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Edward Harold SCHAD





Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: August 1, 1978
Date of arrest: September 9, 1978
Date of birth: July 27, 1942
Victim profile: Lorimer "Leroy" Graves, 74
Method of murder: Strangulation with a rope
Location: Yavapai County, Arizona, USA
Status: Sentenced to death on December 27, 1979. Resentenced to death on August 29, 1985. Executed by lethal injection in Arizona on October 9, 2013

No. 90-5551


[June 21, 1991]

Justice Scalia, concurring in part and concurring in the judgment.

The crime for which a jury in Yavapai County, Arizona, convicted Edward Harold Schad in 1985 has existed in the Anglo-American legal system, largely unchanged, since at least the early 16th century, see 3 J. Stephen, A History of the Criminal Law of England 45 (1883); R. Moreland, Law of Homicide 9-10 (1952). The common-law crime of murder was the unlawful killing of a human being by a person with "malice aforethought" or "malice prepense," which consisted of an intention to kill or grievously injure, knowledge that an act or omission would probably cause death or grievous injury, an intention to commit a felony, or an intention to resist lawful arrest. Stephen, supra, at 22; see also 4 W. Blackstone, Commentaries 198-201 (1769); 1 M. Hale, Pleas of the Crown 451-466 (1st Am. ed. 1847).

The common law recognized no degrees of murder; all unlawful killing with malice aforethought received the same punishment death. See F. Wharton, Law of Homicide 147 (3d ed. 1907); Moreland, supra, at 199. The rigor of this rule led to widespread dissatisfaction in this country. See McGautha v. California, 402 U.S. 183, 198 (1971). In 1794, Pennsylvania divided common-law murder into two offenses, defining the crimes thus:

"[A]ll murder which shall be perpetrated by means of poison, or lying in wait, or by any other kind of willful, deliberate, or premeditated killing; or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree." 1794 Pa. Laws, ch. 1766, 2.

That statute was widely copied, and down to the present time the United States and most States have a single crime of first-degree murder that can be committed by killing in the course of a robbery as well as premeditated killing. See, e. g., 18 U.S.C. 1111; Cal. Penal Code Ann. 189 (West 1988 and Supp. 1991); Kan. Stat. Ann. 21.3401 (Supp. 1990); Mich. Comp. Laws Ann. 750.316 (1991); Neb. Rev. Stat. 28-303 (1989). [n.1] It is Arizona's variant of the 1794 Pennsylvania statute under which Schad was convicted in 1985 and which he challenges today.

Schad and the dissenting Justices would in effect have us abolish the crime of first-degree murder and declare that the Due Process Clause of the Fourteenth Amendment requires the subdivision of that crime into (at least) premeditated murder and felony murder. The plurality rejects that course correctly, but not in my view for the correct reason.

As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. See, e. g., People v. Sullivan, 173 N. Y. 122, 65 N. E. 989 (1903); cf. H. Joyce, Indictments 561-562, pp. 654-657 (2d ed. 1924); W. Clark, Criminal Procedure 99-103, pp. 322-330 (2d. ed. 1918); 1 J. Bishop, Criminal Procedure 434-438, pp. 261-265 (2d. ed. 1872). That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, see ante, at 7, that one can conceive of novel "umbrella" crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-6 verdict would seem contrary to due process.

The issue before us is whether the present crime falls into the former or the latter category. The plurality makes heavy weather of this issue, because it starts from the proposition that "neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack," ante, at 15 (internal quotations omitted). That is true enough with respect to some constitutional attacks, but not, in my view, with respect to attacks under either the procedural component, see Pacific Mutual Life Insurance Co. v. Haslip, 499 U. S. , (1991) (slip op., at 15) (Scalia, J., concurring in judgment), or the so-called "substantive" component, see Michael H. v. Gerald D., 491 U.S. 110, 121-130 (1989) (plurality opinion), of the Due Process Clause. It is precisely the historical practices that define what is "due." "Fundamental fairness" analysis may appropriately be applied to departures from traditional American conceptions of due process; but when judges test their individual notions of "fairness" against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges.

And that is the case here. Submitting killing in the course of a robbery and premeditated killing to the jury under a single charge is not some novel composite that can be subjected to the indignity of "fundamental fairness" review. It was the norm when this country was founded, was the norm when the Fourteenth Amendment was adopted in 1868, and remains the norm today. Unless we are here to invent a Constitution rather than enforce one, it is impossible that a practice as old as the common law and still in existence in the vast majority of States does not provide that process which is "due."

If I did not believe that, I might well be with the dissenters in this case. Certainly the plurality provides no satisfactory explanation of why (apart from the endorsement of history) it is permissible to combine in one count killing in the course of robbery and killing by premeditation. The only point it makes is that the depravity of mind required for the two may be considered morally equivalent. Ante, at 17-19. But the petitioner here does not complain about lack of moral equivalence: he complains that, as far as we know, only six jurors believed he was participating in a robbery, and only six believed he intended to kill. Perhaps moral equivalence is a necessary condition for allowing such a verdict to stand, but surely the plurality does not pretend that it is sufficient. (We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the "moral equivalence" of those two acts.) Thus, the plurality approves the Arizona practice in the present case because it meets one of the conditions for constitutional validity. It does not say what the other conditions are, or why the Arizona practice meets them. With respect, I do not think this delivers the "critical examination," ante, at 17, which the plurality promises as a substitute for reliance upon historical practice. In fact, I think its analysis ultimately relies upon nothing but historical practice (whence does it derive even the "moral equivalence" requirement?) but to acknowledge that reality would be to acknowledge a rational limitation upon our power, which bob-tailed "critical examination" obviously is not. "Th[e] requirement of [due process] is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land." Walker v. Sauvinet, 92 U.S. 90, 93 (1876) (citation omitted).

With respect to the second claim asserted by petitioner, I agree with Justice Souter's analysis, and join Part III of his opinion. For these reasons, I would affirm the judgment of the Supreme Court of Arizona.



1 Still other States never established degrees of murder, and retain a single crime of "murder" that encompasses both premeditated killing and killing in the course of a robbery. See, e. g., S. C. Code 16-3-10 (1985).



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