----- ~N.C. cw/ss 1/16/76 MEMORANDUM. TO: Mr. Justice Powell DATE: January 16, North Carolina Cases

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$cw/ss 1/16/76 MEMORANDUM \ TO: Mr. Justice Powell DATE: January 16, 1976 FROM: Chris North Carolina Cases I suggest that the cases involving convictions under the ~N.C. ~ ~ ~k pre-furman statute (as construed judicially by Wadel!$ If the Court does not declare capital punishment unconstitutional on its face or on some ground that infects North Carolina's application of the pre-furman statute, then the court can decide these

If the Court does not declare capital punishment unconstitutional on its face or on some ground that infects North Carolina's application of the pre-furman statute, then the court can decide these

1 cw/ss 1/16/76 MEMORANDUM \ TO: Mr. Justice Powell DATE: January 16, 1976 FROM: Chris North Carolina Cases I suggest that the cases involving convictions under the ~N.C. ~ ~ ~k pre-furman statute (as construed judicially by Wadel!) be cs holcl:s leftafor the time being. The judicial construction twist interferres with the clear presentation of the death penalty question. If the Court does not declare capital punishment unconstitutional on its face or on some ground that infects North Carolina's application of the pre-furman statute, then the court can decide these cases separately. many of them prevent finality questions. In addition, There is a petition involving North Carolina's new mandatory statute which is a strong candidate for a grant. That case is Woodson v. North Carolina, No It is somewhat obscured by the fact that the actual gunman in the felony murder pled guilty to a lesser offense and testified at petitioners' trial. Thus, the case demonstrates marked arbitrariness in the prosecutor's decisions to plea-bargain and to charge. Another problem with the case is that defendants are black and the victim was white. The murder took place during an armed robbery of a store; the victim was a shop assistant. One petitioner went into the store with the gunman. The other waited in the car with a second man who turned state's

2 2. evidence for a reduced sentence. The case is the only one under the new statute and presents only the capital punishment issue. Georgia Cases ( There are three cases that might make good candidates for a grant. Ginty recommends House v. Georgia, No , which involves a white defendant and presents only the question of capital punishment. My only compunctions about that case arise from the fact that it involved a particularly brutal murder of two seven-year old boys. Another possibility is Gregg v. Georgia, No That case involves a rather clean, straight-forward murder (and robbery) of the driver of a car and his passenger by two hitchhikers. (Petitioner is white). The case also '-- involves probable cause and Miranda questions, but they do not seem to be meritorious. A final possibility is Coker v. Georgia, No Petitioner (~i~ ) which he drew life) and three rapes. was injail for (I believe) a murder (for While escaping he committed a series of acts which led to convictions for rape, armed robbery, kidnapping, motor vehicle theft, and escape. Death was imposed on the rape charge. This case is rather clean in that the victim and the petitioner are white. it involves rape, rather than murder. Also, Petitioner also raises

3 3. a Drope/Pate due process claim, and a confrontation clause argument. Neither appear to have merit, although the former is not frivolous. I would go with Gregg. Louisiana cases There are two cases from Louisiana, both of which appear to be good candidates for plenary review. Selman v. Louisiana, No , involves notabl~nonviolent rapes of two white girls by a white man. Louisiana provides a mandatory sentence of death for "aggravated rape," and this case presents a fact situation that must be close to the line. There is a Taylor problem, but, of course, Taylor has been held to be not retroactive. There is a twist, however, in that women were automatically struck from the venire list in this case, rather than being excused when they appeared. The other case (which may be less messy because the Taylor question, although raised below, has been dropped on appeal) is Roberts v. Louisiana, No Only the capital punishment question is presented. The murder for which petitioner was convicted took place during an armed robbery. This case raises a problem similar to that raised by Woodson in that a co-perpetrator was not convicted of first degree murder. Petitioner is a black male who shot a gas station attendant.

4 4. Florida Cases The three cases to be considered here are: Proffitt v. Florida, No , which involves a murder..fki '"' L took place during a breaking-and-entering. Petitioner is white. Capital punishment is the only question presented. The jury recormnended death (because the crime was "heinous") and the judge agreed. The thing that bothers me about the case is that it seems to be an extreme example of the jury mouthing boilerplate language ("heinous") under an aggravatingmitigating statute, demonstrating the worst effects of such statutes. Gardner v. Florida, No , in which a white man was sentenced to death for the particularly brutal murder of his wife during a drunken family argument. This case is interesting because the jury recormnended life and the judge imposed a death sentence (based in part on a pre-sentence investigation report). There is also a contention that the nondisclosure of portions of the report denied effective assistance of counsel and a fair hearing on the sentence. I find the facts of this case so horrible that I would recommend not granting it. Sawyer v. Florida, No , is another case in which the jury recormnended life but the judge imposed death. is a cleaner case on the facts. This Petitioner was given a death sentence after conviction for first-degree murder in the killing of the son of the proprietor of the liquor store

5 5. he was attempting to rob. The trial judge considered facts not before the jury, such as that petitioner had been charged with 14 other robberies, that he was an addict, and that he had assaulted a correctional officer while in jail. Petitioner's only contentions are addressed to the Florida capital punishment statute. I also suggest you consider granting the single Texas case, Jurek v. Texas, No Texas' statute imposes unique controls on the sentencing process, which might make it more palatable than other state statutes. Also, it is the only example of the "quasi-mandatory aggravating-mitigating" category (see Ginty's memos). Perhaps, it Oould be taken in place of the North Carolina case (Woodson). Both North Carolina and Louisiana have "mandatory" statutes. One case each from Georgia, Florida, Texas, and Louisiana/North Carolina would give the Court an example of each category in Ginty's spectrum. The facts of the Jurek case involve the murder of a ten-year old girl by a white man during an argument over whether she would have sexual relations with him. The case involves other questions concerning the voluntariness of the confession and probable cause for arrest, but they appear to lack merit. My recommendations are: Gregg, Roberts, Proffi~ and Jurek. All but Roberts involve white defendants. If the

6. Court wants a rape case, it may have to settle for Selman, or Coker. I just received Ginty's memo and note he &so suggests Sullivan and Songer from Florida.

I think, however, that the problems of the Florida-type statute may be better presented in the cases I discussed.

6 6. Court wants a rape case, it may have to settle for Selman, or Coker. I just received Ginty's memo and note he &so suggests Sullivan and Songer from Florida. I thought Sullivan inappropriate because of the serious prosecutorial misconduct question. Songer appears to be appropriate, and is the "cleanest" case from Florida. I think, however, that the problems of the Florida-type statute may be better presented in the cases I discussed. The decision depends on whether you prefer a clean case or a hard case that presents the problems inherent in the statute. As for the Georgia cases, I was put off Ross by the off Witherspoon issue, and Mitchell by the racial overtones "- mentioned by Ginty and the fact that petitioner pled guilty. I would definitely not take McCorquodale. The facts in that case are horrible. The crime was so brutal that I could not finish reading the statements of facts. This would certainly divert everyone's attention from the real questions. Chris

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L/L0{/0 Capital Cases North Carolina Woodson v. North Carolina, 75-5491 - only case under new mandatory statute.

12 L/L0{/0 Capital Cases North Carolina Woodson v. North Carolina, only case under new mandatory statute. Not good case to take because the actual murderer pled guilty in plea bargaining to lesser offense. The petitioner, in the felony murder, was not the gunman. Also petitioner is black. Victim white. I would not Grant any North Carolina case. Louisiana has similar statute, and two cases from Louisiana are cleaner cut than this. Georgia Three suitable candidates, in following order: Gregg v. Georgia, murder by white hitchhiker of driver of car and passenger. No other serious i ssues. House v. Georgia, brutal murder by white of two small boys. No other serious issues. Coker v. Georgia, conviction of white for rape of white, after escaping from prison where he was s erving term for murder. (If we take a rape case this seems best. There is a Drope/Pape issue we need not review).

2. Louisiana Mandatory statute like North Carolina's. Roberts v. Louisiana, 75-5844 - Black shot a white filling station attendant in an armed robbery.

13 2. Louisiana Mandatory statute like North Carolina's. Roberts v. Louisiana, Black shot a white filling station attendant in an armed robbery. But his co-perpetrator was not convicted of first degree murder. Case free of other issues, as the Taylor grant was dropped on appeal. Selman v. Louisiana, non-violent rape of two white girls by white man. Not a strong fact situation. Also, Taylor issue is urged and women were struck automatically from venire. Florida On aggravating/mitigating statute, requi ri ~~ s pecial findings. But is not as typical of this type as Texas. Three cases, in order: Proffitt v. Florida, murder by a vn1ite during a breaking and ent ering. Jury recommended death and judge agreed. No other issue. Gardner v. Florida, brutal murder by white man of wife. J ury recommends life. Judge imposed death. There are other issues, none too compelling. Sawyer v. Florida, felony murder by white - robbery of liquor store. Jury recommended life. Judge imposed death.

14 3. Texas Only example of "quasi-mandatory" statute. Unique controls on sentencing proces s aggravating/mitigating provisions. Only case: Jurek v. Texas, murder by white man of t enyear-old girl during argument over sexual overtures. Other issues not important. ss L. F. P., Jr.

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