Joseph C. Frady v. United States of America, Richard A. Gordon v. United States

an indelible shadow over entire

process. repeat not venture Appellant balance the misconduct against pur- that of for the Intervenor giving

pose Appellant the award

rather than Intervenor. But I can find

no record basis for Commission to bumbling hold rather and naive Wright, Judge, Circuit dissented Appellant efforts find out who from affirmance of convictions of first- “undermining be- its award” was evil degree murder. yond redemption, Intervenor was while Bastían, Wilbur K. Miller and Senior single Under blameless. standard of Judges, Burger, Circuit and Danaher and Intervenor— n Appellant conduct both Judges, setting Circuit from dissented disqualified. or neither —should have been aside of from death sentences and direc- I would remand Commission tions that each defendant be resentenced with directions to its award to vacate imprisonment. to life begin with Intervenor anew both Appellant disqualified Intervenor and along all shareholders either who Only

hold a substantial amount stock. process such a we cleanse this can long unsavory award of its back- ground.

Joseph FRADY, Appellant, C.

v. America,

UNITED STATES of Appellee. GORDON, Appellant,

Richard A.

v. America,

UNITED STATES of Appellee.

Nos. 18358. Appeals

United States Court of

District of Columbia Circuit.

Argued Dec. 1964. May 7, Decided 1965. Henry Johnson, Jr., Mr. Lincoln Wash- ington, C., appellants. D. Certiorari Denied Nov. Acheson, Atty., Mr. C. David S.U. See 86 S.Ct. Q. Nebeker, whom Messrs. Frank Wil- Collins, Jr., Anthony liam H. A. Lapham, Attys., Asst. U. S. were on brief, appellee. Nelson, Jerome Mr. Atty., Asst. S. and Mr. Daniel U. H. Benson, Attorney, Department of Jus- Judge, LEVENTHAL, took no appel- Circuit appearances tice, for also entered part or decision in the consideration lee. these cases. Washing- Amsterdam, Anthony Mr. G. court, ar- ton, C., appointed D. gued Judge, FAHY, amicus curise. with whom Circuit Judge, BAZELON, and Chief Judge, Wil- Chief Before Bazelon, WRIGHT, Circuit and WASHINGTON Judge, and Circuit Senior Miller, bur K. join, except reasons Judges, for Cir- and Danaher, Fahy, Washington, Judge separate opinion in his stated Judges, and Senior Circuit cuit Bastían, Ap join I: in Part does WRIGHT Judge, and and Burger, Wright, Mc- Frady pellants Joseph Gor and Richard sitting banc. Judges, en Circuit Gowan, years eighteen don, twenty-two then and age, respectively, convicted were PER CURIAM. killing degree of one murder in the first judgments The of conviction pre and Thomas Bennett with deliberate robbery degree are of first and 2401.1 22 D.C.Code § meditated malice. are set The death sentences affirmed. They For are under sentences death. appellant each aside with directions in the and the reasons stated herein imprisonment life be resentenced Judge opinion of Circuit McGowan guilty of first the verdicts of and, aside exer are set sentences Judge Wright dissents murder. Circuit cising authority 28 U.S.C. its § convictions from affirmance imposition 2106,2 court directs the Circuit murder. first Senior imprisonment, sentence oth life Judge Judge Miller, Circuit K. Wilbur imposed for er death that can be than Judge Bastían, Danaher, Senior Circuit degree murder. Judge Burger from and Circuit dissent setting I. of the death sentences aside ap the directions that each and from affirming problems The involved imprison pellant be resentenced to fully in the convictions are discussed ment. Judge opinions Wilbur written Circuit ordered. Miller, affirmance, is so and Circuit K. for Judge Wright, for The most reversal. TAMM, Judge, part took no contention for reversal Circuit troublesome sufficiency or these to the of the evidence consideration decision of directed beyond jury’s support he cases as was not a member of conclusion court the cases were doubt the homicide considered reasonable premeditated malice.” decided. “of deliberate and charged filed, 1. The homicide memoranda and at indictment also After were perpetrating request robbery, while of which the United the cases appellants robbery, reargued acquitted, en We court bane. were special express ami- our were convicted. We affirm indebtedness robbery argu- convictions and eurice for his memorandum and sentences. cus ment, appellants After submission as well as to cases counsel en, majority Attorney. banc a re- court of the court and to the States United quested ques- following memoranda on the (1) adequacy poll; (2) (1958): tions: § 28 U.S.C. any Supreme or re- whether D.C.Code “The or other Court quires presentation specific jurisdiction may appellate af- evi- court of modify, bearing punish- firm, vacate, re- dence ment, set aside or so, by decree, procedure judgment, if order what or at verse or lawfully point brought proceedings what should such of a court before it may given; (3) judg- review, information be remand the cause entry render, dependent appropriate this court should such ment direct judgment, decree, require ques- order, foregoing the answer proceedings appointed had as Counsel was amicus further to be tions. such just eurice to assist in these matters. under the circumstances.” (1) majority The first error discussed of the court concludes A “in or- court’s instruction the evidence sufficient. necessary der to return a verdict it is II. ** juror agree *. that each thereto different death are a sentences of Your be unanimous.” verdict must my they have been view matter. particular instruction full context of the why. explain erroneously imposed. I now margin.4 is forth in the set 2404, amended March 22 D.C.Code as § although instruction, to This intended jurisdiction 1962, 22, abolished in guide jury considering the issue mandatory de- for first sentence death guilt, given qualification as was without gree punishment now turns murder. though applicable punishment to as upon jury It “unless action. is death agreement well. But there is no need for jury by life unanimous recommends vote punishment. Unanimity required as to is “having jury imprisonment” or if the guilty. only guilty for a verdict of or not by that the de- termined vote” unanimous unanimity punishment Lack of as to is al- degree guilty murder fendant is of first together order. agree punishment it to “is unable to as shall shall inform the and the court court charge, true, Earlier in the is it thereupon jurisdiction impose to have jury juror that each was instructed impose and shall either a sentence pen- to make an to individual decision as imprison- by death or life electrocution alty agreement should that lack of be fully ment.” is forth more The text set reported to the court. not But this did margin.3 strong suggestion cure the to seek una- Congress thus transferred nimity. Supreme As the stated in Court lodged responsibility theretofore 740, Andres v. United U.S. statute which made the death sentence 1055, respect to S.Ct. 92 L.Ed. with mandatory. considering new how this similarly instructions could have jury responsibility sought to be misunderstood,5 cases death “[i]n guided in these I cases find two errors presented doubts as those here such require the death sentences to should be resolved in favor ac- set aside. cused.” 333 U.S. at at S.Ct. (Supp. IV, 1965) 3. 22 D.C.Code judgment. violence to without individual pertinent part: you reads Each of decide must the case punishment yourself “The do but so after a considera- by your shall be death ju- electro- tion of the with fellow jury by cution unless unanimous rors. imprisonment; vote your recommends “In the course of deliberations do jury, having if the change opinion determined unani- not hesitate to an guilt vote the mous of the defendant it convinced is but do sur- erroneous charged, agree your as is to unable as to render honest as convictions to weight solely shall inform the court or effect of the evidence ju- thereupon opinion the court jurors shall because of the of the other impose impose risdiction purpose reaching to and shall or for the mere either a sentence electrocu- verdict.” imprisonment.” tion or life 4. “The Now, you Supreme Court : are directed 5. The Court held that the fed- your (then verdict must be the considered eral first murder statute judgment juror. 1111) each In order to re- U.S.C. § 567 now 18 U.S.C. § necessary required turn a verdict each a unanimous decision juror agree suppose you guilt don’t both and whether death should thereto — imposed. read these for a verdicts moment. But the Court be- reversed you. up take given them cause the well instructions could that, “Tour “reasonably verdict must be unanimous. It lead a conclude your duty jurors agree grant mercy, to consult with one if cannot all another unquali- and to deliberate with a view to the verdict of must stand reaching agreement you if can do fied.” 333 U.S. at 68 S.Ct. Jury is unable state that the forms does not on the written is true also punishment, must Court verdicts, as to more special be discussed defendant hereinafter, provided Law, sentence the fully disagreement punish- electrocution. place express to death carefully ment, instructed the Jury Guil- returns a verdict “If the But of the forms. on the use be made Degree charged Murder ty First disagreement place express does Imprison- Life recommendation dispel effect of an instruction (being 3), sen- must the Court ment No. readily agreement. designed to achieve Imprison- Life defendant tence the considering recognize the instruc- ment. jury may tions forms as whole Jury “If returns a verdict difference between have understood the Degree charged of Murder with First guilt on the one as to functions agree punish- to as to Jury unable But hand and on the other. (being 4), will there- ment Court No. lingers seeking now to assess a doubt duty fix questioned instruction. the effect of the impose either sentence leads to If the doubt is left unresolved it im- sentence life electrocution done, resolving it, must be death. as prisonment the discretion favored. is Court.” impairing (2) The error second No. 2 seen the text It will be validity has to do of the death sentences all to not in terms refer at verdict does supplied poll. The court had left punishment. is This vital matter juror mimeographed each form jury re- explanatory After the note. according special out verdict be filled courtroom from turned reached, or not to the conclusions liberations, hand- copy was of the forms punishment. reached, as both deputy foreman. clerk ed to the giv- special Three forms of verdicts degree pertaining first On form covering juror, en several to each premeditated murder deliberate possible in the indictment and the counts after had malice the foreman written charg- one, The form for count verdicts. charged “Guilty as words “Verdict” the ing degree first murder of deliberate Degree had He alone Murder.” of First malice, premeditated as follows: reads deputy signed handed to the forms record as the official verdicts. clerk “First ....... Count Verdict following place at this took shows the Degree “First Murder ................ time: (Possible Verdicts: “Deputy foreman Clerk: Will the Guilty. 1. Not stood.) (The please foreman stand. Guilty charged 2. of First De- as Foreman, “Deputy is Mr. Clerk: gree Murder. jury agreed upon a verdict? Guilty Charged 3. as of First De- (The have. ver- “Foreman: We gree recommenda- Murder with deputy dicts were handed Imprisonment. tion of Life clerk.) Guilty charged 4. of First De- as “Deputy Clerk: Members gree Murder un- with the says jury, your you foreman punishment. able as to Frady Joseph find C. the defendant Guilty 2nd De- Murder guilty guilty as on Count gree. degree charged of first Manslaughter. Guilty charged guilty as Count 3; Count (Note: Jury If the a verdict returns charged you Guilty Degree “That find the defendant as of First Mur- (being guilty on 2), der No. and makes no recom- Richard A. Gordon 2, guilty charged Imprisonment of first mendation as to Count as Life guilty juror you say murder on Count 1 and “What as the defend- charged 3; each) (naming on Count Noth- ant on Count 1?” ing juror “Guilty more. Each answered your verdict, say “And that charged murder.” you (The jurors, each and all? Nothing more. No additional instruction unison, indicated in the affirma- preceded poll. No said word was tive.)” juror’s by judge or clerk as to each what judge As I have said his oral might punishment. position be as to carefully explained instructions previous suggestion And the forms and how be used. should unanimity not re- the need actually Nevertheless the form used in respecting question put moved. No returning the murder verdict given punishment. re- No answer was designed uncertainty not well to avoid specting punishment, assume unless we as, the form used in United States v. juror silently each carried into his an- White, F.Supp. (D.D.C. special swer on the all that was written 1964). Judge Youngdahl there stated: verdict and all that said had been it. about “It is fairest to the defendant range for the to have the full unwilling I am to assume that each distinguished clearly be- juror alternatives his silence thus decreed fore them for consideration at one agreed to Under our amended death. time. Thus this Court Code, submitted a placing juror upon the re- each form verdict which read: weighing sponsibility imprison- of against penalty, poll ment the death “ ‘Guilty Degree Murder, First explicitly certainty must exact as punishment Death-; position juror. position of each is His

“ ‘Guilty Degree Murder, of First not to be left either to inference or silent punishment Imprisonment of Life previous- reference to a form in the used ly Disagree- special rendered verdict. “ ‘Guilty might Degree by explicit- Murder, of First ment be manifested might agree Indeed, juror unable to be disclosed as to ness. punishment, be uncertain as to the “ merely disagreement not fel- with his ‘Guilty Degree of Second Murder required lows. He is be cer- neither to agreement. may “ tain nor in remain He ‘Guilty Manslaughter-; disagree. as well doubt as “ ” Guilty-.’ ‘Not repeat, To the death sentences have imposed theory in these cases on the juror In this form each is faced with the Note form was written necessity expressing himself spoken carried over in silence into the respect punishment. verdict with “Guilty charged answer first However, by the verdict rendered gree murder,” alone considered present foreman cases need not speak punishment. This does not further; be discussed for in event uncertainty depend upon leaves death to the death sentences do not survive the certainty where essential. is poll that followed written verdicts by handed to the clerk the foreman. practice long standing “The [of poll requested A polling jury] requires juror and taken as au each P.6 by 31(d), himself, creating thorized Rule Fed.R.Crim. answer thus conducting In responsibility, eliminating the clerk asked each individual provides: concurrence, This Rule there unanimous jury may “When a verdict returned and before be directed retire for polled may is recorded the shall be further deliberations be dis- request any party upon charged.” at the poll court’s own motion. If

89 any uncertainty same to the verdict as a similar factual situation the State, result was reached Williams v. announced the foreman.” (1883). 402, 60 403 And see Wilson Md. 99, 126, Vaszorich, 98 State v. 13 N.J. 854, State, Ga.App. 375, 91 v. S.E.2d 299, 314, denied, A.2d cert. U.S. State, (1956); Blankenship v. citing (1953), 74 S.Ct. 98 L.Ed. 400 (1900); and State Ga. 37 S.E. Cleveland, 316, 322, from State v. 6 N.J. Boger, 702, 163 v. 202 N.C. S.E. 560, 563, (1951). 78 A.2d 23 A.L.R.2d 907 (Emphasis opinion by in Vaszorich Wil Although on all the cases cited are Brennan, Jr., J.) liam J. ones, they present make fours with the Cleveland, supra, In State v. the ver- clear that no inference can be drawn open dict announced in fore- juror’s from a or failure to dis- silence specified man found had sent from the verdict as announced guilty defendant first murder. pro- the foreman. The same rationale juror And no the clerk’s dissented from imposition hibits here of death sen- summarizing statement result tences reason an inference from “ poll [y] say you ou find the defend- poll silence in the itself. degree, ant juror put should “[E]ach by your Foreman, rendered and so test, respond individual made to say you jurors all.” But the answer- solus, assistance, without and with- ing poll specify failed accompaniment. un- out He of murder of which found willing to the verdict guilty. the defendant The court held though by himself, questioned he is saying: this to be reversible error might agree he if allowed to do authority “We know creat- support 11 other with the concur- ing juryman an inference because a responses.” rent cognizant fails to nor dissent are we 402, State, supra, Blankenship 112 v. Ga. any practice which makes his fail- 404, Miranda United 37 S.E. 732. v. See ure to dissent or mere silence the (1st 1958); States, 9, 255 F.2d 18 Cir. equivalent finding pro- aof full as 859, Thursby, 863 State v. 245 S.W.2d by claimed the statute. (Mo.1952). ****** deficiency poll A in the is not cured question “The involves more than by completeness pre- of the verdict a technical violation of a statute viously announced the foreman.7 procedure. rule is a matter reading not afford the verdict does gravity’ adjudicates ‘of utmost as it protection poll same is to the accused a guilt not alone the of the defendant designed juror provide. A who con- punishment but carries with juryroom, cur'- in the out of weakness of death. Such determination can- against conscience, a id his in the ver- finding not be left to inference. The jurors, may express other dict eleven specific must be accord exact opinion punishment his real as statutory with the mandate.” given opportunity open a clear court 323-325, 6 N.J. at 78 A.2d at presence 563-564. This the defendant. position This was reaffirmed especially statute, in State v. true under our note Butler, 560, (1958). 27 N.J. 143 A.2d 3, supra, 530 which calls for consideration appear 7. This would 125-128, 313-314; to be so 299, whether one 98 A.2d for even regards poll the verdict theory juror’s announced on the latter each re- completely superseding sufficiently sponse poll the verdict must be previously foreman, read complete see Solar as to “be mean- unmistakable in 538, (D.C. v. United ing 86 A.2d clearly 540 indicate his assent Mun.App. 1952), merely supple- foreman,” announced thus verdict “eliminating menting previously verdict, any uncertainty.” announced Vaszorich, supra, see 99, State v. 13 N.J. 90 punishment separate III.

and decision from the consideration and decision as re- are free of Since the convictions guilt. error, although the death sen- versible (1) invalidly imposed tences due to special poll importance A in a takes for unanim- the instruction as to the need case where the determines not verdict ity poll, (2) inadequacy of the only guilt punishment but whether dis- consider this court should now how imprisonment. will be or life See pose appeals. State, (Fla. Askew v. 118 219 So.2d 1960).8 again I refer Cleve v. State First, stated, the convic- as has been land, supra, noted the where They not affected tions are are affirmed. necessity degree murder, that the the sentences. the errors which affect death, hence determination of life or be only sentences, As to the there are specified poll. quoted The court possible two sentences for first Jersey case, from another New v. State murder, imprison- either death or life Cooper, 540, 550, 298, A.2d 302 N.J. ment. For the reasons stated herein by Judge (1949): himself and our McGowan for pro- “The death sentence cannot him brethren who concur with the death nounced unless verdict is defini- impossible, sentences cannot stand. It is tive which en- impermissible, to reconvene the same penalty. tails that Not is it jury punishment. to consider now the Legislature understandable that the jury required And a new is not to be resolving deemed it essential that in assuming purpose, convened for that involving an issue the death other than the could trial imprisonment, finding or life validly perform sentencing function specific conjecture; and not left to Furthermore, under our Code. since it is inconceivable that would problem punishment depends upon provided.” have so judge may action—for the trial punishment only cide the after the 323, 564; 6 N.J. at 78 A.2d at and see agree, is unable to to which there was Martin, 587, Commonwealth v. 379 Pa. certainty due errors referred 593, 109 A.2d Cf. to—-a remand of the case to judge States, supra, Andres v. United 333 U.S. to determine the is not S.Ct. L.Ed. 1055. required. Perhaps that could be done permitted by conclusion draw that once a within the latitude supra; 2106, poll duty U.S.C. but the same lati- § is the demanded court has a tude authorizes this court to make a final present inquire under our Code to disposition juror of the cases. the trial each Were his assent to each essen- judge’s tial respect element in the the verdict. When discretion with to the guilty punishment verdict is of first murder juror’s inquiry is, this includes position toas each broader than it and were his function punishment. Only regard on in this in that disassociated from the jury’s action, manner can perhaps the court be certain that the court should juror consequence each understood the remand for the exercise of his discretion. upon punish- only of his verdict as bears But since one sentence other than possible ment. itself, death is under the statute jury jury again In the Ashew ease after re- statute and the returned a guilty rape requir- guilty a turned verdict of verdict of without recommendation. ing poll sentence, the death a disclosed in Polls have other revealed doubt cases jurors agreed unanimity two to the verdict or lack in the verdict an only accompanied by if it were a recom- nounced foreman. Cannon v. mercy. Ky. Commonwealth, 50, mendation 291 163 S.W.2d (1942); States, then sent back for de further Solar v. United A. (D.C.Mun.App. 1952). liberation in accordance with a Florida 2d 538 employed procedure dependent upon action the event life or death thought correctly in- in is to have been this case was not in these cases resulting adequate. guided, death sentences sustained, appro- which cannot be given the function Whenever is court, acting priate solution is for this deciding capital innocence in a entry 2106, under to direct Section case, is accorded the re- further permit- only alternative sentences of the choosing sponsibility death between possible law. Since it is ted punish- imprisonment and life as the might the situation as it reconstruct imposed, to me that ment to seems to, errors referred have been but for the enlightened efficient the cause of effect, or to leave sentences is served criminal administration best punishment of life resort is had two-stage stage, In the first trial.1 imprisonment, alternative. inquiry upon focussed the issue is This, language quote of Section whether the defendant 2106, “just under the circumstances.” charged. second, takes up the matter of the to be exact- McGOWAN, Judge. Circuit ed. It is obvious that evidence relevant I share that the convictions the view the one well be unrelated to appellants With should be affirmed. inability equally other. It is obvious that punishment imposed respect to to be operate can adduce evidence as to both murder, I for the crime of concur prejudice of both the defendant Judge Fahy’s opinion, result reached in public of those the elucidation errors not because believe there were entering directly considerations most in- polling in the instructions or the punishment assessment jury, but because the same result flows seriously purports to arrived have been I hold as to the this case from the view rational means. procedure which should be followed standpoint, From defendant’s determining punishment under stat- jury’s deliberations his indicated ute. For the Government has adequately informed if his are less than entry judgment im- of life meaning- right of allocution has not been prisonment proper course, in would be a (Tent. 210.6, Penal comment § Code Judges Fahy Washington reserve Tempo 9, 1959); Draft No. N.Y. State positions question pro rary on Revision Commission determining punishment cedure Code, Intebim Law and Cbiminal Penal 2404, deeming question 22 D.C. Code § Royal port (1963); 15-16 unnecessary Re disposing to be answered in Capital Punishment Commission appeals. Repobt 6, 12-13, 194-207 1949-1953 legislatures states, 1. The of four and the 8932, 1953); (Cmd. Back Handler No. Code, authors of the Model Penal ground, Cases, Evidence Murder split-verdict procedure. endorsed See 317, J.Crim.L., C. & P.S. 321-327 (enacted 1957); Cal.Pen.Code 190.1 § Hart, (1960); Princi Murder (1963 Supp.) Gen.Stat.Conn. 53-10 England ples and the Punishment: (enacted 1963); Law, N.Y.Penal Mc United 438- Nw.U.L.Rev. Kinney’s Consol.Laws, c. §§ Jury (1957); Knowlton, Problems of (enacted 1963); 1045-a Pa.Stat.Ann. Capital Cases, in Discretion U.Pa. 18, 1959); (1963) (enacted § tit. 1099, 1109, L.Rev. 1135-1136 (Proposed Model Penal 210.6 § Code and other For the collection of this Draft, 1962). May Moreover, 4, Official information, compre- relevant for a great weight authority sup the of recent issues involved— n analysis hensive of the ports that, the conclusion whether sen provided rigorous all assembled and tencing responsibility judge is the of the pressures prospect of jury, time without or of determination the rational of great punishment requires tangible sentencing reward —I am sensible of the by authority obligation response the made more for access to informa My feelings appointment. amicus to our tion about the defendant con than be respect sure, are, I am in this shared tained in the record of the of his guilt. See, e.g., Model the entire court. innocence mitigat- fully subject. if facts of a its available and committee on On this ing By day Keating brought before nature it. same are Senator government token, same should be Conference’s resolution to the attention any Senate; and, later, apprise days of all of able to few a upon penal- (S. 2083, bear he circumstances which introduced bill 86th a ty. instances, course, many Cong.), which, although retaining In of such aggravating punishment circumstances will death as the basic degree murder, for nature which in no event should become authorized the judge jury prior impose known to its resolution im- to the a sentence of life guilt. prisonment of the has never been issue of if so recommended. two-stage pro- how, accompanying clear to me a In absent the intro- statement satisfactory cedure, Keating bill, there accom- can be duction of made his Senator that, although proposal modation diverse interests. it these clear his fol- impresses practice Such an accommodation me his lowed the then extant desirable, York, if most even the Constitution home state of New he had no un- thought require pace yielding position respect be not it. If the to mechan- procedural improvement alluded, worthy in the admin- ics and he of consider- justice ation, procedure istration criminal must march to a advanced always to the measure the Constitu- American Institute Law whereunder tion, progress may separate hearing punishment be slower need than it great guilt. be. The of the office Constitution follow An determination advantage this, remarked, in this area is to set minimum stand- so he was ingenuity permit pre- ards. forbid It does not that “it would evidence to be procedural improvisation punishment which it could on the sented issue might not command. not be trial of admissible Cong.Rec. the actual offense.” 105 me, therefore, problem is not (1959). Thus it is evident that Senator two-step proce- one of the merits Keating, persistent one of the most dure, may appropriately but whether it influential of Con- those members be adhered in the this court absence gress law, moving reform the D. C. explicit legislative provision for it. two-stage repelled by pro- was not question There would be a serious also cedure. policy presented considering two-step the initiation (i. year e., Later in the November procedure in of a clear the face indica- 1959), Judicial Conference Circuit legislative antipathy tion of unmistakable reported Committee to the Conference. it, question I, in common —a bill, Keating’s contrast with Senator amicus, think should doubtless be made for first answered in inaction. favor of imprisonment murder life unless the however, believing amicus, also with and, death; unanimously recommended Congress that, although provide did not event, even in the latter two-step procedure in terms for impose authorized a sen- and directed D.C.Code neither can it be said imprison- tence of either or life death against employ- to have set its face after, conducting after, ment procedure implemen- ment of may proceedings provided “such tation of this statute. ascertaining and rule of court for considering The Judicial of this Conference Cir- of all facts and circumstances pride punishment.” question cuit take the fact that relevant impetus change adopted C. archaic this re- D. Circuit Conference mandatory port; approach ap- law came from sentence also and this May 22, proved by it. On resolved the Judicial Conference mandatory capital embodying (H.R. should be United A States. bill abolished, leaving ways 11263, Cong.) the matter of was introduced on 86th 18, and means be considered further March to 1960. remaining jurisdiction subject American bill was the last-named This capital punishment. mandatory hearings by House of the subcommittee eventuated which Committee Congress District final rose without The 86th preparation the subcommittee measure. action this Senate (H.R. 12483, entirely 86th bill Congress an new convening saw its of the 87th reported Cong.); to latter was and the form in both in identical introduction by the full amendment eventually the House without en- It was House and Senate. language of this bill significant Committee. by both Houses without acted emerged eventually very close to what change, in the Senate a debate after presently we are with which the statute generated ef- by unsuccessful which provision It contained concerned. for the the occasion forts to make this hearing judge of evidence for the complete capital punishment abolition of mitigation aggravation cases in the turning Columbia. in the District of prior persons to of those convicted efforts, proponents aside these but as to whom effective date of law that, heavily upon the fact bill relied yet been had the death sentence Keating it, proposal put as Senator floor, On a committee adding carried out. “by enforcement would law assist pro- adopted, amendment was offered judgment discretion an element of disagreed viding that, if the involving punishment.” capital cases punishment, sentence the could Cong.Rec. impris- to either death or life defendant infer think far-fetched do not agreed change, which was onment. This legislative purpose to explicit an 1960, passed to and the on June bill to the life or death issue of commit the completely brought into measure “judgment ’discretion” exercise of line is now 22 D.C.Code with what § comprehends procedures calculated 2404. pos informed as exercise as make that Senate, Meanwhile, Sena- back inherent is no At the least there sible. colleagues Keating informed his incompatibility tor cause a Congress 22, 1960, ac Con- to think that on March the Judicial two-step tively opposed come to the use of ference of the United States had reflecting approach of this up procedure an dif- in the administration with a bill surely Wigmore, no mem in his Dean ferent from that taken S. statute. Reiterating overriding garde in the area avant his concern ber many get- argued forcefully law, end, means, of with the and not the criminal should, ting mandatory capital punish- years ago without that the courts rid action, Columbia, legislative waiting take ment in the he stat- District devising objection procedural methods ed to the Confer- lead in his lack 12483, upon cope essential ence’s bill. H.R. its arrival with this matter House, inquiry into a from enactment went differences between Committee, ap- District defendant’s of first Senate proved question it without amendment. The com- of whether the and the report imprisonment. mittee examined or life said that it had should be death equip (i. government proposals e., agency three is better all S. the No bill, prescribe proce ped H.R. Judicial Conference draft than the courts to They 12483), lawsuits. and that it had fixed for the trial of dures realizing thought immemorially appropriate have last as an means Keating’s independ wholly authority act commendable Senator but, indeed, respon objective, namely, ently termination of the area sibility sole District’s dubious distinction as the to do so. rejected Wigmore, 194b, his See Evidence the defendant’s claim that 1940). stages, (3d held 660-661 ed. trial should have been two present White, F.Supp. opportunity In United States v. Judge Youngdahl mitigation (D.D.C.1963), after the “in and extenuation” ing It is said that our own in which Circuit Judicial were to be adduced there rejected “all Conference considered and the the facts and circumstances relevant two-stage punishment, procedure, to and that we should as in other Thus cases.” go determination, policy the not to that at committee’s counter essential deter- Congressional person express mination least without was that no found au- report of first thorization. true murder should be sen- It that the separate of tenced to death hear- the Circuit Conference not- without a Committee ing pun- in which ed the all committee had considered and evidence relevant rejected two-stage hearing. brought jury ishment was to be Under the But out. approach, separate proposal in the this was the of committee’s context a hearing judge. punishment a have been before for first ap- If imprisonment should be life committee had known that its unless proach jury Congress and, rejected death; was to be recommended enlarging jury’s noted, rejection in in favor committee its role the two- punishments, step procedure require the choice of it seems not was intended to jury unlikely sepa- extraordinary step that it would wished a to take the have hearing recommending “only rate to be held better inform death on the basis jury’s trial,”— discretion. evidence received at the would, thus, evidence which be devoid of Thus does not seem warranted to anything aggravating of an nature not attribute to our own Con- either Circuit directly in reflected the commission of or to the ference Judicial Conference charged. the crime Even if the two- United States a disrelish for the step, however, took this the committee step procedure any all cir- prepared permit this action And, above, cumstances. indicated final. be was still legislative I neither do find in the record power to any affirmatively decide between death and hostile attitude towards Congress. think, imprisonment, only part it on life but there- a hear- after Clearly, Youngdahl Judge a reached both decision on the issue guilt. Jersey thought jury’s Finding New mention such a procedure punishment statute, termination of be in- concluded should he implied.” that “it should not be formed But he evidence addition to that assumption only guilt. did on the so relevant to the issue of But that the defend they espoused ant could introduce the alternative it with character evidence carries very punishment prejudice relevant to the choice of risks of and confu- be only two-step procedure fore sion can rendered And he verdict. view, that, my enough, further noted eliminate. the case before him, objection jury merely exposed moot, the defendant’s that formation to in- pertinent pun- since had been to the issue unable and a ishment. We sentence of im can have confidence prisonment integrity imposed by had been the reason when choice their Jersey exposure follows, Supreme court. The New than rather Court interrupts, argument was confronted their consideration of the de- the same respect guilt. Jersey Judge New discre fendant’s To the extent that tionary Youngdahl’s split- reluctance to follow statute State v. Mount, approach 30 N.J. 152 A.2d verdict Congress rests on the belief that two-step pro That court concluded intended there but that a single my verdict, reading legis- necessary, “nothing cedure was not history present legislation in the terms of our lative that me to the conclusion leads * * * Congress consciously [citations address omitted] did not directs the And, general problem. background exclusion itself to the absent testi mony contrary Congressional expression, that, pending and we believe fur legislative enactment, involving essentially ther conduct matters the interests justice of trials and control introduc- be best served our if judges evidence, judicial exercise discretion tion believe this court is permit procedural prin- toas defendants in free establish its own murder cases ciples. background to introduce such within reasonable limitations.” 30 N.J. 219, 152 at A.2d 355.

95 ety individual, fore, prescribe or and it hath the that this is free two-stage by experience, procedure found as the been these of the the use by objects purpose mod- are better obtained one fitted to effectuate the best penalties, Congress the erate but certain than of in this to secure statute public punishments: and of the accused and severe interests the excessive duty every alike; pro- of And whereas it is the and I have made reform, government appellants. endeavour cedure available these offenders, than exterminate rather say I am authorized to that Chief ought and of the death Judge Wright Judge Bazelon and Circuit inflicted, never be where it is join foregoing opinion in much of so absolutely necessary public to the as is addressed to matter two- Therefore, safety: procedure. step I. Be it enacted “Sect. Representa- and House Judge (dissenting WRIGHT, Circuit Senate of of of commonwealth tives concurring part): part Assembly Pennsylvania, in General evidence, At close of all the counsel hereby met, and it is enacted representing appellants for a moved authority same, no crime That degree judgment acquittal of first as to (ex- whatsoever hereafter committed ground insuffi- on the murder there cept degree) murder of the shall proof premeditation of and deliber- cient punished with state be think the motion should have ation.1 I Pennsylvania. of granted and the submitted to case II. And the sev- “Sect. whereas lesser offenses included offences, un- eral which are included manslaugh- of murder and second general of der denomination ter. murder, greatly from differ each atro- of their other were “Premeditation deliberation” unjust that it is ciousness involve as a introduced into the law of homicide punishment: Be them same eighteenth century opposition result Authority enacted further aforesaid, capital punish- widespread use of murder, all That no de- ment.2 At common law there were perpetrated by poi- shall means grees murder, and all were murders by lying wait, by any son, punishable by death. the Penn- wilful, kind of other deliberate * * desiring pun- sylvania Assembly, to make killing premeditated shall 3 “sanguinary,” less enacted ishments deemed murder of the first following changing common statute ; gree and all other kinds of murder establishing mur- two classes of law be deemed in the second shall * * ders: degree; *.”4 5 of Colum- states and the District Other design pun- “Whereas following Pennsylvania, bia,6 the lead of prevent is to commission ishment murder, degrees two have established crimes, injury repair and to using words, same “deliberate thereby that hath been done to soci- Essay Tyson, appellants, on the Law of 3. Penal 1. indictment under -which Pennsylvania (1827). tried three counts. felony murder, robbery, pre- charged r (Pa. 4 Journal Senate Appellants meditated murder. were ac- e 1794), quoted Keedy, op.cit. supra Note felony murd emitted r . 2 at 772—773 Pennsylvania Keedy, History Degrees Creating Murder, Statute Md.Code Ann. § Art. (1949); 97 U.Pa.L.Rev. Wechsler (1957); (Supp. Va.Code 18.1-21 § Michael, & A Rationale the Law of I, Homicide: 37 Colum.L.Rev. (1937). D.C.Code 703-704 6. 22 distinguish premeditated,” between The Government’s shows that appellants them. arrived their victim’s Compared home unarmed. with their language Pennsylvania stat- victim, they slight stature. were men history surrounding ute, its en- and the knocking. They were after admitted actment, no doubt that leave deliberation Subsequently fight developed a in which premeditation elements and are basic by being on the victim was struck killed degree.7 of The first murder part head with of a wooden table imposed dreaded of death is top, presumably having the table pre- murders are which those fight. Appellants ap- broken were deliberate, those meditated and such as parently unaware the victim was dead.11 “perpetrated by poison, of or means However, they took his wallet and left 8 lying held, in wait.” As this court has apartment. his required involves, at deliberation thought least, process evidence, of is car- If this were all seriously appreciable argued ried on time before the some that a sufficient showing premeditation killing.9 of and require delibera- To less is to obliterate tion had been made to take the case the distinction between first and second degree on murder and thus to frustrate the murder charge. relies purpose Therefore the Government sole of statute.10 impulse; prospect Keedy, supra den or that op.cit. 7. Note 2 771. See at likely the death is more to de- Comment, 8. See 19 So.Cal.L.Rev. 417 men ter from deliberate than from im- (1946). Many jurisdictions expressly in ”* * * pulsive murder. clude blood” an element “cool state of Bullock, Prior a dictum Bostic v. concept or calmness in of delibera States, App.D.C. 167, 170, United 68 94 People Thomas, 880, tion. v. 25 Cal.2d 636, (1937), denied, F.2d 639 cert. 303 (“determined up 7, (1945) 156 P.2d 17 635, 523, U.S. 58 82 S.Ct. L.Ed. 1095 * * thought on as a careful result of (1938), had said “this does re * * coolly steadily *”); carried and quire lapse days hours, or even Faust, 101, v. 254 State N.C. 118 S.E.2d phrase However, minutes.” “or even 769, 772, (1961); 1422 96 A.L.R.2d part minutes” cannot be taken as Cade, 1132, State v. 82, 326 Mo. S.W.2d 34 holding Bostio, for the facts in that (1930); State, 83 Hamblin v. Neb. 81 case involved a deliberation of at least (1908). 115 N.W. several minutes. Ibid. While it is true time, necessary requires 9. As to the held element this court deliberation specific States, lapse time, App.D.C. in Bullock v. no United is difficult to n imagine 220, 220-221, 213-214 how F.2d sufficient deliberation could present (1941): lapse without of “even “ * * * speak premeditation minutes.” See v. To Tucker United U.S.App.D.C. 250, and deliberation which are instantane- 318 F.2d 221 ous, time, appreciable (1963). or which take no deprives is a contradiction terms. statutory requirement Michael, op.cit. supra the ing mean- Wechsler & of all Note destroys Cardozo, statutory at 707-709. See What distinc- Medi- (1928), Can tion cine Do Law between first second For Writings Benja- Hall, murder. common At law there were no Selected oe degrees murder. If the accused had min Nathan 383-384 Cardozo overwhelming provocation kill, equally guilty appellants apprehended he was car- whether he The were with- killing. ried out his murderous intent once in minutes after The Govern- witness, Ryder, or after mature reflection. Statutes ment’s Mrs. Elizabeth ours, distinguish following like deliberate testified that remarks were premeditated appellants pa- from other made while the were in the murder, wagon way police reflect one who belief trol on the sta- tion; meditates an intent liberately kill and then de- danger- said, executes it is more “Richard [Gordon] ‘He looks ous, culpable capable pretty up,’ Frady more like he’s less messed ” said, reformation than one sud- who kills on ‘He looks like he’s dead.’ taking convictions, place particularly Criminal several occurrences some killing. capital cases, may appellants speculation before the not rest on time driving slowly by the victim’s were seen Evidence which creates conjecture.14 killing. suspicion, grave suspicion, house on afternoon before the even killing, is not About hour before the sufficient to sustain a verdict pointed of them out the This court has held drove one that the guilt.15 picked up appellants require acquittal must house. One of the when the glove entering such, the victim’s evidence is as to before element killing. apartment night charged, offense man on the that a reasonable necessarily in a must Parts of a conversation restaurant reasonable shortly Applying standard, were doubt.16 do overheard before crime. George talking appellants not think here was sufficient Bennett, premeditation question a brother of victim. One to submit the appellants jury. heard to ask Ben- deliberation to the Therefore chest, in nett “if hit a man could I would of first he reverse the conviction degree you puncture or break a rib and fracture murder. lung, person,” could it kill to which a a II replied, Bennett “You have to hit a man sentences, my judgment, in These leaving pretty hard.” As may not stand for another reason. restaurant, appel- Bennett said to the adequate defendants were not afforded good get lants, you job you “If do a will mitiga- opportunity to in offer evidence a bonus.” provides no criteria The statute tion.17 evidence, may suggest This it a while guide making jury to in its deter- premeditated deliberate intent enter But mination between life death. illegal purp statutory guidance for the victim’s home does this absence of necessarily jury’s punish- ambiguous support limit is too a find ose,12 developed to the facts ment consideration ing of an intent to kill.13 It is consist guilty proving in the defendants kill or an ent with either an intent charged. crime injure Thus, in intent but not kill. logic sentencing, law, Ordinarily, in such infor- as well as in does neces offender, sarily background provide proof specific as the intent mation record, physical premeditated prior his to commit murder. his criminal (1947). jury appellants 1511, L.Ed. 1850 12. The convicted of rob- 91 67 S.Ct. bery. higher supra. standard than the Note 1 This is See applied in evidence” civil “substantial test injury, 13. An un intent to inflict serious Goldstein, and the The State cases. See accompanied by premeditation, is suffi Advantage Balance Accused: murder, for but first cient second 1149, Procedure, Criminal 69 L.J. Yale requires, in addition to (1960). 1152-1163 premeditation, kill, specific intent is, that States, to take life. Sabens v. United mitiga- suggested that evidence in 17. It is App.D.C. (1913). 40 440 Cf. during offered could have been tion Hansborough States, v. United 113 U.S. However, ad- trial. if such evidence were App.D.C. 392, (1962). F.2d 308 645 mitted, then in- the Government could aggravation Anzoategui States, which troduce v. United 118 U.S. evidence appel- highly prejudicial App.D.C. 337, (1964). F.2d would be 335 1000 question guilt generally, on or inno- 1 lants See Criminal Wharton, appellants (12th 1955). 11 cence. Thus the would have § ed. Evidence preju- risking to choose between serious States, U.S.App.D.C. 15. Scott v. United 98 question cause on the dice to their guilt 105, 107, 362, 232 F.2d 364 offering any and not States, supra 15; mitigation 16. Scott United v. Note before for the to consider Cooper States, U.S.App.D.C. passing presence v. United on the sentence. The (1954); Curley virtually 218 F.2d 39 v. Unit of appellants’ opportunity dilemma eliminates the this U.S.App.D.C. 389, 392, ed to offer evi- such 229, 232, denied, F.2d cert. 331 U.S. dence. health, thereof, questions or lack mental con- These constitutional can be proper penalty. by requiring imposing avoided sidered trials under (1961) proceed of Criminal Federal Rules D.C.Code 2044 in two Rule 32 report stages.22 requires pre-sentence stage Procedure In the first containing “any prior guilt record of would criminal or If determine innocence. information about the defendant and such are found of mur- defendants characteristics, degree, mitigation condition his his financial der facts in affecting aggravation presented be- and the his circumstances should then be may helpful imposing havior as sen- same purposes proper predicate tence.” One of behind the on its which to base allocution, right judgment has traditional on whether defendants cases,19 special capital using al- By two-step status in is to live die.23 plea procedure, purpose low the criminal to make a convicted of 22 D.C.Code § leniency court, or, in this before 2404 that the determine the sentence case, jury, pro- capital about cases is effectuated without concepts frustrating Modern policy underlying the sentence.20 nounce Rule namely, stress the individualized that the in criminal sentence considering, importance purposes pre- cases be based allocution fixing penalty, information which information, merely sentence and not guilt.21 is not related to the issue Yet determining the facts considered in information was none of this available or innocence.24 jury which sentenced these defend- Judge Chief Bazelon concurs in the ants die. foregoing opinion. II Part of this giving jury pun- fix discretion to Ill Congress capital case, ishment in a did respect inadequacy With of not, my opinion, pur- a demonstrate jury poll and the court’s instruction to pose deprive defendant jury, Judge Fahy’s opin- concur in pre-sentence benefit of information and ion. right of his traditional of allocution. MILLER, questions constitutionality of un- WILBUR K. Circuit Serious Senior Judge, surely BASTIAN, process der the with whom Cir- due clause Senior any attempt, Judge, capital arise from cuit BURG- limited to DANAHER and cases, ER, Judges, concurring deprive op- join, a defendant of the Circuit judgment portunity part of to inform court or the which affirms respect sentencing convictions, dissenting to its from that function. eye (2), interpreted pos- 32(c) Fed. R. Rule Crim. P. must be “with sible limitations so as to constitutional States, 118, 129, 19. Ball v. 140 United U.S. validity.” avoid Lucas v. doubts as to its 761, (1891). 11 S.Ct. 35 L.Ed. 377 See Alexander, 573, 577, U.S. 49 S.Ct. 279 States, also Coleman v. United 118 U.S. 426, (1929); L.Ed. 851 United States 73 168, 558, App.D.C. 176-179, 334 F.2d Rumely, 41, 45-47, v. 345 U.S. S.Ct. 73 (en banc) (concurring (1964) 566-569 opinion 543, (1953). 97 L.Ed. 770 Judges Burger McGowan). Note, 23. See 39 N. Y. U. L. Rev. 50 States, 301, 20. Green v. United 365 U.S. (1964). 304, 653, (1961); 81 L.Ed.2d S.Ct. 5 670 States, policy part U.S.App.D.C. Couch v. This is seen in 22 United 292, 295-296, 519, dealing capital 235 F.2d 522-523 § D.C.Code (en pending (1956) (concurring opinion banc) cases ment, time its enact Judge Fahy). supra Coleman v. United 19, procedures pro Note and also in the People 21. Williams v. State of New 4208(b). vided 18 U.S.C. Unit § See York, 241, 247, 1079, 337 U.S. 69 S.Ct. Behrens, 162, ed States v. 375 U.S. (1949). 93 L.Ed. 1337 295, 11 S.Ct. L.Ed.2d course, is, 22. It well established rule statutory construction that a statute guilty portion degree sen- of murder which sets aside the death the first as charged of life im- tence and orders resentences would result the death put proper prisonment To these cases unless it included a unanimous recom- : origin focus, imprisonment their mendation of life re- I summarize or a port disagreement velopment. punishment. In a indictment as to three-count 1963, jury- Having April 29, grand instructed, been so returned re- premeditated accused the turned a District Columbia verdict under the Frady charged appellants, Joseph “guilty C. and Richard murder count of degree Gordon, (1) premeditated mur- A. murder” without recommen- Bennett, (2) imprisonment report of Thomas dation der the murder of life robbery, disagreement perpetrating punishment. of Bennett while as to At the robbery polling (3) jury, said, of Thomas Bennett.1 each member “Guilty charged of first mur- guilty, Upon pleas appel- of not der.” lants were to a in the Dis- tried Accordingly, 6, 1963, ap- on December George presided by Judge trict Court over pellants were sentenced Hart, began 29, L. Jr. The trial October convictions, the first 1963, 7, and ended on November required by They the new statute. guilty verdicts of not un- were returned imprisonment from five also sentenced to charging per- der the count murder while years robbery to 15 convictions. petrating robbery, but appeals These followed and were heard robbery pre- the other two counts of sitting en banc. us meditated murder. As to latter carefully affirming instructed the are We unanimous robbery convictions, nothing in strict accordance with recent- more ly Eight enacted statute: a verdict of us about that need said. are 1. The first The third count was based on § D.C.Code follows: 22-401 or bery, not less than six months nor more than putting whether fifteen trate prisonment malice perpetrating perpetrating petrate any arson, ly, thereof another robbery, breaking or son or immediate in the first dangerous weapon, out or and 22-2401, “Whoever “Whoever, being attempting either of deliberate and stealthy purpose discretion, or any years.” or in shall anything against (1961), kidnapping, while armed with or two and fear, degree.” by 22-402, rape, mayhem, in the offense seizure or D.C.Code so to do inor or by suffer means of counts shall take from the kills another resistance or perpetrate any attempting penitentiary, actual force or as attempting punishable by of sound inor value, imprisonment person defined in guilty reads; snatching, kills were based on (1961), poison, possession premeditated perpetrating another of murder by convicted purpose- 22-2901, violence, or with- memory using section sudden house- perpe- or or per- per- rob- im- for by of in in 2. Section which is in 1965), ishment it which case the court shall sentence the by accordingly; ment.” punishment tion defendant shall mous vote the charged, the court shall diction ther a sentence of death thus first thereupon ant is death provided, amended able of tion recommends life “In v “The guilty may by law its jury, having or life unless prescribe degree sentence 76 Stat. any by 22-2404, verdict agree upon punishment is unable to where electrocution unless the pertinent part # case tried impose to death imprisonment. shall inform shall be at except in but if the conviction of the defend- court indicates that the defendant to suffer life jury by unanimous vote thereupon D.C.Code determined imprisonment; ¥ and returning imprisonment; of the defendant as death penalty prescribed of murder shall sentence March shall cases otherwise unanimous vote punishment, as follows: the court by by (Supp. as to impose by electrocu- electrocu- imprison- shall it is verdict Act as in fix unani- juris- or if ^[*] pun- him and and un- IV, the ei- in affirming In expert favor mur- well. An testified that blood Judge Wright, except appellants’ der convictions —all on the clothes was the same acquittal type who thinks of first mur- as Thomas Bennett. The bloody der should have been directed. Never- appellants boot of one of the had theless, I shall facts somewhat plate partly state the a metal heel in circular jury’s shape. detail so the motivation of the And, verdict these understood. George Wesley, one the two officers fitting capital cases, are I think it scene, who first arrived at testified argu- proper appellants’ also to discuss that, appellants placed after were being ments reversal which are re- patrol wagon, say he of them heard one jected. that “that old man back at house was Between and 9:00 o’clock in the 8:30 shape.” in bad This was corroborated evening 13, 1963, Sophia of March Mrs. Ryder, that, Mrs. who testified after she knocking Huth heard at front door placed wagon patrol ap- was attached next door —1109 house pellants, say, she heard Gordon looks “He Street, Savannah S. E.—and soon there- pretty up,” like he’s messed to which though after heard noises therefrom as Frady replied, like “He looks he’s dead.” fight progress. Then, she were meantime, had there screaming help, heard a man’s voice velopments Savannah Street. telephoned police. patrol she A Two more had officers arrived there wagon policemen with two aboard arrived police They another had entered car. within two or three minutes and one found front room in a shambles. The alighted. appel- the officers He saw the broken articles were either furniture they Frady just lants Gordon complete disarray and blood came out the front door of body spattered on walls. say, cops,” heard one them “The lay pool of blood Thomas Bennett in a away. pursued ran This them officer He the floor the foot of stairs. near followed them with foot the other cruelly His head had been murdered. wagon. from blows been caved several appellants turned the corner into of blood a blunt instrument and a mixture got 11th Place and into a car which was coming wounds. from the brains was parked running. there with its motor body Subsequent re- examination woman, A afterward identified as Mrs. circular, partly wounds or vealed bruises Ryder, Gordon, Elizabeth a friend of apparently some article inflicted already ap- seated the automobile. As body shape. On or under the pellants approached car, waiting the the top, pieces of which one broken of a table pursuing officer on foot saw of them one witness, police was later described something paving throw the an during by appellants’ cross-examination just they automobile behind the one en- counsel, weapon. He as the murder they pull away, tered. Before could the morgue which conducted a at the test patrol wagon arrived blocked them. piece particular of wood showed that wagon approached, Ryder As the Mrs. head into wounds on Bennett’s fitted the companions say, heard one her victim’s from which the he died. One “They’ve got us.” told She the she eyes its socket from had been knocked appellants’ clothing saw no blood the lying of- when the and was on his cheek they when left car but noticed that ficers arrived. bloody they both were At returned. later, twenty officer Some minutes command, appellants the officer’s appellants who had observed one got the woman out and into were taken just something be- throw into the street custody. Frady and un- Gordon were waiting armed, fore car returned but both had he entered fresh blood their clothing bloody and one had face as and found a wallet contain- to the scene ing currency personal pa- States,5 in v. $87.00 United where the Tenth Cir- pers property cuit it as identified said: of Thomas also found there Bennett. He “It is further contended that gloves.3 pair pre- evidence did not show malice meditation to warrant a verdict of The first advanced reason reversal guilty degree. in murder the first by appellants in is that the court erred It is stated in Wharton on The Law denying for a their motion directed ver- Homicide, Ed., 3rd fol- § count dict of not under the first produces Tf lows: the act which charged premeditated murder.4 death was attended with such cir- they admit, eifeet, brief ordinary cumstances as are the were the house at Savannah symptoms wicked, depraved, of a fight Ben- Street and had a with Thomas malignant spirit, law They nett, as a of which he died. result imply malice without reference say: passing what was mind of “The fact that the defendants were slayer at the time the fatal fight deceased, shortly in a with the act.’ deceased, the death of before cruelty brutality “The fact that seriously disputed. is not The kill- killing manifested will raise ing violent, particularly itself was an inference of malice. 29 C.J. very but and an violence itself length premedi- 73. of time of possession utter lack dan- material, tation is not and the cir- gerous weapon, that it was indicate act cumstances committed impulsive killing and not done premeditation. appellant show premedita- with deliberation and Suhay Cir., v. United (Appellants’ emphasis.) tion.” Consequently, F.2d 890. there appel- no merit this contention do not this contention that lant.” killing the violence the fact piece argue appellants it was done with a of table assume the mean danger- top of with a traditional instead Ben- was not for Thomas that there time weapon impul- premeditate ous indicate that it was murder nett’s assailants sively done, premeditation. without fatal blows struck. We before the were Quite contrary, premeditation the bru- I think time for have held tality killing killing tends to indicate can must be shown before premeditation. degree. It was held Evans But in Bostic Significantly, weapon Upon filed the murder bore Government motion of the fingerprints. 3, 1963, appellants com- June both Hospital Saint Elizabeths mitted to noteworthy in- It is the defense of days. period not to On Au- a gust 22,1963, exceed sanity interposed sug- or even was not Superintendent of Saint gested by appellants the trial. Frady appellant reported Elizabeths Although appel- it was not asked competent stand trial and that so, to do lants District Court or- he suffered from no mental disease or 1963, May 3, they dered on that be ex- fect at or or about either that time psychiatric amined the staff of Le- 13, report March A similar con- gal Psychiatric Services, and re- that a cerning appellant August filed Gordon was port upon competency be furnished 26, findings were chal- 1963. These not responsi- to stand and their mental lenged, argued bility and it not here that charged. is for the crimes In two appellants 14, 1963, May found should have been filed on letters the Chief Legal Psychiatric guilty by insanity. in- of reason Services attempted formed the court that he had 461, (1941), psychiatric 122 F.2d cert. denied appellants 466 examinations of the 314 62 L.Ed. U.S. S.Ct. 558 cell block United States May 13, ap- Courthouse on 1963. Both pellants had refused to be examined. fight killing. example, pointed For out tated this court

v. United States Bennett, ap- par- in which that no with Thomas pellants’ that the authorities engaged, necessary they length for de- admits brief ticular liberation; time minutes, according lapse lasted for least ten it is not the at deliberation, testimony neighbor, Mrs. time which constitutes itself physical mind the ac- Huth. reflection condition but the concerning design purpose or to room also that must cused showed the encounter long. kill; from determine that the must have continued at least that was plain preceding and sur- the circumstances from the condition of victim’s killing body rounding reflection whether been struck number of he amounting blows, to delibera- and consideration times in addition to the fatal actually stamped by a.heavy tion occurred. that he had been plate. heel with a metal this indi- All appel- case,7 cited Bullock clearly ample cates that there was time lants, help ad- There we does them. premeditation for the which the ruling simply said Bostic hered to the preceded killing. found that case showed the the evidence sign practically in- was to kill formed was, moreover, ample There stantaneously killing with the act just addition described from consequently, oppor- that, was no there conclude, which did, could as it said, tunity premeditation. We purposely, that the murder was “of done page 221, page App.D.C. F.2d at premeditated deliberate and malice.” At 214: p. day crime, 4:30 m. on the two “ * * nothing delib- There is standing women were at different win- killing premeditated about erate apartment building opposite dows in an or two which is done within a second They 1109 Savannah Street. testified of do- after ing accused first thinks they occupied by saw old car two or, it; think the evidence we persons driving slowly by. white Both shows, instantaneously, appellant, identified the driver of the car as the quarrel, interrupted in his turned appellant Frady. Ryder Mrs. Elizabeth ” * * * and fired. Frady testified she was in a car with along Gordon was driven approved the And in the Bostic case we 1100 block of Savannah Street about 7:00 of those courts statement the rule p. m. on March 1963. She heard one appreciable time that some hold appellant say “something about that elapse in must order that reflection appellants the house over there” and both amounting to consideration deliberation looked toward the south side the street may occur, recognized but we “that this where the victim’s was house located. days require lapse does not testimony From the of these wit- three hours, or even minutes.” nesses, could have concludedthat ruling requires The Bostic us to deter- Frady and Gordon twice reconnoitered mine, preceding from the circumstances they would know Bennett’s house when surrounding killing, and jury whether the evening returned later in the after finding justified that it was completely darkness had fallen. premeditated. Certainly in fact the cir- There still further reason for the surrounding pur- cumstances it show the jury’s premeditation conclusion pose in Mrs. to kill was not instantaneous- formed ly Ryder’s testimony it was the Bullock case. There the events which prolong- was a vicious assault which was Frady her occurred after drive sufficiently ed along before final blows were and Gordon block of Sa- premedi- struck to show a appellants deliberate vannah Street. She and the App.D.C. 167, (1937), App.D.C. 68 94 F.2d 636 7. Bullock v. United 220, 122 (1941). cert. denied 303 U.S. S.Ct. F.2d 82 L.Ed. 1095 glove heavy at 19th Street a of some proceeded restaurant material to a Avenue, W., Pennsylvania where N. kind.” and Bennett, sister, foregoing, was em- From the Grace conclude Gordon’s husband, finding amply justified ployed as a Grace’s was waitress. George Bennett, appellants the murder a brother of were of deliberate Ryder victim, joined appellants premeditated Mrs. murder. latter testified restaurant. appel- It is further contended George appel- tell Bennett that she heard clothing bloody and boot lants that get Frady needed time that “he lant inadmissible the articles were because things She furniture settled.” taken from them as a result were Frady a Bennett “if he hit ask heard arrest; they unlawful what assert was an you chest, rib could break a man say, they claim that the officers that is to lung, puncture could it and fracture or probable take them did not cause to have George person,” Bennett to which kill a they custody just into after entered pretty replied, to hit a man “You have parked on 11th car Place. appellants and Mrs. before hard.” Just responded a re- These officers had restaurant, Ryder heard she left help premises ported from the call companions, George say her Bennett fight progress. where a had been get good job you you “If do a They appellants leave those saw the testimony, which From this bonus.” say, premises, “The heard of them one undenied, could well they away, pur- cops,” then ran Frady and Gordon were concluded that get sued and saw them into a car George Bennett to do assassins hired running. with its motor awaited them get away his his brother in order say there To in such circumstances possessions. furniture and other with- no reasonable basis for an arrest Ryder appellants Mrs. was with the out a warrant is to be unrealistic they restaurant and drove left the extreme; is indeed a frivolous con- got they parked and to 11th where Place to ask a tention. There was time running. leaving car, out of the the motor fleeing magistrate warrant; for a She testified as follows: escape an au- about criminals were They “A car started to leave the have been The officers would tomobile. going they duty and I they asked where failed to remiss their had they just around the cor- appellants said on that occasion detain merely they

ner.8 had not seen the as- because the victim and did then sault “Q right. de- All And did the just done. know that murder had get car at this fendants out argue Appellants the trial also time? rejecting offer to court erred their “A Yes. Bennett, prove that Thomas who lived “Q you see the defend- And did Street, at 1109 had been alone Savannah get- anything prior Gordon do ant years during unemployed ten but ting out? $12,000 in time had accumulated over accounts; that, some two bank him “A He down beside reached murder, private after months picked up object. attorney, employed by tective “Q you describe what And can large discovered in Bennett’s house object was? drugs “goof balls,” known as amount hypnotics principally exactly used to relieve “A know what I don’t 5,000 narcotics, pain of withdrawal from looked like a cuff were. 3, page 101, supra. Bennett, footnote Cf. 8. The home of Thomas “just Street, around the Savannah parking spot 11th corner” from their Place. sought they appellants’ quantity that gelatin capsules, witness empty and a testimony by drug proffered contradict addicts. of the utensils used that, although worked for he had not support that contention In their years, had ten Bennett accumulated appel- relevant, was such evidence during money sum of that substantial say: lants time, two after his and that months “ * * purpose this parapher- murder his house contained two-fold, first, re- evidence was preparing used in and administer- nalia evidence adduced fute the character ing narcotics. beginning prosecution at the judge properly I think ex- the trial lay predicate in of the case and to testimony. believed, cluded such If it argue evidence to that Bennett may have tended to show Bennett was loving, quiet, peace law was not the engaged drug traffic, in illicit but abiding brutally in citizen attacked that would had no have relevance: argued government home, his as the any justified would not rebuttal;' that and as evidence its a murderous him. More- assault man, toto, this character of a over, the admission of evidence that ” * * * un-aggressive. large Thomas Bennett had a sum of They previously brief, money might said their deposit have been well evidence of might “[T]he the character prejudicial appellants, for violence, non, for deceased vel ad- reason, have eyes additional prosecution during duced tes- jurors, George of the Bennett to timony McCawley, of Dr. engage its first wit- appellants his to eliminate ness.” bachelor brother Thomas. observe, however, the Govern- appel- in the indicated brief McCawley merely ment used iden- Dr. lants that wished to show Thomas quarrelsome body morgue tify the in the Bennett was a and violent By asking man, Thomas Bennett. him about support on the idea it would matters, including several theory other Ben- part. of self-defense on their nett’s bizarre behavior at his mother’s They unarmed, says went to his house history funeral and his mental entering. some brief, and knocked before beyond scope disturbance —far suggestion But there nowas or hint of examination, Government’s direct self-defense —the at the trial: there was noth- appellants’ attorney McCawley made Dr. ing entering that, to indicate after Ben- witness, judge suggest- his as the trial house, appellant nett’s either had reason counsel, ed.10 Government as he had a to believe or did believe he was in right do, then Dr. cross-examined danger great imminent of loss life or McCawley concerning as to the matters bodily harm at the In hands of Bennett. appellants’ attorney had made him contrast to the condition of murdered During his own witness. cross- man, appear appel- it does not examination, McCawley Dr. said he had strug- injury lants sustained never known Bennett to vio- Thomas gle, except that Gordon had a cut on his lent. Thus it was a statement forehead. isWhat known as tile federal or Ameri- his direct examination. See also Dixon rule, can which restricts cross-examina- U.S.App.D.C. v. United scope tion to matters within the 303 F.2d 226 ju- examination, prevails direct goes If the cross-examination into mat- Houser, entirely risdiction. beyond Radio Cab v. scope ters the di- U.S.App.D.C. 35, (1942), examination, F.2d 604 rect cross-examiner Justice, our then Chief D. Lawrence makes the witness his own witness as to Groner, general noted the rule that a such matters evidence so elicited party right has no to cross-examine a should be considered as the affirmative witness as to facts and circumstances cross-examiner. disconnected with the matters stated

105 although orig- where, suggestion made for the first the defendant The is may inally provoked conflict, appeal he with- Bennett time on that fight good faith, aggressor from in the draws been they clearly appellants, acted announces his desire for and that therefore they peace. pursued this, he him to If in self-defense when battered be after though out, right self-defence, already pointed been his has death. says lost, course,” however, were once revives. “Of that there circumstances killing referring during Wharton, this Mr. before justified, require, rule, they if must least did not modification of “there on Bennett be real and surrender and inference that their attack bona fide they being so, for, premeditated. part; That on his if there withdrawal position not, self- be are in no now to assert be then he will continue they aggressor.” they proved regarded if had 1 defense even reasonably Ed.) Whart.Cr.Law, (9th that their lives fearful § they might danger meaning principle suffer is that were in or that The ago original great Long bodily always court harm. this law leave say aggressor repent opportunity had a defendant who occasion an upon premeditated his commits a assault he his adver- before takes the life of Ed.) sary. (7th victim that he killed self- 871/ cannot claim Bish.Cr.Law Recognizing exception This found in statement is to be a defense. this Hopkins App.D.C. just said, one, properly v. United (1894) : must addition: ‘Due caution by juries in observed its courts laid in textbooks of “It is down principle application, as it involves a high authority, and also decided very which is liable to abuse. cases, appears if good question of or bad faith any way premeditat- conflict was in retreating party of the ut- is defendant, ed defense gener- importance, and should most longer no set [self-defense] can ally jury in con- be submitted up. proven And it must be that the of retreat nection the fact upon im- assault the defendant was itself, especially where there minently perilous. The defendant conflicting for inferences on room clearly must show that he was at- point Both from the evidence/ tacked, good reason that he parties are to a mutual combat was in believe that he imminent wrong-doers, self- and the law great peril bodily of his life or of ** *” either, defence cannot be invoked harm. long com- so as he continues who This rule a defendant com- *” ** bat. premeditated upon mits a another assault here, exception application subject has claim self-defense is nothing for evidence to exception, pointed there Mr. Jus- out they appellants, com- indicate that the if tice Harlan in Rowe v. United States.11 premeditated assault mitted “ * * * State, In Parker v. found, ever Thomas Bennett as 4, 6, 7, 98, 99, the Ala. 7 South. they any way or in retreated indicated general court, adverting after purpose had abandoned their deliberate aggressor rule that cannot be by Bennett, and were thereafter attacked urge justification heard to in his might he take feared necessity killing which was bodily harm. lives or do them enormous produced by wrongful act, own his argument rule, however, presented appel- ‘This is not said: Another application. absolute and universal lants is that Court failed the District exception adequately An issue of to it exists cases to instruct 546, 556, S.Ct. 172, 174,

11. 164 U.S. 41 L.Ed. They say evidence. circumstantial following the later case of Hunt v. United instruction, approved States,13 in Carter we said: “ * States,12 * v. United should have The ultimate test given: however, case, in a criminal you “If find that these inconsist- is whether the defendant has been ent theories you innocence evidence.” guilt, any ent with must innocence] acquit, must reasonable [a hypothesis because to establish hypothesis excluded are in hypothesis consistent balance, consist- Following is proved guilty beyond direct ^[*] doubt. This “the better ^[*] *» or what relied on for conviction circumstantial, rule,” applies we held that Supreme a reasonable whether or Court both. “where is said jury properly is instructed other- noted, however, is It opinion merely Carter that wise on the reasonable standard language approved in language doubt, charge in Carter charge, say judge’s the trial and did not case, required.” present is not In it must be used. Holland v. United charge judge’s on reasonable doubt States, 121, 139-140, 348 U.S. 75 S.Ct. attacked, it is not observe that 127, 137, (1954), up- 99 L.Ed. 150 adequate thoroughly was accurate and holding the trial refusal in- court’s setting governing forth the standards. struct that “where the Government’s evi- being so, required That the court is dence is circumstantial it must be such the Holland case to hold the circum- that every hypothesis as to exclude reasonable appel- stantial evidence instruction the guilt,” Supreme other than say given lants should have Court said: confusing have been and incorrect. “ ** support There is some Ryder Appellants’ type contention that Mrs. for this of instruction in the should not refresh have been allowed to cited], lower court [cases decisions memory by referring her her written but the better rule is that where the is properly statement is so insubstantial is on instructed necessary not doubt, discuss it. And standards for reasonable such further contention that the evidence of an additional instruction on circum- robbery confusing was con- insufficient to sustain a stantial evidence is patently viction under is incorrect that count [cases and other authori- taking frivolous. of Bennett’s wallet ties cited].” robbery whether it was taken before court, 1957, writing The Carter Anyway, or he after was murdered.14 Supreme of course was familiar with the appellants’ complaint of their conviction So, Court’s Holland case robbery is fact moot in view the must be concluded that in the Carter premedi- that their conviction under the case the court considered count, tated murder with it which carries properly not been otherwise instruct- greater penalty, being upheld. is doubt, ed the standard for reasonable and that Complaint therefore the additional instruc- made that the trial tion on excessively witness, circumstantial nec- evidence was examined defense essary. prejudice appellants. I think however, U.S.App.D.C. clear, charg- 12. 102 252 F.2d 608 it ing count (1957). during perpetration robbery unless could not be sustained U.S.App.D.C. 1, 3, 13. 115 316 F.2d Bennett was alive his wallet was (1963). ap- taken. Doubtless found the pellants not count Carey U.S.App. v. United not because the evidence did show wheth- 300, 304, robbery place D.C. 296 F.2d er took before judge’s charge correctly The trial made after death. Judges Fahy, but, say, Bazelon, proper; Wash- questions is to criticized ington, Wright McGowan, make not, who they were asked all whether so setting majority up aside which are presence could out of the remanding body. the death sentences and possibly have influenced that imprisonment, resentence respect situation Such is the one of the three been able to being set forth above is the order justifica- opinions attempted written order in the court —an entered interesting to of their tion action. It part which I dissent and from concur given note that none of the reasons begins part. thus: opinions support those three judgments conviction of “The argued majority or even action robbery murder and suggested appellants. by the are affirmed.” agree, Nevertheless, I fully shall discuss those With much the order this of beginning given opinions, of preceding with those three for the reasons in Wright They Judges ad- opinion. and McGowan. portion It reflects the of this Wright, theory that, Judge of except vance the because of of us view all degree statute,16 murder for first a trial from of who dissents the affirmance stages. degree proceed in two distinct should murder first convictions. They say first determine should unanimity of the substantial There the guilt innocence, ad- on the The sentence court ends. next decisional determined, duced; then, be if majority order, entered stage which the held at second should be Fahy, Judges composed Bazelon, facts be to show defendant will allowed Wright McGowan, Washington, is mitigation jury’s for consideration in reads the occasion this dissent. for fixing penalty. as follows: are aside “The death sentences set Although provision in is such there no appellant each with directions that colleagues statute, my minori- imprisonment to life resentenced legislate join who them would ties first on the verdicts Moreover, they make their would effect. degree murder.” by applying it theory retroactive novel nullifying cases, partially thus these know, justification no As far there is two-stage jury’s because verdict action; ease for such statute or law re- or now was not then trial —which appellants in and the crime Having reached quired not held. was so effect admit committed15 —was colleagues my conclusion, I am sure this unspeakably that commutation horrible quandry do to what in a war- the death sentences would not be long cases, since for the these pardon- ranted if this had the even discharged possi- and there ing exercising power here. which it is stage bility second of a remand for the Judges Wright opinions Fahy, analogized might hearing. They have minority opinions; are McGowan all prior to the cases to those tried these except majority opinion, there is no for which 1962 Act date effective convictions affirmance provision;17 special robbery. That makes first that statute 22-2404, (Supp. appellants say brief, IV 17. D.C.Code 15. The “The Section following: 1965), fight includes the fact were in defendants prior deceased, shortly March “Cases tried 22. before the seriously deceased, the court for and which are before death of the disputed.” is not They purpose resentence shall of sentence or “The also state that provisions governed killing particularly lawof itself was violent $ * * prior to March 1962: in effect may, Provided, in his That discretion, circumstances consider See footnote sole only slight presentence report mandatory. would have involved ad- is not legislation. judicial Instead, 32(c) (1) provides ditional they Rule “ stage, * * * chose to assume that a second probation service held, had it been mitigating have would revealed presentence of the court shall make a justifying facts investigation report to the court imprisonment. One who has read imposition before the sentence or cases, transcript of evidence in these granting probation unless the ” above, * * I have summarized court otherwise directs. great difficulty envisaging any (Emphasis added.) mitigating facts which could have been holding The authorities are unanimous in presented. presentence investigation that the stating personal preference After his mandatorily required. See, example, two-step for the following the Karavias, cases: United States v. Judge cases, frankly says: McGowan 1948); (7th 170 F.2d 968 Cir. therefore, problem me, “The Schwenke, United States v. 221 F.2d 356 two-step not one of merits (2nd 1955); Cir. United v. Wil States procedure, ap- but whether it liams, 1958); (3rd 254 F.2d 253 Cir. propriately be adhered to Visconti, United States v. 261 F.2d legis- explicit oourt the absence (2nd 1958), Cir. cert. denied U.S. ”* * * provision lative it. (1959); for 79 S.Ct. 3 L.Ed.2d 762 (Emphasis added.) Roddy (10th v. United 296 F.2d 9 Judge 1961). believes, Cir. however, McGowan “ * * * although that, Congress theory I shall not further discuss the provide did two-stage in terms for the a that in a first two-step procedure in required 22 D.C.Code murder case should be for the Judge Burger neither can it be have ably said to reason that and has against employ- subject set its adequately face in his dealt with procedure implemen- of fully ment separate opinion, that with which tation of this statute.” concur. legislative Judge

Thus authority Fahy’s he admits there is no minority opinion ad- two-stage requiring justify vances two other reasons to majority’s degree case, says trial of a first and unusual action in these eases: “implementing” he is ing (a) add- statute in that error in the there was instruc- provision. to its terms new (b) The penalty; poll tion as to and that the Congress 22-2404, unanimity which enacted § did as of not show D.C.Code, perfectly knew punishment. well how Despite the fact that provide two-stage trial, accept- be propositions neither these was portion seen from the majority court, that statute ed I think reproduced in proper footnote 17. The fact that to discuss them. it did not do so me indicates to that alleged As error in instructions against employment had “set its face penalty, as to little need be said. The in- procedure.” of that clearly structions a whole and correct- provisions ly problem the Federal Rules how the told the having punishment by it, Criminal Procedure to do with be handled and should investigation 'presentence (Rule 32(c) any juror suppose it is difficult to that (1) (2)) support slightest that, and cannot be used in could had the doubt have two-stage trial, disagree- to, one of if he wanted he could cause opinions attempts do, punishment because the as to which must ment mitigation aggravation im- shall sentence the defendant to life prisonment. make a determination as to whether Such a sentence life opinion justifies imprisonment case his a sentence shall be in accordance imprisonment, provisions of life he which event Act." this is, course, reported It add to the court. and do not elementary your that court’s instructions recommendation to verdict whole, you say that considered as a do not agree are unable are singled portion penalty, and con- should be out defendants’ whole demned as erroneous must be sentences death. charge clearly correct. “Similarly, by a unanimous if vote you life theory recommend a im- sentence in the I turn next to prisonment, this-will be the sentence poll jury it error not to ask If agreed juror the defendants would receive. you he death each if to the unanimously are penalty. theory unable to some assumes that recommending imprisonment, ques- juror may life supposed have that the you process polling then must so inform the Court. tion asked duty agreed then becomethe to the ver- as to whether he sentence, degree murder, impose Court either dict of of first punishment imprisonment. death without -reference to therefor; under- that he not have your duty “It is return a ver- being asked wheth- stood he was also charge case, you dict in agreed imposition of the er he to the you fully should deliberate penalty. death regard completely punish- ment. reach an in- You must each jurors I do could not believe the regard. dividual decision in this carefully failed to understand This decision includes the alterna- charge language judge’s phrased tives, or life electrocution concerning for first imprisonment. duty respon- gree murder, jury’s sibility respect thereto, and the “This is the law as the law but meaning unqualified verdict of an your requires also verdict be charge: guilty. quote from unanimous, provides further unanimity cannot be reached “Now, punishment: In as to punishment, as is when all to you defendants find the event guilty your up to less individual views add first-degree either murder decision, a unanimous then than Count it then under Count fixing event, duty in such sen- your duty to deliberate

becomes upon the tence falls Court. im- which will be posed. The in the District Statute summary, you “In if find the de- regarding punishment of Columbia degree guilty mur- of first fendants first-degree as reads der in the first or second either follows: you count, may return a verdict of “ charged guilty require as which will punishment of murder ‘The imposition degree death death first shall be guilty charged jury as recommen- by with unless electrocution imprisonment; and if by dation life unanimous vote recommends agree you are unable to or reach or, jury imprisonment, if agree unanimous decision these, either of as to punish- is unable to as to the your duty it will then be ment, Court it shall inform the inform the Court.” thereupon shall the Court jurisdiction impose and

have this, judge addition to handed impose shall either sentence containing juror with each a document im- or life electrocution respect description of the count a each prisonment.’ verdicts, explanatory possible notes. with you law, mur- “Under this if return As to the first count of first (that appellants guilty verdict of of murder der which the guilty), read “And were found the document then below are further in- structions, previously as have follows: as I given, penalties, about the “First Verdict...... Count perfectly you.” will clear Degree “First Murder .............. significant Then the added (Possible Verdicts: comment: Guilty. 1. Not “Now, the members of the charged Guilty De- as of First 2. who are or the fore- foreman gree Murder. woman note on their make a charged Guilty 3. as of First De- you copies of these so that if should gree Murder recommenda- polled your after verdict is Imprisonment. tion Life ready side, you either your reference to is.” what verdict charged Guilty 4. as of First De- gree Murder un- The foreman wrote into the blank agree punishment. able as to after the word “verdict” on' the first charged “Guilty Guilty De- count form the words as Murder 2nd gree. Degree signed of First Murder” and polled, document. When Guilty Manslaughter. you juror asked, say each “What as Jury : If the (Note a verdict returns 1?” to the defendant on Count and each Guilty charged Degree language as Mur- First answered exact (being 2), signed der No. foremen, recom- “Guilty makes no verdict as Imprisonment mendation Life as to charged of murder.” It will Jury does not that the state unable to be observed that this was the second of agree must, punishment, as to the Court possible shown on six verdicts Law, under the sentence the defendant juror form furnished to each individual to death electrocution. Thus, rejected juror expressly each Jury “If the returns a verdict of Guil- during polling process possible ver- ty Degree charged of First Murder respective- dicts Nos. 3 and 4 read Imprison- with recommendation of Life ly, “Guilty charged Degree of First (being 3), ment No. must sen- Court Murder with of Life recommendation Imprison- tence the defendant Life Imprisonment” “Guilty charged ment. Degree of First Murder with the Jury “If the punishment.” returns a verdict of unable as to charged Degree of First Murder with beyond perad- All this demonstrates Jury punish- the to unable as to venture, think, juror I each con- that (being 4), ment No. the Court will there- intelligently sciously and stated that he duty penalty have to fix the agreed to the which found verdicts impose and will either a sentence guilty imposed defendants and the death death electrocution or a sentence penalty. I see no whatever for reason imprisonment at the discretion any asking questions, them other (The emphasis Court.” Note in this judge carefully explained had so to judge.) is that of the trial they finally them that the verdicts which explained The mandatorily require further form find chose to by saying: him to sentence the defendants to death by electrocution. “If, however, has found attempts not defendant under the The strained and ineffectual [felony they murder], judges second justify count of three to the extraordi- possible nary majority then consider all ver- action of the in these cases [premeditated dicts under the first to leads me conclude the real reason that degree murder], being ingrained antipathy first personal one for it is * * through 6; capital punishment part numbers 1

Ill preju- majority, unless judges even sustain sufficient to it who constitute during progress though they error occurred not aware of dicial said, impugn From has been of the trial. what I do not mean to motivation. amply simply apparent colleagues. good my I is the evidence faith verdict; say supported is no that, merci- and there these in their zeal save prejudicial able doom error in The mercenary the record. from the less murderers Judge they jury, the trial pronounced District conducted thinking fashion, charged actually exemplary into luded themselves beyond validity in a which criticism. doctrines manner in the unsound is there appellants real defense and had no announce. appeal no there is real reason shown penalty on to the death This reaction why they pay should not appellate part of an pro- their atrocious crime which the law says unusual, in an Pomfret John D. jury imposed. vides Penalty” “Law: Death article entitled February in The New York Times BURGER, Judge (concurring Circuit following: included the dissenting part part): “ * * * Society con- has a bad Judge join opinion Miller’s putting criminals science about concurs in the affirmance of the convic- appellate death, some- courts appealed tions from but dissents precedents in con- times set tortured disposition of the issue sentence. ways triving to set death sen- aside all, most, with if not mem- common shocking seem to tences which them court, grave reserva- bers I have or unfair.” concerning capital punishment; tions law, uphold here but we are ob- me that Mr. Pomfret’s seems to engage sophisticated nitpicking prescience ma- servation showed disagreement implement jority’s order our here. action Congress the decision has made on dissenting who are share Some of us capital punishment. Nor is it our func- capital majority the with the view that tion, majority as a has bland- of the court punishment we should be But abolished. ly varying done—for take reasons —to judicial must all realize is our powers over the President’s executive written, duty uphold the it is law as clemency. regardless personal or dis- of our dislike Quite approval recently, Con- of it. gress capital punish- refused to abolish Judge principal opinion as—for Columbia, in the District al- ment majority Miller has stated there though importuned it had been to do opinion quarrels the District — by many organizations. persons In- scrupulously and correct Court’s fair Congress stead, provided 1962 Act charge relating to the neces- jurisdiction in this shall be Judge sity for unanimous verdict. charge, Fahy quotes part of the but one premeditated includes —which if that had been all unanimously jury murder —unless the plausible basis for would be told there imprisonment reports recommends life or not the whole his conclusion. But it is agree penalty. it is unable to as to the Judge story; District elsewhere the cases, jury said, In these as the explicitly with the dealt made no such and did recommendation degree reading aspect, murder the first disagreement report pun- as to the including jurors the direc- statute to the ; pronounced ishment the hence agree- sentences of inform of lack tion to the court required the District Court were Judge punishment. Then the on ment the statute. charged jury as follows: the of The court cannot set aside the verdict the unless the was in- verdict “Under this of guilty law, ^[*] if ^[*] you ^[*] return do your guilt penalty not add recommendation on from the determination. you say verdict or do not are And the individual nature the assess- of agree penalty, penalty unable to on the of ment is likewise made clear: unanimity resulting sentences must be death. lack of in sentenc- defendants’ — ing by put upon equal the court —is an “Similarly if a unanimous vote agreement plane with on or life. death you im- sentence of life recommend a pressure unanimity This lack of prisonment, will sentence this be the penalty equally por- characterizes defendants receive. If charge tions of the which follow court’s you unanimously agree unable are Judge Fahy’s portion discussed imprisonment, recommending life opinion. Immediately passage after the you then must so the Court. inform challenged carefully now went duty It would then become the of over the form of verdict for the second impose sentence, Court either jury: example count as to the imprisonment. death or life possible your duty are verdicts * “There “It to return a ver- four * * you charge You case, you reach. dict in this and I can, you see, you of not fully should reach verdict deliberate charged guilty, guilty completely regard punishment. as to first degree charged guilty murder, You must as each reach an individual regard. decision in to first recom- This murder with deci- alternatives, imprisonment, or, sion includes the mendation life charged four, guilty imprison- or first de- electrocution life as gree ment. murder unable to agree punishment. “* * * toas your all indi- [W]hen ****** up views vidual add to less than a decision, unanimous then * * found “If has event, duty fixing such sen- guilty under the the defendant not tence the Court. falls count, they will second then consider you summary, possible “In if find the de- all the under verdicts guilty count, being any fendants of first mur- one numbers first through you der in 6; either the first or second note * * * you count, may return a verdict of first four verdicts that the guilty charged require relating which will are the same as those ** *” imposition the death count. second guilty charged with recommen- (Emphasis added.) made The court thus imprisonment; dation if discussing clear in second count you are unable to reach weight equal various verdicts were unanimous decision as to either of true of and indicated that the same was these, your duty it will then possible verdicts the Court.’’ inform my instruc- count. view the court’s (Emphasis added.) passage just unambigu- together tions, read quoted following prefaced by jurors— given ous forms verdict remark, preceded reading compel the con- next turn — jury: “Now, statute itself clusion that the well understood punishment: you deciding In the event that nature of its functions first-degree find the separate punishment. defendants issues either under Count 1 or Count prop and final to sus- second used your duty then becomes to deliberate polling principal opinion tain the is the punishment on the which will be im- concerning containing point, sub-prop posed.” (Emphasis added.) adequacy the verdict. the forms of suggest I preface Following that this and the the of the order discussion charge clearly separate itself principal opinion, up sub-prop the decision I take enacting present amendment no mention of The court finds first. Congress form, re- “body” D.C.Code Ann. 22-2404 punishment of the § in the by jected Ju- observing disapproval that a draft bill that submitted with ap- relegated of this Circuit dicial Conference has been “vital matter” by proved of the “explanatory quibbling the Judicial Conference note.” Without The first sentence list of United States. characterization of the over the pun- rejected “body” form, “The I reads as follows: bill verdicts as the occupies first ishment of simply point out that the “note” jury imprisonment “body.” life unless space un- shall be I am more than the by separate recommends willing jurors unanimous vote assume that receipt penalty.” Upon of such neglect give study the death ex- careful court, that a recommendation the explanatory tended form note —and the sentencing bill, to conduct a pondering draft was man’s as a whole—when on a hearing after which it could overrule Moreover, called life.1 twice court However, explaining of death. determination their attention to the note in weighted, bill, accepting than this rather the form: was, imprisonment, as it favor of you “Now, see notes un- will certain way provide Congress went out of its you derneath this tell verdict which punishment in the “The of murder that * * * penalties what the are by shall be death electrocu- go you I won’t over those be- jury by vote tion unanimous unless they perfectly I cause think are imprisonment; or if the recommends life plain. * * as to is unable to n »***## court,” shall inform fix Under “And then below in- then must sentence. are further structions, punish- previously residual as this statute death first-degree murder; given, they must penalties, about ment perfectly you.” follow a verdict unless clear to affirmatively detailed acts manner The note could not have been more clear- And a verdict statute. ly drafted; to find with it defies fault penalty may aside not be set the death common sense. possible under trial court as It has become fashionable of late to proposal. rejected Judicial Conference intelligence jurors, discount but favor the As a citizen I bill bring myself I cannot that to believe apply rejected; sworn to as a amI plain-spoken these verdict forms could Congress my own. will of —not they jury, guided have misled the as II painstaking were the court’s in- oral court have some members Since discussed structions cannot above. opinion Appellants expressed any juror imagine that instructed that split-verdict procedure “guilty charged" entitled to were the words without subject below, comment. needs more meant a death could sentence of Constitution, suggests Judge argues, possibly suppose, Fahy that the No one history language legislative statutory charged” “guilty that a verdict implementation requires of D.C.Code something would mean other than the proce opinion Ann. 22-2404 a two-trial principal death sentence. The adopted like in four states assumption dure those has basis without an In Law the American jurors recommended these were illiterate morons. might speculate result— could have blocked that One as to the reactions of them jurors they members now informed four of the 12 to what are this case really today. Having put they court did does doing. through agonizing imposing ordeal of know what penalty -knowing one the death — argument (brilliantly juror The es stitute. ad with scru- nullification: one vigor ples against capital punishment amicus over vanced counsel can Appellants) “hang” jury unanimously agreed ous disclaimer counsel for a on the guilt. way the court fashion rather that such defendant’s The most obvious congression problem provide a out a to separate this was to scheme “neutral” avoid envisage guilt penalty al will or “silence” we out a trials such by Congress urged. expressly from failure to An now alternative solution specify procedure modify existing split-verdict single-trial a that was to procedure judicially provide is not to to instituted. can a mechanism which be I argument guilty to this would jurors disagreed subscribe because save verdict of where some latter, penalty. the terms of the statute itself and the on Congress The history submit, relevant demonstrate that the tra is what has done. single ditional trial was intended with Congress be must assumed that jury having a dual function—on March 1962 was well two- aware penalty.2 and on solution; at that time California Pennsylvania intended, else it knew or had Whatever statutes been Congress certainly provi- must have effect—and the Model Code been Penal aware drafting Any juris- sion in it was a statute for a draft —for some time. doubt which, overwhelming diction on this is removed we like the ma- observe jority Keating states, experience of the the time Senator introduced had anything bill, system but a im- “one-trial” S. June 1,1959, Conference, yet mediately criminal after our Judicial And Congress’ cases. we are colleagues he informed his asked to believe that an alter- silence proposal single-trial concerning subject his this native to of a amounts to a procedure judges change long- license to Law Insti- to this the American way procedure. Cong.Rec. tute established two-trial life at our convenience. hardly Congress Keating must, can Senator caused believe that likewise 9393. by preamble Report appendix statute, each District Columbia Circuit enumerate all Judicial read the alternatives it has con- Conference be rejected Congressional preclude into sidered and That order to Record. re- port, approved by “implementing” the courts from Judicial later Con- statute States, with an alternative ference the United indicated records Congress split-verdict procedure unacceptable reveal that a found rejected. fact. considered See CONG. Rec. 6218-6219. my provi- It is belief that statute’s sion for Congress three choices on must, then, supposed (lack unanimity way being either one what have known a two-trial statute was choice) problem was drawn to generally. meet the and how it functioned With knowledge Andres v. United 333 U.S. it refused create one. (1948). 68 S.Ct. 92 L.Ed. supposed present See Nor can it be that the Cong., H.R.Rep.No.1874, 86th judicial 2d Sess. statute meant to leave jury may That case question single- split- held that a limbo versus not return a procedure. Congress verdict under 18 U.S. verdict undertook C. 1111 unless procedural problem; are unanimous with deal with respect discretionary thought job determina- cannot left the penalty. “problem” tion of done, half to be this court. reading finished encourag- Andres is of case course that I submit that fair persuasive Particularly Congress’ sup- it would be senator reasoned that position system power old “one-trial” inadvisable vest such argument was to continue is the jury, of Sena- body since is foreclosed from against proposed tor background I-Iartke amend- the relevant Cong. of evidence. ment which would have enabled the rules traditional Reo. possibility parole. to foreclose,

115 legislation point present it does an additional in that defense is that see the may adapt no more— counsel be slow to their tactics intended to do more —and was single-verdict procedure, prejudicing modify procedure to two-trial a thus than the problem Andres created their clients.4 to the meet discretionary.3 make decision to the problems which the ad- Other exist to system a two-trial have vocates leg- arguendo the If it assumed be prove addressed would themselves: Who history we and that islative “neutral” what at the “second and what trial” adopt power, ought a we do indeed have proof? would be the standard of See system in matter this as a two-trial case Kuh, A the Model Prosecutor Considers judicial policy? of sound Code, Penal 608, 615 63 Colum.L.Rev. sys- arguments against a Various such (finding in (1963) the Code defective proceedings appear in Ju- tem failing proof). deal standard dicial Conference this Circuit evidence, Would the rules of conventional drafting problem in considered including exclusionary rules, ab- Congress: g., such a bill it sent to e. rogated proceeding as for the second troublesome, procedure expen- would be always imposition of has been true on time-consuming; intro- that the sive penalty by “penalty-fixer” in order background aggravating evi- duction penalty permit determined against harshly work too would dence light pre-sentence reports in defendant, inflaming jury rather than subject to cross-exam- other sources providing dispassionate exer- basis for a People of State ination ? See Williams v. substantial of discretion. A further cise York, 1079, 241, 69 of New S.Ct. 337 U.S. against sys- argument made a two-trial (1948); Note, The Two- L.Ed. during Judi- course our 1959 tem Cases, System Capital trial in 39 N.Y.U. proceedings was that cial Conference (1964). 50, Given L.Rev. 63-73 probably off under better fendants are statute, present terms many system, capital present in since jury,” speaks trial “the could “insanity” raised and issue is cases the good shown, empanel judge, a for cause reaps of the benefit the accused much possi- penalty for new trial as background developing information ble New York? being mitigation burden without aggravation. given Congress exposed, has evidence the statute Under problem it, us, jury’s discretion, students of this is to Some serious take “ * * * that, argues experience, 3. Amicus since the statute California (cid:127) * * contemplates dating alone that when the back has penalty neglected he hear evidence fixes the must counsel that defense have often Congress aggravation, mitigation penalty prepare adequately juries phase intended also hear must have a lack of exhibited independent sophistication concerning of the trial such evidence what facts * * First, mitigating. on the indictment. I submit be advanced as should statutory hand, prosecution normal rules of construc- On the other has point opposite complete advantage to the conclusion. tion taken Second, phase attempted is there not rational basis and has marshal and trained, Congress provide pro- ag- present to judge that a to gravating all of inflammatory can fessional hear exist.” circumstances that against Note, Capital Clemency which is the defendant Executive lay- impressionable Cases, (1964). ears of not for the 39 N.Y.U.L.Rev. Third, Congress may well have be- men? The California court found it neces- has single being sary frequently lieved that when human to reverse for “substan- penalty phase, fateful life and makes the choice betwen tial error” itas safeguarded from he should be death precipitate do under the terms of the California stat- requirement Note, System action ute. The Two-trial give background Capital Cases, he consideration evi- N.Y.U.L.Rev. dence, whereas this is not essential persons against each of twelve has a veto death. adopt cally If we were to a two- be absolute. receive such See sentence. N.Y. thing system, Law, there be such Penal 1045. See also Cal.Pen. “pen- suppose error in the or reversible second Code 190.1. I do not that § alty” so, Judge argue If precise trial? what would be the McGowanwould that scope provisions If found adopted review? error were nature can be only guilt phase, by any legislative body. in that a would new but a If I am May necessary wrong supposition trial be remand? in this if indeed judge (guilt formulating capable trial direct a of life verdict he would feel such being already law, established) suggest if he feels the rules of I then there are virtually second-trial to leads one limits the kind “stat- “implement” result? Could he direct a verdict of utes” we can to draft Acts way” Congress. if the one ? evidence were “all of the prob- This enumeration of a few the jury’s If the discretion at the confronting designers any lems absolute, proceeding it would were to system two-trial clear should make impose to ex- free death without the folly system utter except a institution of such aggravating istence substantial study after careful of all its rami- factor such as those written into the study We have not a fications. made such Code, Penal Model jury Under that Code. equipped arewe not to do so in the aggra- must find at least one appeal. resolution of an all defer- With vating circumstances and must find fur- Judge position, ence McGowan’s ther that there are no miti- substantial suggest opinion that his amounts to an gating circumstances. rein on Some such appropri- brief advocate’s which would be discretion would But a seem advisable. petition Congress. pro- ate as a His pro- such statute rule drawn without a posal “devising simply not a is matter of grant vision could be found to absolute procedural implement methods” to a stat- jury. hap- discretion to This has ; totally statutory proposes ute he new pened in New York California.5 which, noted, both scheme I have body legislative drawing A a two-trial Congress Judicial Conference and the might majority rejected. statute well want to consider considered and If prepared adopt adopting interesting court was now provisions two split-verdict procedure, a two-trial or we legislation: New York’s that re- swiftly “im- discover that quires years that a defendant under plementation” lightly glossed now over is age who is found must be sen- drafting.6 major job fact of statute imprisonment, tenced life which mandates that a who Judges defendant am authorized to state that pleads guilty join consent the Miller, Danaher and Bastían prosecutor court and the shall automati- expressed. views here York, however, id. See at 73. In New unable * possible * opt is for (Emphasis added.) merely for life on the basis Mount, v. State N.J. A.2d judge may pen- trial. The foreclose regard. (1959) in this instructive alty issue from consideration Jersey Supreme There Court New creeing imprisonment if he finds that legislative would be found action a “sentence of death is not warranted necessary pro- to institute a two-trial mitigating because of substantial circum- concurring wisely opinion A cedure. ob- stances,” 1045(3), Law, N.Y.Penal § orderly practical served “The procedure permitted Cal- requires justice administration of criminal legislation. Quaere ifornia whether problems herein be settled this court or the District Court could comprehensive legislative piece- “implement” D.C.Code Ann. 22- judicial Id. meal action.” 358. See prac- conform to the York New People Friend, also v. 47 Cal.2d tice, given provides that section 463, 471, (calling (Cal.1959) P.2d n. 7 * * * death “unless the recom- legislative action —which resulted in * * * * * mends life statute). the California

Case Details

Case Name: Joseph C. Frady v. United States of America, Richard A. Gordon v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 8, 1965

Citation: 348 F.2d 84

Docket Number: 18357, 18358

Court Abbreviation: D.C. Cir.