Dewey E. Coleman v. Henry Risley, Warden, Montana State Prison, and Michael T. Greely, Attorney General for the State of Montana

Cir.1983). (9th ler, F.2d physi- opinions of the that the

AU found Brawner, extent that to the

cians cited period short

they relevant were or oth- on clinical

question, were based evidence, on Brawner’s but

erwise reliable con- Brawner’s Because complaints.

own credibility, it was rea- his

duct undermined reliability phy- question

sonable Brawner’s opinion

sician’s based replete opinion was AU’s

complaints. The factual evidence other medical conclusion, and the district

justifying his provided more the record

court found that findings. support for adequate

than agree.

We that the contends

Finally, Brawner past relevant classifying his

ALJ erred erred if the ALJ “light.” Even

work found that Brawner respect, also he light perform other work able Any er such disabled.

was therefore not and establishes harmless

ror therefore

no cause remand.

AFFIRMED. COLEMAN,

Dewey E.

Petitioner-Appellant, Warden, RISLEY,

Henry Montana State

Prison, Greeley, Attor- Michael T. Montana, ney General for State

Respondents-Appellees. 85-4242.

No. Appeals, Court of

United States Circuit.

Ninth

Argued May 1986. and Submitted Jan.

Decided School, Law

Henry Greely, T. Stanford Cal., Stanford, petitioner-appellant. for Gen., Scheier, Atty. State Asst. James M. Helena, Mont., respondents- Mont., appellees. remains, her decomposition ALARCON, cause of REINHARDT and Before determined. not be could cause of death

THOMPSON, Judges. Circuit were arrested Nank and Coleman THOMPSON, Circuit R. DAVID October, charged 1974 and Boise, Idaho in Judge: in the death of homicide deliberate During questioning Peggy Lee Harstad. Coleman, pris- a Montana state Dewey E. implicating confession gave a full Nank death, sentenced to has been oner who kidnap, rape in the and Coleman himself court’s denial of district appeals from the Coleman denied of Harstad. and murder corpus of habeas petition for a writ apart- in the crimes. The any involvement affirm. 2254. We under 28 U.S.C. § and Coleman lived was ment where Nank searched, motorcy- as was their car. Two I. FACTS rope Nank said had helmets and a been cle Harstad, Peggy Lee July in the crimes were recovered. Cole- On used old, disappeared charged while twenty-one years man and Nank were with deliber- Rosebud, homicide, aggravated kidnapping, and driving Harlowton to alone from ate A day car found without consent. con- The next her sexual intercourse Montana. home, aggravated kidnapping carried near Rose- viction of a few miles of her within later, mandatory death sentence. Mont. days a ranch hand dis- with it a bud. Several (1947) (repealed Ann. 94-5-304 Code purse her inside a culvert about § covered 1977). her car. ten miles from abandoned followed, elderly investigation which May Nank entered into a On evening reported that on the Har- couple plea agreement He written with State. disappeared they had seen a black stad agreed plead guilty homi- to to deliberate hitchhiking man between man and a white inter- cide and solicitation to commit sexual Roundup Forsyth, Montana at about and testify against course and to Coleman driving had been between

the time Harstad aggravated kid- return for dismissal of the The two men were identified those towns. napping charge; ag- the dismissal Coleman, man, Dewey Eugene a black charge gravated kidnapping was not to oc- Nank, a white man. and Robert Dennis cur until after Nank had testified at Cole- man’s trial. Coleman’s counsel entered 9, 1974, representatives July On bargaining plea into discussions. Coleman questioned County sheriffs office Rosebud innocence, maintaining insisted on his how- being in He admitted the area Nank. ever, plea agree- a and was unable to make alive, Harstad had last been seen where ment with the State. hitchhiking through Forsyth, Montana and evening July 4th. In an interview on the 2, 1975, pretrial hearing July On a was later, agents with FBI about one month brought by held on a motion Coleman’s seeing also admitted the Harstad ve- Nank seeking counsel to obtain a court order finding hicle on the road and a abandoned authorizing copying of Nank’s medical purse along the road where he and Cole- present records. was not at the hitchhiking. By time man had been hearing. explained His counsel that Cole- reported positive comparison the FBI had a Billings, man had been taken to Montana fingerprint and a fin- between Coleman’s amytal see if for a sodium examination to pa- gerprint lifted from a which had been July remember the events of he could Vacuumings per purse. found Harstad’s During hearing, the course of the revealed from the Harstad vehicle taken counsel stated he wanted to en- Negroid pubic Negroid hairs and two head negotiations plea ter into further with the hairs. following colloquy occurred: State. 29th, into two months af- Defense I want to enter August almost Counsel: On bargaining body plea Harstad’s was further with the State disappearance, ter her Also what I of the Yellowstone and with the the north bank Court.... found on Forsyth, say today, I have not con- River, Montana. Be- have to just west testify fully as to what his ex- client, I believe my but with firmed crime, in the participation was of time be- tent of the shortness because trial, thought I it what was time of and to avoid and the now tween raised_ well, My objection, most severe prosecution’s should be client — proceed entering plea on the basis he a I to that is that was want and also things bargaining innocent, and plea that saying this is he was and against not be held say should get I should him to out. Now this would allow time. Is that some later my client at indicated I that the State before know understood? thought hung. they he should be go position for that Attorney: I don’t know the State’s I don’t what State’s presenting an either re- I think we’re Mr. will be all. is. Now going to hold If according here. we’re Dr. argument City, turning to Miles conference, do let’s bargaining plea Harr, o’clock. sometime around eleven later.... immediately confer with I intended doing he’s that what called me al- I think Doctor Harr has The Court: him. bring some- morning, foundation infor- laying and from the ready this go thing up. received, Now ahead. appears it I have mation go memory I’ll has refreshed my That’s correct. client’s been Defense Counsel: my part state- on his participation I don’t believe and there forward. Therefore, against my my client I can used function ments be in the crime. psychi- purpose believe, try accomplish event. is to place my examination was atric arrangements with State make if amytal to see his sodium life, client under my man’s to save with the Court memory could re- recollection personal problem presents and also freshed, in all communications because me that personal dilemma to me, tell me what he could not with if have to continue would mean we continually He asserted happened. my feelings of what the trial with presented quite a and it innocence me, if that’s and that Dr. Harr told him. That trying to defend problem true, very difficult to contin- it will be Dr. send him to purpose, argue the and to ue in the defense placed under sodium have him Harr to personal a dilemma Now that’s case. investigation That has been amytal. I have. I on the basis of and believe conducted personal di- may be a The Court: That examination, my client will lemma, obligation that it’s an but guilty. plea of to enter a want go through with. So to you’ll have condition of— The Court: Without propo- the same now makes your client the assertion Counsel: Without Defense Nank has? the State as sition to I statements Now these of innocence. Yes, he would. Defense Counsel: I had make are based on conversations understanding was agreement or No he prior to the time my client with hearing. 2nd When July reached at if That up for the examination. went day, the next Coleman convened court was revealed certain examination referred to the His counsel present. was memory his and things that refreshed stated that amytal examination and sodium story that Nank was indicated that guilty “under plead Coleman would true, or substantial- telling was fact as has been conditions same terms and true, position my that then would be ly regard Mr. to accepted by the State go to the Court that we should back accept from refused Nank.” The State plea a with the and offer to enter bargain which plea the same Coleman understanding that the death prosecutor with Nank. been made imposed, and then if the memo- not be about Coleman concerned stated he was ry is refreshed and his recollection plea challenging the voluntariness after the sodium events is sustained were circum- there off, time. He stated then he a later amytal has worn he had killed stances in Coleman’s case which made it He told Coleman Harstad’s. significantly woman, different from Nank’s. He Coleman to hide and asked back; stated these included the fact that claims brought he had purse which woman’s had been case that his made complied. denied any Coleman attorney incompetent and that was death and maintained he involvement change prejudice venue avoid had not report did not Nank authorities be- change prej- been a sufficient to avoid such he afraid of retribution from cause was pointed previ- udice. He also to Coleman’s implicat- afraid he Nank would be (which insanity defense ous assertion of ed the crime. waived), pos- Coleman had later and to the Nank testified that when the Harstad sibly amytal procedure sodium unreliable stopped, got vehicle both he and Coleman prompted which had Coleman to offer a they proceeded into the car. As toward guilty plea. Forsyth, ignition Nank turned the key off proposed plea bargain When Coleman’s and maneuvered the vehicle to the side of state, rejected by his counsel re- togeth- the road. He tied Harstad’s hands quested to relieved. He stated that yellow er nylon rope, with a her removed although he could defend Coleman on the clothing except for her attempt- blouse and aggravated kidnapping charge, there was ed to have sexual intercourse with her but way jury “no in the world I can state to the could not maintain an erection. Coleman that he is innocent of deliberate homicide got then in the back seat with Harstad and that he’s innocent of sexual intercourse had sexual intercourse with her. Nank without consent.” The trial court denied testified that he thereafter dressed the vic- motion, supreme but the Montana they tim and drove to the Yellowstone Riv- subsequently relieved Coleman’s counsel er. Nank carried Harstad over his shoul- appointed represent counsel new der put to the side of the river. He her him. Coleman’s new counsel took over his down, they talking, and as were representation proceedings unaware of the came from behind and hit Harstad several place July which had taken 2 and 3.1 times on the motorcycle head with his hel- began Trial October Coleman met.2 rope Coleman then took the from and Nank They both testified. had met attempted strangle Harstad’s hands and Hospital one another at the Veterans her. Nank said Coleman asked him to Sheridan, Wyoming. being Coleman was help, but he was unable to do so. Both depression. treated for history Nank had a Harstad, men then carried who was uncon- They of mental discharged illness. were scious, drainage to a area near the river from Hospital the Veterans traveled they dumped body. where her When Har- motorcycle. They Montana on Nank’s ran attempted get stad up, Coleman held her gas Roundup out of Forsyth between feet and Nank held her head under the during 4, evening July hours of 1974 water until she was drowned. point decided to hitchhike. From this on their stories differed. II. PRIOR COURT PROCEEDINGS Coleman testified that he and Nank had jury been A attempt unsuccessful in their to hitch- convicted Coleman of deliberate hike, homicide, aggravated but that Nank kidnapping, was able to obtain a and sex- ride for himself consent, and headed toward For- ual inflicting intercourse without syth. Nank returned bodily injury. several hours later He was sentenced to one driving a car subsequently years identified as hundred for deliberate homicide and 1. The transcript new counsel did not obtain a 2. The State contended the crack in Coleman’s 3, July July hearings motorcycle by striking 2 and helmet was 1975 until Febru caused Har- head, ary 1154, stad on the and that the crack in the Risley, 1982. See Coleman v. 663 P.2d part corroborating helmet was of the (Mont.1983) (Coleman evidence IV). 1158 Coleman's ha- trial, testimony. pathol- Nank’s At Coleman’s corpus petition beas was filed in the United ogist testified Harstad’s skull had not been frac- States district court in November 1981. tured.

441 court. It in the State not transcribed charge. He was but rape on the forty years new coun- kidnap at this time that Coleman’s aggravated for death sentenced July July 2 and mandatory death sel first learned under Montana’s ping during Montana appeal, hearings which the result of On 1975 penalty statute.3 mandatory amytal plea pro- held test and supreme court sodium Coleman’s was unconstitutional. penalty statute posals death disclosed and his then had been Coleman, P.2d Mont. 579 v. 177 State requested relieved as his counsel had I). (1978) (Coleman Cole 732, 741-42 corpus pro- attorney. The federal habeas his sentence was vacated man’s death ceeding stayed provide Coleman the court for to the trial remanded case was remedies opportunity to exhaust his State then resen- resentencing.4 Coleman was for of his and death review convictions Mon in 1978 under a new death tenced to hearings. The sentence in view of these had been penalty statute which tana death supreme Montana court denied Coleman’s Ann. 95- in 1977. Mont.Code enacted §§ relief. Cole- petition post-conviction for (now codified at through 95-2206.15 2206.6 Risley, man v. Mont. 663 P.2d 203 through 46- 46-18-301 Mont.Code Ann. §§ (1983) (Coleman IV). 18-310; precodification hereinafter cited then filed a motion for an evi- Coleman version, Appendix). reproduced at hearing corpus peti- dentiary on his habeas automatically re sentence was sought He tion in the district court. supreme court. Montana by the viewed hearing thirty-seven issues on twelve through 95- Ann. 95-2206.12 Mont.Code §§ a motion for petition, raised in his and filed upheld his convictions The court 2206.15. remaining summary judgment on the is- Coleman, and sentences. State The State also filed a motion sues. (1979) (Coleman 299, 605 P.2d 1000 Mont. August summary judgment. On denied, II), cert. granted the State’s mo- the district court (1980); Coleman 64 L.Ed.2d against judgment Cole- tion and entered Sentencing Review Division of appeals. man. He Montana, Court of (a) resentencing his Coleman contends: (1980) (vacating stay L.Ed.2d statute violat- penalty under the 1977 death denying death sentence and execution of post ed the ex of the Constitu- clause certiorari). facto tion; (b) death statute Montana’s Thereafter, petition filed a with Coleman required him to bear the unconstitutionally post-conviction relief. court for the State factors; (c) proof burden once judgment and sentence were His impermis- in an jury panel his was selected by the Mon again reviewed and affirmed trial, manner; (d) discretionary sibly State, court. Coleman supreme tana conviction, were the sentence and death denied, cert. (Mont.1981), P.2d 624 discrimination; (e) his of racial result L.Ed.2d 693 of due imposed in violation sentence was III). (1982) (Coleman process of law. corpus un- of habeas petition A for writ filed in the Unit- 2254 was der 28 U.S.C. § LAW EX FACTO III. POST for the district of ed States district first sen- was convicted and The State in November 1981. Montana mandatory death in 1975 under tenced to a list of all tran- provided subsequently held to penalty statute recorded that were scripts proceedings supreme con- court The Montana shall im- also vacated. provided that "[a] statute 3. The following show conviction of evidence to there was insufficient pose of death cluded sentence kidnapping injury upon if it finds that the victim aggravated bodily Har- had inflicted Coleman conduct.” of the criminal a result committing is dead as inter- sexual stad in the course (1947) (repealed 94-5-304 § Rev.Code Mont. af- murdered sometime because she was course 1977). 1, I, Mont. rape V77 incident. Coleman ter the P.2d at 742-43. for sexual intercourse sentence 4. Coleman’s consent, inflicting bodily injury was without that Montana’s new correct in 1978 the Montana Coleman is be unconstitutional after his trial. sentencing enacted I, 1, law was 177 Mont. supreme court in Coleman change the “rules law did not But the new In the Montana 579 P.2d at 741-42. testimony regarding Nank’s game.” of the legislature penalty death passed a new burglary was admitted at Roundup the statute, constitutionality of which was fully and was admissible at Coleman’s trial McKenzie, upheld 177 Mont. v. State hearing sentencing under Montana’s (Mont.1978), 1228-29 581 P.2d sentencing regime. 95-2206.7 Section new grounds, vacated other of the Montana Code authorizes sen- S.Ct. 61 L.Ed.2d 871 tencing “evidence judge to receive ... as to in 1978 under this new was resentenced any matter the court considers relevant to post He the ex statute. contends facto sentence, any ... and other facts in was violated clause of Constitution aggravation mitigation penalty.” to death under when he was resentenced Mont.Code Ann. 95-2206.7. In evaluat- § the 1977 statute. circumstances, ing mitigating considers, among things, other the defend- post To the ex clause violate facto “prior activity.” ant’s criminal Id. Constitution, a law must be retro 95-2206.9(1). argument that Coleman’s § spective disadvantage of and it must disadvantaged upon the new law him rests Graham, by it. fender affected Weaver assumption the unsubstantiated 960, 964, 24, 29, Roundup burglary circumstance of the Crozier, (1981); L.Ed.2d 17 States v. United brought would not have been to the atten- (9th Cir.1985). 1376, 1383 77 F.2d Fur 7 sentencing hearing, tion of the court at the thermore, change if a retroactive “[e]ven but Coleman’s cross-examination of disadvantage is a to the criminal law provided Nank at trial. Coleman has noth- defendant, post it does not violate the [ex ing support assumption. Dob- See change procedural clause if the ] facto bert, 432 U.S. at 2298-99 rather than substantive.” United States (discussed infra; rejecting petitioner’s McCahill, (citing 765 F.2d Dobbert “speculation” jury would have recom- Florida, imprisonment prior mended life had law (1977)). 53 L.Ed.2d 344 effect). still been trial, During Coleman’s Nank testi suggested counsel at oral ar- day gument fied that on on cross-examination that Coleman’s trial counsel would murdered, Peggy differently Lee Harstad he have cross-examined Nank burglarized testimony scrutinized his Roundup, a home in about the Round- up burglary effectively guns. more had the new Montana and stole some The sen sentencing law been effect. Given that tencing judge considered this circumstance Nank and Coleman testified as to conflict- at the time Coleman was resentenced to day accounts of the events the death under Montana’s amended 1977 occurred, suggestion murder that Cole- penalty statute. Coleman claims he attorney man’s had no motive to scrutinize would not cross-examined Nank have con burglary Nank’s recollection of the which cerning Roundup burglary had he day Nank said occurred on the of the mur- testimony eventually known this Further, unconvincing. der is Coleman has against sentencing hearing. him used at a opportunity not shown he was denied the Under the old death statute Nank’s sentencing hearing. reexamine Nank at the concerning Roundup burgla testimony VII, See our discussion section 3b. infra ry would not effect on wheth have However, accept even if we Cole- were er Coleman sentenced to death. His assumption, man’s Court’s aggravated kidnapping man conviction holding rejection dictates of his Dobbert argues sentence. He dated a death post ex claim. facto changed law the “rules the new Dobbert, game” to his detriment after his trial Dobbert committed crimes sentencing. and before when Florida had an unconstitutional death

443 rendered change which the held that Court a defendant punished which statute penalty was admissible incriminating evidence recommended the jury the unless death post ex 2296. the 288, at violate 97 S.Ct. did not and procedural at 432 U.S. mercy. trial, brought enlarge to the not was “did Dobbert it time because By the clause facto stat- constitutional had enacted was liable accused Florida the to which punishment presumptive the law removed ute; new committed, the nor make his crime was when to judge the sentence, permitted but death criminal that offense in his any act involved le- of jury’s recommendation the override he committed the time at not was criminal At 290-91, at 2297. 97 S.Ct. niency. Id. at guilty.” was he found of which the murder ten-to-two by a trial, jury the Dobbert’s Similarly 387, at 924. 18 S.Ct. at 171 U.S. cir- sufficient majority found statute re- that a held Hopt, the Court aggravating outweigh any cumstances classes certain of disqualification moving advisory returned and pro- was witnesses people who could of imprisonment. recommending life verdict the ex not violate did hence cedural and trial The 287, at 97 S.Ct. Id. at 574, 4 S.Ct. 110 U.S. clause. post facto this recommen- however, overturned judge, Beazell, 269 also 262. See 202, 28 L.Ed. death. Dobbert sentenced dation (passim; 68, 216 167, 70 L.Ed. 46 S.Ct. U.S. violated new law argued that Dobbert The procedural). trial joint on law new (among because clause post ex facto of the basis on concluded Court Dobbert stat- death the former things) under other change authorities foregoing life of recommendation jury’s ute procedural sentencing law was in Florida’s the trial subject have been not post not ex 432 was rejected Court and therefore facto. nullification. judge’s grounds, 293-94, S.Ct. at 2298. independent 97 two at argument on U.S. this law new Florida here: present both Dobbert, case, present In was ameliorative. and it procedural, was new sen Hopt, Montana’s n. 6. Thompson 2298 & 6, at 97 S.Ct. & n. at 292 Id. The statute procedural. tencing statute Change A. Procedural employed methods “simply altered was penalty the death analysis determining began whether its in Dobbert Court Dobbert, at 432 U.S. principle settled” reiterating the “well imposed_”, to be change not does clause not post ex and did 293-94, at 97 S.Ct. facto “ of remedies legislative quantity control or the ‘limit the prescribed, punishment af- not which do procedure modes establish necessary proof degree of or ” 293, 97 Id. at of substance.’ 589-90, matters fect at (citing Hopt, 110 U.S. Id. guilt. Ohio, 269 Beazell (quoting McCahill, S.Ct. also 210). See 70 L.Ed. U.S. pending affecting (law bail F.2d at 850-51 principle, corollary to this (1925)). As a Cardwell, Knapp procedural); appeal though may work noted “[e]ven Cir.) (Arizona (9th 1253, 1262-63 667 F.2d defendant, proce- disadvantage of a ability enlarging to intro penalty law death Id. post ex change is dural facto.” procedural), held mitigating factors duce support cases to two discussed The Court denied, cert. Missouri, Thompson proposition. California, (1982); Ward v. L.Ed.2d 621 43 L.Ed. 380, 18 S.Ct. (state Cir.1959) (passim) (9th 269 F.2d 574, 4 Utah, (1898); Hopt v. evidence allowing introduction law Thompson, 28 L.Ed. history and background defendant’s court reversed supreme Missouri mitigation aggravation any facts inad- because conviction defendant’s one procedural; case in a certain evidence missibility of cause, per probable certificate denial of Prior to evidence. circumstantial tried new statute Montana’s J.). if Even Pope, changed make retrial, law was therefore, Coleman, pro it is disadvantaged the defendant admissible evidence post not ex Thompson cedural and facto. again convicted. Change B. C. The Ameliorative Review Process argues Dobbert further held Coleman also The Court that the new stat- statute, penalty post new death ute Florida’s violated ex clause be- facto to, changed process viewed in was ameliorative. The for cause it by which a presumption mer statute a in sentence of established death was reviewed in Mon- penalty favor of the death and was uncon tana. Under penalty Montana’s death stat- 294-97, stitutional. 432 U.S. at 97 S.Ct. at ute in force at the time Coleman committed law, convicted, 2298-2300. new Florida in con the acts of which he was and at trast, procedural pro established extensive the time he was tried and first sentenced to death, upheld tections and had been statutory right he had a to have his Proffitt Florida, by 49 sentence reviewed a Sentence Review (1976). Here, 95-2502, L.Ed.2d 913 Coleman was Division. Mont.Code Ann. §§ mandatory (amended 1977). a first sentenced under death This review was de- penalty signed statute which was unconstitutional. to determine appropriateness Thereafter, he was sentenced under a respect new the sentence with to the individual proce offense, statute which established extensive particular McKenzie, offender and (Mont.Code safeguards dural Ann. 95- 171 Mont. 557 P.2d gave a §§ 95-2206.15) through 2206.6 and is person “right constitu convicted to have his II, tional. Coleman 185 Mont. equity, sentence reviewed for disparity, or (and P.2d 1016-17 discussion section justice.” consideration of State ex rel. infra IV). Greely Court, v. District 180 Mont. 590 P.2d attempts distinguish Dobbert by arguing that whereas Dobbert was The new statute abolished review of tried, convicted and sentenced under a con- death sentences the Sentence Review statute, stitutional he was tried and con- replaced Division and it with automatic re- victed under an mandatory unconstitutional view the supreme Montana court. Cole- statute, death penalty II, but sentenced under 1006; man 185 Mont. 605 P.2d at Relying constitutional statute. on Dob- Mont.CodeAnn. through 95-2206.12 95- §§ bert, rejected we post identical ex law, 2206.15. Under the new the State facto challenge to the penalty Arizona death supreme stat- court reviews a death sentence to Knapp, ute in 667 F.2d at (1) 1262-63. In determine whether the sentence was Knapp, appellants several of the imposed were under the passion, influence of tried, convicted and sentenced prejudice, under an factor; (2) or arbitrary other penalty Arizona death statute later de- whether supports the evidence the sentenc- Thereafter, clared unconstitutional. ing judge’s findings their of the existence or sentences were vacated they were re- aggravating nonexistence of mitigat- sentenced to death under a constitutional statute; listed the new statute. Id. at 1257-58. rejected ap- We and whether the sentence is excessive or pellants’ attempt distinguish disproportionate Dobbert as imposed post “distinction without implica- cases, ex considering similar both the crime facto tions,” id. at because the new statute and the defendant. Id. 95-2206.15. § procedural was “both and ameliorative.” Coleman contends this is a substantive Id. at 1263. The effect of the change new Arizona because the supreme Montana statute, statute, like the new Montana limited, court’s review is whereas the re- “enlarge ability of defendants to view commission had wide discretion to re- introduce circumstances at sen- verse a equity, death sentence “for dispari- Thus, tencing.” Id. “it ‘neither ty, made justice.” argu- consideration of This act, criminal a theretofore ag- innocent nor proceeds ment premise on the false gravated committed, a crime previously nor supreme the Montana court’s review is provided greater punishment, changed nor “limited.” It also overlooks the fact that ” proof necessary (cita- to convict.’ Id. while nebulous “equity” considerations of omitted). tion “justice” operated could have to a de- “jus- “equity” notions ing court’s reversing advantage fendant’s vague tice.” law, those the old under sentence to worked easily have as just could terms district court and conclude, the as did We sen- a death upholding disadvantage in courts, post no ex Montana the facto Dobbert, imposed. See arbitrarily tence application by of the occurred violation (finality of 2299 97 S.Ct. atU.S. 432 statutes to penalty death 1977 Montana’s under life or death of determination jury sentence death the imposing Coleman to defend- equally operate could law old upon him. change disadvantage; advantage or ant’s ex not by court review permit to in law FORTH OF BRINGING BURDEN IV. facto). post IN MITIGATION EVIDENCE court’s supreme Moreover, the Montana list State, restricted 638 P.2d to a v. Fitzpatrick “limited” is not review re- supreme court circumstances. the Montana mitigating (Mont.1981), of 1002 wheth- determine penalty sentence a death Montana’s views held that court the supports the upon the evidence the State impose er not did statute or nonex- the findings of existence of judge’s miti the nonexistence proving of burden cir- mitigating and aggravating rather, of placed circumstances, istence but gating Ann. in Mont.Code specified bring cumstances “to the defendant the burden is, in There 92-2206.9. and 95-2206.8 question §§ addition, to the pertinent evidence forth the subsec- all-encompassing final a court at 1013. Id. mitigation.” of of consideration (8) requires tion undoubtedly statute stated “[t]his of the mitigation ... fact “[a]ny other defendant show on the places burden the 95-2206.9(8). While Id. penalty.” § find spared, we but be life should that his is review focused court’s aspect final permissible.” Id. constitutionally this to be sen- to the presented were on facts which II, 605 185 Mont. (discussing Coleman court supreme the Montana tencing judge, Stewart, 175 (1979),and State P.2d 1000 of review independent additional makes (1977)).5 1138, 1146 P.2d 573 Mont. sentence the whether determine case to requiring the "[b]y argues that Coleman passion, of influence imposed under of establish the burden to bear defendant factors, id. arbitrary other or prejudice, circumstanc mitigating of presence ing the the sentence 95-2206.15(1), whether and § sentencing authori es, by requiring and pen- to the disproportionate or excessive ‘substantiality’ of the miti weigh the ty to cases, considering imposed similar alty circumstances, Montana statute gating Id. defendant. and the crime both atten kind of individualized prevents procedures, 95-2206.15(3). review These § of the death appropriateness to the tion mitigating review coupled with demands.” Constitution that the sentence same, if not least factors, provide contention, we To resolve under as existed review greater, breadth lines of must examine two a defend- statute, provide former only once intersected have authority which his sen- protection added ant with the Pulley, Harris v. See in this court. before po- limited will not review tence (in- Cir.1982) (9th 1189, 1194-95 F.2d 692 review- of a application arbitrary tentially (sentencing (1986) 2411, 2420, L.Ed.2d 67 stating that a Fitzpatrick as not read We do 5. presented without evidence often hear courts mitigating circumstances prove must defendant requirement or convincing” burden "clear Fitzpatrick does doubt. beyond reasonable transcript sen- burden). such other tencing standard, require nor does it impose such a VII) (see does not hearing section by infra mitigating prove factors defendant required indicate prepon- convincing evidence clear and doubt; beyond reasonable mitigation prove Rather, P.2d at evidence. derance of allocation. burden reveals in fact the record not bear State does Fitzpatrick holds that allocation of burden the issue raised bears defendant proof that the burden court. district courts the State both in perti- "bringing the evidence forth burden Lew generally, see production On burden mitigation.” Id. See question of nent Cir.1986). (9th Moss, F.2d 106 S.Ct. Pennsylvania, U.S. McMillan volving See, state death supra). statute reliev- e.g., Spaziano v. cussion proving state from Florida, burden non-exist- beyond ence of factors a reason- 82 L.Ed.2d 340 (upholding sim doubt), grounds, on other able reversed statute). ilar That statute Montana L.Ed.2d require does not the State to prove the involving These are cases the facial mitigating circumstances, absence of adequacy of a state’s death penalty statute permits the trial weigh and bal eighth measured and fourteenth ance mitigating and aggravating circum amendments, see, e.g., Gregg Georgia, v. stances, does not guidelines violate the es 153, 2909, 428 96 49 U.S. S.Ct. L.Ed.2d 859 in tablished these cases. See Proffitt, 428 (1976), involving and cases the allocation of 257-58, U.S. at 96 S.Ct. at 2969 (upholding proof of in guilt, burden establishing statute that impose did not a burden on see, e.g., Winship, In re 358, 397 U.S. 90 permitted state sentencing authority 1068, (1970). S.Ct. 25 L.Ed.2d 368 balance factors in mitigation aggrava tion); Jurek, 276, 428 U.S. at 96 S.Ct. at A. Facial Adequacy Statute (allowing 2958 bring defendant forth In Gregg, a plurality Court stated mitigation, evidence on imposing but that the constitutional concerns expressed Harris, 692 F.2d at state); such burden on Georgia, Furman v. 238, 408 U.S. 92 1195 (interpreting in similar fash Proffitt 2726, (1972) S.Ct. 33 L.Ed.2d 346 a—that ion); accord McMillan Pennsylvania, v. court not arbitrary act an capricious or 79, 2411, 477 106 2420, U.S. S.Ct. 91 L.Ed. manner —are “by system best a satisfied (1986) (same). 2d 79 provides for a bifurcated proceeding at which the authority is apprised B. Allocation Burden of the information relevant Proof imposi tion of provided sentence and with stan pronouncements The Court’s guide dards to its use of the information.” proper proof allocation the burden of 195, 428 at 96 U.S. S.Ct. at 2935. in criminal cases do not alter conclu- this Montana death provides penalty statute sion. Winship, 358, 397 U.S. 90 S.Ct. sentencing procedure bifurcated conduct 1068, 368, 25 L.Ed.2d the Court held that ed presided who at the or trial process due prevents except conviction before guilty plea whom the was entered. upon proof beyond a reasonable doubt of Mont.Code Ann. 95-2206.6. The defend § fact or every charged. element of the crime present ant may probative evidence 364, Id. at 90 at also S.Ct. 1072. See regarding aggravating mitigating cir Mullaney Wilbur, 421 684, U.S. 95 S.Ct. Id. cumstances. 95-2206.7. Mon § 1881, 44 L.Ed.2d 508 Winship tana also general statute satisfies the crite Mullaney emphasized society’s interest ria Proffitt, established Gregg, the reliability of jury verdicts: 242, 2960, 96 913, S.Ct. 49 L.Ed.2d Jurek v. requirement proof beyond a Texas, 428 262, 2950, U.S. 96 S.Ct. 49 reasonable doubt has vital role our [a] Ohio, L.Ed.2d 929 and Lockett v. 438 procedure criminal for cogent reasons. 586, U.S. 98 S.Ct. 57 L.Ed.2d 973 during The accused prosecu- criminal (1978), for constitutional state penal tion has at stake interests of immense ty statutes: requires statute sen importance, both because of the possibili- tencing judge to find at least one aggravat ty that he liberty upon lose his circumstance, Mont.Code Ann. conviction and because of certainty 95-2206.10; the judge § must consider mit that he stigmatized would be by the con- igating circumstances and must find that viction. ... no mitigating circumstance is sufficiently substantial to call for leniency, id. 421 699-700, at 95- U.S. 95 (quot S.Ct. at 1890 §§ 2206.7, 95-2206.9 95-2206.10; ing Winship, and the 397 at U.S. 90 S.Ct. at prompt defendant receives see 1072); extensive Winship, also 397 at judicial review, id. (and 95-2206.10 dis (Harlin, § 90 S.Ct. at 1076- 77 concurring). J.

447 McMillan, 106 also 2327. See at S.Ct. York, 432 U.S. Newv. In Patterson law, circum Montana Under at 2416. (1977), the S.Ct. L.Ed.2d 97 S.Ct. not facts are mitigation affecting established stances principles refined a de for which crime There, appellant or elements Mullaney. Winship and facts rather, they are charged; second-degree murder fendant charged sentencing judge after law, contained by the weighed York New which, under death; and MontCode to cause convicted. intent has been defendant elements: two McMillan, 2321. at See, S.Ct. e.g., Id. at causing death. 95-2206.6. Ann. § raise defendant dis (noting fundamental permitted New York at 2417 (discussing defense n. 8 affirmative 2420 & tinction); at id. emo- extreme acting 226-27, under at Patterson, circumstance Proffitt); in- jury was disturbance, but dissenting); J., (Powell, tional at the bur- bore the defendant structed Strickland, 707 F.2d Foster by preponder- the defense proving den of denied, 466 U.S. Cir.1983), (11th cert. Id. evidence. ance of (1984); Ford 3564, L.Ed.2d placing argued that Appellant (11th 804, 817-18 Strickland, 696 F.2d “mitigating prove aon defendant burden (due curiam) process banc) (per Cir.) (en Mullaney. and Winship violated factors” per authority is when violated Mullaney’s that argued he Specifically, mitigat weigh aggravating mitted may not the State is that “holding ... proven has state after circumstances ing act or of an the blameworthiness permit denied, circumstances), cert. aggravating authorized punishment severity of the the 176 201, 78 L.Ed.2d 865, S.Ct. 104 464 U.S. absence presence or on the depend ... F.Supp. Shulsen, 600 v. (1983); Andrews assuming the without fact identified of an 1984); Richmond (D.Utah 408, 423 absence or presence proving of burden (D.Ariz. 519, F.Supp. 524-25 Cardwell, 450 a beyond reasonable ... fact that of Richmond 1978), proceeding, later 214, at 2329. Id. at doubt.” Cir.1985). Ac (9th 957 Ricketts, F.2d 774 Mullaney and however, held, that Court under Nor 1195. Harris, F.2d 692 at cord prove State required Winship only mitigating of the existence law is Montana for which the crime of element each must which fact a circumstances charged: is defendant obtaining con presumed” “proved or that a State surely held Mullaney sentencing. imposing even or viction an of- ingredient of every prove must Patterson, 432 U.S. at doubt, and a reasonable beyond fense the sentenc requires Montana 2329. proof the burden may not shift circum aggravating one find judge to in- by presuming defendant 95-2206.10, and Ann. stance, § MontCode ele- the other proof of upon gredient circumstances. mitigating to consider then even is true offense. This ments general with comports statute Maine, inas practice, though State’s Proffitt, Gregg, enunciated standards contrary. traditionally to been transgress does not Jurek, Lockett persua- the burden shifting of Such in Win- established limitations specific a fact which respect to sion Patterson. Mullaney, and ship, must be important that it so deems state impermissi- is presumed or proved recently in either in Patterson Finally, Clause. Process the Due has under ble Court McMillan, 106 S.Ct. may limit process add- (emphasis due recognized at 2329 S.Ct. 97 Id. at elements authority to define ed). state’s 2416 Id. at crime. for a necessary facts teach Mullaney and Patterson Winship, 12, 97 211 n. Patterson, (citing prosecution “requires the process that due 12). McGau generally See n. at 2327 S.Ct. all doubt a reasonable beyond prove n. California, tha definition included elements L.Ed.2d 1454, 1466-67 n. defendant of which the offense circum- aggravating (noting that 210, Patterson, U.S. at charged.” part they of offense but see if would be available to serve on could have been stances en- post-conviction jury days. used as the next three Sixty-one instead were within hancement). convince us Several factors prospective jurors they indicated require process does not Montana that due sixty appeared be available and mitigating cir- disprove the existence of I, Coleman’s trial. Coleman 177 Mont. impose sen- cumstances in order to a death panel It from 579 P.2d at 746-47. was noted, ap- First, has tence. jury trial was chosen. penalty statutes proved of several death sixty persons Coleman contends that the imposing no burden on the state. such making up jury panel were selected in See, Jurek, 428 U.S. at 96 S.Ct. at e.g., impermissibly discretionary an manner. Second, penalty the Montana death alleges potential jurors He were asked presumptions statute establishes no they appear whether could for his trial and does not relieve the State of its burden of allowed to excuse were themselves guilt. proving underlying the defendant’s grounds not revealed to him. He further McMillan, Third, at 2417. See alleges system by panel that the which his as defined under sixty potential jurors was selected had permit Montana’s death statute disproportionate placing effect of main- sentencing authority leniency. to exercise ly white, affluent residents from the west Patterson, 432 U.S. at 203 n. See Billings panel. argues side of on the He (“the 5.Ct. at 2323-24 n. 9 Due Process controlled, system that this not ran- every Clause did not instance of invalidate dom, “key and resembled the so-called burdening proving the defendant with system jury man” selection.6 fact”). exculpatory They do not increase contends that he is entitled to McMillan, punishment. Compare Id. evidentiary hearing an on this issue. To (rejecting process argu- 2411 106 S.Ct. due evidentiary hearing, obtain an Coleman ment that state definition element in of (1) alleged “must show that he has facts aggravation defendant must which, relief, proved, if him entitle proven doubt); beyond a reasonable id. (2) evidentiary hearing (Stevens, J., required is dissenting). at 2421-26 allegations.” to establish the truth of his reject argument We therefore 1197; Harris, 692 F.2d at see also Bashor regarding the allocation of the burden un- 1228, (9th Cir.), Risley, v. 730 F.2d 1233 der Montana’s death statute and denied, 838, 105 137, cert. 469 U.S. 83 weighing balancing the trial court’s of (1984). L.Ed.2d 77 aggravating circumstances. Showing A. Lack Distinctive V. JURY SELECTION of of Group Following challenge by a the defendant trial, by jury peers Trial a of one’s con days three before the trial court dis- templates impartial jury that an jury panel missed the first will be and ordered a drawn from a fair cross-section of panel second the com drawn. Each name on the number, Co., jury assigned munity. list was a the num- Thiel v. Southern Pacific 217, 220, box, 984, 985, placed in 328 U.S. 66 bers were a and 200 were 90 (1946). The court then directed L.Ed. 1181 drawn. the court The sixth amendment panel sixty jurors by guarantee randomly clerk to a of does not obtain selected persons telephoning jury, drawn from the box to Wellington, United States v. 754 1983). argument jury panel nothing suggest jury that his 6. Coleman’s Here there is using key system selected man is without panel using key system. was chosen man key system jury man merit. involves the selection of of selection jurors The initial 200 were selected at random. particular persons Castaneda, 497, 430 U.S. at 97 S.Ct. at 1281. Cf. up pool jury from make which a is then panel sixty potential jurors of were in es at random. It is not chosen its face. Castaneda v. unconstitutional on volunteers, standing sence a fact which alone Partida, 482, 497, composition panel does render the of a not (1977); 97 S.Ct. 51 L.Ed.2d 498 Unit Nelson, unconstitutional. 718 F.2d at 319. Nelson, 315, (9th ed States v. 718 F.2d 319 Cir.

449 Available Ju- Method Selection sub B. denied Cir.), cert. (9th 1468 F.2d rors States, U.S. nom., 474 v. United Utz (1985), 573 88 L.Ed.2d challenges the clerk’s dis Coleman jury contain require that nor does potential jurors 200 of 139 of the missal in the every group from representatives nothing in There is the box. from drawn McCree, community. Lockhart however, record, suggest 1764-65, 90 L.Ed.2d 162, 106 S.Ct. by the clerk were excused jurors who were 220, 66 S.Ct. Thiel, U.S. (1986); 328 other than their any reason excused for challenge to fair cross-section 985. A jury in a trial inability to serve which re jury venire constitutionality of the I, days. in three to commence showing: quires at 746. Coleman P.2d Mont. contend, re nor does record not does excluded alleged to be (1) group That the the 60 names from which veal, that the 200 in the commu- group ‘distinctive’ is a panel chosen do were members of nity; of the com cross-section represent a fair group of this representation (2) That munity. are se- juries from which in venires in Cole jury reasonable selection not fair and The method is lected per- oc of such to that which was similar to the number man’s case relation Anderson, States community; and United in the curred sons denied, (D.C.Cir.1974), cert. F.2d 312 due underrepresentation That 43 L.Ed.2d 672 U.S. group exclusion systematic There, jurors were se to 300 process. jury-selection in the did The defendant jury service. lected Miller, F.2d United States rep jurors were not these not contend that Duren, Cir.1985) (9th (quoting fair cross-section resentative of a 664, 668, 58 364, 99 S.Ct. 357 at jurors were told community. The 579). L.Ed.2d court asked lengthy and the trial would be as a result contends to serve. be able many jurors would how from persons process, jury selection they would be indicated jurors Sixty-eight Billings areas lower socioeconomic selected available, these sixty were prospec of panel his from excluded were appeal the Id. at 321. On panel. for the facts, alleged any not He has jurors. tive com jurors were defendant contended concluded however, it could be which repre from did not and thus posed of volunteers socioeconomic the lower Id. persons from community. that of the sent a cross-section a dis formed Billings, Montana contention, con areas the court rejecting this if community, or that group in the complement underlying tinctive cluded that of a suffi it consisted group existed such a represented a fair cross-section jurors system so its persons panel that nor “[njeither the community cient number sup panels would jury from reason any exclusion less so atic jury the trial became Id. challenge under employed.” cross-section port technique judge a fair Duren, state, 439 U.S. “the on to sixth went amendment. at 322. Taylor v. also 668; any cogni see or 364, anyone 99 S.Ct. at not exclude did he em Louisiana, 95 S.Ct. criterion group. 419 U.S. sole zable longer; See United (1975). ability to serve ployed 690 was 42 L.Ed.2d (9th was Cir. jury 1293 was drawn Kleifgen, panel 557 F.2d from v. which States Id.; Potter, quality.” v. by States distinguished only (passim); United 1977) Branscome, 682 v. Cir.1977). States (9th Hav see also United 904-05 552 F.2d States Cir.1982); (4th United of a existence F.2d 485 demonstrate ing failed to Cir.), (5th Kennedy, F.2d claims group, Coleman’s “distinctive” Cir.), denied, cert. (5th F.2d 476 reh’g underrepresented jury was group such a denied, 98 S.Ct. systematically excluded venires (1977). L.Ed.2d process fail. also jury selection of co-defendant's any prosecution’s acceptance present affidavit or Coleman did suggest plea bargain). jurors to were dis- other evidence missed for reason other than unavaila- finally accept to offered When Coleman bility. challenge sixty-person His Nank, accepted by he did so the same deal jury panel exclusively “consists of coun- undergone amy- sodium only after he had a statements, unsupported sel’s unsworn regarded procedure the State tal which Frazier v. proof.’-’ by any proof or offer of then, questionable. Before Coleman’s for States, 497, 503, United he mer counsel had claimed was ineffective 201, 205, L.Ed. 187 These “con- experience. had due to his lack clusory allegations provide do not a suffi- change also contended that a of venue had hearing in federal cient basis obtain prejudice not been sufficient to eliminate Harris, 692 F.2d at 1199. court.” against him. State was concerned argues reply Finally, plea. about voluntariness More judge improperly brief that the trial dis over, already agree the State had Nank’s qualified oppo jurors two because their testify against ment Coleman. Nank penalty. sition to the death He has failed pursued precisely the course which present any showing justify suggested Justice Blackmun should have Mag hearing evidentiary on this issue. pursued by been one of the defendants in — Williams, 46, 50, Burger Kemp, U.S. —, Gio 311, 314, (1983) (per curiam). 78 L.Ed.2d 43 (1987) (Black 97 L.Ed.2d 638

Mun, J., dissenting). There, commenting VI. RACIAL DISCRIMINATION lawyer the defendant’s had been re offering miss in not the defendant's testi tried, Coleman contends he was convict- mony against exchange his co-defendant in ed, and sentenced to death as a result of sentence, for a life Justice Blackmun stat pervasive points racial discrimination. He prosecutor might ed: decided have “[T]he Nank, man, to the fact that a white permit ... he would [the defendant] permitted plead guilty to crimes which plead exchange to life sentence in for his penalty, carry did not the death whereas testimony against [his co-defendant] Coleman, black, was denied the same pursue against the death sentence co- [the bargain. points judge’s He also to the trial Here, Id. at 3133 n. defendant].” boy.” reference to him as a “black He prosecutor is what did. He allowed hearing contends he was entitled to a plead Nank to life to a sentence ex these contentions. change Coleman, testimony against for his pursued against the death sentence Bargain A. The Plea Coleman. permitted The State Nank to

plead guilty charges carry did not which The record reveals no evidence of racial prejudice. because he admitted his Despite the of absence this evi dence, involvement in Harstad’s murder and as key inquiry the dissent insists “[t]he investigation sisted the in State its prosecutor’s here must be as to the motives prosecution of Coleman. On the other in repeatedly vigorously refusing to hand, accept, Coleman maintained his accepting, innocence. or even consider Cole When he first plead guilty (Reinhardt, offered to to guilty plea_” man's J. dis non-capital charges, 13). However, page he insisted on main sent at as the Su taining his innocence as a in McCleskey Kemp, v. preme condition of such Court stated — plea. duty U.S. —, 1756, a The State was under no to 107 S.Ct. 95 L.Ed.2d accept prosecution (1987), Coleman’s offer. The 262 policy considerations be “[T]he may bargain altogether, refuse to prosecutor’s or cut hind traditionally a ‘wide dis negotiations off at United suggest time. impropriety cretion’ of our re Herrera, States v. 958, (9th 640 quiring prosecutors F.2d 962 to defend their deci Cir.1981) (prosecution orig of defendant on penalties, years sions to seek death often upheld (foot- inal indictment were made.” Id. at 1768 notwithstanding they after

451 regard? In what Prosecution: omitted). The Court citations case. government’s required when hearing close the (evidentiary tal the the follow de proceedings entitled point proved in the if dispute At that facts relief). colloquy ing occurred: to fendant that record May the show Prosecution: HEARING SENTENCING VII. the motion. prosecution the resists sentencing argues Well, as a real I treat this The Court: “FINDINGS, court’s hearings and the trial motion. serious proceed, is that CONCLUSIONS, nation as to how to we AND OR- JUDGMENT time, present July to here at this (“Findings”) dated have DER” evaluating Before process. mitigating all. It would be a violated due factors at proceed- contentions, examine these we simply argument. There is a matter Findings. ings and the court’s pre-sentence investigation report. I take primarily that the situation is view Hearing A. The June Uth law, as to one of to be resolved how I, Mon- proceed, and then I take By decision Coleman Court should its affirmed Coleman’s supreme court tana that unless wishes to view [the State] to His sentence witnesses, on all counts. convictions present that at the time of I for years on Count serve one hundred sentencing simply just is a statement affirmed. His homicide was deliberate attorney] pointing State’s out what [the kidnapping aggravated death sentence for point- he thinks relevant and a statement forty years serve for his sentence to relevant, ing out I think is and the what consent, inflict- without sexual intercourse way decides if that’s the we are to Court The case ing bodily injury, were vacated. proceed. the trial court for resen- was remanded to The court stated: by the tencing. The remand was received Well, the Court has two matters to sen- day 1978. On that trial court on June on, always possibility tence and there is previously sentenced who had that after the Court has considered [de- counsel of record to death notified brief, might rule fense fa- counsel’s] hearing that Coleman’s motion, vorably on [defense counsel’s] and that be held on June that event there would be no “in hearing conducted accordance would be necessity any for the Court to make find- through 95-2206.06 95-2206.- with section mitigating aggravating or circum- 11, RCM, [of as amended.” anything else under the—un- stances] beginning of the June 14th hear- At existing I der the statute.... So think ing, that it “had set down the court stated just going proceed particularly are we mitigation hearing today matter of you with the announcement that don’t intending punishment, to reserve for mitigating present any intend to circum- sentencing.” subsequent date the Defense stances, particularly there is because day counsel had filed a motion that chal- upon this another count which Court was constitutionality lenging applying upon I’ll reimpose called sentence. newly amended 1977 death responding call then—or ask for briefs to to Coleman’s case. The State had statutes the brief that has now been submitted responded to this motion. The court has received defendant. Court question course the first stated: “Of pre- —I called for and have received a mind, in the is arises Court’s should report, sentence which I cause to be hearing now [proceed] with filed in accordance the law. The mitigation, with time on the matter of and of Lofland, officer, reporting Mr. Thomas course on one count the Court feels that it proceed, present I’d like to hear in court. The defendant has re- as well but you copy pre-sentence from ceived a of this investi- [defense counsel].” suggested might gation. significant part counsel State of it relative opportunity respond to his mo- want circumstances is that the tion, and stated: never defendant has been convicted charge. any felony prior if continue, to this Now suggest

I would that the Court either the there are matters which making and I’m not this in form of motion, clarify suggesting State or the defense wish formal but I am report, Mr. Lofland is regard reference to this the Court continue this matter addition, sentencing.... present you may call him to the Your Honor, any inquiries point you may and as another which has stand and make bearing upon you pertinent. some the Court's determi- feel are copies received of has hearing, the Court reporting the to call elected Neither side the motion has considered The and briefs Lofland, witness. as a officer, Mr. having stud- and quash to the defendant stated: then court matter, pre- has the considered ied and that the the announcement with Now findings required by law. as pared its any— produce to not intend does defense sentencing, pronouncing [sic] any miti- Before to establish any call witnesses say anything to have counsel does circumstances, the gating during Court? matters it all has before course trial, the testimo- heard the course of the into the then read counsel Defense circum- aggravating relating to the ny prepared on he had record a statement cir- mitigating to some also stances the court to He asked behalf. Coleman’s for the State Does counsel cumstances.7 had never “been that Coleman consider relative any statement to make now wish before,” the that crimes any trouble circumstances? aggravating to incon- convicted were he had been which to call attempted the State response, In history by as shown his “whole sistent to witness, he declined a but case,” reports in this that records the it stated that The court then testify. known Coleman people who had from will of fact and findings its “render would Falls, he had worked Montana where Great the present the record go up on responded, ar- State The were favorable. mitigating any absence things, that Coleman among other guing at this hear- the defendant by presented Harstad, kill attempts to the had initiated the State would agreed that ing.” It was “destroy killed to had been that Harstad point out it would in which a file brief kidnapping and sexual of her the evidence” be- transcript which it trial places according pre-sentence assault, aggravating references contained lieved homosexuality feigned report Coleman had circumstances, de- and the mitigating rape not he did the court to convince re- opportunity have an would fense guilt had been victim, and that court asked to that brief. spond doubt beyond a reasonable determined find- proposed if it wanted make State stated: then jury. The court responded that fact, and the State ings of I pronouncing sentence THE COURT: also invited The court do so. this is to know that parties want the do findings. The proposed prepare defense agonizing extremely that is decision adjourned. hearing then not I have to make. the Court for Hearing 10th July B. been points that have looked at argu- many of the lightly, but date raised 10, 1978 as the July set The court defense, of course raised date, at ments sentencing. On for Coleman’s heretofore, and been considered hearing, have the court of the beginning factual from the found jury have and the State for Coleman handed counsel defendant Findings. standpoint Cole- copy of its unsigned an doubt, and beyond reasonable objection guilty attorney did not raise man’s disagree with that conclusion resolving prelimi- I do not After procedure. cir- one jury. The matter, stated: nary has the defendant is that cumstance I have know that Well, you to I want convicted time been prior to this you everything that all considered of— enormity felony, in view but given it have have submitted committed, and the crime just a matter this isn’t thought, and that circum- one feeling that this Court’s lightly.... takes the Court aggrava- overcome does not sentencing of stance set this time court has circumstances, find- I have made ted Since the defendant. community problems, service. logical trial, previous to his Coleman testified 7. At his service, record, psycho- military clean criminal (2) 95-2206.9, mainly paragraphs effect, findings as tion written ings to this through I have made by law. Also required have judgment which conclusions found, among things, that other The court defendant and

been furnished not committed while the offenses were time, only I and will at this the State any of was under the influence defendant conclusions the Court’s this time read disturbance, the de- or emotional mental judgment. minor, willing and was a fendant was not in participant the crimes. read its conclusions The court then sentenced judgment by Conclusions, which Coleman the court stated: its to death. mitigating none of the circum- 2. That listed in Section 95-2206.9 R.C. stances Findings C. The Court’s sufficiently M. substantial to call are Findings The reviewed court’s written mitigating leniency. only That the cir- murder and the Harstad the evidence of present in this technically cumstance aggravat- as to kidnapping and concluded cause is that the defendant has record ing circumstances: history prior activity. criminal aggravating circumstances 1. That the 95-2206.8, paragraph set forth in Section Mitigating Cir- Consideration of 1. following: (7) for the reason exists cumstances kidnap- aggravated That the offense argues first that the trial defendant ping committed mitigating failed to consider circum court victim, in the death and it resulted dealing personal history stances with his Peggy Harstad. Miss Although and characteristics. he did not mitigat- Findings also discussed the mitigating present any evidence as to cir Ann. ing listed in MontCode see sentencing hearing, cumstances at the factor, first 95-2206.9. As to the § 187, 106 Wainwright, Darden v. 477 U.S. significant history of has no “the defendant 2464, 2474, (1986) (sim 91 L.Ed.2d 144 id., activity,” court prior criminal hearing); ilar decision at death sentence found: Alabama, Baldwin 2. That the has been unable (passim, State 86 L.Ed.2d 300 checks that the Oklahoma, prove by means record same); Williams any history of crimi- defendant has other 576, 583, 421, 425, 3 L.Ed.2d 516 other criminal act activity. nal (1959) (same), pre-sentence report listed in appears in the trial record which argues mili several factors which Coleman aggravated burglary of a home cause including: leniency, tated favor of Montana, Roundup, certain where service, record, community clean and al guns by the defendant and were stolen leged psychological disorders. trial By July Nank on reason Robert considered all of court stated that mitigation foregoing, the credit presented in the evidence and materials 95-2206.9(1) is not allowed Section See also Coleman rendering Findings. its appropriate this defendant. II, (reject 185 Mont. 605 P.2d at 1019 give ing contention that trial court did remaining circum- As to the “proper evidence when consideration to Code, id. listed in the Montana stances making findings”). its 95-2206.9(2) (8), including whether § mitigation “any other fact exists findings court of fact arrive at State (8), id. penalty,” the court found: corpus proceeding with a federal habeas correctness.” Wain “presumption appearing, there is no 3. That evidence Goode, 78, 85, wright either in the record of the trial held (1983) (per cu special sentencing hear- 78 L.Ed.2d 187 this cause or the riam). accorded, finding presumption applies both to supporting This findings of mitigation appellate trial and court of the circumstances under state fact, (involving appellate court’s id. state paragraphs the other numbered of Sec- circumstances, gating proceedings in and Coleman’s deci- interpretation of trial proceed on the basis of the sentence), may only sion to written imposing death ” “ Oklahoma, record, see Williams 358 ‘convincing evidence.’ overcome 583, (and Court, 79 S.Ct. at 425 cases 1277, U.S. at cited Superior 736 F.2d Kennick v. supra case), full cite to this we con- Cir.1984) with (9th (quoting 28 U.S.C. 1281 the trial clude that court considered all of 2254(d)). § mitigating presented circumstances and the trial court The record reveals that these not concluded factors were sufficient- argu- and considered all of evidence ly leniency.8 substantial to call for mitigation, presented regarding but ments maintains, however, miti- there no evidence of that found that sufficiently per the trial court’s failure to discuss his gating substantial factors history sonal and characteristics in its Find leniency. At the June 14th hear- call ings indicates the court did it had not consider ing, the court stated that received in sentencing. these factors In a series of report noted that “the pre-sentence and cases, rejected the Eleventh Circuit has mitigating significant part of it relative to Wainwright, Johnson v. argument. same circumstances, is that the defendant has 623, (11th Cir.1985); Fun 778 F.2d felony prior convicted of never been Wainwright, 772 F.2d 683, chess v. agreed charge.” The trial court then banc, reh’g denied en (11th Cir.), 776 F.2d accept a from the State and from brief denied, (1985), 1031, cert. 475 U.S. discussing specifically counsel 1242, (1986); Rau 106 S.Ct. L.Ed.2d 349 mitigating aggravating and the relevant III, Wainwright, lerson v. 732 F.2d 805- circumstances. 633 P.2d at denied, (11th Cir.), reh’g 736 F.2d 1528 again hearing at the later 632. At denied, (11th Cir.), cert. 469 U.S. July hearing, 10th the court stated several (1984); Palmes v. 83 L.Ed.2d 302 times, challenge, without it had read Wainwright, 725 F.2d (11th materials and considered all submitted. denied, reh’g Cir.), (11th 729 F.2d 1468 Findings similarly The court’s stated it had denied, Cir.), cert. submitted, together “all reviewed matters Dobbert v. (1984); 83 L.Ed.2d 156 trial, produced at with the evidence ... Strickland, (11th 718 F.2d 1523-24 the defendant’s demeanor dur- [observed] (Dobbert II), denied, reh’g Cir.) 720 F.2d testifying....” Finally, trial and while denied, cert. (1983), hearing, July at the 10th Coleman’s attor- (1984). In 82 L.Ed.2d 887 ney reviewed for the court the circumstanc- II, Dobbert the court held: personal history es from his client’s favor- argued ing leniency, and the State in rebutr sentencing The fact that the order does light repeated tal. of the trial court’s specific types not refer to of non-statu- unchallenged statements petitioner it had in- tory ‘mitigating’ evidence received and considered all only evidence indicates trial court’s troduced presented, specific pre- its reference to the finding mitigating, evidence not report, acceptance sentence its of written not such evidence was not con- evidence, argument regarding particular briefs and oral miti- sidered. Whether argues affirmatively 8. The dissent that "it is clear from the the case. The record establishes findings record and from the sentencing judge written that the that the read and considered judge give any failed to consideration whatsoev- pre-sentence report. report contained That underprivileged er to ... Coleman’s and harsh argues all of the the dissent adolescence, service, military childhood and his suggest court should have considered. To good reputation neighborhood, his community in his of, the court must have been unaware or failed service, psychological and his disor- consider, portions report of a which court (Reinhardt, 498). page ders.” J. dissent at Fur- considered, stated it had read and ther: "The record before us reveals that the speculates as to errors of omission the court simply was unaware of or failed to consid- committed, may directly in the have but flies background.” er Coleman’s character and Id. at us, face of the record. On the before we record Finally, majority 499. speculating the dissent claims the is speculate sentencing judge cannot that the omit- sentencing judge "as to what the to do that tells us he did. ted which he actually considered.” Id. at S02. This is not personal history findings in its had a ant’s does fact that Dobbert such as the childhood, mitigating depends difficult not indicate that these factors were not in the case as a whole on the evidence considered. Montana’s death stat- re- and the views judge ute authorizes the trial to consider a may viewing judges. person What one personal history defendant’s and character- mitigating, another not. view istics, circum- and lists as courts, oper- Merely the Florida because “[a]ny existing] stance other fact in miti- properly statute ating through a drawn gation penalty.” MontCode Ann. guide dis- appropriate standards 95-2206.9(8). That the 95-2206.7 §§ cretion, petitioner’s share view of do not trial did not refer to evidence of in- reveals no constitutional the evidence personal Findings history only in his indi- Florida, firmity. v. See Proffitt cates he found that this evidence did not 258-59, 2969-70. U.S. at 96 S.Ct. at mitigate penalty and was not “suffi- 718 F.2d at 1524. ciently leniency.” to call for substantial 683, Funchess, Indeed, In 772 F.2d the trial judge’s Id. 95-2206.10. the trial § judge’s “Findings virtually of Fact” were July hearing comments at the 10th and his judge made here. The in identical to those Findings expressly stated that was his non-statutory did not refer to the Funchess reject view. We must therefore factors, mitigating and stated “that suffi- argument as inconsistent with the trial aggravating circumstances exist cient ... judge’s comments, reading own a fair finds that there are this Court further record, analysis enunciated mitigating insufficient circumstances to per- the Eleventh Circuit which we find outweigh aggravating circumstances.” suasive. 772 F.2d at 693 n. 11. The Eleventh Circuit rejected argument Funchess’ that the trial 2. Discussion Coleman’s Personal judge’s aspect any “failure to discuss History non-statutory mitigating circumstances argues that even if the proof judge is absolute that the trial failed trial court considered all of the evidence altogether consider these factors:” presented justi and found it insufficient to During resentencing the second hear- fy leniency, process the due clause never ing, presented Funchess evidence relat- requires theless sentencing authority ing non-statutory mitigating to certain specifically discuss this evidence in its The trial circumstances. court con- findings. disagree. We obviously sidered this evidence but persuaded justified not that it the estab- emphasized Court has any mitigating lishment of non-statutory death, in finality, qualitatively its differ- Consequently, factors. judge the trial any punishment. See, ent from other e.g., did not include a detailed discussion re- Florida, 349, 357-58, Gardner v. 430 U.S. garding alleged these in 1197, 1204, 97 S.Ct. 51 L.Ed.2d 393 findings of fact. This has on The recognized although Court has

previous occasions held that fact ‘[t]he sentencing will often involve the exercise that the order does not refer discretion, “that discretion must be suit- specific types of non-statutory ‘miti- ably directed and limited so as to minimize gating’ petitioner evidence in- introduced the risk wholly arbitrary capricious finding dicates the trial court’s 420, action.” Godfrey Georgia, 446 U.S. evidence mitigating, was not not that 100 S.Ct. 64 L.Ed.2d 398 such evidence was not considered.’ (1980) (citation omitted); Lockett, see also [Raulerson, 807], 732 F.2d at Accord- (state at 98 S.Ct. at 2964 ingly, appellant’s argument on this mat- preclude statute ter is without merit. sentencing authority considering from de- (footnotes omitted). Id. at 693 character). Lockett, fendant’s the Court agree

We with the Eleventh process Circuit that held violative of due an Ohio stat- judge’s a trial failure to only permitted discuss a defend- ute which consideration of all.” Bar weight has no at such evidence The Court circumstances. three Florida, 939, 961 n. clay not be must the sentencer reasoned mitigat- considering, as a n. 77 L.Ed.2d 134 3430-31 from S.Ct. “precluded defendant’s aspect Powell, concurring); of a factor, (1983) (Stephens and J. 629; Raulerson, the defendant Johnson, ... or record character 778 F.2d at than sentence less 805-08; Palmes, for a proffers as a basis 1523. 725 F.2d at F.2d at (em- at 2964 Id. at death.” Eddings emphasized that the in Court Similarly, Eddings original). phasis case was the trial court’s error Oklahoma, self-imposed legal restrictions on the con (1982), the Court overturned L.Ed.2d presented mitiga of evidence sideration held judge the trial because death sentence 113-15, at at 876- tion. 455 U.S. from law under Oklahoma precluded it was noted, however, carefully back- considering petitioner’s violent admit that once the state courts evidence Id. mitigating circumstance. as a ground “sentencer, presented mitigation, The Court at 873-74. review, appeals] court of [state trial clear that the “it was concluded weight given rele may determine the mitigation the evidence did not evaluate 114-15, mitigating evidence.” Id. vant fact; wanting as a matter find it process at 876-77. The due 102 S.Ct. law he he found that as a matter rather from only precludes clause these courts evidence.” to consider the even was unable weight by excluding such “giv[ing] it no (emphasis in 113, at 876 Id. at 102 S.Ct. Id. at consideration.” evidence from their “the Okla- noted that original). Court Skipper, 115, See also at 877. 102 S.Ct. the penalty permits statute homa 1670-71; Spaziano, at 468 U.S. 106 S.Ct. any ‘as to present evidence defendant does, 467, 104 (federal 3166 court at S.Ct. at circumstances’_ Lockett re- mitigating courts, agrees it with state not ask whether to listen.” Id. at 115 quires the sentencer is “irrational or only whether decision arbi (citation 10, n. 10 omit- 102 S.Ct. at 877 n. Raulerson, trary”); 732 F.2d at 806-08.9 Carolina, Skipper v. ted). also South See 1670-71, 1, 1669, 90 106 S.Ct. approval of various death The Court’s (1986). 1 L.Ed.2d demonstrates that the due statutes impose require- the process clause does not Eddings Lockett hold that the While adopt. have us ment that Coleman would authority may impose re- not Jurek, 262, 2950, 49 428 96 S.Ct. In U.S. law, strictions, evi- as a matter of on the 929, upheld stat- the Court a Texas L.Ed.2d by mitiga- in presented dence the defendant required jury the to answer which ute tion, “[njeither of establishes these cases mitigat- general questions regarding three weight given the which must be circumstances;10 if aggravating evidence, or the man- particular unanimous, simply considered; it could they jury was in it must be ner which inquiries. these “yes” in or “no” to simply any procedure condemn which answer Raulerson, rejected argument questions 10. The were: In the court presented to that Coleman on facts similar (1) whether the conduct of the defendant virtually here: identical those of the deceased was commit- caused the death Eddings A careful examination of reveals deliberately ex- and with the reasonable ted prescribes only that the that the Constitution pectation or that the death of the deceased hear and consider all the evidence a sentencer result; another would mitigation. chooses to offer in defendant (2) probability that whether there is a requirement agree court There is no that the of vio- commit criminal acts defendant would mitigating, the defendant's view that it is continuing constitute a lence that would proffer given be consideration. that the society; and threat to evidence, the con- if whether raised summary, proposi- Lockett stands for killing deceased in duct of the defendant tion that the sentencer must consider all miti- gating provoca- response was unreasonable tion, doing, then is evidence. After so it any, by if the deceased. generally to accord that evidence such free 269, 96 S.Ct. at 2955. 428 U.S. at weight mitigation that it deems fit. (emphasis original). Id. at 807-08 458 Rather, noted, 5, mitigation. at 2955 & 5. dence

Id. n. 96 S.Ct. 269 & n. requirement imposed and materials statute court considered evidence findings discussing miti jury provide presented and concluded that the factors See mitigation rejected. gating factors which outweigh did not the seriousness Maggio, F.2d 1286-87 Martin v. appeal, offense. On the Mon v. Black (affirming, Martin (5th Cir.1983) supreme tana court found that the trial burn, (E.D.La.1981)), F.Supp. pen court had followed the Montana death denied, (5th Cir.), cert. reh’g 739 F.2d statute, 467, 104 Spaziano, 448 U.S. at alty denied, 3166, and S.Ct. at evaluated record to emphasized L.Ed.2d supported determine the evidence whether provided prompt that the Texas statute Findings. the trial court’s Ann. Mont.Code review, judicial constitutional be and was Gregg, See 95-2206.13. 428 U.S. at § “that sentences of death cause it assured supreme 96 S.Ct. at 2941. The Montana ‘freakishly’ im- ‘wantonly’ or will weighed the evidence and found no Jurek, posed_” 428 U.S. at error: omitted). (citation Similarly, S.Ct. at 2958 pre-sentence] report indicated the [The Gregg, defendant had no record of criminal ac- Georgia required L.Ed.2d statute tivity accepted and had been an member sentencing authority to consider the list community prior where he lived aggravating provided in 4, 1974, July the date of the commission any mitigating the statute and to consider of this crime. The evidence in this case defendant; presented by if evidence supporting finding aggravat- death, jury verdict ing circumstance established that the de- required specify aggravating circum deliberate, voluntary fendant had been a Id. stances found. 96 S.Ct. at 2922, participant kidnapping in the imposed and subse- 2936. statute obli gation sentencing authority quent rape on the to dis and murder of the victim. presented cuss factors but The evidence further established that the justify leniency. See found insufficient death of the victim occurred after a sexu- id. at 163-67 4-10, nn. 96 at 2920- & S.Ct. assault, al passion, not a moment of (quoting Georgia statute); 22 & nn. 4-10 period but over a of time with the de- id. 197, 96 at at S.Ct. 2936. The Court bludgeoning, fendant first attempt- then possibility noted that of arbitrariness ing strangle, finally drowning then requiring appel was reduced the state victim in an effort to effectuate a deliber- late court to examine whether sentence Peggy ate decision to kill Harstad. was “excessive” and whether the evidence brutal, Against crime, the record of this supported jury’s judge’s findings. or say we cannot that the defendant’s lack 166-67, 206-07, Id. at 2922, 96 S.Ct. at prior criminal activity of record is a approved 2940-41. The Court has other sufficiently factor substantial to call for judge sentences in which the trial has made leniency. findings dealing but not discussed factors II, Coleman 299, 185 Mont. 605 P.2d at personal with a history defendant’s con 1019. rejected. sidered See but Baldwin, 2731; Spaziano, 105 S.Ct. at 468 process requires Due that the state 466-67,104 (involv U.S. at S.Ct. at 3165-66 Eddings, appellate trial and courts listen. statute, which, Montana’s, Florida like 10,102 455 U.S. at 115 n. S.Ct. at 877 n. 10. required judge Proffitt, findings); to list The Montana courts have listened and ren 247, 250, 253, 428 2964, U.S. at 96 S.Ct. at judgment. dered their “Whether or not 2965, (same, noting 2967 appellate state people’ ‘reasonable could differ over the review). here, nothing results we see irrational or arbitrary imposition record this case does about the of the death not indicate Spaziano, imposed any the trial court restrictions in this case.” 467, the introduction or consideration of evi- S.Ct. drack, (9th Roundup Burgla- 578 F.2d 809-10 n. Cir.

3. Consideration of 1978). ry Morgan, the trial In 595 F.2d argues we next process noted three due limitations on a Nank’s trial testi- consideration court’s of crimes for Roundup court’s use in the mony implicating Coleman a defendant has not been convicted. argu- which His process. due burglary violated First, may not consider evidence a court (a) uncorroborated ment is twofold: principles in violation of the un obtained may crime testimony an unconvicted about Wainwright, derlying Gideon v. U.S. prior criminal to demonstrate not used 335, 83 9 L.Ed.2d 799 S.Ct. (b) of or he never had notice activity; Second, a court Morgan, 595 F.2d at 1136. testimony. opportunity to contest Id. may not consider false information. Skipper, 106 S.Ct. at 1671 n. 1. See Burke, Townsend v. (citing (1948)). Third, 92 L.Ed. 1690 Testimony a. Nank’s information a court not consider de per statute death sentence The Montana report solely pre-sentence from a rived mitigation to consider “ mits the court amplified by information such ‘unless it is significant “defendant has no whether persuasive validity of as to be ” activity.” Mont. history prior criminal Id. charge (quoting Wes there made.’ II, In Ann. 95-2206.9. Code § ton, 634). United States 448 F.2d at 1019-20, P.2d at Mont. Ibarra, (9th Cir.1984), 737 F.2d 825 we this stat supreme court held that Montana expanded upon the second and third limita court to consider permitted the trial ute expressed Morgan tions and held that “ sentencing. have Roundup burglary in We challenged ‘false information process clause does long held that the due minimal indici unreliable’ if it lacks ‘some ” sentencing judge from preclude the reliability beyond allegation.’ mere um of prior con considering evidence of criminal also (citation omitted); Id. at 827 see Unit See, resulting in a conviction. duct not Hull, 792 F.2d (9th ed States v. 942-43 Morgan, 595 F.2d e.g., United States Cir.1986) (applying this standard to evi (9th Cir.1979); United States v. 1134, 1136 crimes; noting of unconvicted abuse dence Miller, (9th Cir. 588 F.2d 1266-67 court’s deter of discretion standard to trial court), 1978) (citing authorities from this mination). Contrary to Coleman’s conten denied, 947, 99 cert. tion, established our cases have never Farrow v. United (1979); 636 L.Ed.2d per preventing of un se rule consideration States, 580 F.2d 1339, (9th 1359-60 Cir. imposing sen testimony in corroborated Weston, States v. 1978) (en banc); United Rather, controlling inquiry is tence. Cir.1971), cert. 626, (9th 448 F.2d 628-34 minimally reliable. whether the evidence is denied, 748, 1061, 30 404 U.S. 92 S.Ct. v. at 942. Accord United States Whit Id. Eng v. United States (1972); L.Ed.2d 749 ten, Cir.1983) (evi 1000, (9th F.2d 1007 706 curiam) lish, Cir.1970) (9th (per 421 F.2d 133 denied, conviction), cert. 465 U.S. dence for York, v. New (pa Williams ssim). In (1984). 1593, 1100, 104 125 S.Ct. 80 L.Ed.2d 241, 1079, Florence, 69 S.Ct. 93 L.Ed. 1337 337 U.S. v. 741 also United States See (Williams), (1949) upheld the the Court 1066, (8th Cir.1984) (judge may F.2d 1069 consideration, imposing in trial court’s hearsay; citing consider uncorroborated sentence, burglaries Farrow, thirty 1360); of some United States F.2d at 580 defendant, allegedly by 760, (8th committed even Cir. Papajohn, v. F.2d 763 701 these Ray, v. though 1983) (same); he had not been convicted of 683 United States at 1081. See 244, (7th Cir.) (same; citing Id. 1116, at 69 crimes. S.Ct. 1120 F.2d 1091, McMillan, denied, (discuss also authorities), cert. 106 at 2420 459 U.S. S.Ct. Oklahoma, Williams); (1982); 578, v. State 938 Williams 103 74 L.Ed.2d S.Ct. Koon, 769, (S.C.1982) (con 583-84, 773 358 at at 425-26 298 S.E.2d U.S. 79 S.Ct. context) (death (disapproved on oth in death sen prior sideration of record 1, 106 Skipper, tence); grounds 476 U.S. S.Ct. see States v. Won er also United 460 16-17, State, accepted by jury. 99

1669, 1); 322 not Id. at Alvord v. 90 L.Ed.2d 533, (Fla.1975) (same), Georgia su- cert. de S.Ct. at 236-37. Unlike the 538 So.2d 3234, nied, 923, Presnell, 49 L.Ed. preme judge 96 S.Ct. the trial 428 U.S. McMillan, (1976). 106 1226 S.Ct. here was authorized to enter sentence and 2d See 241, Williams, 69 (citing 337 U.S. 2420 determine the existence or non-existence 1337, 1079, penal a death 93 L.Ed.2d aggravating S.Ct. or circumstances. case, noting evidence is often ty MontCode Ann. 95-2206.6 and 95-2206.- §§ judge without 447, considered discretion Spaziano, S.Ct. See proof). or standard of burden allocation (passim) (upholding 82 L.Ed.2d permitting statute trial court to enter sen- testimony regarding the Round Nank’s tencing penalty). judge, in death The trial up burglary satisfied this standard. jury, like the found that Coleman had com- Nank while he testi judge trial observed aggravated kidnapping. mitted Once the testimony fied heard his first hand. circumstance, aggravating court found this Cruz, 523 F.2d See United States determined not the court that Coleman was Cir.1975), denied, (9th cert. U.S. mitigation entitled to credit for his other- 46 L.Ed.2d record, partic- clean wise because The trial also observed Coleman ipation Roundup burglary in the and the deny and heard him he testified at the trial enormity nothing of his offense. We find burglary. any involvement in the At the arbitrary irrational about the trial gen July hearing, counsel 10th factors, weighing court’s of these see id. at erally denied involvement nor we substi- prior But he did not criminal activities. judgment tute our for that of the Montana challenge par the reference to Coleman’s courts. Id. Roundup burglary in ticipation in the pre-sentence report or the trial court’s Findings unsigned which were distributed Opportunity b. Notice and beginning July hearing. at the 10th Court has stated that Coleman’s counsel declined to call Nank to comply process, with due notice must testify sentencing hearing at the and sub “apprise of, per affected individual

ject him to further cross-examination.11 for, adequate preparation mit impending addition, supreme ” the Montana court deter ‘hearing.’ Memphis Light, Gas & Water mined that Nank was corroborated on sev 1554, 1563, Craft, points. I, eral 177 Mont. (footnote omitted). 56 L.Ed.2d 30 (including Negroid pubic P.2d at 748 hairs The record reveals Coleman received ade found the Harstad vehicle and Coleman’s quate prepare sentencing notice to for the fingerprints purse). in the car and court’s Roundup consideration of the bur Georgia, glary. sentencing judge

Presnell v. notified coun (1978) (per 58 L.Ed.2d 207 sel for Coleman and the State that curiam), Coleman, change cited does hearing would be held on June There, jury our conclusion. sentenced 14th in accordance with Montana’s death Although jury the defendant to death. the sentence statute. This statute authorizes did not find that the defendant had commit proffered court to consider evidence at necessary aggravating (and probative ted the element of trial on the sentence the rape, Georgia receive) supreme forceable court defendant should without reintro sustained the conviction because the evi duction sentencing. at MontCode Ann. supported finding. dence would have 95-2206.7. Both Nank and Coleman had § 15-16, 99 S.Ct. at 236. The concerning Roundup Id. at Court testified at trial jury Further, did not burglary. pre-sentence reversed because convict report rape of forceable Roundup burglary defendant discussed the and the report could not be sustained on theory sentence was furnished to Coleman’scounsel following 11. We discuss tunity testimony regarding text this subsec- to contest Nank’s infra argument oppor- Roundup burglary. that he had no tion Coleman’s The court then indicated it “render hearing. coun- would Coleman’s June 14th at the findings go report up of fact and will on the of this its the contents referred to sel Finally, present any hearing. Cole- record that is the absence of 14th the June presented by the trial court’s un- received man’s counsel (which Findings hearing.” referred to the signed defendant this The court also beginning of the burglary) proposed findings par- at the Roundup requested from the hearing. no did July At time later 10th the court’s that it ties. Given statement desire to re- indicate a prepare Findings, unper- counsel Coleman’s its we find Nank, challenge testimony oth- his argument prep- examine suasive the that the court’s argument, request a contin- by oral er than findings July of those 10th aration Nank, any other recall or take uance to hearing process. violated due The court par- Coleman steps the claim that to attack do, exactly going it said it was to did what Roundup burglary. ticipated in the See any objection and did so without from Cole- 588 F.2d Wainwright, Gorham man. Inc., Cir.1979); (5th Acequia, In see also re 5. on Reliance Undisclosed Informa- (civil (9th Cir.1986) 787 F.2d tion context; discussing requirements notice argues finally Coleman that he had no request failure to continu- and counsel’s knowledge his statements made ance). July former counsel at the 1976 hear- reasons, similar the record does not For ing,12 prejudiced and that these statements support claim that he had Coleman’s pronounced the trial court it when sentence challenge testimony. opportunity to Nank’s July on 1978. agree supreme court with the Montana We hearing, “at the first did not that Coleman support The record does not Cole mitigation, testify in declined to examine man’s contention that he did know prepared pre-sentence the officer who July his 2. about counsel’s statements given opportunity to report, and was present hearing on Coleman was at the submit both further briefs supreme July 1975. As the Montana proposed findings and conclusions.” and his found, counsel to Coleman’s referred III, 633 P.2d at 632. We note Coleman amytal examination at the sodium hearing the second also that at hearing, willing and indicated Coleman was challenge again opportunity declined plead guilty and reconduct the examina II, testimony. Nank’s also Coleman See IV, court. tion before the 299, 605 P.2d at 1018. 185 Mont. 1158-59, These statements P.2d at correspond July was said at what 4. Distribution Trial Find- Court’s hearing 2nd in the context of the —that ings plea bargain, amytal examina the sodium memory he Coleman contends that the trial tion refreshed Coleman’s guilty. preparation unsigned ready plead of its Find therefore Ac court’s counsel, ings July hearing cording 10th former Cole before violated argument, however, ig previously his al process. due This man had “blocked out” leged murder participation nores the trial court’s statement at the in the Harstad hearing: amytal the sodium ex June 14th until he had taken willing repeat amination and was Now the announcement the defense addition, court. examination before the produce any does not intend to —call Coleman cannot now claim undisclosed any mitigating witness to establish cir- attempt knowledge of counsel’s to with his cumstances, has before all draw, repeated because counsel trial, during matters the course of the July hearing: request at the 3rd relating aggravat- testimony heard the ing mitigat- professional I circumstances and also some believe there are certain ing positions both as an circumstances.... and certain ethical hearing supra 12. The contents of that are in the statement of facts. discussed (here subsequently years three I tion and attorney, and have and as an individual later) enters a death sentence. He con- to Mr. Cole- Mr. Nank —or indicated to argument holding this around our structs in man, if I to continue this that have Cardwell, (9th Lowery in F.2d 727 case, try this then if have to case we Lowery, Cir.1978). In the defendant was way in I can state the world there is charged degree murder with first jury he is innocent deliber- that guilty. In in pleaded not a trial which the and that he’s innocent ate homicide fact, judge as the trier of the de- served without consent.... sexual intercourse during by testified examination her fendant however, I the record to want be Now— shooting and denied the victim. counsel my mor- clear that I feel that because immediately requested Her counsel a re- decisions, professional, al and ethical that meeting judge and a with the outside cess I should be relieved.... presence. of the defendant’s The defend- thing I only can do ... attack ant’s counsel moved to withdraw from the fully question they of whether can case; reason, explain he did not aggravated kidnapping. establish Id. at 729. trial court denied motion. Further, not al Coleman has closing argument, In the defendant’s coun- demonstrating leged any the trial facts sel did refer to his client’s claims of in court relied on his counsel’s statements judge innocence. The trial found the de- sentencing Coleman. A sentence will reversed, guilty. stating: fendant We appeal only if vacated on the information circumstances, “[I]f, under these counsel (a) presented to the court is false or unreli informs the finder of fact his belief [that able, (b) demonstrably made the basis his client’s defense is based on testi- false Messer, for the sentence. United States v. has, action, mony] he disabled the (9th Cir.1986) (citing 785 F.2d au judging fact finder from the merits of the thorities). In request the context of a for a Id. defendant’s defense.” at 730. We em- corpus, writ of habeas “a motion must be Lowery phasized “judge, in affirmatively appears denied unless it Id. jury, not a was the fact finder.” based its sentence the record the court case, present jury, judge, not a Farrow, improper on information.” jury finder of fact. The never heard (emphasis original); United F.2d at 1359 comments, Coleman’s counsel’s and found Perri, States v. (9th 513 F.2d guilty aggravated of murder and Gardner, Cir.1975). 349, 353, See kidnapping Although nonetheless. the tri- (involv 51 L.Ed.2d 393 judge al plea heard these comments ing sentencing judge reliance on undis bargaining context and sentenced Coleman information). closed The Montana su years later, sentencing three occurred preme carefully reviewed the record jury had found Coleman after and found “no indication that the sentenc guilty beyond a reasonable doubt. ing judge considered defense counsel’s however, maintains, amytal statement or the sodium examina judge the trial was the fact finder at sen sentencing tion results in Coleman.” Cole Lowery tencing and should be extend IV, Goode, man 663 P.2d at 1160. See Acceptance argu ed to this case. of this 85, 104 (even U.S. at S.Ct. at 382 if sentenc requirement, ment would contradict the re penalty hearing record is am law, peatedly expressed in our case that to biguous, federal court should defer to state judge warrant reversal actually must appellate court findings factual in death rely improper sentencing. information case). independent sentence Our review of See, Messer, e.g., F.2d at 834. This sentencing hearing transcript and the rule is sound and should not be disturbed. Findings trial fully supports court’s to, judge exposed A trial will often be conclusion. (see United even consider in Mills, urges adoption Coleman in effect (9th of a States v. 597 F.2d Cir. per se rule requiring 1979)) reversal whenever a evidence and accusations which inherently prejudicial hears wholly informa- would be inadmissible a trial on a See, sentencing hearing e.g., separate to determine guilt or innocence. defendant’s 1079, or nonexistence of the the existence cir- Williams, 69 S.Ct. 337 U.S. set forth in 95-2206.8 95- context); cumstances Unit (death sentence L.Ed. 1337 determining purpose (9th 2206.9 Wright, F.2d ed States hearing imposed. shall sentence be evidence). Cir.1979) (illegally seized the court alone. be conducted before introduce, at attempt may prosecution preju sentencing, information which Sentencing hearing 95-2206.7. —evi- See, e.g., dicial, simply or false. unreliable may dence that be received. the sen- Townsend, 1252, 92 tencing hearing, may presented evidence be 1690; Weston, 626. To hold 448 F.2d L.Ed. any as to matter the court considers rele- may not sentence the defend judge a sentence, including but not lim- vant exposure prejudicial to such ant because and circumstances of the ited to nature unwarranted, espe would be information crime, character, the defendant’s back- where, here, judge presided cially ground, history, physical mental and condi- of the trial and heard all over an extensive tion, any aggravation other facts in or testimony presented to the and evidence mitigation penalty. Any evidence See, guilty. jury which found Coleman probative the court considers to have force Montecalvo, 545 F.2d e.g., United States regardless may be received of its admissi- Cir.1976) (9th (involving motion for bility governing under the rules admission denied, recusal), cert. of evidence at criminal trials. Evidence (1977); Common L.Ed.2d 229 relating aggra- admitted at the trial to such Wilson, 381 Mass. wealth v. 407 N.E.2d vating mitigating or circumstances shall be 1229, 1248-49 (1980) (due challenge process reintroducing considered without it at the case); accord United in death sentencing proceeding. The state and the Bunch, (7th F.2d States permitted defendant or his counsel shall be Cir.1984) (recusal motion). con To further present argument against for or sen- process violation that a of due has clude tence of death. hearing, sentencing a even occurred at Aggravating circumstances. 95-2206.8. though no reliance on the record reveals Aggravating circumstances are information, repre prejudicial would following: Lowery inappropriate extension of sent an (1) The offense was deliberate homicide concerns un to a different context. The person serving by and was committed derlying Lowery defendant’s counsel —a pris- imprisonment sentence of the state informing the trier of fact at trial on. here; deception present client’s —are (2) Lowery comport homicide nor would an extension of The offense was deliberate dealing and was committed a defendant who with our case law underlying previously had convicted of another or the rationale those cases.13 been deliberate homicide. AFFIRMED.

(3) homicide The offense was deliberate by means of torture. and was committed APPENDIX (4) deliberate homicide The offense was hearing 95-2206.6. Sentence death — person lying and was committed imposition penalty. of death aWhen wait or ambush. guilty pleads defendant is found of or guilty homicide to an offense for which the sentence The offense was deliberate imposed, part committed as a of a scheme of death who and was which, re- operation completed, if presided at the trial or before whom the person. than one guilty plea was entered shall conduct a sult in the death of more regarding kidnapping caused the victim’s Coleman's other contentions whether the 13. death, I, sponte trial court's sua amendment of the infor- 177 Mont. are without merit. Coleman count, kidnapping 745-46, mation to include the and the 579 P.2d at special interrogatory concerning court’s trial defining by the statute

term authorized offense. homicide (6) deliberate The offense was Specific findings of (l)(a) written of 94-5-102 95-2206.11. in subsection

as defined In the court im- peace officer killed fact. each case which the victim was and sentence, poses the death the determination duty. performing his while specific supported by of the court shall be aggravated kidnap- (7) The offense was findings as to the existence written of fact of the in the death ping which resulted each of the circumstanc- or nonexistence of victim. in 95-2206.8 and 95-2206.9. es set forth Mitigating circumstances. 95-2206.9. findings shall be The written of fact sub- any are of the Mitigating circumstances by stantiated the records of the trial and following: sentencing proceeding. significant (1) his- The defendant has review of sen- 95-2206.12. Automatic activity. tory prior criminal judgment tence. The of conviction and sen- (2) offense was committed while The subject tence of death are to automatic influence of ex- under the defendant was supreme by review the court of Montana as or emotional disturbance. treme mental provided through 95- for 95-2206.13 2206.15. (3) The defendant acted under extreme domination

duress or under the substantial 95-2206.13. Review of death sentence— person. of another priority of The review—time review. (4) ap- capacity judgment of the defendant to of conviction and sentence of The preciate criminality subject by of his conduct or to death are automatic review requirements supreme to the conform conduct court of Montana within 60 substantially impaired. days by law was after certification court of the record unless the time is entire (5) participant in the victim was a by supreme good extended court for or to the defendant’s conduct consented supreme cause shown. The review the act. priority court has over all other cases and (6) accomplice The defendant was an shall be heard in accordance with rules person, an offense committed another promulgated by supreme court. The participation relatively and his minor. sentence shall to di- review addition (7) defendant, at the time of the taken, appeal, rect if and the review and crime, commission of the less than appeal shall be consolidated for considera- years age. tion. (8) Any mitigation other exists in fact Transcript 95-2206.14. records of and penalty. trial transmitted. The clerk of the trial aggravat- 95-2206.10. Consideration of court, days receiving within 10 after ing mitigating determining factors transcript, shall transmit the entire record determining sentence. whether to im- supreme transcript to the court. pose imprisonment, a sentence of death or 95-2206.15. court to make de- aggra- the court shall take into account termination as to the sentence. Su- vating mitigating circumstances enu- preme punishment court shall consider the merated 95-2206.8 and 95-2206.9 any by way as well as errors enumerated impose shall a sentence of death if it finds sentence, appeal. regard With aggravating one or more circum- the court shall determine: mitigat- stances and finds that there are no (1) whether the sentence of death was sufficiently circumstances substantial imposed passion, under the influence of leniency. to call for If the court does not factor; prejudice, any arbitrary or other impose a sentence of death one (2) aggravating supports circumstances listed in 95- whether the evidence exists, 2206.8 may impose judge’s finding the court a sen- of the existence or nonex- imprisonment tence of aggravating for life or for istence include in its decision a reference

shall those similar cases took into considera- in 95-2206.8 and enumerated tion. 95-2206.9; and is ex- of death the sentence whether disproportionate cessive or REINHARDT, Judge, Circuit considering both cases, in similar imposed dissenting: The court and the defendant. the crime TABLE OF CONTENTS

Page I.INTRODUCTION ..466 EQUAL

II.THE PROTECTION CLAIM.

A. Introduction.

B. Law.468 Equal Principles Protection 1. General .468 _470 Challenges Bargaining Equal

2. Protection of Plea C. Facts.472

1. The Evidence Available.472 Hearings Bargaining The Plea

2. .474

D. Discussion.477 Hearing Equal Evidentiary

E. on the Protection Claim.482 F. Conclusion.484

III.THE CAPITAL SENTENCING PROCEEDINGS .484

A. Introduction.485

B. Facts.486 Sentencing.486 First

1. Coleman’s Penalty

2. The 1977 Death Statute.486 Resentencing 3. of Coleman.488 Sentencing.491 C. Constitutional Deficiencies Right Argument 1. The to Present at the Time of Sen- tencing .491 Mitigating Circumstances.496 Background Mitigating

a. Character and Factors 496 (i) General Rule.496

(ii) Specific Mitigating Circumstances in Coleman’s

Case.497 (iii) The Trial Court’s Failure to Consider Cole- Background.498

man’s Character and (iv) Majority’s Analysis.. The Errors in the (v) Only Even were it “Unclear Whether the Trial Factors, Mitigating

Court Considered the Re- Required.501 versal Would be (vi) Requires Specify The Constitution the Court to Mitigating Factors Considered.502 Unadjudicated b. Consideration of Offense.504 (i) Introduction.504 (ii) Judge Based Coleman’s Sentence in Part Unadjudicated

on an Offense.504 (iii) Unconstitutionality Relying Unadjudicat-

ed Offenses.505

(iv) Notice.508

D. Conclusion.509 Page THE DEATH PENALTY

IV. STATUTE.509

A. Introduction.509 Mitigating

B. Burden of Proof on Circumstances.509 Application Penalty C. Retroactive 1977 Death Statute ... 514 Summation.51g D. AND THE CRUEL UNUSUAL PUNISHMENT

V. CLAIM.519 Arbitrary A. and Extraneous Factors . Unreliability

B. of the Evidence.522

VI. CONCLUSION.522 day capi- finding that earlier on the

I. INTRODUCTION Nank, Coleman, along offense tal with planning is of Montana The State a lesser unrelated crime—a committed Coleman, who in hang Dewey a black man charged, he had crime for which not been facing not execution likelihoodwould all tried, or convicted. are For reasons that if he were white. meritless, and have entirely arbitrary and Equally important, the Montana death pretextual, being of every appearance penalty statute is unconstitutional on its plea bar- refused even to consider state applied face and as to Coleman for a num- every re- gain from Coleman identical ber of reasons. Under the statute the bur- spect accepted the one it from his white proof placed of was den on Coleman This, codefendant, notwithstanding Nank. unadju- show that he had not committed an Nank was a hardened criminal the fact that Perhaps impor- offense. more dicated even previ- had not been arrested while Coleman tant, placed on him to burden show ously community a record of ser- and had mitigating circumstances out- willing to afford No court has been vice. weighed single aggravating circum- hearing on his claim of a factual stance; for, law, under Montana the bur- discrimination, despite the racial clear con- persuasion den the issue of life or stitutional mandate to do so. accused, prosecu- death falls on the not the sentencing hearing was little Coleman’s Next, tion. the statute under which Mon- hardly more than a sham have tana seeks to execute Coleman did not even adequate been were the issue whether a tried, convicted, exist he was first when Leaguer suspended for one Little should be Every and sentenced. other court that has game. attorney rely solely His decided to question considered the has held that the argument on oral and so advised the sen- may state not execute a in that tencing judge well in advance of the sen- defendant tencing. judge Yet the arrived at the sen- circumstance. tencing hearing Findings, Conclu- Finally, accept blindly even were one to sions, Judgment and Order Execution wholly unpersuasive arguments Montana’s par- final form and distributed them to the played part that race in its decision to speak. ties before counsel could There- Coleman, execute one would still be forced after, in the words of the Montana Su- to conclude that the state based its decision Court, preme attorney per- life, spare to take his his codefend- prepared mitted to into the record a “read ant’s, on factors that were unrelated to the Furthermore, appears statement....” degree culpability of his criminal or to his findings from the court’s own and, background individual character or judge time of was unaware thus, impermissible, constitutionally are legal of either the signifi- existence or the quality and that the of the evidence is not cance of most of the critical degree reliability such as afford that required

circumstances the Constitution necessary addition, constitutionally is before him to consider. part based the person’s death sentence in on his the state take a life. of its actions The review we must capital insists that all afford Montana regrettably, much Although, ordinary case is stricter than in crimi lawful. were panel proceedings. decided to ac- nal As majority has actions, impossible explained, “although has every imper I find it not quiesce in those in the process I must fection deliberative Because believe that we suffi to do so. cient, case, capital even in a approval of the federal courts to set aside a lend judgment, state-court severity discriminatory and unconsti- to the state’s scrutiny sentence mandates careful conduct, per- I and because am tutional colorable claim error.” review of very that at the least Coleman is suaded Stephens, Zant v. 862, 885, evidentiary hearing, I to an dis- entitled 2733, 2747, (1983) (em 77 L.Ed.2d 235 sent. added). phasis The Court reinforced the obviously presents This case numerous point in Burger Kemp: duty “Our questions. The Mon serious constitutional search for pains constitutional error with Supreme Court has considered Cole tana taking exacting care is never more than it All pleas man’s on four occasions. four — capital —, inis case.” opin encounters have resulted extended 97 L.Ed.2d 638 strong concerning ions and dissents a num issues. State v. important legal ber of EQUAL THE II. (Coleman I), PROTECTION CLAIM 177 Mont. (Cole (1978); State v. Coleman P.2d 732 Introduction A. II), 299, man 185 Mont. 605 P.2d 1000 prosecution Coleman claims that the con- denied, 970, (1979), cert. 446 U.S. 100 S.Ct. plea bargaining ducted its arbitrary on an (1980); Coleman v. 64 L.Ed.2d 831 discriminatory basis. He insists that (Coleman III), (1981),

State 633 P.2d 624 plead the state should have him allowed denied, cert. guilty and thus avoid the death sentence (1982); Risley Coleman 71 L.Ed.2d 693 just codefendant, as it did his white Nank. (Coleman IV), 203 Mont. 663 P.2d According Coleman, racial considerations (1983). only I will consider here arbitrary unequal motivated the treat- legal my opinion present that in issues ment. egregious most constitutional violations. I general have divided those issues into four presents today Coleman us not with a categories: stemming those from Cole general argument the discriminatory about equal protection regarding man’s claim capital punishment effect of but with a actions; prosecution’s relating those to his unequal concrete claim treatment challenge constitutional argue basis race. He does not procedure case; per followed his those penalty Montana’s death scheme tends to taining process problems presented to due disproportionate impact have a on blacks in penalty the death statute on its face and general. Compare McCleskey Kemp, — applied; stemming —, and those from Cole U.S. 95 L.Ed.2d eighth claims, instead, man’s amendment claim. Reversal He category specific on the first of issues would re case Montana not im would have least, quire, very at the posed a remand to the the death on him had he been United States District points Court so that Cole white. He to factual circumstances man could hearing be afforded the that he clearly the record that raise a substan question has thus far been denied. Reversal on the tial as to the state’s discriminato category require intent, second ry significant being vacation of the most penalty, although the death the state would fact that him in Montana did not treat a be allowed to consider anew all forms of similarly similar fashion to his situated punishment permitted under the state stat white codefendant. Unlike the defendant in McCleskey, ute. Reversal on the third or fourth cate “evidence Coleman offers gory imposition of issues would bar specific support to his own case that would penalty altogether. an inference racial considerations prejudice “The risk of racial tection claim. Id. at 1766- part in his sentence.” played a sentencing proceeding,” infecting capital 67.1 said, especially “is has enough of a more than made finality light complete serious arbitrary treat- unequal and showing of Murray, sentence.” Turner v. the death hearing before entitled to ment to be 1, 106 90 L.Ed.2d court, That Court. District United States (1986) (plurality). summarily, as however, his claim rejected equal protection claim is not would, I majority here. does the challenge upon to the validi- a facial based petition on least, remand Coleman’s very but, statute rath- ty specific Montana court to direct the district issue and this appli- er, to the state’s administration clearly it so his claim the consideration give equal protection its laws. The cation of deserves. amendment, of of the fourteenth clause course, type of chal- does not exclude B. Law unequal lenge. prohibits laws It Princi- Equal Protection 1. General application and adminis- unequal but also ples “Though the law itself be tration of laws. impartial appear- on its face and why we should fair several reasons There are ago, ance,” many years the Court declared to Coleman’s give special consideration “yet, applied if and administered First, it is is protection claim. equal authority eye and an public with an evil by the state alleging discrimination racial hand, practically to make unequal so as declared, cen and, has as the Court “[t]he illegal unjust and discriminations between Equal Protection Clause purpose tral circumstances, material persons similar pre Amendment is the the Fourteenth rights, equal justice the denial of to their discriminating of official conduct vention prohibition of the Constitu- still within Washington of race.” on the basis Hopkins, Yick Wo v. tion.” Davis, 426 96 S.Ct. U.S. 373-74, 1064, 1073, 6 S.Ct. 30 L.Ed. 220 Second, 2047, (1976). 697 Cole 48 L.Ed.2d charging discrimination within the man is which, system, has de judicial Court equal protection in chal- To succeed his clared, pernicious it is ‘a “is most because lenge penalty Coleman must of his death prejudice is an stimulant to that race which purpose. The prove discriminatory Court securing to impediment to [black citizens] imposed requirement on all claims has equal justice the law aims to which equal protec- it has considered under the ” Kentucky, others.’ Batson v. secure all See, e.g., Wayte v. United tion clause. 1712, 1718, 79, 90 L.Ed. 106 S.Ct. 476 U.S. States, 598, 608-09, 105 470 U.S. S.Ct. Strauder v. West 1524, 1531, (1986) (quoting 2d 69 (1985) (selective 84 L.Ed.2d 547 (10 Otto) 303, 308, 25 Virginia, 100 U.S. claim); Personnel Adminis- prosecution (1880)). Recently, the has L.Ed. 664 Feeney, 442 256, trator Mass. v. U.S. point: reiterated this “Because the risk 271-72, 2282, 2292, 60 L.Ed.2d 870 99 S.Ct. the factor of race enter the crimi (1979) (claim against of sex discrimination in justice process, engaged have nal we giving veterans an absolute life- state law ‘unceasing preju racial government employ- efforts’ eradicate preference time in Metropolitan justice system.” ment); Arlington Heights v. dice from our criminal (cita McCleskey Kemp, v. 252, Development Corp., 107 S.Ct. at 1775 429 Housing U.S. omitted). 266, 555, 564, Finally, tion and footnote be L.Ed.2d 450 97 S.Ct. 50 (racial zoning capital punishment against claim cause case involves discrimination Davis, 229, Washington v. plan); carefully equal pro we must 426 U.S. examine McCleskey’s McCleskey proves petitioner 1. The issue in was a narrow one. minations capital majority succinctly: under the The presents described it "This case sentence is unconstitutional question complex Eighth Id. at 1761. whether a statis- or Fourteenth Amendment.” dissents, held, study despite vigorous tical that indicates a risk that racial con- The Court id. 1781-1806, capital sentencing siderations enter into deter- that it does not.

469 motivating has been 2040, 2047, purpose in 239-40, 48 L.Ed.2d 597 96 S.Ct. factor against decision, (1976) (racial judicial claim discrimination this deference is no test). Recently, has the Court employment longer justified. principle applied “the specifically basic 265-66, (foot- 429 U.S. at 97 S.Ct. at 563 alleges equal protec- a defendant who omitted) (emphasis supplied). 965, 2438, [961, 103 S.Ct. usually sometimes verbal but non-verbal— 2440, (Marshall, J., 77 L.Ed.2d dis- 1322] suggests that of a discrimina existence certiorari), senting from denial of tory motivation. promise equal be inconsistent with the Coleman does not have to show that ra- protection to all. cial discrimination the dominant moti- Kentucky, Batson v. In 106 S.Ct. at 1722. actions, underlying prosecution’s vation fact, us, McCleskey clearly tells deter- let alone the Evidence motivation. mining racial considerations whether have played any part that racial discrimination prosecutor’s affected a decision to seek the whatsoever in the state’s decision is suffi- penalty, primari- the court must look Arlington Heights Metropoli- v. cient. In ly to the facts and circumstances surround- Housing Development Corp., tan in- specific prosecutorial decision explained: volved. Davis require plaintiff does not Heights Metropolitan In Arlington prove challenged action rested Housing Development Corp., the Court solely racially discriminatory pur- identified some of the circumstantial evi-

poses. ... is not discrimination [RJacial just discriminatory dence is when competing another consideration. relevant proof discriminatory When there is that a is issue: intent sentence to seek a death decline background of the decision The historical case_ course, pow- “the source, particular if Of particularly evidentiary is one power to is the tak- er to be lenient actions [also] of official a series it reveals discriminate,” Davis, specific Discretionary K. purposes. en for invidious (1973), capital-punish- leading up to but Justice sequence of events dis- may shed some that did not allow for system also ment challenged decision pur- leniency “would be cretionary acts of decisionmaker's light on the normal Departures from our notions of criminal totally alien to poses .... might afford sequence Georgia, also procedural justice.” Gregg v. are improper purposes 2937-38 n. [153,] 200 n. 96 S.Ct. evidence departures [(1976)]. Substantive playing a role. 49 L.Ed.2d relevant, particularly if the may too McCleskey Kemp, 107 S.Ct. at 1777. important by usually considered factors judiciary’s equally true that It is strongly favor a deci- the decisionmaker plea prosecutorial discretion deference to one reached. contrary to the sion absolute, and bargaining no means (citations at 564 97 S.Ct.

429 U.S. at that racial consid- courts must ensure of rel- omitted). Arlington's enumeration play part plea-bargaining in the erations no is, course, not evidentiary sources evant Hayes, process. Bordenkircher v. 565. 97 S.Ct. at Id. at exhaustive. 98 S.Ct. 54 L.Ed.2d U.S. un- listing suggests that we must But the (1978), writing for the Justice Stewart — deep examination dertake a broad Court—stated: of Coleman’s specific the breadth of There is doubt imposi- whether the in order to decide case legal sys- country’s that our discretion equal penalty violated the of the death tion attorneys prosecuting tem vests key inquiry here protection clause. potential with it the for both indi- carries prosecutor’s motives must be as and institutional abuse. And vidual refusing ac- repeatedly vigorously be, though that discretion broad accepting, cept, consider or even lim- undoubtedly there are constitutional examination must guilty plea our —and upon its its exercise. my colleagues remind “sen- be—I would —a (footnote at 669 omit- Id. at 266, 97 at 564. one. Id. at sitive” ted). Bordenkircher, quoting Oyler v. Challenges Equal Protection 448, 456, 501, 506, Boles, 368 U.S. Bargaining Plea (1962), reiterated the funda- 7 L.Ed.2d equal protection prosecutorial re- mental limitations that the There is wide discretion plea bargaining, imposes prosecutor’s has clause on the conduct garding and the Court bargaining. rejected plea a of “Within the limits set explicitly the contention “that right legislature’s constitutionally valid criminal defendant has an absolute offenses, chargeable guilty plea accepted by the court.” definition of ‘the con- have his 705, 719, Overholser, selectivity in en- Lynch 82 scious exercise of some U.S. 8 L.Ed.2d 211 forcement is not itself a federal constitu- See York, long tional violation’ so as ‘the selection also Santobello v. New 263, 495, 499, upon deliberately 92 30 L.Ed.2d 427 was based an un- S.Ct. [not] race, religion, (1971); justifiable Alford, North v. standard such as Carolina ” 34-35, 160, 166, 25, arbitrary 434 27 L.Ed.2d 162 or other classification.’ (1970). 364, Though recognizing (quoting Oyler the risks asso- U.S. at 98 S.Ct. at 668 456, 506) Boles, prosecutors’ in at 82 S.Ct. at ciated with the discretion v. U.S. conducting plea bargaining penal- (emphasis supplied). Wayte in death v. United cases, States, ty McCleskey principle in once restates the that the exer- the Court again importance prosecutorial on the basis reminded us of the cise discretion such discretion: of race is unconstitutional: noted, prosecutor [Although prosecutorial discretion is

As we have a can de- “ broad, Selectivity charge, plea bargain, cline to offer a or it is not ‘unfettered.’ ruled, criminal law is ... to a reversal of their if enforcement of convictions they prosecution constraints.” can show that exer- subject to constitutional Batchelder, v. peremptory challenges cised its States U.S. in a dis- United 2198, 2205, Id. at 1725. 114, criminatory L.Ed.2d manner. By [99 (footnote omitted). token, (1979) partic- showing prosecu- In same a 755] ular, prosecute may reject plea not to tion’s decision to the decision Coleman’s “ upon capital un- ‘deliberately based to seek a sentence not be instead was ra- race, cially justifiable standard such as reli- motivated would necessitate reversal arbitrary penalty. gion, or other classification of his death Hayes, v. ...”’ [Bordenkircher In noncapital punishment case, a recent (quoting Oyler v. 98 S.Ct. at 668 Moody, v. (9th United States F.2d 1380 Boles, 506).] 368 U.S. at Cir.1985), previously we reiterated the es- 470 U.S. at 105 S.Ct. at 1531. prosecutor’s tablished limitations on a dis- plea bargaining. cretion in The defendants Recently, McCleskey, in the context of Moody prosecution claimed that the en- challenge prosecutor’s decision to a to a gaged impermissible by discrimination Court, citing penalty, seek the affording plea bargain a coconspir- to their applicable portion Wayte, reaffirmed rejecting ator and not to them. In defend- principle racial considerations claim, ants’ we stated: part play prosecutor’s must in a exercise discretion, noting re- of his it “has We have held that a defendant who relies peatedly prosecutorial discre- on impermissibly stated contentions of selective prosecution cannot be exercised on the basis of tion must demonstrate “that he (citing prosecution race.” 107 S.Ct. at 1775 n. 30 was selected for on the basis States, Wayte race, States v. United United impermissible ground of an such as Batchelder, Boles). Oyler See also religion or exercise of the constitutional Lee, (9th United States v. rights.” 786 F.2d Cir.1986). reject guilty The decision to a Id. at 1386 (emphasis supplied) (quoting

plea compel a defendant submit McWilliams, United States 730 F.2d capital charge indisput- trial on a is thus (9th Cir.1984) curiam)). (per subject ably to the same constitutional rule While we concluded that the defendants prosecutorial as all other decisions: govern- that case did not show “that any decision not be influenced in mea- ment motivated considerations of sure the race of the defendant. race, religion, impermissible other ground,” id., nonetheless, we made it clear Supreme opinion The most recent Court prosecution plea if the bases its bar- reviewing challenge prosecutorial a dis- gaining decisions on the race of the defend- prosecutor’s specific cretion on based ants, the courts will Mon- intervene. The case is Batson. particular in the conduct Supreme tana decision in Court’s Batson, In the Court held that the state’s I, 177 Mont. 579 P.2d 744-45 privilege exercise of its traditional to strike contrary is to the rule we announced jurors through individual peremptory chal- and cannot stand.2 lenges subject to the constraints of the equal protection reviewing clause. 106 at 1718- When a state’s decision to re- entitled, ject plea 19. Defendants are the Court a defendant’s and seek the death rejecting appeal, bargain previously the Montana with a it has made and when Supreme erroneously prose- bargain. Court held that the the cases," cannot enforce such a state "These insisted, Supreme cution and trial court have absolute discretion the Montana deciding accept plea. guilty require prosecu- whether to “do not the trial court or the I, accept guilty plea. acceptance Coleman 177 Mont. 579 P.2d 744-45 tion to of a guilty plea charged The court concluded that the United offense is within opinions plea States Court's bar- discretion of the trial court.” Id. The Montana Court, gaining impose any explanation do not limitations on the without further discussion, prior accept state plea to the time it has decided to a dismissed Coleman’s claim that only plea bargaining racially the decisions serve to establish in his case was —that governing comply rules when the state must motivated. Harstad into back stop. Nank forced generally keep in mind penalty, must we drove, disrobed and, Coleman prosecu- while seat preserving importance of rape to her. success Yet at her and tried without discretion. traditional tion’s attempt, ra- Coleman certain that failed make After Nank’s we must same time part in the re- played physically Nank raped Harstad while cial considerations particular in the her foot. discretion and held on to exercise of that her strained that racial fetish.) can show (Nank case. If Coleman that he had a foot testified prosecu- in the a factor were considerations River took her to the Yellowstone The two accept proffered to her, tors’ decision drowned Nank and Coleman where equal prevail on his plea, is entitled he holding head in the water her down Nank protection claim. legs. held her Earlier Cole- Coleman while motorcycle her with his man had beaten C. Facts tried, help, Nank’s helmet and yellow rope. After the strangle a her with Available Evidence The murder, and Nank drove the vic- Coleman case, two defendants: there were In this Forsyth they until ran out tim’s car toward Dennis Nank. and Robert Dewey Coleman way the rest of the gas. They walked arrest, Coleman was At the time of the bought gasoline. then Forsyth and Nank man, originally from A years old. black motorcycle ride to where the hitched a Missouri, had never been arrested Forsyth rode it to fetch Cole- back history of behav- had no violent before and man. in the United States He had served ior. and, discharge, played a upon his Navy hand, gave Coleman, other on the pro- community service role in substantial following After their initial fail- account: grams neighborhood. in his Coleman testi- ride, suggested get Nank that he ure to a He had homosexual. been fied that he was getting one might be more successful Ad- depression at a Veteran’s treated for Coleman, pointing that few out without shortly hospital before ministration people lived Montana. black He had met codefendant crime occurred. sight and Nank hitched a withdrew from prior Peggy Har- only one month Nank highway ride. Coleman waited stad’s murder. to return. hours later Nank Nank Several car, wet, man, appeared, driving upset, Nank, history a white acting strangely. Nank told Coleman to including attacks on both his moth- violence long motorcycle get in the car. his sister. He had a list abandon the er and did, felony that he prior arrests and several convic- When he Nank told Coleman addition, admitted to a the car tions. Nank had killed a woman. Nank drove involving pattern gas. deviance wom- They of sexual until it ran out of then walked way, gave en. Forsyth. On the Nank Cole- opened, purse, man a which Coleman in this direct evidence available through, away. and then At looked threw accused. testimony case was the two and, Forsyth, they bought gasoline after began. They only agree story on how the motorcycle, continued Nank retrieved their motorcycle Coleman and Nank were way. on their Nank warned Coleman riding gas highway ran out of when murder, anyone if he ever told about the Forsyth, they were en route to Montana. kill him Nank would too. tried, They then immediate suc- without cess, gas to hitchhike to a At this station. presented prosecution no direct evi- point, diverge. the two accounts dence, testimony, other than Nank’s con- cerning prose- actions. But the testimony presented

Nank’s the remain- following five Harstad, cution contended that Peggy facts as follows: story: victim, resident, points corroborated Nank’s stopped a white Montana helmet, (2) motorcycle gave crack in Coleman’s Nank and Coleman a ride. While rope in road, over, hair found in a driving down the Nank strands of Harstad’s reached men, (3) key off, apartment of the two Cole- turned the and steered the car to a certainly not met the thin on the car and on a circumstantial fingerprints man’s (4) negroid purse, head paper prosecution. in Harstad’s evidence introduced found in Harstad’s aban- pubic hairs reviewing evidence, After Justice car, presence of Coleman doned Morrison concluded: day vicinity on the and Nank A is defendant here sentenced to die I, 111 Mont. crime. practically there is where credible evi- P.2d connecting dence the defendant Morrison, in his dissent in Cole Justice commission of the crime. There are III, (1981) (Morri man P.2d strong reasons to believe that the de- son, J., dissenting), cert. denied fendant did not commit the crime for (1982), L.Ed.2d 693 penalty imposed. which the death was of the five facts pointed out that not one yet authorizing And this Court disputed parts of reliably corroborated the imposition of that I irrevocable sanction. story. The victim’s hair in the Nank’s implore the federal courts to examine fingerprints rope, Coleman’s on the car and record, upon finding this it to as paper purse, neg the victim’s on the within do, wanting prevent as I to intervene and car, roid head hair and the fact that gross injustice. together the two were seen on the road disappear about the time of the victim’s III, (Morrison, J., 633 P.2d at 641 reasoned, ance, fully Justice Morrison were dissenting). agreed Justice Shea with Jus- testimony. consistent with Coleman’s 633 tice Morrison that Coleman’s conviction motorcycle crack in P.2d at 635. The “Although should have been reversed. dis- helmet, according Morrison, to Justice proper ruling,” missal is the Justice Shea meaningless. He noted that there was no added, “even in the event of a failure to testimony motorcycle that a helmet would dismiss, the evidence of corroboration of if crack used to strike someone and no accomplice testimony Nank’s is so thin that testimony that the helmet could have imposed.” a death should not be fracturing cracked without the victim’s (Shea, J., Id. at dissenting). skull; he also noted that there was unre- important, More both before after testimony butted there was no evi witnesses, prosecution presented its any injury dence of to the head. 633 P.2d judge expressed skepticism trial about the tending 635-36. The evidence strength prosecution’s During case. opposed corroborate Nank’s as to Cole pretrial proceedings, judge urged negroid man’s version is the fact that two prosecution guilty plea, take Coleman’s pubic hairs were found the victim’s car. part proving guilt because his would be insisted, however, Justice Morrison that the very difficult on the basis of the evidence expert testimony pubic state’s on the hairs govern- available. At the close of the speculative “was to be received [sic] case, ment’s Coleman moved for dismissal evidence, received, and once could not be judgment acquittal. judge told upon sufficiently relied corroborative to prosecution that he would Cole- treat sustain a conviction.” 633 P.2d at 637. man’s motion “as a real serious motion”. Justice Morrison noted that Nank’s testi- said that the motion had some mony should suspicion be viewed with “Well, you merit and added: all have light “strong Id. lying.” motive for opportunity boy shown is the for this black confession, making at 634. Before plenty oppor- to do it. You have shown Nank demanded that law enforcement offi- tunity.” provide cials him some assurance that he beyond dispute prose- would not be executed. The level cor- It seems that the required strong roboration against under these circum- cution did not have a case stances, according Morrison, Coleman, to Justice either time it refused to accompanying 3. See text note 13 for dis- of this comment. infra significance aspect cussion of the of the racial I and don’t in advance fixed motions are afterwards. plea or his accepting consider trial, Judge. a fair I can have feel that testimony of on based Its case was disqual- sparsely corrob- automatic Following Judge at best Coate’s was accomplice and Judge assigned evi- to ification, circumstantial the case limited by the orated case, Judge Mar- taking testimony Upon Nank’s Martin. available. dence course, understand, that re- “I tin noted: inconsistencies through with shot a condi- even consider to State declined At tri- earlier accounts. from his tractions right?” The plea, is that negotiated as tional stories previous his own discarded al he “That is immediately replied: prosecution III, 633-37 633 P.2d lies. Coleman right.” J., dissenting). In addi- (Morrison, served felony took tion, prior pretrial hearings convictions During the Nank’s credibility. Judge July his 2 and on place further to undermine bargain- plea issue of presiding, Martin discussed exten- again and was ing arose Hearings Bargaining 2. The Plea to First, objected the state sively. accepted the state May On urging bargaining, plea discussion noncapi- guilty to the plead offer to Nank’s hearing arguments on to limit the the court solic- homicide and deliberate charges of tal copy inspect medi- to Coleman’s motion with- sexual intercourse itation to commit going to “If Nank. we’re reports of cal addition, to agreed, in consent. Nank out conference,” Special bargaining plea hold a state, The at trial. testify against Coleman declared, do that “let’s Overfelt Prosecutor charge of return, agreed to dismiss things all later, get these let’s but and, against Nank kidnapping aggravated The big mish-mash.” up in one mixed capital thus, possibility spare him counsel defense allowed court nevertheless punishment. open court. present plea offer to his counsel, Coleman, offered through his counsel, stated Monaghan, Coleman’s Nank’s less to that of plea bargain similar willing to enter was now that his client May defense later. On than two weeks charges of deliberate guilty plea of to the court in the offer to presented counsel assert- assault without homicide sexual form, initial Coleman’s writing. in its Even judge then asked: innocence. ing his only in that Nank’s from offer differed propo- same now makes the your client “So innocence. assert his wanted to Coleman as Nank has?” Counsel the State sition to plea. accept his refused to The state added affirmative and answered judge, Judge original right against trial self- his When the waive Coleman would accept against his code- Coate, testify to urged the state incrimination and fendant, just him to recuse Nank had done. prosecution forced plea, the as following “I think the challenge comment: peremptory made the filed a himself. It they position don’t tough in a if disqualifi- State’s signed affidavit for along with a plea]”.4 accept County Attorney For- [the cation. Rosebud objec- prosecution’s sythe thus stated objecting gen- by Again the reacted state tion: participation in the erally the court’s to being I forced I feel am re- presiding judge bargaining. The plea they are attorneys, perfect Judge defense has the “I counsel torted: think plea bargain they me if want to attempting to force to to the Court right to come authority Rose- bargaining].” [plea I when have constitutional and talk about on behalf authority Attorney Forsythe, to County and the constitutional bud sole state, objections to his I stated of the State. then plea bargain on behalf agreement with any plea entering into on many respects decisions feel that inter- fact, pled sexual to commit appears Nank to solicitation have 4. In charge parties and the plead to an even serious . consent. offered to more course without pleading guilty court, however, being plea than did In addition Nank. treated the offers homicide, ap- charge deliberate identical. assault, plead parently while offered to sexual plea hearing you put He said that a would be that after Coleman. those 60 witnesses, if to attack for "lack of voluntari- vulnerable defendant takes the repeated says ness. Because of Coleman’s stand and he made the same offer to discrimination, Forsythe they claims of racial the State as did Nank and want opined, plea appear hang go, have been me and let Nank- jury what is the do, going goes adverse, offered of his belief that he and if jury because get appellant could not a fair trial. what is the going court to [sic] question do. That’s the serious that I tried Forsythe added that the state also had point beforehand, just to out you and so problems plea with the because it lacked “a can think it over and I you want to.” explain factual basis.” He did not his Clearly, point that the court tried to statement further. After re- prosecution make to the on more than one sponded by pointing process out that due occasion was that the state’s behavior dur- guilty plea not a does invalidate that lacks ing plea bargaining gave impression basis, Forsythe a factual retreated to his discriminating that the state was against argument, saying: lack-of-voluntariness Coleman.5 that, “My immediate reaction to is that it day July The next much of a An doesn’t make difference. 1975—defense — counsel, in is, presence Coleman, part plea re- essential is it volun- plea stated the Specifically, offer. tary.” Mona- ghan stated: “I simplify think to the situa- later, Special A little Prosecutor Overfelt tion, say I would that we would make an expressed objec- concern many about plead guilty offer to under the same terms that plead- tions Coleman could raise after and accepted by conditions as has been ing guilty. responded: The court “That’s regard State with to Mr. Nank.” After thing you’re going bring up to and take agreement Coleman himself voiced his to guilty plea. care of when he enters his It offer, Monaghan declared that Cole- clearly bring establishes that he can’t these plea man’s was at least as reliable as [objections] up again.” Overfelt reacted to Nank’s, that it complete would include a judge’s suggestion by complaining that facts, disclosure all the and that would plea the state could not decide on the offer provide the protection state with some sug- on such short notice. court then possible case of a retraction Nank later gested give the state the offer some down the line: thought. Overfelt refused. I have stated before that I believe that In a further effort to overcome the plea subject many Nank’s is to as techni- resistance, state’s defense counsel Mona- problems cal or more technical than what ghan told the court that his client would trying client, I my am to do on behalf plead disclosure, guilty, make a full ex- they get and if voluntary complete a full pressly rights, agree waive his to be disclosure of all the facts from Mr. Cole- fully plea. Monaghan bound made fully implicates man which Mr. Nank in following observation: “the State has every respect, as much as Mr. Nank has accepted plea a from Nank under tremen- implicated Coleman, they Mr. then have dously think, difficult circumstances I they protect what want themselves they’re willing say voluntarily that’s against an effort at some later date to continue, and it will but when I come [sic] Mr. where Nank could come in and as- in, they every objection raise there is ...” plea sert that all of his bargain- and his agreed Monaghan’s The court as- was all under duress and that he sessment and prosecu- commented to the didn’t doing, understand what he was tion: pointed previous “Of course I out I and so think this is a benefit prior hearing, give 5. In a argument very the court had said with close attention under respect potential equal pro- to Coleman’s then provides charge may the statute that tection claim: justice. dismissed in the interest of That is jury receptive If argument, type is not to that apply. where that statute would appellate I think the court would If he is him. I have told everything that concrete have now they will State that everybody is to stand and get on the Mr. against testimony record there him and then question any- Nank, in the event against Mr. understands, I he to whether up appeal and should take one prose- the Court or expect has been what aside set should I sayI accept the fact that cutors up, so it’s set has been what agreed and get that he would I know told him. have regard.... in that way street not a one these everybody would ask up there effort every conceivable made defense questions. validity of the state to assure the objected plea again bar- Forsythe once plea: court, citing presence in the gaining questioning, all course with [O]f of the American of Ethics the Standards know to wants State whatever Forsythe retreated from Bar Association. know, that noth you itself assure that — admon- only after the position this try and I would held back ing be would this just be on him: “You careful ished as far know everything that I to reveal in going to be held man. You’re young making in case, to assist State this as accusing you’re if contempt of this Court the Court inquiries and to assist its trying is what Court this Court. Now cover if I didn’t inquiries making its in here and and don’t come do is be fair to expect I enough, and would things well your straight that tell me that. Get things, to do these that mind.” trick, dodge or is no there assure that two other ob- Forsythe then mentioned to of the defendant nothing part previ- advanced on the jections he had not date, and that’s things a later get of plea bargaining any earlier day ous position. our First, stated that he be- he discussions. further: Monaghan went culpable was the more lieved that Coleman I Honor, capabilities my own Your within Second, pointed he out of the two men.6 everything tell Mr Coleman have tried to begun cooperate to with the Nank had that I this. And waiving by doing he is that provided the state state earlier and had your any question if say that there evidence. with to mind, willing time be this he’s the weakness of Perhaps perceiving fully before questioned and to be sworn Forsythe im- objections, these new-found as to what anything goes further ever retreated, again, to reas- mediately once explain to waiving. I to have tried he’s unre- serting complaints about the his basic rights against waiving his him that he’s plea by In liability guilty of a Coleman. incrimination, waiving his he’s that self amazement, frustration, if not utter against right the witnesses to confront “Why you with judge asked: are satisfied him, waiving right to re- that he’s his You have that with Nank’s then? done every fact be- prove to quire the State Nank, with you and now won’t be satisfied doubt, he’s waiv- yond a reasonable thing with exactly the same Coleman?” testify his own de- ing right to point, Forsythe made the follow- words, At this specifical- I have fense. other statement: can, remarkable explain to to possibly I tried ly as in he trying comes to Mr. that when he I the—what I’m think that here, every right, and he knows of these has lost for is that one drive eventually result must guilty plea may one of these cases that his cases—at least years, jury, every witness by the Court of tried before a in a sentence be further, being cross anything but examined and examined I know and don’t facts, being a full considered say full disclosure all of evidence I when go to both men my open It’s not court. To have of the Court. questioning rights guilty plea where their prison on a you to tell understands decision he explanation or Forsythe offered no suggestion ment and support did not consti- rather casual 6. This prosecution’s argu- significant part for it. tute a formally they penalty.” judge are read to them and waive death responded The rights any their real critical ex- without Court in North Carolina v. testimony, amination of the and the evi- Alford,

dence, dangerous is what we feel is (1970), 27 L.Ed.2d 162 had said that under dangerous particularly we feel that it’s process the due guilty plea clause could existing on the basis record. accepted even if thought the defendant he was innocent pleading and was guilty (The prosecution ultimately appears to only to avoid a more severe sentence. Fi- carried this have to the extreme view nally, attempting wearied of concluding it necessary that since was for prosecution, reason with the declaring: subjected one of the defendants to be arguing “There is no use in record, matter if trial in order to once create you’re going not accept the offer. If might record was created that defendant you’re going executed.) accept offer, so, just say prosecution well be and then that’s might also the end of the said that raise a claim matter.” To Forsythe which replied: accept ineffective assistance of counsel at a “We don’t offer, Your later time. Honor.” Forsythe then complained that the record change a motion

showed of venue due D. Discussion prejudice might give striking most prosecu- about the fact impression change in that the venue was tion’s adamant refusal even to consider not sufficient' prejudice. remove plea offer of a from Coleman is that —whol- judge retorted already that the court had ly aside from relating considerations ruled on the issue and had made its order. equal treatment and fairness —there were He Forsythe also made it clear to that he compelling tactical accept reasons for it to thought argument entirely the was plea. a against The case Coleman was improper. obviously one that extremely would be dif- Forsythe protested next that Coleman prove. ficult to judges Both trial court undergone amytal had a sodium test which urged prosecution the accept Coleman’s purported to refresh his recollection and plea, at least one after expressing serious that the results of “highly such a test were strength doubts as to the prosecu- questionable.”7 judge rejected the tion’s warning case and that Coleman prosecution’s protestations, pointing out might acquitted. well be against The case that Coleman would take the stand and Coleman entirely dependent was on the tes- prosecution the question could him timony Nank, of codefendant a convicted thoroughly in order to establish that the felon, murderer, an admitted and a witness plea being knowingly, entered into in- strongest with the possible motive to lie. telligently voluntarily. (The weakness of the case is evidenced Forsythe simply that, replied case, any fact that Supreme two Montana Court prosecution’s “major objection” ultimately Justices concluded that Cole- record, whole, read might as a man’s conviction be due should reversed support allegation by an evidence.) insufficiency of the Ignoring “[t]hat any plea coerced, taken from him would urging be judges, two trial up and that he July believed until prosecution 23rd accept declined to [sic] Coleman’s that he anwas plea, innocent man and that’s the and instead decided take the risk of only reason that he plead would going to trial. prosecutors’ From the charge, and that would be to avoid standpoint, practical consequence majority places great 7. The emphasis on the "highly questionable.” result of such a test is amytal sodium counsel test fact that the States, defense Lindsey (9th v. United 237 F.2d 893 Cf. changed plea to withdraw Cir.1956) (excluding recording from evidence a it, the assertion of as innocence a result of psychiatric testimony supporting of and an in- apparently purpose establishing for the Cole- terview conducted the influence of sodi- under guilt man’s conclusively. majority opinion, See pentothal, precursor um amytal). a of sodium out, prosecution pointed at 438-39. Yet as the sions, does not a declaration of innocence that on the one hand this decision was entirely plea involuntary. The escape punishment make a might guilty pleas might previously a validated the state obtain and on the other refused to make subject to even when the defendant of death that would be sentence guilt. In North challenge might express admission of serious constitutional 25, 37, aside; whereas, accepting Alford, 400 U.S. ultimately set Carolina v. (1970), L.Ed.2d 162 plea prosecu- have assured the explained: conviction and a sentence tion of a certain in- that would have resulted pleas guilty while most consist of both Coleman’s^ carceration for life.8 express of trial and an admis- a waiver guilt, latter is not a sion element Further, prosecution’s decision to requisite imposition constitutional gamble all in order to have a chance to penalty. An of criminal individual ac- particularly is re- seek may voluntarily, knowing- cused of crime if the extraordi- markable one considers ly, understanding^ consent to the nary capital punishment nature in Mon- imposition prison if of a sentence even he anyone in tana. Montana has not executed unwilling partic- or unable to admit his history. recent Bureau of Justice Statis- ipation constituting in the acts the crime. tics, Capital Punishment The last place forty years ago execution took over The Court went further and stated that a Census, guilty plea 1943. U.S. Bureau of the Pris- was valid if even the defendant oners in on asserting State & Federal Prisons & insisted his innocence: Refor- (1943)(In year, matories a black male perceive any Nor can we material differ- ages between the of 20 and 24 was exe- plea ence between that refuses to ad- murder.). cuted for the crime of The death mit commission of the criminal act and a thus, penalty, constitutes a most unusual plea containing protestation of inno- type punishment in that state. when, case, cence the instant intelligently defendant concludes that his prosecution’s during conduct require entry plea guilty interests of a plea bargaining hearings strongly supports and the record before the contains expla- an inference of discrimination. Its strong guilt. evidence of actual obduracy for wholly unper- nations its were suasive; prosecution the fact that the con- Id. Montana’s concerns about the volun- tinually changed justifications gave the therefore, plea, tariness of the legal had no refusing plea bargain suggests for Nor, obviously, prosecution merit. can the strongly explanations pretex- that the were excuse, claim as an a mistake of law. As Throughout proceedings, tual. the the issue, prosecution soon as the raised the prosecution groping seems to have been judge the trial applica- advised it as to the continually for new excuses or rationaliza- Nevertheless, prosecutors ble rule. the in- objective tions and to have had no for basis reasserting sisted on their erroneous theo- its decision. ry-

Turning specific explanations to the for Subsequently, after Coleman an at- prosecution, its conduct advanced tempt prosecution’s objections to meet the the first was that Coleman’scontemporane- agreed asserting not to insist on his inno- ous cence, assertion of innocence prosecutors would render string offered plea involuntary. However, inconsistent, as the ini- unsupported, meritless rea- judge pointed tial early out in the discus- accepting plea. prose- sons for not his The actually years 8. Nank was subsequently years sentenced to 140 following modified to 120 prison: years appeal. for deliberate homicide and soliciting 40 for sexual intercourse addition, without con- attorney pointed In as the defense sent. out, Coleman could have been sentenced to at testimony provided would have long least as plea a term of confinement had his important against weapon the state with an accepted. supra Nank, been See note 4. Coleman were Coleman’s white codefendant to de- ultimately years prison received 140 plea on the cide to retract his confession and at a later noncapital charges, although the sentence was date. prior judge patiently explained, as the trial that Coleman’s Cole- first claimed cution agree during discrimination would allegations plea bargain- of racial man could by him vulnerable to any plea made ing process objec- render not to raise of these effect, then, the In attack. constitutional plea accepted. fact, after the tions was having sug- argued once prosecution shortly expressly Coleman did thereafter equal protection, gested possible claim agree possible objections. to waive all right equal had forfeited Moreover, judge previously as the had also argument a black who The treatment. noted, plea taken from Nank sub- is thereafter an issue of racial bias raises ject many objections of the same kind of plea bargaining and ac- disqualified from yet readily accepted by prose- subjected to trial on a cordingly must be cution. (and then, charge apparently, exe- capital said, prosecution The then without fur- guilty) perverse if and dan- cuted found explanation, ther that Coleman was the In the gerous as well as unconstitutional. culpable more of the two men. It had not end, argument attaches prosecution’s previously advanced this contention and did legit- the ultimate —death—to attempt any support to offer it. for right. I of a constitutional imate assertion (Nor rely point does the state on this in its prosecu- find it difficult to believe that us.) Instead, waiting brief before without argument in advanced this tion could have respond, prosecution for the contrary, like several of good faith. To the quickly returned to it called what its “ma- appears to arguments, this one its other jor objection” not be- —voluntariness—but disguises thinnest of provide arguing begun fore also had Nank discriminatory motiva- underlying true its cooperate with the state earlier in the case tion. provided inculpatory and had evidence. prosecution next claimed Unfortunately, prosecutor failed to ad- plea accepted could not be because it lacked time, (by vise the court the second pro- point At this in the a factual basis. judge) plead that Coleman had offered to however, ceeding, agreed guilty charges same as Nank less guilt admit his and disclose on the record plea. Nei- than two weeks after Nank’s relating to the commission of all facts prosecutors ther the court nor the treated prosecutor spe- raised no the crimes. objections seriously or ever ad- these two questions to the nature of the fac- cific Rather, again. either of them verted to make tual admissions that Coleman would prosecution entirely concentrated almost explanation why offered no as to those objection. objection This its voluntariness provide a factual ba- admissions would not many guises appeared forms and simple plea. for the fact is that sis bargaining throughout plea discussions plea clearly present any did not Coleman’s predominant the and under- and served as Furthermore, problem. the factual basis exchanges among lying theme of all the the prosecutors that judge pointed out to the parties. the court and again advancing they an errone- were once legal argument. specifically He re- ous offered two rather prosecution The also not minded them that a factual basis is voluntariness-related, theories—one odd required guilty plea.9 for a prosecution argued one not. The that Cole- previously filed a motion man had prosecution expressed concern The then change prejudice that of venue due to many objections the Coleman could about might give impression that the record the pleading guilty. objections The raise after change might not been the in venue have prosecution referred to were “that he the prejudice. As is to remove the drugs sufficient many of so was under the influence obvious, pro- change of issue on,” the venue going this was that he was at the time However, insane, greater prosecution risk the a far to or other similar “stuff”. vides Ricketts, plea special 777 F.2d Rodriguez circumstances.” said in "the due absent 9. As we omitted). (9th Cir.1985) (citations process impose clause does not on a state court guilty duty to establish a factual basis for a the pleads a defendant fact that tion that the after trial from a appeal conviction on an capital sentence a to avoid guilty in order guilty plea. a from appeal than on an time of the At the plea. taint contended does not prosecutors odd, Equally estab- it well accept objection was Cole- risky prosecutor’s to too be that it would offers question had if the accused a even plea lished that guilty because man’s compe- punishment, capital to the to avoid plea raised been previously prosecu- voluntary. The Sev- counsel. be plea nevertheless tence Coleman’s more earlier, be had would explain why years failed to tor eral by in- represented invalid guilty Coleman is not risky plea to have “a held that noncapi- a successful possi- competent counsel to avoid entered merely because capital a than at Brady bargaining session plea tal penalty.” bility of the death capital trial and States, punishment United in an order might result proceeding (1970). 25 L.Ed.2d execution. for Coleman’s consequent- “major objection”, prosecutor’s judge so and the trial legal merit ly, had its voluntariness Zealously pursuing him. to advised purported also theme, prosecution plea might claim that his fear that Coleman explana- Essentially, prosecutor’s having to a submitted of his result awas plea bargain with for its refusal tions prosecution test amytal test —a sodium con- expressions of consisted Aside from unreliable. claimed subject might any plea be cern that waived have could that Coleman fact attack, legal a concern subsequent he shortly thereafter objection, and trial two clearly unmeritorious. so, do the stand agreed to take case so in this advised judges involved others, patently many was, like so objection urged acceptance prosecution and both attempting been frivolous. plea. Coleman’s some time guilty for plead vigorously to circumstances, prosecu- these Under he took the date on which prior to the least, are, very motivations tion’s Thus, the decision amytal test. sodium re- black defendant highly suspect. A possibly have been not guilty could plead unequal treatment life or death ceived most, the test At test. product of similarly white by his situated that received willingness affected could have friv- prosecution offered codefendant. willing- his acknowledge guilt, not explanations for that and inconsistent olous guilt acknowledgment of plead, and ness to When the trial in treatment. difference above, necessary con- is, as discussed point out errors patiently legal judge would plea. dition to valid prosecutors explanations, in their why the sodi- explained After the put end try to an grounds and switch merit, the objection lacked um-amytal-test prosecutors bargaining. The plea its it called what prosecution retreated to respect. They only one were consistent its version of objection” “major —another unyielding in their determination were County argument. Rosebud voluntariness charges capital try black defendant explained that Forsythe Attorney my opin- seek his and then execution. whole, support an might record, aas read alone, give rise to ion, facts, standing these plea tak- allegation Coleman “[t]hat discrimi- inference of extremely strong coerced, and that from him would en Jie motivation.10 natory he an July that was up until 3rd believed circumstances, well, other There are only the and that’s reason innocent man that strongly support the conclusion charge, plead any he that would by factors influenced prosecution was penalty.” The the the avoid death would be to can be relating race. There Coleman’s pointed prosecu- correctly out judge patent of in the Despite lack merit majority simply 451. the opinion, lists some In its the 10. prosecution does by explanations, majority prosecution's the explanations of the offered record states that reveals on “[t]he then bother to them. not comment even Maj.op. prejudice_" at evidence of racial small,12 extremely knowledge very from the outset of the Little re- little doubt that through imposition of the proceedings garding practical operations of our sentence, prosecutors’ second prosecutors’ required offices is in order to standards. conduct was overzealous community understand that concern over listing examples, than various Rather sentiments well have influenced the regarding note the facts should suffice to prosecutors’ decision to treat Coleman dif- to seek the death sentence decision ferently judge than Nank. As the trial prosecutors The decided to second time. prosecutor during said to the of one penalty try apply the 1977 death statute attempt discussions over Coleman’s Coleman, although the Montana Su plead charges, to identical “I think arewe I, in Coleman Court, preme had indicated losing zeal, perspective your of because strongly expect not Coleman to that it did inexperience probably of the because Mont, resentenced to death. 177 public pressure background.” in the general & 579 P.2d at & See attorney fact Coleman’s own II, ly, 299, 337-40, Coleman 185 Mont. dissenting), judge (1979) (Shea, J., and the trial referred to the then 1000, 1022-23 P.2d denied, 970, 100 rt. year old boy” Coleman as “this black ce 2952, (1980). (This is 64 L.Ed.2d fact pervasive feeling shows how in subsequent changed by not that court’s community that Coleman was different in upholding prosecution’s actions. kind from his white codefendant. Cole- Mont, II, 313-24, attorney apparently man’s the first to 1010-15.) P.2d at prosecution in boy”; use the term “this black he did so penalty the 1977 death statute even voked during cross-examination of a witness. tried, convicted, though been court, turn, in referred to Coleman as originally prior to its enact sentenced chambers, ruling boy” “this black on a approved ment and no court had ever judgment acquit- motion for dismissal under order of execution those circum government’s tal at the close of the case.13 See seeking stances. section IV.A.3. suggests Respondent that we take the execution, prosecution clear court’s reference to Coleman as “charita- sought to, ly to stretch the law if not Respondent’s suggestion is offensive ble.” beyond, every conceivable limit.11 majority properly accept and the refuses to Any prosecutor’s examination of the mo- disagreeing respondent’s it. But after recognition tivations must include a characterization of the court’s use of the case a violent fact that Coleman’s involved phrase, majority goes say allegedly sexual crime committed placed light in context “when and viewed against defendant a white female vic- black transcript, of the entire trial place [the reference] tim. The crime took and was tried not claim part country proportion does establish Coleman’s of racial where the community Maj. op. individuals discrimination.” at 468. black penalty percentage people 11.The 1977 death statute was enacted 12. The of black in the total but, after the crime was committed population has never of the State Montana addition, Census, after Coleman was tried and sen- exceeded 0.5%. See Bureau of the State aware, tenced. As far as I am the statute has (1979); Metropolitan Area Data Book 6 Bu- applied not been under similar circumstances to Census, Metropolitan reau of the State and Area Montana, anyone else in the State of and all the Data Book 509 other states that have faced the issue have de- apply penalty clined to a new death statute to an noting 13. After the motion was "a real individual who was tried and sentenced under a merit”, serious motion” that had "some (See prior unconstitutional statute. sec- infra following made the comment about IV.A.3, why tion for full discussion of retroac- "Well, government’s you’ve case: all shown is imposition tive of the death in this case opportunity boy to do it. this black clause.) process violates the due The record plenty opportunity.” shown You’ve prosecution shows that the was at all times well post process aware the ex and due facto problems application gives that such retroactive rise to. 482 those atti- of recognize the existence re- must colleagues the that my agree I underlying look to reasons of claim when-we the tudes “establish” not mark does say not to This is discrimination; suggest- judgments. one ever no individual

racial However, capital pun- alone, each it did. that, standing must commence that we ed making in assumption that a assist a the references case with the two ishment Arlington inquiry”, singled for the requisite “sensitive out the was defendant black 564, 267, as 97 S.Ct. Heights, 429 U.S. at But of his race. penalty because death the in not treated why was here, a dra- where, the record reveals as codefendant. his white as same manner of white in treatment the matic difference generally he is that was simple answer prosecu- codefendants, the where black and legal community, and in the in regarded the are that difference explanations for tion’s boy”. system, as a “black pretextual, patently suspect if not highly has stretched prosecution of discrimina- claim the Finally, and where Coleman’s to, of our limits in order beyond, the context its in if not must viewed tion be the law history of racial discrimina- long black capital punishment the nation’s to seek deciding the when In capital white, obliged in cases. to reme- tion arewe and not legal imposed, our penalty should be prej- death that racial effect impermissible dy the less concern historically shown system has to seek Montana’s decision upon udice had victims) (and black defendants for black acceptance to refuse penalty death and Pro- counterparts. As for their white than plea. of Coleman’s and Robert Mauro R. Gross fessors Samuel concluded, is a considerable “there have Equal Hearing on Evidentiary E. pat- on racial research body published of Protection Claim and of punishment, most capital in terns the basis of required, I Were in- been have that racial factors indicates us, the issue wheth- record before decide sen- has been determining in who fluential discriminatory man- in a er the state acted has executed.” and who been die tenced to impos- plea and rejecting ner in An Mauro, Patterns Death: Gross of no penalty, I have ing death Capital Disparities in Analysis Racial However, saying it did. hesitation Victimization, Sentencing and Homicide question that ultimate need not reach we (1984).14 45 37 Stan.L.Rev. least, entitled, at the here. Coleman McCleskey, the Court held statis- In hearing in the on the fair issue to a full to warrant invali- insufficient tics alone are Yet, hearing held court. district punishment laws. capital of a state’s dation summarily. rejected petition was and his however, did concluding, the Court In so appeal, first When, of his at the time wholly irrelevant say that statistics are urged racial bias was capital punishment deciding individual accept refusal to prosecution’s cause of must our cases; say we shut did it nor plea, Montana guilty his reality alike history and current eyes to explained supra note erro- Court, underlying a evaluate motives when we abso- prosecution had held that the neously pen- seek the death decision to prosecutor’s re- plea reject Coleman’s lute discretion are made Decisions alty specific case. racially-biased motivation attitudes, gardless of we societal in the context imposing juries Harris, judges Pulley discretion dissent penalty to selec penalty (1984), enables death L.Ed.2d 29 Justice against feeding prejudices the ac tively applied, "Although research methods stated: Brennan suspect of a differ, if he is member be- ... techniques cused often the conclusions crucial, minority_”); S.Ct. at id. at unpopular relatively clear: Factors are reached J., ("Studies (Marshall, concurring) indi applied, impermissibly yet doubt without higher rate of execution while cate that imposition are race higher Negroes particularly due among victim." Id. at and the race defendant crime, J., evidence discrimina (Brennan, dissenting). there is rate of S.Ct. at 888 study, tion."). discussed also Baldus Georgia, See Furman v. See also —, — Kemp, McCleskey v. L.Ed.2d 92 S.Ct. (Douglas, J., ("we L.Ed.2d 262 concurring) know

483 Mont, prosecutor’s tradition- I, siderations a 177 behind for its decision. suggest improprie- ally ‘widediscretion’ Accordingly, the 744-45. P.2d at 579 ty requiring prosecutors to defend ... determina- make factual failed to court penalties, to seek death ‘of- their decisions alleged dis- prosecutors’ regarding the tion ” years they were ten after made.’ Thus, we have no criminatory motivation. (cit- Kemp, 1768 McCleskey v. 107 S.Ct. at presume finding that we court factual state States, ing Wayte v. United 470 U.S. at (1982). under U.S.C. to be correct § quoting Imbler 105 S.Ct. at in his again the issue raised 409, 425-26, Pachtman, 424 U.S. granted The district petition. habeas (foot- 984, 992-93, (1976)) 47 L.Ed.2d 128 state, making for the summary judgment omitted). as a state- stand, no court—state or federal —has ever Kentucky, v. Batson particular case.” inquiry into Coleman's made a factual v. (quoting Alexander at 1722 106 S.Ct. majority claim. The 630, 1221, equal protection 625, 92 S.Ct. Louisiana, 405 U.S. life willing his or death discrimi- to resolve (1972)). 31 L.Ed.2d simply by accepting blindly nation claim strong least, infer Here, very at the explanations of its pretextual state’s Accordingly, exists. ence of discrimination to sees no need court motives. It dismissing petition Coleman’s rather than inquiry into circum- such make “a sensitive court have summarily, the district should of intent as direct evidence stantial and probe evidentiary hearing to conducted Arlington Heights may available.” be in prosecution re of the into motives Development Housing Metropolitan plea offer. Bat fusing his to consider Cf. at 564. at Corp., 429 U.S. Kentucky, 106 S.Ct. at son ignore majority has chosen to Sadly, warnings re- Supreme Court’s not F. Conclusion garding duties in relation to racial dis- our by the been told We have but also its directive that crimination cases in- a “sensitive must undertake that we cases, the sen- capital severity “the this, and that we such as quiry” in cases scrutiny in the re- tence careful mandates abiding closely evils attuned must be any colorable claim of error.” view Sensitivity to ra- discrimination. of racial Stephens, Zant recognition of requires a cial discrimination 77 L.Ed.2d forms and manifesta- subtlety of its colleagues’ Notwithstanding my two first half of this Today, unlike tions. execution, permit it is votes most fre- century, racial discrimination me that he be will allowed inconceivable in covert rather itself quently manifests simply either a federal court to die without longer prosecu- do No than overt forms. ordering a vacating his death sentence or their judges proudly proclaim biases tors or moti- hearing claim that race was a on his longer No does soci- openly on the record. underlying the state’s deci- vating factor tolerate, encourage, or even ety as a whole strongly I believe him. sion execute against blacks. discrimination official histo- passed point that we our have Nevertheless, seriously sug- no-one would of the United States ry where courts gest discrimination has been racial person to permit a black be executed will society. Discrimina- from our eradicated disregard principles of flagrant such more exists but it has become tion still under law. equal treatment longer recognize. Proof difficult to wrapped packages in nice little with comes SENTENCING III. THE CAPITAL tinkling Sensitivity, bells.

red ribbons PROCEEDINGS us, key is the the Court has told understanding the nature and existence sentencing pro- inadequacies of the in- today. Once a discrimination sensitive ceeding which Coleman was ordered quiry beyond and one looks is undertaken pen- hanged a reversal of his require language of the record written literal right to deprived of his alty. Coleman was understanding some and examines with argument on the present nature oral awareness all the facts circumstances ques- and on the mitigating circumstances surrounding year-old of this 28 the case suf- tion those were whether played boy”, it is clear that “black race statutory aggravat- ficient to overcome significant part in the state’s decision to short, not he circumstances. Dewey execute Coleman. arguments on the present allowed capital punish-

Nevertheless, whether majority question affirms ultimate here in his appropriate penalty summary judgment or- ment was the court’s district did Conversely, the says only der. It that it sees “no evidence case. duty to comply its constitutional prejudice”. Maj. op. 450. As racial of sen- result, at the time difficult as it to under- listen to the defendant Moreover, record reveals that tencing. (1976) (plurality); Furman v. recognize L.Ed.2d 859 entirely to judge failed 238, 286-291, Georgia, mitigating facts one of the consider all but 2726, 2750-53, (1972) (Bren 33 L.Ed.2d 346 the Constitution re- and circumstances id. nan, J., concurring); 92 S.Ct. at take into account. quires the sentencer to (Stewart, J., concurring). The sen- Further, improperly based his decision he tencer must defense allow counsel unadjudicated offense. For part on an argument present oral on the reasons, stand.16 sentence cannot these aggravating circumstance and on penalty whether the death should im be Introduction

A. posed. The sentencer must then “listen” emphasized has Supreme argument to the and decide whether proceeding that leads to importance of the impose capital giving sentence after care penalty. A imposition of the death mitigating ag ful consideration to the hearing capital punishment differs substan- case. Ed gravating in the sentencing proceedings. tially from other Oklahoma, dings v. 10, 455 U.S. at 115 n. difference, explained, has the Court Lockett v. (citing 102 877 n. 10 S.Ct. at squarely predicate that the rests Ohio, 586, 2954, 438 U.S. 98 S.Ct. 57 L.Ed. qualitatively different penalty of death is 973). 2d imprisonment, how- from a sentence importance It is of “vital to the defend- Death, finality, differs long. in its ever Community any ant and to the decision imprisonment than a 100- more from life be, impose ap- the death sentence year prison term differs from one be, pear to based on reason rather than year or two. Florida, v. Gardner caprice or emotion.” Carolina, 280, North Woodson v. 428 U.S. 359, 430 U.S. at 97 S.Ct. at 1205. Accord- 2991, 305, 2978, 49 L.Ed.2d 944 96 S.Ct. ingly, any punishment more than in other v. See also Sumner (1976) (plurality). proceeding, capital judicial sys- cases — Shuman, —, 2716, U.S. 107 S.Ct. extraordinary precautions tem take must (1987); Turner v. Mur 2720, 97 L.Ed.2d 56 punishment assure that the is based on the 1683, 1688, ray, 476 U.S. 1, 106 S.Ct. 90 particularities committed of the offense v. (1986) (plurality); 27 L.Ed.2d California and the individual circumstances of the of- Ramos, 998-99, 992, 103 463 U.S. fact, Supreme In the Montana fender.17 Zant v. 3446, 3452, (1983); L.Ed.2d 771 77 penal- first death Court vacated Coleman’s 862, 884-85, Stephens, 462 U.S. 103 S.Ct. ty pursuant the statute to which it because 2746-47, (1983); Lock 2733, 77 L.Ed.2d 235 imposed comport with the failed Ohio, 586, 602-04, Woodson, ett v. 98 438 U.S. imperatives constitutional 2954, 2963-64, (1978) (plu 57 L.Ed.2d 573 Georgia, v. 433 Coker as those of U.S. well Florida, 349, rality); Gardner v. 584, 2861, 53 L.Ed.2d 982 97 S.Ct. Louisiana, 1204-05, (Harry) v. 358-59, 1197, and Roberts 51 L.Ed.2d 431 97 S.Ct. 1993, 633, Gregg Georgia, v. (1977) (plurality); 97 S.Ct. 52 L.Ed.2d 637 393 U.S. 1821, 1824, Carolina, 1, -, Skipper 476 106 107 S.Ct. 95 L.Ed.2d 347 16. In v. South U.S. (1986), 90 L.Ed.2d 1 S.Ct. Court decided that the state trial court — U.S. —, Shuman, 17. Sumner v. mitigating evidence failed to consider relevant and, therefore, 56; Dugger, v. 107 97 L.Ed.2d Hitchcock penalty. The reversed the death 1824; Oklahoma, Eddings U.S. at S.Ct. at v. 455 Court, nonetheless, open possibility left 877; Ohio, v. U.S. 102 S.Ct. at Lockett 438 resentencing. resulting It stated: "The death (Har (plurality); Roberts S.Ct. at 2964 98 stand, although the State is of sentence cannot Louisiana, ry) U.S. at 97 S.Ct. at 1995 v. 431 again seeking precluded im- course not from Carolina, curiam); (per Woodson v. North 428 sentence, pose provided that it does so the death Gregg (plurality); v. U.S. at 96 S.Ct. at 2991 hearing through peti- a new at which 2936; Georgia, U.S. at 96 S.Ct. at present permitted any tioner is and all rele- Prof 252-53, Florida, 96 S.Ct. at v. 428 U.S. at mitigating vant evidence that is available.” Id. fitt 271-72, 2966-67; Texas, Oklahoma, U.S. at (citing Eddings Jurek at 1673 2956; Louisiana, (Stanislaus) 869, 878, S.Ct. at Roberts 71 L.Ed.2d — 334-35, (1982)). Dugger, U.S. at 96 S.Ct. at 3006-07. See also Hitchcock v. Mont, I, to die.” Coleman I, sentenced 177 Mont. curiam). Coleman (1977) (per 1975, the trial In at 742. 579 P.2d (1978). The 732, 741-42 1, 15-16, P.2d pursuant Coleman sentenced court which Coleman under statute Montana In penalty scheme. mandatory death im- automatic provided first sentenced Supreme Court I, Montana Coleman and did penalty the death position of because unconstitutional that statute particularities held of the consideration require for the trial “provision prior to the of a absence accused of the case and circum- The sec- punishment. to consider capital imposition of a new and lawful because and ordered be set aside stances” must ond sentence Id. imposed. violations. constitutional sentence equally serious Penalty Statute 1977 Death 2. The B. Facts re- legislature Montana Sentencing First 1. unconstitutional pealed the sen- Montana which under The statute had been under which statute originally time first tenced Mont. originally tried sentenced —1977 and impose the shall court that provided “[a] a new enacted ch. 338—and Laws § following conviction of death sentence time codified at the penalty statute death finds the victim if it kidnapping aggravated 95- to 95-2206.6 Mont. as §§ Rev.Code conduct of the criminal as a result is dead codified as (1977) currently and 2206.15 mitigating circumstances.” there are unless to 46-18-310 Ann. 46-18-301 Mont.Code §§ (1947). Appar- 95-5-304 Mont. Rev.Code § provides that (1985).19 95-2206.6 Section Supreme Court’s response ently in sentencing judge must hear- conduct the the discretion in of unbridled condemnation statutory aggravat- any if ing determine to the punishment,18 capital imposition 95- exist section under circumstances this amended in 1974 legislature Montana mitigating cir- any statutory if and 2206.8 “unless there striking phrase section 95-2206.9. exist under section cumstances legis- The mitigating circumstances.” are 46-18-303, 46-18-301, Ann. §§ Mont.Code penalty statute the death lature thus made clearly (1985). The statute statute, & 46-18-304 if the this mandatory. “Under hearing. fact-finding full contemplates a aggra- anof that the victim finds ... court (1985).20 In 46-18-302 Ann. § result of the Mont.Code as a kidnapping died vated state addition, requires that and both must be crime, defendant the convicted permit systems legal that under Georgia, death unique penalty Furman v. 18.In wantonly freak- Georgia and so be so penalty from to statutes invalidated constituting ishly imposed.’’); S.Ct. at 2764 and unusual id. at “cruel for Texas and Eighth J., (The concurring) (White, and Four- constitute of the punishment in statutes violation 238, 240, 92 punishment because "as Amendments.” teenth and cruel unusual (1972) (per administered, penalty 33 L.Ed.2d S.Ct. curiam). are] statutes [such opinions separate justices filed Five imposed threat of exe- infrequently that the so justices judgment. decided support of the Two to of substantial is too be attenuated cution per constituted cruel capital punishment se Following justice.’’). Fur- to criminal service 257-306, punishment. at Id. unusual and Montana, man, along "a number of other with J., concurring); (Brennan, at id. at 2735-60 Carolina, States,” at v. North Woodson (Marshall, 314-74, J. concur- at 2764-96 passed (plurality), manda- S.Ct. at 2988 majority, justices in the ring). The three other apparently statutes tory death however, exclusively case on decided problem attempt of unbridled deal to and fourteenth the of the limitations basis punishment. capital discretion application impose eighth amendments penalty. S.Ct. at 2735 Id. at of the death (Douglas, of Montana Code Revised In J., (The eighth concurring) amend- completely reorganized as the amended penal “legislatures write laws mandates to ment two cod- Code Annotated. Montana nonselective, even-handed, and nonar- are that bitrary, ifications, however, pur- for the are identical judges require to see to it that opinion. poses of this applied sparsely, general selective- laws are unpopular groups."); ly, 310, spottily id. provides: section 20. This J., (Stewart, concurring) may In the be sen- received. ("[T]he Eighth Evidence tencing Amendments Fourteenth presented be hearing, evidence of a sentence tolerate infliction cannot (1985).21 permitted present ar- 46-18-303 statutory aggra- the defendant “be § against vating or sentence of death.” gument circumstance relevant to this case Id. appears (7): in subsection “The offense aggravated kidnapping which resulted legislature enacted the The Montana in the death of the victim.” Section 95- attempt in an to meet 1977 statute mitigating 2206.9 defines the circumstanc- requirement constitutional the trial (1985).22 es. MontCode Ann. 46-18-304 § give careful consideration to “the Among mitigating of- character and record of individual statute lists is the one set forth subsec- partic- circumstances of the fender and the (1), tion signif- defendant has no v. North Woodson Car- “[t]he ular offense.” olina, 428 U.S. at history prior activity.” icant criminal 96 S.Ct. at 2991. addition, subsection in- statute legislature provided for a flexible and provision: cludes “Any a catchall other open-ended hearing would enable the which mitigation penal- factor that exists in give trial court both the offender and ty.” thorough the offense the individual consid- requires.

eration that the Constitution specifies Section 95-2206.10 the effect aggra- given aggravating Section 95-2206.8 sets forth the cir- vating Ann. circumstances. Mont.Code cumstances when the trial court decides (8)The any attempted matter the court considers relevant to offense was deliberate sentence, homicide, including assault, aggravated aggravated but not limited to the crime, nature and circumstances of the kidnapping committed while incarcerated at character, background, history, defendant’s prison by person the state who has been condition, physical and mental and previously: aggravation mitigation other facts in or of the (a) convicted of the offense of deliberate penalty. Any evidence the court considers to homicide; or may probative regard- have force be received (b) persistent felony found to be a offender admissibility gov- less of its erning under the rules pursuant part chapter 5 of this and one of evidence at admission of criminal tri- against the convictions was for an offense relating als. Evidence admitted at the trial person chapter in violation of Title for aggravating mitigating such or circumstances prison which the minimum term is not less reintroducing shall be considered without years. than 2 sentencing proceeding. at the The state and (1985). Mont.Code Ann. 46-18-303 Subsec- § permit- the defendant or his counsel shall be (8) part tion was not of the statute when it was present argument against ted to for or sen- originally enacted 1977. of tence death. (1985). Mont.Code Ann. § 46-18-302 Mitigating 22. Mitigating circumstances. circum- any following: stances are of the Aggravating Aggravating circumstances. cir- (1) significant history The defendant has no any following: cumstances are of the prior activity. of criminal (1) The offense was deliberate homicide (2) The offense was committed while the by person serving and was committed a a defendant was under the influence of extreme imprisonment prison. sentence of in the state mental or emotional disturbance. (2) The offense was deliberate homicide (3) The defendant acted under extreme du- by and was a committed defendant who had ress or under the substantial domination of previously been convicted of another deliber- person. another ate homicide. (4) capacity appre- The of the defendant to (3) The offense was deliberate homicide criminality ciate the of his conduct or to con- by and was committed means of torture. requirements form his conduct to the of law (4) The offense was deliberate homicide substantially impaired. was by person lying and was committed in wait (5) participant The victim was a in the de- or ambush. (5) or fendant’s conduct consented to the act. The offense was deliberate homicide (6) accomplice The was an in an part defendant and was committed as of a scheme or which, person, operation offense committed another and his completed, if would result in participation relatively was minor. person. the death of more than one defendant, (7) (6) the time of the com- The The at offense was deliberate homocide as crime, (l)(a) years defined in mission of the was less than 18 subsection of 45-5-102 [for- age. merly peace and the victim 94-5-192] (8) Any mitigation performing duty. officer killed while other fact that exists in aggravated kidnapping penalty. The offense (1985). which resulted in the death of the victim. Mont.Code Ann. § 46-18-304 argument present for permitted to shall be of a convict- execution whether to order Mont.Code of death.” against Ann. sentence or Mont.Code ed defendant. According to this (1985).23 46-18-302 Ann. § 46-18-305 § aggravating section, least one where impose must exists, court circumstance Resentencing 3. The mitigat- are there penalty unless the death re- Supreme Court the Montana After sufficiently sub- that are ing circumstances first Coleman’s unconstitutional versed as leniency. stantial warrant prosecution decided penalty, the death requires that thus statutory scheme penal- death newly enacted 1977 invoke the punish- considering capital trial court again seek Cole- once ty order statute of at existence first ment establish un- proceeding The first man’s execution. aggravating circum- of the listed least one place took on June statute der new any must consider then stances. hearing to court set the trial 1978. The specifically-enumerated pun- mitigation “the matter consider any fact other as well as expressly reserved The court ishment.” penal- mitigation of the might exist subsequent date. sentencing to a aggravating least one Having ty. found all the having tabulated circumstance and counsel asked mitigation, the facts or circumstances proceeding agreed “with he whether then decide whether trial court must matter of hearing time on at this “sufficiently are mitigating circumstances respond- attorney mitigation.” Coleman’s If leniency.” Id. for to call substantial negative and made an extensive ed in the not, court must order the trial they are argued he which statement Otherwise, the accused. execution on whether hearing focus instead should im- impose a sentence trial court lawfully apply the 1977 could the court term autho- life or prisonment for retroactively to his penalty statute rized law. a motion to previously filed client. He had 95-2206.11, legislature re- In section on the a brief quash and had submitted findings explicit, of fact quires written Unquestionably, the issue was issue. aggra- nonexistence of existence IV.A.3— substantial one—see section infra mitigating vating circumstances. and whether a would determine and its outcome (1985).24The 46-18-306 Ann. Mont.Code § necessary. hearing mitigation was even the trial to requires thus court statute that, as attorney recommended Coleman’s grounds underlying writing, the specify, in prosecu- step, permit the court the the next penalty. impose the death to its decision court, he respond to his The tion to brief. added, give defense thereafter should incorporating another constitu- Finally, prosecution’s re- days reply to the five to provides in requirement, the statute tional retroactivity sponse then decide the any and that before sentence section 95-2206.7 issue. imposed: state and the defendant “The (1985). mitigating Ann. 46-18-305 aggravating § and circum- Mont.Code 23. Effect determining impose a In whether to stances. findings Specific In each case written imprisonment, court sentence of death of fact. sentence, aggravating imposes and miti- the death into the court shall take account which gating sup- enumerated 46-18-303 be circumstances of the shall court determination [formerly [formerly and 46-18-304 95-2206.8] findings ported specific of fact as to by written impose of death and shall a sentence 95-2206.9] if it finds one or of each the existence or nonexistence aggravating more of the cir- [formerly set forth in circumstances 46-18-303 mitigat- finds that there are cumstances and no 95-2206.9], [formerly and 46-18-304 95-2206.8] sufficiently to call substantial findings be substantiat- The of fact shall written impose leniency. If the court does not by trial ed records of the aggravating one of the sentence of death and proceeding. [formerly 95- circumstances listed 46-18-303 §Ann. 46-18-306 Mont.Code exists, may impose court a sentence 2206.8] of any imprisonment for life or for term autho- defining by the rized statute offense. court then noted the defense’s The trial suggested then for Coleman Counsel present not intend to material it did mitigation became statement that issue of if the ruling mitigating on the (i.e., any were issued on the circum- if an adverse evidence up at a question) it be taken retroactivity responsive called for a stances. also It sentencing. the time of date—at prosecutor later on the post from the ex brief sentencing proceed- said that the Counsel The trial court next filed the issue. facto simply on the basis conducted ing could be report made Lof- presentence Thomas investigation report and presentence officer, land, reporting available for that time arguments to made at oral parties to interrogation. Both declined He said: parties. both regard presen- question Lofland. time, at this present here have to we report, the trial court noted: “The tence at all. would be mitigating factors It mitigating significant of it relative to part argument. There is a simply matter circumstances, defendant has is that report.... I investigation presentence any felony prior to never been convicted of Forsythe that unless Mr. the view take charge.” present wit- to prosecutor] wishes [the again noted that the The defense court sentencing is nesses, that at the time any “call to did not to witnesses intend Forsythe Mr. just simply statement any circumstances” establish relevant, thinks pointing out what he prosecutor he asked the whether I think is pointing out what a statement “to statement relative wished make relevant. At aggravating circumstances.” Thus, attorney the court advised Coleman’s unsuccessfully prosecution tried point, the to call that, prosecutor wished unless the call to the stand but witnesses, hearing be nec- no factual compel testify. him to declined to arguments as to the essary and that oral ren- then said: “the Court will The court presented imposed would be sentence to be go on findings up of fact and will sentencing. der its time of present in record that is the absence prosecution nor the the court Neither presented by any mitigating circumstances objected to counsel’s statements. hearing,” and gave at this the defendant right” “All and asked the judge simply said days file its on prosecution ten brief anything say. he prosecutor had whether retroactivity of the question of the of re- prosecutor the issue addressed prosecution penalty statute. The troactivity, arguing that the 1977 death identify it wished told the court applied retroac- penalty statute could be transcript trial specific pages in the tively The court then told to Coleman. sentencing” bearing “a ... on the attorney: orally. judge, so started to do has matters sentence the Court two prosecution request, advised defense’s capital offense and the related non- [the identify the it to relevant prefer he would crime], always pos- capital and there is in writing it could do so pages in and that has con- sibility that after the Court brief, responsive al- previously ordered brief, might rule favor- your it sidered option to continue motion, though that event it had ably your on and in page numbers well. necessity the Court its oral would be no recitation there said, “Okay” termi- any finding anything prosecutor else make The to —and existing statute. The court then the—under the recitation. under nated his oral would attorney that he told the defense if it appeared saying to that court The prosecu- respond to days to have five favorably to retroactivity issue decided hearing. He adjourned tion’s brief and defendant, for fur- there would be need parties of parties, “Both told also ques- proceedings on the death ther may also you course understand against if it decided the issue tion but findings you if wish present any proposed Coleman, proceedings mat- further on that do so.” in ter would be order. of the of the reminded the court weakness hearing, the court both By of the the end Coleman, pointing that it agreed against out have case seem to parties

and the exclusively testimony no witnesses on almost present was based the defense rely ex- mitigation hardly and would that was corrobo- a codefendant the issue of pre- all, in the rated, sparse inconsequen- set forth clusively by on the facts if at report. They fur- investigation The defense sentence circumstantial evidence. tial in- prosecution would agreed that the ther court to consider urged the ques- post on the ex prior clude in its brief to the spotless record facto identifying particular a statement tion the information July 1974 and events relevant to it considered parts record of the presentence report. That set forth mitigating aggravating the issue of highly re- contained favorable document defense would that the circumstances and of Great Falls where ports residents However, respond. opportunity have an had lived and worked. de- attorney retreat defense point at no did the finally called the court’s attention to fense he intended to position that from his earlier personality aspects of Coleman’s several regarding argument miti- oral present his crime he were inconsistent with the time of sen- at the gating circumstances committing, including had been accused his he otherwise waive tencing, nor did homosexuality his nondominant ques- argument on the right present oral personality. should be sentenced tion whether permitted prose- The trial court then fact, defense death. both to life or a statement. After the cution to make appeared at prosecution and the counsel concluded, the court claimed to prosecution anticipating, prepared hearing the next “many arguments have considered for, on the issue of argument both oral said that raised the defense.” It also appropriateness of a mitigation and the “the one circumstance [was] death sentence. prior defendant to this time ha[d] July parties next met court on any felony” added convicted of but been sentencing proceed- for the this time “that this one circumstance not over- [did] session, However, ing. prior to the court aggravating circumstances....” come the already made his decision to had simply next read out loud the The court and had reduced order Coleman executed Judgment contained Conclusions form. He distributed to its final written Conclusions, Judgment “Findings, and Or- Conclusions, Judg- “Findings, his written previously had been distributed. der” that parties at the out- ment and Order” Judgment explicitly the court read con- Subsequently, proceeding. after set of the the court’s oral statement that it tradicted again requested defendant counsel for the lack of a criminal had considered Coleman’s opportunity speak, the court allowed mitigating factor and had con- record as a respective parties present their state- outweigh aggra- it did not cluded that imposition against the ments for and Judgment vating circumstance. In the penalty. should expressly stated that Coleman death because it found that attorney made an emotional be sentenced to The defense (kidnapping aggravating circumstance pointed He out that plea to the court. death) resulting beyond existed a reason- person who under his own white Nank—a “that ex- participated equal- able doubt and no circumstances of the facts version supplied].” mitigation [emphasis permitted plea ly the crime—had been isted] decision, explicitly the court bargain required only to In its written and would be mitigation Coleman, credit that life the de- denied Coleman the serve a sentence. (1) all court, statute affords to the had offered a subsection of the fense reminded “significant not have a plea prosecution had defendants who do similar which the activity.”25 It de- attorney history prior of criminal turned down. The defense also prove by finding to the State has been unable 25. The reads: That means of record checks that the defendant

491 his to to “listen” failed court the a result anof on account mitigation credit such nied circumstances and mitigating to as Nank views codefendant which burglary alleged sentence. the death of appropriateness testimony claimed the his trial in point one at not con- court did that the claims He also in Round- Coleman with perpetrated had he con- mitigating of the day sider morning the of Montana, the on up, examine We must in record. the tained murder.26 Harstad the special consid- contentions Conclusions, Judgment “Findings, the In life “When defendant’s and care. eration of that none stated Order,” the court and sensi- stake, particularly must be] is at [we enumer- mitigating circumstances other the is ob- safeguard every insure that to tive catchall statute, including the in the ated at Georgia, Gregg served.” (8), were subsection in embodied provision (cita- (plurality) 2931-32 at This state- case.27 in Coleman’s present omitted). tions the court course, that ment, meant of at mitigating circumstances no that found at Argument Present Right The 1. mitigating including existed, those all Sentencing. the Time of the statute listed in explicitly not factors constitutional judge committed trial re- is nevertheless court the which but Findings, Con- upon his deciding by the clear consider; despite error this quired to Order, reducing clusions, Judgment, presentence in listing the unambiguous the prior to form mitigating writing in final of them good number of report distributing his hearing, sentencing and circumstances. facts the outset parties at written decision Cole- judge dis- C. Constitutional After the of proceeding. of that Deficiencies Sentencing decision, for man’s counsel his written tributed opportuni- for an the court asked Coleman sentencing did that contends The court an oral statement. make ty to require- constitutional the comport with not that presentation The oral acquiesced. and four- eighth by the imposed ments only a however, constituted place, took he He claims amendments. teenth the as formality inasmuch meaningless argu- right present of his deprived was already made.28 been had decision court’s and that sentencing of time at the ment required mitigation, as in statute, credit activity. gave Coleman history of criminal any other has sig- having no for by appears in the act which only other criminal activity. How- history prior criminal aggravated of cause is nificant ever, in this the trial record Montana, reading of the is that Roundup, reasonable most Supreme burglary aof home concluded court That guns defend- Court. were stolen certain Montana that the where ant and Robert 4,1974 sentencing judge date that Coleman July found [the Nank sub- By mitigation of the under reason credit murder]. not entitled of Halstad was Roundup mitigation bur- alleged allowed (1) foregoing, the credit because section Mont, 331-32, 95-2206.9(1) this appropriate II, not is Section glary. Coleman III.C.2.b.ll. section defendant. See at 1019-20. P.2d infra II, 185Mont. Reprinted in Coleman J., dissenting), (Shea, P.2d finding reads: denied, cert. appearing, either is no evidence there That (1980). L.Ed.2d or the cause in this held of the trial record accorded, support- hearing 26.Moreover, given special document written any finding of the circumstances hearing of there- outset parties at the para- numbered other mitigation under the internally inconsistent. filed after Findings 95-2206.9, namely para- section, graphs the credit Section of court wrote likewise, is, no 95-2206.9(1) (2) through There graphs mitigation provided section operative in having signifi- any which are facts 46-18-304(1) [currently ] evidence activity penalty in this cause. mitigate not history prior criminal case to this cant Mont, II, Conclusions In the Reprinted in appropriate to Coleman. J., dissenting). however, (Shea, section, "[t]hat court stated at 1048 P.2d technically circumstance hearing, the court 14th June the earlier 28. At defendant cause [was] present in out, it indicate did, points majority as the activi- history prior criminal no record go up on findings fact therefore, its document, "render basis ty.” On the absence present in the is record entirely or not whether clear remarks, After counsel concluded their the sel an to opportunity comment on facts proceed- judge uttered a few comments and which influence the sentencing deci- ed judg- capital read aloud the conclusions and sion in to cases. previously

ment contained in the distribut- Id. sentencing, In capital judi- where the ed written decision. system paramount cial has a interest ensuring right made, that the decision is eighth The and fourteenth amendments use, the trial court must to the require capital proceedings that utmost sentencing extent, weapon its most effective in the “meaningful opportunity afford a for con- quest for truth: exchange. adversarial mitigating factors'presented sideration of by particular the circumstances of the Eddings Oklahoma, In the Supreme byor the of crime attributes the individual importance Court underscored the the (Stanislaus) offender.” Roberts v. Louisi- participation defendant's when the sentenc- ana, 325, 333-34, ing court considers the existence of miti- (1976) (plurality) (em- 49 L.Ed.2d 974 gating circumstances. After noting that phasis supplied). empty The charade that the penalty Oklahoma death proper- statute place July on provide took did ly permits present the defendant to evi- meaningful Coleman with a opportunity to dence “as any mitigating to circumstanc- present arguments regarding his the exist- es”, Supreme the Court declared that this of, weight to, given ence to be his enough. “Lockett,” is not said, the Court mitigating circumstances; individual nor “requires listen.” sentencer to Id. the at permit did it him to advise why, the court 115 n. 102 S.Ct. at 877 n. (emphasis view, the death was not an Shuman, See also Sumner v. supplied). appropriate punishment in his case. 107 S.Ct. at (“Beginning 2721-23 Ohio, Lockett v. a plurality of the Court simple The fact is that the trial court recognized give that order to meaning to decided to have Coleman executed without individualized-sentencing the requirement any argument benefit of his attor- capital cases, sentencing authority ney. Supreme rejected has permitted must be to consider ‘as a miti- “premise erroneous the partic- that gating factor, any aspect of a defendant’s ipation of superfluous counsel is record, character any of the circum- process evaluating the relevance and ” stances of Id. at 2722 offense.’ (quot- significance aggravating mitigating Ohio, Lockett v. ing 438 U.S. at Florida, facts.” Gardner v. 430 U.S. at (emphasis original)). at 2964 360, 97 S.Ct. at 1206 Gard- (plurality). ner, Court stated that case, In the present one hardly could adversary system nature of our of criminal contend the trial court to “listenfed]” justice requires that the trial listen position defendant’s on the issue the defendant on the mitigating issue of mitigating circumstances. The trial circumstances. up made his mind and determined both Our belief that debate between adver- form and substance of the sentence before

saries is often essential to the truth-seek- defense counsel had an opportunity to ing requires function of trials us speak also to subject. recognize importance giving coun- court’s failure to “listen” particularly presented by findings the de- July ration of those for the hear- 10th hearing.” Shockingly, fendant process.” this com- Maj. op. violated due at 460. The suggest seems to ment majority that the court conveniently had al- fails mention ready reached its decision long attorney requested, during had time— parties any before the opportunity hearing, com- opportunity same 14th June ment on the way issues—since the argument make an mitiga- oral on the issue of "go up” capital decision would pun- would be if sentencing hearing, tion at the oral imposed. majority ishment were argument relies on kind had been made either statement, however, support party regarding appropriateness remarka- capital of a “[g]iven sentence, ble conclusion: right court's statement present argu- that the oral prepare Findings, it would that persuasive its we capital find un- sentencing hearing ment at a is funda- argument prepa- that the court's mental.

493 sentencing, see of time the argument at de- the because this case in troublesome cert. (1981), 624, 632 III, 633 P.2d any witnesses Coleman to call not had decided fense 1492, 983, 71 denied, on 102 argument S.Ct. oral 455 U.S. on exclusively rely to impris- mitigation Supreme (1982), Montana the of 693 critical issues L.Ed.2d the fol- procedure The there was vs. execution.29 apparently believed onment Court determining to im- judge in by the advocacy. The lowed of such form right to effectively eliminat- pose the to III appears position Coleman in court’s counsel. Coleman’s any role for ed to given chance a was that Coleman be sentence III appropriate Montana In Coleman comment recognized that opportunity to have satis- appears writing such and that any opportunity require- not afforded statutory was counsel constitutional and all fies the deci argument before an oral make to ments. It described made. was execute to sion is, analysis of this problem with The distributed judge after occurred what recognize that Cole course, it does not as follows: conclusions findings and his argument at sen oral right to a has man read into petitioner counsel “thereafter requires, even in process tencing. Due mitiga statement prepared record sentencing court case, that noncapital 624, 632 III, P.2d 633 tion.” oral request to comment defendant’s grant 983, 102 S.Ct. denied, U.S. 455 (1981), cert. v. Ashe sentence. appropriate ly on Permitting (1982). 693 1492, 71 L.Ed.2d Carolina, 334, 336 586 F.2d North State the record into a statement to read counsel effec defendant Cir.1978) (“[W]hen a (4th made and already been has a decision after the trial desire to communicates his tively not com form does written to final reduced imposition prior speak to requirements respect any port to process not of due sentence, a denial mandate is essential process. of due denied, cert. “opportuni request.”), Gardner, have the defendant’s grant counsel sentencing 2416, 60 L.Ed.2d 1072 966, 99 S.Ct. to “influence 441 U.S. ty” at least on this right his may reversal exercise necessitates (1978). Defendant decision” through attor sentencing alone. ground speak at to be, right to be heard For ney. “[t]he was that Coleman recognizing Though if it did cases, avail of little many present oral opportunity anof deprived denied, Cir.1985), (11th cert. 741 present F.2d failure counsel’s defense 29. (1985); King 582, 1026, L.Ed.2d 564 88 106 S.Ct. mitigation nec- testimony issue on the direct Cir.1984), (11th Strickland, 1462 F.2d 748 v. question whether essarily raises 2020, 1016, denied, 85 105 S.Ct. U.S. 471 cert. preserved at right to counsel Wainwright, 739 (1985); Douglas v. 301 L.Ed.2d "right counsel stage. amendment The sixth ” denied, Cir.1984), (11th cert. F.2d 531 of counsel.’ assistance right the effective 'the (1985). 1170, 1208, 321 L.Ed.2d 668, 686, 84 105 S.Ct. 104 Washington, 466 U.S. v. Strickland distinguished cases before have (quoting courts These 674 80 L.Ed.2d S.Ct. Washington con 14, 759, v. Richardson, from Strickland n. 771 them cluding U.S. 397 v. McMann inadequately performed 14, 1449, that counsel 1441, 763 L.Ed.2d 25 n. 90 S.Ct. (1970)). did, in representation the ineffective assistance and fact, ineffective claim of A present case (a) prejudice defendant. showing counsel’s "that requires counsel Here, defense (b) distinguishable. equally may "that the was deficient” performance may been inad well have performance prejudiced the defense." counsel’s performance deficient strategic Com choice. simply a Darden v. 687, equate See also and not S.Ct. at 104 Id. at at Washington, 466 U.S. 2473- v. Wainwright, pare Strickland U.S. 477 Wainwright, 2070; 106 v. (1986). standards Darden These S.Ct. at 144 104 L.Ed.2d 91 U.S. —, — 107 2475; Kemp, Burger well sentencing proceedings as v. apply capital S.Ct. Also, Washington, Strickland 97 L.Ed.2d itself. the trial toas against evidence at 2063. light weakness U.S. regard testimony substantial cases, present evidence the failure In some available, sentencing proceeding capital mitigation in a preju have well performance deficient represen inadequate to constitute been held has however, Coleman, has not (5th Coleman. diced Thigpen, 788 F.2d Jones tation. of coun assistance of ineffective (11th claimamade Cir.1986); Kemp, F.2d 523 Blake court, there proceeding. This habeas sel in this denied, Cir.1985), cert. time. fore, issue at reach that cannot Kemp, (1985); Tyler v. L.Ed.2d 367 comprehend right context, to be heard coun- the Court has stated: “the sen Alabama, 45, sel.” Powell v. 287 tencing stage is a critical of the criminal 68-69, 55, 63-64, 53 S.Ct. 77 L.Ed. 158 proceeding at which is enti [the defendant] (1932). Note, See also Procedural Due tled to the effective assistance of counsel.” Sentencing Process Judicial Felo- Florida, Gardner v. 358, 430 U.S. at for 821, ny, (1968) (“[T]he Harv.L.Rev. S.Ct. at 1205 (plurality) (citing Mempa v. right allocutory legal to make other Rhay Specht Patterson, 386 U.S. by claims should right be made effective a 605, 1209, (1967)). 18 L.Ed.2d 326 to sentencing, counsel at which right The to obviously counsel entitles the regarded as the modem descendant of the defendant to more than the presence mere right allocution.”). to of a attorney. defense If the Here, values requested Mempa inherent Coleman had advance realized, Gideon are to be opportunity speak, through pres- to the mere his coun- sel, ence of counsel in sentencing hearing at the the courtroom during re- but his sentencing quest inadequate. will be effectively denied prior when to Counsel at the sentencing stage hearing made must be his decision in allowed perform to some of the favor of execution. sentencing judge The functions which justify presence. his thus in effect denied both Coleman and his right speak counsel the to subject on the of Note, Procedural Due Process at Judicial imposed. the sentence to be Sentencing Felony, 81 Harv.L.Rev. 821, (1968). As the Seventh Circuit right argument The to oral is a funda- said States, Baker v. noncapi- United component mental of a sentencing fair case, tal right to the effective hearing, assist especially capital punish- when ance of counsel entitles defense counsel “to ment is at Supreme stake. As the “ make meaningful statement” during said, hearing has very in its essence ‘[a] sentencing. 618, (7th 407 F.2d Cir. demands that he who is entitled to it shall 1969). Thus, there can be little doubt that right support have the to allegations his right to implies, counsel at the very argument, brief, and, be, however if need ” least, right to argument make an oral proof, however Memphis informal.’ question whether a sentence of Light, Gas & Div. v. Craft, Water 436 U.S. imposed. should be 16 n. 98 S.Ct. 1564 n. L.Ed.2d 30 (quoting Londoner v. majority opinion The does not directly Denver, argument. Rather, address this major- (1908)). 52 L.Ed. 1103 Londoner, ity suggest seems to that Coleman waived the Court held “opportunity that an ... right argument to oral at the sentenc- writing submit in objections all ... and ing hearing. No other court previously has complaints” is enough, not person that the suggested that he did so. majority’s The hearing entitled to a right has a to make an argument seems premised to be upon the argument. oral 210 U.S. at 28 S.Ct. at fact that at the hearing June 14th Cole- right 714. The argument oral certainly man’s attorney told the court that Coleman cannot be denied in hearing as critical as would present not any witnesses to estab- the one place takes at the time of lish mitigating factors at sentencing sentencing and particularly hearing. when sen- maj. 452-453, op. See 461. The tencing involves the capital punish- issue of majority relies on also the fact that at this ment. same June hearing 14th the court told Cole- man’s counsel it “will render its find- right argument to oral sentencing ings go up fact and on the record goes hand in hand right with the to effec present ...,” and defense counsel did not tive assistance of counsel. object. Court has explicitly recognized right during counsel sentencing. Mempa simple fact is during that at no time Rhay, hearing L.Ed. did party either right waive its 2d 336 In the capital punishment argument. to oral contrary, To the Cole- long made after of context. It out that both explicitly declared counsel man’s exchange counsel and the between defense opportunity given an sides should be regarding whether Coleman would July during the argument an oral make prosecution asked testify, since Moreover, men- have hearing. sentencing subject to cross-examina- that Coleman be supra, appeared at the parties tioned both agreed with defense coun- The court tion. hearing anticipating, July compelled need not be sel that Coleman for, the issue argument on oral prepared stating that the court would render testify, to be proper sentence and the mitigation go up on the findings of its fact counsel did defense imposed.30 While record. That Coleman’s counsel present at the sentenc- present to witnesses intend given this object is understandable to did not intended hearing, he nevertheless making ruling context, a judge for the make, rel- arguments make, indeed and did right to his to wholly in his favor unrelated af- sentence —but to Coleman’s evant Furthermore, argument. the present oral its final writ- had distributed the court ter statement, out of taken con- Conclusions, Judgment, and court’s even Findings, ten text, provide to insufficient argument would be oral Surely no waiver of Order. waiver, a fundamental the of party since waiver fact that a implied from the can be intelligent, and vol- right explicit, must be present to witnesses. not desire does untary. implied from the a waiver be Nor can not contend that majority The does be- to make intends that it statement court’s Findings were un- cause the distributed present the go up on findings of fact and simply proposed they rather signed were object. to record, failure and Coleman’s majori- the findings.31 Nor does than final statement the court’s majority takes (“the ... at defendant did support 605 P.2d 1018 attempt its waiver apparent to an 30. In advantage majority trial the District Court’s offer argument, "[t]he take of (i) General Rule Comm’n, Bell Tel. Co. v. Public Utilities 292, 307, 301 U.S. 57 S.Ct. Supreme 81 The Court recently has reit (1937).” L.Ed. 1093 The waiver of a funda- erated that the requires Constitution that right explicit, mental must intelligent, be capital the be defendant allowed to intro voluntary. Here, most, and very at the any duce relevant mitigating evidence re majority point ambiguous can to a few garding his character or record and phrases in exacting Under the record. the circumstances of the offense. Califor — standards, Barker apparent seems it Brown, nia v. U.S. —, 107 837, S.Ct. majority’s suggestion that Coleman (1987). 93 L.Ed.2d 934 “Consideration right argument patent- waived his to oral of such evidence is ‘constitutionally indis ly erroneous. pensable part process of inflicting penalty Id. of death’ ”. (quoting Wood facing Coleman like all persons capital Carolina, son v. North punishment has a 428 U.S. at right constitutional to 96 (plurality)). have the S.Ct. at 2991 In Eddings, arguments sentencer listen to his deciding Supreme punishment. before on his Court unequivocally He stated improperly deprived of that “the fundamen- state courts must consider all rele right. tal penalty The on vant mitigating imposed death evidence weigh it him process violates the due clause against as well of aggravating evidence cir eighth and, as the consequent- amendment cumstances.” 455 at 102 U.S. S.Ct. at ly, cannot stand. (emphasis 878 supplied). year, Last posited, Court as a well-established rule Mitigating 2. Circumstances. may “that the sentencer not refuse to con precluded Even had the sider or delayed deciding trial court be considering from ‘any ” on the death mitigating sentence until after relevant Skipper v. evidence.’ arguments, heard counsel’s Carolina, we would be South 1, 106 S.Ct. compelled to on ground reverse —both 90 L.Ed.2d 1 (quoting Eddings, petitioner prepared read into record a hearing state- already he had made his decision. The mitigation." III, ment in that, 633 P.2d at majority tells us after the written decision In opinion, an earlier the Montana Su- distributed, "[d]efense counsel then read preme put clearly. Court it even more The into prepared the record a statement he had on court said: “The District Court handed counsel Maj. op. Coleman’s behalf.” at 453. That char- State, for defendant copy and the of its written acterization of the events makes it clear that the findings, judgment II, order.” argument was, place July oral that took on Mont, at at P.2d 1006. At no time did purposes sentencing, nothing for more than Supreme the Montana Court characterize the empty function, gesture, an and that its if judge’s written pro- decision as tentative or any, permit preserve was to counsel posed. appeal. record for too, majority, The recognize seems to when the trial July arrived at the 10th is rele- character background and fendant’s also 877). See S.Ct. at at — belief, long held —, because vant U.S. Dugger, Hitchcock commit crimi- defendants who society, 1824, 95 L.Ed.2d a disadvan- attributable that are nal acts obligation sentencing court has emotional and background, or to taged though it even factors mitigating consider culpable less than may be problems, mental overriding give them duty to no has such excuse.” no have who defendants sentencer, the Court “The weight. Brown, 107 S.Ct. at 841 review,” Appeals California Criminal Accordingly, a J., concurring). “may (O’Connor, determine Eddings, declared mitigating factors must these sentencing judge take given relevant weight to be give it to or- may deciding not they whether But when account evidence. into from evidence excluding such executed. weight be a defendant der 114-15, that, consideration.” their Court held Dugger, Hitchcock id. also See at 876-77. error proves the the state unless token, the same By the at 878. harmless, consider the failure court, under Montana’s sentencing the defendant’s pertaining evidence decide whether system, “renders background character sufficiently substan- are mitigating factors at 1824. invalid.” death sentence consid- it must leniency. But to call tial its from factors, them exclude those er Circumstances Mitigating (ii) Specific deliberations. Case repeatedly has Supreme Court report ad- capital investigation presentence held that specifically and character in circumstances mitigating consider court must dressed See, e.g., accused. of the background his in In dissent background. Coleman’s 2721-26; Shuman, 107 S.Ct. at v. II, Sumner summarized Shea Justice Coleman 839; Brown, at S.Ct. 107 v. Because report. of that contents California pertinent 879, 103 S.Ct. at Stephens, 462 U.S. Zant circumstances mitigating I consider Oklahoma, U.S. at 2744; Eddings v. 455 at thoughtful deserving of substantial and be Ohio, Lockett 875; at S.Ct. is made a decision before consideration (plurali 2964-65 604-06, at at U.S. I hanged, not be or should should Carolina, v. North ty); Woodson in its entire- summary Shea’s quote Justice Roberts (plurality); 304, 96 S.Ct. at at ty- Louisiana, at 428 U.S. (Stanislaus) v. man, born a black is Dewey Coleman In (1976) (plurality). Missouri, of son 26, 1946, in October said, Woodson, the Court There housewife. and a boilermaker significance no that accords process A in his sisters and nine brothers were and character facets relevant fourteen, he ran age of family. At the or the offender of the individual record he later home, time some but from away offense particular circumstances graduated He Missouri. returned fixing in from consideration excludes father His in 1964. high from school possi- of death punishment ultimate in 1972. died his mother in 1964 died and mitigating compassionate bility of broth- only four January ofAs frail- diverse stemming from the factors be him to known were sisters ers and persons all It treats humankind. ties of contact has had apparently He alive. not as designated offense aof convicted time. family since that his beings, with but human uniquely individual faceless, undifferentiated of a the Unit-

members in he was 1965 to From inflic- blind subjected to discharged in mass to He was Navy. States ed death. very duty tion active recalled 1969 but rank (plurality). He attained at 2991 shortly thereafter. in involved primarily and of E-5 Cali in explained As Justice O’Connor he time During this doing work. clerical de- Brown, “evidence about the fornia personal- patient passive-aggressive years of approximately two also received disorders; personality college through ity; aggressive and junior at a education (De- depressive anxiety He received his reaction with correspondence courses. Neurosis). Navy pressive in 1973 and discharge from the classification as is on disabled apparently II, 299, 356-57, 605 185 Mont. activity. dissenting), service-connected a result (Shea, J., 1032-33 P.2d Falls, Mon- he came to Great denied, rt. ce 2952, tana, he wanted to re- part because 64 L.Ed.2d drug He from the scene. move himself Although, acknowledged, as Justice Shea drugs on and off since the had used profile complete, the contents 12 or 13 when he and his young age of presentence report make it clear that marijuana that was friends smoked many personal of Coleman’s growing near his home Missouri. wild record) (in addition to his lack of a criminal using co- involved with He later became mitigation relevant to the issue of were caine, and heroine amphetamines [sic]. taken into account should have been Falls, Mon- Upon arrival Great his sentencing judge. example, For the sen- tana, actively involved with he became tencing court had a constitutional obli- community Incorporated, a Opportunity gation take into account un- coalition of individuals action low income derprivileged and harsh childhood ado- rights and the worked for welfare who lescence, service, military good rep- his his people. of low income While betterment neighborhood, community in his utation Opportunity Incorporat- associated with service, psychological and his disorders. president ed he founder became However, it is clear from the record and (Low Neighbors Income Coali- L.I.N.C. findings judge from the written tion). helped organize He a Christmas give any failed to consideration whatsoever youngsters income program for low of those circumstances. area, provided the Falls Great majority states that the made get projects time and initiative to several investigation report part presentence May developed he left 1974 for before assume, the record and that we can there- Sheridan, Hospital Wyo- the Veteran’s fore, background he took Coleman’s ming. assumption That runs coun- into account. determined, Insofar as can be defend- findings own as well as to ter to the court’s ant had been convicted of even a never the mandate of Gardner. Indeed, charge. misdemeanor he has not any been arrested for offense. The even (iii) Trial Failure to Consider Court’s parole probation spoke and officer with Background and Coleman’s Character in Falls con- several individuals Great Coleman, cerning in case, and he stated present sentencing the the while report: prior criminal court considered Coleman’s “record,” clearly it did not consider Cole- spoke

This writer with several indi- background. Nothing subject man’s character and viduals associated with the and sentencing hearings familiar his work in the in the or the written with Great Conclusion, everyone “Findings, Judgment I Falls area and talked and Or- complimentary was of this individ- der” warrants the conclusion that recognized, gave ual’s work and viewed with some dis- judge any considera- to, mitigating belief the crime this individual has tion character and back- committed. ground presen- in the factors described investigation report in the de- arrest, tence and persons per- After his several There is no men- testing fense’s oral statement. psychological formed of defend- ant, diagnoses any tion of of those elements in the written ranged and their from comments paranoid such decision or the oral determinations as schizo- sentencing hearing. phrenia; judge personality; organic schizodal made at reaction; syndrome; depressive point judge any make refer- brain a At no did the likewise, is, through (8). There no evi- mitigating circumstances ence operative in any facts which are In- dence character. background or Coleman’s mitigate penalty in this case to entirely differ- stead, only an he mentioned [emphasis supplied]. cause mitigating circumstance category of ent mitigating circum- “The one he said: when the court clear that reason It seems prior not has the defendant is that stance mitigat- any any to find evidence failed felony any convicted time been (8) to this under was subsection circumstances ”32 Moreover, in supplied]— [emphasis judge not that the aware either Conclusions, Judgment and “Findings, presen- forth in the mitigating facts set Order”, judge asserted “[t]hat he did not report existed or that tence technically present mitigating circumstance miti- recognize that those facts constitute no the defendant has in this cause is that under Lockett. gating activity criminal history prior record reason, failed to the court Whatever supplied].” [emphasis mitigating relat- circumstance consider background character and ing to Coleman’s punishment capital the Montana Under crucial function of performing the when record is dif- criminal a defendant’s statute mitigating aggravating weighing from separately treated ferent than and factors. relating to his mitigating circumstances re- The statute background. clearly, the issue is not whether put character To prop- to consider defendant’s quires weighed the court the circumstances judge (1) and significance. subsection gave criminal record under them erly or sufficient the catch- background under considered the character Had the (8). The catchall provision, present subsection under subsection all factors that were any court to consider requires sufficiently sub- provision found them “not mitiga- 95-2206.10, “exists leniency,” fact or circumstance call for stantial to excluding only those penalty” have oc- tion of constitutional violation An 1-7. That, however, simply subsections already covered what curred. re- statutory framework us re- analysis of the The record transpired here. before provision includes catchall unaware of simply that the veals that the veals mitigating circumstances character Coleman’s most to consider or failed expressly described background. O’Connor Justice the Court Hitchcock and that Brown (iv) The Errors in the penal- if the death considered held must be Analysis Majority’s ty is to stand. ignore the over- chooses to majority its discussion of Cole- completing After showing that whelming specific evidence under subsec- prior criminal record

man’s did not consider expressly the trial court (1), sentencing court tion instead ac- character and background and no evidence of that there was found general judge’s uncritically the trial cept under the catchall mitigating circumstances and he reviewed boilerplate assertions that The Court found: provision. The ma- materials. relevant considered all appearing, no evidence That there [was] 14th during the June that both jority states in of the trial held in the record either hearings, stat- “the court July 10th and the sentencing hear- special cause or the this times, challenge, it that without ed several accorded, finding any of supporting sub- all materials read and considered mitigation under had in circumstances the During the Maj. op. at 455.33 mitted.” paragraphs of Sec- other numbered however, hearing, the court 95-2206.9, 14th namely paragraphs June tion this, apparently not file a brief did Since Coleman Despite having court did not 33. said mitigation, supra note see on the issue any mitigation give credit in his find- Coleman place argument after the took since his oral and accompanying ings. supra notes 25-26 and See penalty, impose the death decided to court had text. majority is refer- what the it is far from clear ring by materials submitted.” "all weight are it had “before it all matters ments entitled to little declared that punishment of the trial during capital the course case. [and had] testimony relating aggra- heard important is most is that What the trial vating and also some to miti- specifically court never claimed to have (There gating was of circumstances.” portions presentence read the of the inves- testimony judge before the course no such tigation report pertaining to Coleman’s offered other than that which was at the character, background and let alone to establishing purpose of time of for the trial any of the have considered relevant as- innocence.) guilt The trial pects any of his life. Nor is there indica- court also stated that it “called any any tion in of the court’s remarks of report, presentence which received [it any awareness of facts or circumstances filed accordance to be then] cause[d] relating history. to Coleman’s The court’s however, say, law.” The court did general formalistic assertions that it had parts of such that it had considered arguments considered all the are insuffi- report pertaining to Coleman’s character any cient to overcome the absence of refer- background. simply The trial court mitigating ence to the various facts and significant part noted that “[t]he [the presen- circumstances mentioned in the mitigating report] circumstanc- relative report tence specific and the court’s own es, the defendant has is that never been findings contrary. and conclusions to the prior any felony to this convicted findings demonstrate that written charge.” specifi- At no time did the court only mitigating circumstance the court cally assert that it had read the entire considered was the absence of a criminal presentence report. record; they further that the show July hearing 10th the trial cognizant of no circum- parties arguments: told the before oral relating stances to Coleman’s character you “I that I want know have considered background. everything you all that have submitted of— given thought, have majority cites from Coleman II to just isn’t a matter court takes support proposition that the trial court (It significant lightly.” point that at this considered all of the evidence and materials apparently the defendant still had sub- presented rendering Findings regard its nothing mitted to the court—he had filed ing mitigation. op. Maj. at 454. The ma no brief or other written document on the jority’s reliance on II Coleman is mis subject mitigating circumstance or the placed. say, any Coleman II does not appropriateness punishment, supra see where, trial court considered notes 28 argu- & and had made no oral mitigation evidence other than subject.) appear ment on that It does not prior Coleman’s lack of a To the record. presen- that this statement refers contrary, support II seems investigation report tence report since that conclusion that the trial court did not con parties. was not submitted either of the mitigation i.e., sider the other evidence — background. Coleman’s character and remarks, After counsel made their oral II, judge again Montana Court in stated: “I have not looked though points recognizing presentence at the lightly, have been raised investigation many arguments report but raised included information defense, of prior course have been both on Coleman’s record of no considered con Finally, heretofore.”34 “Findings, its victions and on his character and back Conclusions, Judgment ground and Order” the sentencing states that the court stated that it had “reviewed all mat- court considered the former. Dis “[T]he ters boilerplate Court,” submitted.” Such state- says, trict II “did consid tioned, give If any weight 34. one were to points this statement presentation the made in the oral all, some, considered, at it would have to be noted that if could not have been since the court most, arguments not of previously the had prior not had made its decision to the time the raised; moreover, already been presentation as I have men- occurred.

501 Whether Only it “Unclear” Were (v) Even defend of circumstance mitigating the er Mitigat- the Considered Court Trial the conclud record but criminal of a lack ant’s Re- Factors, Reversal Would ing by evi offset was circumstance this ed quired. a bur had committed defendant that dence rape kidnap, and the day judge the same on the relatively clear that glary is itWhile Mont, 382, 605 at 185 occurred.” character Coleman’s homicide to consider failed claim makes opinion necessary The that we be 1019. not it background, P.2d at is is considered Reversal the case. judge trial was such the that certain that dis doubt as to any nowhere is background there where required character the actually circumstanc considered mitigating judge any of those the whether cusses de- to the simply pertaining in error is evidence mitigating thus majority The es. background. character Montana the fendant’s that it states when “risk the even [of] con that sentencing court Lockett establishes the that found spite in [being] imposed evidence, in mitigation the the all of sidered less severe for a may call which factors of char to Coleman’s pertaining cluding that incompati- unacceptable and penalty ... background.35 acter and the that us before the record from evident “it is majority relies opinion the part of its In this 35. con evidence but the judge consider did eleventh trial the decided cases entirely on several outweigh mili factors the not it 623 that did F.2d cluded Wainwright, 778 v. Johnson circuit: penalty." F.2d 732 Wainwright, tating 772 the death favor of Cir.1985); v. (11th Funchess banc, v. Wain supplied). In Palmes Cir.1985), reh’g (emphasis en denied (11th at 806 F.2d 683 denied, 106 U.S. wrote: wright, 475 court the cert. F.2d 776 the (1986); v. of patiently heard all judge Raulerson 349 trial 89 L.Ed.2d Here the S.Ct. Cir.1984), (11th cert. There is 803 Wainwright, appellant F.2d offer.... had 732 evidence L.Ed.2d judge 83 denied, the trial U.S. that 469 whatsoever no indication Wainwright, F.2d 725 everything (1984); v. conscientiously Palmes consider 302 did not denied, Cir.1984), 469 sup- cert. (11th (emphasis 1511 1523 at F.2d presented. 725 (1984); v. Dobbert Strickland, 83 L.Ed.2d the v. Finally, in Dobbert plied). Cir.1983), (11th cert. Strickland, F.2d analysis of "our announced: circuit eleventh L.Ed.2d denied, of the order both the that reveals the record eleventh op. maj. 455. See the Florida of the decision trial court Gardner, appears to conflict view circuit's all consideration reflect Supreme Court (vi), and with subsection discussion see Dobbert, infra statu- put on mitigating evidence statement clear O’Conner’s and Justice Lockett F.2d at nonstatutory." 718 tory and (v). subsection discussion Eddings, see infra the case Contrary the circumstances however, all are cases the important, Equally circuit cases us, eleventh of the in each before eleventh In each readily distinguishable. actually evi- introduced defendants that held court cases the circuit during mitigating circumstances on the dence mitigating specify required to judge not Thus, in each sentencing proceedings. from the clear it was when circumstances all of personally admitted judge had case the circumstances those had taken that he record had listened question and the evidence Wainwright, the In Johnson into account. testimony. of the In none pertinent all agreed dis expressly “with circuit eleventh only source was the cases circuit eleventh its read in sentencing order that trict court document. written mitigating evidence instructions with the court’s entirety, combined mitigat- that conclusion circuit’s eleventh gave trial jury, indicates to the thus actually considered were factors present evidence adequate consideration record in support some actual finds non-statutory cir [pertaining ed majority, eleventh case. Unlike each Similarly, in at 629. 778 F.2d cumstances].’’ facts and relied circuit stat Wainwright circuit the eleventh Funchess boilerplate solely on and not in the record ed: concluding its basis statements [relat- evidence court considered trial mitigating circum- judge had considered mitigating circumstances] non-statutory ing Finally, specifically mentioned. stances justi- persuaded obviously not but the trial did cases of those in none non-statutory the establishment fied findings indicated specifically make Consequently, the trial mitigating factors. perti- unfamiliarity existence with the discussion a detailed not include judge did direct- mitigating circumstances nent in his alleged circumstances regarding these in the undisputed facts ly contradicted findings fact. exist- respect to the report with presentence In Rauler- (emphasis supplied). F.2d circumstances. ence those circuit declared: Wainwright, eleventh son Eighth ble the with commands the Florida, and Gardner v. 430 U.S. at Fourteenth Amendments.” 438 U.S. at S.Ct. at 1206 (plurality). The majority (plurality). S.Ct. at See also seems to believe that Gardner means Murray, Turner v. the reviewing able, court must be 90 L.Ed.2d 27 (plurality). looking record, from at the to discern con- Justice O’Connor expressly stated that am- present siderations that could in theory biguity regarding or doubt question the been by have relied on the sentencing court judge whether the considered all the miti- reaching in its impose decision to capital gating requires factors reversal. regardless of what factors the sentence— speculate not judge as to whether actually [We] relied on. I think that judge actually trial ... quite considered all clearly Gardner demands more. In mitigating factors and found them my opinion, requires the sentencing insufficient to aggravating offset the cir- judge to specify the considerations that cumstances.... Woodson Lockett actually motivated his decision—those that require us to legitimate remove basis militated in favor decision and those finding ambiguity concerning the weighed of leniency. favor Only actually

factors by considered the trial then can a reviewing court determine court. judge whether considered those factors —as the Eddings Oklahoma, 119, 102 requires Constitution 455 U.S. at him to. (O’Connor,J., S.Ct. at 879 concurring), cit When the Court asks for a “full Shuman, ed in Sumner v. 107 S.Ct. at disclosure of the basis for the death sen- 2722n. 4. Similarly, present in the case we tence,” it is obviously requiring an affirma- should not hesitate to reverse the death by tive act the sentencing judge. It is penalty light of “mitigating information telling sentencing judges to make their that may not have been considered penalties death lawful and reviewable trial court in deciding impose whether to specifying the considerations upon which penalty the death or some lesser sentence.” they relied. This does not mean mention- Eddings, 455 U.S. at 102 S.Ct. at 879 ing only those factors that support (O’Connor, J., concurring) (emphasis sup court’s decision. means It also identifying plied). the considerations support leniency but are judge’s insufficient view to (vi) The Requires Constitution the Court Here, warrant that judge result. sim- Specify the Mitigating ply said there were no considerations, such Factors Considered although clearly a number of them were view, In my requires constitution set forth the record and disputed. not court specify cir- short, comply Gardner, cumstances penal- considered when a death sentencing court explicitly must discuss the ty is imposed. I believe re- Gardner mitigation. evidence in need court quires such rule: provide an extensive excursus into each Since the State must capi- administer its mitigating circumstance but must at least tal sentencing procedures with an even identify those decision, which affect its in- hand, Florida, see Proffitt cluding those it finds insufficient to war- [242,] 250-253 S.Ct. at [96 2965-67] leniency. rant (1976)], it is important [ that the record on appeal disclose the reviewing Inasmuch as the Constitution makes un- the considerations acceptable which imposing motivated risk the death death sentence in every case which it without certitude that the sentenc- is imposed. Without full disclosure has considered the mitigating the basis for sentence, circumstances, su-pra (v), see subsection Florida capital-sentencing procedure there seems to be no reasonable alternative subject would be defects which requiring sentencing judges specify resulted the holding of unconstitution- actually factors taken into account. In ality in Furman v. Georgia. the absence of requirement, such a review-

503 Gardner, the Court first in which prior to required speculate to ing would courts sentencing judge required a disclosure expressly “full the factors what as to sentence,” the death at deciding impose 430 U.S. for the death in basis considered majori- Thus, the Gregg what precisely 361, is 1206.36 and That 97 S.Ct. at penalty. probability all speculate here: Gard- ty derogate does from the way in no Jurek —in sentencing the to what erroneously Accordingly, need ner requirement. we —as actually considered. judge here the constitution not consider whether permit application the of different “indicate that Supreme Court decisions penalty jury in death authority ordered standards the discretion limited must be cases. death cases] [in Florida, Spaziano v. reviewable.” and Supreme Court of the three other None 3164, 3163, 82 S.Ct. 104 468 U.S. supports cites the majority cases which In supplied). (1984) (emphasis L.Ed.2d 340 specify need not judge the trial view that Fur- Woodson, established the Court considered in mitigating circumstances state, as a “basic imposes on the man penalty. death deciding impose “make ra- obligation to requirement”, Alabama, 472 372, v. 105 Baldwin U.S. impos- for process tionally reviewable (1985); Spazi 2727, 300 86 L.Ed.2d S.Ct. 303, at 428 U.S. of ing a sentence death.” 447, Florida, 468 104 S.Ct. ano U.S. also (plurality). See at 2990 3154, (1984); L.Ed.2d 340 82 Proffitt 1519, 1528 Risley, 801 F.2d McKenzie v. Florida, 2960, 49 428 U.S. Cir.1986) (“The primary concerns the (9th (1976). in of these cases L.Ed.2d 913 All discussing expressed has Supreme Court required the sentenc statutes that volved the need for been penalty have the death findings ing judge make on the written finder’s discretion guidance of the fact mitigating circumstances. Alabama of of the exercise opportunity for review impos Baldwin courts required statute reh’g en discretion.”), petition for ing death sentence set forth writ “to (9th Cir.1987). granted, 815 F.2d 1323 banc findings the trial and ing factual from specify sentencing judge to Requiring the including aggravat sentencing hearing, mitigating circumstances each mitigating ing and circumstances appeal provides present courts sentence.” Bald formed the basis addition, In such a rule reviewable record. Alabama, win v. 472 U.S. at S.Ct. miti- to consider the forces the sentencer Spaziano The Florida statute more 2730. individually and to be gating factors “to conduct an required judge the trial might otherwise be. than he conscientious and to independent review of the evidence Supreme Court majority cites two findings regarding aggravat make his own imposed penalties jury in which cases mitigating If the circumstances. although juries were not were affirmed death, he must judge imposes a sentence aggravating specify the required to writing findings on which set forth as a mitigating circumstances that served 468 U.S. at is the sentence based.” Texas, Jurek v. basis for their decisions. Proffitt, In the death at 3165. S.Ct. L.Ed.2d 929 S.Ct. required judge penalty statute also Gregg Georgia, (1976); aggravating findings file written In nei- 49 L.Ed.2d 859 mitigating circumstances. cases, however, the de- of those did ther (plurality). none at 2965 of the need for fendant raise the issue allege that did the defendant these cases findings aggravating mit- specific which Court, there were circumstances igating and the to discuss sentencing judge failed surprisingly, question. rule on did not simply mis- findings. majority Moreover, in his cases were decided both these decision, reaching upon its noting Gregg factors it relied It is worth that in the Court meaningful appellate safeguard way step the further of dictum its first toward the took “(w]here 428 U.S. at requirement, saying, review is available....” the sen- Gardner (plurality). tencing authority required specify the S.Ct. at 2935 relying Roundup reads these cases when it states that in all that he was on the bur- of them trial failed to discuss glary denying as the basis for Coleman his dealing person- a defendant’s statutory mitigation “factors in credit under subsec- judge history by (1) al considered the but re- having any prior tion for not —credit short, In jected.” 457-58. Maj. op. Findings, at criminal convictions. In the the respect majority simply the errs both with judge declared: facts. The issue to the law and the wheth- only The ap- other criminal act which sentencing er the court must discuss miti- pears in the trial record in this cause is gating relating circumstances to character aggravated burglary the of a home in background presented was neither nor Montana, Roundup, guns where certain any these cases. considered of by were stolen the defendant and Robert July Nank on By 1974. of sum, constitutionally required reason the In it is foregoing, mitigation the credit in al- judges impose decide to the death who by 95-2206.9(1) lowed Section penalty specific findings ap- on the is not make miti- propriate gating presented. to this defendant. Mont, II, Reprinted in Coleman

b. Consideration the (Shea, J., 605 P.2d at 1050 dissenting). Unadjudicated Offense In the judge conclusions the was more equivocal. (i) He stated: Introduction That the only mitigating circumstance The trial court’s decision to order Cole- technically present in this cause is that part man’s execution was based on its the defendant history has no record assumption that he had committed an unad- prior activity. criminal judicated impor- offense. Because of the Mont, “quality” Reprinted II, tance of the of the information sentencer, by capital on (Shea, J., relied Gardner v. 605 P.2d at 1051 dissenting). Florida, 430 U.S. at 97 S.Ct. at 1205 reading reasonable of the two (plurality), and of the centrality because statements is judge that the concluded that capital the defendant’s record sentenc- whether or not technically Coleman had a ing, permit the Constitution does not the clean record unadjudicated the offense capital rely unadjudicated sentencer to deprive served to him mitigation offenses. penalty Coleman’s death should credit he would otherwise have received. be reversed for this reason alone. More- import The clear sentencing the over, unadjudicated the use of the offense judge’s findings written and conclusions is judge the in this case violates the notice not affected the fact that after counsel requirement process of the due clause. argument read his oral into the record the judge findings mischaracterized his own (ii) Judge Based Coleman’s Sentence and conclusions. In his comment made Unadjudicated Part on an Offense just prior reading judg- sentence and During trial, cross-examination at Nank judge ment directly contradicted his day declared that on the of the Harstad findings. written He said one miti- “[t]he murder, participated Coleman had with him gating circumstance is that the defendant burglary Roundup, a home in prior has not to this time been convicted of Although sentencing Montana. court’s any felony but in view of the enormity of statements are contradictory, somewhat committed, the crime and the Court’s feel- that, seems reasonably clear as the Mon- ing that this one circumstance does not found, tana judge based aggravated overcome circumstances, I impose decision to the death have findings effect, made to this written partially on allegations Nank’s other —in findings required by [emphasis the law words on unadjudicated offense. fact, his “written findings” added].” findings In the portion “Findings, similarity bore no to his description oral Conclusions, Judgment Order”, them. did not make written sentencing judge declared unequivocally findings mitigating that the circumstance Thus, Supreme Court the Montana cir- aggravating by the outweighed unadjudicated of- acknowledged that he found contrary, theTo cumstance. one deprive Coleman of the under served to existed fense circumstance sentencing As mitigating factor subsection. other subsection accurately thereby ex- elimi- to exist Supreme Court found otherwise Montana that, found it, sentencing judge under only consideration nated the plained outweighed de- approach, could Roundup incident court’s have and therefore record prior per- aggravating clean factor and fendant’s overcome (1) mitigation credit spared. subsection life to mitted Coleman’s Mont, II, at 185 Coleman afforded. not be im- judge the Any as to whether doubt Thus, judge the 1019-20. P.2d at 605 mitigation credit Coleman properly denied mitigating circum- was no there found unadjudicated offense the of an on basis aggravating weigh against the stance of the defendant. decided in favor must be circumstances, these Under circumstance. For, “risk the supra, even the as noted [of] penalty became the death imposition of being imposed spite in of penalty death mandatory. less severe may call for a factors which sentencing judge’s writ- the review We incompati- unacceptable is and penalty ... his and not findings and conclusions ten Eighth and of the the commands ble with Hong we said As statements. oral Lockett v. Amendments.” Fourteenth States, “the when court] [trial United at 2965 Ohio, at findings of detailed and enter[s] make[s] (plurality). law, of the we are and conclusions fact wholly unadjudicated, and The use not, not, should need that we view uncorroborated, served to de- offense here state- court’s appeal, review ... [the oral] for lenien- of his chance prive Coleman Cir.1966). (9th 116, 120 363 F.2d ments.” judge the of that offense cy. On the basis Co., Shipping v. Exxon E.E.O.C. See also mitigation credit he denied him the Cir.1984) (“to (5th the 967, 974 F.2d 745 as a result otherwise have received from statements court’s extent [trial] Un- prior criminal record. of his of a lack findings its formal conflict with bench statute, this tantamount der the was them”); conclusions, do not consider we as a defendant with a classifying Coleman Towing, v. Belcher Tug Barge & Harbor criminal activi- history prior “significant (“The (11th Cir.1984) 3 827 n. 733 F.2d light important, ty.” more Even by his off-hand judge was not bound trial rulings, with- it left Coleman court’s other error, re- In its search remarks. mitigating circumstance statutory out findings formal viewing court looks imposition of the death made conclusions_”); Washing- v.White mandatory. Supply System, Public Power ton (9th Cir.1982) (“the F.2d 1289 n. Relying on (iii) Unconstitutionality of find- is that the formal of this circuit rule Unadjudicated Offenses supersede the ings of fact conclusions decision”). oral v. New majority relies on Williams L.Ed. York, Supreme Court found The Montana (1949), support contention of its sentencing had considered court punishment capital in a sentencer that the it, and, burglary on account Roundup uncharged and untried rely on case for his mitigation credit gave no case, majority tells In that offenses. II prior no convictions. record con- us, upheld trial court’s Court “the did “the Court consider District states sentence, sideration, imposing defendant’s circumstance allegedly commit- burglaries thirty of some but concluded of a criminal record lack defendant, though he had even ted was offset evidence circumstance crimes.” these convicted of not been burglary on had committed defendant Maj.Op. rape at 459 day kidnap, (citing and homicide same Williams v. New Mont, 1081). York, S.Ct. at at P.2d occurred.” closely than in 1949” when Williams however, Supreme more Gardner, In approach un- decided. rejected the expressly Court explained its derlying Williams. mentioned, Because, already the Su reasons: capi repeatedly has held that preme Court case the Williams In when sentencing generis, the admissi tal sui dif- decided, constitutional significant unadjudicated crimes bility of evidence penalty and the death ference between hearings ordinary sentencing is not dis- had been for crime punishments lesser Compare positive here. United State by this At recognized Court. expressly Cir.1986) (9th (per Hull, cu 792 F.2d 941 that after a assumed that time the Court upon riam) (imputed properly relied thefts capital of a of- convicted defendant was sentence).37 noncapital determining We offense, a trial fense, any other like impression first must decide as a matter of impose complete discretion judge play can unadjudicated offenses whether prescribed limits any sentence within impose the death any role in the decision to long as the legislature. As by the light process penalty. of the strict due limits, stayed within those requirements has essentially unreviewable discretion was sentencing, I imposed capital on believe remote, of error was possibility and the may so that such offenses not be used. if, indeed, all. the inter- it existed at two consti- vening years there have been in tells us that death Gardner require us developments which tutional cases, given must to the “consideration be capital-sentencing to scrutinize a State’s quantity, quality, as well as the closely than was neces- procedure more sentencing judge information on which the sary in 1949. may rely.” at 359. In Zant v. Id. Ste- Supreme that the (plurality). phens, 1204 Court held 97 S.Ct. at 430 U.S. at rely upon developments capital that the court was sentencer could evidence The two (a) recognition prior referring were of criminal convictions. 462 U.S. at punishment 886-87, Supreme kind of 103 at 2748. The “death is a different S.Ct. may by imposed Court, noted, however, in accuracy from other which that the of (b) acceptance country” unchallenged all evidence at issue was sentencing process, “that the as well prior notion pointed out that reliance on a itself, satisfy require- as the trial must might conviction that was “uncounselled” Process Id. at ments of the Due Clause.” require setting noncapi- aside of even a 357, 358, at 1204. 97 S.Ct. my tal sentence. at 886 and n. 23. In Id. view, unadjudicated evidence of offenses is reliance objection to the sentencer’s quality required capital in not of the sen- burglary is alleged Roundup on the based tencing prejudice and causes undue rests, process clause and on the due defendant. The use of such evidence runs capital pun- great part, the notion that on principles pro- afoul of the “fundamental of unique ishment is a and an ultimate sen- cap- applicable cedural fairness” that are Thus, use of majority’s tence. sentencing proceedings. ital Presnell v. rejecting as a Cole- Williams basis 235, 236, is, view, appropriate. Georgia, 439 U.S. 99 S.Ct. my man’s claim (1978). Moreover, given 207 Gardner, 58 L.Ed.2d As the “two constitutional de- significance velopments constitutional that attaches to require ... us to scrutinize sentencing procedure capital capital state’s defendant’s criminal record or [the] course, cases, noncapital noncapital 37. Of even in the sen- these more lenient standards could underlying pro- “facts justify sentencing judge’s tencer must find that the on the reliance reliability sufficient indicia of of the in- vide[ ] ference that puted Roundup burglary. point At no did the court committed im- [the defendant] [the "satisfy itself that the defendant in fact commit- Hull, United v. 792 F.2d offense].” States question.” judge simply ted the acts in Id. Dowdle, at See also Brothers v. F.2d assumed that Nank's uncorroborated and dubi- (9th Cir.1987) (“the court must satis- allegation be relied on ous was true and could fy itself that the defendant in fact committed the ordering execution. as a basis for case, question”). present acts In the not even (1979) (introducing, capital Shuman, 107 279-81 at the v. lack thereof — Sumner Brown, sentencing phase, evidence of 2721-22; an unrelated at California Oklahoma, murder, defendant neither 839; for which Eddings v. at 874-75; convicted, process); tried nor violates due 110-12, Lock 102 S.Ct. at U.S. at State, (Fla. 604-05, at Provence v. 337 So.2d Ohio, 438 U.S. at ett v. (state 1976) statute intended to meet the v. North (plurality); Woodson 2964-65 303-04, Carolina, requirements “excludes the Furman (Stanislaus) possibility considering mere (plurality); Roberts arrests 2990-91 Louisiana, aggravation”). 96 S.Ct. at 3006 428 U.S. at accusations as factors states, number, minority not allow the sen (plurality) Only should two — we unadjudicated authority rely tencing adopted contrary People has view. See assessing Balderas, 144, 204-05, that factor. offenses when 41 Cal.3d Cal.Rptr. 184, 219-20, 711 P.2d 515- Pennsylvania Supreme took Court (Cal.1985) (uncharged crimes approach enlightened a clear-cut and deciding impose used in whether to spate us. Even before issue before State, penalty); Milton v. 599 S.W.2d cases defin- States United (Tex.Crim.App.1980) (upholding on the ing the constitutional restrictions unadjudicated [capi “use of offenses at the highest penalty, of the death imposition However, punishment phase”). in both tal] already conclud- Pennsylvania court of minority required states it is that the unad- ed: judicated proved “beyond offense be a rea capital case a man’s life is at In a where previously No court has sonable doubt”. stake, pen- imperative that the death it is held, here, majority as does imposed only on the most reliable alty be unadjudicated offense can be established record, evidence. Prior convictions by a lesser standard. constitutionally valid admissions permit The states that have refused to meet this confessions of other crimes unadjudicated capital in use of offenses reliability; piecemeal testi- standard of barring cases have done so both in cases mony crimes for about other which [the their use in order to establish the existence yet has not tried or con- been defendant] aggravating of an circumstance and in satisfy this standard. victed can never precluding cases their use as a means of Hoss, Pa. Commonwealth depriving mitigation the defendant of cred- 283 A.2d Since then other minority it.38 The two states that have state courts have considered the issue and permitted in their use have done so cases majority, Pennsylvania, like have forbid- a prosecution sought rely which the on unadjudicated den the of offenses in use aggravating them as circumstances. See, sentencing. capital e.g., State v. Bar- While, view, my their use in either fash- 631, 633-40, tholomew, 101 Wash.2d constitutionally impermissible, ion is be- (1984) (admitting evi- P.2d 1082-85 cause of the difference in the allocation of uncharged unadjudicated dence or crimi- of proof deprive the burden of their use to activity process); due nal violates Scott v. mitigation clearly defendant of credit in is 235, 245-47, State, 297 Md. 465 A.2d egregious. far more (1983)(rejecting state-statutory 1135-36 grounds majority and federal constitutional the use Because the holds that the de- proof unadjudicated of of offenses dur- fendant the burden of as to the evidence bears factors, ing capital sentencing); existence of the sen- State v. McCor- 272, 279-80, mick, tencing upon unadjudi- reliance an 272 Ind. 397 N.E.2d court’s or, State, unadju- being outweighed in es- 38. In Scott v. a case in which the convictions manner, sence, "wiped dicated offense was used in the latter or eliminated. Because out” Appeals Maryland of of the Court reasoned significantly evidence was this inadmissible language remarkably pertinent here: accused, prejudicial to the its admission con- unadjudicat- ... the admission of of [evidence stituted reversible error. may ed mitigating well have resulted in the 252-53, offenses] at 1136. 297 Md. at 465 A.2d pri- circumstance of the absence constitute a phase acts of violence mitigation in the cated offense required prove continuing society. threat Rather Coleman was meant that that he the evidence that one or preponderance they require a determination by a In the end aggravating a crime. circum- particularized did not commit more he prove exists, his failure consequence including that the accused stances offense unadjudicated guilty was committed other crimes or previously has It is in all likeli- sentence. the death is was When murders. other effort has that no other court for this reason hood committed a prove that a defendant prior of a approved of the use heretofore particular crime on an earlier occa- where its existence unadjudicated offense sion, capital case that insisting in was, applicable under or nonexistence prior convic- proof only such statute, at- to a defendant’s state relevant tion not be unreasonable. mitigating circumstanc- tempt to establish here, however, prove not to effort es. had committed theft defendant] [the decision, Indeed, Autry v. jury or that he was a thief. Only circuit court one Cir.1983), Estelle, (5th ap already previous it con- 706 F.2d 1394 before two any support to the use of pears theft-type to lend victions for offenses. capital unadjudicated offenses cases. Autry, (emphasis sup- F.2d at However, it is clear on close examination plied). might one conclude about Whatever Autry supports posi that even Autry validity holding, clearly Autry, tion rather than the state’s. expressly has no relevance to cases distin- upheld the of evi Fifth Circuit admission guished. Perhaps important most of all reflecting jail dence “of records that [the concluding the Fifth Circuit’s caveat: charge felony jail on a defendant] open We do not here wide the door to on the afternoon of theft and was released proof of sen- extraneous offenses at the robbery [during capital of which tencing hearing. contrary, To the we Id. at 1404. also place].” See fense took use, wary particularly also are of their Procunier, Milton v. 744 F.2d capital case. La., (5th Cir.1984); Rault v. State Where, here, Id. at 1407. evi- (5th Cir.1985) (dictum). F.2d 135 n. 32 unadjudicated dence of the offense is that However, empha the Fifth then Circuit seeking escape offered a codefendant sized the fact that evidence was not “[t]he capital punishment, and where that evi- prove used in an effort to defend [the dence was not even relevant to the issue of committed the extraneous offense.” ant] punishment under the in statute effect at Id. at 1405. The court recognized but dis offered, see the time it was section infra tinguished the state court decisions con IV.A.3, particularly that caveat seems com- demning proof the introduction of of extra pelling. sentencing phase neous offenses in the capital cáse unless conviction been ob (iv) Notice State, Id. Provence v. (citing tained. denied, (Fla.1976), cert. sentencing judge’s The reliance on the

So.2d 783 U.S. (1977); alleged Roundup burglary presents 53 L.Ed.2d 1065 also Bartholomew, v. State problems pro- Wash.2d serious notice under the due McCormick, (1982); State though presentence 654 P.2d cess clause. Even the (1979)). N.E.2d 276 All investigation report alleged 272 Ind. refers to the upon by arguments relied the Fifth burglary, presumed the defense cannot be distinguish to these decisions are Circuit judge rely to have known that the would on distinguish equally applicable to allegation deny Nank’s uncorroborated present case: mitigation credit for his clean statute, record. pen- contrary, Texas the death To the the immediate-

Unlike the Florida, Washington, ly preceding hearing alty led Coleman statutes require alleged burglary do not Indiana determination to believe that the would accused would upon get that the commit criminal not be relied he would and that 1.; J., id. at 1674 (Powell, 1671 n. S.Ct. at having prior convic- mitigation credit concurring judgment). in the hearing, judge, During tions. investigation filing presentence upon D. Conclusion sig- “The declared: report, unequivocally mitigating relative to part view, of it sentencing procedures nificant my In has circumstances, the defendant is that constitutionally inadequate and re- were any felony prior to penalty been convicted quire never the death be vacated. charge.” deprived sentencing judge Coleman of right present argument regard- oral his Roundup burglary The mention imposed, ing the sentence to be failed distributed decision that was obligation constitutional comply with his no useful hearing afforded Coleman second contentions, and listen to the defendant’s majority’s state- notice whatsoever. to consider Coleman’s character and failed least, is, say the contrary ment to the addition, background. In he based his deci- hearing, let seconds before odd. Notice part constitutionally impermis- sion in on a has been distribut- the decision alone after consideration and failed to afford the sible proceeding ed, grossly inadequate. is charge adequate notice of a on defendant immediately after the distribution began was, part, All which his sentence based. decision. Coleman court’s errors, individually of these constitutional not have learned attorney well and his collectively, require a reversal of Cole- rely on the al- judge intended to capital man’s sentence. he read leged Roundup burglary until after event, any com- aloud. In the sentence THE DEATH PENALTY STATUTE IV. the deci- they could have made after ments Introduction A. unquestionably sion distributed supra discussion at have been futile. See challenges penalty death III.C.l. subsection he statute under which was resentenced applied on its face and as to him. He both Memphis Light, & Gas Water facially unconsti- claims that statute notice, Craft, held that imposes on the defend- tutional because general, “apprise the affected indi must proof on the existence of ant burden of, adequate preparation permit vidual circumstances and whether for, ‘hearing’.” 436 impending outweigh aggra- mitigating circumstances 56 L.Ed.2d 30 vating He also contends circumstances. (footnote omitted). principles These be post and ex process the due that both capital facto compelling all more come preclude resentencing under a clauses For, sentencing hearings. as mentioned enacted statute supra earlier, III.C.l, see con section convicted, tried, after he had been that defense counsel stitution demands under an earlier statute. With sentenced opportunity participate have the mean exception, that none possible one it is clear See Gardner ingfully hearings. such yet resolved questions of these has been Florida, at 1206 any circuit court. Supreme .Court or in this (plurality). The notice afforded case unadjudi- consider the that the court would Mitigating B. Burden on Cir- of Proof certainly adequate cated crime cumstances give clearly did not Coleman’s counsel an opportunity effectively. As in claims that the 1977 Montana to comment Coleman Gardner, sentenced to conclude that defend statute under which he was we should eighth and fourteenth process ant denied due of law when death violates the “was the defendant imposed, by imposing on the death sentence was at least amendments of proof on the existence part, on the basis of information which he the burden of mitigating and on whether opportunity deny explain.” had no circumstances sufficiently are sub- (plurality). 430 U.S. at 97 S.Ct. at 1207 such circumstances Carolina, Skipper leniency. See also v. South 106 stantial to warrant J., (Shea, Id. at unconstitutional.” 1977 death that the majority states statute, interpreted dissenting). in Fitz penalty (Mont. State, P.2d 1002 patrick v. failing My colleagues here also err only the 1981), the defendant imposes on consists of recognize that Coleman’s claim of not the burden production, of burden First, complains that parts. two n. 5. How Maj. op. at 445 persuasion. him unconstitutionally forces the statute In says. ever, Fitzpatrick is not what that evidence, by preponderance prove, Supreme Court the Montana Fitzpatrick, mitigating circumstances. existence of penalty statute 1977 death that the decided Second, the statute contends that both the burden defendant imposes on the on him the process by placing violates due persua of the burden production and of capital punishment proving that of burden placed first opinion The court’s sion. penalty appropriate is not the —that the defendant production on of burden sufficiently mitigating circumstances are bring forth the evidence him “to requiring leniency. These two to call for substantial mitigation.” question pertinent I separately. should be addressed issues opinion not end 1013. The did P.2d at them in reverse order. will discuss The defendant point, however. that sentencing court is re- question that, the 1977 death under claimed stat- quired to answer under the Montana scheme, required prove that his “he was mitigating circumstances are ute—whether spared, the burden be because life should leniency sufficiently to call for substantial mitigation.” him to show Id. rests on posed in nature to that under a —is similar Supreme responded Court un Montana statutes —whether number of other states’ undoubtedly “The statute equivocally: mitigating outweigh the to show places the burden on the defendant cases, In the issue aggravating ones. both spared....” Id. his life should be that party should bear the burden which way, under the Montana stat Put another proof question on the ultimate ute, prevail on the issue of order —whether in the record the facts and circumstances must capital punishment, the defendant court, properly construed and before the mitigating cir prove both the existence evaluated, for life or for warrant a decision and that the circum cumstances Surprisingly, death. outweigh aggravating circum stances party should yet has not decided which stances, i.e., they sufficiently are sub burden, although some members leniency. in bear As stated stantial to call in their view the have made it clear that majority Fitzpatrick “The the dissent: [in ] requires placed on Constitution that the statute does shift bur admits odd, prosecution.39 Equally no circuit persuasion, but holds that it is not den of language implicit that that In the cases on which certiorari has been Marshall concluded ly imposed far, said, the defendant the burden of on sought thus the state courts have not proving spared. that his life should be He said Montana’s, the burden on the as did rests Maryland placed on the that because the defendant question” statute Nevertheless, in his dissent from defendant. proving burden of "the ultimate cases, the denial of certiorari in one of those should be va Thomas’ death sentence Marshall, joined by Maryland, Justice Thomas v. cated. 470 U.S. at subsequent 105 S.Ct. at 1856. Brennan, underlying Justice addressed the is- cases, argued Marshall Justice mind, sue, saying: my "To the Constitution re- language impermissibly of the statute shift proving quires that the State bear the burden of though nonpersuasion ed the risk of Maryland even appropriate given that a death sentence is in a Appeals by held Court of then had U.S. case.” 470 85 L.Ed.2d impose the that the statute does not burden J., (1985) (Marshall, dissenting from denial proof Maryland, defendant. Calhoun v. cert.). Stebbing Maryland, See also 469 — —, U.S. 94 L.Ed.2d 528 906-07, 83 L.Ed.2d J., (1987) (Marshall, dissenting from denial J., (1984) (Marshall, dissenting 212 from denial — —, cert.); Huffington Maryland, v. U.S. Thomas, cert.). though Maryland In even of 3315, (1986) (Marshall, 106 S.Ct. 92 L.Ed.2d 745 Appeals party Court of had not decided which J., cert.). dissenting Gacy In v. from denial of persuasion, penal- bore the burden of Illinois, the death argued Justice that a statute Marshall ty required capital statute that the sentencer ”impos[ed] which on the defendant the burden mitigating determine adducing mitigating whether circumstances evidence ‘sufficient’ outweighed aggravating Justice circumstances.

511 prisoner sentenced definitively on the to be executed is spoken yet has process guarantee, question.40 afforded that will humanly possible, much as is that the sen- that, capital cases Consti- I believe whim, imposed passion, tence is not out of prosecution to bear the requires the tution Eddings v. Okla- prejudice, or mistake.” issue nonpersuasion on the ultimate risk of homa, 104, 117-18, 869, 102 455 U.S. S.Ct. question whether death —on the of life or J., 878, (O’Connor, 1 71 L.Ed.2d con- for, mitigat- leniency is called whether curring). particular case are in a circumstances substantial, they out- sufficiently whether exacting standards, my Under these Be- weigh aggravating circumstances. view, may constitutionally the state extraordinary nature of the cause of the impose proof on defendants the burden of overwhelming penalty, there is an capital issue in the on the ultimate sentenc- reliability in the determination “need for ing proceeding. requires The Constitution appropriate punishment death is the “state courts consider all relevant miti- [to] v. North Car- Woodson case.” specific gating weigh against evidence and 2978, olina, 96 428 U.S. S.Ct. aggravating evidence of the circumstanc- (foot- 2991, (1976) (plurality) 944 49 L.Ed.2d Oklahoma, Eddings v. 455 U.S. at es.” Shuman, v. omitted). Sumner note In 117, comparative 102 S.Ct. at 878. This Supreme recently underscored once Court weighing aggravating mitigating heightened reliability demanded again “the important factors is the most determination Eighth Amendment in the determi- by the deciding make in a defend- courts whether penalty appro- is nation whether the death may ant shall live or die. fact it be the priate particular case.” 107 S.Ct. at important peri- most decision courts make — Georgia, 428 Gregg v. (1987) (citing 2720 Certainly, the sentencer od. should not 189-95, (opinion 96 at 2932-35 U.S. at S.Ct. against question so crucial a resolve Stewart, Powell, Stevens, J.J.); prosecution defendant unless the has car- Florida, 252-53, v. 428 U.S. at 96 Proffitt persuasion. impor- ried the burden of It is Texas, v. (same); Jurek at 2966-67 S.Ct. tant to note here that the (same); 271-72, 428 96 S.Ct. at 2956 U.S. has the decision as to wheth- characterized Carolina, v. North Woodson 428 U.S. at mitigating such as to er circumstances are 303-05, (plurality opin- 96 at 2990-91 S.Ct. Louisiana, warrant imposition of a life rather than a (Stanislaus) Roberts v. ion); type drawing “line 333-35, death sentence as the 428 U.S. at 96 S.Ct. at 3006-07 commonly required of a factfinder (plurality opinion)). go therefore must We Florida, extraordinary 428 U.S. “to measures to ensure that a lawsuit.” Proffitt 1086, imposition’ Lucas, (5th Cir.1982), 'preclude penalty of the death F.2d 1106 uncon- 677 1886, stitutionally 910, "plac[ed] on the defendant the bur- S.Ct. 76 cert. denied 461 U.S. 103 proving appropriate den of his that death is not (1983). L.Ed.2d 815 In both cases the courts 1037, particular case.” 470 U.S. 105 S.Ct. place held that the statute invoked did not J., 1410, (Marshall, (1985), L.Ed.2d dis- suggest on the defendant. While both burden cert.). senting noting from denial of It is worth may required produce be that the defendant language Gacy that the of the Illinois statute in mitigation, suggests neither that the evidence in here, challenged is similar to that of the statute persuasion weighing aggra on the burden courts, case the but in that Illinois unlike Mon- vating mitigating circumstances tana’s, had not made it clear that the burden the defendant. The two Eleventh shifted to Illinois, falls on the defendant. See also Jones v. majority cases cited do not stand Circuit 920, 287, 464 U.S. 78 L.Ed.2d 264 proposition for that either. Both address the J., (1983) (Marshall, dissenting from denial of entirely question prosecu different whether cert.). beyond-a-reasonable-doubt tion should bear a 40. The Fifth and the Eleventh Circuits have de appropriateness pen of the death burden on the involving cided cases claims defendants that Strickland, alty. 707 F.2d Foster v. unconstitutionally placed a death statute denied, (11th Cir.1983), cert. persuasion on them the burden of on whether (1984); Ford v. 80 L.Ed.2d 847 outweighed ag the gravating Strickland, (en banc) (per F.2d 817-18 Songer Wainwright, ones. 733 F.2d denied, curiam) (11th Cir.1983), cert. (11th Cir.1984). denied, cert. 78 L.Ed.2d (1985); Gray 83 L.Ed.2d 809 512 2954, 2965, 57 586, 605, L.Ed. 98 S.Ct. L.Ed.2d U.S.

242, 257, 49 96 S.Ct. Texas, (1978) (plurality). 2d 973 v. 428 also Jurek See 913 2950, 2958, 275-76, 49 U.S. opinion purports to estab majority thus, question, is (1976). The L.Ed.2d validity by of the statute facial lish the allocation of the proper the one as to which Supreme citing wholly inapplicable great impor- persuasion is of of burden Florida, 242, 96 v. 428 U.S. cases — Proffitt v. Strickland Wash- generally tance. See (1976) and Jurek 2960, 49 L.Ed.2d 913 S.Ct. 668, 686, ington, 466 U.S. Texas, (1984) (“A capital L.Ed.2d 674 uphold which L.Ed.2d 929 —cases a trial in sentencing proceeding that, [resembles] according to penalty statutes death the existence format its adversarial majority, impose a burden of the do not Spaziano decision....”); standards of prosecution. on persuasion the 447, 483, Florida, correct, however, majority Even were the (1984) (Stevens, L.Ed.2d 340 argument misses the mark. Por the the dissenting part J., concurring in suggest any of the majority does not capital sentencing (“In many respects part) places in these cases the statutes involved guilt, question the a trial on resembles burden, does, as Montana on the defendant. involving prescribed does a burden as it is, course, significant There difference through the proof given elements adver- simply allowing the court to re- between Here, the burden was process.”) sarial no allocation of solve an issue as to which wrong party. I believe that placed on the placing the the burden has been made and re- eighth fourteenth amendments the Proffitt, In burden on the defendant. spared life be quire that the defendant’s validity of a Court considered facial arguments on the evidence or when penalty specify statute that did not death mitigation aggravation are balance. party persuasion bore the burden of which does not allow the risk of The Constitution mitigating as to factors. There is no men- individual, on the side of error to fall on the tion in of where the burden rests Proffitt Rather, risk must be death. bom any sugges- under state law. Nor is there state, by urging execution. those opinion tion in the that the normal burden making judgments proof such should principles more crit- These become even be, was, under stat- reversed the Florida as Montana’s re- ical when statutes such event, petitioner ute. In did not quire sentencing judge impose imposed complain that the burden was penalty aggra- if death one of a number him, Court, unsurprising- and the vating present circumstances is and the ly, did not discuss the issue. mitigating circumstances are not sufficient- leniency. ly substantial to call for Under reliance on Jurek majority’s equal- those circumstances the sentencer does not Jurek, ly misplaced. the statute re- have the ultimate discretion to determine quired jury to answer the affirmative independently appropriateness of the questions imposing three the death before penalty.41 Its death evaluation rela- penalty. question second was: “ weight mitigating aggravat- tive probability ‘whether there is a is the sole determinant circumstances defendant would commit criminal acts of penalty im- of whether the death will be continuing violence that would constitute posed. Since the outcome be deter- society threat ...’” party mined has the burden of interpreted which S.Ct. at 2955. Texas has proof, requiring can be little doubt where that jury there statute as to consider Ohio, See Lockett v. mitigating lie. burden must circumstances under this second sentencing authority capital sentencing, supra states allow the if 41. Other see note "even impose vating aggra- jury aggravating if a life sentence even it finds that finds that circumstanc- circumstances, outweigh outweigh mitigating es it is instance, Mississippi penalty.” required impose For under the factors. the death Lucas, Gray statute involved in the Fifth Cir- 677 F.2d at 1106. case that discusses burden cuit allocation in

513 required determining is when must standard jury the the statute Under question. penalty should be im- beyond a a death proved whether has the State “that find In to each at 1195. Harris we held posed.” the answer Id. doubt that reasonable Thus, yes”. is Id. statute was not uncon- questions penalty that a death three matter, statute, practical impose a simply as because it did Texas stitutional the albeit indirect- prosecution, proving of imposed prosecution on the the burden on the beyond a reason- proving of aggra- ly, burden that the beyond the a reasonable doubt mitigating factors were the that doubt vating outweighed able the miti- circumstances from defendant exclude to not sufficient holding in gating The Harris does ones. that constituted individuals category of the present- question the not address or resolve Moreover, society. continuing threat prosecution or ed here: whether the de- carefully Jurek, Profitt, in the Court as in persuasion on has burden of fense jury’s or- similarity between the noted mitigating circumstances whether out- in its task factfinder and dinary as a task weigh aggravating circumstances.42 More- required to questions it was answering the Jurek, over, Harris, in as in Proffitt capital punishment Texas under the answer allege that the risk the defendant did not 275-76, at 96 S.Ct. 428 U.S. at statute. unconstitutionally imposed himon likely from this It seems (plurality). 2958 opinion in the of there is no mention where not have the Court would observation nonpersuasion the risk of rests as matter of to shift burden permitted Texas of state law. majority con- The to the defendant. proof regarding second claim in says it Jurek sequently errs when proof issue is that the 1977 burden of impose on the state did not the statute unconstitutionally imposed penalty statute mitigating prove the absence of burden persuasion of on the on him the burden op. Finally, 446. Maj. circumstances. mitigating In of circumstances. existence proof of the burden Jurek, Proffitt, as in Ohio, Supreme Court failed Lockett v. petitioner neither raised issue was question to reach the of constitutionali- by the court. nor decided ty “requirpng] defendants bear the of Pul also majority The invokes Harris the existence of nonpersuasion of as to risk Cir.1982) (9th (per cu F.2d 1189 ley, 692 capital mitigating cases.” circumstances 465 riam), grounds, U.S. rev’d on other n. at 2967 n. U.S. (1984), sup 79 L.Ed.2d 16.43 adequacy of statute. port the facial special I need reliabil- believe that However, is decided the different Harris is determining penalty the death ity in beyond-a-reasonable-doubt “a sue whether context, noncapital Patterson v. following In the New 42. Harris contains dictum: may require a defend York holds the state Supreme had for the intended If persuasion carry on burden of miti ant to vary death-penalty from cases burden presented gating as affirmative circumstances other criminal sen- burden in all the standard long do not as as such circumstances defenses tencing, said so in one of the it would have negate any elements of the crimi serve to dealing many with the death modern cases 206-07, nal offense. 432 penalty. See also Martin 53 L.Ed.2d curiam). (per Pulley, F.2d at 1195 Harris — U.S. —, Ohio, 94 L.Ed.2d presented question in Harris was whether (1987) (not impose unconstitutional sentencing, ordinary capital crimi- unlike proving burden of affirmative the defendant the sentencing, prosecution to bear a nal defenses, self-defense). including If the state proof. beyond-a-reasonable-doubt of burden may impose per on a defendant the burden quoted entirely is statement above not presented mitigating suasion on circumstances patent suppositious dictum that but constitutes defenses, may, certainly affirmative broadly. Supreme sweeps Court has far too case, noncapital impose burden on the the same making unnecessary pro- assiduously avoided during mitigating factors the sen existence of and has in death cases nouncements carefully However, tencing proceeding. su as discussed proper- limited its discussions to issues repeatedly dictum, Supreme held pra, the Court has Any guess, by way ly as to before it. capital punishment qualitatively something different why Court has not said therefore, and, must meet properly from other sentences the issue has not been before it is when by way just guess standards. that —a stricter constitutional dictum. sum, I that the Constitution believe burden of requires that appropriate imposing on defend- states from prohibits existence on the persuasion prosecution. persuasion rest on the on the exist- the burden ants mitigating circumstances mitigating circumstances as well as Consideration ence of part indispensable of ‘constitutionally mitigating “is a the circum- on the issue whether inflicting penalty of the process of the outweigh aggravating ones. In the stances ” — Brown, U.S. v. death.’ view, placed must be on my both burdens California 837, 839, 93 L.Ed.2d 934 —, 107 S.Ct. prosecution. Certainly that is the case the North (1987) (quoting v. Car Woodson placing the burden on the effect of where 304, at 2991 olina, 96 S.Ct. 428 U.S. require prove is to him to his the defendant mitigation of a The existence (plurality)). unadjudi- uncharged innocence of may very well be the deter circumstance also, Certainly, that is the cated offense. deciding whether or not to mining in factor mitiga- the case where the determination of punishment. The Constitu impose capital tion-aggravation issue mandates the an- tion, accordingly, requires that when the question the ultimate or swer to —life mitigating existence of a as to the evidence death. equipoise, in we decide the is circumstance capital the defendant.44 question in favor of Application the 1977 C. Retroactive of rule, general in this case Whatever Penalty Death Statute in allocated a manner that the burden was held, Supreme Montana’s Cole- patently unconstitutional. Because the is 1, 741-42, I, man 177 Mont. 579 P.2d at on Coleman to placed state burden mandatory penalty statute record, a criminal he prove the absence of under which Coleman was convicted and required prove that he had not originally eighth sentenced violated the unadjudicated offense testi- committed fourteenth amendments of the federal con- Nank, i.e., alleged Roundup fied to stitution. The court found the statute in- burglary, of burglary.45 On account rulings in consistent with the Woodson mitigation was denied credit Carolina, 280, North Thereafter, spotless his criminal record. (1976), 49 L.Ed.2d 944 Coker v. Geor- mitigat- found no other because 433 53 gia, U.S. L.Ed.2d circumstances, imposition of the death (1977), (Harry) and Roberts v. Louisi- mandatory. Placing penalty the bur- ana, S.Ct. L.Ed.2d respect to the Round- den Coleman was then resentenced wholly up burglary was inconsistent with presumption to death in 1978 under a new statute enact- of innocence which lies at system justice. years the heart of our of criminal ed two after his conviction considering poten- In his dissent from the Court’s denial of from sentencer such Stebbing Maryland, certiorari in Justice Mar- tially influential does evidence—as the statute argument compelling shall set forth a as to the by denying any weight to evidence if the de- unconstitutionality placing on of defendants the jury fendant does not convince the that a persuasion burden of on the existence of miti- by preponderance factor “exists” of the evi- gating circumstances: bar, law, dence—is to of a matter consider- mitigating factors set out in the statute [T]he ation of all evidence and influence they are not matters of historical are fact— Bddings. and thus to violate Lockett and legal judgment. of matters factors do not moral These only Such a result can "the risk that enhance "exist,” thus, unlike mat- imposed spite the death will be of fact, they easily ters of historical are not penal- factors which call for a less severe proved disproved. Each one rests on evi- Ohio,] ty.” 438 U.S. at [Lockett easily might dence that influence the conclu- (plurality) at 2965 [ ]. proper, sion that death is even if that evidence 900, 902-03, conclusively prove statutory does not miti- J., (1984) (Marshall dissenting L.Ed.2d 212 from result, gating As a the sentencer factor.... cert.) (emphasis original). denial of prevented considering any would be from of the evidence adduced in an to meet the effort III.C.2.b(iii) supra 45. See section for discussion proof, permits burden because the statute unconstitutionality considering unadjudi- proved by consideration preponderance of the factors capital sentencing proceedings. cated offenses in preclude evidence. To original sentencing. supports He contends that Coleman’s contention that the due process applicable retroac- clause here. these state’s application of new tive statute violates Dobbert, petitioner was convicted post and ex process the due clauses facto and sentenced under the pen- Florida death I Constitution. believe we are re- alty statute in effect the time quired on the to reverse basis of the due trial rather than one effect when he process clause. committed the petitioner crime. The there argued that his conviction and sentence Again, majority opinion glosses over post the ex violated clause. facto previ- an issue the Court has not Dobbert majority rejected the claim. ously decided. The Court has never con- The Court that a held defendant who had sidered subsequently-passed whether yet not been prosecuted tried could be penalty applied statute death be to sentenced penalty under death statute who have previously been defendants adopted he had after committed the crime tried, convicted, and sentenced under un- long as as the death penalty statute important, statutes. Equally constitutional effect at the time provided of the offense every as I am far aware that has court adequate notice of the severity of the of- permit considered the issue has to refused punishment fense and the that would be imposition capital punishment on de- meted out its commission. under such fendants circumstances.46 Respondent urges go now us to well Florida, Montana insists that Dobbert v. beyond Dobbert. Montana asks that we 282, 2290, 432 U.S. 53 L.Ed.2d 344 allow it to apply its penalty new death (1977), legitimates resentencing of Cole- retroactively statute not to individuals under its 1977 penalty man death statute. yet who have tried, not been but also to Dobbert may arguably While preclude individuals already who have subject- been objecting from resentencing to his trial, convicted, ed to and sentenced under post on ex grounds, in no way the former statute. The majority in facto Dob- process fact, his due invalidates claim.47 In bert expressly approve refused to such an language Dobbert there is strongly application all-inclusive of a subsequently Cardwell, 46. The courts of at least Knapp seven (9th states have so v. 667 F.2d 1253 Cir.1982) California, denied, 1055, People Harvey, Cal.App held. 76 rt. 459 U.S. ce 441, 445-49, (1982), (1978) 621 Cal.Rptr. .3d L.Ed.2d we decided that 889-92 defendants (on Idaho, tried and sentenced under an jeopardy grounds); Arizo double State v. penalty na death statute which unconstitu Lindquist, (1979) (on 99 Idaho 589 P.2d 101 initially interpreted by tional as the Arizona Su Nevada, post grounds); State, ex Meller facto preme post upon Court had no ex claim facto (grounds 94 Nev. 581 P.2d 3 not being subsequent resentenced under a and con distinguished); but Dobbert stated South Car reinterpretation stitutional of the same statute. olina, 285, 292-93, Rodgers, State v. 270 S.C. expressly We limited our discussion to the ex (1978) (on process S.E.2d 217-18 due post clause. We concluded that "[t]he facto Florida, grounds) and even source opinion Dobbert makes it clear that [the] distinc itself, Lee, Dobbert decision State v. 340 So.2d tion [between defendants tried and sentenced (Fla.1976) (on equal protection grounds). before the new scheme was in force and those attempted In these cases state to resentence tried and post sentenced afterwards has ex no] Coleman, people, already like who had been implications.” "Thus,” facto Id. at 1262. we previously tried sentenced death but to held, post problems "no ex facto arise even with whose sentences had been set At least aside. respect category to [the former of defendants].” gone two states have even further and have decide, however, Id. at 1263. did not We wheth apply subsequently passed capital refused to imposed er process the due clause con in the case statutes of defendants were who first resentence, attempts straints on a state’s un convicted and sentenced to death under uncon statute, penalty der a new death defendants who statutes, stitutional but were retried after consti originally were tried and sentenced under an capital punishment tutional statutes been penalty unconstitutional death statute. Illinois, Hill, People v. enacted. Ill.2d In view of the conclusion I reach under the (1980) (on statutory Ill.Dec. 401 N.E.2d 517 clause, process unnecessary due express any I find it grounds); Pennsylvania, Commonwealth v. Sto post as to view whether the ex facto (1981) (on ry, equal 497 Pa. 440 A.2d 488 provision precludes imposition also protection grounds). process and due penalty death on Coleman. Florida attached warning the gravity every and, supra, as stated statute enacted as to make question first-degree murder so has considered (with do so to him new statute application has refused of this Dobbert since course, of the Montana exception, of Facto Clause Ex Post consistent with the us). case before in the Supreme Court Constitution. of the United States assumption in Dobbert operating S.Ct. at 2302. could not statutes newly enacted distinguished itself thus Supreme Court pre- retroactively to defendants applied majority case. But the from our Dobbert prior under viously tried and sentenced sit- distinguish the Coleman simply did i.e., to individuals unconstitutional statute — equal Dobbert’s in order to answer uation articulated The dissent like Coleman. language of the claim. protection assumption: applying strongly suggests opinion prisoners on death hundreds Of the previously sentenced those Georgia, time of at the row [Furman have violat- the former statute under 2726, 33 L.Ed.2d 238, 92 rights. constitutional ed their resentenced (1972)], none was says, Dobbert state courts and death.... state [0]ur draw the line at obviously had to Florida the as uniformly acted on legislatures point those whose cases some between could be none of them sumption that in the progressed sufficiently had en subsequently pursuant to executed far solely by governed legal process as to acted statute. statute, with the concomitant old (Stevens, 309, 97 at 2306 penalty its death unconstitutionality of took the J., dissenting). The dissenters whose cases in- provision, and those has under which circumstances properly sub- could volved acts which para- as a to death resentenced now been punishment under new unconstitutionality ject tried to them and digm sig- nothing not is irrational There that Dobbert’s situation statute. show peti- nificantly relegate different. Florida’s about decision class, since the new to the tioner latter comparison rejected the majority of his at the time statute was effect trying to make but that the dissenters were fact, assumption. trial sentence. underlying not the then-justice Rehnquist, speaking for the According supplied). (emphasis Id. distinguished Court, the cir- painstakingly Court, that Dob- decided properly Florida as the presented by cases such cumstances yet reached tri- case—which had not bert’s from before us one al, sentencing, when the new stat- let alone dealing He did so with Dob- Dobbert. progressed not far enacted—had ute was protection equal contention that the bert’s exempt enough legal process in the to be required treat him that Florida clause Nevertheless, from the new statute. individuals who way same treated clear: implication in Dobbert is After convicted, tried, sentenced been had point legal case has reached a certain i.e., those who were under old statute — statute, process under the old state precisely position same as Coleman. may not order defendant’s execution those individu- Florida had all resentenced newly statute. under a enacted imprisonment. Anderson v. to life als surely one that case “had Baker, (Fla.1972); State, In re 267 So.2d 8 enough in sufficiently far progressed (Fla.1972). The Dobbert 267 So.2d solely by legal process governed as to be that Dobbert was emphatically stated Indeed, al- the old statute.” those sen- similarly situated to whose convicted, tried, and sentenced ready been He was neither commuted. were tences was enacted. More- the new statute Furman, when prior to nor sentenced tried over, unsuccessfully already he had filed only effect of the they, and were trial, stay of obtained a provide sufficient motion for a new statute was former highest play execution, appealed to the notions fair and violates the due process clause. legis- when the Montana court of the state penalty stat- passed the new death lature sentencing of Coleman under a death ute. penalty passed statute that was after his trial, conviction, original sentencing significant perhaps most about What is type arbitrary constitutes the state ac- majority’s statement is the Dobbert process tion that the due clause was intend- required to divide its death Florida was application ed to invalidate. Retroactive categories penalty cases into two —those the statute to cases like Coleman’s would processed under the new which could be instability tend create uncertainty. statute, possible penalty, with death as a impossible capital It would make it de- progressed too far for and those which had fendants to at the time of trial the know Any line-drawing by Mon such treatment. penalty nature of the death statutory category tana to define a of cases which they scheme under may ultimately which “governed solely by the old stat would be capital be sentenced. If defendants ute, with the concomitant unconstitutionali be sentenced under laws that have not been penalty provision,” ty of its death necessar passed trials, they time of their ily place Coleman’s case in that cate strategy must decide on trial and tactics gory. significant group other knowing any certainty without what progressed cases that had as far as Cole factors will be taken into account at the group man’s would be that of cases in time a court makes the final noncap- which the defendant had received a impose decision whether penal- the death initially ital sentence under the old statute. ty- cases, however, respect With to those application The retroactive of a new line-drawing required would be since the upon statute resentencing is not, defendants could consistent with the where, particularly unfair as is the case Clause, Jeopardy Double have resen- been here, the old and new statute cause tenced to death under the statute in new defendants to make different decisions re- any event. v. Rumsey, See Arizona garding strategy. trial tactics or In de- 203, 209, 104 2305, 2309, 81 L.Ed. fending Coleman, necessarily counsel relied (1984) (“[T]he Jeopardy 2d 164 Double capital punishment on the statute it then as prohibits Clause the State from resentenc- example, concerning existed. For decisions ing the defendant to death after the sen- trial, the evidence Coleman would offer at acquitted tencer has effect the defendant challenge, he evidence would and his penalty.”).48 of that appellate strategy necessarily were all af- Dobbert, then, “the effect of the fected the fact that Montana had a provide former statute was to sufficient mandatory penalty statute for the warning gravity of Florida attached to being offense on which he was tried. first-degree murder ...” Dobbert v. Flor- Thus, all that mattered to Coleman and his ida, 432 U.S. at during counsel the trial was the ultimate Here, the former statute had been relied jury guilt determination of or innocence on Coleman, him, applied every capital charge. degree culpabili- (save possible respect execution). his actual ty was irrelevant. Yet under the subse- abrupt The state’s invocation of the new quently degree enacted statute the of cul- against Coleman, statute after he had been pability highly sentencing is relevant to the originally tried and sentenced a dif- strategies under decision. Thus different procedure, clearly appropriate ferent contravenes fundamental tactics would be under conceivably process pur- 48. There could also be a few cases distinction can be made for due previously which had been reversed for reasons poses between those cases and Coleman’s. Sim- unconstitutionality other than the of the death ilarly, might there have been one or two cases penalty and in which the defendants were already in which the death sentence had been awaiting resentencing. retrial or No relevant on “someone it harmless falls current statutes.49 the former and prejudiced by it.” person than the other very another clear provided has California, 386 U.S. Chapman v. that re- type prejudice example of the 824, 828, 17 L.Ed.2d 705 change in law. At the time sulted from the Chapman, “the explained in As the Court penalty trial, mandatory death under rule original harmless-error common-law effect, no rea- Coleman had then in statute beneficiary of the put on the the burden pertain- evidence concerned about son be prove that there was no error either to aggravating circum- mitigating or ing to reason, errone- Thus, injury at the or to suffer a reversal he had stances. trial, challenge (footnote or rebut Nank’s judgment.” Id. ously time of obtained Roundup burglary, alleged story state, Coleman, omitted). Here, about deny it. When the simply to other than application benefitting from the retroactive applied to Coleman’s later 1977 statute was statute, has of the 1977 and Coleman testimony became crit- resentencing, that prejudice as a result of shown actual III.C.2.b(ii). supra subsection ical. See testimony denial of his statu- Nank’s —the tory mitigation might have suggest that for credit majority seems to succeed, retroactivity spared prosecution’s claim to bur- his life. It is the that the fact of the beyond he have to show would den therefore to show a reasonable burglary would not have been Roundup burglary that evidence of the doubt the trial or but disclosed at have come in even had Coleman not invited Nank at Coleman’s cross-examination testimony. prosecu- id. The Nank’s See maj. op. at 441-43.50 The ma- trial. See tion made no effort to meet this burden. imposing justification for jority offers no Instead, on Coleman. such a burden D. Summation that Coleman did have a motive stresses The 1977 death statute under testimony since Nank scrutinize Nank’s conflicting testified to ac- Montana has sentenced Coleman to and Coleman which day hanged murder counts of the events of the is unconstitutional both on its ample occurred and that Coleman also had applied face and as to him. The statute charges. opportunity to refute Nank’s Id. impermissibly imposes on the defendant colleagues imply seem to My at 442. persuasion to the exist- the burden of there no constitutional violation be- mitigating ence of circumstances and the suffered no substantial cause Coleman showing that the cir- burden applica- harm as a result of retroactive sufficiently cumstances are substantial to tion of the statute. compelled leniency. mandate It also Cole- prove man in this case to that he did not require Yet for the court to that Coleman unadjudicated commit an offense. Accord- proving carry the of that the evi- burden applied ingly, the statute on its face and as burglary of the would not have been dence process violates the due clause of the Con- questioning his of Nank introduced but for Furthermore, ap- stitution. the retroactive principle of contrary to a fundamental plication of who constitutional when there has been the statute a defendant law: error, tried, convicted, already to show had and sen- constitutional burden been Here, too, however, upheld appeal. retroactivity majority on dis- The considers this claim tinction is irrelevant. only post clause in terms the ex and facto context, process. arguments in the Its due sentencing judge in in fact included are, however, equally applicable, or for that findings culpability. degree a reference to Coleman’s matter, equally inapplicable process to a due entirely The reference was based majority suggestion claim. The offers no that it portions testimony brief Nank’s that Cole- evidentiary any believes the burden would be particular challenge man had no reason to or to upon post different for based the ex claims facto special significance during attach trial. upon process. clause and those based due Roundup burglary 50. The was mentioned presentence report, only but because Nank’s testimony. Eighth and Fourteenth independently demands prior to its enactment tenced — Maryland, v. Amendments.”); Booth provision. Ev- that constitutional violates 2529, 2532, U.S. —, 96 L.Ed.2d previously considered S.Ct. has ery court ‘individ (1987) (“a jury In the case of Cole- must make has so held. the issue stat- man, application of the of whether the de ualized the retroactive determination’ executed, his death unfair since particularly question should be ute was fendant part on significant was based character of the individual sentence based on ‘the ” no reason to believe testimony (quot that he had crime’ the circumstances of the intro- Stephens, any significance when it was Zant v. was of 462 U.S. 2733, 2743, (1983) former statute at the time under the 77 L.Ed.2d 235 duced (Stanis reasons, Roberts original)); For all these Coleman’s (emphasis of trial. laus) Louisiana, be vacated. should 3001, 3006, (1976) (plu S.Ct. 49 L.Ed.2d AND V. CRUEL UNUSUAL (“Lack rality) of focus on the circumstanc CLAIM PUNISHMENT particular offense and the charac es propensities of the offender” con ter Extraneous Factors Arbitrary A. vice.”); Jurek “constitutional stitutes II, par- As discussed section Texas, 262, 274, 428 U.S. murder was not ticipation in the Harstad (1976) (Sen (plurality) 49 L.Ed.2d 929 of his significantly different from that tencing authority must concentrate on “the respect to Nank. With white codefendant particularized circumstances of the individ character, aspects of their the relevant the individual offender be ual offense and record, criminal background, and death.”); impose fore it can a sentence clearly deserving candidate for a more 153, 199, Gregg Georgia, view, my leniency than Nank. While (plu 49 L.Ed.2d 859 prose- question little that the there can be (Sentencing authority rality) must “focus during plea bargaining cution’s conduct particularized on the circumstances of the strong inference of racial discrimi- raises defendant.”). crime and of the nation, part of the purposes of this Supreme recently vacated a Court arguendo analysis I assume that race will eighth as violative of the death sentence part in the state’s decision-mak- played no per- amendment where the sentencer was assumption, Even under that ing process. factor, an extraneous mitted to consider however, penalty on imposition of the death Impact The Court Victim’s Statement. arbitrary, and reversal of Coleman was said: eighth required by sentence is fourteenth amendments. never said that the de- While [we have] record, characteristics, and the fendant’s has stated that “it is of the crime are the importance of vital to the defendant and considerations, permissible impose community decision requires consideration state statute that be, be, appear sentence the death of other factors must be scrutinized caprice or on reason rather than based some ensure that the evidence has bear- Florida, emotion.” Gardner v. respon- ing “personal on the defendant’s 1197, 1204, 349, 358, 97 S.Ct. 51 L.Ed.2d guilt.” Enmund v. sibility and moral (1977) (plurality). decision must be Florida, 782, 801, 102 S.Ct. individualized; it must rest on the “rele (1982). 73 L.Ed.2d facets of the character and record of vant — —, Maryland, the circum Booth v. individual offender [and on] 2529, 2532-33, offense.” Wood S.Ct. particular 96 L.Ed.2d 440 stances Carolina, North Booth (emphasis original). in As makes son v. 428 U.S. at Shuman, 2991; clear, see v. permit the Sumner the Constitution does not S.Ct. (“[A] impose penalty on the departure from the indi state to the death capital-sentencing of considerations unrelated to the doctrine is not basis vidualized ‘personal responsibility and justified and cannot be reconciled with the “defendant’s might attach of voluntariness intro- or lack Permitting the guilt.’” Id. moral by The state guilty plea Coleman. any sen- into the factors extraneous duction of a factual plea his would lack unacceptable argued that tencing process “creates voluntary be- basis, not be sentencing decision that it would capital risk that inno- secretly he was arbitrary capricious he still believed and cause in an made will be Shuman, subject to cent, plea would Id. Sumner manner.” in claim by quoting a he could later point being set aside because reinforced solely by from Jus- his fear of the following passage motivated he was footnote the he could by his penalty concurrence or belief tice O’Connor’s California fair, nondiscriminatory trial. The get a v. Brown: not guilty plea complained that a state also reflect the belief Eddings and “Lockett had Coleman directly relat- unreliable because would be should be punishment prior amytal test the crim- a sodium culpability of undertaken personal ed to the had Thus, im- defense counsel pleading, the sentence because inal defendant. stage incompetent, should reflect and because claimed to be posed at the response previously requested to the de- and reasoned moral Coleman a background, granted change character of venue. Assum- fendant’s been crime.” that these contentions arguendo rejection the state’s of Cole- justified have (quoting n. 5 at 2723 107 S.Ct. California pro- its insistence that he plea man’s J., (O’Connor, Brown, at 839 trial, no circumstances jury ceed to a under original)). concurring) (emphasis any as a basis for a could of them serve jointly respon persons are two Where by the state that should decision Coleman crime, carefully exam for a we should sible might plea That be unreliable die. execute one that a decision to ine claim re- involuntary, and even that a trial was improper on life is based spare the other’s prove guilt, is not a quired in order to Here, the decision iderations.51 cons that Coleman should be ordering defendant’s proper reason for rather executed are “whol- execution. Such considerations noncapital sentence was than afforded a of a ly unrelated to the blameworthiness un large part on considerations based Mary- particular defendant.” See Booth v. record, to his character back related land, 107 at 2534. degree culpability. ground, or to the ways. I conclusion in two One reach this “major” reasons for In addition to its by examining given the reasons charges, seeking try capital on throughout process which it state conten the state mentioned two additional should be exe determined point weakly suggested It at one tions. by comparing The other is the facts cuted. culpable the more de that Coleman was relating to Coleman’s suggestion press that fendant. It did not respect apply with case with those that pretrial proceedings and does not Nank’s. brief before us that Coleman contend its Moreover, culpable was more than Nank. offered several reasons for its state per capital proceedings my independent of the record pursuing review insistence wholly of the state’s suades me that the contention was in Coleman’s case. Most alleged unreliability unmeritorious.52 reasons related judgments proposition saying general and the individual 51. This is far different from cases readily justify are identifiable and reviewable. that the state must its conduct on the general proportionality basis of a Com- review. Harris, decision, Pulley pare said that 52. In his dominating influence and the 79 L.Ed.2d 29 General statistics Coleman was the adequately explanation He offered no reflect the individual decision maker. various judgments properly surprising part statement. The court’s made as of the exercise this rather hand, strong prosecutorial wholly is at odds with the of unequal discretion. the other conclusion On during pretrial pro- may capital comments it made both ceedings treatment of codefendants regardless prosecution’s any general propor- occur tionality study and at the close what testimony, listening respect After to Nank’s show to other case. willing cooperate also advanced a more substan- with law-enforcement state pro- during plea bargain tial contention bargaining authorities. Were such a tool ceedings, important one that raises an is- available, the state would be unable to capital punishment. respect sue with prosecute many perpetrators of serious The state claimed that Nank had confessed crimes whom it is now able to convict. plea crime and entered his some time Moreover, I technique believe that expressed willingness before Coleman respect must be capital available with Although the fact that one de- to do so. noncapital well as offenses. The differ- begins cooperate may justi- fendant first ence, suggest, I only capital is sentences, fy leniency, disparate and thus cases, equally culpable when an or more cases, noncapital I believe that a decision culpable spared defendant is to be execu- person may to execute a not constitutional- tion, then the any life of codefendant of ly Again on that circumstance. be based spared that offender must also be unless impres- we are faced with an issue of first prosecution can demonstrate that there again proceed sion and we must from the particular relating are factors to the code- premise capital punishment singu- is background, fendant’s history, or character larly punish- different from other forms of justify that would impose a decision to ment. The fact that a defendant offers to death sentence on him alone. plead at a later date than his codefendant Supreme Spaziano bears no relation whatsoever to the crimi- Court said in aggra- nal conduct involved or to the other “If Florida: a State has determined that vating circumstances that death should an penalty available may properly the court consider. Conse- crimes, certain then it must administer that quently, my opinion, if the state decides penalty way properly that can distin- whom to execute on the basis of which guish between those individuals for whom first, person began cooperate imposes appropriate death is an sanction and those arbitrary the death in an manner for whom it is not.” 468 eighth that violates both the and four- also Mary- See Booth v. teenth amendments.53 land, 107 S.Ct. at 2534. When the decision Admittedly, to execute there are valid reasons for Coleman is viewed in the context offering leniency Nank, to defendants who are of the life sentence by received it is prosecutor any told the that he took the de- court determination of issue essential to judgment acquittal very right, fendant’s motion for decision of a claim of federal else federal seriously prosecution’s by and that the case was law could be frustrated distorted fact find- ” persuasive except ing.’ Haynes not at all Washington, on the issue of "this v. State 373 U.S. 503, 515-16, 1336, 1344, boy’[s] opportunity”. impor- black ... More 83 S.Ct. 10 L.Ed.2d 513 tant, (1963) York, supported by (quoting the Court’s conclusion is not Stein v. New 346 U.S. record, any 1077, 1091, reading (1953)). fair even when view- 73 S.Ct. 97 L.Ed. 1522 Moreover, testimony light text, all of the in the most favor- for the reasons set forth in the I prosecution. clearly able to the Nank was believe that the state’s decision to execute Cole- equal participant, equally part and was at the least man was based in substantial on factors " culpable. equivocal The few brief sentencing process’", com- are ‘irrelevant to the any Alabama, 372, 382, support ments Nank that could lend to a Baldwin v. contrary wholly unpersuasive. view are (quoting Nank’s 86 L.Ed.2d 300 Zant inadequate support statements not Stephens, are comments, judge’s testimony (1983)), but his in this 77 L.Ed.2d 235 and thus constitu- Nank, course, regard highly suspect. tionally impermissible. every attempt ap- reason to to make Coleman pear blameworthy. to be When, more Aside from 53. after the court distributed its written comments, decision, Nank’s there is no evidence whatso- prosecutor permitted to make ever, otherwise, remarks, circumstantial or that in some he devoted most of his com- way provides slightest support issues, for the pretrial ments to a review of the ing includ- circumstances, court’s statement. Under these I the fact that Nank was the first to offer to that, capital punishment do not believe in a plead. There was of course little reason for him case, give we argument appropriateness should the court’s statement undue to make an as to the declared, weight. sentence, already As the Court has since the court had responsibilities by permit- parties "we cannot avoid our advised the of its decision and its rea- ting ‘completely ourselves to be bound state sons. require before we should certainty that the state on which that the basis evident may imposed. be capital im- a for death is an .sentence has selected Coleman proper one. has made it clear Supreme Court degree in the is a difference that there rationally society could

A civilized require uphold a conviction certainty we pun appropriate that death is conclude and that noncapital not for Nank sentence which we Coleman but of a ishment for Objec- a man to his death. require to send cooperat confessed first because Nank evidence, just reliability of the and not tive earlier, required the state was ed because reliability, as to its is a jury’s decision case in trial to conduct a imposition capital record, prerequisite to the or because order to build punishment. As Justice Stewart wrote the volun- uncertain as to prosecutors were respect closely to a related the Court with reliability plea. his Those tariness question: distinguish “those factors do not serve appropri for whom death is an squarely

individuals This conclusion rests on the for whom it is ate sanction those predicate that of death is [from] Florida, Spaziano v. 468 U.S. at not.” sentence of qualitatively different from a 460, 104 Thus, the mere fact S.Ct. at 3162. long. Death, imprisonment, however capi on a was forced to trial finality, impris- more from life its differs charge and convicted of that offense tal 100-year prison onment than a term dif- escape permitted to trial while Nank was only year fers from one of or two. by pleading guilty that count to other difference, on qualitative Because of that cannot—without more—serve as a offenses corresponding there is a difference in the judicial for a determination that one basis reliability need for in the determination man shall live and the other shall die. appropriate punishment that death is the present There no “more” in this case. specific in a case. supra my opinion, note 53. In Cole

See Carolina, Woodson v. North 428 U.S. at man’s death sentence should be vacated as (plurality) (emphasis 96 S.Ct. at contrary eighth to the and fourteenth supplied). Similarly, as the Court said amendments. Gardner, “[cjonsideration given must quality quantity as well as the Unreliability B. the Evidence sentencing judge information on which the rely.” 430 U.S. at 97 S.Ct. at point final deserves serious atten- One agree (plurality). fully I with Justices tion. There is much merit to Justices Shea Shea and Morrison that the standard of pleas and Morrison’s to the federal courts reliability required capital punish- that is capital punishment to interdict in Cole- here, that, ment cases is not met ac- unreliability man’s case because of the cordingly, the sentence of death violates the evidence on which both the conviction eighth both the and fourteenth amend- and the decision to execute were based. ments. little, any, There if corroboration of Only Nank’s version of the crime. V. CONCLUSION possible negroid pubic existence of hairs in potentially the car is inconsistent with I Cole- have examined some of the most story, expert testimony compelling presented man’s and the claims Coleman. I point categories: was far from conclusive. Nank have divided them into four claim, is a equal protection convicted felon. He made numerous the constitutional contradictory regarding challenge sentencing procedure statements how fol- occurred, every lowed, the crime process and he had mo- the due issues raised lie, being applied, tive not the least his desire to death statute on its face and as escape being hanged. Unquestionably, eighth it is and the amendment claims. I ex- testimony press Nank’s points on which both the convic- no view on the other equal protection tion and the rest. decision must raises. The claim re- view, degree least, In my testimony quires, hearing lacks at the that a be con- petition. The claims habeas ducted on the hearing call

pertaining to the a new the sentence and

for vacation of appropriateness of the sen-

hearing on the process imposed. The due to be

tence relating unconstitutionality of

claims statute, applied, as on its face and as claims, eighth amendment also

well as the sentence but would

require vacation of the

additionally preclude reimposition penalty. replete is

The record this case viola-

evidence of serious constitutional

tions, including discriminatory treatment of race. Some of these viola-

on the basis cursory afforded the most

tions are majority opinion. in the There

treatment eagerness in its

can be little doubt that failed

ensure Coleman’s execution Montana rights guar- him the fundamental

to afford persons by our Constitution.

anteed to all

Whatever one’s view of the death general, it is clear that it cannot be

imposed arbitrary in an and lawless man- precisely

ner. Yet that what Montana dissent, hope here. I in the firm

did

expectation majority decision that the will long survive. America,

UNITED STATES of

Plaintiff-Appellee, ZAVALA, Defendant-Appellant.

Julio

No. 85-1091. Appeals,

United States Court of

Ninth Circuit.

Argued April 1986. and Submitted

Decided Jan. notes Well, going grant I’m not require that to to The Court: stated, refusal “Our further mer- motion, say it has some I but explanation provide prosecutor it. completely consistent ... his decisions frankly think it has precedents I don’t longstanding Prosecution: this Court’s with gotten jury any. ex- We could have need not prosecutor a that hold alone, Your evidence de- circumstantial the criminal unless his decisions plain Honor, I’m of that. confident case un- facie of prima presents fendant Well, you’ve shown is the all respect Court: with conduct constitutional boy do it. omitted). for this black (citations opportunity 1769 n. 18 case.” Id. at opportunity. plenty of shown any facts which You’ve not set forth has Coleman of case uncon- prima facie support a expressed concern about have We notes, dissent theAs conduct. stitutional imposition in the may have race influence claim of un- “a concrete makes Harris, Coleman F.2d at 692 penalty. the death of (Re- race.” on the basis equal treatment prejudice racial “The risk 1198 n. 468). This page inhardt, J. dissent sentencing proceeding is infecting capital support no facts so, presents complete he light but serious especially v. Turner the claim. death sentence.” finality 1, Murray, 476 U.S. 106 S.Ct. obli the State We conclude agree (1986). doWe not 27 L.Ed.2d 90 bargain plea accept Coleman’s gation to reference court’s State that the 962; Hererra, ac F.2d 640 offer. See “charita boy” as “black Pleasant, 730 F.2d v. States cord United however, placed context ble;” when Cir.) (involving offer (11th 657, 663-65 transcript, trial light of the entire viewed accepted), initially withdrawn when made and claim establish Coleman’s does not 869, 105 denied, 469 U.S. t. cer v. States See United racial discrimination. (1984). Neither 146 216, 83 L.Ed.2d Cir.) (de 981, (9th Herbert, 984 698 F.2d offer plea acceptance of Nank’s the State’s stemming prejudice show must fendant alters this sentence nor Coleman’s denied, 821, comment), U.S. cert. 464 from Estelle, F.2d 697 Brooks analysis. See (1983); United 87, 95 78 L.Ed.2d 104 S.Ct. denied, Cir.), stay U.S. 459 586, (5th 588 (9th 587, Price, F.2d 592-93 623 States (1982); 1490, 643 1061, 103 74 L.Ed.2d 1016, denied, 449 (same), cert. Cir.) 1061, States, 583 F.2d McMillin v. United (1980); James 577, 475 66 L.Ed.2d 101 S.Ct. 1049, denied, Cir.), cert. (8th 448, 451 State, 605 S.W.2d Ark. 58 L.Ed.2d to defendant (1980) (in reference chambers People v. prejudicial); “boy” not ” Boy B. “Black Reference McGowen, 75 Cal. Cal.App.2d court’s the trial points to (no from prejudice 53, 54-55 Rptr. sup boy” “black him as a reference Berry comment). Compare unobjected to discrimination. allegation of racial port his (8th States, F.2d v. United to Cole reference the term in use made Cir.1960) (repeated comments racial during trial first made man was prejudicial), cert. presence held jury’s during cross-exami counsel own L.Ed. denied, use of The court’s a witness. nation of (1961); A.L.R.3d 2d 366 ruling on a (dis chambers phrase (1970 Supp.1986) occurred & & n. 19 1328-30 acquit Harris, judgment dismissal or F.2d at cases). motion for cussing Cf.

Notes

notes proving the burden of tion violation has point pattern often While claimants to a purposeful discrimina- ‘the existence ” support official discrimination their capital punishment case. tion’ claims, see, e.g., McCles equal protection McCleskey Kemp, v. at 1766 S.Ct. — U.S. —, key Kemp, v. 1756, 107 S.Ct. 545, Georgia, v. Whitus (quoting 385 U.S. States, 262; Wayte v. United 95 L.Ed.2d 550, L.Ed.2d 599 598, 470 U.S. 84 L.Ed.2d (1967))(footnote omitted). Like the defend- 547; Personnel Administrator Mass. v. McCleskey Kemp, prevail un- “to ant Feeney, U.S. S.Ct. Clause,” Equal der the Protection 870; Arlington Heights v. Metro L.Ed.2d prove that the decision-makers “must politan Housing Development Corp., discriminatory purpose.” case acted with 450; Id. (emphasis original). S.Ct. 50 L.Ed.2d Davis, Washington v. finding discriminatory purpose A re 597, they 48 L.Ed.2d of course quires an examination of all the relevant may rely on the facts of their own case to surrounding circumstances and an infer discriminatory show intent: from “Neces ence of discrimination them. Washington sarily,” the Court said pattern “a consistent of official racial Davis, discriminatory pur “an invidious necessary predi- discrimination” not “a pose may often inferred from the totali Equal cate to a violation of the Protec- facts_” ty of the relevant 426 U.S. at single invidiously A tion Clause. dis- 242, 96 S.Ct. at 2049. The Court reiterated criminatory governmental act” is not point in Arlington Heights v. Metro “immunized the absence of such dis- politan Housing Development Corp.: making crimination of other com- “Determining whether invidious discrimina parable decisions.” [Arlington Heights motivating tory purpose was a factor de Metropolitan Housing Corp., inquiry such circum mands a sensitive into at 266 n. 97 S.Ct. at 564 n. For 14]. stantial and direct evidence of intent as evidentiary requirements to dictate that may be available.” 429 U.S. at “several must suffer discrimination” be- person alleging at 564. The discrimi McCray v. New object, fore one could natory point intent must to behavior— York,

notes When viewed regard- conclusory statement following general principle, ment of the Court’s com- claim: ing equal protection “[Cole- Significant- certainly ment is unassailable. different- he was treated claim that man’s] however, quickly sought to ly, the Court nothing more than ly he is black because perspec- put proper into its its statement by any speculation unsubstantiated idle sweeping or over- tive and thus to forestall court, however, failed to dis- facts.” Speak- opinion. of its broad constructions wholly un- cuss, appears to have been Court, ing explained for the Justice Powell important fact of, single most aware preclude justices that the did not intend to plea a i.e., made that Coleman the case: questioning prosecutors the facts where to the one the identical offer that was specific case warranted an inference similarly accepted his prosecution had from conduct. He said that of unconstitutional Inexplicably, codefendant. situated white “longstanding precedents the Court’s ... exclusively on the focused the district court prosecutor explain a need not his hold that by Coleman—at a plea initial offer made decisions the criminal unless defendant insisting on assert- time when he was still presents prima a case unconstitu- facie did not even mention ing his innocence. It respect to his case.” tional conduct with hearings. July As July the critical (citing Wayte) at 1769n. 18 Batson Id. result, that Cole- mistakenly concluded a (emphasis supplied). plea did not make the same man and Nank McCleskey, while we must be Under error, crucial offer.15 As a result of this forcing prosecu- careful to refrain from entirely to discuss district court failed explain every its decision to seek tion to plead on attempts by Coleman to willing penalty, must to do so death we Apparently Nank. because same terms as circumstances in the indi- when the factual ignorance of its of the actual nature racial discrimination vidual case show that offer, summarily plea the court motivating factor. may have constituted a rejected equal protection his claim without short, the defendant establishes where hearing. the benefit of a factual discrimination, prima facie case of racial that, deciding gen- I that a hearing am aware obligation to conduct a we have an unequal sole- prosecution. eral claim of treatment based probe motives of the inadequate case, ly on statistical evidence was court must under- In such a “the trial discrimination, into inquiry’ that ‘takes raise an inference of take a ‘factual that, possible explanatory factors’ recently policy con- account all stated “the guilty may plead main- while district court’s discussion of this A defendant 15. The full innocence, especially taining to avoid a as follows: issue was Alford, sentence. North Carolina black, that, he is Petitioner claims because 27 L.Ed.2d plea bargaining op- he was denied the same However, prose- nor the neither the trial court portunity that afforded his white codefend- accept guilty plea required to cution are argues only differ- ant. Petitioner that the acceptance of such circumstances. The under ence between him and Nank was the color guilty plea the discretion is within their skin. Such is not the case. Nank con- petitioner's he was claim that court. The shortly after his arrest and fessed the crime differently is noth- he is black treated because cooperated authorities. with law enforcement speculation unsubstantiat- more than idle Petitioner maintained his innocence. by any ed facts.

notes not accept State agreed a brief from the findings to accept proposed court ... and conclusions specifically dis- sentence") Coleman’s counsel from respect and cussing circumstances,” parties to the from the with aggravating and the relevant III, P.2d 632 Coleman 633 Maj. op. cites III. and Coleman ("Both petitioner and the State ... sub majority Presumably, intends to conclu-sions_”), findings and their briefs and mitted commenting on parties proposed imply that the denied, 102 t. cer mitigating circumstances aggravating and the by In L.Ed.2d 71 693 Neuschafer argument. Cole- than brief rather oral presented with McKay, court was “the district III, however, implica- support this does not man inconsistent, conflicting, conclusions or at least sug- Supreme Court never The Montana tion. gested point in the the critical state courts on two right to oral his that Coleman waived on not render a decision case. It could court, Instead, explained as su- argument. second-guessing at it least record before without incorrectly Coleman had no pra, assumed that (9th F.2d one state tribunal.” Cir.1987). sentencing. argument at Further- right to oral Neuschafer, we decided that In more, the record that it is clear from hearing on the argument. have held a right In court should his to oral district not waive did Here, hearing fact, June stated at the in the absence of defense counsel Id. at 841-42. issue. argument at the make oral he wanted to an hearing, the version we must assume hearing. sentencing trial court and the petition disputed most favorable facts that is pro- object defense’s prosecution did not to the must, consequently, that the assume We er. mitigation decided at a posal that the issue issue of a brief on the did not file defendant argument. At no date on the basis oral later mitigation. agree forego oral point counsel did Coleman’s Rather, agreed prosecutor argument. when his judge treated written at all times 31. The (to portions incorporate page his citations final, proposed findings or never as as rely transcript on for he the trial intended Indeed, beginning of at the somehow tentative. reply sentencing argument) on in his brief hearing, judge handed issue, reading post them ex instead facto in final form con- parties a written document progress, hearing Coleman’s then at the aloud Conclusions, Judgment, Findings, taining its opportunity to do like- afforded an counsel wise. Order, proposed or just not a draft Finally, appears from the record that Furthermore, findings. the Montana tentative on the did file a brief counsel Coleman’s beginning of ”[a]t Court stated Certainly, mitigation. is con- none issue hearing, July the trial submitted Montana in the record we received. tained Supreme counsel his find- petitioner's State counsel and inconsistent statements Court made Mont, II, counsel ings and thereafter and conclusions Compare issue. ty possess contend that Coleman does not that it failed to consider a of miti- number right present under the Constitution to gating ground circumstances and on the Rather, argument. majority oral sim- unlawfully that it highly prej- considered a ply disregards showing the evidence udicial adverse circumstance. The court rights Coleman did not waive his and in- inadvertently deliberately failed to con- stead in fashion conclusory assumes that sider regarding the evidence equally manner, he did. cavalier (other character and background than that majority disregards the mandate of the Su- relating presence or absence of a Wingo, Court Barker v. preme record) criminal improperly based its 514, 525-26, 2182, 2189, 33 L.Ed.2d in part alleged decision on his commission (1972): ‘indulge every “Courts should unadjudicated of an offense. against waiver,’ presumption reasonable Kennedy, Aetna Ins. Co. Background Character and a. (1937), L.Ed. 1177 Mitigating Factors they presume acquiesence should ‘not rights,’ in the loss of fundamental Ohio

Case Details

Case Name: Dewey E. Coleman v. Henry Risley, Warden, Montana State Prison, and Michael T. Greely, Attorney General for the State of Montana

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 19, 1988

Citation: 839 F.2d 434

Docket Number: 85-4242

Court Abbreviation: 9th Cir.