CRUEL AND UNUSUAL?
PRISON EDITORS HELP PULL THE PLUG ON AN ELECTRIC CHAIR
By Wendell Smith
Smith is a researcher for Spy magazine.
Robert Wayne Williams -- a photo of whose badly burned head is shown here -- was executed in the electric chair at the Louisiana State Penitentiary at Angola in 1983. Publication of this and other post-execution pictures of William's body last year int The Angolite, Louisiana's award-winning inmate-run magazine, has helped stop the use of electrocution as Louisiana's method of execution. A new law mandates that, as of September 15, capital punishment in the state will be administered by lethal injection.
Williams was the first inmate from Louisiana's death row executed after a twenty-two year hiatus. Angolite co-editor Ron Wikberg, in a nineteen-page history of the electric chair in the September/October 1990 issue, compared the photographs of Williams with those of nine inmates executed by electric chair in Florida, which temporarily suspended electrocutions after the botched execution of Jesse Tafero on May 4, 1990. "A comparison of the photographs . . . shows an unmistakable similarity in the degree of mutilation," Wikberg wrote.
Medical experts who viewed the photos at the request of The Angolite identified first, second, third, and fourth degree burns on Williams's body. "Execution by electrocution is extremely painful," Dr. Harold Hillman, a British expert on execution, told The Angolite, not only because of burning, but because body fluids "must have heated up to a temperature close to the boiling point of water in order to generate the steam" that witnesses often see. He also asserted that "there is no scientific evidence whatsoever to support the notion that a person being electrocuted loses consciousness."
The photographs, taken by Williams's family, were discovered last year by attorneys for the Loyola Death Penalty Resource Center. After the publication of the photographs and after the passage of the new law, the Louisiana Pardon Board recommended a postponement of execution for convicted murderer Andrew Lee Jones, in order to delay the execution until after the September 15 deadline. Governor Buddy Roemer, however, rejected the delay, saying that Jones "deserves what he is about to get." A Baton Rouge television reporter who witnessed Jones's July 23 execution reported smoke coming from the temple electrode. (As CJR went to press, two more electric chair executions were tentatively scheduled for August.)
Some observers credit the passage of the law outlawing electrocution to the backing of prosecuting attorneys, who wanted a less objectionable form of execution in order to win more death-penalty verdicts from juries. But the editors of The Angolite -- Wikberg and Wilbert Rideau -- also get credit. By focusing attention on the electric chair issue, says Burk foster, a professor of criminology at the University of Southwestern Louisiana, who has co-authored a textbook on the Louisiana correctional system with the two prison editors, they made it "more and more difficult to sell electrocution to Louisiana juries"
Twelve states, meanwhile, still use the electric chair. These include Georgia, Florida, Virginia, and Alabama -- four of the six states that perform the most executions (Louisiana and Texas are the others). Eight hundred and eight-two death-row prisoners now face electrocution.
THE EXECUTION OF ROBERT WAYNE WILLIAMS
June 4, 2007
Essay by Billy Wayne Sinclair
The death penalty is state lynching.
It is an evil response to the primal need in man to take revenge. This need was graphically illustrated in a dank, foul-smelling Iraqi death chamber moments before Saddam Hussein’s neck was snapped by the hangman’s noose in December 2006 as his enemies celebrated.
Robert Wayne Williams was not a dictator. He was the tenth person executed in America, and the first in Louisiana, after the United States Supreme Court reinstated the death penalty in 1976. He was no more, or less, important than the thousand of murderers who have been put to death in this nation since his execution.
The Williams case began on the night of January 5, 1979 in an A&P Supermarket in Baton Rouge. A 67-year-old security guard named Willie Kelly was bagging groceries when Williams and Ralph Holmes walked into the store. Both men wore ski masks. Williams was armed with a sawed-off shotgun. The two robbers approached Kelly. Holmes attempted to remove the guard’s weapon from his holster. The old man’s hand moved toward the weapon.
“Don’t try it!” Williams yelled as he pulled the trigger, striking Kelly in the face at point blank range with the shotgun blast.
The guard was hurled backwards, dead before his body fell to the floor. The two men continued the robbery. Some of the money had fallen to the floor. As Williams laid the shotgun down to pick up the money, the weapon accidentally discharged striking several customers in the leg and feet. There were screams of terror and pain. Holmes pistol-whipped one of the customers before he and Williams fled into the night.
Assistant District Attorney John Sinquefield arrived at the supermarket shortly after the robbery. It was a harsh, cool Friday night. He did not like being way from the warmth of his home, but he had to be there to assist the police in their investigation. Wounded and terrified witnesses had to be treated, calmed and questioned. Nothing could be done for Kelly, whose faceless body lay on the floor in a pool of blood.
Sinquefield studied the scene, He was
repulsed by it. By the time he finished his investigation,
the district attorney’s revulsion had been replaced with
frustration. There were no leads, no evidence, to indicate
who was responsible for the crime.
Several weeks of investigation left the police even more frustrated. It appeared the crime would go unsolved. Then they received a telephone call from an informant who named Williams and Holmes as the robbers.
Shortly after his arrest, Williams gave the police a video-taped confession. Sinquefield watched the interrogation through a two-way mirror, listening to Williams confess. He made a prosecutorial decision to seek the death penalty.
On April 10, 1979, just three months after the crime was committed, Williams, an African-American, was put to trial before an all-white jury in Baton Rouge. Sinquefield was methodical in his prosecution of the case. He was a career prosecutor who began his career as a prosecutor in the Lake Charles district attorney’s office before joining Brown’s staff.
Sinquefield told the Williams jury that the Kelly murder had been carried out in cold blood. Williams, he said, planned the robbery, borrowed the shotgun, leveled it at Kelly, and deliberately blew off the security guard’s head. The prosecutor stressed that Williams told Holmes to “get all the money” and forced another clerk to open a cash register to get more money. He said Williams later that same night participated in a poker game in New Orleans where he joked about killing the guard.
Court-appointed defense counsel argued that the shotgun was defective, saying it accidentally discharged and his client did not intend to kill Kelly. A weapons expert testified he gun could have accidentally discharged. Williams did not take the witness stand to tell the jury what his intent was. The jury found Williams guilty, and recommended the death penalty. His case moved up and down the state and federal judicial ladder three times, appearing in twelve courts before the United States Supreme Court rejected his final appeal on September 8, 1983. It took just over four years to complete this judicial odyssey – a remarkably short period of time compared to length of time other Louisiana capital cases were taking to work their way through the death penalty appeal process.
An ominous and foreboding sadness stalked death row at the Louisiana State Penitentiary following the rejection of Williams’ appeal. The week before the State of Mississippi had executed Jimmy Lee Gray, the first man to walk to that state’s death chamber in 19 years and the first since the U.S. Supreme Court reinstated the death penalty in 1976. Death row inmates across the country had anticipated resurgence in executions after the U.S. Supreme Court handed down a decision in a Texas death penalty case of Thomas Andy Barefoot. The Barefoot decision cleared the way for the lower federal courts to speed up the death penalty process.
Like so many of his fellow condemned inmates, Williams was impoverished and without legal counsel when the Supreme Court rejected his final appeal. His former attorney, Richard Shapiro, an anti-death penalty attorney based in New Orleans, had moved to New Jersey. Williams could only hope that one of the state’s anti-death penalty groups would come to aid. His family did not have the funds to hire an attorney to engage in the expensive litigation needed to save his life.
And like sharks circling for the kill, the Baton Rouge justice system moved swiftly at the smell of blood. State district court Judge Frank Foil less than two weeks after the final Supreme Court rejection issued a new death warrant. It marked the fourth time Williams had a death date. This time the execution date was set for October 25.
Williams had never met Sam Dalton. The NAACP Legal Defense Fund implored upon Dalton, an experienced death penalty attorney, to go to Williams’ aid until they could locate another attorney to represent him.
“Because Shapiro had moved out of state,” Dalton said, “I was simply asked to sign some pleadings as a convenience and courtesy to the NAACP Defense Fund. That was like putting my toe in quicksand. Suddenly I was up to my neck, facing an October 25th death date – and as things grew more desperate, I was drawn more into the case, from signing pleadings as a matter of courtesy to carrying the whole load.”
Dalton filed a standardized habeas corpus petition and application for a stay of execution in the state district court on October 4. Judge Foil denied the applications that same day. On October 13 the Louisiana Supreme Court also rejected Williams’ bid for a stay. He had seven days to live.
A quiet and intelligent man, Williams played chess and read to keep his mind off the fact that he had less than a week to live. He also spent many hours on bended knees in silent prayer. Death row had given him plenty of time to evaluate his life. During those frantic death-watch days, when the fear of dying almost paralyzed his thoughts, Williams reached out to the troubled young people attending his mother’s church. He wrote them letters about how futile a life of crime was and how drugs would inevitably lead to violence and ruin.
Lying alone on a steel bunk, Williams felt utterly alone, completely isolated from life. He looked at his life and it was not pretty. He left Sunday school at age thirteen and joined the obscene world of drugs, fast women and good times. He was from the lowest ranks of the Baton Rouge social order, the final product of the city’s growing cocaine/crack industry.
On October 20 Dalton filed a habeas
corpus/stay application in federal court before Judge Frank
Polozola. The judge was not about to block the execution of
an African-American inmate – not even if Jesus announced his
“This court does not believe the court is required to stay all proceedings herein pending a decision by the U.S. Supreme Court in [another] case,” Polozola said, in his typical blistering fashion that drove nails in Williams’ coffin.
In effect, it made no difference to Polozola if the Supreme Court could issue a ruling that might impact Williams’ case. His judicial concern was to expedite the death process. He made that clear by refusing to certify the issues raised in Williams’ habeas corpus petition for an appeal to the Fifth Circuit Court of Appeals. This judicial sentiment was also reflected in the way he handled the “abuse of the writ” issue. He alluded in his decision that Williams had “abused” the judicial system but he did not specifically rule that the condemned man had. Had the judge made such an explicit finding, he would have been forced to conduct an evidentiary hearing to justify the ruling.
The Baton Rouge power structure had targeted Robert Wayne Williams for execution – nothing was going to stand in the way of that execution.
“I think that is what they were doing,” Rosella Williams, Robert Wayne’s mother, said at the time. “I can’t understand why they pushed his case so fast, above other cases that had been there longer.”
Those other cases were from different parts of the state. There was no political objective involved in any of those cases in 1983. There was a political need for an execution in Baton Rouge in 1983. He was unfortunate enough to have his case procedurally postured in the appeal process where an execution could be moved swiftly through its final stages. Williams’ case raised substantial constitutional issues. Yet he never received an evidentiary hearing so that those issues could be developed. He always had dissenting judges at the state and federal level who voted in favor of evidentiary hearings, indicating he had raised significant constitutional questions.
The Williams case indeed had an added element of speed, especially in the manner in which his case was rushed through the appeals process to execution. In Williams’s first round of post-conviction appeals in 1981, Judge Foil, the Louisiana Supreme Court, and Polozola reviewed and denied relief in his case in a span of three days. Yet Polozola said in 1983 that Williams had received an “exhaustive review” of his constitutional claims.
Williams’ spiritual advisor, Rev. J.D. Brown, pastor of the Faith Chapel Church of God, also believed that Williams’ case had been deliberately and relentlessly rushed through the appeals process. “Now, why Mr. (Ossie) Brown wanted to execute Robert Wayne Williams remains a question in my mind,” he said, pointedly laying the blame with Baton Rouge District Attorney Ossie Brown. “Why did he pick that particular case out? I don’t know - but I do know I was told that Robert was going to die in 1983. A reputable person in politics told me that he was going to die – that there would be an execution before 1983 was out and Robert would be the one executed.”
Did the Baton Rouge political system have the “power” to arrange a state-sanctioned execution? Sure it did. The day after Polozola denied Williams a stay Dalton filed a motion for a stay with the Fifth Circuit Court of Appeals. The appeals court stayed the execution on October 23 but deviated from its normal procedure by issuing the stay while simultaneously upholding Polozola’s ruling. “The Fifth Circuit issued that stay on the basis of what the Supreme Court had done in [another] case,” Dalton said.
Often torn between the utter joy of gaining a stay or the bitter disappointment of a late-hour denial, death row is a bitter world of extremes. It does not respect the rational balance. The news of the Fifth Circuit stay brought a sigh of relief into Williams’ dark world. But he still felt drained and depleted – the death watch was over but only for the moment. Standing at his cell door, he starred into the darkness of the night feeling the black pain of three centuries tearing at his soul. To ease the pain, he turned to scenes of childhood. Those were good times for him – a time when every act of growing up was a futile attempt to possess the world. He had not yet been introduced to the conscious brutality of man and his insatiable need to wield the harsh stick of power. He only knew the happiness of being alive and having a life promise born of hope.
While Williams enjoyed the momentary relief of the stay, Ossie Brown was not about to accept the Fifth Circuit’s ruling. He knew that law-and-order district attorneys had a friend on the Supreme Court in Chief Justice Warren Burger. These prosecutors knew that the Burger court was trying to make it clear to the lower courts that the death penalty was an acceptable reality in America. He filed a request with the Supreme Court that the Fifth Circuit stay be lifted.
On November 7 the high court lifted the stay. Associate Justice William Brennan dissented, saying the high court’s action was “an irrevocable decision that will result in Williams’ execution.”
The Supreme Court’s action effectively sealed Williams’ fate. He would be executed in the Louisiana electric chair. He sat alone in his death cell trying to digest things. Fear once again paralyzed his thoughts. Hope slipped through an hour glass. The steel and concrete that surrounded him constricted his emotions.
Still, the condemned man clung desperately to hope, to the belief that he would not die. It was the only thing he could do. He tightened his grip on life, trying to sustain the futile belief that another judge, in another court, would save him.
Sam Dalton could have walked away from the case. The Supreme Court had spoken the final word. But he didn’t. He was committed to perhaps the most courageous effort an individual can wage – an effort to stop the State from exercising its ultimate power to extinguish a human life. But Judge Foil was determined to see this power exercised in Williams’ case. He set Williams’ new death date for December 14. The judge was determined the condemned man would not see another Christmas.
Dalton did not believe that Williams should escape punishment. He simply believed that it was fundamentally unfair to execute Williams when worst murderers (such as Henry Lee Lucas who had been linked to 160 murders) were given life sentences. That reasoning prompted Dalton to make an extraordinary request for clemency for Williams. A total of nine state and federal judges had consistently dissented in Williams’ case, all being of the opinion that the death sentence was inappropriate in his case. The pardon board in an unusual move granted a hearing in the case.
Dalton had never read Williams’ trial transcript but he did so in preparation for the clemency hearing. The first thing that struck him was that Williams had not testified in his own defense that he did not intend to kill Kelly, that the shotgun had accidentally discharged.
“When I went to death row to talk with Robert Wayne,” Dalton said, “I asked him why he hadn’t taken the stand and talked to the jury. He told me his lawyer told him they were not going to use him and for him to keep quiet.”
Dalton was outraged, professionally. He said he was certain that had Williams testified in his own defense, he would not have received the death sentence.
“You have to understand what the defense attorneys were doing,” Dalton said. “Their defense was a lack of specific intent to kill. That’s called, of course, a state-of-mind defense. Now, there are two kinds of state-of-mind defenses. First, there is the kind where you plead insanity, but the attorneys did not plead insanity. So when you don’t plead insanity, you can’t sell your intent by the use of psychiatrists and doctors; you can’t even use those experts unless you’re talking about a plea of insanity.
“So, when you are using the kind of state-of-mind defense used by Williams’ attorneys, guess who your best witness is. That’s right – the defendant. The jury needs that evidence, it needs to hear that best evidence. They needed to hear this man get up on that witness stand and say, ‘look, I didn’t intend to do this – I robbed, I kicked somebody’s shins, I ran off with the money, but I didn’t intend to kill’. All you need is for one juror to identify with that.”
The trial court appointed two attorneys to defend Robert Wayne Williams. One was blind and the other had less than five years experience (and an attorney in Louisiana must have at least five years of experience before he can defend a capital case alone). Williams didn’t stand a chance against an experienced prosecutor like Sinquefield anymore than I did against the unethical Ralph Roy.
“Those attorneys didn’t do a good job,”
Dalton said. “They concentrated on trying to establish their
defense through a very weak expert. They should have done a
much better job on that. If they were going to choose that,
they should have demonstrated it but they chose to
concentrate on the condition of the shotgun – to show that
it was possible that it could go off accidentally. That was
a very, very weak way of proving lack of intent, especially
when your best evidence is sitting right there next to you.
There was no reason not to use him. Even assuming that there
was some reason to keep him off the stand during the guilt
or innocence phase of the trial, there was absolutely no
reason known to man to keep him off the stand during the
penalty phase. The mere act of putting of a man on the stand
and having him plead for his life is sometimes sufficient
for some people to give him life. None of this was done.”
Rev. Brown agreed with Sam Dalton.
“I talked to the attorney that represented Robert,” he pastor said. “I told that attorney the one thing he should do was put Robert on the stand and let him talk about that he did not intend to do it. I consulted with the attorney for a long time about the case and I was there at the trial. I just didn’t feel like the attorney was competent enough to represent him, the blind one. I don’t know – it was just lacking somewhere.”
But the constitutional issue of ineffective assistance of counsel was not a matter of concern for Judge Foil or Polozola. The only issue that mattered was the politics of the death penalty case.
On December 5, 1983 the Louisiana Board of Pardons heard Robert Wayne Williams’ plea for clemency. Sam Dalton relied upon the issue of mitigation, arguing that Williams had not intended to kill Robert Kelly. Rev. Brown was also there to plead for Williams’ life.
“Robert was a Sunday school scholar of the Faith Chapel Church of God,” the pastor said. “But he drifted out of Sunday school and picked up with the wrong crowd. He stopped coming to church. He would only come to visit now and then. My real contact with Robert came after he committed this crime. A group of people came to see and said Robert was in trouble. I went to see him in the jailhouse and I’ve followed him since. He admitted to me that he committed the crime and he said he was worry for it. He told me it was an accident and that he was very, very sorry. He was in misery for six weeks while I was visiting him at the parish prison. It was there that he accepted the Lord Jesus Christ as his personal savior and I baptized him. He cried and cried, and said that if he could undo anything, he would undo his crime. He was sincere and sorry for what he done.”
(The large prison visiting room where the pardon board hearing was conducted was charged with emotion. I sat in a section of the room reserved for the press. I was covering the hearing for the prison’s newsmagazine, THE ANGOLITE.)
A demure, graceful woman, Rose Williams made an emotional plea for her son’s life. Tragedy hung heavy in the air as she spoke. Williams’ sister and son became too emotional to complete their pleas for mercy to the board. The family of Robert Kelly sat apart from the Williams section. They sat in soft blue colored chairs. The Williams family sat in hard red colored chairs. The color contrast was obvious. “This is the worst tragedy of my life,” Williams told the board. “It’s caused a lot of pain and suffering to the victim’s family, to my family, and to me. When I was raised, I never wanted anyone’s life to be taken by my hands. I had no intention of killing anyone that night. The gun had shells in it, but the guys who gave it to me said it wasn’t in working order – that it wouldn’t fire. But the gun discharged – it fired so fast. I live it every day. I wake up and pray for my family. I pray for the victim’s family, and hope that we can both come together. I wish that this had never happened – if there’s anyone in this world who wishes he could turn this thing around, it’s me. God only knows what the future holds – I just want the Kelly family to know that from my heart I am very sorry.”
Charles Kelly, a career correctional officer with the Louisiana Department of Corrections, was Willie Kelly’s son. “I think there was a clear intent to kill my father,” he said, addressing the board for the Kelly family. “He was a very small man, about 5-foot-4 and weighed about 135 pounds. They could have easily manhandled him. Even if our father had tried to grab him [Williams], I think Mr. Holmes could have grabbed him. Like I said, he was small – he didn’t have to shoot him, and if he had to shoot him, he didn’t have to shoot him in the face.”
The Kelly family did not reflect any hatred toward Williams. Charles Kelly expressed the feelings of his family in non-inflammatory terms. He spoke with respect and consideration toward the Williams family. H said he had no personal animosity toward Williams personally. He simply asked the justice system to consider his interests as a crime victim.
“I respect the courts and all their proceedings,” he said. “I think they were conducted fairly and impartially up to this point. As a law-abiding, tax-paying citizen, it seems only fair to me that the judgment be carried out. I just want to say to the Williams family and to Robert that I mean no ill-will. My daddy is gone and I have a little son who will never see his grandfather.”
Kelly’s words trailed off as he got up and walked away from the board. It was a dramatic, powerful moment. The man’s grief was palpable.
Then Ossie Brown addressed the board. The media was watching. Brown knew he was facing a Federal indictment in a drug case. The obese and physically unattractive district attorney had to make an attempt, no matter how futile, to recapture his “law-and-order” image. He demanded nothing less than death for Robert Wayne Williams. The hypocrisy of his words would gag a maggot.
“The American public distrusts the justice system because we’re not carrying out the intent of the law,” he told the board. “My office did not single out Robert Wayne Williams and put a crime on him that he did not intend to commit. He killed a good, law-abiding citizen. It was a heinous, vicious crime, and we cannot excuse it.”
The next day, December 6, the pardon board voted 3 to 2 to deny clemency for Williams. Once again he got dissenting votes that wanted to spare his life. Two days later a group called the Religious Leaders Against the Death Penalty, a coalition of Baton Rouge and New Orleans ministers, called up Gov. Dave Treen to grant mercy to Williams. “Redemption is what we are asking of Gov . Treen,” said Tim Lawson, an Istrouma Methodist Minister. “Rehabilitation, renewal of the life of Robert Wayne Williams.” Gov. Treen, his own political past tarnished with segregationist, “states-rights” political views refused to meet with the ministers. “In this holiday season of grace,” Rev. Steve Crump told the media, “we will opt for the religion of decency, or we will opt for the religion of vengeance, the religion of King Herod.” Herod’s religion would prevail.
Williams had a final telephone conversation with Dalton.
“I want to thank you, and all the people who worked with you, for everything you did,” the condemned inmate said. “I really appreciate it – and I’m not going to let y’all down. I’m going to handle this thing with a lot of dignity – and I want you to know I am going to die with the truth in my heart, the truth that I didn’t intend to kill anyone.”
Tuesday, December 13, was the last full day of Robert Wayne Williams’ life. While Ossie Brown conferred with his attorneys about the federal investigation tightening its grip around him, Williams sat in a remote death cell in Camp F at the state penitentiary. He could not look out the window in front of his cell because a blanket covered the window. It began as a fair day but as the other inmates marched to the dining hall for their noon meal, the sky suddenly grew dark; so dark, in fact, that the prison’s night security lights had to be turned on. Booming thunder rumbled above and lightning bolts crackled across the darkened sky. It was as though in that isolated, rugged region of the world, the primal forces of good and evil had locked themselves in a titanic struggle. The plunging of the prison into a stormy darkness in the middle of the day was ominous and made everyone nervous. The rain began but soon stopped. The sky grew bright again and the security lights were turned off.
Sam Dalton was a man possessed. He moved from one court to another, from one judge to another. He knew the system was going to kill his client but that did not diminish his efforts to save the man.
“That last issue was a good issue [the issue of intent],” Dalton said. “But the courts said it came too late. Now, that goes against the grain of the writ of habeas corpus. I don’t care if you file a hundred habeas corpus petitions and 99 of them are bad, when you file a good one, it should be honored. It shouldn’t make any difference when it’s filed.” That was not the judicial sentiment of Polozola. He believed that federal “judicial deference” should be paid to state court proceedings, no matter the issue.
Dalton addressed the issue this way:
“Since the state and federal constitutions prohibit the suspension of the writ of habeas corpus, the courts have found a trick, a piece of terminology, to get around that constitutional safeguard. It’s called ‘abuse of the writ.’ They say, ‘well, we can’t talk in terms of suspension, so we’ll talk in terms of abuse’ which, in effect, is a suspension of the writ. That’s what the Fifth Circuit did on the last issue in Williams’ case. They said it should have been brought up earlier and by bringing it up at that late hour, it was an abuse of the writ.”
In summarily denying Williams’ intent claim, the Fifth Circuit deviated from its own case law on the “abuse of the writ” issue. A week earlier in another Louisiana death penalty case – a white inmate who brutally murdered an elderly woman in New Orleans – the Fifth Circuit stayed a scheduled execution and ordered a hearing on the “abuse of the writ” issue.
“They should have ordered a hearing in Williams’ case,” Dalton said. “There was absolutely no reason for them not to order such a hearing. We had presented a good solid issue. Their decision hurt – it hurt the legal system, the judicial process, because they ignored the strength of the Great Writ. Despite the constitutional prohibition that they shouldn’t, they used a trick of terminology to suspend the writ of habeas corpus [in Williams’ case] by calling it an abuse instead of a suspension. The fact is that they suspended it.”
That Tuesday afternoon Gov. Treen issued a statement rejecting the plea of mercy made by the state’s religious leaders:
“I have reviewed and given careful and prayerful consideration to the many arguments that have been advanced by those who seek Clemency for Robert Wayne Williams. I do not find that the judicial system has failed, or that there is any other justification for the extraordinary clemency power given the governor. It is my decision not to grant a reprieve or commutation of sentence.”
That night as the waiting reporters and witnesses prepared for the death ritual the sky suddenly grew dark again. Heavy rain began to fall, whipped about in a criss-crossing frenzy by unusually high winds. Lightning darted electrifyingly across the sky, filling the darkened night with flashes of intense light. For a half hour, the turbulent electrical storm unleashed a raging fury over the prison. The night seemed touched by evil, as if something sinister had risen from the bowels of the earth. Then, just as suddenly as it had hit the prison, the turbulence died. It was ominous and foreboding, as was the silence that followed.
“These white folks are crazy,” a tensed black correctional officer said. “They don’t understand this weather. They think it’s a storm. But that’s the Lord letting them know He doesn’t like what they’re about to do here. It’s evil – and you can feel it – the air is full of it. And it ain’t got nothin’ to do with the death penalty – this is about that dude over there and the people who want to kill him. There’s something that ain’t right about this thing. They can call it a storm if they want, but it ain’t natural.”
Approximately thirty demonstrators braved
the cold winds and occasional rain to protest Williams’
execution. The group sang and prayed for the soul of
“I guess we are praying for a miracle,” said Tom Dyhdahl, a spokesman for Louisiana Citizens Against the Death Penalty.
Nick Trenticosta, a spokesman for the
Louisiana Coalition on Jails and Prisons, added:
“We’re also praying that everybody else on death row there and elsewhere in this country will not face the same fate as Robert Wayne Williams.”
Members of Williams’ family, including his mother, joined the protestors. Rev. Joe Ingles, standing with the family, also took note of the weather, saying:
“The total darkness speaks well of the shame we’re witnessing here tonight.” While the protestors sang hymns, Sam Dalton was a man possessed. The justice he was seeking for his client was like trying to find that proverbial needle in the haystack. Everywhere he turned the door was slammed shut in his face.
At 10:30 p.m. the lights were turned off in the prison, signaling an end to the day. Rev. Brown was sitting in front of Williams’ death cell. He had been talking to the condemned inmates about many things from his childhood to adulthood. Williams was a troubled soul.
“He had a problem understanding how inadequate, how unfair the justice system is,” Brown explained. “He didn’t understand why Mr. Treen, who is a Christian, didn’t stop in and stop the execution. I had to show Robert that Mr. Treen had his own convictions, that he was following the law, that he had sent his pardon board to the prison to hear his case, and that two of those board members voted for clemency.
“The next thing that bothered Robert was the fact that there had always been judges, even the two pardon board members, who had voted for him; that it had never been a unanimous vote to see him executed. ‘Why don’t they stop this thing,’ he said. ‘Why me?’ Why doesn’t someone stop this and see I didn’t intend to kill Mr. Kelly?’ But I was able to calm him down – and we went over the Psalms again.”
At approximately 11:30, as they were
talking, Williams suddenly told Rev. Brown:
“Stop! I want you to cease saying anything else. Get me ready to die. I want you to really prepare me to walk into Heaven. I want you to tell me what it’s really like – tell me what I can expect when I get there.”
Brown began to prepare Williams for death by taking him through the Psalms again.
“We began to repeat the Lord’s Prayer – and when we got to ‘forgive me my trespasses, as I forgive those who trespass against me’,” Brown said, “we paused and he repeated it over and over again. He said that ‘in order for God to forgive me, I’ve got to get everything clear in my mind’. Then he said, ‘thank you for letting me get that clear’ and at that point he said, ‘I don’t hold nothing against Mr. Treen or anybody else’.”
At 12:45 a.m. Tuesday morning prison guards entered Williams’ cell. They placed shackles around his ankles and handcuffs on his wrists.
“Robert began repeating the Lord’s Prayer again,” Rev. Brown said, “and then he stopped repeating it and followed me in repeating the 23rd Psalms. A halo came over him and he was not himself. He said these words to me: ‘You’ve talked to me about Jesus bearing my burdens, that Jesus is going to sit in that chair instead of me’. He paused and said, ‘I definitely believe and feel that it won’t be me going to the chair – I believe that Jesus is going for me’. When I saw that halo, I knew he had become embodied in Christ.”
At 1:00 a.m. Warden Maggio walked into Williams’ cell.
“Robert, it’s time for us to go,” he said.
The warden led the procession off the tier, down the hallway, through a lobby, and into another hallway that led to the death chamber. Rev. Brown accompanied the procession until it reached the witness room at which point he left Williams’ side and joined the other witnesses.
The procession took several more steps down the narrow hallway, turning right into the death chamber. There the electric chair sat, forbidding, in the middle of the room. It had been refurbished and polished but its crude ugliness still dominated everything. A large clock was mounted on a wall directly behind the chair with an exhaust fan positioned slightly to the right of the clock. In front of the chair was a rectangular window to allow the witnesses to observe the execution. A microphone was attached to a small podium to allow the condemned inmate to make a final statement to the assembled witnesses.
Two prison guards escorted Williams into the death chamber with the warden. Two other guards remained outside the closed death chamber door. Williams stopped in front of the podium and looked the witnesses directly in the eyes. Maggio held the microphone for Williams to speak into.
“I believe and feel deeply in my heart that God has come into my life and saved me,” he said in a firm, strong voice. “I told the truth about what happened. If my death do happen I would like it to be a remembrance for Louisiana and the whole country that it would a deterrence against capital punishment and show that capital punishment is no good and never has been good. I would like all the people who fought against capital punishment to keep on fighting not just on my behalf but on behalf of everyone else.”
Behind Williams, in a small concrete enclosure, the executioner waited. No one would see the man who was being paid $400 to carry out the Ossie Brown orchestrated execution. He faced a panel of instruments, and through an opening in the wall, he would be able to see Maggio’s signal to carry out the execution.
After Williams finished his statement, he turned and walked over to the electric chair and sat down. The two guards began to fit and tighten the straps on him – one for the chest and the other for the left leg where one of the electrodes was attached. One arm was taken out of the handcuff and secured to the chair, with the same procedure employed for the leg. Then the cuffs were removed from the other arm after which it and the leg were secured to the chair. Williams looked quizzically down at the two guard who worked methodically and efficiently.
“Secured to the chair, the electrode was placed on the top of Williams’ head. As the hood, a piece of leather, was being lowered over the electrode and his head, Williams asked Maggio if it was necessary to use the hood. “Yes, Robert, we have to use it,” Maggio replied. The hood was lowered. The room fell deathly quiet. It had taken 4 minutes and 20 seconds to walk from the holding cell to the death chamber. Maggio nodded to the executioner. The executioner pulled the switch, sending a charge of 2,000 volts of electricity surging through Williams’ body. He then lowered it to 500 volts. It took ten seconds to lower the charge. Then it was again increased to 2000 volts before being lowered to 500 volts. The entire execution process took one minute and ten seconds.
“As I looked at that execution,” Rev. Brown said, “there was a strong anger coming deep from within. As I watched Robert being executed, I realized that we, all of us here in America, are guilty of his death. We legalize alcohol and let our big politicians, our millionaires, control the drug traffic in this country, and it’s them, if anyone, who should be electrocuted – not the person who is down at the bottom. We only execute the ones down at the bottom, the ones who can’t afford a lawyer, the ones the state must furnish a lawyer. People with money who can hire the best lawyers are not on death rows. When I witnessed Robert’s execution, I was looking directly at the injustice of the system – and I was appalled. A deep dedication came over me and I said, ‘Lord, help me wake America up’. I was so hurt to know that I live in a country that’s suppose to be a Christian country yet so much injustice prevails; to know that men in high office are responsible for these injustices and they are so corrupt themselves.”
Rev. Brown walked out of the prison and embraced a waiting Rosella Williams. Her son was dead. His body had been destroyed but not his memory. That provided small solace for her grief.
“They used my son,” she told the media, “and they’ve abused my family.
She was composed, her voice even, despite
the grief. Her son had been strong in death and, as his
mother, she would not dishonor his spirit by being less. It
was all she had left of him. The tears would come later, but
not there, not with the world watching.
Sam Dalton was also deeply affected by Williams’ execution.
“I felt like I had been amputated when I heard that the execution had been carried out,” he said. “It was a loss that I just couldn’t believe. We got two votes from the pardon board, and while I think their decision was pre-ordained, we still got two votes. We simply made a straightforward presentation of the case to them. Now, Jesus Christ, what would have happened if that same presentation had been made to the jury? I can’t help but believe that he would have persuaded at one juror to vote for life – and that was all he needed.”
Rosella Williams was gracious in grief. “My son did not ask to be released from prison,” she said, “but to be given life where he could help others.
Charles Kelly refused to accept the non-intent
“I never believed the shooting of my father was an accident,” he said. “I will never believe it was an accident. I believe in the death penalty in certain kinds of cases. I have three sons – one 22, one 19, and another small one – and if one of my sons did what Robert Wayne Williams did, I don’t think I could support him in trying to avoid the death penalty.”
AUTHOR’S NOTE: The substance of this article appeared in the Jan./Feb. 1984 edition of THE ANGOLITE, the official newsmagazine of the Louisiana State Penitentiary. The author was co-editor of the prison publication at the time, and had been the recipient of the George Polk, Sidney Hillman, and the American Bar Association’s Certificate of Merit for his death penalty articles.
649 F.2d 1019
Frank C. Blackburn, Warden, Louisiana State Penitentiary,and William J. Guste,
Attorney General of The State of Louisiana, Respondents-appellees
United States Court of Appeals,
Appeal from the United States District Court for the Middle District of Louisiana.
Before BROWN and GARZA, Circuit Judges, and BEER,* District Judge.
On January 5, 1979, Petitioner Robert Wayne Williams participated in the robbery of a Baton Rouge, Louisiana, grocery store. During the robbery, Williams told the store security guard to give up his pistol. Before the guard did so, Williams shot him in the face at point-blank range with a sawed-off shotgun.
Petitioner was convicted of first-degree murder in Louisiana State District Court. In the penalty phase of his bifurcated trial, the jury recommended the penalty of death after finding the existence of three of the necessary aggravating factors listed by the Louisiana Code of Criminal Procedure, Article 905.4: (1) that the offender was engaged in armed robbery, (2) that he knowingly created a risk of death or great bodily harm to more than one person, and (3) that the offense was committed in an especially heinous, atrocious or cruel manner.
The conviction and sentence were affirmed by the Supreme Court of Louisiana. State v. Williams, 383 So.2d 369 (La.1980). Certiorari was denied. Williams v. Louisiana, -- U.S. --, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981). The state district judge signed a warrant ordering the imposition of sentence on March 31st. Williams sought habeas corpus in the state courts, but his petitions were denied. He filed this petition in the district court below on March 26th. The court requested and received the entire state trial record which it "carefully and personally read". The petition was denied on March 27th without hearing or oral argument, for the reasons set out in an opinion which is attached hereto as an appendix.
This court stayed Williams' execution on March 28th, and expedited consideration of his appeal. He raises a number of points, several of which allege error in the original trial, and several of which allege error in the manner whereby the federal district court considered and determined this matter. We find each point to be meritless, and, for the reasons stated below and those stated in the district court's opinion, we affirm.
With regard to the state court, Williams asserts that (1) the exclusion of certain jurors at the voir dire phase violated the constitutional rule announced in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); (2) that there was insufficient evidence under the due process clause to support the second and third of the three aggravating circumstances found by the jury; (3) that he was deprived of the effective assistance of counsel at both the guilt and sentencing phases of his trial; and (4) that the Louisiana Supreme Court's system for comparative review of death sentences by judicial district rather than on a state-wide basis is unconstitutional in that it fails to ensure fair and evenhanded imposition. The district court expressly considered and rejected the first three of these claims. We find the reasons given in the court's opinion to be adequate and correct. As to the last point, on the Louisiana comparative review mechanism, we have heard nothing which would even hint at unconstitutionality, and wholly reject the argument.
Williams argues that the federal court erred by (1) denying the ineffective assistance of counsel claims without affording an evidentiary hearing, (2) in applying the presumption of validity found in 28 U.S.C. § 2254(d) to legal conclusions rather than factual determinations, and (3) in failing to afford "independent consideration" to eight of Williams' constitutional claims. To begin, we note that every assertion of ineffective assistance does not require a hearing; where the district court had the complete record before it, and particularly where it expressly states that a full and searching review was made, we are not required to remand so that the district court would be compelled to go through the motions of a hearing, unless it appears to us that additional evidentiary development was necessary on a specific point. Here, we find nothing which would require a hearing, and hold the district court to have been correct in its rejection of the ineffective assistance points. We further hold that the district court did not err in its deference to legal conclusions made in state court; while a presumption of validity was not required by statute, the court was free to accept conclusions of law if it deemed them correct. Finally, we note that the district court's opinion reveals a careful and meticulous inquiry into the law and facts of this case, and reject any argument that certain of Williams' claims were disregarded.
Therefore, we affirm the judgment of the district court. The stay previously issued by this court will remain in effect until June 30th, expiring on that day. We further serve notice that no motion for rehearing will be entertained, and order the clerk to issue our mandate immediately.
SUPPLEMENTAL OPINION AND WRITTEN REASONS FOR JUDGMENT
Robert Wayne Williams was convicted of first degree murder and sentenced to death by a jury in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Williams, 383 So.2d 369 (La.1980). Petitioner was granted a stay of execution pending his appeal to the United States Supreme Court. The United States Supreme Court denied petitioner's writ of certiorari, Williams v. Louisiana, -- U.S. --, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981), and his petition for rehearing. Williams v. Louisiana, -- U.S. --, 101 S.Ct. 1493, 67 L.Ed.2d 622 (1981). Following the United States Supreme Court's refusal to hear petitioner's appeal, the state trial judge signed a warrant of execution ordering petitioner to be put to death on Tuesday, March 31, 1981, between the hours of 12:00 o'clock, midnight and 3:00 o'clock A.M. Thereafter, petitioner filed an application for a stay of execution and an application for a writ of habeas corpus in the Nineteenth Judicial District Court. For written reasons assigned on March 24, 1981, the state district court denied petitioner's application for a stay of execution and also denied petitioner's application for a writ of habeas corpus. The Louisiana Supreme Court denied petitioner's application for a stay of execution and review of application for post-conviction relief on March 26, 1981. Petitioner then filed suit in the United States District Court for the Middle District of Louisiana seeking a stay of execution and an application for writ of habeas corpus. Thus, petitioner has exhausted his available state court remedies.
Petitioner contends that his federally protected rights were violated in the following manner:
(1) Three prospective jurors were erroneously excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).
(2) Petitioner was deprived of the effective assistance of counsel at his sentencing hearing.
(3) Petitioner's death sentence violates the due process clause of the Fourteenth Amendment because there was insufficient evidence to support the jury's finding that (a) the offender knowingly created a risk of death or great bodily harm to more than one person; and (b) the offense was committed in an especially heinous, atrocious or cruel manner.
(4) The jury's finding that the offense was committed in an especially heinous, atrocious or cruel manner was in violation of the decision rendered in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
(5) The Louisiana Supreme Court violated petitioner's constitutional rights under the Eighth and Fourteenth Amendments when it only reviewed the evidentiary sufficiency of one of the three aggravating circumstances found by the jury.
(6) The trial court erred in failing to provide the jury with limiting instructions on the statutory aggravating circumstances.
(7) The Louisiana Supreme Court has adopted inconsistent standards of appellate review thereby increasing the likelihood of arbitrary and capricious sentencing in death cases.
(8) The Louisiana Supreme Court erred in reviewing other first degree murder cases only in the district in which the sentence was imposed rather than reviewing first degree murder cases on a statewide basis.
(9) The death sentence imposed upon petitioner was disproportionate and excessive under Louisiana law and the Eighth and Fourteenth Amendments to the Constitution of the United States.
(10) The trial court erroneously instructed the jury concerning the mitigating circumstances and the role of such circumstances in determining a death sentence.
(11) The Louisiana death penalty statute is unconstitutional under the Eighth and Fourteenth Amendments to the Constitution of the United States.
(12) The trial court erred in allowing the state to present evidence of an armed robbery at petitioner's trial on the charge of first degree murder.
(13) Petitioner was denied effective assistance of counsel when his attorneys failed to suppress a taped confession and other inculpatory statements.
There is no need for an evidentiary hearing in this case. The state court record is attached.
In reviewing a state prisoner's application for writ of habeas corpus, the federal court is bound by the provisions set forth in 28 U.S.C. § 2254(d) and the standards set forth in Sumner v. Mata, -- U.S. --, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Thus, in a federal habeas corpus proceeding instituted by a state prisoner, a determination after a hearing on the factual issues made by a state court of competent jurisdiction and evidenced by a written finding, written opinion or other reliable and adequate written indicia shall be presumed to be correct unless one of the seven specified conditions set forth in 28 U.S.C. § 2254 is found to exist or unless the habeas corpus court concludes that the relevant state court determination is not fairly supported by the record. Sumner v. Mata, supra. Both the Louisiana Supreme Court and the state district court have made determinations of factual issues which have been reduced to writing in a written opinion. In the absence of the enumerated factors set forth in 28 U.S.C. § 2254, "the burden shall rest on the habeas petitioner, whose case by that time had run the entire gamut of a state judicial system, to establish 'by convincing evidence that the factual determination of the state court was erroneous.' 28 U.S.C. § 2254(d). Thus, Congress meant to insure that a state finding not be overturned merely on the basis of the usual 'preponderance of the evidence' standard in such a situation." Sumner, -- U.S. at --, 101 S.Ct. at 771. Petitioner's assignment of errors which he alleges in his federal habeas corpus petition in paragraphs 3, 4, 6, 7, 9, 10, 11 and 12 were previously considered by the Louisiana Supreme Court on petitioner's direct appeal to that court. State v. Williams, supra. This Court hereby adopts the findings of fact and conclusions of law of the Louisiana Supreme Court as its own findings of fact and conclusions of law on these issues. State v. Williams, supra.
The state district court in the opinion it rendered on March 24, 1981, also considered the same thirteen issues which are raised in this suit. As noted earlier, the Louisiana Supreme Court refused to review the decision rendered by the state district court on petitioner's state court application for writ of habeas corpus.
The issues which the Louisiana Supreme Court did not discuss in its opinion rendered on petitioner's direct appeal will now be considered more fully by this Court. Petitioner first contends that three prospective jurors were erroneously excused for cause in violation of the dictates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Petitioner's claim is without merit. Furthermore, the arguments set forth in petitioner's memorandum on this issue are not complete. A careful review of pages 83, 84, 185 and 186 of the trial transcript which sets forth the voir dire examination of the three jurors in question clearly shows that the mandates set forth by the United States Supreme Court in the Witherspoon and Adams decisions were strictly adhered to and followed by the trial court.
Petitioner further contends that he was deprived of the effective assistance of counsel at his sentencing hearing and also was deprived of the effective assistance of counsel because his counsel failed to set forth a legal argument in the motion to suppress filed on behalf of the petitioner during the state court criminal proceedings. In setting forth his written reasons denying petitioner's application for writ of habeas corpus, the state trial judge stated:
"Claim No. 2
This is a claim stating that petitioner was deprived of the effective assistance of counsel at the sentencing phase of the trial. This judge was the trial judge in the case and was required, in the post-conviction report to the Louisiana Supreme Court, to discuss in detail the effective representation of counsel at the trial. The court was convinced after the trial and is still convinced that the petitioner did receive effective assistance by both counsel. The records and transcripts also convince the court of this fact. Therefore, the court is of the opinion that this item should be denied. * * *
Claim No. 13 (this item is included in petitioner's amended petition)
This again is an item dealing with effective assistance of counsel. This court is of the opinion that counsel in this case was competent, and filed all motions available to it. The transcript of the proceedings varified (sic) this."
This Court has also carefully reviewed the record to determine whether or not petitioner received the effective assistance of counsel during the course of the trial and also at the sentencing hearing. In reviewing the record to determine whether or not petitioner received effective assistance of counsel from his court appointed attorneys, the Court was guided by the standards set forth by the Fifth Circuit Court of Appeals in MacKenna v. Ellis, 280 F.2d 592 (5 Cir. 1960), modified 289 F.2d 928 (5 Cir. 1961), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961); U. S. v. Gray, 565 F.2d 881 (5 Cir. 1978), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978); Herring v. Estelle, 491 F.2d 125 (5 Cir. 1974). As set forth in the opinions of the Fifth Circuit Court of Appeals, effective counsel does not mean "errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, supra, at 599. This necessarily "involves an inquiry into the actual performance of counsel in conducting the defense based on the totality of the circumstances and the entire record." U. S. v. Gray, 565 F.2d at 887. Although this Court believes that the findings of fact made by the state district court on the issue of effective assistance of counsel are correct, the Court has made a separate and independent review of the entire record and makes the following additional findings of fact. After entering a not guilty plea on behalf of the petitioner, petitioner's counsel filed a motion for a sanity commission hearing, a motion for discovery and inspection, and a motion to suppress evidence. A full and complete hearing was held on petitioner's motion to suppress certain confessions which were given by petitioner following his arrest. At the beginning of the trial, and prior to the time any testimony was taken, counsel filed a general objection to any evidence which pertained to the alleged armed robbery. Thereafter, counsel for petitioner made a very adequate and complete opening statement, made numerous objections to questions propounded by the district attorney during the course of the trial, and fully and adequately cross examined at least seven of the state's witnesses. In addition, the counsel for petitioner successfully objected to seven photographs which the state attempted to introduce which showed pictures of a badly mutilated body of the victim. In addition, counsel re-urged the objections made in the pre-trial motion to suppress the statements which the state attempted to introduce during the course of the trial. After the state rested its case, counsel called an expert on guns to support the petitioner's contention that the gun did not work properly and, therefore, petitioner did not have the specific intent to kill the victim. In addition thereto, counsel for petitioner called three neighbors and friends of the petitioner to set forth in the record the petitioner's very heavy dependency on drugs and was able to obtain a stipulation from the state regarding three additional witnesses whose testimony would have been cumulative on this same issue. Furthermore, counsel for petitioner obtained a stipulation from the state regarding testimony which Dr. Hypolite Landry would have given regarding the effect of the drugs on petitioner. Prior to the time the judge instructed the jury in this case, the petitioner requested the judge to give a jury instruction regarding intoxication. Following the jury's verdict in this case, counsel for petitioner again successfully objected to the very gruesome pictures of the victim's body which the state attempted to introduce at the sentencing hearing. Petitioner's counsel also called petitioner's mother who testified in detail regarding petitioner's background, good character, his church activities, and his involvement with drugs and the problems resulting from his drug usage. Counsel then made a very detailed and adequate closing argument to the jury at the sentencing hearing. A careful review of the total record in this case requires this Court to find, as the state district judge did, that petitioner received the effective assistance of counsel at all stages of his trial, including the sentencing hearing. The Court must further note that when this matter was appealed to the Louisiana Supreme Court on direct appeal, counsel for petitioner filed a very detailed brief regarding the sentence which was imposed on the petitioner in this case. In the federal application and also in the state application, the petitioner has now attached certain affidavits of witnesses which he contends his trial counsel erroneously failed to call at the trial of this case. However, a careful review of these affidavits reveals that these witnesses would not have added any new evidence to that which had already been presented at the sentencing hearing by petitioner's mother. These affidavits contain cumulative testimony which had previously been introduced during the trial and at the sentencing hearing. Also, the Court finds that the motion to suppress filed by the petitioner's counsel was a proper motion. The additional grounds now being urged by petitioner's counsel would not, in this Court's opinion, have affected the final conclusion rendered by the trial court and the Louisiana Supreme Court. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924); United States v. Cortez, et al., -- U.S. --, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Finally, the Court must note what petitioner's trial counsel did following the verdict in this case. After the verdict was rendered herein, counsel for petitioner filed a motion for new trial and a motion and arrest of judgment. After these motions were denied, an appeal was filed with the Louisiana Supreme Court. This appeal was adequately and properly briefed by counsel for petitioner. Considering these additional factors, the Court, as indicated previously, finds the petitioner received reasonably effective assistance of counsel at all stages of these proceedings.
The final argument raised by petitioner is that the Louisiana Supreme Court erred when it failed to review only one of the three aggravating circumstances which the jury found to support its death penalty verdict. The Court agrees with the decision rendered by the Louisiana Supreme Court in State v. Williams, supra, that it was only necessary for that court to review only one of the three mitigating circumstances which the jury found since it is only necessary for the jury to find one aggravating circumstance to support the death penalty. However, out of an abundance of caution, this Court, has completely reviewed the record in this case and finds that all three aggravating circumstances found by the jury are fully, totally, and adequately supported by the evidence presented at the trial of this case. In other words, the Court finds that the state has proven beyond a reasonable doubt the evidence to support the three aggravating circumstances which the jury found in this case.
Finally, the Court must note that when petitioner filed an application for writ of certiorari with the United States Supreme Court, petitioner contended that his federally protected rights were violated in the following manner: "(1) the sentencing charge to the jury was unconstitutional because the instructions failed to provide clear and objective standards for the exercise of the jury's sentencing discretion; (2) petitioner was denied his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution when the Supreme Court of Louisiana reviewed only one aggravating circumstance found by the jury to support its verdict of death; (3) petitioner's right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution was violated by the dismissal for cause of three jurors who never stated that they were irrevocably against imposing the death penalty." As noted earlier in this opinion, the United States Supreme Court refused to grant petitioner's application for writ of certiorari. Williams v. Louisiana, supra.
This Court realizes the seriousness of this case. For this reason this Court has made a very detailed and careful review and study of the entire record of this case, including the entire state court record. After so doing, this Court must and does conclude that it could find no error of any kind which would in any way cause this Court to stay the execution of petitioner which is set for March 31, 1981 or to grant petitioner an application for writ of habeas corpus. The Court also concludes that it would serve no useful purpose to delay these proceedings in order to conduct an evidentiary hearing into petitioner's complaints. The Court believes that no hearing is required to rule on the issues which petitioner has raised in his application. The Legislature for the State of Louisiana has, in its wisdom, decided to impose the death penalty as one sentencing alternative in first degree murder cases. The Legislature has provided a very detailed and constitutional procedure to be followed by the state court and the jury sitting in the state court before the jury can impose a death sentence. This procedure was carefully and meticulously followed in this case by the state trial judge and by the jury who heard the evidence in this case. Petitioner's case has now been reviewed by the state district court on motions for new trial and on post-conviction relief, by the Louisiana Supreme Court on direct appeal and on a petition for writ of certiorari for post-conviction relief, by the United States Supreme Court, and now by the United States District Court for the Middle District of Louisiana. This Court is totally and completely satisfied that petitioner has been accorded all of the constitutional rights which he is entitled to under our system of justice. Therefore, this Court shall not delay the execution which has been set for March 31, 1981, nor shall this Court grant to petitioner an application for writ of habeas corpus.
For reasons set forth above:
IT IS ORDERED that petitioner's application for stay of execution be and it is hereby DENIED.
IT IS FURTHER ORDERED that petitioner's application for writ of habeas corpus be and it is hereby DENIED.
Judgment shall be entered accordingly.
U.S. Supreme Court
464 U.S. 46
104 S.Ct. 311
78 L.Ed.2d 43
Ross MAGGIO, Warden
Robert Wayne WILLIAMS.
Nov. 7, 1983.
On October 23, 1983, less than two days before Williams' scheduled execution, the Court of Appeals for the Fifth Circuit stayed the execution "pending final action of the Supreme Court." Because we agree with applicant that the stay was improvidently imposed, we grant his motion to vacate the stay and to allow the State to reschedule Williams' execution.
* Williams was sentenced to death for killing a security guard while robbing a grocery store in Baton Rouge, Louisiana. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Williams, 383 So.2d 369 (1980). After we denied Williams' petition for certiorari, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981), and his request for rehearing, 450 U.S. 971, 101 S.Ct. 1493, 67 L.Ed.2d 622 (1981), he unsuccessfully sought a writ of habeas corpus in the Louisiana state courts. He then filed his first application for habeas corpus in the District Court for the Middle District of Louisiana, presenting the same 13 issues that had proved unavailing in the state courts. The District Court held no hearing, but issued a written opinion denying Williams' petition. Williams v. Blackburn, 649 F.2d 1019, 1021-1026 (CA5 1981) (incorporating District Court's decision).
The District Court's judgment was affirmed by a panel of the Court of Appeals for the Fifth Circuit, but an order was entered directing that the appeal be reheard en banc. On rehearing, the en banc Court of Appeals rejected each of Williams' many objections to his conviction and sentence and affirmed the judgment of the District Court. Williams v. Maggio, 679 F.2d 381 (1982) (en banc). On June 27, 1983, we again denied Williams' petition for certiorari, --- U.S. ---, 103 S.Ct. 3553, 77 L.Ed.2d 1399 and we denied his request for rehearing on September 8, 1983, --- U.S. ---, 104 S.Ct. 38, 77 L.Ed.2d ----.
After unsuccessfully renewing his attempt to win relief in the state courts, Williams filed a second petition for habeas corpus in the District Court, raising two claims that had previously been rejected and two additional claims. The District Court issued a detailed opinion in which it refused to grant the writ or to stay Williams' execution. Because it believed Williams' contentions to be "frivolous and without merit," the District Court also denied his request for a certificate of probable cause, which, under 28 U.S.C. § 2253, is a prerequisite to an appeal. The Fifth Circuit granted a certificate of probable cause and affirmed the judgment of the District Court, but nevertheless issued a stay.
The court reviewed Williams' claims and "expressly [found] that each is without merit." Williams v. Maggio, --- F.2d ---- at ----, No. 83-3647, slip op., at 8 (Oct. 12, 1983). In light of recent actions by this Court, however, the Court of Appeals concluded with respect to Williams' "proportionality" claim that "a complete review of the law on this matter may be anticipated. With a person's life at stake, we must await that review or further action from the Supreme Court." Ibid.
Just last Term, we made clear that we would not automatically grant stays of execution in cases where the Court of Appeals had denied a writ of habeas corpus. Barefoot v. Estelle, 463 U.S. ---, ---, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983). A stay application addressed to a Circuit Justice or to the Court will be granted only if there exists " 'a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction.' " White v. Florida, 458 U.S. ---, ---, 103 S.Ct. 1, ---, 73 L.Ed.2d 1385 (1982) (POWELL, J., in chambers) (quoting Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1305, 95 S.Ct. 1, 3, 42 L.Ed.2d 17 (1974) (POWELL, J., in chambers)).
We perceive no reason to apply a different standard in determining whether a stay granted by a Court of Appeals pending disposition of a petition for certiorari to this Court should continue in effect.
The grounds on which Williams would request certiorari are amply evident from his opposition to the motion to vacate the stay, his voluminous filings in the lower courts, and the opinions and proceedings in the District Court and Court of Appeals. None of these claims warrant certiorari and plenary consideration in this case. Accordingly, we conclude that the stay, which the Court of Appeals apparently granted in view of the possibility that we would disagree with its analysis of the constitutional issues raised by Williams, should be vacated.
Williams' claims may be summarized briefly. He argues, first, that the Louisiana Supreme Court reviewed the proportionality of his death sentence on a district-wide rather than a state-wide basis, and that such review does not adequately ensure that his death sentence has been imposed in a rational and nonarbitrary manner. Second, the prosecutor's closing argument allegedly prejudiced the jury against Williams and elicited a decision based on passion rather than reason.
Third, the trial court's instruction on lesser offenses, given despite the absence of evidence warranting such an instruction, is claimed to have violated the rule established in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), and to have denied Williams due process. Fourth, the exclusion for cause of three veniremen who opposed the death penalty at the guilt-innocence phase of Williams' trial, although proper under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), allegedly deprived Williams of a jury representative of a fair cross-section of the community.
Williams' second, third, and fourth contentions warrant little discussion. As Williams made clear in his second petition for state habeas corpus, he challenged the prosecutor's closing argument, either directly or indirectly, in his first state habeas proceeding. The Louisiana Supreme Court ultimately rejected his challenge, although two Justices indicated that the prosecutor's statements raised a substantial question and one concluded that the statements constituted reversible error. State ex rel. Williams v. Blackburn, 396 So.2d 1249 (1981).
Williams' failure to raise this claim in his first federal habeas proceeding is inexcusable, but the District Court nevertheless gave it full consideration in the second federal habeas proceeding. Applying the standard established in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), the District Court examined the prosecutor's closing argument at length and concluded that it did not render Williams' trial fundamentally unfair.
The trial court's instruction on lesser offenses was clearly proper under state law, and the District Court's review of the record led it to conclude that the evidence fully justified the trial court's charge.
Williams' challenge to the exclusion for cause of certain veniremen was previously rejected by the Fifth Circuit and was presented to this Court in his petitions for certiorari and his motion for rehearing following the denial of his second petition. He has now recast his argument as an attack on the representativeness of the jury that convicted him. In Witherspoon, we found the extant evidence insufficient to demonstrate that "the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." 391 U.S., at 518, 88 S.Ct., at 1775.
Williams claims that he is entitled to a hearing on the question whether the jury selection procedures followed here had these effects. But he has not alleged that veniremen were excluded for cause on any broader basis than authorized in Witherspoon. The District Court characterized the evidence proffered by Williams on the question whether the jury was less than neutral with respect to guilt as tentative and fragmentary, and we cannot conclude that it abused its discretion in refusing to hold an evidentiary hearing on this issue. Further review is not warranted.
Williams' challenge to the Louisiana Supreme Court's proportionality review also does not warrant the issuance of a writ of certiorari. The en banc Fifth Circuit has carefully examined the Louisiana Supreme Court's procedure and found that it "provides adequate safeguards against freakish imposition of capital punishment." Williams v. Maggio, 679 F.2d, at 395.
This conclusion was challenged in this Court in Williams' petition for certiorari following the Court of Appeals' decision and in his motion for reconsideration of our denial of that petition. We were, of course, fully aware at that time that we had agreed to decide whether some form of comparative proportionality review is constitutionally required. See Pulley v. Harris, 460 U.S. ----, 103 S.Ct. 1425, 77 L.Ed.2d 787 (1983).
Since agreeing to decide this issue in Pulley, the Court has consistently denied challenges to the Louisiana Supreme Court's proportionality review scheme that were identical to that raised by Williams. See Lindsey v. Louisiana, 464 U.S. ----, 104 S.Ct. 261, 77 L.Ed.2d ---- (1983); James v. Louisiana, 464 U.S. ----, 104 S.Ct. 263, 77 L.Ed.2d ---- (1983); Sonnier v. Louisiana, 463 U.S. ----, 104 S.Ct. 26, 77 L.Ed.2d ----, rehearing denied, 464 U.S. ----, 104 S.Ct. 36, 77 L.Ed.2d ---- (1983). See also Narcisse v. Louisiana, 464 U.S. ----, 104 S.Ct. 202, 77 L.Ed.2d ---- (1983). Applicant asserts that his execution should be stayed because we have issued a stay in another Louisiana death case, Baldwin v. Maggio, 464 U.S. ----, 104 S.Ct. 45, 77 L.Ed.2d ---- (1983).
But our decision there turned not on the substantiality of applicant's Pulley argument, but on the fact that applicant raised a substantial challenge to the effectiveness of his trial counsel, similar to those we shall resolve in two cases set for argument this Term. Strickland v. Washington, 462 U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983); United States v. Cronic, 459 U.S. ----, 103 S.Ct. 1182, 77 L.Ed.2d 430 (1983).
As Williams notes, Justice WHITE recently granted a stay in a case raising a proportionality challenge to a death sentence imposed in Texas. Autry v. Estelle, 464 U.S. ----, 104 S.Ct. 24, 77 L.Ed.2d ---- (1983). Also, on October 31, the Court declined to vacate that stay. In that case, however, the Texas Court of Criminal Appeals, like the California Supreme Court in Pulley, had wholly failed to compare applicant's case with other cases to determine whether his death sentence was disproportionate to the punishment imposed on others. Under those circumstances, it was reasonable to conclude that Autry's execution should be stayed pending the decision in Pulley, or until further order of the Court.
That is not the case here. Our prior actions are ample evidence that we do not believe that the challenge to district-wide, rather than state-wide, proportionality review is an issue warranting a grant of certiorari. Our view remains the same. Nor did Williams convince the lower courts that he might have been prejudiced by the Louisiana Supreme Court's decision to review only cases from the judicial district in which he was convicted.
Indeed, the District Court examined every published opinion of the Louisiana Supreme Court affirming a death sentence and concluded that Williams' sentence was not disproportionate regardless whether the review was conducted on a district-wide or state-wide basis. We see no reason to disturb that judgment. Finally, Williams has not shown, nor could he, that the penalty imposed was disproportionate to the crimes he was convicted of committing.
The District Court's careful opinion was fully reviewed by the Court of Appeals, which found no basis for upsetting the District Court's conclusion that Williams' contentions were meritless. The arguments that Williams raised for the first time in these proceedings are insubstantial, and the arguments that he has attempted to relitigate are no more persuasive now than they were when we first rejected them. We conclude, therefore, that the stay entered by the Court of Appeals should be vacated.
Justice STEVENS, concurring in the judgment.
In my opinion the stay application raises a serious question about the propriety of the prosecutor's argument to the jury at the sentencing phase of petitioner's trial. In that argument the prosecutor sought to minimize the jury's responsibility for imposing a death sentence by implying that the verdict was merely a threshold determination that would be corrected by the appellate courts if it were not the proper sentence for this offender. I quote some of that argument: "I want to read you some laws because something they [the defense] said, don't sentence this man to death, don't kill this man. You see, you have the last word on the verdict, and it but, by far you don't have the last word on it if you return it. The Louisiana Supreme Court has enacted a series of statutes that I want to read to you. What happens if you return a death penalty in this case. Because the law that's set up is very exacting, detailed and complicated procedure for a review of this court, the Louisiana Supreme Court, and other courts before any death penalty can be imposed. The law states, 905.9, Review on Appeal, The Supreme Court of Louisiana shall review of every sentence of death to determine if it is excessive. The Court, by rule, shall establish such procedures as necessary to satisfy constitutional criteria for review. And, then the statute, they enact it. See, not necessarily, its's mandatory that the Supreme Court review it. There's seven judges on the Supreme Court. The highest judges in this state. For it to be upheld, four of them will have to approve it. Well, what do they review? They state that every sentence of death shall be reviewed by this court to determine if it is excessive, and in determining whether the sentence is excessive, the court shall determine. A. whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. If they decide it was, they can reverse and order a life sentence. Where the sentence is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. If they don't think this defendant—if they think the crime was heinous enough and the statutory circumstances were proved but they don't think it ought to be applied to this defendant, they can reverse it and order a life sentence. Whenever the death penalty is imposed, a verbation transcript of the sentence hearing along with the record required on appeal shall be transferred to the Court. They review everything that went on in this trial. . . . And there is a total and complete investigation done on the defendant to determine whether or not they will let your decision to impose the death penalty stand. And only then does it make it through the Louisiana Supreme Court, and the defendant has a right, if he wishes—I'm not saying that it's granted in every case. It could be denied. It could be appealed all the way through the United States Supreme Court.
* * * * *
"But more important, what is this verdict going to mean? You see, you represent a certain segment of our society, law abiding people, raising families, working for a living, not robbing stores. You're the people that set the standards in this community. The Justices on the Supreme Court will review, and determine their decision whether or not if you decide to give him the death penalty, whether or not you were correct or not, but you see,—it use to be one." Tr. 290-292, 296 (emphasis supplied).
In my view, this argument encouraged the jury to err on the side of imposing the death sentence in order to "send a message" since such an error would be corrected on appeal (while a life sentence could not). I do not believe that argument accurately described the function of appellate review in Louisiana. The Louisiana Supreme Court does not review "everything" that occurred during the trial. If it finds that one aggravating factor supported the jury's verdict, it will not consider the defendant's claim that the jury improperly relied upon other aggravating factors in reaching its verdict. See State v. James, 431 So.2d 399, 405-406 (La.), cert. denied, --- U.S. ----, 104 S.Ct. 263, 77 L.Ed.2d ---- (1983). That rule was applied by the Louisiana Supreme Court in this very case. See State v. Williams, 383 So.2d 369, 374 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981).
While that limitation on appellate review is constitutionally permissible in the context of Louisiana's death penalty statute, see Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), given the state-law premises of Louisiana's capital punishment scheme, see James, 431 So.2d, at 406, it certainly is a more limited form of appellate review than that described by the prosecutor.
In my opinion, the argument was prejudicial to the accused, both because it appears to have misstated the law and because it may have led the jury to discount its grave responsibility in determining the defendant's fate. A prosecutor should never invite a jury to err because the error may be corrected on appeal. That is especially true when the death penalty is at stake.
Nevertheless, because the essence of this issue was raised in prior proceedings questioning the competency of trial counsel—who failed to object to the argument when it was made—the Court is justified in applying a strict standard of review to this second federal habeas corpus application. See Sanders v. United States, 373 U.S. 1, 15-17, 83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963). I do not find an adequate justification for petitioner's failure to raise this argument in his earlier federal habeas action. Since petitioner did raise the related argument of ineffectiveness of counsel, he was no doubt aware of this argument and may have deliberately chosen not to raise it in the first habeas corpus petition. See Barefoot v. Estelle, --- U.S. ----, ----, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Rose v. Lundy, 455 U.S. 509, 520-521, 102 S.Ct. 1198, 1204-05, 71 L.Ed.2d 379 (1982) (plurality opinion); Fay v. Noia, 372 U.S. 391, 438-440, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963).
Moreover, since competent counsel failed to object to the argument at the trial itself, thereby failing to avail himself of the usual procedure for challenging this type of constitutional error, I question whether it can be said that this trial was fundamentally unfair. See Rose v. Lundy, 455 U.S., at 543, 102 S.Ct., at 1216 and n. 8 (STEVENS, J., dissenting). Accordingly, though not without misgivings, I concur in the Court's decision to vacate the stay.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Before the Court is an application, filed by the state of Louisiana, to vacate a stay of execution granted by the United States Court of Appeals for the Fifth Circuit.1 Because the condemned, Robert Wayne Williams, has raised a substantial constitutional claim relating to the proportionality review undertaken by the Supreme Court of Louisiana when it affirmed his death sentence, I would deny the application. Moreover, because the Court's approach to this case displays an unseemly and unjustified eagerness to allow the state to proceed with Williams' execution, I dissent.
* Adhering 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, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (BRENNAN, J., dissenting), I would deny the state of Louisiana's application to vacate the stay of execution granted by the Court of Appeals.
Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would deny Louisiana's application in this case because Williams has raised a substantial constitutional claim concerning the disproportionate nature of his sentence.
On November 7, 1983, the Court will hear oral argument in Pulley v. Harris, No. 82-1095, to consider whether the Constitution requires, prior to the execution of any death sentence, that a court of state-wide jurisdiction determine whether a death sentence is proportional to the crime committed in light of the sentences received by similarly charged and convicted defendants in the state.
Specifically, the questions presented to the Court for review are (1) whether the Constitution requires any proportionality review by a court of state-wide jurisdiction prior to the execution of a state death sentence and (2) if so, whether the Constitution requires that such review assume any particular focus, scope, or procedural structure. Williams maintains that the order of the Court of Appeals staying his execution should be allowed to stand pending this Court's plenary consideration and disposition of the issues raised in Pulley. There is simply no defensible basis for disagreeing with him.
His commonsense position rests on several related arguments. Initially, it is beyond dispute that the constitutional status of proportionality review is currently unclear. That is undoubtedly why the Court granted the petition for a writ of certiorari in Pulley. See 460 U.S. ----, 103 S.Ct. 1425, 77 L.Ed.2d 787 (1983). It is also why Justice WHITE, just last month, stayed the execution of James David Autry pending our decision in Pulley. See Autry v. Estelle, 464 U.S. ----, 104 S.Ct. 24, 77 L.Ed.2d ---- (1983) (WHITE, J., in chambers). See also infra, at 62.
Given this uncertainty, it seems grossly inappropriate to allow an execution to take place at this time if the condemned prisoner raises a nonfrivolous argument relating to the proportionality of his sentence. And in this case, Williams has raised at least two nonfrivolous, and indeed substantial, claims concerning the proportionality of his death sentence.
First, Williams contends that the Supreme Court of Louisiana has denied him due process of law by undertaking only a district- or parish-wide proportionality review in his case. See State v. Williams, 383 So.2d 369, 374-375 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981). He properly notes that prior opinions of this Court have suggested that state-wide proportionality review is required before any constitutional death sentence may be carried out. See, e.g., Gregg v. Georgia, 428 U.S. 153, 198, 204-206, 96 S.Ct. 2909, 2937, 2939-40, 49 L.Ed.2d 859 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.) (approving death penalty in Georgia where appellate court examines whether the same sentence has been imposed " 'in similar cases throughout the state' "); id., at 223, 96 S.Ct., at 2948 (opinion of WHITE, J.) (noting with approval that the state supreme court vacates the death sentence "whenever juries across the State impose it only rarely for the type of crime in question").2
Given that the necessary scope of any required proportionality review is among the questions presented in Pulley, any uncertainty concerning the continuing validity of these prior statements will presumably be answered by our decision in that case. The execution of a condemned prisoner raising a nonfrivolous claim on this particular issue prior to the release of that decision belies our boast to be a civilized society.3
Second, even if a proportionality review limited to a single judicial district might eventually be held to pass constitutional muster, Williams notes that recent decisions of the Supreme Court of Louisiana have randomly applied proportionality reviews that are state-wide in scope. See, e.g., State v. Moore, 432 So.2d 209, 225-228 (La.1983) (limited comparison of first-degree murder cases state-wide); State v. Narcisse, 426 So.2d 118, 138-139 (La.1983) (similar comparison between several districts rather than the customary one).
The state court's failure to adopt any consistent approach in its review of capital cases, combined with its failure to offer any reasons for these different approaches, suggests that his death sentence has been imposed in a capricious and arbitrary manner. Again, at least until this Court clarifies the need for, and potential scope of, proportionality review in Pulley, I find it startling that the Court should allow this execution to take place.
A simple examination of the proportionality review that was undertaken in this case demonstrates its inadequacy.4 The review was undertaken in April 1980, when Williams' case was on direct appeal before the Supreme Court of Louisiana. The court compared the circumstances of Williams' crime with the crimes of other capital defendants in the Nineteenth Judicial District for the Parish of East Baton Rouge, Louisiana, the district or parish in which Williams was tried and convicted. At that time, only 28 murder prosecutions had taken place in the district since January 1, 1976, the relevant date under state rules on which to begin the comparison. Of those 28 prosecutions, only 11 resulted in convictions for first-degree murder.
And of those 11, only 3 defendants were sentenced to death. Like Williams, all three were the actual killers in a murder taking place during the perpetration of an armed robbery. And the court conclusorily noted that the crimes committed by the 8 defendants receiving life imprisonment had no aggravating circumstances or some mitigating circumstances and therefore were distinguishable from Williams' case. But, as the state court also admitted, Williams had no significant prior criminal record and may have been affected by a drug-induced mental disturbance. Therefore, the proportionality review undertaken in this case, limited as it was to a few cases arising in a single judicial district, could not ensure that similarly situated defendants throughout the state of Louisiana also had received a death sentence.
Louisiana has a total of 40 judicial districts in which a death sentence may be imposed. They apparently range from districts that cover primarily rural areas to a district that covers the urban center of New Orleans. Yet by allowing the Supreme Court of Louisiana to limit its proportionality review to a particular district, the Court today sanctions a practice that undoubtedly results in different sentences for similarly situated defendants, dependent solely upon the judicial district in which the defendant was tried.
This is the essence of arbitrary and capricious imposition of the death penalty that the Court has consistently denounced. "A constant theme of our cases . . . has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner." Barclay v. Florida, 463 U.S. ----, ----, 103 S.Ct. 3418, 3429, 77 L.Ed.2d 1134 (1983) (STEVENS, J., concurring). Central to these protections is a system that includes meaningful appellate review for every death sentence. See, e.g., Zant v. Stephens, 462 U.S. ----, ----, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983); Gregg v. Georgia, supra, 428 U.S., at 195, 204-206, 96 S.Ct., at 2935, 2939-40.
Given the existence of only one state-wide death penalty statute approved by the Louisiana state legislature, requiring that all courts and juries across the state apply uniform legal standards before imposing a death sentence, there can be no doubt of the substantiality of the constitutional question whether the state supreme court may apply different standards of appellate review depending on the judicial district involved.
In sum, Williams has raised a substantial claim challenging the constitutionality of his death sentence which is encompassed within the questions presented to the Court in Pulley v. Harris. Given the severity and irrevocability of the death sentence, it is shocking that the Court does not follow its normal procedures in this case. Under these procedures, the stay of execution should be left in force pending the timely filing of a petition for certiorari, and the final disposition in Pulley.
The Court offers no defensible rationale for departing from this sensible practice.5 Its action in this case is especially troubling because (1) it is based on the minimal filings associated with a stay application, (2) it effectively preempts one of the questions presented for review in Pulley, and (3) it apparently is an irrevocable decision that will result in Williams' execution.
Less than four weeks ago, on October 5, 1983, Justice WHITE stayed the execution of a condemned prisoner who, mere hours before his execution, claimed that he had been denied due process because the Texas Court of Criminal Appeals had failed to subject his death sentence to any proportionality review. See Autry v. Estelle, 464 U.S. ----, 104 S.Ct. 24, 77 L.Ed.2d ---- (1983) (WHITE, J., in chambers). Justice WHITE concluded that Autry's execution should be stayed pending disposition of Pulley because the Court's decision in Pulley will likely have a bearing on the validity of that prisoner's last-minute claim. Since then, the full Court has refused to vacate that stay. 464 U.S. ----, 104 S.Ct. 24, 77 L.Ed.2d ---- (1983).
Incredibly, the sensible practice followed in Autry has been rejected in this case because the Supreme Court of Louisiana utilized a limited proportionality review whereas in Autry the state court did not apply any such review. For present purposes, however, this is a distinction which should make no difference. Given the questions presented in Pulley, see supra, at 57, it is impossible to be certain that the proportionality review accorded Williams satisfies the constitutional requirements that the Pulley decision is intended to clarify.
It is no answer that the Court has consistently denied challenges to Louisiana's district-wide proportionality review, including Williams' own challenge to that review in his petition for certiorari on first federal habeas. 463 U.S. ----, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). For each of these denials, as is true of all denials of certiorari, are not decisions on the merits of the issues raised in the respective petitions.
More important, in none of those cases did the Court's denial of certiorari involve an imminent date of execution. In this case, by contrast, the Court's action will allow the execution of Williams to proceed to its fatal conclusion even though uncertainty overhangs the constitutional legitimacy of the process by which his death sentence was affirmed.6
Nor may the Court take comfort in the fact that, in the course of denying Williams' request for habeas relief, the federal District Court conducted an abbreviated state-wide proportionality review based on the published opinions of the Supreme Court of Louisiana. Although the District Court concluded that Williams' sentence was not disproportionate, that finding is largely irrelevant to the issue raised by Williams.
The District Court's judgment regarding the proportionality of the death sentence is insufficient because it cannot substitute for the state supreme court, which is presumably more familiar than the federal court with the important nuances of the state's death-penalty jurisprudence. Moreover, because Williams' requested remedy on habeas was a remand to the state court for a state-wide proportionality review, the District Court did not have the benefit of any arguments from counsel for Williams on how that state-wide review should be conducted. That the District Court conducted a hasty proportionality review based solely on published opinions from the state supreme court should not be deemed constitutionally sufficient.
Finally, the Court gives insufficient weight to the potential prejudicial effect of the limited, district-wide review conducted in Williams' case. In fact, Williams' habeas petition has identified at least two specific ways in which he has been prejudiced by a district-wide, rather than a state-wide, proportionality review.
First, he claims that there has never been a state-wide pattern of death sentences for persons committing murder during armed robbery, especially when there was a close question whether the murder was committed with specific intent or was simply accidental. Second, Williams claims that his case presented mitigating circumstances comparable to various cases in other parts of the state which resulted in sentences of life imprisonment. These are exactly the types of disparities which a proportionality review of proper scope would discover.
The Court, therefore, plainly offers no reason for treating this case differently from any other stay application raising questions which are encompassed within a substantially similar case then pending on the Court's plenary docket. Rather, "an appeal that raises a substantial constitutional question is to be singled out for summary treatment solely because the State has announced its intention to execute . . . before the ordinary appellate procedure has run its course." Barefoot v. Estelle, 463 U.S. ----, ----, 103 S.Ct. 3383, 3404, 77 L.Ed.2d 1090 (1983) (MARSHALL, J., dissenting) (emphasis in original).7
By vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is preempting any conclusion that the Constitution mandates state-wide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared unconstitutional. Only after full consideration and disposition of Pulley will the Court be in a position to determine with reasonable assurance the validity of the claims raised by Williams. I am appalled that the Court should be unwilling to let stand a stay of execution pending the clarification of this issue.
Justice BLACKMUN, dissenting.
I would not vacate the stay granted by the United States Court of Appeals for the Fifth Circuit until this Court decides Harris v. Pulley, argued on November 7, 1983. I share Justice BRENNAN's view that the resolution of the proportionality issue presented in Pulley inevitably will have some bearing on the proportionality issue raised by Robert Wayne Williams. To be sure, the decision forthcoming in Pulley v. Harris may or may not be favorable to Williams. However that may be, by vacating the stay, the Court today summarily decides the issue against Williams and, to that extent, pre-empts Pulley. It seems to me that standards of orderly procedure require that the stay of execution granted by the Fifth Circuit remain in effect until Pulley is decided. I therefore dissent from what appears to be an untoward rush to judgment in a capital case.
See Williams v. Maggio, --- F.2d ----, No. 83-3647 (CA5 Oct. 23, 1983). Prior to the action of the Court of Appeals, the execution of Williams had been set for between 12:00 a.m. and 3:00 a.m. on Tuesday, October 25, 1983.
See also Proffitt v. Florida, 428 U.S. 242, 258-260, 96 S.Ct. 2960, 2969-70, 49 L.Ed.2d 913 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.) (approving death penalty in Florida where appellate review is done "by a court which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality" in the imposition of the penalty); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.); Zant v. Stephens, --- U.S. ---, --- and n. 19, 103 S.Ct. 2733, 2741 and n. 19, 77 L.Ed.2d 235 (1983).
The Court does not conclude that Williams' challenge to the district-wide proportionality review undertaken by the state supreme court is a frivolous or even a nonsubstantial claim. Indeed, at least one justice of the Supreme Court of Louisiana has argued that the limited scope of such review does not satisfy federal constitutional standards. See State v. Prejean, 379 So.2d 240, 249-252 (La.1980) (Dennis, J., dissenting from denial of rehearing).
Rather, the Court concludes that the challenge does not present "an issue warranting a grant of certiorari." See ante, at 52. But as noted above, the Court has already granted a petition for certiorari in Pulley that poses a question concerning the constitutionally required scope of any proportionality review. Therefore, the Court's conclusion that the claim raised by Williams is not "certworthy" is directly contradicted by the Court's previous actions in Pulley. See also Baldwin v. Maggio, 704 F.2d 1325, 1326 n. 1, (CA5 1983), in which the Court of Appeals for the Fifth Circuit recognized the similarity between the claims raised in Pulley and the claim raised by Williams and other condemned prisoners in Louisiana.
Article 905.9 of the Louisiana Code of Criminal Procedure requires that the Supreme Court of Louisiana "review every sentence of death to determine if it is excessive" and directs the court to "establish such procedures as are necessary to satisfy constitutional criteria for review." La.Code Crim.Proc.Ann., Art. 905.9 (West Supp.1983). Acting pursuant to that direction, the court has adopted its own Rule 28, which provides in relevant part that "[i]n determining whether the sentence is excessive the court shall determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Louisiana Supreme Court Rule 28, § 1(c).
Moreover, the system for appellate review in Louisiana was intentionally patterned after the procedure for review authorized by the Georgia death-penalty statute and approved by this Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). See State v. Sonnier, 379 So.2d 1336, 1358 (La.1979). The Georgia procedure, of course, includes a proportionality review that compares a death sentence to other sentences imposed throughout the state. Gregg v. Georgia, supra, 428 U.S., at 204-206, 96 S.Ct., at 2939-40; see supra, at 58.
On several occasions, I and other members of the Court have expressed disapproval for the " 'growing and inexplicable readiness . . . to "dispose of" cases summarily.' " Hutto v. Davis, 454 U.S. 370, 387-388, 102 S.Ct. 703, 712, 70 L.Ed.2d 556 (1982) (BRENNAN, J., dissenting) (quoting Harris v. Rivera, 454 U.S. 339, 349-350, 102 S.Ct. 460, 466, 70 L.Ed.2d 530 (1981) (MARSHALL, J., dissenting)). For the various reasons expressed in the text, this practice proves especially disturbing in this case.
Under Louisiana law, "if any federal court . . . grants a stay of execution, the trial court shall fix the execution date at not less than thirty days nor more than forty-five days from the dissolution of the stay order." La.Rev.Stat.Ann. § 15:567 (West Supp.1983). This means that Williams' execution can be rescheduled mere weeks after this Court hears oral argument in Pulley, at a time when it is extremely unlikely that the Court will have already rendered its decision in that case.
At least two other claims raised by Williams also suggest that the state should not be allowed to proceed with this execution. First, as Justice STEVENS notes, ante, at 52, Williams has raised a serious question concerning the prosecutor's argument to the jury. That argument unduly prejudiced Williams because, by overstating the role of appellate review, it both misstated Louisiana law and allowed the jury to discount its grave responsibilities when imposing the death sentence. Unlike Justice STEVENS, however, I believe Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), mandates that the case be remanded for a full hearing on this matter.
Second, Williams has alleged that exclusion for cause of jurors unequivocally opposed to the death penalty resulted in a biased jury during the guilt-phase of the trial proceedings against him. The Court has previously noted that, "in light of . . . presently available information," it cannot be said that such juror exclusion results in an unrepresentative jury on the issue of guilt. See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 516-518, 88 S.Ct. 1770, 1774-75, 20 L.Ed.2d 776 (1968). See also Bumper v. North Carolina, 391 U.S. 543, 545, and nn. 5-6, 88 S.Ct. 1788, 1790, and nn. 5-6, 20 L.Ed.2d 797 (1968). That conclusion, however, was reached 15 years ago, and recent cases and scholarship suggest that it may need to be re-examined. See, e.g., Grigsby v. Mabry, 569 F.Supp. 1273 (ED Ark.1983); Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich.L.Rev. 1 (1982). An evidentiary hearing on this issue is clearly necessary.