Murderpedia

 

 

Juan Ignacio Blanco  

 

  MALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

  FEMALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

 

 

 
   

Murderpedia has thousands of hours of work behind it. To keep creating new content, we kindly appreciate any donation you can give to help the Murderpedia project stay alive. We have many
plans and enthusiasm to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.

   

 

 

Ernest John DOBBERT Jr.

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Parricide - Torture - The bodies were never found
Number of victims: 2
Date of murders: 1972
Date of birth: 1938
Victims profile: His daughter Kelly Ann, 9, and his son Ryder Scott, 7
Method of murder: Beating - Strangulation
Location: Duval County, Florida, USA
Status: Executed by electrocution in Florida on September 7, 1984
 
 
 
 
 
 

Ernest John Dobbert Jr., 46, was condemned for the 1971 killing of his 9-year-old daughter, Kelly Ann, and second-degree murder for killing a son, Ryder. Their bodies were never found.

The jury voted 10-2 in favor of life in prison, but the judge overrode the verdict and sentenced Dobbert to death. Dobbert was executed on Sept. 7, 1984 after a tearful reconciliation with another daughter, Honore.

 
 

Ernest John Dobbert Jr.

A Florida child abuser, Dobbert was arrested in 1972 for beating and choking his nine-year-old daughter to death. Subsequent evidence also linked him with the murder of his seven-year-old son and the torture of two other children, ages five and eleven. 

A jury convicted Dobbert on all counts, but recommended life imprisonment instead of death, jurors voicing uncertainty over Dobbert's alleged intent to kill the children. The presiding judge used his option to override the jury's recommendation, and Dobbert was sentenced to die. His appeals exhausted, the child killer was executed in the electric chair on September 7, 1984. 

Governor Bob Graham told the press, "Ernest Dobbert has been executed because of his brutal actions toward his own children. I hope that this indication of the seriousness of child abuse will be an example of the value which the people of Florida place upon the lives of infants and young people in our state."

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans

 
 

U.S. Supreme Court

432 U.S. 282

97 S.Ct. 2290
53 L.Ed.2d 344

Ernest John DOBBERT, Jr., Petitioner,
v.
State of FLORIDA.

No. 76-5306.

Argued March 28, 1977.
Decided June 17, 1977.

Rehearing Denied Oct. 3, 1977. See 434 U.S. 882, 98 S.Ct. 246.

Syllabus

The Florida death penalty statute, which was upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, requires, upon the conviction of a capital felon, a separate sentencing hearing before the trial judge and jury, at which certain evidence relating to aggravating or mitigating circumstances must be admitted. The jury, based on such circumstances, then renders an advisory decision, not binding on the judge, who must then also weigh the circumstances, and if he imposes a death sentence, he must set forth written findings of fact. The judgment of conviction and death sentence are thereafter subject to an automatic priority review by the Florida Supreme Court. Petitioner was convicted in a Florida court of, inter alia, first-degree murder of one of his children. Pursuant to the above statute the jury, after the required sentencing hearing, recommended a life sentence, but the judge overruled that recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed. Petitioner makes three claims based on the constitutional prohibition against ex post facto laws: (1) the change in the role of the judge and jury in imposing the death sentence, in that under the statute in effect at the time of the murder a recommendation of mercy by the jury was not reviewable by the judge, constituted an ex post facto violation because the change deprived him of a substantial right to have the jury determine, without review by the trial judge, whether the death penalty should be imposed; (2) there was no death penalty "in effect" in Florida at the time of the murder because the earlier statute in effect at such time was later held invalid by the Florida Supreme Court under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346; and (3) the current statute (the one under which he was sentenced) requires anyone sentenced to life imprisonment to serve at least 25 years before becoming eligible for parole, whereas the prior statute contained no such limitation. Petitioner also makes a related claim that since after Furman and its own decision invalidating the prior death penalty statute the Florida Supreme Court resentenced to life imprisonment all prisoners then under death sentences pursuant to the old statute, and since his crimes were committed prior to Furman, the imposition of the death sentence upon him pursuant to the new statute denied him equal protection of the laws. He further claims that pretrial publicity concerning his crimes deprived him of his right to a fair trial. Held:

1. The changes in the death penalty statute between the time of the murder and the time of the trial are procedural and on the whole ameliorative, and hence there is no ex post facto violation. Pp. 293-297.

(a) The new statute simply altered the methods employed in determining whether the death penalty was to be imposed, and there was no change in the quantum of punishment attached to the crime. Pp. 293-294.

(b) The new statute provides capital defendants with more, rather than less, judicial protection than the old statute. Death is not automatic, absent a jury recommendation of mercy, as it was under the old statute; a jury recommendation of life may be overridden by the trial judge only under exacting standards, but, unlike the old statute, a jury recommendation of death is not binding. Defendants have a second chance for life with the trial judge and a third, if necessary, with the Florida Supreme Court. Pp. 294-297.

2. The existence of the earlier statute at the time of the murder served as an "operative fact" to warn petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder, and this was sufficient compliance with the ex post facto provision of the Constitution, notwithstanding the subsequent invalidation of the statute. Pp. 297-298.

3. Petitioner, having been sentenced to death, may not complain of burdens attached to a life sentence under the new statute which may not have attached to the old. Pp. 298-301.

4. The imposition of the death sentence upon petitioner pursuant to the new statute did not deny him equal protection of the laws. Having been neither tried nor sentenced prior to Furman, he was not similarly situated to those whose death sentences were commuted, and it was not irrational for Florida to relegate him to the class of those prisoners whose acts could properly be punished under the new statute that was in effect at the time of his trial and sentence. P. 301.

5. Absent anything in the record, in particular with respect to the voir dire examination of the jurors, that would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected, petitioner has failed to show that under the "totality of circumstances" extensive pretrial news media coverage of his case denied him a fair trial. Pp. 301-303.

328 So.2d 433, affirmed.

Louis O. Frost, Jr., Jacksonville, Fla., for petitioner.

Charles W. Musgrove, Tallahassee, Fla., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Petitioner was convicted of murder in the first degree, murder in the second degree, child abuse, and child torture. The victims were his children. Under the Florida death penalty statute then in effect he was sentenced by the trial judge to death for the first-degree murder. The Florida Supreme Court affirmed, and we granted certiorari to consider whether changes in the Florida death penalty statutes subjected him to trial under an ex post facto law or denied him equal protection of the laws, and whether the significant amount of pretrial publicity concerning the crime deprived petitioner of his right to a fair trial. We conclude that petitioner has not shown the deprivation of any federal constitutional right, and affirm the judgment of the Florida Supreme Court.

* Petitioner was convicted of first-degree murder of his daughter Kelly Ann, aged 9, and second-degree murder of his son Ryder Scott, aged 7. He was also found guilty of torturing his son Ernest John III, aged 11, and of abusing his daughter Honore Elizabeth, aged 5. The brutality and heinousness of these crimes are relevant both to petitioner's motion for a change of venue due to pretrial publicity and to the trial judge's imposition of the sentence of death. The trial judge, in his factual findings at the sentencing phase of the trial, summarized petitioner's treatment of his own offspring as follows:

"The evidence and testimony showed premeditated and continuous torture, brutality, sadism and unspeakable horrors committed against all of the children over a period of time." App. 47.

The judge then detailed some of the horrors inflicted upon young Kelly Ann, upon which he relied to meet the statutory requirement that aggravating circumstances be found:

"Over the period of time of the latter portion of Kelly Ann's short, tortu(r) ous life the defendant did these things to her on one or many occasions:

"1. Beat her in the head until it was swollen.

"2. Burned her hands.

"3. Poked his fingers in her eyes.

"4. Beat her in the abdomen until 'it was swollen like she was pregnant.'

"5. Knocked her against a wall and 'when she fell, kicked her in the lower part of the body.'

"6. Held her under water in both the bath tub and toilet.

"7. Kicked her against a table which cut her head then defendant sewed up her wound with needle and thread.

"8. Scarred her head and body by beating her with a belt and board causing marks from her cheek, across the neck and down her back which injuries worsened without treatment 'until the body juices came out.' "9. On one occasion beat her continuously for 45 minutes.

"10. On many occasions kicked her in the stomach with his shoes on, and on the night she died he kicked her a number of times.

"11. Kept her out of school so that the many scars, cuts and bruises on her body would not be seen by others.

"12. Defendant made no effort to get professional medical care and attention for the child and in fact actively prevented any out-siders from discovering her condition.

"13. Choked her on the night she died and when she stopped breathing he placed her body in a plastic garbage bag and buried her in an unmarked and unknown grave." Id., at 47-48.

This sordid tale began to unravel in early 1972 when Ernest John III was found battered and wandering in Jacksonville, Fla.1 An arrest warrant was issued for petitioner, who evidently had fled the area. About a year later, Honore Elizabeth was found in a Ft. Lauderdale hospital with a note pinned to her clothing asking that she be sent to her mother in Wisconsin. Shortly thereafter petitioner's abandoned automobile was found near a bridge with a suicide note on the front seat. Petitioner, however, had fled to Texas, where he was eventually arrested and extradited to Florida.

Prior to trial, petitioner applied to the Supreme Court of Florida for a Constitutional Stay of Trial,2 alleging the application of an ex post facto law and a violation of equal protection. Id., at 81-86. The application was denied. Petitioner also moved in the lower court for a change of venue, alleging that he was charged with "inherently odious" acts, id., at 17, and that extensive publicity regarding his flight, extradition, and arrest, as well as a search for bodies by the Jacksonville Police Department, had rendered impossible a fair and impartial trial in Duval County. Id., at 17-18. The trial judge took the motion under advisement and issued an order enjoining anyone connected with the trial from releasing any statement about the case to the news media. Id., at 25-26. The motion was later denied.

Trial was had and the jury found petitioner guilty of inter alia, murder in the first degree. Pursuant to the Florida death penalty statute then in effect, a sentencing hearing was held before the judge and jury. The jury by a 10-to-2 majority found sufficient mitigating circumstances to outweigh any aggravating circumstances and recommended a sentence of life imprisonment. The trial judge, pursuant to his authority under the amended Florida statute, overruled the jury's recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed over two dissents.

II

Petitioner makes three separate claims based on the prohibition against ex post facto laws, and a related claim based upon the Equal Protection Clause of the Fourteenth Amendment. His first ex post facto claim is addressed to the change in the function of judge and jury in the imposition of death sentences in Florida between the time he committed the acts charged and the time he was tried for them. The second ex post facto claim is grounded on his contention that at the time he acted there was no valid death penalty statute in effect in Florida. The third claim relates to the more stringent parole requirements attached to a life sentence under the new law. A discussion of the relevant changes in Florida death-sentencing procedures brings these claims into focus.

The murders of which petitioner was convicted were alleged to have occurred on December 31, 1971 (Kelly Ann), and between January 1 and April 8, 1972 (Ryder Scott). During that period of time, Fla.Stat.Ann. 775.082 (1971) and 921.141 (Supp.1971-1972), as then written, provided that a person convicted of a capital felony was to be punished by death unless the verdict included a recommendation of mercy by a majority of the jury.3

On June 22, 1972, this Court struck down a Georgia death penalty statute as violative of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Shortly thereafter, on July 17, 1972, in Donaldson v. Sack, 265 So.2d 499, the Florida Supreme Court found the 1971 Florida death penalty statutes inconsistent with Furman. Late in 1972 Florida enacted a new death penalty procedure, 1973 Fla.Laws, c. 72-724, amending, inter alia, 775.082 and 921.141.4

The opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), in which the constitutionality of this statute was upheld, details at length the operation of the revised 921.141.5 428 U.S., at 247-251, 96 S.Ct., at 2964-2966. After a defendant is found guilty of a capital felony, a separate sentencing hearing is held before the trial judge and the trial jury. Any evidence that the judge deems relevant to sentencing may be admitted, and certain evidence relating to aggravating or mitigating circumstances must be admitted. The jury, by a majority vote, then renders an advisory decision, not binding on the court, based upon these aggravating and mitigating circumstances. The court must then also weigh the aggravating and mitigating circumstances. If the court imposes a sentence of death, it must set forth written findings of fact regarding the aggravating and mitigating circumstances. A judgment of conviction and sentence of death is then subject to an automatic, priority review by the Florida Supreme Court. It is in the light of these changes that we must adjudge petitioner's ex post facto claims.

Petitioner argues that the change in the role of the judge and jury in the imposition of the death sentence in Florida between the time of the first-degree murder and the time of the trial constitutes an ex post facto violation. Petitioner views the change in the Florida death-sentencing procedure as depriving him of a substantial right to have the jury determine, without review by the trial judge, whether that penalty should be imposed. We conclude that the changes in the law are procedural, and on the whole ameliorative,6 and that there is no ex posto facto violation.

Article I, 10, of the United States Constitution prohibits a State from passing any "ex post facto Law." Our cases have not attempted to precisely delimit the scope of this Latin phrase, but have instead given it substance by an accretion of case law. In Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 (1925), Mr. Justice Stone summarized for the Court the characteristics of an ex post facto law:

"It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." It is equally well settled, however, that "(t)he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed." Gibson v. Mississippi, 162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075 (1896). "(T)he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 59 L.Ed. 905, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Beazell v. Ohio, supra, at 171, 46 S.Ct., at 69.

Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example, in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), as of the date of the alleged homicide a convicted felon could not have been called as a witness. Subsequent to that date, but prior to the trial of the case, this law was changed; a convicted felon was called to the stand and testified, implicating Hopt in the crime charged against him. Even though this change in the law obviously had a detrimental impact upon the defendant, the Court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict. Id., at 589, 4 S.Ct., at 210.

In Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898), a defendant was convicted of murder solely upon circumstantial evidence. His conviction was reversed by the Missouri Supreme Court because of the inadmissibility of certain evidence. Prior to the second trial, the law was changed to make the evidence admissible and defendant was again convicted. Nonetheless, the Court held that this change was procedural and not violative of the Ex Post Facto Clause.

In the case at hand, the change in the statute was clearly procedural. The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime. The following language from Hopt v. Utah, supra, applicable with equal force to the case at hand, summarizes our conclusion that the change was procedural and not a violation of the Ex Post Facto Clause:

"The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute." 110 U.S., at 589-590, 4 S.Ct., at 210.

In this case, not only was the change in the law procedural, it was ameliorative. It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law. Petitioner argues that the change in the law harmed him because the jury's recommendation of life imprisonment would not have been subject to review by the trial judge under the prior law. But it certainly cannot be said with assurance that, had his trial been conducted under the old statute, the jury would have returned a verdict of life.7

Hence, petitioner's speculation that the jury would have recommended life were the prior procedure in effect is not compelling. We must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous. Under the old procedure, the death penalty was "presumed" unless the jury, in its unbridled discretion, made a recommendation for mercy. The Florida Legislature enacted the new procedure specifically to provide the constitutional procedural protections required by Furman, thus providing capital defendants with more, rather than less, judicial protection. The protections thus provided, which this Court upheld in Proffitt, provided are substantial. A separate hearing is held; the defendant is allowed to present any relevant mitigating evidence. The jury renders an advisory verdict based upon its perception of aggravating and mitigating factors in the case. The court makes the final determination, but may impose death only after making a written finding that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.

Finally, in what may be termed a tripartite review, the Florida Supreme Court is required to review each sentence of death. This required review, not present under the old procedure, is by no means perfunctory; as was noted in Proffitt, as of that time the Florida Supreme Court had vacated 8 of the 21 death sentences that it had reviewed to that date. 428 U.S., at 253, 96 S.Ct., at 2967.8 Perhaps most importantly, the Florida Supreme Court has held that the following standard must be used to review a trial court's rejection of a jury's recommendation of life:

"In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d 908, 910 (1975) (emphasis added) (cited with approbation in Proffitt v. Florida, 428 U.S., at 249, 96 S.Ct., at 2965.)

This crucial protection demonstrates that the new statute affords significantly more safeguards to the defendant than did the old. Death is not automatic, absent a jury recommendation of mercy, as it was under the old procedure. A jury recommendation of life may be overridden by the trial judge only under the exacting standards of Tedder.9 Hence, defendants are not significantly disadvantaged vis-a-vis the recommendation of life by the jury; on the other hand, unlike the old statute, a jury determination of death is not binding. Under the new statute, defendants have a second chance for life with the trial judge and a third, if necessary, with the Florida Supreme Court. No such protection was afforded by the old statute. Hence, viewing the totality of the procedural changes wrought by the new statute, we conclude that the new statute did not work an onerous application of an ex post facto change in the law. Perhaps the ultimate proof of this fact is that this old statute was held to be violative of the United States Constitution in Donaldson v. Sack, 265 So.2d 499 (Fla.1972), while the new law was upheld by this Court in Proffitt, supra.

B

Petitioner's second ex post facto claim is based on the contention that at the time he murdered his children there was no death penalty "in effect" in Florida. This is so, he contends, because the earlier statute enacted by the legislature was, after the time he acted, found by the Supreme Court of Florida to be invalid under our decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Therefore, argues petitioner, there was no "valid" death penalty in effect in Florida as of the date of his actions. But this sophistic argument mocks the substance of the Ex Post Facto Clause. Whether or not the old statute would in the future, withstand constitutional attack, it clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.

Petitioner's highly technical argument is at odds with the statement of this Court in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329 (1940):

"The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178; Chicago, I. & L. Ry. Co. v.

Hackett, 228 U.S. 559, 566, 33 S.Ct. 581, 584, 57 L.Ed. 966. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored."

Here the existence of the statute served as an "operative fact" to warn the petitioner of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder. This was sufficient compliance with the ex post facto provision of the United States Constitution.

C

Petitioner's third ex post facto contention is based on the fact that the new Florida statute provides that anyone sentenced to life imprisonment must serve at least 25 years before becoming eligible for parole. The prior statute contained no such limitation. The Florida Supreme Court in Lee v. State, 294 So.2d 305 (1974), found that this provision restricting parole could not constitutionally be applied to crimes committed prior to its effective date. Petitioner contends that nonetheless its enactment by the Florida Legislature amounts to an ex post facto law, and that because of this he may successfully challenge the death sentence imposed upon him.

Petitioner, of course, did not receive a life sentence, and so any added onus attaching to it as a result of the change in Florida law had no effect on him. In Lindsey v. Washington, 301 U.S. 397, 400-401, 57 S.Ct. 797, 798, 81 L.Ed. 1182 (1937), the Court stated:

"The effect of the new statute is to make mandatory what was before only the maximum sentence. Under it the prisoners may be held to confinement during the entire fifteen year period. Even if they are admitted to parole, to which they become eligible after the expiration of the terms fixed by the board, they remain subject to its surveillance and the parole may, until the expiration of the fifteen years, be revoked at the discretion of the board or cancelled at the will of the governor. It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. Kring v. Missouri, (107 U.S. 221,) 228-229, 2 S.Ct. 443, 27 L.Ed. 506; In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835; Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061. It is for this reason that an increase in the possible penalty is ex post facto, Calder v. Bull, 3 Dall 386, 390, 1 L.Ed. 648; Cummings v. Missouri, (4 Wall. 277,) 326, 18 L.Ed. 356; Malloy v. South Carolina, 237 U.S. 180, 184, 35 S.Ct. 507, 59 L.Ed. 905, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier, State v. Callahan, 109 La. 946, 33 So. 931; State v. Smith, 56 Or. 21, 107 P. 980." (Emphasis added.)

Lifted from their context and read expansively, the emphasized portions of the quoted language would lend some support to petitioner's claim. But we think that consideration of the Lindsey language in the factual context in which that case was decided does not lead to the result sought by petitioner.

Lindsey came here from the Supreme Court of Washington on a claim that a change in the state law respecting the sentence to be imposed upon one convicted of the felony of grand larceny violated the Ex Post Facto Clause. At the time Lindsey committed the larceny, the law provided for a maximum sentence of 15 years, and a minimum sentence of not less than 6 months. At the time Lindsey was sentenced, the law had been changed to provide for a mandatory 15-year sentence. Even though under the new statute a convict could be admitted to parole at a time far short of the expiration of his mandatory sentence, the Court observed that even on parole he would remain "subject to the surveillance" of the parole board and that his parole itself was subject to revocation.

Lindsey, then, had received a sentence under the new law which was within permissible bounds under the old law, albeit at the outer limits of those bounds. But under the new law it was the only sentence he could have received, while under the old law the sentencing judge could in his discretion have imposed a much shorter sentence. In contrast to the petitioner here, Lindsey was not complaining in the abstract about some change in the law, which as events proved, would have no applicability to his case. His complaint was that the new law totally eliminated any sentence of less than 15 years once he was convicted of larceny, and thereby assured that he would receive what was only the discretionary maximum sentence under the old law.

We think the excerpted language from Lindsey must be read in the light of these facts to mean that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old. It is one thing to find an ex post facto violation where under the new law a defendant must receive a sentence which was under the old law only the maximum in a discretionary spectrum of length; it would be quite another to do so in a case, such as this, where the change has had no effect on the defendant in the proceedings of which he complains.

Petitioner here can make no claim comparable to Lindsey's. Under the new law, both life imprisonment and death remain as possible alternative sentences. Only if we were to read the excerpted portion of the quoted language from Lindsey to confer standing on the defendant to complain of an added burden newly attached to a sentence which was never imposed on him would that language assist him. But we hold that petitioner, having been sentenced to death, may not complain of burdens attached to the life sentence under the new law which may not have attached to it under the old.

D

After our Furman decision and its own decision in Donaldson v. Sack, the Florida Supreme Court resentenced all prisoners under sentence of death pursuant to the old statute to life imprisonment. Anderson v. State, 267 So.2d 8 (Fla.1972); In re Baker, 267 So.2d 331 (1972). Petitioner argues that since his crimes were committed before our decision in Furman, the imposition of the death sentence upon him pursuant to the new statute which was in effect at the time of his trial denies him equal protection of the laws.

But petitioner is simply not similarly situated to those whose sentences were commuted. He was neither tried nor sentenced prior to Furman, as were they, and the only effect of the former statute was to provide sufficient warning of the gravity Florida attached to first-degree murder so as to make the application of this new statute to him consistent with the Ex Post Facto Clause of the United States Constitution. Florida obviously had to draw the line at some point between those whose cases had progressed sufficiently far in the legal process as to be governed solely by the old statute, with the concomitant unconstitutionality of its death penalty provision, and those whose cases involved acts which could properly subject them to punishment under the new statute. There is nothing irrational about Florida's decision to relegate petitioner to the latter class, since the new statute was in effect at the time of his trial and sentence.

III

There was, understandably, extensive pretrial publicity concerning several aspects of this case. We accept petitioner's assertion, Brief for Petitioner 38-48, that there was substantial media coverage, including a number of television and radio stories regarding the various aspects of the case.

In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), we reviewed a trial in which many jurors had heard of the defendant through extensive news coverage. Characterizing our previous cases in which we had overturned a state-court conviction on these grounds as involving "a trial atmosphere that had been utterly corrupted by press coverage," id., at 798, 95 S.Ct., at 2035, we recognized:

"Qualified jurors need not, however, be totally ignorant of the facts and issues involved.

" 'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' " Id., at 799-800, 95 S.Ct., at 2036, quoting from Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

We concluded that the petitioner in Murphy had failed to show that the trial setting was inherently prejudicial or that the jury selection process permitted an inference of actual prejudice. 421 U.S., at 803, 95 S.Ct., at 2037.

The Florida Supreme Court in this case noted that 78 prospective jurors were interviewed, and that petitioner exercised only 27 of his 32 peremptory challenges. Specifically referring to our decision in Murphy, that court concluded:

"(W)e find from the record that the trial judge did everything possible to insure an impartial trial for the defendant. The jurors, carefully and extensively examined by defense counsel to determine that they could be fair and impartial, were sequestered and (a) comprehensive gag order was placed on all participants of the trial.

"Appellant has failed to show that he did not receive a fair and impartial trial, that the setting of his trial was inherently prejudicial." 328 So.2d, at 439-440.

Petitioner's argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair.

Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a "trial atmosphere . . . utterly corrupted by press coverage," Murphy v. Florida, supra, 421 U.S., at 798, 95 S.Ct., at 2035. One who is reasonably suspected of murdering his children cannot expect to remain anonymous. Petitioner has failed to convince us that under the "totality of circumstances," Murphy, supra, the Florida Supreme Court was wrong in finding no constitutional violation with respect to the pretrial publicity. The judgment of the Supreme Court of Florida is therefore

Affirmed.

*****

Mr. Chief Justice BURGER, concurring.

I join the opinion of the Court. A crucial factor in this case, for me, is that, as the Court's opinion recites, when petitioner committed the crime, a Florida statute permitted the death penalty for the offense. Petitioner was at least constructively on notice that this penalty might indeed follow his actions. During the time which elapsed between the commission of the offense and the trial, the statute was changed to provide different procedures for determining whether death was an appropriate punishment. But these new procedures, taken as a whole, were, if anything, more favorable to the petitioner; consequently the change cannot be read otherwise than as the Court's opinion suggests.

*****

Mr. Justice BRENNAN and Mr. Justice MARSHALL, dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 231, 96 S.Ct. 2909, 2950, 2973, 49 L.Ed.2d 859 (1976), we would vacate the death sentence in this case.

*****

Mr. Justice STEVENS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

Only a few simple facts are relevant to the question of law presented by this case.1 At the time of petitioner's offense, there was no constitutional procedure for imposing the death penalty in Florida. Several months after his offense, Florida enacted the death penalty statute that was upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913. Before this statute was passed, as a matter of Florida law, the crime committed by petitioner was not a capital offense.2 It is undisputed, therefore, that a law passed after the offense is the source of Florida's power to put petitioner to death.

The Court holds that Florida may apply this law to petitioner without violating the Ex Post Facto Clause.3 In its view, the unconstitutional law which was on the Florida statute books at the time of the offense "clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers." Ante, at 297. The Court concludes that the "fair warning" provided by the invalid statute "was sufficient compliance with the ex post facto provision of the United States Constitution." Ante, at 298.4

This conclusion represents a clear departure from the test the Court has applied in past cases construing the Ex Post Facto Clause. That test was stated in Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182, in language that might have been written with the present case in mind:

"The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer."5

Applying that test in Lindsey, the Court held that even though the statute in effect at the time of the crime authorized a sentence of 15 years in the discretion of the trial judge, that sentence could not be imposed pursuant to a new mandatory sentencing statute. Notwithstanding the defendant's "fair warning" of the possible 15-year sentence, the Court held that the change in the standard of punishment could not be retroactively applied to him.6 The change was invalid simply because the new standard increased the probability of a severe sentence. In the case before us the new standard created the possibility of a death sentence that could not have been lawfully imposed when the offense was committed. A more dramatically different standard of punishment is difficult to envision.

We should adhere to the Lindsey test. Fair warning cannot be the touchstone, for two reasons. First, "fair warning" does not provide a workable test for deciding particular cases. Second, as Mr. Justice Harlan has explained,7 fair notice is not the only important value underlying the constitutional prohibition; the Ex Post Facto Clause also provides a basic protection against improperly motivated or capricious legislation.8 It ensures that the sovereign will govern impartially and that it will be perceived as doing so. The Court's "fair warning" test, if it extends beyond this case, would allow government action that is just the opposite of impartial. If that be so, the "fair warning" rationale will defeat the very purpose of the Clause.

By what standard is the fairness of the warning contained in an unconstitutional statute to be judged? Is an itinerant, who may not have the slightest notion of what Florida's statute books contain, to be judged differently from a local lawyer? The assumption that the former has "fair warning" can only rest on the somewhat unrealistic presumption that everyone is deemed to know the law. But it is not words in statute books that constitute the law. If citizens are bound to know the law, "they (are) bound to know it as we have expounded it." Kring v. Missouri, 107 U.S. 221, 235, 2 S.Ct. 443, 455, 27 L.Ed. 506. A consistent application of that presumption would require the conclusion that neither the lawyer nor the itinerant had fair warning because both must also be presumed to know that the old Florida statute was a nullity. The Court's test cannot fairly be applied on the basis of a particular individual's actual knowledge of the law; if applied on the basis of a presumed knowledge of the law, it requires that this death sentence be vacated.

As applied to pre-Furman death penalty statutes, the Court's test is dramatically inadequate. The Court makes the assumption that the "existence on the statute books" of the pre-Furman statute provided "fair warning" to petitioner "of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder." Ante, at 297, 298. On the contrary, capital punishment at the time of Furman had "for all practical purposes run its course." Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (White, J., concurring). The death penalty at that time was "freakishly imposed" and "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Id., at 310, 309, 92 S.Ct., at 2763, 2762 (Stewart, J., concurring). The possibility of such capricious punishment is not "fair warning," under any meaningful use of those words.

If the Court's rationale is applicable to all cases in which a State replaces an unconstitutional death penalty statute with a subsequent statute, it is dramatically at odds with the common understanding of the meaning of the Clause. That understanding was most plainly revealed by the nationwide response to this Court's invalidation of the death penalty in Furman v. Georgia, supra. Of the hundreds of prisoners on death row at the time of that decision, none was resentenced to death. Each of those persons, at the time of his offense, had precisely the same "fair warning" as this petitioner. But our state courts and state legislatures uniformly acted on the assumption that none of them could be executed pursuant to a subsequently enacted statute. Under the "fair warning" rationale the Court adopts today, there was, and is, no such constitutional barrier.

If I am correct that the Ex Post Facto Clause was intended as a barrier to capricious government action, today's holding is actually perverse. For when human life is at stake, the need to prevent capricious punishment is greatest, as our decisions in Furman and Proffitt establish. Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. Yet the Court's holding may lead to results which are intolerably arbitrary. For example, the trial in Miller v. State, 332 So.2d 65 (Fla. 1976), was delayed by the defendant's incompetence to stand trial. By the time his capacity was restored, Florida had enacted its new death penalty statute. Had it not been for his fortuitous illness, defendant would have been tried promptly and escaped the death penalty. Because of a delay over which he had no control, the enactment of an ex post facto statute was held to entitle the State to put him to death. The capricious consequence is particularly grotesque because Miller may well have been advised before trial that this Court's decision in Furman had removed the possibility of a death sentence.9

Because a logical application of the Court's "fair warning" rationale would lead to such manifestly intolerable results,10 I assume that this case will ultimately be regarded as nothing more than an archaic gargoyle. It is nevertheless distressing to witness such a demeaning construction of a majestic bulwark in the framework of our Constitution.

I respectfully dissent.

*****

1

These background facts, not referred to in the opinion of the Supreme Court of Florida, 328 So.2d 433 (1976), are not disputed and are gleaned from the briefs of the parties. See Brief for Petitioner 4-13; accord, Brief for Respondent 3.

2

See Florida Appellate Rule 4.5g.

3

The text of those statutes is as follows:

"Recommendation to mercy. A defendant found guilty by a jury of an offense punishable by death shall be sentenced to death unless the verdict includes a recommendation to mercy by a majority of the jury. When the verdict includes a recommendation to mercy by a majority of the jury, the court shall sentence the defendant to life imprisonment. A defendant found guilty by the court of an offense punishable by death on a plea of guilty or when a jury is waived shall be sentenced by the court to death or life imprisonment." Fla.Stat.Ann. 921.141 (Supp.1971-1972).

"Penalties for felonies and misdemeanors. (1) A person who has been convicted of a capital felony shall be punished by death unless the verdict includes a recommendation to mercy by a majority of the jury, in which case the punishment shall be life imprisonment. A defendant found guilty by the court of a capital felony on a plea of guilty or when a jury is waived shall be sentenced to death or life imprisonment, and (sic ) the discretion of the court." Fla.Stat.Ann. 775.082 (1971).

4

The constitutionality of this statute has been upheld by the Florida Supreme Court, State v. Dixon, 283 So.2d 1 (1973), and by this Court, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

5

The full text of revised 921.141 (Supp.1976-1977) is as follows:

"921.141 Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence

"(1) Separate proceedings on issue of penalty. Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by 775.082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in Chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitutions of the United States or of the State of Florida. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

"(2) Advisory sentence by the jury. After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:

"(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (6);

"(b) Whether sufficient mitigating circumstances exist as enumerated in

subsection (7), which outweigh the aggravating circumstances found to exist; and

"(c) Based on these considerations, whether the defendant should be sentenced to life (imprisonment) or death.

"(3) Findings in support of sentence of death. Notwithstanding the recommendation of a majority of the jury, the court after weighing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

"(a) That sufficient aggravating circumstances exist as enumerated in subsection (6), and

"(b) That there are insufficient mitigating circumstances, as enumerated in subsection (7), to outweigh the aggravating circumstances.

"In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (6) and (7) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with section 775.082.

"(4) Review of judgment and sentence. The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida within sixty (60) days after certification by the sentencing court of the entire record, unless the time is extended for an additional period not to exceed thirty (30) days by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.

"(5) Aggravating circumstances. Aggravating circumstances shall be limited to the following:

"(a) The capital felony was committed by a person under sentence of imprisonment.

"(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

"(c) The defendant knowingly created a great risk of death to many persons.

"(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

"(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody.

"(f) The capital felony was committed for pecuniary gain.

"(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

"(h) The capital felony was especially heinous, atrocious, or cruel.

"(6) Mitigating circumstances. Mitigating circumstances shall be the following:

"(a) The defendant has no significant history of prior criminal activity.

"(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

"(c) The victim was a participant in the defendant's conduct or consented to the act.

"(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

"(e) The defendant acted under extreme duress or under the substantial domination of another person.

"(f) 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.

"(g) The age of the defendant at the time of the crime."

6

These are independent bases for our decision. For example, in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), we found a procedural change not ex post facto even though the change was by no means ameliorative.

7

For example, the jury's recommendation may have been affected by the fact that the members of the jury were not the final arbiters of life or death. They may have chosen leniency when they knew that that decision rested ultimately on the shoulders of the trial judge, but might not have followed the same course if their vote were final.

8

Since that time, the State informs us, the Florida Supreme Court has reversed nine death sentences, and affirmed eight. Brief for Respondent 18-19, n. 3; Respondent's Notice of Additional Authority.

9

The fact that the trial judge imposed a death sentence after the jury had recommended life in this case in no way denigrates the procedural protections afforded by the new procedure. The judge did so in circumstances where there were obvious and substantial aggravating factors, and where there had been no significant mitigating factors adduced. To demonstrate that it was the nature of the crime, rather than the scope of the procedure, that resulted in the death sentence in this case, we set forth in extenso the conclusions of the trial court at the sentencing phase:

"There are sufficient and great aggravating circumstances which exist to justify the sentence of death.

"In concluding my findings I would like to point out that my 22 years of legal experience have been almost exclusively in the field of criminal law.

"The Judge of this Court has been a defense attorney of criminal cases, a prosecutor for eight and one half years and a Criminal Court Judge and a Circuit Judge Felony Division for three and one half years.

"During this (sic ) 22 years I have defended, prosecuted and held trial of almost every type of serious crime. During these years of legal experience I have never known of a more heinous, atrocious and cruel crime than this one.

"My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States Army Paratrooper and served overseas in ground combat. I have had friends blown to bits and have seen death and suffering in every conceivable form.

"I am not easily shocked or (a)ffected by tragedy or cruelty but this murder of a helpless, defenseless and innocent child is the most cruel, atrocious and heinous crime I have eve(r) personally known of and it is deserving of no sentence but death." App. 49.

*****

1

The atrocious character of this individual's crimes, which the Court recounts in such detail, is of course no more relevant to the legal issue than the fact that 10 of the 12 jurors who heard all of the evidence voted to spare his life.

2

In response to this Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Florida Supreme Court held that the Florida death penalty had been abolished, that even the category of "capital offenses" had ceased to exist, and that there was no possible procedure under existing Florida law for imposing the penalty. Donaldson v. Sack, 265 So.2d 499 (1972); State v. Whalen, 269 So.2d 678 (1972). Following these decisions, therefore, the crime committed by petitioner was not a capital offense.

3

Article I, 10, provides that "(n)o State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . ." There is a separate prohibition against ex post facto laws in Art. I, 9, which applies to Congress.

4

In support of this conclusion, the Court cites not a single case involving the Ex Post Facto Clause. Instead, it relies solely on a case which held that a decision of this Court could not serve as a basis for a retroactive attack on a final judgment in a civil case. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329.

5

Cf. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, in which the Court reviewed a number of state cases involving ex post facto legislation and explicitly endorsed this "excellent observation" by Judge Denio of the New York Court of Appeals:

" 'No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority, before the imputed offence was committed, and which existed as a law at that time.' " Id., at 230-231, 2 S.Ct., at 451, quoting Hartung v. People, 22 N.Y. 95, 104 (1860) (emphasis in original).

6

This language from Mr. Justice Stone's opinion is, I believe, plainly applicable to this case:

"It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. King v. Missouri, supra, 107 U.S. 221, 228-229, 2 S.Ct. 443, 27 L.Ed. 506; In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835; Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061. It is for this reason that an increase in the possible penalty is ex post facto, Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648; Cummings v. Missouri, (4 Wall. 277,) 326 (, 18 L.Ed. 356); Malloy v. South Carolina, 237 U.S. 180, 184, 35 S.Ct. 507, 59 L.Ed. 905, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier, State v. Callahan, 109 La. 946, 33 So. 931; State v. Smith, 56 Or. 21, 107 P. 980.

"Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will, operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change. Marion v. State, 16 Neb. 349, 20 N.W. 289. Yet this is only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and minimum punishment by making the maximum compulsory. We need not inquire whether this is technically an increase in the punishment annexed to the crime, this is technically an increase in the punishment annexed to the crime, see Calder v. Bull, supra, 3 Dall. 386, 390, 1 L.Ed. 648. It is plainly to the substantial disadvantage of petitioners . . . ." 301 U.S., at 401-402, 57 S.Ct., at 799.

In this case, it is also plain to the substantial disadvantage of the petitioner to be sentenced to death pursuant to a statute that was enacted after his offense was committed, when he could not have been validly sentenced to death under the law in effect at the time of the offense.

7

Mr. Justice Harlan understood the ex post facto clause as serving a purpose beyond ensuring that fair notice be given of the legal consequences of an individual's actions. He stated:

"Aside from problems of warning and specific intent, the policy of the prohibition against ex post facto legislation would seem to rest on the apprehension that the legislature, in imposing penalties on past conduct, even though the conduct could properly have been made criminal and even though the defendant who engaged in that conduct in the past believed he was doing wrong (as for instance when the penalty is increased retroactively on an existing crime), may be acting with a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons." James v. United States, 366 U.S. 213, 247 n. 3, 81 S.Ct. 1052, 1070, 6 L.Ed.2d 246 (separate opinion).

8

Unlike the procedural guarantees in the Bill of Rights which originally were applicable only to the Federal Government, the Ex Post Facto Clause has always applied to the States. Mr. Justice Chase, writing just a few years after the Constitution was adopted, stated that the Clause was probably a result of the ex post facto laws and bills of attainder passed in England. "With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice. To prevent such, and similar, acts of violence and injustice, . . . the Federal and State Legislatures, were prohibited from passing any bill of attainder ; or any ex post facto law." Calder v. Bull, 3 Dall. 386, 389, 1 L.Ed. 648. It is an important indication of the thought of the times that Mr. Justice Chase believed that the Clause did no more than state an inherent rule of government:

"This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. . . . The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them . . . . To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments." Id., at 388-389 (italics omitted).

9

A comment by Judge Learned Hand on the unfairness of extending a statute of limitations after it had run has even greater force if applied to this kind of situation:

"The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest." Falter v. United States, 23 F.2d 420, 425-426 (CA2 1928).

10

Perhaps this is an area in which an example is worth more than argument. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 demonstrators were convicted under an ordinance which prohibited picketing within 150 feet of a school. This Court affirmed convictions under an anti-noise ordinance but reversed the convictions under the anti-picketing ordinance. The reason for reversal was that the ordinance exempted peaceful picketing of any school involved in a labor dispute; it was therefore held to be invalid because it was not neutral as to content. See Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212. But in the meantime, the ordinance had been amended in 1971 to delete the labor exemption thus removing the First Amendment problem, 408 U.S., at 107 n. 2, 92 S.Ct., at 2298. As I understand today's decision, these demonstrators could now be convicted of violating the 1971 ordinance on the basis of their actions in 1969, since they were on fair notice that the State intended to prohibit their conduct. At least in Grayned there was no reason to think that the 1971 ordinance was passed with retroactive application in mind I am sure that before today no one would have considered such an application constitutional but the potential for this kind of legislative (and prosecutorial) abuse is created by the Court's holding. It was precisely this potential that the Framers wished to avoid.

Indeed, the Court's holding today seems inconsistent with its holding in Grayned. For in Grayned, the Court agreed with a concession that the 1971 amendment " 'has, of course, no effect on Appellant's personal situation,' " and went on to say that "(n)ecessarily, we must consider the facial constitutionality of the ordinance in effect when appellant was arrested and convicted." 408 U.S., at 107 n. 2, 92 S.Ct., at 2298 n. 2. Under today's holding, it is difficult to see why the 1971 amendment could not simply have been applied ex post facto to cure the defect in the original statute.

 
 

718 F.2d 1518

Ernest John Dobbert, Petitioner-Appellant,
v.
Charles G. Strickland, Jr., Et Al., Respondents-Appellees.

No. 85-5121

Federal Circuits, 11th Cir.

October 19, 1983

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY and TJOFLAT, Circuit Judges, and WISDOM*, Senior Circuit Judge.

PER CURIAM:

This is an appeal by a Florida state prisoner from a federal district court's denial of habeas corpus relief in a capital case. Petitioner Ernest John Dobbert was convicted of first degree murder of his daughter. Contrary to the recommendation of the advisory sentencing jury, the trial judge sentenced him to death. In the precise words used in his petition for a writ of habeas corpus, Dobbert asserted the following grounds in the federal district court:

1. insufficiency of the evidence;

2. refusal to consider relevant mitigating circumstances;

3. striking aggravating circumstances;

4. refusal to instruct jury on a lesser included offense;

5. the Supreme Court of Florida's improper ex parte consideration of extra-record materials;

6. systematic exclusion of death-scrupled jurors;

7. improper overriding of jury's verdict of life imprisonment;

8. unconstitutionality of trial court overriding jury verdict of life and imposing a sentence of death;

9. improper restriction of mitigating circumstances;

10. refusal to sever counts;

11. improperly admitted prejudicial evidence;

12. improper closing argument;

13. unconstitutional aggravating evidence.

Petition for Writ of Habeas Corpus, Dobbert v. Strickland, 532 F.Supp. 545 (M.D.Fla.1982).

Paraphrased as follows, petitioner asserts seven claims on appeal:

1. The Florida Supreme Court's solicitation and collection of psychiatric, psychological and correctional reports concerning petitioner and other death row inmates during the pendency of their capital appeals violated the rights to due process, effective assistance of counsel, confrontation, and the prohibitions against cruel and unusual punishment and self-incrimination under the Fifth, Sixth, Eighth and Fourteenth Amendments (the so-called Brown issue);

2. The Florida Supreme Court's affirmance of the death sentence after ruling two of the four aggravating circumstances found by the state trial court inapplicable violated the Eighth and Fourteenth Amendments;

3. A. Imposition of the death sentence after the jury's recommendation of life violated the integrity of the jury trial, due process, and the prohibitions against double jeopardy and cruel and unusual punishment;

B. The procedure by which the jury recommendation was overridden violated due process and the prohibition against cruel and unusual punishment under the Eighth and Fourteenth Amendments;

4. The Florida courts refused to give independent weight to mitigating evidence in violation of the Eighth and Fourteenth Amendments;

5. The prosecutor's use of peremptory challenges to remove death-scrupled jurors from the panel was a deprivation of due process and violated the right to have a jury composed of a fair cross-section of the community under the Sixth and the Fourteenth Amendments;

6. The evidence at trial was insufficient to prove beyond a reasonable doubt the element of premeditation required for conviction of murder in the first degree.

Our recent en banc opinion in Ford v. Strickland, 696 F.2d 804 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 201, 76 L.Ed.2d ---- (1983), settled appellate issue one adversely to petitioner. Ford and the recent Supreme Court decision in Barclay v. Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), control the decision as to issue two. Because the remaining contentions fail to present errors of constitutional magnitude, we affirm.

Background

In the spring of 1974, Dobbert was convicted in Circuit Court, Duval County, Florida, of the first degree murder of his nine-year-old daughter, second-degree murder of his seven-year-old son, child torture of his eleven-year-old son, and child abuse of his five-year-old daughter. Only the first degree murder conviction and sentence are challenged in the instant appeal.

Petitioner's conviction and sentence were affirmed by the Florida Supreme Court. Dobbert v. State, 328 So.2d 433 (Fla.1976). The United States Supreme Court granted certiorari on three issues not involved in the instant appeal and decided them all against Dobbert. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Under the authority of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of Florida entered an order which vacated petitioner's death sentence and remanded the case to the trial judge for resentencing. The trial judge resentenced Dobbert to death, the Florida Supreme Court affirmed the new sentence, Dobbert v. State, 375 So.2d 1069 (Fla.1979), and the United States Supreme Court denied certiorari. Dobbert v. Florida, 447 U.S. 912 , 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

Petitioner joined with 122 other death row inmates in a state habeas corpus petition challenging the Florida Supreme Court's alleged practice of receiving nonrecord information during the pendency of the appeals of capital cases. The Florida Supreme Court dismissed the petition with an extensive opinion. Brown v. Wainwright, 392 So.2d 1327 (Fla.1981). The denial of certiorari by the United States Supreme Court fostered a dissenting opinion. Brown v. Wainwright, 454 U.S. 1000 , 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). Dobbert thereafter mounted another collateral attack pursuant to Florida Rule of Criminal Procedure 3.850. Denial of relief was affirmed by the Supreme Court of Florida on January 28, 1982. Dobbert v. State, 409 So.2d 1053 (Fla.1982).

Scheduled for electrocution on February 2, 1982, petitioner filed the petition for writ of habeas corpus that is the basis of the instant appeal on January 27, 1982. The federal district court denied relief, and we granted a stay of execution by order, followed by an opinion. Dobbert v. Strickland, 670 F.2d 938 (11th Cir.1982).

1.

The Brown Issue

Lacking specific evidence that such materials were reviewed in his case, Dobbert attacks the Florida Supreme Court's alleged practice of receiving nonrecord materials concerning death row inmates during the pendency of their appeals. Our recent en banc decision in Ford v. Strickland, 696 F.2d at 809-11, considered and rejected this identical claim.

2.

Insufficiency of Evidence on Two Aggravating Circumstances

Under the Florida procedure by which a jury renders an advisory verdict as to sentence in a capital case, Dobbert's jury recommended life imprisonment. The trial court, however, sentenced Dobbert to death, finding evidentiary support for four statutory aggravating circumstances. On appeal, the Supreme Court of Florida ruled there was insufficient evidence to support two of the four circumstances: that Dobbert was under sentence of imprisonment when he committed the murder and that he created a great risk of death to many persons. Dobbert v. State, 375 So.2d at 1070.

The court upheld the remaining two aggravating circumstances, specifically finding "the murder was committed to avoid lawful arrest and was especially heinous and cruel." Id. At the time this case was submitted, petitioner argued that where the trial court relied on two aggravating circumstances for which there was insufficient evidentiary support, the Florida Supreme Court's affirmance of his death sentence was unconstitutional under Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981) and Stephens v. Zant, 631 F.2d 397 (5th Cir.1980). Stephens has now been reversed by the Supreme Court, Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and Henry has been vacated. Wainwright v. Henry, --- U.S. ----, 103 S.Ct. 3566, 77 L.Ed.2d 1407 (1983).

Prior to the recent Supreme Court decisions, this Court had rejected this same basic contention in an en banc opinion, Ford v. Strickland, 696 F.2d at 1261-63, which held our decisions in Stephens and Henry inapplicable to a situation such as this reasoning:

In any event, we think that Stephens and Henry are inapposite to the case at bar. This case involves consideration of neither unconstitutional nor nonstatutory aggravating evidence. That the evidence was insufficient to support two circumstances and one circumstance was based on the same aspect of the crime as another does not suggest that the sentencing court considered any extraneous or improper evidence. The sentencing jury and judge considered only evidence of facts which could properly be considered by them.

This case is appreciably different from Stephens because there the jury may have considered evidence that it could not constitutionally consider. In this case, no evidence considered was inappropriate for consideration. The sentencing judge's erroneous classification of that evidence as the aggravating circumstances permitted by statute should not constitutionally infect the sentence. On all of the evidence before him, he reached the determination that the death sentence was appropriate.

In Ford, we upheld against constitutional attack a death sentence even though the trial judge relied on two aggravating circumstances without evidentiary support and one aggravating circumstance based on the same aspect of the crime as another, properly considered an aggravating circumstance.

The United States Supreme Court has also now rejected a similar contention in Barclay v. Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). In Barclay, the Court upheld a death sentence even though the sentencing judge considered a nonstatutory aggravating circumstance in violation of state law. Thus, as in the present case, the trial judge relied on an invalid aggravating circumstance. In affirming the death sentence, the United States Supreme Court reasoned that the Florida Supreme Court could determine the improper aggravating circumstance did not affect the trial judge's decision since there were other proper aggravating circumstances. Id. at ---- - ----, 103 S.Ct. at 3427-28. See also Zant v. Stephens, --- U.S. ----, ---- - ----, 103 S.Ct. 2733, 2749-50, 77 L.Ed.2d 235, 257-59 (1983).

As in Barclay and Ford, the sentencing judge here found no mitigating circumstances and some appropriate statutory aggravating circumstances. The judge did not view as aggravating any constitutionally protected conduct. The Florida Supreme Court then followed what seems to be its consistent practice in cases of this kind: to affirm the death sentence if justified under a review of all the evidence and one or more validly found aggravating circumstances are present, even though one or more statutory grounds are not sufficiently shown. Dobbert v. State, 375 So.2d at 1071. As in Barclay, the Florida Supreme Court reviewed the sentence under the heightened standard of Tedder v. State, 322 So.2d 908 (Fla.1975), because the jury recommended life, concluding "the facts suggesting the death sentence are so clear and convincing that virtually no reasonable person could differ." Dobbert v. State, 375 So.2d at 1071.

Thus, the trial court's imposition of the death sentence and the Florida Supreme Court's affirmance thereof were not arbitrary. The Florida courts satisfied the constitutional requirement by making an "individualized determination on the basis of the character of the individual and the circumstances of the crime." Barclay, --- U.S. at ----, 103 S.Ct. at 3428, quoting Zant v. Stephens, --- U.S. ----, ----, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235, 251 (1983) (emphasis in original).

3.

Imposition of the Death Sentence Following an Advisory Jury Verdict Recommending Life Imprisonment

In his third and fourth claims on appeal, Dobbert contends the trial judge's imposition of a death sentence following the jury's advisory life verdict is unconstitutional per se under Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and procedurally unconstitutional under Tedder v. State, 322 So.2d 908 (Fla.1975).

A.

Bullington is inapposite because in Missouri, the jury's sentencing decision is controlling. In that case, the defendant was convicted of capital murder and sentenced by the jury to life imprisonment. After a new trial, the second jury sentenced him to death. The Supreme Court held the Fifth Amendment's double jeopardy clause precluded imposition of a more severe sentence on retrial, analogizing the jury's sentencing function to its role in determining guilt or innocence.

Under the Florida statute, however, the sentencing jury's verdict is merely advisory and not binding on the trial judge. The Supreme Court's approval of Florida's capital sentencing procedure, including the provision for judge sentencing preceded by jury recommendation, defuses by implication any charge that the failure of the sentencing judge to follow the jury's recommendation is unconstitutional. See Proffitt v. Florida, 428 U.S. 242 , 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976); Dobbert v. Florida, 432 U.S. 282, 294-97, 97 S.Ct. 2290, 2298-2300, 53 L.Ed.2d 344 (1977). Indeed, as Dobbert concedes, it is an open question whether jury participation in the penalty phase of a capital case is constitutionally required at all. Lockett v. Ohio, 438 U.S. 586, 609 n. 16, 98 S.Ct. 2954, 2967 n. 16, 57 L.Ed.2d 973 (1978); Proffitt v. Florida, 428 U.S. at 252, 96 S.Ct. at 2966.

B.

Pursuing a slightly different angle, petitioner claims that even though the system is constitutional, the procedures by which the death penalty was imposed in his case were unconstitutional. He relies on Tedder v. State, which holds a death sentence imposed after an advisory jury life verdict can be sustained only if supported by facts so "clear and convincing that no reasonable person could differ." 322 So.2d at 910.

When distilled, Dobbert's argument is both an extension of his position that the non-binding status of the jury's recommendation is unconstitutional per se coupled with an attack on the sufficiency of the evidence under Tedder. As to the former, this feature of the Florida capital sentencing statute is constitutional. See Proffitt v. Florida, 428 U.S. at 252, 96 S.Ct. at 2966. As to the latter, we have already held in Part 2, supra, that the fact that there was a lack of evidentiary support for two of the four aggravating circumstances relied on by the trial court does not render petitioner's sentence constitutionally infirm. Ford v. Strickland, 696 F.2d at 1259-61. We hold hereafter that mitigating evidence was not unconstitutionally restricted, see Part 4, infra. Review of the record under the Tedder standard reveals sufficient support for the ultimate conclusions of the state trial judge's detailed findings, the two opinions of the Florida Supreme Court and the United States Supreme Court's decision to defeat a constitutional attack on the death sentence as procedurally deficient.

4.

Weight Accorded Mitigating Evidence

Petitioner argues that although he was allowed to present such mitigating evidence as he desired in his sentencing hearing, the trial court violated Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982), by failing to give independent weight to evidence of his emotional disturbance and other nonstatutory mitigating circumstances.

This argument fails because our analysis of the record reveals that both the order of the trial court and the decision of the Florida Supreme Court reflect consideration of all mitigating evidence put on by Dobbert, statutory and nonstatutory. Dobbert v. State, 375 So.2d at 1071. The identical concluding phrase employed by the trial court, "[t]here are no mitigating circumstances existing--either statutory or otherwise--which outweigh any aggravating circumstances" has been held indicative of the sentencing judge's consideration of nonstatutory mitigating evidence. Ford v. Strickland, 696 F.2d at 813.

Petitioner's suggestion that this rationale compels the conclusion that non-statutory aggravating circumstances were also considered is unavailing because the above phrase was not used in connection with the trial court's discussion of aggravating circumstances. The fact that the sentencing order does not refer to the specific types of non-statutory "mitigating" evidence petitioner introduced indicates only the trial court's finding the evidence was not mitigating, not that such evidence was not considered. Whether particular evidence, such as the fact that Dobbert had a difficult childhood, is mitigating depends on the evidence in the case as a whole and the views of the sentencing and reviewing judges. What one person may view as mitigating, another may not. Merely because the Florida courts, operating through a properly drawn statute with appropriate standards to guide discretion, do not share petitioner's view of the evidence reveals no constitutional infirmity. See Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969-70.

5.

Use of Peremptory Challenges to Exclude Death-Scrupled Jurors

Petitioner claims the state used peremptory challenges at his trial to systematically exclude death-scrupled jurors from his panel in violation of his rights to due process and to a fair and impartial jury drawn from a cross-section of the community under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Although it also rejected this contention on the merits, the district court held first under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that this point is foreclosed from consideration in the federal forum due to Dobbert's failure to object at trial to the prosecutor's use of peremptory challenges. The Florida Supreme Court has recently reaffirmed the applicability of the waiver-by-failure-to-object rule to challenges to the composition of the jury panel. Maggard v. State, 399 So.2d 973, 975 (Fla.1981), cert. denied, 454 U.S. 1059 , 102 S.Ct. 610, 70 L.Ed.2d 598 (1981).

The applicability of Sykes' procedural default rule to the instant facts is not entirely clear because the Florida Supreme Court, in affirming the denial of relief to petitioner in a collateral attack under Fla.R.Crim.P. 3.850, both applied the rule and reached the merits. Dobbert v. State, 409 So.2d 1053 (Fla.1982). The trial court had previously denied the motion, also through an alternative ruling. A procedural default bars the consideration of the merits of an issue in federal court only when the state court itself applies the procedural default rule. See Ulster County Court v. Allen, 442 U.S. 140, 152, 99 S.Ct. 2213, 2222, 60 L.Ed.2d 777 (1979). Where the state court waives the procedural requirement and decides the case on the merits, federal review of the constitutional claim is not barred. Rogers v. McMullen, 673 F.2d 1185, 1188 (11th Cir.1982).

Where the state court decision relies on both a procedural default and a lack of merit, the situation is unclear. One federal district court has held in a habeas corpus case that it was required to conduct a review on the merits under such circumstances. Darden v. Wainwright, 513 F.Supp. 947, 952 (M.D.Fla.1981). We have held, however, that where a state court clearly and correctly applies a procedural default rule, Sykes requires the federal court to abide by the state court's decision even though the state court discusses the merits as an alternate ground for rejecting a claim. Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir.), cert. denied 444 U.S. 868 , 100 S.Ct. 143, 62 L.Ed.2d 93 (1979).

Appellate courts often decide an issue in the alternative with no intention of abandoning any available ground for decision. The problem here, however, is discerning whether the waiver rule has been applied and the merits discussed only in the alternative, or whether the procedural ground is mentioned only in passing and the merits form the basis of the state court's decision. In this case, for example, the Florida Supreme Court first discusses the merits, then states, "Furthermore, we find that Dobbert has waived any right to challenge the jury based on the rationale of Witherspoon by his failure to object to the State's peremptory challenges to the jury panel." Dobbert v. State, 409 So.2d at 1057.

This approach by the state court might well give the federal court the option to refuse to review the merits of the issue because of a state court procedural default. Just as the federal district and state courts decided both issues, however, we examine them both on appeal.

Assuming applicability of the procedural default rule, petitioner argues that Sykes' cause and prejudice exception applies because it is "not at all clear that violations of Witherspoon are waivable" and because evidence of the pattern and practice was not available until after trial. These arguments fail for two reasons. First, Witherspoon dealt with the standard for dismissing jurors for cause based on their beliefs concerning the death penalty and not the systematic exclusion of jurors based on race through peremptory challenges addressed in Swain. Petitioner's novel attack on the state's use of peremptory challenges to exclude death-scrupled jurors rests on a synthesis of Witherspoon and Swain, and does not present a true Witherspoon claim so that the waivability of a pure Witherspoon claim is not properly before us.

In any event, we have repeatedly held the contemporaneous objection rule constitutional with regard to challenges of the composition of jury panels, Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir.1981), and Dobbert has presented no authority which stands for the proposition that Sykes' procedural default rule is inoperable in the Witherspoon context. Second, although the research study on which petitioner's claim is founded was completed after his trial, both Witherspoon and Swain were decided years before. It therefore cannot be said Dobbert lacked the tools to construct the instant constitutional claim at the time of trial. Engle v. Isaac, 456 U.S. 107, 129-34, 102 S.Ct. 1558, 1572-74, 71 L.Ed.2d 783 (1982).

An examination of the merits reveals no constitutional error. We agree with the district court that Witherspoon and Swain, which address respectively the use of challenges for cause to exclude death-scrupled jurors and the use of peremptory challenges to exclude black jurors, have not been extended to the instant situation and are inapplicable. Dobbert's Witherspoon/Swain claim is therefore rejected on both procedural and substantive grounds.

6.

Sufficiency of the Evidence

Petitioner alleges there was insufficient evidence to prove the element of premeditation to sustain his conviction for first degree murder. The district court opinion carefully and correctly applies Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and like the Florida Supreme Court, Dobbert v. State, 328 So.2d 433 (Fla.1976), aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), concludes there was ample evidence to permit a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. There is no merit to this challenge to petitioner's conviction.

AFFIRMED.

*****

WISDOM, Senior Circuit Judge, dissenting.

I respectfully dissent. When the state exacts death as the punishment for a crime, it must follow meticulously the procedures designed to safeguard against even a slight risk of improper imposition of this uniquely irreversible sentence.

The reversible error is that the prisoner's file, subject to review by the Florida Supreme Court, included nonrecord evidence. In the majority opinion it is characterized as "The Brown Issue". See Brown v. Wainwright, Fla.1981, 392 So.2d 1327, cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407. In Brown the petitioner and other Florida death row inmates joined in asking habeas relief on the ground that the Florida Supreme Court "engaged in the continuing practice of requesting and receiving information concerning capital appellants which was not presented at trial and not a part of the trial record or record on appeal".

That information includes presentence investigations, psychiatric evaluations and contact notes made in the corrections system after conviction, and psychological screening reports made after conviction by corrections personnel. Id. at 1330. The court did not deny the existence of the practice, but stated: "Factors or information outside the record play no part in our sentence review role." Id. at 1332. Moreover, "the reading of non-record documents would [not] so affect members of this Court that they could not properly perform their assigned appellate functions". Id. The majority perfunctorily dismisses the Brown issue: "Our recent en banc decision in Ford v. Strickland, [11 Cir.1983, 696 F.2d 804], considered and rejected this identical claim."

Ford is bad law1 and flabby authority to treat as a binding precedent. The Court of Appeals for the Eleventh Circuit should reexamine its position on the issue raised in that case and raised again in this case. Stare decisis is not so powerful a doctrine that it should overcome justice and perpetuate error. Stare decisis is useful in providing stability and predictability in the law, particularly in the field of commercial law, but it is far less useful in constitutional law.

The United States Supreme Court is dedicated to the thesis that "when convinced of former error, this Court has never felt constrained to follow precedent". Smith v. Allwright, 1944, 321 U.S. 649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987. Here there is no long line of cases establishing precedent. There are just the enigmatic opinion in Ford and the impenetrable opinion in Brown. This Court should correct its error before it is snared by a net of its own making.

The irrelevancies in this case are not the nonrecord files the Florida Supreme Court has made a practice of requesting in death cases. They are an over-tender respect for the sensibilities of that court and a fear that too many prisoners in death row cells in Florida will have to be resentenced. But when the stakes are life and death for at least 123 men on death row,2 "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason...." Gardner v. Florida, 1977, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (plurality opinion) (emphasis added).

In Gardner v. Florida, the Supreme Court reversed a death sentence because a portion but not all of the presentence report had been disclosed to the defendant's counsel and, on the basis of the report, the district judge had rejected the jury's advisory verdict and sentenced the defendant to death. The plurality opinion in Gardner found that the sentencing procedure violated the due process clause of the fourteenth amendment. Notwithstanding the holding in Gardner, the Florida Supreme Court conceded in Brown that it followed the practice in capital cases of requesting nonrecord psychiatric, psychological, and post-sentence reports on petitioners. These reports were not shown nor were their contents made known to the petitioners or their attorneys.

As Chief Judge Godbold said in his dissenting opinion in Ford: "The rationale, if not the narrow holding of Gardner v. Florida, ... prohibits an appellate court from relying on, that is, using as a factor in its decision, nonrecord information." 696 F.2d at 820. It is unclear whether the Florida Supreme Court has violated this principle. "The disparate views that the judges of this court have expressed about the import of Brown convincingly demonstrate the intractable ambiguity of the Florida Supreme Court's opinion." Id. at 821. According to the Ford majority, the Florida Supreme Court indicated in Brown that it did not use the extrinsic material. 696 F.2d at 804. Judge Godbold read Brown "differently". He construed the opinion as "not directly stat[ing] that it did not actually rely on nonrecord information". Id. at 821. Judge Johnson, also dissenting, found that "[t]he Florida Supreme Court has admitted the practice [of considering nonrecord information] but has attempted to justify its actions by drawing a fine distinction between capital sentence 'review' as defined by state law and constitutionally required 'supervisory standards' imposed by the United States Supreme Court." Id. at 872. Judge Kravitch, dissenting from the panel opinion, pointed out:

The Florida court did not deny that it systematically requested and received nonrecord information concerning capital defendants, see Brown v. Wainwright, 392 So.2d at 1330, 1331; moreover it essentially admitted having used the information for some purpose by its statement that "[t]he 'tainted' information we are charged with reviewing was ... in every instance obtained to deal with newly-articulated procedural standards". Id. at 1333 n. 17....

The mystery that the Florida Supreme Court has chosen to leave unresolved concerning the purpose of its requests for and its use of nonrecord information only underscores the need for a complete factual record in this case.

Ford v. Strickland, 11 Cir.1982, 676 F.2d 434, 455.

Only blind faith can support a conclusion that there was no appearance of impropriety, for its stretches credulity past the breaking point to hold, as the majority effectively holds in this case, that the Florida Supreme Court consistently and secretly sought information that it intended not to use and that was, according to the court, "irrelevant". For the reasons eloquently and lucidly explained in the dissenting opinions in Ford,3 I would hold that the Florida Supreme Court's practice of receiving nonrecord information must be held to violate the due process clause of the fourteenth amendment.

I agree with Judge Johnson's suggested remedy:

[T]he only way to remedy this violation would be to direct the district court to grant the writ conditionally. The writ would become final in the event that the Florida Supreme Court does not grant petitioner a new direct review of his conviction and sentence. Either the new review must be undertaken completely without the benefit of nonrecord material, or, if the court decides to continue its practice, the new review must give petitioner and his counsel adequate notice of the use of nonrecord information, with adequate opportunity to comment on and challenge the material.

Ford v. Strickland, 696 F.2d at 874.

*****

* Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation

1 I was not a member of the Ford panel and therefore could not express my disagreement with the holding of the en banc Court of Appeals for the Eleventh Circuit

2 One hundred twenty-two death row inmates joined with Joseph Brown in the petition challenging the Florida court's practice. Brown v. Wainwright, Fla.1981, 392 So.2d 1327, cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407. The broad principle stated in Ford could apply to all of them

3 See also Brown v. Wainwright, 1981, 454 U.S. 1000, 1001, 102 S.Ct. 542, 543, 70 L.Ed.2d 407 (Marshall, J., dissenting from denial of certiorari). Justice Marshall pointedly asks: "If the Court does not use the disputed nonrecord information in performing its appellate function, why has it systematically sought the information?" Justice Marshall's opinion further notes that the practice of the Florida Supreme Court may also have resulted in violations of Estelle v. Smith, 1981, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359. I agree. In Smith, the Court held that the results of an in-custody psychiatric examination could not be used in the penalty phase of a trial for a capital crime when the defendant was neither given Miranda warnings before the examination nor permitted the assistance of counsel in deciding whether to undergo the examination. Dobbert apparently had neither warnings nor assistance of counsel in deciding to undergo the interviews that he contends the supreme court considered

 
 

Supreme Court of the United States

Ernest John DOBBERT, Jr.
v.
Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections

No. 84-5378

September 7, 1984

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The application for stay of execution of the sentence of death presented to Justice POWELL, and by him referred to the Court, is denied. The petition for a writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

The State of Florida intends to electrocute the applicant Ernest John Dobbert, Jr. in several hours. Dobbert seeks a stay of his execution pending the orderly disposition of a petition for a writ of certiorari. He raises substantial issues concerning the constitutionality of his death sentence and the proper measure of federal deference to state-court factfinding under 28 U.S.C. 2254(d). I would grant Dobbert's application and stay his execution.

I

Dobbert was convicted in 1974 of the first-degree murder of his 9- year-old daughter Kelly. Although the jury recommended a life sentence by a vote of 10-2, the presiding judge, R. Hudson Olliff, overrode the recommendation and imposed the death sentence.

Dobbert's 13-year-old son, John III, testified at trial that he saw Dobbert kick Kelly in the stomach several times on the night before her death and that, on the subsequent evening, he saw Dobbert choke the girl until she stopped breathing. John III was "the State's key witness" at trial. Dobbert v. State, 414 So.2d 518, 519 (Fla.1982).

There was abundant evidence that Dobbert had committed unspeakably brutal acts toward his children, but John III's testimony was the sole evidence that Dobbert had actually and deliberately strangled Kelly to death. "While the evidence presented without his testimony was adequate to convict of second-degree murder, young Dobbert's testimony supplied the sole basis for finding premeditation. There is no doubt that Dobbert inflicted injuries that caused the death of his daughter, but only through the trial testimony of young Dobbert is there evidence of his intent to cause that death." Dobbert v. State, 456 So.2d 424, 431 (1984) (McDonald, J., dissenting in part).

In 1982, eight years after his father had been convicted and sentenced to death, John III recanted his trial testimony. His affidavit, set forth in full as an appendix to this opinion, is direct and to the point: "I did not testify truthfully about the cause of my sister Kelly's death at the trial... My father did not kill Kelly." John III stated that, in fact, the "kicking incident" had occurred two weeks before Kelly's death. With respect to the fatal night, John III now states that he remembers Kelly "sitting in bed eating some soup. She started vomiting, and then choking on her own vomit and food. My father tried to give her mouth to mouth resuscitation, but it didn't work. Kelly was not killed by my father; she died accidentally, choking on food or vomit."

Why had John III earlier testified that Dobbert choked Kelly to death ? First, at the time of the trial "I was still deathly afraid of my father after all I'd been through and seen, and wanted to be sure he'd be locked up where I'd be safe from him." Second, in the time leading up to and following the trial, John III was living at a children's home in Wisconsin where he was undergoing hypnosis and kept "heavily medicated" on Thorazine. Finally, "[a]lthough no one ever said it directly," John III " knew" that the staff at the children's home "wanted me to testify that my father killed my sister. I looked up to these people and wanted desperately to please them-they were good to me and concerned about me in a way I hadn't known for years."

Dobbert has twice argued in state court that his capital conviction and sentence are unconstitutional in light of John III's perjured testimony. The first time, in connection with his request to file a petition for a writ of error coram nobis, the Supreme Court of Florida held that John III's recantation is not "new evidence" and therefore does not deserve judicial attention. Dobbert v. State, 414 So.2d, at 520. The court argued that, because John III had given a statement to the police after Kelly's death which contradicted the testimony he later gave at trial, defense counsel could have cross-examined the boy at trial on the inconsistencies between the earlier statement and his testimony. Ibid.

The second time, in connection with a motion to vacate the conviction, Circuit Judge R. Hudson Olliff held that, even in the face of the recantation, there is no "evidence or proof" to support Dobbert's claim of perjured testimony. State v. Dobbert, No. 73-5068, p. 81 (Fla. 4th Cir.Ct ., May 1, 1984), aff'd, 456 So.2d 424 (1984). Judge Olliff, who had presided over the original trial, reviewed John III's statements to the police, deposition testimony, trial testimony, and subsequent deposition testimony in a civil proceeding. Although John III's initial statements to the police contradicted his subsequent trial testimony, Judge Olliff found that the inconsistencies were easily explained away in light of the boy's terror of the father. Judge Olliff then reviewed John III's other prerecantation statements and held that they "are all consistent and each corroborates the other." Thus, he concluded, even in the face of the recantation "it is obvious that the murder conviction was not based solely- or in part-upon perjured testimony. Nor is there any evidence or proof to support [Dobbert's] allegation of perjury." State v. Dobbert, No. 73-5068, at 81. Judge Olliff made this conclusion without any discussion or analysis of John III's recantation. The Supreme Court of Florida affirmed, holding that Dobbert's claim of perjury is "without merit" because "there is no evidence or proof to support present counsel's allegation of perjury ." 456 So.2d, at 429.

Dobbert then filed a successive petition for federal habeas relief in the United States District Court for the Middle District of Florida. Although there is no question that Dobbert was not abusing the writ on this issue-John III's recantation had come after Dobbert's first federal petition had been denied-the District Court denied the petition because Judge Olliff had found that "even in light of the 1982 recantation John's trial testimony was not perjured. Judge Olliff found, instead, that there was 'no evidence or proof to support [petitioner's] allegation of perjury.' " 593 F.Supp. 1418, 1427 (1984). This finding, the District Court concluded, commands deference under 28 U.S.C. 2254(d). See Sumner v. Mata, 449 U.S. 539 (1981). The Eleventh Circuit, 742 F.2d 1274, has now affirmed 2-1. 742 F.2d 1274 (1984). ( Clark, J., dissenting).

II

Recantation testimony is properly viewed with great suspicion. It upsets society's interest in the finality of convictions, is very often unreliable and given for suspect motives, and most often serves merely to impeach cumulative evidence rather than to undermine confidence in the accuracy of the conviction. For these reasons, a witness' recantation of trial testimony typically will justify a new trial only where the reviewing judge after analyzing the recantation is satisfied that it is true and that it will "render probable a different verdict." See, e.g., Brown v. State, 381 So.2d 690, 692-693 (Fla.1980).

Dobbert argues that, notwithstanding the strong presumption against recanting testimony, the circumstances of John III's recantation in this capital case raise important constitutional issues that demand sober and measured reflection. First, although federal courts traditionally have held that a conviction supported by perjured testimony is not unconstitutional unless the prosecutor or judge knew or had reason to know that the testimony was perjured, Dobbert argues that this approach is no longer valid after Jackson v. Virginia, 443 U.S. 307 , 61 L. Ed.2d 560 (1979). Dobbert correctly notes a split among the Circuits concerning the authority of federal courts to grant habeas relief when " newly available evidence conclusively shows that a vital mistake ha[s] been made." Grace v. Butterworth, 586 F.2d 878, 880 (CA1 1978). Compare Grace (such claims are cognizable); United States ex rel. Sostre v. Festa, 513 F.2d 1313 (CA2) (same), cert. denied, 423 U.S. 841 , 46 L. Ed.2d 60 (1975) with Drake v. Francis, 727 F.2d 990 (CA11 1984) (such claims are not cognizable because habeas is not concerned with questions of guilt or innocence), rehearing en banc granted id., at 1003.

Second, Dobbert argues that the federal courts should give attention to formulating proper standards for evaluating the materiality and credibility of recantations. He notes that the need for such consideration is especially great where, as here, the recanted testimony was the sole evidence supporting a conviction of first-degree murder.

Dobbert argues finally that, whatever the usual procedural rules regarding the consideration of a recantation, those rules must bend in the face of the Eighth Amendment. He notes that this Court has repeatedly invalidated procedural rules that " 'diminish the reliability of the guilt determination' " in capital cases, Application for Stay of Execution 16, quoting Beck v. Alabama, 447 U.S. 625, 638 , 2390d 392 (1980), and argues that Eighth Amendment scrutiny should be applied to rules barring postconviction reconsideration of guilt as well as to procedural rules employed at trial. However we ultimately might resolve these issues after research, argument, and reflection, they certainly are not frivolous. Yet the federal courts are about to let Dobbert go to the electric chair out of misplaced deference to an unexplained, and palpably inexplicable, state- court "factual" finding that there is, in fact, no "evidence or proof" to support his claim of perjury.

A

If Judge Olliff's "finding" that there is no "evidence" of perjury found fair support in the record, the law would mandate that the federal habeas court defer to that finding. 28 U.S.C. 2254(d); see Sumner v. Mata, supra. But no fair-minded person could conclude on the basis of the record before us that the "finding" is plausible. It is absurd on its face. Dobbert has offered stark "evidence" of perjury-the recantation affidavit of John III. Rather than analyzing that evidence for its strengths and weaknesses, Judge Olliff reviewed John III's previous statements-statements which John III now recants-and on finding that those statements "are all consistent and each corroborates the other," proceeded to conclude that notwithstanding the recantation "it is obvious that the murder conviction was not based solely-or in part-upon perjured testimony. Nor is there any evidence or proof to support [the] allegation of perjury."

This "factual determination" should not stand because it most certainly is not "fairly supported by the record." 28 U.S.C. 2254(d)(8 ). Some may choose to argue that Judge Olliff's "finding" represents an implicit rejection of the materiality and credibility of John III's recantation. Perhaps it does. Cf. LaVallee v. Delle Rose, 410 U.S. 690, 697 , 1207 (1973) (in the "ordinary case," federal courts may assume that a state court which did not articulate its reasoning fairly considered the merits of the factual dispute). But Judge Olliff's asserted reasoning-that earlier statements were consistent with each other, thereby demonstrating the absolute lack of any "proof or evidence" of perjury-is not entitled to deference where the recantation asserts that those statements were untrue. There may well be numerous reasons why John III's recantation should not be entitled to controlling weight, but there is nothing here to suggest that Judge Olliff considered those possible reasons, let alone relied upon them in reaching his conclusion. In the face of a specific recantation of critical testimony, a court must evaluate the recantation itself and explain what it is about that recantation that warrants a conclusion that it is not credible evidence.

That Judge Olliff's rejection of the recantation was not based on any evaluation of the recantation itself is demonstrated, I believe, by the District Court's opinion. The court made an urgent effort to demonstrate that Judge Olliff's finding was related to a consideration and analysis of the recantation itself, noting, for example, that "Judge Olliff reviewed the facts depicted in John's [earlier testimony] and determined that they were much more detailed than . . . the 1982 recantation. (Olliff's Order at 63, 67)." 593 F.Supp., at 1427. Nothing in the cited pages supports the District Court's characterization of Judge Olliff's analysis; the recantation is not even mentioned in these pages. In fact, nowhere in the order does Judge Olliff compare the earlier testimony with the recantation.

The proper analysis under 2254(d), I submit, is illustrated by a case cited with approval in Sumner v. Mata itself, see 449 U.S., at 547 - 548-770. In Taylor v. Lombard, 606 F.2d 371 (CA2 1979), cert. denied, 445 U.S. 946 (1980), defense counsel came forward after the state conviction with an affidavit charging that key testimony had been perjured and that the prosecution nevertheless had knowingly used it. In a post-trial proceeding the state court concluded that there was "no showing" of perjured testimony. 606 F.2d, at 374. The Second Circuit reviewed the record and concluded that the state court's finding that "there was no factual basis for the claim of perjury is not fairly supported by the record, and therefore is not entitled to deference." Id., at 375. The Second Circuit's requirement of fair support in the record was not, of course, an exercise of judicial fiat-it was required by Congress in 28 U.S.C. 2254(d)(8). I cannot comprehend how the federal courts in this capital case can in good conscience avoid that statutory command.

I emphasize again that John III's recantation ultimately may not deserve controlling weight. But such a conclusion cannot rest upon a finding that there is no "evidence or proof" of perjury at all, especially when that clearly erroneous finding is coupled with a complete failure to analyze the recanting evidence itself.*

B

The strong presumption against recantation testimony reflects an uneasy balance between, on the one hand, society's interest in resolving factual disputes in one proceeding and in according finality to those resolutions, and, on the other, the interests of a convicted individual and society at large in ensuring that only the guilty are punished. However the balance is ultimately struck in the ordinary criminal case, the Eighth Amendment requires that courts-state and federal-strike a special balance in the capital context. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305 , 2991 ( 1976). See also Beck v. Alabama, 447 U.S., at 638 ( normal procedural rules must give way in the capital case where they " diminish the reliability of the sentencing determination"). For this reason, the Court historically has taken special care to minimize the risk that death sentences are "imposed out of whim, passion, prejudice, or mistake." Eddings v. Oklahoma, 455 U.S. 104, 118 , 878, 71 L. Ed.2d 1 (1982) (O'CONNOR, J., concurring).

In the face of a sworn recantation from the only witness who provided testimony supporting Dobbert's conviction of first-degree murder, are we confident that there has been a reliable factual determination of his guilt, sufficient to warrant public confidence in the outcome as he proceeds to the electric chair? I believe there are compelling reasons to stay Dobbert's execution while we give this question further thought. First, no federal court addressing Dobbert's claim has yet even attempted to analyze the appropriate ground rules for considering the materiality and credibility of John III's recantation. As Dobbert has demonstrated, these are open issues that sooner or later will require our attention. Second, the sole reason for this failure has been the federal courts' mistaken invocation of 28 U.S.C. 2254(d) in relying on Judge Olliff's " finding" that in the face of the recantation admitting perjury there is no " evidence or proof" of perjury. In the "ordinary case" it may well be appropriate to engage in all manner of tidy assumptions about what Judge Olliff "really" meant to say. Cf. LaVallee v. Delle Rose, 410 U.S. 690 (1973). But this is no ordinary case. I must conclude at this juncture that there is no fair support in the record for the "finding" that there is no "evidence or proof" of perjury where (a) the "finding" is absurd on its face, and (b) the "finding" has been made without any discussion of the merits of the recantation itself. I would submit that what really is going on in this case can be gleaned from Judge Olliff's introduction to his opinion: "This case has been pending for a longer period of time than this nation was involved in World War II and the Korean War combined." State v. Dobbert, No. 73-5068, at 2. In the face of such impatience, I believe that any confession by John III to perjured testimony, however strong, would in the end have made not one bit of difference.

III

I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 2950 (1976) (BRENNAN, J., dissenting), and would therefore grant the application in this case. But even if I believed otherwise, I would stay the execution to permit for a fair and rational consideration of Dobbert's claims. Only two men know whether Kelly Dobbert was strangled or whether she accidentally choked to death. One of them will die in several hours. The other will live with the consequences of his damning testimony for the rest of his life. Both now swear that the testimony was false. I would have thought that the federal courts would take the time to ensure that John III's recantation truly deserves no weight, or at the very least that it has received principled consideration in the state courts. This is not another mere example of "ordinary" deference to state-court factfinding. It is an outright abdication of our responsibility to minimize the risk that innocent people are put to death.

I dissent.

*****

APPENDIX TO OPINION OF BRENNAN, J., DISSENTING COUNTY OF EAU CLAIRE STATE OF WISCONSIN AFFIDAVIT

Ernest John Dobbert, III, being first duly sworn, deposes and says:

1. I am the son of Ernest John Dobbert, Jr., who was convicted and sentenced to death in Jacksonville, Florida in April, 1974, for the murder of my sister, Kelly Ann Dobbert. I testified as a witness against my father at his trial. I did not testify truthfully about the cause of my sister Kelly's death at the trial.

2. On Sunday, January 31, 1982, I read in the newspaper that my father was to be executed within two days. After learning of my father's execution date, I called my close personal friend and lawyer, Paul Kelly, and asked him to help me correct my untrue testimony that was responsible for my father being convicted of murdering Kelly.

3. Some of the questions asked of me at trial by Mr. Shorstein, the Assistant State Attorney, are listed below. The answers in the left column are some of the answers given at trial that were false. The true answers are listed on the right under the column designated "Correct Answer." Question: "Let me go back to the night before New Year's Eve. Did he [your father] do anything to Kelly the night before she died?" [T. T. 2113] Answer at trial: "Yes." Correct Answer: "No." Question: "What did he do to her?" [T.T. 2113] Answer at trial: "Kicked her." Correct Answer: "Nothing."

The answers indicating that my father kicked Kelly the night before she died were untrue. My father did kick Kelly in much the way I described, but weeks before she died.

Question: "Did he [your father] do anything to her [Kelly] the night she died?" [T.T. 2113]

Answer at trial: "Choked her."

Correct Answer: "No."

All the answers indicating my father choked Kelly the night she died are untrue. He did not choke her that night, nor did he kill her. Her death was accidental.

4. I am making this affidavit because there are statements I made at trial that were untrue, and need correcting. I do not make this affidavit out of any great love for my father. I still have not forgiven him for the abuse that I (and my brother and sisters) suffered at his hands for the four years before Kelly died and I ran away. I have no desire to see him free. He should be in prison for the abuse to his children.

5. I read my testimony at trial again recently. Although it is accurate in parts, there are statements that are clearly false, and parts of the story came out in a way that is very misleading about what happened before Kelly's death. The story as it came out is just untrue. The trial testimony creates this story: The night before Kelly died, my father kicked her several times in the stomach. The next night, after she ate some soup, he choked her and she stopped moving. I listened to her heart, but couldn't hear a beat. My father then tried mouth to mouth resuscitation, but it didn't work.

What happened in reality was that the kicking incident occur[r]ed long before the night Kelly died, more like two weeks before she died. The night she died, she was sitting in bed eating some soup. She started vomiting, and then choking on her own vomit and food. My father tried to give her mouth to mouth resuscitation, but it didn't work. Kelly was not killed by my father; she died accidentally, choking on food or vomit.

6. I'd like to explain a little more about why I think I testified as I did at the trial, and why I'm taking action to correct it now. At the time of the trial I was thirteen years old. I was still deathly afraid of my father after all I'd been through and seen, and wanted to be sure he'd be locked up where I'd be safe from him. I was undergoing hypnosis in a psychologist's office in Wisconsin for about a year before the trial. (The therapy ended one month after the trial.) I was hypnotized approximately two times a week for a period of time, and then about once every week thereafter. At each session, I'd be hypnotized and then asked questions about my father and how he abused us. I was later kept heavily medicated on what I was told was thorazine, from 1972 to 1976, and then on other medication until 1978.

Although no one ever said it directly, I knew that my social worker, Mrs. Lenz, and other people on the staff at the children's home wanted me to testify that my father killed my sister. I looked up to these people and wanted desperately to please them-they were good to me and concerned about me in a way I hadn't known for years. Mrs. Lenz, in particular, influenced me. I saw her almost every day for the period before the trial . She developed some emotional difficulties herself, and began to obsess about my father.

When I finally left the institutions in 1978 and came off the medication, I thought about what I had done in testifying that Kelly was murdered when she died accidentally. Although I knew I had done something wrong, I wasn't sure what, if anything, I wanted to do about it. After awhile, I spoke to Paul Kelly, and asked him to locate and notify my father's attorneys to see what might be done. I now want to make it known that I did not testify truthfully at my father's trial, as this affidavit shows. My father did not kill Kelly.

ERNEST JOHN DOBBERT, III

*****

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

I

The "right" of the State to a speedy execution has now clearly eclipsed the right of an individual to considered treatment of a substantial claim that he has been sentenced to death for an offense that he did not commit. Ernest John Dobbert, Jr., raised such a claim in a federal habeas corpus petition filed on August 30, 1984, and here is the entire history of the deliberate speed with which the claim was considered : On September 3, the Federal District Court for the Middle District of Florida denied relief, 593 F. Supp. 1418 (1984), but issued a certificate of probable cause to appeal, thereby indicating that Dobbert's petition had significant merit; three days after that, on September 6, the Court of Appeals for the Eleventh Circuit in a 2-1 vote affirmed the District Court's judgment, 742 F.2d 1274 (1984), with the dissenting judge pleading that "there has not been enough time in which justiciably [sic] to decide this case;" and that very same day, at 4:40 p.m., Dobbert filed a stay application with this Court. That application asked the Court to stay his execution just long enough so that Dobbert's counsel could pause to brief properly the substantial constitutional issue raised by this case. But at 10 a.m. the next day-a scant 19 hours after Dobbert asked this Court to consider his claim and a mere 8 days after the claim was first brought before any court- Dobbert is to be executed. This is swift, but is it justice? *

There is substantial reason in this case to think it is not. Dobbert was convicted under Florida law of child abuse, child torture, second- degree murder, and the first-degree murder of his 9-year-old daughter; only the last of these carries with it the possibility of a death sentence . It is impossible to know, however, whether Dobbert actually committed the offense of first-degree murder as defined by Florida law, for the jury's verdict on this count was infected by the trial judge's repeated and invalid instruction on the scope of first-degree murder. The instruction at issue told the jury that it could convict for first-degree murder if it found that the daughter was killed by premeditated design or that she was killed without premeditation but while Dobbert was committing an "abominable and detestable crime against nature." As a matter of state constitutional law, the Florida Supreme Court, in a holding that preceded the crimes for which Dobbert was convicted, had held that the statutory term "crime against nature" is too vague to sustain a conviction. Franklin v. State, 257 So.2d 21, 22 (1971). Dobbert was therefore found guilty after a felony-murder instruction that permitted the jury to convict him of a crime that did not exist under state law at the time of his conviction.

The jury was thus granted impermissible leeway in violation of Dobbert's federal due process rights. This fundamental defect occurred when the trial judge-no fewer than six times during the instruction phase- instructed the jury with one variant or another of the following words:

    "If a person has a premeditated design to kill one person . . . he is . . . guilty of murder in the first degree. The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping is murder in the first degree even though there is no premeditated design or intent to kill." Tr., as printed in Record, Exhibit 5, p. 162 (emphasis supplied).

It is vital to understand what is put at stake by this definition of first-degree murder. First, the record offers no suggestion that the death of Dobbert's daughter occurred during an arson, rape, robbery, burglary, or kidnaping-the only underlying felonies upon which Florida has predicated the crime of felony murder and the capital penalty that attaches to it. Second, the trial judge gave no narrowing definition of the "crime against nature," and even if he had, there appears again to be absolutely no evidence that Dobbert's daughter died while Dobbert was sodomizing her-presumably the core offense to which the vague statutory term applies. See Franklin, supra. Third, there was ample evidence that Dobbert beat his daughter, and there was testimony that he kicked her in the stomach the night that she died.

From these facts it is quite plausible that the jury relied on the very vagueness for which the Florida Supreme Court had already struck down the statute to conclude that, even if Dobbert had not premeditated the killing of his daughter, he nonetheless should be convicted of first- degree murder for child abuse leading to death. I do not now question whether a State could create such a crime, but the indisputable fact is that Florida has not chosen to do so. Nor, as a corollary, has Florida chosen to make such an offense a capital one. Yet the jury in this case was not only permitted but invited six times to define a new capital crime to fit Dobbert's offense. This leeway, resulting from statutory vagueness, was the very defect inherent in the statutory term for which the Florida Supreme Court invalidated it.

There is simply no way to tell upon which theory-premeditation or felony murder based on a nonexistent predicate offense-the jury relied. Indeed, when the jury specifically requested to be reinstructed on the definitions of first- and second-degree murder, the trial judge compounded the error by repeating the invalid instruction: "Now, murder in the first degree is the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping." Tr., as printed in the Record, Exhibit 5, p. 184.

This is clearly error of federal constitutional magnitude. In Stromberg v. California, 283 U.S. 359 (1931), the Court announced a rule from which we have not since departed: "a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground." Zant v. Stephens, 462 U.S. 862, 881 , 2745 (1983). It is also clear that Stromberg applies to state criminal proceedings, for Stromberg itself involved a state conviction. See also Williams v. North Carolina, 317 U.S. 287, 292 , 63 S. Ct. 207, 210 (1942); cf. Zant, supra, 462 U.S. at 891-893, 103 S.Ct. at 2750-2751 (WHITE, J., concurring in part and concurring in judgment) (Stromberg applies when jury was invited to convict on two or more grounds, one of which was not sufficient to sustain the conviction). Moreover, the State essentially concedes that Stromberg error was committed, for the State does not argue that there was sufficient evidence of any form of felony murder recognized by Florida law.

The real question at this stage is whether this error-which goes to the question whether Dobbert was actually found guilty of first-degree murder-casts a serious enough doubt on the integrity of the jury's verdict that the error is still reviewable at this stage of the proceedings. The instruction was not objected to at trial, nor was the erroneous instruction raised in Dobbert's first federal habeas petition. Citing these procedural derelictions of Dobbert's counsel, the courts below-both state and federal-have refused to consider the merits of the alleged Stromberg violation.

There are sound arguments that the alleged violation in this case is so fundamental that neither Wainwright v. Sykes, 433 U.S. 72 (1977), nor the abuse-of-the-writ doctrine ought to be applied to allow Dobbert's execution to take place before this Court is at least provided with focused briefing. The Court has recognized that the cause-and-prejudice standard must be applied in such a way that fundamental "miscarriage[s] of justice" will meet it, see id., at 91, 97 S. Ct., at 2508; as Justice STEVENS noted in his concurrence in Wainwright, " if the constitutional issue is sufficiently grave, even an express waiver by the defendant himself may sometimes be excused." Id., at 95.

Similarly, Sanders v. United States, 373 U.S. 1, 15 , 1077 (1963), makes clear that a federal court may consider even claims raised and decided in a previous habeas petition "if the ends of justice" would thereby be served; surely the same standard or a lesser one should apply to a successive petition that raises a new claim, at least when that claim casts significant doubt on a defendant's guilt. See Sanders, supra, 373 U.S. at 18-19 (A "federal judge clearly has the power-and, if the ends of justice demand, the duty-to reach the merits" of certain claims raised for the first time on a successive habeas petition). Lower federal courts in settings similar to the one here have applied these principles to review fundamental trial errors to which timely objections have not been made. See, e.g., Adams v. Murphy, 653 F.2d 224, 225 (CA5 1981) (reversing conviction based on nonexistent state crime despite absence of trial objection to instruction ). When, as in this case, the question is the fundamental one of guilt or innocence on the indicted charge, and the case is a capital case, the argument is strong that the "ends of justice" and fundamental "miscarriage of justice" standards have been met. I would allow Dobbert to make that argument in a certiorari petition.

As the United States District Court for the Middle District of Florida acknowledged, this is a "difficult case" with regard to the question of whether the abuse-of-the-writ doctrine should apply. 593 F. Supp., at 1440. We need not resolve that "difficult" issue today, however, to decide the only issue before the Court on this stay application: whether that claim is "difficult enough" and potentially worthy enough of the Court's attention that a stay of the execution ought to be granted until certiorari papers can be filed and the Court can make a considered evaluation of the argument. Put another way, the question is whether there is a significant claim that the State cannot execute Dobbert on the basis of a conviction that may be constitutionally invalid-with respect to an issue affecting guilt or innocence-merely because Dobbert's attorneys have not made timely objections on the point.

In sum, there is no question that Dobbert abused and tortured his children, but there is a serious question as to whether the defect in the instruction allowed the jury to bypass the question of premeditation by concluding that the girl's death resulted from Dobbert's callous and reckless beating of her. That may well make Dobbert guilty of second- degree murder in Florida, but it cannot make him guilty of first-degree murder there. Nor can it subject him to the death penalty in that State. Dobbert is certainly no innocent man, but he may well be a guilty one to whom Florida's legislators have not chosen to apply the death penalty.

II

Because I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231 , 2973 (1976), I would in any event grant the stay application and vacate the death sentence. But I am deeply troubled by the undue dispatch with which a majority of this Court is willing to send this stay applicant, as well as a host of others, see, supra n., to their death. In the case of an applicant like Dobbert, who raised a substantial claim going to the question of whether he committed a capital offense, the majority's haste is particularly disquieting.

Justice STEVENS would grant the application for stay of execution.

*****

Footnotes

[ Footnote * ] It might be argued that the State Supreme Court's earlier determination that John III's recantation is not "new evidence," Dobbert v. State, 414 So.2d 518, 520 (Fla.1982), now serves as a procedural bar to federal review. That finding should not preclude the federal courts from considering the merits of Dobbert's claim. First, the state courts themselves have failed to abide by the finding. Judge Olliff professed to consider the recantation itself and concluded that there was no "evidence or proof" of perjury, and the Supreme Court of Florida affirmed on those grounds.

Second, as Judge Olliff himself found, there were compelling reasons why Dobbert could not effectively have used John III's initially inconsistent statements to the police at trial: The inconsistencies, such as they were, could easily have been explained away; John III might well have broken down under such questioning, thereby further inflaming the jury; and such questioning would almost certainly have led to a "parade of horribles" concerning Dobbert's abuse of his children.

Finally, I believe it manifest that John III's 1982 recantation is " new" evidence. It seems obvious that it is much more powerful for John III now to state that his father did not kill his sister than it was when the boy first suggested this in 1972. At that time, John III clearly was terrified of his father and was living in a nightmare world, both of which ( as Judge Olliff found) probably would have led a jury to discount the inconsistencies as part of the boy's effort to protect himself. Now that John III is a grown man and is willing to recant his trial testimony-when he has no reason to fear his father and has, we can only hope, recovered from the trauma to which he was subjected-his statements carry much more powerful force. Thus the recantation is not merely duplicative of the earlier statement.

[ Footnote * ] The frenzied rush to execution that characterizes this case has become a common, if Kafkaesque, feature of the Court's capital cases. See, e.g., Wainwright v. Adams, 466 U.S. 964, 965 , 2184, 80 L. Ed.2d 809 (1984) (MARSHALL, J., dissenting) (noting the Court's "indecent desire to rush to judgment in capital cases"); Woodard v. Hutchins, 464 U.S. 377, 383 , 755 (1984) (BRENNAN, J., dissenting) (criticizing "rush to judgment" in Court's decision to vacate stay of execution); Autry v. Estelle, 464 U.S. 5 d 298 (1983) (STEVENS, J., dissenting) (criticizing decision to deny stay of execution); see also Autry v. McKaskle, 465 U.S. 1085 (1984) (MARSHALL, J., dissenting); Woodard v. Hutchins, 464 U.S., at 383 (WHITE and STEVENS, JJ., dissenting); id. at 383-384-756 (MARSHALL, J., dissenting); Barefoot v. Estelle, 463 U.S. 880, 906 , 3401 (1983) (MARSHALL, J., dissenting).

 

 

 
 
 
 
home last updates contact