Petition for writ of certiorari to the Court of Criminal Appeals
of Texas.
Denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
Petitioner, Joe Sorola, was indicted for capital murder under
Tex. Penal Code Ann. 19.03(a)(2) (Supp.1988-1989). At trial, the
State announced in open court that it would not seek the death
penalty and jury selection proceeded as if the death penalty was
not at issue. [
Footnote 1] As
the lower court explained:
Page 493 U.S.
1005 , 1006
"The record reflects that following the jury's decision that [
Sorola] was guilty of capital murder, the jury was sent back to the
jury room. Outside the presence of the jury, the trial court, the
State, and [Sorola] agreed that because the State had waived the
death penalty in this case, the proper procedure was to have the
court assess punishment. The trial court then found [Sorola] guilty
of capital murder and sentenced him to life imprisonment in the
Texas Department of Corrections. Thereafter without objection, the
court informed the parties he was going to release the jury panel."
674 S.W.2d 809, 810 (Tex.App.1984).
Petitioner appealed his conviction and sentence. The Texas Court
of Criminal Appeals found that under state law, the State cannot
waive its right to seek the death penalty, and a defendant cannot
waive the right to a jury's assessment of punishment.
693
S.W.2d 417, 419 (1985). Upon remand for a new trial, petitioner
filed an application for writ of habeas corpus arguing that the
Double Jeopardy Clause barred the State from seeking the death
penalty if he were once again found guilty of capital murder on
retrial. [
Footnote 2] The Texas
courts rejected his claim and he now seeks certiorari. [
Footnote 3]
769
S.W.2d 920, 926-928 (Tex.Crim.App.1989). Because I believe the
Double Jeopardy Clause bars the State from subjecting petitioner to
the death penalty on retrial, I would grant the petition and
reverse the Texas Court of Criminal Appeals.
I
In Bullington v. Missouri,
451 U.S. 430 (1981), this
Court held that the Double Jeopardy Clause prohibits the State from
subjecting a defendant who received a life sentence in his first
sentencing proceeding to the possibility of a death sentence on
retrial after reversal of his conviction or sentence. The Court
concluded that because the capital sentencing proceeding "in all
relevant respects was like the immediately preceding trial on the
issue of guilt or in-
Page 493 U.S.
1005 , 1007
nocence," id., at 438, the jury's conclusion that the evidence
did not support the death penalty constituted an acquittal of
death. Id., at 445. In Arizona v. Rumsey,
467 U.S.
203, 211, 2310 (1984), the Court made clear that the fact that
the acquittal resulted from an error of law did not deprive it of
finality under the Double Jeopardy Clause.
There should be no doubt that Bullington and Rumsey apply to
capital sentencing determinations made by Texas juries. [
Footnote 4] Thus if a Texas jury had
determined that petitioner deserved a life sentence, this case
would require a straight-forward application of Bullington and
Rumsey. In this case, the life sentence was imposed by the trial
judge after the State waived the right to seek the death penalty.
But this difference is of no significance for double jeopardy
purposes because the form of the judicial action does not determine
whether it constitutes an acquittal. Rather, the determination
turns on "whether the ruling of the judge, whatever its label,
actually represents a resolution, correct or not, of some or all of
the factual elements of the offense charged." United States v.
Martin Linen Supply Co.,
430 U.S.
564, 571, 1355 ( 1977).5 In the context of capital sentencing,
"Bullington indicates that the proper inquiry is whether the
sentencer or reviewing court has 'decided that the prosecution has
not proved its case'
Page 493 U.S.
1005 , 1008
that the death penalty is appropriate." Poland v. Arizona,
476 U.S.
147, 155, 1755 (1986) (emphasis in original).
The judge's imposition of a life sentence cannot be
characterized as anything other than an acquittal of death. The
trial judge imposed a sentence of life imprisonment because the
State waived its right to seek the death penalty. Thus, there was
absolutely no evidence in the record to support the death penalty.
That the judge's decision was based on the complete lack of
evidence rather than the existence of insufficient evidence should
strengthen petitioner's claim to double jeopardy protection. A core
purpose of the Double Jeopardy Clause is to ensure that the state
does not get a second opportunity to prove its case after failing
to do so initially. This principle is equally applicable in the
capital sentencing context: "[h]aving received 'one fair
opportunity to offer whatever proof it could assemble,' the State
is not entitled to another." Bullington, 451 U.S., at 446 (quoting
Burks v. United States,
437 U.S.
1, 16, 2149 (1978)).
To be sure, Bullington and Rumsey relied on the fact that the
sentencer had determined after a trial-like hearing that the
evidence was insufficient to impose the death penalty and in this
case there was no sentencing hearing. But the significance of the
presence of a trial-like proceeding was that it distinguished a
capital case from the noncapital sentencing context, where the
imposition of a particular sentence is not an implied acquittal of
a greater sentence. See Bullington, 451 U.S., at 439-441-1860. The
Court justified an exception to the general rule because of the
unique features of the capital sentencing scheme where the state
bears the burden of proving, often beyond a reasonable doubt, that
death is the appropriate penalty. Ibid. As noted, the Texas capital
punishment statute requires the State to prove certain facts beyond
a reasonable doubt. See Tex.Code Crim.Proc.Ann., Art. 37.071 (
Vernon Supp.1988-1989). Thus, the prosecutor's decision to waive
the death penalty makes this case more like Bullington than a
decision to seek a specific sentence in a noncapital sentencing
context; it reflects the prosecutor's conclusion that there was
insufficient evidence to justify the death penalty. See Bullington
451 U.S., at 441 ( use of beyond-reasonable-doubt standard reflects
society's belief that defendant's interests are so great that State
should bear the risk of error). The fact
Page 493 U.S.
1005 , 1009
that the prosecutor responsibly acknowledges the weakness of the
case should not lessen the effect of the trial judge's imposition
of a life sentence. A contrary conclusion would mean that the
Double Jeopardy Clause protects the defendant only if the
prosecutor, knowing that the case is weak, actually presents it to
the jury and it ratifies that initial judgment by rejecting the
death penalty. We do not have such a rule in the guilt phase. See
United States v. Martin Linen Supply Co., 430 U.S., at 574 (no
difference for double jeopardy purposes between entry of judgment
of acquittal before or after submission to jury); Smalis v.
Pennsylvania,
476
U.S. 140, 144-145, 1748-1749 (1986) (granting demurrer at end
of state's case constitutes acquittal even if based on erroneous
legal ruling). I see no reason to require such a rule at the
sentencing phase. [
Footnote
6]
Page 493 U.S.
1005 , 1010
Finally, the fact that the trial judge did not have the
authority under state law to allow the State to waive the death
penalty is irrelevant for purposes of the Double Jeopardy Clause.
[
Footnote 7] We have
consistently held that "the fact that 'the acquittal may result
from erroneous evidentiary rulings or erroneous interpretations of
governing legal principles' . . . affects the accuracy of that
determination, but it does not alter its essential character."
United States v. Scott,
437 U.S.
82, 98, 2197 (1978) (quoting id., at 106 (BRENNAN, J.,
dissenting)); see also Rumsey, 467 U.S., at 211. Moreover, the
trial judge's actions in this case are not distinguishable from
those in Fong Foo v. United States,
369 U.S. 141 (1962) (per
curiam ). In that case, the District Court ordered the jury to
enter judgments of acquittal as to all the defendants based on
insufficient evidence and prosecutorial misconduct . The Court held
that even if the trial judge's actions were improper, the
protection of the Double Jeopardy Clause attached to the acquittal.
Id., at 143. If the judgment in Fong Foo constituted an acquittal,
the life sentence in this case must constitute an acquittal of
death.
Page 493 U.S.
1005 , 1011
II
Even if I did not conclude that the Double Jeopardy Clause
prevents the imposition of the death penalty on resentencing, my
belief that the death penalty is in all circumstances cruel and
unusual punishment prohibited by the Eighth and Fourteenth
Amendments, see Gregg v. Georgia,
428 U.S.
153, 227, 2950 (1976) (BRENNAN, J., dissenting), would compel
me to vacate the judgment below and remand for resentencing on the
condition that the State be precluded from imposing the death
sentence.
Footnotes
Footnote 1 See Tex.Code
Crim.Proc.Ann., Art. 35.25 (Vernon 1989) (prescribing voir dire
procedure for capital cases in which State has agreed not to seek
death penalty). See generally Witherspoon v. Illinois,
391 U.S. 510 (1968).
Footnote 2 Although the
Texas courts found reversible error only at the sentencing phase,
under Texas law petitioner is entitled to a new trial on both guilt
and sentencing.
769
S.W.2d 920, 923 (Tex.Crim.App.1989).
Footnote 3 We have
jurisdiction under 28 U.S.C. 1257 (1982 ed.) because the judgment
rejecting petitioner's double jeopardy claim is "final." See
Bullington v. Missouri,
451 U.S. 430, 437, n. 8,
1857, n. 8 (1981); see also Abney v. United States,
431 U.S. 651 (1977).
Footnote 4 The Texas capital
sentencing scheme has been described in detail elsewhere. See,
e.g., Penry v. Lynaugh,
492 U.S. 302, 310-311,
2942 (1989). It is sufficient for present purposes to note that the
Texas capital sentencing scheme has the same characteristics as the
Missouri and Arizona sentencing proceedings that made them
comparable to a trial for double jeopardy purposes: (1) the
sentencer's discretion is limited to two options: life or death;
(2) the sentencer's discretion is guided by substantive standards;
and (3) the proceeding resembles a trial at which evidence is
introduced and in which the State must prove the existence of
predicate facts justifying the death penalty beyond a reasonable
doubt. Tex.Code Crim.Proc.Ann., Art. 37.071 ( Vernon
Supp.1988-1989). See Bullington, 451 U.S., at 438; Rumsey, 467
U.S., at 209. Thus "when the [ Texas] sentencer imposes a sentence
of life imprisonment in a capital sentencing proceeding, it has
determined that the prosecutor has failed to prove its case." Id.,
467 U.S., at 209-210.
Footnote 5 The Texas Court
of Criminal Appeals held that the trial judge's action did not
constitute an acquittal on the merits because the judge made no
findings that the death penalty was not justified. This finding is
not binding on this Court, for whether a trial judge's action
constitutes an acquittal is a federal question. Justices of Boston
Municipal Court v. Lydon,
466 U.S.
294, 321, 1820d 311 (1984) (opinion of BRENNAN, J.). Cf. Crist
v. Bretz,
437 U.S.
28, 37-38, 2161-2162 (1978).
Footnote 6 I find it
irrational and perhaps unconstitutional for state law to require
the parties to proceed with a capital sentencing hearing when both
parties agree that the death penalty is inappropriate. A
prosecutor's decision to waive the death penalty rather than burden
the defendant, the court, and the jury with a meaningless
proceeding should be respected, if not applauded. The Texas law
significantly interferes with prosecutorial discretion and raises
grave constitutional concerns in a capital sentencing context. It
creates institutional pressure on a prosecutor to charge capital
murder even if he believes that the death penalty is unwarranted to
ensure that the defendant will be sentenced to life. Pressuring a
prosecutor to charge capital murder even when he believes the
evidence does not support the death penalty increases the risk of
arbitrary imposition of the death penalty. Cf. Beck v. Alabama,
447 U.S. 625,
637-638, 2389-2390 (1980) ( prohibiting jury from considering
lesser included offense to capital murder increases arbitrariness
by depriving jury of "third option" between acquittal and death
penalty).
I pause to note just how odd the state court's decision that the
prosecutor may not waive the death penalty is. The Texas Court of
Criminal Appeals acknowledged that a trial judge has statutory
authority to enter a sentence of life imprisonment in several types
of cases: (1) when the defendant is a juvenile; (2) when the
defendant is found guilty of a lesser included offense; (3) when
the jury is unable to answer the questions at the sentencing
hearing; and (4) even after the jury imposes a verdict of death,
when the trial judge determines that the evidence is insufficient.
769 S.W.2d, at 927 (discussing statutes). Concluding that state law
precludes a trial judge from imposing a life sentence when the
prosecutor affirmatively waives the death penalty is especially
anomalous when the Texas Criminal Code provides for a special voir
dire procedure in capital cases in which the State waives the death
penalty. See Tex.Code Crim.Proc.Ann, Art. 35.25 (Vernon 1989)
(applicable "in capital cases in which the State's attorney has
announced that he will not qualify the jury for, or seek the death
penalty . . ." (emphasis added)). See also 769 S.W. 2d, at 933-936
(Clinton, J., concurring) (arguing that rule prohibiting State from
waiving death penalty is vestige from before Gregg v. Georgia,
428 U.S. 153
(1976), era and should not be continued). Although this Court
cannot review a state court's interpretation of its own laws,
neither may a State adopt a rule which effectively limits a trial
judge's ability to grant an acquittal. Cf. Crist v. Bretz, 437
U.S., at 37-38-2162 (State cannot adopt its own rule about when
jeopardy attaches).
Footnote 7 Petitioner was
clearly placed in jeopardy as to the sentence: he was indicted for
capital murder, the jury was sworn and empaneled, and it convicted
him of capital murder. Ibid. The State argues, however, that
because petitioner appealed on the issue of the trial judge's
authority to impose a life sentence, the concept of "continuing
jeopardy" applies and the State is free to subject him to the death
penalty on retrial. See North Carolina v. Pearce,
395 U.S. 711, 719-720,
2077-2078 (1969) (when defendant wins reversal of conviction on
appeal, "the slate [is] wiped clean" and double jeopardy does not
bar imposition of harsher punishment on retrial). This begs the
precise question in this case. Because the trial judge's actions
constituted an acquittal, the concept of continuing jeopardy is
inapplicable. See Bullington, 451 U.S., at 443 ("[T]he 'clean
slate' rationale recognized in Pearce is inapplicable whenever a
jury agrees or an appellate court decides that the prosecution has
not proved its case"); see also Smalis v. Pennsylvania,
476 U.S.
140, 145, 1749 (1986) ("continuing jeopardy" inapplicable when
trial judge's ruling constitutes an acquittal). Petitioner's
decision to appeal his sentence cannot transform what was already
an acquittal into something less.
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