[Congressional Record Volume 140, Number 17 (Thursday, February 24, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: February 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
THE NOMINATION OF ROSEMARY BARKETT
Mr. GRAHAM. Mr. President, earlier today, the distinguished minority
leader delivered a statement relative to the nomination of Justice
Rosemary Barkett, currently serving as chief justice of the Florida
Supreme Court, to the 11th Circuit Court of Appeals. In that statement
today, the minority leader made reference to certain cases in which
Chief Justice Barkett has participated at the State level, one of which
was Foster versus State.
In that case--I quote from the statement of the minority leader--he
states:
Justice Barkett adopts the statistical evidence defense
that was explicitly rejected by the U.S. Supreme Court in
McCleskey versus Kemp.
The minority leader goes on to state:
Justice Barkett's fuzzy reasoning is almost identical to
the theory behind the so-called Racial Justice Act, which the
Senate has considered and repeatedly rejected. Like the
Racial Justice Act, Justice Barkett's view that statistical
evidence alone subjects a capital sentence to constitutional
challenge would paralyze the enforcement of the death
penalty.
As my colleague from Florida, Senator Graham, has
explained, ``The very nature of the criminal justice system
does not lend itself to statistical precision. The
Constitution requires an individualized determination as to
the appropriateness of the death penalty, taking into account
the character and record of the murderer and the
circumstances of the offenses.''
Mr. President, since my name was used in this statement, I felt it
appropriate to use this opportunity to set the record straight both as
to what I said, what I intended, and also as to what Justice Barkett
intended in her dissent in the case of Foster versus State. This
happens to be a case with which I am very familiar. As Governor of
Florida, I signed the death warrant that led to this case coming to the
Florida Supreme Court.
Mr. President, the issue that brought Justice Barkett's dissent in
Foster versus State was the question of an allegation made by the
defendant under the State of Florida equal protection clause. As do
many State constitutions, Florida has a State equal protection clause,
as there is a similar clause in the U.S. Constitution.
In his appeal, Mr. Foster raised the issue, and he raised it in the
context in which he stated that there had been a discriminatory pattern
by a specific Florida State prosecutorial official, in which that
official, allegedly, had sought the death penalty more frequently in
cases in which the victim was white than in cases in which the victim
was black. The question before the Florida Supreme Court was the
interpretation of Foster's charge that there had been a violation of
the State's protection under the equal protection provision.
Justice Barkett, in those circumstances, was taking the position that
Foster deserved an opportunity within which to raise that specific
case.
I ask unanimous consent that the dissenting opinion be printed in the
Record immediately after my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. GRAHAM. Justice Barkett, in her dissent suggested, first, the
fact that there was a different standard under State equal protection
than under the Federal equal protection. She makes, frankly, a point
which I as a Floridian am very proud--that the Florida Supreme Court
was dealing with the question of racially discriminatory selection of
juries prior to the time that the U.S. Supreme Court recognized that as
an impediment under Federal equal protection standards. She cites that
as an example of the fact that State constitutional standards are not
necessarily intended to just mimic Federal standards.
She proceeds on to therefore reason that it is appropriate for the
State to have a process by which claims of denial of equal protection
under the State constitution can be appropriately determined.
She suggests the following standard:
A party asserting racial discrimination in the State's
decision to seek the death penalty should make a timely
objection and demonstrate on the record that the
discrimination exists and that there is a strong likelihood
that influences the State to seek the death penalty. Such
discrimination conceivably could be based on the race of the
victim or the race of the defendant. Once the trial court
determines that the initial burden has been met by the
defendant, the burden then shifts to the State to show that
the practices in question are not racially motivated. If the
trial court determines that the State does not meet the
burden, the State then is prohibited from seeking the death
penalty in the case.
I have quoted that in order to then distinguish this situation from
the McCleskey case and the Racial Justice Act, which this Senate has
debated on a number of instances. The racial justice case does not go
to the allegation that there was a specific act of racial
discrimination by a person involved in the case that has brought the
death penalty to be applied. In this case, the allegation is that there
was a specific prosecutor who was using racially discriminatory
standards as to when to seek the death penalty. Rather, the Racial
Justice Act goes to the broader question of whether an entire judicial
jurisdiction, such as a State, has been applying the death penalty in a
discriminatory manner.
To quote from the Racial Justice Act as it was considered by the
Congress in 1991, it states:
No person shall be put to death under color of State or
Federal law in the execution of a sentence that was imposed
because of, or based on, race or inference of race as the
basis of a death sentence. An inference that race was the
basis of a death sentence is established if valid evidence is
presented demonstrating at the time the death sentence was
imposed race was a statistically significant factor in
decisions to seek or impose a sentence of death in the
jurisdiction in question.
So what the Racial Justice Act did was to go at the entire criminal
justice system of a State and attempt to overturn that State's use of
the death penalty based on statistical evidence as to a wide variety of
cases that had come before that State. That is a different application
than the highly specific one which Chief Justice Barkett felt was
appropriate as it related to claims of equal protection under the
specific provisions of the State of Florida constitution. To use that
case to establish the broad principle which the minority leader sought
to do in his statement earlier today, which was that the chief justice
of the Florida Supreme Court was in some way less than vigilant in her
enforcement of the death penalty and in her conduct of her
responsibilities as the highest judicial officer of the State, I find
to be a gross misreading of the facts of the case that was utilized and
the specific circumstances to which he attempted to analogize it in the
Racial Justice Act.
Mr. President, the fact is that Chief Justice Barkett has been a
thoughtful, strong supporter of the death penalty in Florida. No, she
has not rubberstamped every case in which the death penalty had been
imposed, but she has found for the majority in the overwhelming number
of cases that have come before her as a justice of the Florida Supreme
Court. She has shown a steady willingness to enforce the death penalty
where that death penalty was appropriate.
She has stood the test of another statistical study. Our State uses a
judicial retention procedure whereby judges of the State Supreme Court
are periodically subject to the vote of the people of Florida to
determine whether their tenure has been such that they justify
continued service. Justice Barkett was subjected to that process in
1992. Sixty-one percent of the people of Florida found that her service
justified a continuation of her term on the Florida Supreme Court.
The very charges that are being made now against her nomination to
serve on the 11th Circuit Court of Appeals were the charges raised in a
campaign against her continued service on the Florida Supreme Court.
Three out of 5 Floridians rejected those charges and voted to retain
her as a member of the Florida Supreme Court.
Mr. President, this is a jurist of distinction, a human being of
intellect and compassion, a person of great judicial qualification. I
am proud that she is serving my State as its chief justice. I am proud
that the President of the United States has nominated her to high
Federal office. I hope that this Senate will soon confirm that
nomination and place Justice Barkett at the service of the people of
the United States of America.
Exhibit 1
[No. 76639, Supreme Court of Florida, Oct. 22, 1992, Rehearing Denied
April 1, 1993]
Charles Kenneth Foster, Appellant, v. State of Florida, Appellee.
Defendant was convicted in the Circuit Court, Bay County of
murder and sentenced to death and he appealed. The Supreme
Court affirmed, 369 So.2d 928. Denial of first and second
postconviction motions were affirmed by the Supreme Court,
400 So.2d 1, and 518 So.2d 901, but resentencing was ordered.
Denial of federal habeas corpus petitions was affirmed by the
Court of Appeals, 707 F.2d 1339, 823 F.2d 402. On remand from
resentencing, the Circuit Court, Bay County, Don T. Sirmons,
J., entered sentence of death and defendant appealed. The
Supreme Court held that: (1) defendant had not received
ineffective assistance of counsel; (2) jury was adequately
instructed on mitgating circumstances; (3) court properly
overruled challenges for cause; but (4) sentencing order was
defective for failing to state whether court had found
certain mitigating circumstances to exist.
Affirmed in part and vacated and remanded in part.
Barkett, C.J., concurred in part and dissented in part and
filed an opinion in which Shaw and Kogan, JJ., concured.
Kogan, J., concured in part and dissented in part and filed
an opinion.
1. Criminal Law 998(21).
Successive postconviction motion may be dismissed if it
fails to allege new or different grounds for relief and the
prior determination was on the merits or, if new and
different grounds are alleged, the failure to raise those
issues in prior motion constitutes an abuse of process.
West's F.S.A. RCrP Rule 3.850.
2. Criminal Law 998(21).
Postconviction motion alleging ineffective assistance of
counsel was an abuse of process where there was no showing of
justification for the failure to raise it in either of the
two prior motions. West's F.S.A. RCrP Rule 3.850.
3. Criminal Law 641.13(6).
In view of defendant's confession, there was no reasonable
probability that outcome of trial would have been different
had counsel obtained additional evidence, so that defendant
did not show ineffective assistance of counsel.
4. Criminal Law 996(3).
Witness' unavailability at resentencing hearing, so as to
make her prior testimony admissible, was established by
evidence that investigators had been unable to locate her or
her former husband, that they had called telephone number
given to them a number of times and have left messages for
the witness, who never returned the calls, and that attempts
to subpoena her were unsuccessful.
5. Criminal Law 662.60.
Defendant's right to confrontation was not abridged when
prior testimony of witness was admitted at resentencing
hearing where court admitted the witness' cross-examination
testimony in addition to her direct testimony.
6. Witnesses 337(4).
It was not an abuse of discretion to exclude evidence of
witness' 1989 convictions when admitting at resentencing
hearing testimony which she had given at the first trial in
1975.
7. Criminal Law 996(3).
There was no Brady violation by state's failure to provide
defendant with mental health records of witnesses at
resentencing hearing where the state denied having the
records.
8. Homicide 357(3, 11).
Finding that murder was especially heinous, atrocious, or
cruel, and cold, calculated, and premeditated, thus
authorizing imposition of death penalty, was supported by
evidence that victim was severely beaten prior to having his
throat slit, that victim was pulled from vehicle by his
genitals and stabbed in the throat a second time, that he
would have lived 20 to 30 minutes after the wound was
inflicted, that defendant then cut the victim's spine with a
knife, and that victim would have lived three to five minutes
after the spinal cord was severed. West's F.S.A.
Sec. 921.141(5)(h, i).
9. Homicide 311.
Jury was adequately instructed that it could consider any
relevant evidence in determining whether to impose the death
penalty where court informed the jurors that they could
consider, in addition to other factors, ``any other factor of
defendant's character or record and any other circumstance of
the crime or offense,'' and defense counsel discussed mental
health mitigation in detail.
10. Homicide 341.
Error in failing to give defendant's requested instruction
containing an expanded definition of the aggravating factor
that the homicide was heinous, atrocious, and cruel was
harmless where defendants' killing of victim was especially
heinous, atrocious, and cruel by any standard.
11. Jury 90, 105(1), 108.
Court was not required to strike for cause at resentencing
hearing in capital murder prosecution juror who indicated
bias against persons who have had numerous appeals, person
who went to junior high school with defendant and ``had a
couple of fights'' with him, and person who was allegedly
predisposed to imposing death penalty for all premeditated
murders.
12. Jury 108.
Court properly excused venire member who stated on voir
dire before resentencing hearing in capital murder
prosecution that she did not believe that she could vote to
impose the death penalty in any situation other than murder
within a prison setting.
13. Homicide 358(1).
In the absence of evidence that state's attorney acted with
purposeful discrimination in seeking death penalty in
defendant's case, court was not required to hold evidentiary
hearing on claim that use of the death penalty in the county
was racially discriminatory, based on statistical evidence
indicating that persons whose victims were white were more
likely to be charged with first-degree murder and convicted
of first-degree murder.
14. Homicide 358(3).
Court's statement in sentencing order imposing death
penalty in murder case that it had considered the evidence in
support of mitigating factors and that the mitigating
circumstances were outweighed by the aggravating factors did
not demonstrate that it had determined whether the two
statutory mental mitigating circumstances existed or whether
any mitigating circumstances were found to exist or what
weight was given to them, so that the sentencing order was
defective; error was not harmless.
Richard H. Burr and Steven W. Hawkins of NAACP Legal
Defense and Educational Fund, Inc., New York City, and Steven
L. Seliger, Quincy, for appellant.
Robert A. Butterworth, Atty. Gen., and Mark C. Menser,
Asst. Atty. Gen., Tallahassee, for appellee.
Per curiam.
Charles Kenneth Foster appeals the sentence of death
imposed upon him after resentencing. He also appeals the
denial of his motion for postconviction relief. Our
jurisdiction is based upon article V, section 3(b)(1),
Florida Constitution.
Foster was convicted of murder and sentenced to death in
1975. This Court affirmed the conviction and death sentence
in Foster v. State, 369 So.2d 928, 929 (Fla.), cert. denied,
444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). The
following facts are set forth in that opinion:
``Anita Rogers, 20 years of age, and Gail Evans, 18 years
of age, met defendant and the victim, Julian Lanier, at a
bar. They knew defendant, but the victim was a stranger.
``The girls, after a discussion, agreed to go to the beach
or somewhere else to drink and party with the men. The victim
bought whiskey and cigarettes, after which the four of them
left in the victim's Winnebago camper. The victim was quite
intoxicated and surrendered the driving chore to Gail. The
defendant and the girls had planned for Gail to have sex with
the victim and make some money. Gail parked the vehicle in a
deserted area and, after some conversation concerning
compensation, the victim and Gail began to disrobe.
``Defendant suddenly began hitting the victim and accusing
him of taking advantage of his sister. Defendant then held a
knife to the victim's throat and cut his neck, causing it to
bleed profusely. They dragged the victim from the trailer
into the bushes where they laid him face down and covered him
with pine branches and leaves. They could hear the victim
breathing so defendant took a knife and cut the victim's
spine.
``The girls and defendant then drove off in the Winnebago
and found the victim's wallet underneath a mattress. The
defendant and the girls split the money found in the wallet
and left the vehicle parked in the parking lot of a motel.
``The next morning Anita Rogers went to the Sheriff's
Department and reported what had happened. . . .''--Foster,
369 So.2d at 928-29.
The trial court denied relief on Foster's first
postconviction motion, and this Court affirmed. Foster v.
State, 400 So.2d 1 (Fla. 1981). In addition, federal courts
denied Foster relief on two federal habeas petitions. Foster
v. Dugger, 823 F.2d 402 (11th Cir. 1987), cert. denied, 487
U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 946 (1988); Foster v.
Strickland, 707 F.2d 1339 (11th Cir. 1983), cert. denied, 466
U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984). In Foster v.
State, 518 So.2d 901 (Fla. 1987), cert. denied, 487 U.S.
1240, 108 S. Ct. 2914, 101 L.Ed. 2d 945 (1988), we affirmed
the denial of Foster's second postconviction motion, but we
granted his habeas petition and ordered resentencing due to
Hitchcock\1\ error.
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Footnotes at end of article.
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On remand for resentencing, Foster filed a 3.850 motion.
The trial court refused to continue the resentencing hearing
until resolution of the 3.850 motion. Following the jury's 8-
4 recommendation, the trial judge imposed the death
penalty.\1\ Thereafter, the court summarily denied the 3.850
motion without an evidentiary hearing.
We address first Foster's claim that the trial court erred
in denying his 3.850 motion without an evidentiary hearing.
Foster's motion alleged a violation of Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
ineffective assistance of trial counsel. The Brady claim
centers around Foster's allegation that the state failed to
disclose that it offered Gail Evans and Anita Rogers deals in
exchange for their testimony at trial. Although the court did
not hold an evidentiary hearing on this claim, Foster
presented the evidence on which he relies to support the
claim at a hearing on his motion, to preclude admission of
Rogers' and Evans' 1975 trial testimony, Rogers' ex-
husband testified that several years after the trial,
Rogers told him that the state had promised not to
prosecute her in return for her testimony.
In his claim of ineffective assistance of counsel, Foster
asserts that trial counsel failed to discover that Rogers and
Evans believed that Foster was ``crazy'' at the time of the
attack. Had counsel been aware of this, Foster reasons, he
would have pursued mental health defenses that would have
precluded a finding of premeditated murder. He also alleges
that counsel failed to discover, or alternatively the state
failed to disclose, that Foster cut off the victim's penis
during the course of the attack.
[1] This is Foster's third postconviction motion. A
successive motion may be dismissed if it fails to allege new
or different grounds for relief and the prior determination
was on the merits or, if new and different grounds are
alleged, the failure to raise those issues in a prior motion
constitutes an abuse of process. Fla. R. Crim. P. 8.850. To
overcome this bar, a movant must allege that the grounds
asserted were not known and could not have been known to him
at the time of the earlier motion. Christopher v. State, 489
So. 2d 22, 24 (Fla. 1986). The movant must show justification
for the failure to raise the issues in the prior motions. Id.
[2] Foster alleged ineffective assistance of trial counsel
in his initial postconviction motion. We rejected that claim
on the merits.\3\ Foster, 400 So. 2d 1. Foster has not
previously raised a Brady claim. Although he alleges the
discovery of new facts in order to avoid application of
the abuse of process doctrine, he has failed to
demonstrate or even allege that the facts could not have
been known to him at the time of his earlier motions. We
note that Foster has been represented by the same counsel
since at least the time of the appeal of the denial of his
first post conviction motion in 1981. Having failed to
show any justification for his failure to raise the
present claims in his earlier post conviction motions, the
instant motion constitutes an abuse of process. Spaziano
v. State, 545 So.2d 843 (Fla. 1989); Tafero v. State, 524
So.2d 987, 988 (Fla. 1987); Booker v. State, 503 So.2d
888, 889 (Fla. 1987); Christopher v. State, 489 S.2d at
25.\4\
[3] Even if there were no procedural bar, Foster's claim
would not prevail. At trial, Foster made a witness stand
confession in which he stated:
I reckon I'll just cop out. I have done it, killed him
deader than hell. I ain't going to set up here, I am under
oath and I ain't going to tell no ------ lies. I will ask the
Court to excuse my language. I am the one that done it. They
didn't have a damn thing to do with it. It was premeditated
and I intended to kill him. I would have killed him if he
hadn't had no money and I know I never told you about it, but
I killed him.''--369 So.2d at 929.
In light of Foster's confession, there is no reasonable
probability that the outcome of the trial would have been
different had any of the evidence Foster now asserts was not
disclosed or not discovered been presented. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984) (one alleging ineffective assistance of counsel must
show deficient performance and prejudice); Hegwood v. State.
575 So.2d 170, 172 (Fla.1991) (to establish Brady violation,
one must prove that had the evidence been disclosed, a
reasonable probability exists that the outcome of the
proceedings would have been different).
[4] Gail Evans personally testified at the resentencing
hearing. However, over Foster's objection, the court allowed
the state to introduce the testimony of Anita Rogers from the
1975 trial. Foster claims that the court failed to conduct an
appropriate inquiry into Rogers' unavailability before
admitting her prior trial testimony and that the use of her
testimony abridged his right of confrontation.
We find no error in the trial court's determination that
Rogers was unavailable. According to the assistant state
attorney, in 1989, in an effort to find Rogers, investigators
from that office attempted to locate her ex-husband. They
were unsuccessful. In late May of 1990, shortly before the
resentencing proceeding, defense counsel gave the state
attorney Rogers' address and telephone number in Tampa. The
state attorney called the number several times. He left
messages on an answering machine as well as with a man who
answered the telephone and said that he was Rogers' former
brother-in-law. Rogers never returned the phone calls. At the
state attorney's request, the Hillsborough County Sheriff's
Department attempted to subpoena Rogers but were
unsuccessful. A deputy attempting to serve the subpoena was
advised by someone at Rogers' address that she was out of
town at an unknown location. This was sufficient to establish
Rogers' unavailability for purposes of the resentencing
hearing.
[5] Further, Foster's right of confrontation was not
abridged. The court admitted Rogers' cross-examination in
addition to her direct testimony. The court also allowed
foster to rebut Rogers' testimony with other witnesses. Under
these facts we find no error in the admission of Rogers'
trial testimony. See Hitchcock v. State, 578 So.2d 685, 690
(Fla.1990) (upholding the admission in
resentencing proceeding of trial transcript where the
state was unable to locate the witness and the court
admitted the witness's entire trial testimony, including
cross examination), cert. denied, ---- U.S. ----, 112
S.Ct. 311, 116 L.Ed.2d 254 (1991).
[6] At resentencing, Foster sought to impeach Rogers' trial
testimony by introducing evidence that she had been convicted
of false reporting of a crime and grand larceny in 1989. The
trial court excluded evidence of the convictions, apparently
finding that the 1989 convictions were not probative of
Rogers' truth and veracity at the time of the 1975 testimony.
We find no abuse of discretion in the exclusion of this
evidence. Teffeteller v. State, 495 So.2d 744, 745 (Fla.
1986). (``[I]t is within the sound discretion of the trial
court during resentencing proceedings to allow the jury to
hear or see probative evidence which will aid it in
understanding the facts of the case in order that it may
render an appropriate advisory sentence.'').
[7] One day before the resentencing proceeding was
scheduled to begin, Foster filed a motion pursuant to Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, asking the court to
require the state to disclose Rogers' and Evans' mental
health records. The state attorney objected, indicating the
state did not have the records and had no better access to
the records than did defense counsel. Foster challenges the
trial court's denial of his motion.
Foster has not shown a Brady violation. The state denied
having the records. Further, Foster made no showing that he
could not have obtained this evidence with reasonable
diligence. See Hegwood v. State, 575 So.2d 170, 172. Foster
cites no case for his proposition that it was the state's
obligation, rather than his own, to obtain such records.
[8] Foster also claims that the trial court erred in
finding the murder to be especially heinous, atrocious, or
cruel\5\ and cold, calculated and premeditated.\6\ The court
relied on the following evidence to find the aggravating
factor of especially heinous, atrocious, or cruel;
``The circumstances of the killing indicate a consciousness
and pitiless regard for the victim's life and was
unnecessarily tortuous to the victim, Julian Franklin Lanier.
The victim did not die an instantaneous type of death. The
victim was severely beaten prior to death. His nose was
fractured, his face was severely bruised and his eyes were
swollen shut from edema from hemorrhage and swelling
resulting from the beating. After beating the victim, the
defendant took out a knife and told the victim `I'm going to
kill you; I'm going to kill you.' There is evidence that one
of the girls present asked the defendant not to do it. The
defendant then proceeded to stab the victim in the throat.
There is evidence of a defensive wound to the victim's hand
which indicates the victim attempted to fend off the knife as
the defendant stabbed him in the throat.
``After stabbing the victim in the throat, the defendant
grabbed the victim by his testicles, or genitals, in order to
move the victim outside. The victim groaned or moaned and the
defendant stabbed the victim in the throat a second time.
This second wound cut the victim's internal and external
jugular veins. The victim could have lived from 20 to 30
minutes after this wound was inflicted.
``Neither of these wounds to the neck severed the victim's
vocal cords. There is evidence that the victim asked the
defendant not to do it again before he was stabbed a second
time.
``After the second stab wound, the victim was dragged into
the woods where he was covered with bushes. The marks on the
victim's body indicated to the medical examiner, that the
victim was either alive or dead a very short time before he
was being dragged. It is consistent with what happened next
to assume the victim was alive.
``After the victim was covered in the woods, one of the
girls accompanying the defendant reported to the defendant
that she could hear the victim breathing. The defendant
then went back to the victim, who was lying face down,
uncovered him and cut the victim's spine with a knife. As
described by one witness, there was no air coming from the
body of the victim after she heard ``the cracking'' of the
spine. The medical examiner indicated the victim could
have lived 3 to 5 minutes after his spinal cord was
severed.''--This evidence establishes that the murder was
especially heinous, atrocious, or cruel.
The trial court relied on these same facts to find the
murder to be cold, calculated, and premeditated. In addition,
the court relied on Foster's witness stand confession and
Anita Rogers' trial testimony. Rogers testified that prior to
the attack, Foster asked her to exchange class rings with
him. Foster's ring bore the initial ``K.'' He told Rogers
that he wanted to switch rings because his ring would have
left ``K'' impressions on the victim, thus identifying him as
the perpetrator. As the prosecutor argued to the jury, if
Foster had not intended to kill the victim, it would have
made no difference if there were ``K'' impressions on the
victim because he would have been alive to identify Foster.
These facts establish the existence of a careful plan or
prearranged design to kill.\7\ Rogers v. State, 511 So.2d
526, 533 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct.
733, 98 L.Ed.2d 681 (1988).
[9] Next, Foster claims that the jury charge and the
prosecutor's closing argument limited the jury's
consideration of mitigating evidence in violation of Cheshire
v. State 568 So.2d 908 (Fla.1990) (state may not restrict
consideration of mitigating circumstances solely to
``extreme'' emotional disturbances; any emotional disturbance
relevant to the crime must be considered). The court gave the
following special instruction:
``Among the mitigating circumstances which you may consider
are the following. First, the crime for which the defendant
is to be sentenced was committed while he was under the
influence of extreme mental or emotional disturbance.
``Second, that the capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired.
``Third, that the defendant had an abusive family
background.
``Fourth, the defendant's poverty.
``Fifth, the physical illness of the defendant.
``Sixth, the defendant's love for and love by his family.
``Seventh, any alcohol or drug addiction of the defendant.
``Eight, a troubled personal life including depression and
frustration.
``Ninth, physical injuries suffered by the defendant.
``Tenth, the defendant's lack of childhood development.
``Eleventh, the effect of death of loved ones on the
defendant.
``Twelfth, the learning disability suffered by the
defendant.
``Thirteenth, the defendant's potential for positive
sustained human relationships.
``Fourteenth, any other aspect of the defendant's character
or record and any other circumstance of the crime or
offense.''
Foster argues that this instruction created a substantial
risk that the jury believed that they could only find the
mental health evidence to be mitigating if it rose to the
statutory level. In addition to being given the quoted
instruction, the jury was informed that it must consider any
aspect of the defendant's character and background or any
other circumstance presented in mitigation and that there
was no limitation on the mitigating factors which could be
considered. Viewing the instructions as a whole, we find
no reasonable likelihood that the jurors understood the
instruction to preclude them from considering any relevant
evidence. Robinson v. State, 574 So.2d 108, 111 (Fla.),
cert, denied,--U.S.----, 112 S.Ct. 131, 116 L.Ed.2d 99
(1991). Further, in closing argument, defense counsel
discussed the mental health mitigation in detail. He
argued that the evidence rose to the statutory level but
nevertheless argued that Foster was clearly under an
emotional disturbance even if it did not meet the level
required by statute. Accordingly, we reject this claim.
Next, Foster asserts that the court erred in refusing to
give certain jury instructions. The rejected instructions
deal with the following subjects: (1) the determination of
the aggravating factor of especially, heinous, atrocious, or
cruel; (2) the determination of the aggravating factor of
cold, calculated, and premeditated; and (3) the jury's pardon
power. He also alleges that the jury instructions on these
two aggravating circumstances were inadequate.
[10] The instruction given on heinous, atrocious, and cruel
was the same as the one held to be inadequate in Shell v.
Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990).
Therefore, the court erred in failing to give Foster's
requested instruction which contained an expanded definition
of that aggravating factor. We conclude, however, that the
error was harmless. As may be seen from that portion of the
trial judge's order previously quoted, Foster's killing of
Julian Lanier was especially heinous, atrocious, and cruel by
any standard. The jury could not have been misled by the
inadequate instruction. We further hold that the court did
not abuse its discretion in refusing to give the other jury
instructions which Foster had requested.
[11] Next, Foster asserts that the court erred in failing
to strike three venire members for cause. He argues that: (1)
Carol Ann Pope should have been excused because she indicated
bias against persons who have had numerous appeals; (2)
Thomas Martin should have been excused because he went to
junior high school with Foster and the two of them ``had a
couple of fights''; (8) Marion Pelland should have been
excused because she was predisposed toward imposing the
death penalty for all premeditated murders. Foster
exercised peremptory challenges to excuse these three
jurors.
The test for determining juror competency is whether the
juror can lay aside any bias or prejudice and render his
verdict solely upon the evidence presented and the
instructions on the law given to him by the court.'' Lusk v.
State, 446 So.2d 1038-1041 (Fla.), cert. denied, 469 U.S.
873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The record does
not support Foster's allegations regarding these potential
jurors. We have reviewed the transcript of jury selection and
do not find any basis for excusing these jurors for cause.
Next, Foster claims that the trial court improperly excused
venire member Deluzain for cause in violation of the
principles established in Witherspoon v. Illinois, 391 U.S.
510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v.
Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
[12] A juror may be excluded in a death case if his views
on capital punishment ``would prevent or substantially impair
the performance of his duties as a juror in accordance with
his instructions and his oath.'' Adams v. Texas, 448 U.S. 38,
45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). The record
evinces Deluzain's inability to set aside her own beliefs in
deference to the law. Randolph v. State, 562 So.2d 881, 337
(Fla.), cert. denied, 498 U.S. 992, 111 S.Ct. 538, 112
L.Ed.2d 548 (1990). She said that she did not believe that
she could vote to impose the death penalty in any situation
other than a murder within a prison setting. When asked
whether she could set aside her feelings against the death
penalty if the murder were sufficiently aggravated, she
responded that she was not sure that she could. The trial
court did not abuse its discretion in excusing her for
cause.
[13] Further, Foster challenges the circuit court's refusal
to allow him to show that the use of the death penalty in Bay
County, Florida, is racially discriminatory. Foster moved to
preclude the state attorney's office from seeking the death
penalty in his case based on his assertion that the Bay
County State Attorney's Office pursued prosecution much more
vigorously and fully in cases involving white victims than in
cases involving black victims.
In support of his claim, Foster proffered a study conducted
by his counsel of some of the murder/homicide cases
prosecuted by the Bay County State Attorney's Office from
1975 to 1987. Analyzing the raw numbers collected, Foster
concluded that defendants whose victims were white were 4
times more likely to be charged with first-degree murder than
defendants whose victims were black. Of those defendants
charged with first-degree murder, white-victim defendants
were 6 times more likely to go to trail. Of those defendants
who went to trail, white-victim defendants were 26 times more
likely to be convicted of first-degree murder. The court
refused to hold an evidentiary hearing, finding that the
alleged facts did not make out a prima facie claim of
discrimination.
The United States Supreme Court rejected a similar
challenge in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756,
95 L.Ed.2d 262 (1987). McCleskey claimed that the imposition
of Georgia's death penalty was racially discriminatory in
violation of the Eighth and Fourteenth Amendments. He relied
on a statistical study, the Baldus study, which purported to
show a disparity in the imposition of Georgia's death penalty
based on the race of the victim and the race of the
defendant. The raw figures collected by Professor Baldus
indicated that defendants charged with killing white victims
received the death penalty in 11% of the cases, but
defendants charged with killing blacks received the death
penalty in only 1% of the cases. Baldus further found that
the death penalty was assessed in 22% of the cases
involving black defendants and white victims; 8% of the
cases involving white defendants and white victims; and 3%
of cases involving white defendants and black victims. The
figures indicated that prosecutors sought the death
penalty in 70% of the cases involving black defendants and
white victims; 32% of the cases involving white defendants
and white victims; 15% of the cases involving black
defendants and black victims; and 19% of the cases
involving white defendants and black victims.
After accounting for numerous variables that could have
explained the disparities on other than racial grounds, the
Baldus study found that defendants charged with killing white
victims were 4.3 times as likely to receive a death sentence
as defendants charged with killing black victims. Black
defendants were 1.1 times as likely to receive a death
sentence as other defendants. As a black defendant who killed
a white victim, McCleskey argued that the Baldus study
demonstrated that he was discriminated against because of his
race and the race of his victim.
The Court held that McCleskey ``must prove that the
decisionmakers in his case acted with discriminatory
purpose.'' McCleskey, 481 U.S. at 292, 107 S.Ct. at 1767. The
Court rejected McCleskey's claim because he offered no
evidence specific to his own case to support as inference
that racial considerations played a part in his sentence. The
Court found the Baldus study to be insufficient to support an
inference that the decisionmakers in McCleskey's case acted
with purposeful discrimination.
Foster's claim suffers from the same defect. He has offered
nothing to suggest that the state attorney's office acted
with purposeful discrimination in seeking the death penalty
in his case. See Harris v. Pulley, 885 F.2d 1354, 1875 (9th
Cir. 1988), cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107
L.Ed.2d 848 (1990); Byrd v. Armontrout, 880 F.2d 1, 10 (8th
Cir. 1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108
L.Ed.2d 501 (1990); Kelly v. Lynaugh; 862 F.2d 1126, 1135
(5th Cir. 1988) cert. denied, 492 U.S. 925, 109 S.Ct. 3263,
106 L.Ed.2d 608 (1989). The trial court was not required to
hold an evidentiary hearing on this claim. Harris, 885
F.2d at 1375 (defendant not entitled to evidentiary
hearing where he offered no proof that decisionmakers in
his case acted with discriminatory purpose).
Foster argues that McCleskey does not foreclose his
challenge because his evidence focuses solely on the
practices of one prosecutor's office, whereas the Baldus
study consisted of generalized statistics covering every
aspect of Georgia's death penalty scheme. The McCleskey Court
questioned whether a state ``policy'' of discrimination could
be deduced by studying the combined effects of hundreds of
decisionmakers.
The Court in McCleskey held that: [T]he policy
considerations behind a prosecutor's traditionally ``wide
discretion'' suggest the impropriety of our requiring
prosecutors to defend their decisions to seek death penalties
``often years after they are made.'' Moreover, absent far
stronger proof, it is unnecessary to seek such a rebuttal,
because a legitimate and unchallenged explanation for the
decision is apparent from the record: McCleskey committed an
act for which the United States Constitution and Georgia laws
permit imposition of the death penalty.
``. . . Implementation of these laws necessarily requires
discretionary judgments. Because discretion is essential to
the criminal justice process, we would demand exceptionally
clear proof before we would infer that the discretion has
been abused.''--McCleskey, 481, U.S. at 296-97, 107 S. Ct. at
1769-70 (citations omitted).
The figures proffered by Foster do not constitute
``exceptionally clear proof'' of discrimination. See Harris
v. Pulley, 885 F.2d at 1375. Foster's figures do not account
for any of the myriad of nonracial variables that could
explain the disparity See McCleskey, 481 U.S. at 295, n.
15, 18 S.Ct. at 1769, n. 15 (``decisions whether to
prosecute and what to charge necessarily are
individualized and involve infinite factual variations. .
. .''). Even assuming the validity of foster's study,\8\
the raw numbers analyzed by Foster do not show a
significantly greater disparity than figures proffered by
the Baldus study which had taken into account numerous
nonracial variables.\9\
[14] Finally, Foster claims that the trial court's
sentencing order fails to evaluate the proposed mitigating
factors as required by Rogers v. State, 511 So.2d 526 (Fla
1987), cert. denied, 484 U.S. 1020, 108 S.C. 733, 98 L.Ed.2d
681 (1988). In discussing the manner in which the trial court
should consider mitigating circumstances in a case in which
the state seeks the death penalty, we said:
``[T]he trial court's first task in reaching its
conclusions is to consider whether the facts alleged in
mitigation are supported by the evidence. After the factual
finding has been made, the court then must determine whether
the established facts are of a kind capable of mitigating the
defendant's punishment, i.e., factors that, in fairness or in
the totality of the defendant's life or character may be
considered as extenuating or reducing the degree of moral
culpability for the crime committed. If such factors exist in
the record at the time of sentencing, the sentencer must
determine whether they are of sufficient weight to
counterbalance the aggravating factors.''--Id. at 534.
In addressing mitigation in the sentencing order, the trial
court first listed thirteen mitigating factors that Foster
had offered for consideration. The court then stated:
``The Court must note that there is a conflict in evidence
on the questions of whether the capital felony was committed
while the defendant was under the influence of extreme mental
or emotional disturbance and the capacity of the defendant to
appreciate the criminality of his conduct to the requirements
of law was substantially impaired (emphasis supplied).''
After discussing the conflict in the evidence, the court
then concluded:
``The Court will therefore consider this conflict in the
weight to be given these two factors in relating to the
aggravating circumstances.
The Court has considered the evidence presented in support
of each of these mitigating factors and, in weighing these
factors against the aggravating factors, finds that the
aggravating circumstances outweigh the mitigating
circumstances in this case.''
While it is evident that the court considered the
mitigating circumstances, we cannot tell whether the court
determined whether either of the two statutory mental
mitigating circumstances existed. In fact, we are unable to
say whether the court found any of the mitigating
circumstances to exist or what weight was given to them.
Unlike Rogers, we cannot say that this defect in the
sentencing order was harmless error.\10\
Accordingly, we vacate the sentence of death and remand the
case for the trial judge to enter a new sentencing order
following the dictates of Rogers and Campbell v. State, 571
So.2d 415 (Fla.1990).\11\ See Lucas v. State, 568 So.2d 18
(Fla.1990). We affirm the denial of Foster's motion for
postconviction relief.
It is so ordered.
OVERTON, McDONALD, GRIMES and HARDING, JJ., concur.
BARKETT, CJ., concurs in part and dissents in part with an
opinion, in which SHAW and KOGAN, JJ., concur.
KOGAN, J., concurs in part and dissents in part with an
opinion.
BARKETT, Chief Justice, concurring in part, dissenting in
part.
``I concur in the majority's resolution of all the issues
except for Foster's claim regarding the discriminatory use of
the death penalty in Bay County, Florida.
``The majority concludes that Foster ``Has offered nothing
to suggest that the state attorney's office acted with
purposeful discrimination in seeking the death penalty in his
case.'' Majority op. at 463. My disagreement is not so much
with that statement as with a standard that requires showing
something that is virtually impossible to show: purposeful
discrimination. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct.
1756, 95 L.Ed.2d 262 (1987).
``In McCleskey, the U.S. Supreme Court dismissed
McCleskey's analogous federal equal protection claims,
holding that a defendant must establish both ``the existence
of purposeful discrimination'' and a ``discriminatory
effect'' on that particular defendant. Id. at 292, 107 S.Ct.
at 1767. I agree that under the federal precedent McCleskey
would control this case.
``Foster, however, claims a violation of the Equal
Protection Clause of the Florida Constitution. Art. I,
Sec. 2, Fla. Const. Despite the principles adopted in Traylor
v. State, 596 So.2d 957 (Fla.1992), establishing the primacy
of the Florida Constitution, the majority completely ignores
Foster's state constitutional challenge. I believe that
Foster's claim deserves full consideration.
Despite earlier transgressions,\12\ Florida in recent years
has clearly established its commitment to equality of
treatment in the courts. See, e.g., Report and
Recommendations of the Florida Supreme Court Racial and
Ethnic Bias Study Commission (1990 & 1991); The Florida
Supreme Court Gender Bias Study Commission Final Report
(1990). Indeed, while the U.S. Supreme Court was still
requiring a defendant to meet the impossible burden of
proving that discriminatory jury selection practices were
employed systematically in a number of similar cases or
contexts, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13
L.Ed.2d 759 (1965), this Court took the lead in State v.
Neil, 457 So.2d 481 (Fla. 1984), clarified by State v.
Castillo, 486 So.2d 565 (1986), and established guidelines
under the Florida Constitution to guard against the
racially discriminatory use of peremptory challenges.\13\
The U.S. Supreme Court followed suit two years later in
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), when it overruled the Swain standard
and acknowledged that it imposed a ``crippling burden of
proof'' that rendered a prosecutor's peremptory challenges
largely immune from constitutional scrutiny. Id. at 92-93,
106 S.Ct. at 1720-21. The Court found that a prosecutor's
use of peremptory challenges is subject to the constraints
of the Equal Protection Clause when there is some basis
for believing that the challenges are used in a racially
discriminatory manner.\14\
``The U.S. Supreme Court in Batson recognized the invidious
nature of discrimination. Id. at 93-96, 106 S.Ct. at 1721-23.
Justice Marshall, in a concurring opinion, noted that
discrimination is not often blatantly expressed, and in many
cases it is subliminal:
`A prosecutor's own conscious or unconscious racism may
lead him easily to the conclusion that a prospective black
juror is `sullen,' or `distant,' a characterization that
would not have come to his mind if a white juror had acted
identically. A judge's own conscious or unconscious racism
may lead him to accept such an explanation as well
supported.'--Id. at 106, 106 S.Ct. at 1728 (Marshall, J.
concurring).
Studies of unconscious racism have shown that the
perpetrator does not feel particularly punitive toward
minorities, rather, he or she wants to remain distant and is
less likely to feel empathy because of the distance. Sheri
Lynn Johnson, Comment, Unconscious Racism and the Criminal
Law, 78 Cornell L. Rev. 1016, 1020 n. 27 (1988). While
society has largely rejected blatant stereotypes and overt
discrimination, more subtle forms of racism are increasing:
``A burgeoning literature documents the rise of the
`aversive' racist, a person whose ambivalent racial attitudes
leads him or her to deny his or her prejudice and express it
indirectly, covertly, and often unconsciously.'' Id. at 1027-
28 (footnotes omitted).
``Discrimination, whether conscious or unconscious, cannot
be permitted in Florida courts. As important as it is to
ensure a jury selection process free from racial
discrimination, it is infinitely more important to ensure
that the State is not imposing the ultimate penalty of death
in a racially discriminatory manner. The U.S. Supreme Court
may eventually recognize that the burden imposed by McCleskey
is as insurmountable as that presented by Swain. In the
meantime, defendants such as Foster have no chance of proving
that application of the death penalty in a particular
jurisdiction is racially discriminatory, no matter how
convincing their evidence.\15\
``I suggest the following standard: A party asserting
racial discrimination in the State's decision to seek the
death penalty should make a timely objection and demonstrate
on the record that the discrimination exists and that there
is a strong likelihood it has influenced the State to seek
the death penalty. Such discrimination conceivably could be
based on the race of the victim or on the race of the
defendant. Once the trial court determines that the initial
burden has been met by the defendant, the burden then shifts
to the State to show that the practices in question are not
racially motivated. If the trial court determines that the
State does not meet that burden, the State then is prohibited
from seeking the death penalty in that case.
``Accordingly, because the majority has applied a federal
constitutional standard in Foster's case that is impossible
to meet and has missed the opportunity to craft a state
constitutional standard such as that discussed above, I
dissent from that portion of the opinion.''
footnotes
\1\Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95
L.Ed.2d 347 (1987).
\2\The trial court found three aggravating circumstances: (1)
the murder was committed during the course of a robbery; (2)
the murder was cold, calculated, and premeditated; and (3)
the murder was especially heinous, atrocious, or cruel.
Foster offered thirteen mitigating circumstances. The trial
court found that the mitigation did not outweigh the
aggravating circumstances.
\3\In addition, we note that Foster raised ineffective
assistance of counsel claims in his two federal habeas
petitions. The claims were denied after evidentiary hearing
and the denials were affirmed on appeal. Foster v. Dugger,
823 F.2d 402 (11th Cir. 1987), cert. denied, 487 U.S. 1241,
108 S.Ct. 2915. 101 L.Ed.2d 946 (1988); Foster v. Strickland,
707 F.2d 1339 (11th Cir. 1983), cert. denied, 466 U.S. 993,
104 S.Ct. 2375, 80 L.Ed.2d 847 (1984).
\4\In addition, we note that the motion was filed outside of
the limitations period established by rule 3.850. The motion
fails to allege that the facts upon which his claims are
based ``could not have been ascertained by the exercise of
due diligence.'' Fla.R.Crim.P. 3.850.
5. Sec. 921.141(5)(h), Fla.Stat, (1989).
6. Sec. 921.141(5)(i), Fla.Stat, (1989).
7. Foster also contends that the application of the cold,
calculated, and premeditated aggravating factor to his crime
violates the Ex Post Facto Clause because the factor did not
exist at the time of this crime. We have repeatedly rejected
this claim. See Sirecl v. State, 587 So.2d 450, 454 (Fla.
1991), cert. denied,----U.S.----, 112 S.Ct. 1500 117 L.Ed.2d
639 (1992); Zeigler v. State, 580 So.2d 127 (Fla.), cert.
denied----U.S.----, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991);
Combs v. State, 403 So.2d 418, 421 (Fla. 1981), cert. denied,
456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (Fla. 1982).
8. The weight to be given to the results of such a small
statistical sample as this is questionable. See McCleskey,
481 U.S. at 295, n. 15, 107 S.Ct. at 1768, n. 15.
9. The figures indicating that of the defendants who went to
trial, white-victim defendants were 26 times more likely to
be convicted of first-degree murder than were black-victim
defendants cannot be attributed to a decision by the Bay
County State Attorney's Office and thus are not relevant
here.
10. In view of our disposition of this issue, we do not
address Foster's argument with respect to proportionality.
11. While Campbell did not become final until after the
original sentencing order was entered, its additional
requirements will obviously be applicable to any new
sentencing order.
12. See, e.g., State ex rel. Hawkins v. Board of Control, 93
So.2d 354 (Fla.), cert. denied, 355 U.S. 839, 78 S.Ct. 20.
2L.Ed.2d 49 (1957); State ex rel. Hawkins v. Board of
Control, 83 So.2d 20 (Fla. 1955), cert. denied, 350 U.S. 413,
76 S.Ct. 464, 100 L.Ed. 486 (1956).
13. See also State v. Slappy, 522 So.2d 18 (Fla.) cert.
denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988)
(holding that any doubt as to whether the complaining party
has met its initial burden, should be resolved in that
party's favor).
14. The U.S. Supreme Court recently held that the Equal
Protection Clause also prohibits a criminal defendant from
engaging in purposeful discrimination on the basis of race in
the exercise of peremptory challenges. Georgia v. McCollum,--
--U.S.----, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). This Court
held in Neil that both the State and the defense may
challenge the allegedly improper use of peremptories. 457
So.2d at 487.
15. In this case, Foster presented statistical evidence
showing that even though blacks constituted 40% of the murder
victims in Bay County cases between 1975 and 1987, all 17
death sentences that were imposed were for homicides
involving white victims.
Mr. GRAHAM. Mr. President, I ask unanimous consent to print in the
Record a colloquy between Chief Justice Barkett and Senator Hatch on
the occasion of her confirmation hearing before the Senate Judiciary
Committee on February 3 of this year.
There being no objection, the colloquy was ordered to be printed in
the Record, as follows:
Justice Barkett. My only concern in Foster, Senator, is
that there would be a vehicle by which a defendant could
assert that the law was being discriminatorily applied
against a racial minority. My reading of Supreme Court cases
and my reading of our own cases in my State preclude the use
of a law to be applied in a racially discriminatory manner.
I did not purport to suggest what proof would be sufficient
to overcome that burden, although I recognize that it would
have to be a substantial burden of proof, if that claim were
to prevail. But the essence of my concerns in Foster revolved
around providing a process when there was an occasion that a
defendant could assert that a particular prosecutor, for
example, was only applying the death penalty against black
defendants or only when the victims were white or things of
that nature.
Senator Hatch. I think that is different from applying
statistical disparity. If you read your opinion carefully--
well, let me just say I am very concerned that your approach
would paralyze the implementation of the death penalty.
Now, I myself have lots of qualms about the death penalty.
I would use it very sparingly, and then only in cases where
there is absolute proof of guilt, where there is no evidence
of discrimination, and where the murder is a particularly
heinous murder. There may be other factors, but those are
three that I would want to find in every case.
Let me just add that I am hardly alone in this concern.
Many of my Senate colleagues, for example, have voiced
similar concerns in opposition to legislation labeled by its
advocates as the Racial Justice Act. That legislation, which
also developed in reaction to the McClesky case decided by
the Supreme Court, takes the same or virtually the same
statistical approach as your dissent in Foster.
During the debate on the so-called Racial Justice Act in
1991, Senator Graham, who spoke eloquently on your behalf
today and influentially to me, as did Senator Mack, but
Senator Graham had this to say: ``The reality is that, by
enacting the Racial Justice Act, this Congress in a bill
designed to enhance Federal criminal justice standards,
procedures and laws would destroy the right of a State to
impose the death penalty in a constitutional manner. The
Racial Justice Act of 1991 might more appropriately be called
the Death Penalty Abolition Act of 1991. Seldom has a
proposed Federal law gone so far at one time as to unravel
first the interest of the States in protecting citizens from
murderers, second, to unravel the prosecutorial discretion
recognized in every State, and, third, to unravel the jury
system.''
He goes on to say: ``The very nature of the criminal
justice program does not lend itself to statistical
precision. Each death-eligible decision is inherently
individualized and not necessarily subject to being
categorized.''
Now, as you can see, he and I share the same view on the
Racial Justice Act, and we have defeated it consistently in
our debates over the crime bills that we have had. Let me
just ask you to respond to some criticisms of what I felt was
your theory in that case.
For instance, Justice Powell noted in McClesky that
implementation of murder statutes inherently requires
discretion, which he said ``is essential to the criminal
justice process.'' He explained that this process is unique,
and that ``the nature of capital sentencing decision and the
relationship of the statistics to that decision are
fundamentally different from the corresponding elements in
jury pool selection and employment discrimination cases. In
those cases, the statistics relate to fewer entities and
fewer variables and are relevant to the challenged decisions.
For example, from the time of his arrest until the time of
sentencing, you have independent entities functioning, the
prosecutor who decides to seek the death penalty, a defendant
who may or may not choose to plea bargain, a jury or jury who
have to impose it. It is not the same as one employer hiring
plumbers or a court administrator seeking a jury pool or
other cases where decisions are readily attributable to one
entity.
Justice Powell also said this. He said: ``Another important
difference between the cases in which we have accepted
statistics as proof of discriminatory intent in this case is
that, in the jury pool selection and employment
discrimination cases, the decision-maker has the opportunity
to explain the statistical disparity. Here the State has no
practical opportunity to rebut the statistical study.
Controlling considerations of public policy dictate that
jurors cannot be called to testify to the motives and
influences that led to their verdict.''
Now, he added even further. He said: ``Similarly, the
policy considerations behind a prosecutor's traditionally
wide discretion suggest that the impropriety of law requiring
prosecutors to defend their decisions to seek death penalties
often years after they were made.''
Now, one study--I am sorry this is so long.
Justice Barkett. That is all right.
Senator Hatch. It is important, because it is a matter of
great debate here, as well. Many of us who believe that the
death penalty is provided by the Constitution and
is important know that the reason for the Racial Justice
Act is to knock out the death penalty.
One study you pointed to found, ``That prosecutors sought
the death penalty 27 percent of the time when white victims
were involved, and only 14 percent of the time when minority
victims were involved.'' But each and every one of those
cases had different facts and different circumstances. They
do not seem susceptible to those who really study this area
to statistical comparison such as you called for in the
Foster case.
Go ahead.
Justice Barkett. I do not think that there is anything in
this opinion nor in anything I have written nor in anything I
have ever said or feel that suggests that discretion is not a
part of this process and has to be a part of the process for
many of the reasons that you have enumerated, Senator.
What I think I am saying in this case, however, and what I
think the United States Supreme Court has said in other
contexts, for example, the whole Swain v. Alabama and Batson
v. Kentucky context, is that discretion cannot be used to
selectively enforce the law in a racially discriminatory
manner. And I do not think there is any dispute about that
principle.
The second aspect of your question which I would address is
that I have not suggested in this opinion or anywhere else
that statistics is the be-all and the end-all of the inquiry.
I do believe that perhaps statistics may be something that
could be submitted to be included in an offer of proof on
this question, but I clearly do not believe that some
questions can be resolved only by use of statistical
analysis.
And I think that the passage that you read indicates why it
would be so troublesome, if you attempted to challenge a
whole State's use of statistics or statistics which impact an
entire State as dispositive of anything. There are many
prosecutors in a State, there are many districts, and so on
and so forth.
But when an allegation is made that there is one prosecutor
who is unambiguously using his or her discretion in a way to
only selectively enforce the law or apply the law in a
racially discriminatory manner, there has to be a vehicle in
which a person can raise this claim and in which it can be
decided.
Senator Hatch. But that was not the claim in the Foster
case. In this case, you said--I have a LEXIS/NEXIS, I do not
know whether you have the same thing I do, so I cannot really
tell you the page, but it is near the end of your opinion, I
would say about five paragraphs before the end--you say: ``I
believe that statistical evidence of discrimination in
capital sentencing decisions should similarly establish a
violation of Article I, section 2 of the Florida
Constitution, Statistical evidence should be construed
broadly to include not only historical analysis of the
disposition of first-degree murder cases in a particular
jurisdiction, but also other information that could suggest
discrimination, such as the resources devoted to the
prosecution of cases involving white victims as contrasted to
those involving minority victims--
Justice Barkett. Exactly.
Senator Hatch. --``and the general conduct of a State
attorneys office, including hiring practices and the use of
racial epithets and jokes, when racial bias, whether
conscious or unconscious, exists in an environment where
decisions about seeking the death penalty are made, all
aspects of that bias should be available for evaluation by
the court in reviewing evidence of discrimination.''
That may be in reviewing evidence of discrimination, but
not in making the final decision as to whether capital
punishment should be imposed.
Justice Barkett. I think if you continue in the opinion,
Senator, you will find that what I am talking about is using
all of these things, certainly not exclusively. And as I
point out at the very end of the opinion, it is impossible to
anticipate the circumstances in which it may be manifested,
the trial judge should make a determination, and I suggest a
vehicle which provides a specific standard, that is, the
defendant has the burden of showing a very strong
likelihood of discrimination, and the trial court would
then hear whatever evidence, which would not be simply
statistical evidence as the only evidence to be
considered.
Senator Hatch. As I read the opinion, your standard is very
open-ended. For example, prosecutor's decision as to how much
resources to put into the case turns on many subjective
factors, amount of investigation, trial preparation, attorney
resources needed in the case, as well as available resources.
And since the facts of any set of cases are never alike,
how is it possible to draw meaningful comparisons for that
kind of statistical analysis?
Justice Barkett. Suppose, Senator, I guess if you take the
best case scenario, that there had been 100 murders in a
particular county and 90 of them were against black victims,
only 10 against white victims, and the death penalty was
sought only in those 10 or only in the one case, where there
may be many, many others. All I am trying to suggest to you
is I believe there would be a scenario where it would be
clear that the death penalty was being applied in a racially
discriminatory manner.
The only thing I was suggesting in Foster is that there be
a vehicle by which one can bring that claim to the court and
the court can evaluate it. I was not attempting to suggest,
nor do I suggest now, that there is a particular way of
making that proof. I was suggesting different ways that
certainly would be considered by the trial court.
Senator Hatch. The point I was making is that your standard
is a vague, manipulable standard that would absolutely
paralyze the death penalty, if it were adopted by courts,
under which the burden would be placed upon the State to
prove a negative, and that is what bothered me about that
case.
Like I say, every murder case is unique. You cannot
compare, for example, resources applied between cases or the
decision to seek the death penalty in those cases in a
meaningfully statistical way and come to a conclusion about
racial discrimination. Comparing what happens in two murder
cases is like comparing an apple to an orange.
Justice Barkett. Absolutely.
Senator Hatch. So you feel that if you go on the Circuit
Court of Appeals, you would be bound by the McClesky case?
Justice Barkett. I do not think there is any question of
that, Senator.
Mr. GRAHAM. Thank you, Mr. President
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. SHELBY). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. PELL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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