Sawyer v. Butler
Decision Date | 15 August 1989 |
Docket Number | No. 87-3274,87-3274 |
Citation | 881 F.2d 1273 |
Parties | Robert SAWYER, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, Respondent-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Page 1273
v.
Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary,
Respondent-Appellee.
Fifth Circuit.
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Catherine Hancock, Elizabeth W. Cole, New Orleans, La., for petitioner-appellant.
Dorothy Pendergast, Asst. Dist. Atty., John J. Molaison, Jr., Gretna, La., for respondent-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CLARK, Chief Judge, GEE, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges. 1
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Robert Sawyer was sentenced to death by a Louisiana jury on September 19, 1980 for the brutal slaying of Frances Arwood. Today we decide his appeal from the denial by a United States District Court of his petition for writ of habeas corpus. We have elsewhere recorded the long history of Sawyer's efforts to overturn his conviction. 2 Sawyer's attack has now boiled
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down to three arguments. First, he argues that his court-appointed trial counsel was ineffective in certain respects. Second, and closely related to the first, he argues that his conviction should be set aside because his appointed counsel had not been licensed for five years as required by La.Code Crim.P. art. 512. Finally, he argues that in closing argument the prosecutor misled the jury about its role in capital sentencing as condemned by Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).A panel of this court rejected Sawyer's contentions, dividing over the Caldwell issue, and we took the case en banc. We reject Sawyer's first two contentions for the reasons stated by the panel, affirm the district court's denial of Sawyer's petition for relief from his conviction, and turn to the difficult question of whether Sawyer is entitled to a new sentencing hearing because the state misled the jury about the jury's responsibility in deciding whether Sawyer should be executed.
Part I summarizes the facts. In Part II we sketch the constitutional principles that frame our inquiry. We next in Part III address the statutory overlay to the constitutional issues, as presented by the Supreme Court's recent decision in Teague v. Lane, --- U.S. ----, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Because we conclude that we cannot apply Teague without first defining the scope of Caldwell, we turn back in Part IV to the substantive constitutional questions. We endorse a version of Sawyer's construction of Caldwell. We find in Part V, however, that Caldwell so defined is a new rule within the meaning of Teague, and that Caldwell does not fit within either of Teague 's two exceptions. Sawyer's Caldwell argument is therefore Teague-barred. The prosecutorial argument complained of will thus vitiate Sawyer's death sentence only if Sawyer can prevail under the earlier rule of Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In Part VI we conclude that Sawyer has no Donnelly claim. We therefore affirm denial of Sawyer's petition to vacate his sentence.
Caldwell addressed constitutional issues that arise when a prosecutor misleads a capital jury about its responsibility for the sentencing decision. The prosecutor's argument creates a possibility that the jury will decide between life and death without an appropriate sense of grave responsibility. Sawyer contends that Caldwell mandates a new sentencing trial any time a prosecutor taints the proceeding with a Caldwell-type argument, unless the argument had "no effect" upon the jury. Louisiana, however, says that a Caldwell-type prosecutorial argument will not generate constitutional grounds for reversal unless the argument rendered the sentencing phase "fundamentally unfair" to the defendant. Louisiana would have us focus upon effective prejudice to the defendant, rather than effective dilution of the jury's sense of responsibility. The case turns upon this disagreement.
Sawyer's Caldwell claim arises out of remarks which the prosecutor made in his closing argument during the trial's sentencing phase. The details of the prosecutorial remarks are important to Sawyer's argument. We therefore repeat those remarks here. The prosecutor told the jury:
The law provides that if you find one of these circumstances then what you are doing as a juror, you yourself will not be sentencing Robert Sawyer to the electric chair. What you are saying to this Court, to the people of this Parish, to any appellate court, the Supreme Court of this State, the Supreme Court possibly of the United States, that you the people as a fact finding body from all the facts and evidence you have heard in relationship to this man's conduct are of the opinion that there are aggravating circumstances as defined by the statute, by the State Legislature that this is a type of crime that deserves that penalty. It is merely a recommendation so try as he may, if Mr. Weidner tells you that each and every one of you I hope can live with your conscience and try and play upon your emotions, you cannot deny, it is a difficult decision. No
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one likes to make those [sic] type of decision but you have to realize if but for this man's actions, but for the type of life that he has decided to live, if of his own free choosing, I wouldn't be here presenting evidence and making argument to you. You wouldn't have to make the decision [emphasis supplied].The prosecutor drew the jury's attention to the brutal nature of the crime for which Sawyer stood convicted. The prosecutor then returned to the theme of the jury's responsibility, saying:
There is really not a whole lot that can be said at this point in time that hasn't already been said and done. The decision is in your hands. You are the people that are going to take the initial step and only the initial step and all you are saying to this court, to the people of this Parish, to this man, to all the judges that are going to review this case after this day, is that you the people do not agree and will not tolerate an individual to commit such a heinous and atrocious crime to degrade such a fellow human being without the authority and impact of the law of Louisiana. All you are saying is that this man from his actions could be prosecuted to the fullest extent of the law. No more and no less (emphasis supplied).
After arguing that a death penalty was justified in Sawyer's case, the prosecutor struck the theme of jury responsibility again, telling the jury that their mistakes could be corrected by later decision-makers:
It's all your 3 doing. Don't feel otherwise. Don't feel like you are the one, because it is very easy for defense lawyers to try and make each and every one of you feel like you are pulling the switch. That is not so. It is not so and if you are wrong in your decision believe me, believe me there will be others who will be behind you to either agree with you or to say you are wrong so I ask that you do have the courage of your convictions (emphasis supplied).
The problem of Caldwell error touches upon three of the Constitution's grandest themes. Two of these are obvious. The problem implicates federalism, because the state asserts a power to decide for itself questions of criminal procedure. Caldwell analysis also concerns individual rights, since the defendant contends that diminishing a capital jury's sense of responsibility subjects him to cruel and unusual punishment. The third theme is perhaps less obvious, but no less important to understanding the issues raised by a Caldwell claim. Caldwell touches the principle of popular self-government, because the direct expression of popular sentiment through juries remains an important aspect of the people's participation in the government, and a crucial check upon the state's authority to define the limits of crime and punishment.
The jury seems always to be at the center of the judicial struggle with the death penalty. This should not be surprising. Differences over the role of the jury reflect differences over the wisdom of the penalty itself. The legislative judgment specifying execution as the punishment appropriate to certain crimes embodies a confidence both about the moral principles of the community and about the capacity of the criminal justice system to resolve factual disputes. Coupled with that confidence must be an equal certitude that the jury will be able to bring the community's principles to bear, and so judge blame and guilt accurately in the individual case.
In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), Justice Harlan summarized how history had given expression to this deep link between the death penalty and the jury. Justice Harlan explained that legislatures "to meet the problem of jury nullification ... did not try, as before, to refine further the definition of capital homicides. Instead, they adopted the method of forthrightly granting juries the discretion which they
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had been exercising in fact." Id. at 199, 91 S.Ct. at 1463. Justice Harlan observed that the Court had earlier concluded that "one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary and community values and the penal system--a link without which the determination of punishment could hardly reflect the evolving standards of decency that mark the progress of a maturing society." Id. at 202, 91 S.Ct. at 1464, quoting Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775 n. 15, 20 L.Ed.2d 776 (1968).We have long recognized that decisions that depend essentially upon inarticulable judgment and common sense intuition are prime candidates for jury decision. Indeed, we refer to these judgments as "blackbox decisions." The sentencing decision in capital cases is born out of an inherent and...
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