); Dix, Appellate Review of
the Decision to Impose Death, 68 Geo. L.J. 97,154-55 (1979).
40.
Supra note 31, at 332-
41.
592 S.W.2d 933 (1980) .
42.
Id. 947.
43.
Id.
44.
Supra note 31, at 331
45.
556 S.W. 246 (1977).
46.
Id. 267-68.
47.
Id. 268-69.
48.
553 S.W.2d 105 (1977) .
4.
b 29 S.W.2d 731 ( lc'o 1 ) .
00370
Sammy Lee Ogan
Footnotes, p.3
50.
Id. 739-40.
51.
Omitted.
/,
t
,
"
;-r,
•
;
y
52.
Spivey v. Zant 661 F.2d 464,470 (1981),J quoting Chenault
v. Stynchcombe 581 F.2d 444,448 (1978)/'
53.
Id.
54.
661 F.2d 464 (1981).
55.
Id. 471.
56.
Id.
5/.
430 U.S. 4 78 (1.9/8).
58.
Id. 488-89.
59.
Supra note 8.
60.
Id. 192-03.
61.
Supra note 54, at hJW.
62.
Id.
63.
Id.
64.
102 S.Ct. 869 (1982).
65.
Okla. Stat., Tit. 21 §70.1.10.
60.
Supra note 64, at 8/2.
67.
Id, 873.
08.
Id.
69.
Id. 875.
70.
Id. 875-76.
71.
Id. 876 n.10.
72.
Id. 878.
73.
50 L.W. 5087 (1982).
74.
Id. 5091-92.
75.
Id. 5093.
76.
Id. 5096.
77.
Id. 5099-'5*100.
Sammy Lee Ogan
Footnotes, p.4
78.
Id. 5101.
79.
Id. 5100.
80.
Supra note 2.
81.
Supra note 23.
82.
Supra note 50.