Is death "different" for purposes of harmless error analysis? Should it be?: An assessment of United States and Louisiana Supreme Court case law

Louisiana Law Review

Volumn 59, Issue 4, 1999, Pages 1105-1165

  McCord, David ^a  

^a Drake Law School   (United States)

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EID: 26444474987     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (301)

1. Others have discussed aspects of this topic before me, and I have greatly benefited from their contributions. My article is, though, to my knowledge, the first to examine harmless error in death penalty cases at all stages of the proceedings, from voir dire through the penalty phase. See, Linda E. Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 Ga. L. Rev. 125, 165-66 (1993) (arguing that a different and very narrow harmless error doctrine should apply to the sentencing phase because, "The value-based nature of the decision in the penalty phase of a capital case, weighing aggravating and mitigating factors, renders it difficult, at best, to calculate the effect of an error.");
2. C. Elliot Kessler, Death and Harmlessness: Application of the Harmless Error Rule by the Bird and Lucas Courts in Death Penalty Cases - A Comparison & Critique, 26 U.S.F. L. Rev. 41, 90 (1991) (concluding that neither the liberal nor the conservative California Supreme Court dealt fairly with harmless error concepts in capital cases: the Bird liberal court applied a rule of automatic reversal; the conservative Lucas court applied it as a virtual barrier to reversal);
3. Marla L. Mitchell, The Wizardry of Harmless Error: Brain, Heart, Courage Required When Reviewing Capital Sentences, 4 Kan. J.L. & Pub. Pol'y 51, 59 (1994) (arguing that the Kansas legislature enacted the death penalty contrary to the wishes of the citizenry, and that the Kansas Supreme Court should apply a rule of automatic reversal for capital sentencing to reflect the conscience of the community);
4. James C. Scoville, Comment, Deadly Mistakes: Harmless Error in Capital Sentencing, 54 U. Chi. L. Rev. 740, 758 (1987) (arguing for rule of automatic reversal in capital sentencing).
5. For a helpful discussion of harmless error jurisprudence generally, see Gregory Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review, 82 Cal. L. Rev. 1335, 1368-69 (1994) (arguing that the resolution of a defendant's claim of error too often depends on which standard of review a court chooses, rather than on the merits of the claim).
6. See Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991 (1976) ("[D]eath is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two."). See also, e.g., Lankford v. Idaho, 500 U.S. 110, 125, 111 S. Ct. 1723-1732 (1991); Clemons v. Mississippi, 494 U.S. 738, 750 n.4, 110 S. Ct. 1441, 1449 n.4 (1990); Booth v. Maryland, 482 U.S. 496, 509 n.12, 107 S. Ct. 2529, 2536 n.12 (1987); Solem v. Helm, 463 U.S. 277, 289, 103 S. Ct. 3001, 3009 (1983); Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct. 3368, 3377 (1982); Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 2389-90 (1980). See also, Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 370, 397-401 nn.200-206 (1995) (collecting cases for this proposition).
7. Among the most important of these capital-specific rights are the right to exclude from jury service those jurors who are overly committed to capital punishment, see Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852 (1985) (establishing the currently-used test for whether a venireperson must be excused for cause on this basis), and the right to an individualized sentencing hearing where the defendant can present all mitigating evidence pertinent to "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65 (1978).
8. See Gregg v. Georgia, 428 U.S. 153, 187, 96 S. Ct. 2909, 2932 (1976).
9. See Coker v. Georgia, 433 U.S. 584, 597-98, 97 S. Ct. 2861, 2868-69 (1977).
10. See Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994 (1977).
11. See Godfrey v. Georgia, 446 U.S. 420, 453 (1980) (White, J., dissenting) (citing with approval the holding of the Georgia Supreme Court in Gregg v. State, 210 S.E.2d 659, 667 (1974), that a death sentence was unconstitutionally disproportionate to the crime of armed robbery. Although the United States Supreme Court has never expressly held a death sentence disproportionate to the crime of armed robbery, that is almost certainly because no state has tried to impose such a sentence in light of the fact that that a death sentence has been held disproportionate to rape of an adult woman, which is a more serious crime.).
12. Coker, 433 U.S. at 597-98, 97 S. Ct. at 2868-69 (limiting holding to rape of an adult woman).
13. See State v. Wilson, 685 So. 2d 1063 (La. 1996) (noting that Louisiana was, at that time, then the only jurisdiction that authorized the death penalty for aggravated rape of a minor, and holding that the penalty was not disproportionate to the crime. Id. at 1068-70).
14. See Harmelin v. Michigan, 501 U.S. 957, 1001-05, 111 S. Ct. 2680, 2705-07 (1991) (Kennedy, J., concurring).
15. Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S. Ct. 1133, 1144-45 (1980). But see Solem v. Helm, 463 U.S. 277, 296-300, 103 S. Ct. 3001, 3012-15 (1983) (distinguishing Rummel and holding that sentence of life without parole for a seventh nonviolent felony was disproportionate on facts of case).
16. 408 U.S. 238, 92 S. Ct. 2726 (1972).
17. Id. at 309-10, 92 S. Ct. at 2762 (Stewart, J., concurring) ("For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.").
18. American capital punishment statutes fall into one of two structural categories. In some jurisdictions first degree murder is broadly defined and death-eligibility is determined at the penalty phase only if a listed statutory aggravating circumstance is proven by the prosecution. In other jurisdictions capital murder is defined as limited to certain specified categories of first degree murder, so that a finding of guilt is also a finding of death eligibility. Some jurisdictions partake of both of these structures, requiring a finding of a specified kind of first degree murder at the guilt/innocence phase and an additional finding of an aggravating circumstance at the penalty phase (although often these factors coincide or overlap). I will use the term "aggravating circumstance" broadly to cover the factors in either structure which elevate a defendant into the category of death eligibility.
19. See Steiker & Steiker, supra note 2, at 373-75 (commenting that despite the Court's jurisprudence, statutes still, "reflect[ ] the general failure of States to achieve any meaningful narrowing through the enumeration of aggravating circumstances.").
20. See Tuilaepa v. California, 512 U.S. 967, 971-72, 114 S. Ct. 2630, 2634-35 (1994) ("To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one 'aggravating circumstance' (or its equivalent) at either the guilt or penalty phase . . . . [T]he circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder.").
21. See Stanford v. Kentucky, 492 U.S. 361, 370-74, 109 S. Ct. 2969, 2975-77 (1989) (death sentence may be proportionate for 16-year old); but see Thompson v. Oklahoma, 487 U.S. 815, 857-58, 108 S. Ct. 2687, 2710-11 (1988) (O'Connor, J., concurring) (but not for 15-year old).
22. Penry v. Lynaugh, 492 U.S. 302, 333, 109 S. Ct. 2934, 2954 (1989) (indicating in dictum that it would be unconstitutional to impose a death sentence on a defendant who is profoundly or severely retarded).
23. See Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676, 1688 (1987) (major participation in a felony combined with reckless indifference to human life must be shown before a non-triggerman co-felon can be sentenced to death).
24. See Beck v. Alabama, 447 U.S. 625, 642-43, 100 S. Ct. 2382, 2392-93 (1980) (striking down a statutory scheme which required jurors to convict and sentence without the benefit of lesser-included offense instructions which would fit the facts of the state).
25. See infra note 251.
26. See Woodson v. North Carolina, 428 U.S. 280, 302-05, 96 S. Ct. 2978, 2990-91 (1976) (striking down mandatory death sentencing scheme); Roberts v. Louisiana, 428 U.S. 325, 331-34, 96 S. Ct. 3001, 3005-06 (1976) (to same effect).
27. See Sumner v. Shuman, 483 U.S. 66, 77-78, 107 S. Ct. 2716, 2723 (1987).
28. See Woodson, 428 U.S. at 304, 96 S. Ct. at 2991 ("[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.").
29. For example, I reside in Iowa where LWOP is mandatory for first degree murder (see Iowa Code §§ 707.2 & 902.1 (1996); first degree sexual assaults (see Iowa Code §§ 709.2 & 902.1 (1996); and first degree kidnapping (see Iowa Code §§ 710.2 & 902.1 (1996)).
30. The decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972) alone resulted in the commutation of at least 558 death sentences. See James W. Marquart & Jonathan R. Sorensen, A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society From Capital Offenders, 23 Loy. L.A. L. Rev. 5, 14 (1989) ("According to our data there were 558 inmates (excluding Illinois) on death row awaiting execution in 1972 who were commuted as a result of Furman.").
31. Arave v. Creech, 507 U.S. 463, 471, 113 S. Ct. 1534, 1541 (1993) (Idaho's aggravating circumstance that the defendant exhibited "utter disregard for human life" was saved from unconstitutional ambiguity by the state supreme court's narrowing interpretation); Walton v. Arizona, 497 U.S. 639, 654-55, 110 S. Ct. 3047, 3057-58 (1990) (Arizona's aggravating circumstance of "especially heinous, cruel or depraved" was saved from unconstitutional ambiguity by a state supreme court narrowing interpretation).
32. But see Dugar v. State, 615 So. 2d 1333 (La. 1993) (setting aside death sentence of fifteen-year old defendant imposed in violation of sixteen-year old minimum set by United States Supreme Court in Thompson v. Oklahoma, 487 U.S. 815, 857-58, 108 S. Ct. 2687, 2710-11 (1988)(O'Connor, J., concurring)).
33. 428 U.S. 153, 96 S. Ct. 2909 (1976).
34. 463 U.S. 992, 103 S. Ct. 3446 (1983).
35. Id. at 998-99, 103 S. Ct. at 3452 (emphasis added).
36. See Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522 (1986); Lego v. Twomey, 404 U.S. 477, 488, 92 S. Ct. 619, 626 (1972).
37. 470 U.S. 68, 105 S. Ct. 1087 (1985).
38. Id. at 72, 105 S. Ct. at 1090-91.
39. Id. at 84, 105 S. Ct. at 1097.
40. People v. Arthur, 673 N.Y.S.2d 486, 493-94 (Sup. Ct. N.Y. Co. 1997). There has been a spate of recent litigation under the relatively new New York death penalty statute about pretrial rights of capital defendants. In New York, apparently capital defendants have not yet reconciled themselves to the fact that death is not different, except for voir dire and the penalty phase. Defendants have contended that a "heightened due process" requirement applies to all aspects of a capital case, including pretrial issues. Almost every court in New York has held that a capital defendant is not entitled to "heightened due process" at the grand jury stage, in discovery, or in any pretrial matter. See, e.g., People v. Arroyo, Ind. No. 97-13, slip op. (Co. Ct. Schoharie Co. Aug. 27, 1997) (heightened due process not applicable at grand jury stage); People v. Shulman, 658 N.Y.S.2d 794 (Co. Ct. Suffolk Co. 1997); People v. Bastien, 649 N.Y.S.2d 979, 980 (Sup. Ct. N.Y. Co. 1996) (heightened due process applies only after conviction for capital offense); and People v. Rodriguez, 647 N.Y.S.2d 350 (Sup. Ct. N.Y. Co. 1996) (heightened due process applicable at sentencing phase only)). See also People v. Arthur, 673 N.Y.S.2d 486, 495 n.7 (Sup. Ct. N.Y. Co. 1997) (collecting other New York trial court decisions to the same effect that are not reported in the National Reporter System).
41. See Jonathan P. Tomes, Damned If You Do, Damned If You Don't: The Use of Mitigation Experts in Death Penalty Litigation, 24 Am. J. Crim. L. 359, 360 (1997) (explaining mitigation experts).
42. See, e.g., Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 Santa Clara L. Rev. 547, 600-01 (1995) ("Many capital defendants have led lives that are the criminogenic equivalent of being born into hazardous waste dumps - Love Canals of crime - being exposed to crime-producing carcinogens since birth, breathing the social and psychological equivalents of smog-invested air through most of their young lives and into adulthood.").
43. See Tomes, supra note 37, at 360 (mitigation experts fill the gap that often exists because "lawyers or even their investigators are not necessarily trained or competent to find, assess, and present such [mitigating] evidence.").
44. For a round-up of the sparse case law on this point see id. at 373-77.
45. See infra notes 282-293 and accompanying text.
46. See Gregg v. Georgia, 428 U.S. 153, 190-91, 96 S. Ct. 2909, 2933 (1976) (court noted that "Those who have studied the question suggest that a bifurcated procedure - one in which the question of sentence is not considered until the determination of guilt has been made - is the best answer." The court then went on to say, however, "We do not intend to suggest that only the above-described procedures [primarily the bifurcated procedure] would be permissible under Furman. . . .). Id. at 195, 90 S. Ct. at 2935.
47. See, e.g., Furman v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 2760 (Stewart, J. concurring) ("The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.").
48. See Robert A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study of El Paso County. Texas, 45 Wash. U. J. Urb. & Contemp. L. 3, 3-4 (1994) ("Only eight American states, chiefly in the south, [Arkansas, Kentucky, Mississippi, Missouri, Oklahoma, Tennessee, Texas and Virginia] provide statutory frameworks allowing the jury to determine sentences in noncapital cases.").
49. 438 U.S. 586, 98 S. Ct. 2954 (1978).
50. Id. at 604, 98 S. Ct. at 2965.
51. Simmons v. South Carolina, 512 U.S. 154, 177, 114 S. Ct. 2187 (1994) (holding it error where the prosecution has raised the issue of future dangerousness to prevent the defendant from showing his record of good conduct in prison).
52. See 50A C.J.S. Juries § 405 (1997) ("A juror who cannot or will not follow the applicable law is incompetent and subject to challenge.").
53. See, e.g., Tex. Code Crim. P. Ann. art. 35.16(b)(3) (providing that the prosecution has a right to challenge for cause a juror who "has a bias or a prejudice against any phase of law upon which the state is entitled to rely for conviction or punishment").
54. See, e.g., Tex. Code Crim. P. Ann. art. 35.16(c)(2) (providing that the defendant may challenge for cause a juror who has "bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation therefore or of the punishment therefore.").
55. In twenty-eight of the thirty-eight death penalty jurisdictions the jury is the sentencer. For a listing of these jurisdictions and their applicable statutes, see David McCord, Judging the Effectiveness of the Supreme Court's Death Penalty Jurisprudence According to the Court's Own Goals: Mild Success or Major Disaster, 24 Fla. St. U. L. Rev. 545, 561-62 & n.83 (1997).
56. See La. Const. art. I, § 17; and La. Code Crim. P. art. 905.6.
57. Of course, jurors have the power to nullify the law. If jurors nullify in the sense of acquitting even though they believe the prosecution has proven its case beyond a reasonable doubt, jurors will "get away" with the nullification because the prosecution has no right to appeal an acquittal, since if it won on appeal, a retrial would violate the double jeopardy clause. On the other hand, jurors can nullify by convicting even though they believe the prosecution has failed to prove its case and can usually "get away" with this as well, because of the stringent rules against using what went on in the jury room in any post verdict proceeding to set aside the judgment See, e.g., Fed. R. Evid. 606(b) (permitting a juror to testify after the fact only concerning "whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror."). But just because jurors have the power to nullify the law does not mean they have the right to do so.
58. See Woodson v. North Carolina, 428 U.S. 280, 302-05, 96 S. Ct. 2978, 2990-92 (1976); Roberts v. Louisiana, 428 U.S. 325, 331-34, 96 S. Ct. 3001, 3005-06 (1976).
59. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2965 (1978).
60. 469 U.S. 412, 105 S. Ct. 844 (1985).
61. Id. at 424, 105 S. Ct. at 852 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526 (1980).
62. Witt, 469 U.S. at 424, 105 S. Ct. at 852.
63. Id. at 425-26, 105 S. Ct. at 853.
64. 504 U.S. 719, 112 S. Ct. 2222 (1992).
65. Id. at 729, 112 S. Ct. at 2229-30.
66. Id. at 723, 112 S. Ct. at 2226.
67. Id. at 729, 112 S. Ct. at 2229.
68. Id., 112 S. Ct. at 2230.
69. See supra notes 31-36 and accompanying text.
70. Barry Latzer, State Constitutions and Criminal Justice 4 (1991) ("A construction analogy is usually drawn to illustrate this principle. The federal Constitution is said to provide a rights 'floor' below which no state law can go. But the states remain free to erect a 'ceiling' raising state rights above the federal floor.").
71. See, e.g., State v. Ferrier, 960 P.2d 927, 931 (Wash. 1998) ("Because we had not yet spoken on whether a separate state constitutional analysts for voluntary consent applied . . . [the lower court] concluded that we were in lockstep with the federal rule on this issue."); Robert F. Williams, New Mexico State Constitutional Law Comes of Age, 28 N.M. L. Rev. 379, 272 (1988) ("And while debate rages about the extent to which state constitutional provisions involving rights ought to be interpreted independently of, or in lockstep with, equivalent federal provisions, the basic approaches we use in addressing the question are drawn from traditions of national constitutionalism and national constitutional theory.").
72. Barry Latzer, State Constitutional Criminal Law 1-2 (1995) ("A significant minority of these state constitutional cases provide broader rights than have been granted as a matter of federal constitutional law. The preponderance of the case law, however, adopts federal constitutional standards in the construction of the state provisions.").
73. See infra notes 117-119, 189, 207-219, 227-228 and accompanying text.
74. See infra notes 280-293 and accompanying text.
75. 386 U.S. 18, 87 S. Ct. 824 (1967). For a discussion of the law prior to Chapman, see David McCord, The "Trial"/"Structural" Error Dichotomy: Erroneous, and Not Harmless, 45 U. Kan. L. Rev. 1401, 1403-04 (1997) (tracing that history).
76. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248 (1946) (speculating in dictum that harmless error analysis "perhaps" would not apply "where the departure is from a constitutional norm").
77. Chapman, 386 U.S. at 22, 87 S. Ct. at 827.
78. Id. at 23, 87 S. Ct. at 827-28.
79. See id. at 23 n.8, 87 S. Ct. at 828 n.8 (citing Payne v. Arkansas, 356 U.S. 560, 567-68, 78 S. Ct. 844, 850 (1958)).
80. See Chapman, 386 U.S. at 23 n.8, 87 S. Ct. at 828 n.8 (citing Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S. Ct. 792, 796-97 (1963)).
81. See Chapman, 386 U.S. at 23 n.8, 87 S. Ct. at 828 n.8 (citing Tumey v. Ohio, 273 U.S. 510, 522, 47 S. Ct. 437, 440 (1927)).
82. Chapman, 386 U.S. at 24, 87 S. Ct. at 828.
83. See Young v. United States, 481 U.S. 787, 809-14, 107 S. Ct. 2124, 2138-41 (1987) (appointment of an interested party's attorney as prosecutor for contempt charges); Gray v. Mississippi, 481 U.S. 648, 668, 107 S. Ct. 2045, 2056 (1987) (seating a juror in a capital case who is unconstitutionally predisposed toward a death sentence when the defendant has exhausted all peremptory challenges); Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S. Ct. 617, 623-24 (1986) (unlawful exclusion of members of the defendant's race from a grand jury); Waller v. Georgia, 467 U.S. 39, 48-50 & n.9, 104 S. Ct. 2210, 2216-17 & n.9 (1984) (abridgment of the right to a public trial); and McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8 (1984) (abridgment of the right to self-representation).
84. 499 U.S. 279, 111 S. Ct. 1246 (1991).
85. Id. at 310, 111 S. Ct. at 1265.
86. Id.
87. See McCord, supra note 71, at 1412-16.
88. See id. (identifying the narrowest definition of "trial error" as that which may be "quantitatively assessed in the context of other evidence" (quoting Fulminante, 499 U.S. at 307-308, 111 S. Ct. at 1263-64); a second "durational" definition as error that occurred "during the presentation of the case to the jury" (quoting Fulminante, 499 U.S. at 307, 111 S. Ct. at 1264); and a third, even broader definition, as anything that does not "affect the framework within which the trial proceeds, rather than simply an error in the trial process itself" (quoting Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265)).
89. Fulminante itself was a case in which the defendant was death sentenced. See Fulminante, 499 U.S. at 284, 111 S. Ct. at 1251. The Court gave no indication that the dichotomy it was formulating was in any way dependent upon the status of the case as a capital one. See also Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078, 2082-83 (1993) (Court uses dichotomy in a capital case); and Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 1717 (1993) (Court applies the dichotomy in a non-capital case).
90. See Steiker & Steiker, supra note 2, at 397-401 nn.200-206 (collecting the numerous cases in which the Supreme Court has opined that "death is different").
91. Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 2229 (1992).
92. Chapman v. California, 386 U.S. 18, 23 n.8, 87 S. Ct. 824, 828 n.8 (1967) (citing Tumey v. Ohio, 273 U.S. 510, 522, 47 S. Ct. 437, 440-41 (1927)); Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1264-65 (1991).
93. See Ross v. Oklahoma, 487 U.S. 81, 87-88, 108 S. Ct. 2273, 2277-78 (1988), possibly overruling Gray v. Mississippi, 481 U.S. 648, 668, 107 S. Ct. 2045, 2057 (1987).
94. See infra notes 167-183 and accompanying text.
95. See Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078, 2082-83 (1993); Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 1717-18 (1993).
96. The litigation saga of Tommy Cage began in earnest when the United States Supreme Court held that the jury instruction regarding reasonable doubt given in his death penalty case in Louisiana was unconstitutional. See Cage v. Louisiana, 498 U.S. 39, 41, 111 S. Ct. 328, 329 (1990). The Supreme Court did not decide at that juncture whether the error could be harmless. The case having been returned to the Louisiana court system, the Louisiana Supreme Court then held that the erroneous reasonable doubt instruction was a "trial error" subject to harmless error analysis that had in fact been harmless. See State v. Cage, 583 So. 2d 1125, 1127-29 (La. 1991). Cage sought certiorari review of this decision by the United States Supreme Court, but the Court denied the petition. See Cage, 502 U.S. at 874, 112 S. Ct. at 211. But then, in another Louisiana death penalty case where an identical instruction had been given, the Court found in Sullivan v. Louisiana that the error was a "structural defect" not subject to harmless error analysis. 508 U.S. 275, 280, 113 S. Ct. 2078, 2082 (1993). Cage then petitioned the Louisiana Supreme Court for an "out of time" rehearing of the earlier state court decision holding the error in his case to have been harmless. See Cage, 637 So. 2d at 90. The Louisiana Supreme Court held that its rules did not permit an out of time rehearing, but remanded the case to the lower courts to be treated as a postconviction remedy petition. Id. at 90. Finally, in State ex rel. Tommy Cage, 667 So. 2d 519, 520 (La. 1996), the Louisiana Supreme Court held that both Cage's conviction and sentence had to be reversed because of the error in the reasonable doubt jury instruction.
97. Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263 (1991).
98. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).
99. Id.
100. 395 U.S. 250, 89 S. Ct. 1726 (1969).
101. Id. at 254, 89 S. Ct. at 1729.
102. Id. (Court equated the overwhelming evidence test with the Chapman test). But one recent commentator argues that while courts still pay lip service to Chapman, Harrington has actually replaced it as the governing standard. See Charles S. Chapel, The Irony of Harmless Error, 51 Okla. L. Rev. 501, 525 (1998).
103. See Gregory Mitchell, supra note 1, at 1344-45 (detailing the cases during this time period).
104. 475 U.S. 673, 106 S. Ct. 1431 (1986).
105. Id. at 684, 106 S. Ct. at 1431.
106. 500 U.S. 391, 111 S. Ct. 1884 (1991), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991).
107. Yates, 500 U.S. at 402-06, 111 S. Ct. at 1893-95.
108. 508 U.S. 275, 113 S. Ct. 2078 (1993).
109. Id. at 279, 113 S. Ct. at 2081.
110. See Gregory Mitchell, supra note 1, at 1346-47: The sum of the Court's activity since Chapman is that the harm of constitutional errors may be evaluated under either of two textually-distinct tests, or under a hybrid of the two. Lower court decisions evince this state of confusion: both federal and state courts continue to apply the contribution-to-the-conviction, overwhelming-evidence, and hybrid variants of the harmless error test From Chapman until the 1993 case of Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993), the Court gave no indication that any different standard for assessing harmlessness should apply in federal habeas corpus than on direct review. But in Brecht the Court held that a more prosecution-favorable standard should apply in habeas corpus, namely, that habeas relief should be granted only when the error "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 637, 113 S. Ct. at 1721. The Court adopted this standard because it reflected the "interest in the finality," id. at 635, 113 S. Ct. at 1721, that attaches to a conviction after direct review, and protects the state's sovereign interest in punishing offenders and its "good faith attempts to honor constitutional rights." Id. The practical significance of Brecht is not in the verbal formulation it used of "substantial and injurious effect," but that it lowered the Chapman burden on the prosecution of proving that the error was harmless beyond a reasonable doubt, to merely requiring the prosecution to prove that the error was harmless by a preponderance of the evidence.
111. See State v. Sanders, 648 So. 2d 1272, 1291 (La. 1994).
112. See, e.g., State v. Seals, 684 So. 2d 368, 377 (1996).
113. See, e.g., State v. McCarthur, 719 So. 2d 1037, 1043 (La. 1998).
114. Id. at 1043 & n.7.
115. Fed. R. Crim. P. 52(b).
116. 507 U.S. 725, 113 S. Ct. 1770 (1993).
117. Id. at 732-35, 113 S. Ct. at 1777-79.
118. Id. at 735-36, 113 S. Ct. at 1779.
119. Johnson v. United States, 520 U.S. 461, 465, 117 S. Ct. 1544, 1548 (1997).
120. In Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506 (1977), the court held that since the adequate and independent state ground rule would prevent the Supreme Court, on direct review, from deciding the merits of a constitutional claim that the state had validly held to be procedurally barred under state law, it would be similarly improper for a federal habeas court to consider an issue that had been procedurally defaulted by the petitioner in state court. The Supreme Court has explicitly held that the Sykes principle applies with equal strength to capital petitioners: "[W]e reject the suggestion that the principles of Wainwright v. Sykes apply differently depending on the nature of the penalty a State imposes for the violation of its criminal laws." Smith v. Murray, 477 U.S. 527, 538, 106 S. Ct. 2661, 2668 (1986).
121. State v. Thomas, 427 So. 2d 428, 433 (La. 1982) ("Unlike the federal rules of criminal procedure, our statutory law does not contain an exception to the contemporaneous objection rule which authorizes appellate review of the record in a criminal case for plain error."). But see State v. Arvie, 505 So. 2d 44, 47 (La. 1987) ("On very rare occasions, this court has refused to apply the contemporaneous objection rule as a bar to review of an error which was so fundamental that it struck at the very essence of the reliability of the fact-finding process.").
122. State v. Berry, 391 So. 2d 406, 411 (La. 1980).
123. State v. Smith, 554 So. 2d 676, 678 (La. 1989).
124. State v. Taylor, 669 So. 2d 364, 369 (La. 1996).
125. 486 U.S. 249, 108 S. Ct. 1792 (1988). For a commentary critical of Satterwhite, see Kenneth A. Zimmern, Note, Satterwhite v. Texas: A Return to Arbitrary Sentencing? 42 Baylor L. Rev. 623 (1990).
126. Satterwhite, 486 U.S. at 253, 108 S. Ct. at 1797.
127. See State v. Satterwhite, 726 S.W.2d 81, 92-93 (1986).
128. Satterwhite, 486 U.S. at 258, 108 S. Ct. at 1798.
129. Two defendants appear twice because their cases were reversed early in my six-year sample, State v. Robertson, 630 So. 2d 1278 (La. 1994); State v. Bourque, 622 So. 2d 198 (La. 1993); each was then resentenced to death; and the appeal of the second death sentence was reported late in the six-year period. State v. Robertson, 712 So. 2d 8 (La. 1998); State v. Bourque, 699 So. 2d 1 (La. 1997). I treated each appeal as a separate case because each later appeal raised different issues not dependent upon the resolution of the first appeal.
130. See State v. Sanders, 648 So. 2d 1272, 1289-93 (La. 1994) (reversible error both for improper use of other crimes evidence at penalty phase, and for ineffective assistance at the penalty phase).
131. See State v. Hamilton, 699 So. 2d 29, 32-34 (La. 1997) (ineffective assistance at penalty phase); State v. Cousan, 684 So. 2d 382, 392-94 (La. 1996) (improper jury instruction regarding governor's clemency power); State v. Brooks, 661 So. 2d 1333 (La. 1995) (ineffective assistance at penalty phase); State v. Brooks, 648 So. 2d 366, 375-77 (La. 1995) (improperly admitted evidence at penalty phase); State v. Sanders, 648 So. 2d 1272, 1289-93 (La. 1994) (ineffective assistance at penalty phase and improper other crimes evidence at penalty phase); and State v. Bourque, 622 So. 2d 198, 246-48 (La. 1993) (improperly admitted evidence at penalty phase).
132. State v. Divers, 681 So. 2d 320, 324-27 (La. 1996) (failure to sustain defendant's challenge of venirepersons for cause); State v. Cross, 658 So. 2d 683, 685-88 (La. 1995) (failure to sustain defendant's challenge of venireperson for cause); State v. Maxie, 653 So. 2d 526, 534-38 (La. 1995) (failure to sustain defendant's challenge of venireperson for cause); State v. Robertson, 630 So. 2d 1278, 1283 (La. 1994) (failure to sustain defendant's challenge of venireperson for cause); State v. Hattaway, 621 So. 2d 796, 812-15 (La. 1993) (violations of right to counsel and privilege against self-incrimination); and State v. Hall, 616 So. 2d 664, 669 (La. 1993) (improper restriction of defense voir dire).
133. See State v. Hart, 691 So. 2d 651, 661-62 (La. 1997) (conviction changed to second degree murder and sentence changed to life without parole).
134. In the 42 cases in my six-year sample, each of them had at least one very obvious exacerbating factor. The most common was that the killing occurred during the contemporaneous felony of robbery and/or burglary and/or sexual assault (31 cases). Two other exacerbating factors tied for second: 18 cases involved what I would denominate "overkill," i.e., much more violence than necessary to kill the victim; and 18 cases involved multiple victims, i.e., defendant killed more than one person, or killed one person and grievously wounded at least one other person, with intent to kill. The third-place exacerbating factor was that the victim was particularly vulnerable because he or she was young or elderly (10 cases). Two other cases involved the exacerbating factor of murder for hire, and one case involved the exacerbating factor that the victim was an on-duty police officer. And, as the above figures show, many of the cases involved more than one of these exacerbating factors: 3 cases had 4 such factors, 3 cases had 3 such factors, and 21 cases had 2 such factors, for a total of 28 of the 42 cases with multiple exacerbating factors. Of the remaining 12 cases, 4 of them involved mainly the exacerbating factor of multiple victims but, since I would view each victim as an additional exacerbating factor these cases, too, had multiple factors. Two of the remaining cases involved juvenile victims, obviously a crime that provokes great outrage. Two others involved overkill, which also places them in the most heinous category. What remains is four cases which may be the "weakest" from a death penalty standpoint, all of which involve murder during an armed robbery, a relatively run-of-the-mill type of first degree murder. One of these was the lone case that the court reversed in my sample for lack of sufficient evidence of first degree murder, and rightly so: while the defendant had burgled the elderly victim's house and robbed him, he had only tied up the victim loosely and not otherwise injured him. The victim was unable to call for help and died as a result of lingering injuries from the ordeal. See State v. Hart, 691 So. 2d 651, 661-62 (La. 1997).
135. See Ake v. Oklahoma, 470 U.S. 68, 84, 105 S. Ct. 1087, 1096-97 (1985). For a discussion of Ake, see supra notes 33-36 and accompanying text.
136. See State v. Strickland, 683 So. 2d 218, 225-27 (La. 1996) (rejecting claim of duplicitous indictment); State v. Sanders, 648 So. 2d 1272, 1283 (La. 1994) (rejecting claim that indictment was improperly amended, but reversing sentence on other grounds).
137. See State v. Williams, 708 So. 2d 703, 728-29 (La. 1998) (rejecting claim that venue should have been changed); State v. Connolly, 700 So. 2d 810, 814-15 (La. 1997) (same); State v. Hart, 691 So. 2d 651, 655-56 (La. 1997) (same, but reversing conviction on other grounds); State v. Cousan, 684 So. 2d 382, 386 (La. 1996) (same, conviction affirmed but reversing sentence on other grounds).
138. State v. Strickland, 683 So. 2d 218, 229-30 (La. 1996) (rejecting claim that defendant should have been granted a continuance); State v. Martin, 645 So. 2d 190, 196-97 (La. 1994) (same); State v. Bourque, 622 So. 2d 198, 224 (La. 1993) (conviction affirmed but reversing sentence on other grounds).
139. See State v. Brumfield, No. 96-KA-2667, 1998 WL 727412 (La. Oct. 20, 1998) (rejecting claim that prosecution was impermissibly granted discovery); State v. Allen, 682 So. 2d 713, 721 (La. 1996) (same).
140. State v. Seals, 684 So. 2d 368, 378-79 (La. 1996) (rejecting claim that prosecution failed to provide discovery); State v. Strickland, 683 So. 2d 218, 235 (La. 1996) (same); State v. Allen, 682 So. 2d 713, 726 (La. 1996) (same); State v. Sanders, 648 So. 2d 1272, 1280-81 (La. 1994) (same, conviction affirmed but reversing sentence on other grounds).
141. See State v. Robertson, 712 So. 2d 8, 22-24 (La. 1998) (rejecting claim regarding improper sequestration of jurors); State v. Strickland, 683 So. 2d 218, 236 (La. 1996) (same); State v. Allen, 682 So. 2d 713, 727 (La. 1996) (same); State v. Taylor, 669 So. 2d 364, 379-81 (La. 1996) (same).
142. See State v. Brumfield, No. 96-KA-2667, 1998 WL 727412, 14-16 (La. Oct. 20, 1998) (rejecting claim that trial court improperly failed to assure that there was a written record of all proceedings); State v. Ortiz, 701 So. 2d 922, 928-29 (La. 1997) (rejecting claim that trial court erred in refusing to defer the defense opening statement at the guilt phase); State v. Seals, 684 So. 2d 368, 380 (La. 1996) (rejecting claim that defendant was entitled to a delay between the denial of the motions for new trial and the imposition of sentence); State v. Strickland, 683 So. 2d 218, 238 (La. 1996) (rejecting claim that trial court should have held a hearing on the pre-sentence report); State v. Sepulvado, 672 So. 2d 158, 163 (La. 1996) (rejecting claim that trial court should have appointed a sanity commission); and State v. Davis, 637 So. 2d 1012, 1019 (La. 1994) (rejecting claim that defendant was entitled to have two charges against him severed). See also State v. Langley, 711 So. 2d 651, 668 (La. 1998) (rejecting claim that defendant was improperly excluded from the trial; defendant's behavior was sufficiently disruptive to justify exclusion); State v. Baldwin, 705 So. 2d 1076, 1080 (La. 1997) (rejecting claim that courtroom outburst at the guilt/innocence phase constituted error); State v. Strickland, 683 So. 2d 218, 236 (La. 1996) (rejecting claim that defendant was improperly excluded from proceeding in chambers where portions of documents were being excised); State v. Tart, 672 So. 2d 116, 124-25 (La. 1996) (rejecting claim of conflict of interest by defense counsel); State v. Scales, 655 So. 2d 1326, 1329-30 (La. 1995) (rejecting claim of improperly admitted hearsay at preliminary hearing); State v. Sanders, 648 So. 2d 1272, 1277-78 (La. 1994) (rejecting claim that defendant was improperly extradited, but reversing sentence on other grounds); State v. Bourque, 622 So. 2d 198, 217-19 (La. 1993) (rejecting claim that the district attorney should have been recused, but reversing sentence on other grounds).
143. See State v. Brumfield, No. 96-KA-2667, 1998 WL 727412 (La. Oct. 20, 1998) (arguably error for the trial court to order disclosure of the defendant's expert's report, but harmless in any event); and State v. Strickland, 683 So. 2d 218, 225-27 (La. 1996) (error in joinder of capital and noncapital offenses for trial was harmless).
144. One discrete category of such claims is that a prospective juror was struck for an improper reason such as race or gender. The Louisiana Supreme Court has consistently rejected such claims of errors. See State v. Tyler, 723 So. 2d 939 (La. 1998) (upholding refusal of trial judge to permit defense striking of four prospective jurors which the trial court had concluded would be done solely on a racial basis); State v. Robertson, 712 So. 2d 8, 24 (La. 1998) (rejecting claim that prosecution improperly exercised a challenge on a racial basis); State v. Langley, 711 So. 2d 651, 674-75 (La. 1998) (rejecting claim that trial court refused to take steps to enable mothers of small children to sit as jurors); State v. Williams, 708 So. 2d 703, 726-27 (La. 1998) (rejecting claim that state impermissibly exercised its peremptory challenges on a racial basis); State v. Bourque, 699 So. 2d 1, 6-8 (La. 1997) (rejecting claims that prosecution improperly exercised a challenge on a racial basis and exercised improper challenges on a gender basis); State v. Seals, 684 So. 2d 368, 375 (La. 1996) (rejecting claim that prosecution improperly exercised challenges on a racial basis); State v. Strickland, 683 So. 2d 218, 230 (La. 1996) (rejecting claim that defense lawyer was improperly allowed to strike prospective jurors on the basis of gender). The Louisiana Supreme Court has also rejected many voir dire claims of miscellaneous variety. See State v. Chester, 724 So. 2d 1276 (La. 1998) (allowing victim's mother in the courtroom during voir dire); State v. Connolly, 700 So. 2d 810, 815-19 (La. 1997) (some jurors knew that defendant was linked to another murder besides the one charged); State v. Bourque, 699 So. 2d 1, 5-6 (La. 1997) (claim that prosecutor during voir dire lessened the jury's sense of responsibility by referring to their possible death sentence as a "recommendation"); State v. Cousan, 684 So. 2d 382, 387-88 (La. 1996) (rejecting claims that trial court erred in denying individual sequestered voir dire and in allowing a deputy to select jurors from bystanders at the courthouse, but reversing sentence on other grounds); State v. Allen, 682 So. 2d 713 (La. 1996) (claim that trial court erred in denying request for individual voir dire in requiring both defense counsel and prosecutor to exercise challenges for cause within hearing of the prospective jurors and claim that several prospective jurors were biased due to knowledge about the case or the participants); State v. Hamilton, 681 So. 2d 1217, 1222-23 (La. 1996) (claim that full voir dire was denied due to courtroom noise, fast pace of jury selection and limitations on questioning of prospective jurors); State v. Taylor, 669 So. 2d 364, 376-78 (La. 1996) (claim that trial court erred by refusing to allow defendant to exercise peremptory challenges after state and defense had provisionally accepted individual jurors); State v. Bourque, 622 So. 2d 198, 224-30, 232-33 (La. 1993) (claim of error for denial of individual sequestered voir dire, for failure to exclude several jurors for cause and for alleged incorrect method of numbering jurors and calling panels for examination, but reversing sentence on other grounds).
145. State v. Cross, 658 So. 2d 683, 685-88 (La. 1995) (failure to excuse for cause a prospective juror who had been a high school biology student of the victim and who said that the victim had helped the prospective juror "a lot").
146. See State v. Frost, 727 So. 2d 417 (La. 1998) (finding that a miniature closing argument included in a voir dire question by the prosecutor, which was promptly objected to and sustained, but did not influence the juror's ability to render an impartial verdict).
147. See supra note 31 and accompanying text
148. Claims that the defendant's confession was improperly admitted were rejected in the following cases: State v. Letulier, No. 97-KA-1360, 1998 WL 378356 (La. July 8, 1998); State v. Cooks, 720 So. 2d 637 (La. 1998); State v. Robertson, 712 So. 2d 8, 28-32 (La. 1998); State v. Langley, 711 So. 2d 651, 668-71 (La. 1998); State v. Lavalais, 685 So. 2d 1048, 1053-54 (La. 1996); State v. Seals, 684 So. 2d 368, 380 (La. 1996); State v. Cousan, 684 So. 2d 382, 386-87 (La. 1996) (but reversing sentence on other grounds); State v. Tart, 672 So. 2d 116, 126-31 (La. 1996); State v. Sepulvado, 672 So. 2d 158, 163 (La. 1996); State v. Scales, 655 So. 2d 1326, 1331-32 (La. 1995); State v. Brooks, 648 So. 2d 366, 371-75 (La. 1995) (but reversing sentence on other grounds); State v. Sanders, 648 So. 2d 1272, 1281-83 (La. 1994) (but reversing sentence on other grounds); State v. Davis, 637 So. 2d 1012, 1024-25 (La. 1994). In the following cases the court rejected a claim that the prosecutor had improperly commented on the defendant's failure to testify in violation of the Fifth Amendment's privilege against self-incrimination: State v. Craig, 699 So. 2d 865, 869-70 (La. 1997); State v. Hamilton, 681 So. 2d 1217, 1225 (La. 1996); State v. Bourque, 622 So. 2d 198, 240-41 (La. 1993) (but reversing sentence on other grounds).
149. In the following cases, the court rejected claims of illegal search and seizure: State v. Strickland, 683 So. 2d 218, 227-29 (La. 1996); State v. Allen, 682 So. 2d 713, 718 (La. 1996); State v. Davis, 637 So. 2d 1012, 1021-22 (La. 1994); State v. Bourque, 622 So. 2d 198, 221 (La. 1993) (but reversing sentence on other grounds).
150. See State v. Koon, 704 So. 2d 756, 763-64 (La. 1997) (defendant's statements to detectives made after the defendant had requested the interrogation to stop should have been suppressed. However, the erroneous admission was insignificant in relation to the whole of the evidence and the jury's rejection of the defendant's defense was surely unattributable to the error.); State v. Taylor, 669 So. 2d 364, 379 (La. 1996) (erroneous admission of defendant's confession surely did not contribute to the verdict where the defendant at trial admitted guilt from voir dire through the penalty phase).
151. State v. Hattaway, 621 So. 2d 796, 812-15 (La. 1993) (reversible error to admit statements obtained by moving the defendant from one parish to another without telling his attorney and inducing defendant to waive right to counsel thereafter).
152. In the following cases the court rejected claims that evidence of crimes other than those for which the defendant was on trial had been improperly admitted. See State v. Tyler, 723 So. 2d 939 (La. 1998); State v. Cooks, 720 So. 2d 637, 647-51 (La. 1998); State v. Williams, 708 So. 2d 703, 725-26 (La. 1998); State v. Hart, 691 So. 2d 651, 659 (La. 1997) (but reversing conviction on other grounds); State v. Scales, 655 So. 2d 1326, 1330-31 (La. 1995); State v. Sanders, 648 So. 2d 1272, 1283-85 (La. 1994) (but reversing sentence on other grounds); State v. Martin, 645 So. 2d 190, 198 (La. 1994); State v. Code, 627 So. 2d 1373, 1381-83 (La. 1993); State v. Bourque, 622 So. 2d 198, 233-35 (La. 1993) (but reversing sentence on other grounds).
153. See State v. Tyler, 723 So. 2d 939 (La. 1998) (evidence that after the defendant became suspected of the murder the police set up a drug deal "sting" for his arrest; while the evidence of the "sting" was not properly admissible, nonetheless the court was convinced beyond a reasonable doubt that the jury's verdict had actually rested on the admissible evidence); State v. Cooks, 720 So. 2d 637 (La. 1998) (verdict was surely unattributable to the erroneous admission of evidence of the defendant's gang affiliation); State v. Martin, 645 So. 2d 190, 198 (La. 1994) (where defendant's motive for killing the rape victim was so she could not testify against him later and send him back to prison; while it was unnecessary to introduce evidence concerning the sex crime nature of the defendant's earlier conviction, the incremental prejudice of the reference to that conviction by name did not outweigh the extremely high probative value of the fact that the defendant had been imprisoned, which gave him a motive for the later murder).
154. The Louisiana Supreme Court has rejected the following claims of improperly admitted prosecution evidence: State v. Chester, 724 So. 2d 1276, 1287-88 (La. 1998) (claim of improperly admitting letters written from prison by the defendant to attempt to influence a witness); State v. Brumfield, No. 96-KA-2667, 1998 WL 727412 (La. Oct. 20, 1998) (claim that surviving victim's testimony should have been excluded because the witness had once been hypnotized); State v. Robertson, 712 So. 2d 8, 32 (La. 1998) (claim that gruesome photos were improperly admitted); State v. Koon, 704 So. 2d 756, 768 (La. 1997) (claim that testimony of expert physician regarding defendant's sane mental condition violated a claim of privilege and of right to counsel); State v. Ortiz, 701 So. 2d 922, 929-30 (La. 1997) (claim of improper admission of evidence of death threat from unspecified person in jail, who might have been the defendant, to a witness); State v. Sepulvado, 672 So. 2d 158, 164 (La. 1996) (claim of improper admission of gruesome photos); State v. Martin, 645 So. 2d 190, 198-99 (La. 1994) (claim of improper admission of gruesome photos); State v. Davis, 637 So. 2d 1012, 1025-26 (La. 1994) (claim of improper admission of videotape from convenience store camera of murder of clerk); State v. Bourque, 622 So. 2d 198, 236-37 (La. 1993) (claim of improper admission of gruesome photo and murder victim's clothes, but reversing sentence on other grounds).
155. See State v. Gradley, No. 97-KA-0641, 1998 WL 252461 (La. May 19, 1998) (while admission of videotape of live victim stating her age may have been cumulative in order to prove that the victim was over the specified age at the time of death, such evidence was brief and could not have affected the jury's verdict); State v. Lavalais, 685 So. 2d 1048, 1051-52 (La. 1996) (even if letter from defendant's co-conspirator in prison was inadmissible hearsay, admission was harmless because letter contained no new evidence and in fact was used by defendant in penalty phase to support argument he was under the control of the co-defendant at the time of the killing); State v. Sanders, 648 So. 2d 1272, 1286-87 (La. 1994) (two inadmissible hearsay statements, one of which attributed ownership of firearms to the defendant, and a second of which described defendant's paying for a new car with cash and registering the vehicle in a friend's name, were harmless because these misdeeds were not connected with the crime charged, as to which the evidence against the defendant was so strong that the verdict was surely unattributable to the error, but reversing sentence on other grounds); State v. Code, 627 So. 2d 1373, 1385 (La. 1993) (detective's testimony that the defendant must have left the palmprint, while improper, was harmless because the jurors must have concluded that fact anyway in order to find the defendant as the culprit).
156. 477 U.S. 168, 106 S. Ct. 2464 (1986).
157. Id. at 181, 106 S. Ct. at 2471 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974) (a noncapital case)).
158. See State v. Williams, 708 So. 2d 703, 715 (La. 1998) (reference by prosecutor during the guilt phase to the victim as a "good man, nice man" was not preserved for appeal because not' objected to); State v. Roy, 681 So. 2d 1230, 1239 (La. 1996) (rejection of claim that prosecutor had improperly referred to a presumption of intent from actions because no objection was made; and in any event any error was cured by a trial court instruction).
159. See State v. Craig, 699 So. 2d 865, 869-70 (La. 1997) (rejecting claim that prosecutor had improperly commented on the defendant's failure to testify); State v. Allen, 682 So. 2d 713, 726 (La. 1996) (prosecutor had not violated the Louisiana rule against referring to the defendant's confession during the prosecution's opening statement); State v. Bourque, 622 So. 2d 198, 231-32 (La. 1993) (prosecutor had not incorrectly explained the law regarding first-degree murder, specific intent, and intoxication, but reversing sentence on other grounds).
160. State v. Hart, 691 So. 2d 651, 659-60 (La. 1997) (prosecutor's misstatement of the law regarding specific intent was corrected by trial court instruction, but reversing conviction on other grounds); State v. Roy, 681 So. 2d 1230, 1239 (La. 1996) (prosecutor had improperly stated presumption of
161. State v. Seals, 684 So. 2d 368, 376 (La. 1996) (unspecified prosecutorial comments during the guilt phase did not contribute to the verdict); State v. Strickland, 683 So. 2d 218, 232 (La. 1996) (prosecutor's violation of the Louisiana rule against referring to the defendant's confession during opening statement was harmless); State v. Martin, 645 So. 2d 190, 200-01 (La. 1994) (prosecutor's stigmatizing remarks regarding the defendant and invocation of the feelings of the deceased and her family were harmless error).
162. See State v. Brumfield, No. 96-KA-2667, 1998 WL 727412 (La. Oct. 20, 1998) (trial court was within its discretion to curtail defendant's attempts on cross-examination to impeach a surviving witness); State v. Craig, 699 So. 2d 865, 871-72 (La. 1997) (court was within its discretion to reject the qualifications of defendant's proposed expert witness); State v. Lavalais, 685 So. 2d 1048, 1054-55 (La. 1996) (proper to exclude hearsay statement of another person confessing to killing victim when defendant was able to put ample evidence on the record attempting to connect the other person to the murder); State v. Davis, 637 So. 2d 1012, 1027 (La. 1994) (trial court was within its discretion in holding that the defendant's evidence of his claimed habits did not meet the definition of habit).
163. See State v. Chester, 724 So. 2d 1276, 1286-87 (La. 1998) (while it was error to prohibit the defendant from impeaching a prosecution witness with her juvenile record, the defendant amply impeached the witness by other means).
164. See State v. Robertson, 712 So. 2d 8, 21-22 (La. 1998) (rejecting claim that trial court should have given the jury a complete set of preliminary instructions); State v. Williams, 708 So. 2d 703, 717-18 (La. 1998) (rejecting claim that instruction erroneously defined reasonable doubt); State v. Koon, 704 So. 2d 756, 768-69 (La. 1997) (rejecting claim that diminished capacity instruction should have been given); State v. Hart, 691 So. 2d 651, 660 (La. 1997) (refusing to consider on the merits three claims of improper jury instructions because they were not objected to at trial, but reversing conviction on other grounds); State v. Hamilton, 681 So. 2d 1217, 1227 (La. 1996) (no error not to give instruction on presumption of innocence as to an unadjudicated murder when none was requested); State v. Mitchell, 674 So. 2d 250, 255 (La. 1996) (no error in instructing jury that defendant could be inferred to intend the natural and probable consequences of his actions); State v. Sanders, 648 So. 2d 1272, 1278-80 (La. 1994) (no error in instruction that allegedly precluded the jury from considering lesser verdict of heat of passion manslaughter, but reversing sentence on other grounds); State v. Bourque, 622 So. 2d 198, 243 (La. 1993) (rejecting claims that instructions regarding reasonable doubt and direct and circumstantial evidence were confusing, but reversing sentence on other grounds).
165. See State v. Baldwin, 705 So. 2d 1076, 1078 (La. 1997); State v. Ortiz, 701 So. 2d 922, 930-37 (La. 1997); State v. Lavalais, 685 So. 2d 1048, 1055-56 (La. 1996); State v. Cousan, 684 So. 2d 382, 390-91 (La. 1996) (but reversing sentence on other grounds); State v. Seals, 684 So. 2d 368, 373-74 (La. 1996); State v. Sepulvado, 672 So. 2d 158, 164-55 (La. 1996); State v. Scales, 655 So. 2d 1326, 1336 (La. 1995); State v. Maxie, 653 So. 2d 526, 531-34 (La. 1995) (but reversing conviction on other grounds); State v. Martin, 645 So. 2d 190, 194-96 (La. 1994); State v. Davis, 637 So. 2d 1012, 1020-21 (La. 1994); State v. Bourque, 622 So. 2d 198, 242-43 (La. 1993) (but reversing sentence on other grounds).
166. State v. Hart, 691 So. 2d 651, 661-62 (La. 1997) (in case where defendant had burglarized victim's house and tied victim's wrists and feet without causing any physical injury to the victim, and elderly victim had died two weeks later in the hospital as the result of injury to wrists and malnutrition, there was insufficient evidence to support a finding that the defendant had specific intent to kill or inflict great bodily harm upon the victim as is required for first degree murder).
167. Id. at 662.
168. State v. Cross, 658 So. 2d 683, 685-88 (La. 1995).
169. State v. Hattaway, 621 So. 2d 796, 812-15 (La. 1993).
170. State v. Hart, 691 So. 2d 651, 661-62 (La. 1997).
171. 481 U.S. 648, 107 S. Ct. 2045 (1987).
172. Id. at 651-66, 107 S. Ct. at 2048-55.
173. Id.
174. Id.
175. Id.
176. Id. at 668, 107 S. Ct. at 2057.
177. Id. at 665, 107 S. Ct. at 2055 (quoting Moore v. Estelle, 670 F.2d 56, 58 (5th Cir. 1982)).
178. Gray, 481 U.S. at 668, 107 S. Ct. at 2057 (internal citations omitted).
179. 487 U.S. 81, 108 S. Ct. 2273 (1988).
180. Id. at 84, 108 S. Ct. at 2276.
181. Id.
182. Id.
183. Id. at 86, 108 S. Ct. at 2277.
184. Gray, 481 U.S. at 665, 107 S. Ct. at 2055.
185. Ross, 487 U.S. at 87-88, 108 S. CL at 2278 (internal citations omitted).
186. Id. at 88, 108 S. Ct. at 2278 (internal citations omitted).
187. Russell v. State, 670 So. 2d 816, 825 (Miss. 1995).
188. See State v. Frost, 727 So. 2d 417, 423 (La. 1998) ("It is reversible error for a trial court to improperly excuse such a venireman [who is qualified under the Witt precept] despite the fact that the State could have used a peremptory challenge to strike the juror." (citing Gray))
189. See State v. Frost, 272 So. 2d 417, 424 (La. 1998); State v. Letulier, No. 97-KA-1360, 1998 WL 378356, at *5 (La. July 8, 1998); State v. Robertson, 712 So. 2d 8, 25 (La. 1998); State v. Langley, 711 So. 2d 651, 672 (La. 1998); State v. Williams, 708 So. 2d 703 712-13 (La. 1998); State v. Gradley, No. 97-KA-0641, 1998 WL 252461, at *8 (La. May 19, 1998); State v. Koon, 704 So. 2d 756, 766-67 (La. 1997); State v. Strickland, 683 So. 2d 218, 231 (La. 1996); State v. Mitchell, 674 So. 2d 250, 254 (La. 1996); State v. Tart, 672 So. 2d 116, 123-24 (La. 1996); State v. Sanders, 648 So. 2d 1272, 1287-88 (La. 1994) (but reversing sentence on other grounds).
190. Wainwright v. Witt, 469 U.S. 412, 425-26, 105 S. Ct. 844, 852-53 (1985).
191. See State v. Hall, 616 So. 2d 664, 669 (La. 1993).
192. See, e.g., State v. Ross, 623 So. 2d 643, 644 (La. 1993) ("Prejudice is presumed when a challenge for cause is erroneously denied and all of defendant's peremptory challenges are exhausted. . . . A trial court's erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant's rights."). This holding is based on the Louisiana Constitution, which provides that an accused has the right to challenge jurors peremptorily (La. Const. art. 1, § 17) as effectuated through the Louisiana Code (La. Code Crim. P. art. 799).
193. See, e.g., State v. Chester, 724 So. 2d 1276, 1284 (La. 1998) ("Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant has exhausted his peremptory challenges.").
194. See State v. Divers, 681 So. 2d 320, 326 (La. 1996) (conviction reversed for this reason); State v. Maxie, 653 So. 2d 526, 534-38 (La. 1995) (same); State v. Robertson, 630 So. 2d 1278, 1283 (La. 1994) (same).
195. See State v. Chester, 724 So. 2d 1276, 1284 (La. 1998) (venireperson did not violate Morgan precept); State v. Koon, 704 So. 2d 756, 767 (La. 1997) (defendant waived objection by not using all peremptory challenges); State v. Hart, 691 So. 2d 651, 656-58 (La. 1997) (venireperson did not violate Morgan precept, but reversing sentence on other grounds); State v. Seals, 684 So. 2d 368, 376 (La. 1996) (venireperson did notviolate Morgan precept); State v. Cousan, 684 So. 2d 382, 388-90 (La. 1996) (venireperson did not violate Morgan precept); State v. Roy, 681 So. 2d 1230, 1236, 1239 (La. 1996) (claim not preserved because defendant did not use all peremptory challenges and' because venireperson did not violate Morgan precept); State v. Mitchell, 674 So. 2d 250, 254 (La. 1996) (claim not preserved because defendant did not use all peremptory challenges); State v. Sepulvado, 672 So. 2d 158, 164 (La. 1996) (venireperson did not violate Morgan precept); State v Bourque, 622 So. 2d 198, 227-28 (La. 1993) (venireperson did not violate Morgan precept, but reversing sentence on other grounds).
196. State v. Chester, 724 So. 2d 1276, 1284-86 (La. 1998) (internal citations omitted).
197. See State v. Hart, 691 So. 2d 651, 656-57 (La. 1997) (venireperson not disqualified under Morgan precept even though he stated unequivocally that he thought the penalty for an intentional murder should automatically be death, since the juror also said that he could set that preconception aside and render a verdict in accordance with the instructions, but reversing conviction on other grounds); State v. Bourque, 622 So. 2d 198, 226-27 (La. 1993) (venireperson initially stated that he would automatically impose a death sentence for intentional murder and could not consider any mitigating circumstances, and his rehabilitation on this point was shaky, but reversing conviction on other grounds).
198. Woodson v. North Carolina, 428 U.S. 280, 302-05, 96 S. Ct. 2978, 2990-92 (1976) (mandatory death penalty for certain categories of murder impermissible); Roberts v. Louisiana, 428 U.S. 325, 331-34, 96 S. Ct. 3001, 3005-07 (1976) (same).
199. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65 (1978).
200. Mills v. Maryland, 486 U.S. 367, 375, 108 S. Ct. 1860, 1865-66 (1988).
201. See McCord, supra note 51, at n.85 (collecting statutes from 28 death penalty jurisdictions).
202. One of the best works concerning the level of heinousness of the offense vis-a-vis the likelihood of a death sentence is from David C. Baldus et al., Equal Justice and the Death Penalty (1990). These researchers used over 150 case variables to assign case culpability levels ranging from 1 (lowest) to 6 (highest) as to 483 Georgia homicides from 1973 to 1978. Id. at 44, 84-92. The death sentencing rates were as follows: Level 1-2%; Level 2-14%; Level 3-38%; Level 4-65%; Level 5-85%; and Level 6-100%.
203. Gary Goodpaster, The Trial For Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 300-01 (1983).
204. United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 591 (1972) (as to the federal system); see also Williams v. New York. 337 U.S. 241, 246-50, 69 S. Ct. 1079, 1082-85 (1949) (as to states being permitted to do likewise).
205. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2965 (1978).
206. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2610 (1991). For further discussion of Payne, see infra notes 223-226 and accompanying text.
207. Louis J. Palmer, Jr., The Death Penalty: An American Citizen's Guide to Understanding Federal and State Laws 110, 248 (1998) ("There are currently 33 capital punishment jurisdictions that make murder committed by a defendant with a prior felony or homicide conviction a statutory aggravating circumstance.").
208. In Barclay v. Florida, 463 U.S. 939, 967, 103 S. Ct. 3418, 3435 (1983), the court stated that "[a]lthough a death sentence may not rest solely on a nonstatutory aggravating factor . . . the Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime." See also Jeffrey L. Kirchmeier, Aggravating and Mitigating factors: The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme, 6 Wm. & Mary Bill Rts. J. 345, 375 (1998) (canvassing law of capital jurisdictions regarding non-statutory aggravators).
209. See also Blaine LeCesne, Tipping the Scales Toward Death: Instructing Capital Jurors on the Possibility of Executive Clemency, 65 U. Cinn. L. Rev. 1051, 1081 (1997) ("Most capital sentencing schemes confine the jury's consideration of aggravating circumstances to those specified by statute.").
210. 503 U.S. 159, 112 S. Ct. 1093 (1992).
211. Id. at 167, 112 S. Ct. at 1098.
212. State v. Comeaux, 699 So. 2d 16, 21-22 (La. 1997) (internal citattions omitted).
213. See State v. Brooks, 541 So. 2d 801, 814 (La. 1989).
214. See State v. Moore, 440 So. 2d 134, 137 (La. 1983); State v. Walker, 394 So. 2d 1181, 1184 (La. 1973).
215. Brooks, 541 So. 2d at 814.
216. See State v. Brooks, 648 So. 2d 366, 375-77 (La. 1995).
217. 608 So. 2d 949 (La. 1992).
218. Id. at 955.
219. See State v. Williams, 708 So. 2d 703, 719 (La. 1998) (violation of Jackson's limit of evidence to testimony of victims or eyewitnesses by presentation of testimony of police officer was harmless because it did not inject an arbitrary factor into the jury's deliberations); State v. Tart, 672 So. 2d 116, 132-33 (La. 1996) (admission of evidence of misdemeanor unauthorized use of a vehicle was harmless).
220. See State v. Sanders, 648 So. 2d 1272, 1282-91 (La. 1995) (error not harmless where state had violated Jackson ban against informing jury of original charges even though defendant had been convicted only on lesser charge, and violated Jackson by introducing evidence of an unadjudicated offense that would not constitute a crime at all in Louisiana, let alone a violent felony).
221. 622 So. 2d 198 (La. 1993).
222. Id. at 248 (state presented a prohibited "mini-trial" on the issue of the defendant's guilt or innocence of killing another victim by presenting numerous and detailed witnesses to that effect).
223. See State v. Comeaux, 699 So. 2d 16, 21-22 (La. 1997) (given the limitations already established by Brooks and Jackson, "Bourque's further limitation on the amount of admissible evidence, no matter how highly relevant to the defendant's character and propensities, was unnecessary to guarantee due process.").
224. 622 So. 2d at 248-49.
225. 482 U.S. 496, 107 S. Ct. 2529 (1987).
226. 490 U.S. 805, 109 S. Ct. 2207 (1989).
227. Booth, 482 U.S. at 508-09, 107 S. Ct. at 2536 (victim impact statements inadmissible); Gathers, 490 U.S. at 810-12, 109 S. Ct. at 2210-11 (prosecutor's comments about victim's personal characteristics impermissible).
228. 501 U.S. 808, 111 S. Ct. 2597 (1991).
229. Id. at 827, 111 S. Ct. at 2608.
230. Id. at 830 n.2, 111 S. Ct. at 2611 n.2.
231. Id. at 833, 111 S. Ct. at 2612-13 (O'Connor, J., concurring) (taking pains to point out that that issue was not before the Court).
232. State v. Bernard, 608 So. 2d 966, 970 (La. 1992).
233. Id. at 972.
234. La. Code Crim. P. art. 905.2(A) (emphasis added).
235. See State v. Frost, 727 So. 2d 417, 430 (La. 1998) (violation of statute by presenting testimony of nonfamily members judged under harmless error standard of whether verdict was surely unattributable to the error); State v. Williams, 708 So. 2d 703, 722 (La. 1998) (Bernard error subject to harmless error review).
236. State v. Frost, 727 So. 2d 417, 430 (La. 1998).
237. See State v. Frost, 727 So. 2d 417, 430 (La. 1998) (harmless error where prosecution violated the rule that only family members could testify as victim impact witnesses); State v. Williams, 708 So. 2d 703, 721-22 (La. 1998) (assuming arguendo it was improper to allow victim's family members to testify that they had "no sympathy" for the defendant, any such error was harmless); State v. Koon, 704 So. 2d 756, 773-74 (La. 1997) (victim impact evidence did not exceed that permissible under Bernard); State v. Seals, 684 So. 2d 368, 376-77 (La. 1996) (assuming arguendo it was error to allow the victim's wife to testify about the victim's former employment, his future job prospects, and his custom of treating her to fish dinners, any such error was harmless); State v. Taylor, 669 So. 2d 364, 369-74 (La. 1996) (assuming arguendo that allowing victim's relatives to testify that they had no sympathy for the defendant was error, it was harmless; and rejecting several other claims of improper victim impact evidence as not constituting error); State v. Scales, 655 So. 2d 1326, 1335-36 (La. 1995) (prosecutor's argument that the victim's family requested the death penalty even though they did not so testify was harmless because it was brief and unlikely to have influenced the jury in a prejudicial manner).
238. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65 (1978).
239. It seems likely that under Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246 (1991), the court would find this to fall within the "evidentiary" definition of trial error, i.e., that "which may . . . be quantitatively assessed in the context of the other evidence. . . ." Id. at 307-08, 111 S. Ct. at 1264 (Rehnquist, J., concurring). At least two federal appellate courts have held that Lockett errors are subject to harmless error analysis. See Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir. 1997), and Bolender v. Singletary, 16 F.3d 1547, 1567 (11th Cir. 1994).
240. See State v. Cooks, 720 So. 2d 637, 644-47 (La. 1998) (evidence that another person who defendant was alleged to have attacked in prison was violent was irrelevant and properly excluded); State v. Robertson, 712 So. 2d 8, 35-36 (La. 1998) (testimony of polygraph examiner sought to be introduced by defendant at penalty phase was irrelevant); State v. Langley, 711 So. 2d 651, 658 (La. 1998) (no error in prohibiting defendant from presenting evidence of his supposed desire to plead guilty).
241. 477 U.S. 168, 106 S. Ct. 2464 (1986).
242. Id. at 181, 106 S. Ct. at 2471.
243. State v. Brumfield, No. 96-KA-2667, 1998 WL 727412 (La. Oct 20, 1998) (prosecutor's comment on unadjudicated misconduct was proper); State v. Robertson, 712 So. 2d 8, 38 (La. 1998) (prosecutor's remark that defendant was uncooperative was fair comment on the evidence); State v. Williams, 708 So. 2d 703, 715-16 (La. 1998) (prosecutor's remarks were fair comment on the evidence and did not ask the jurors to engage in a plebiscite against crime); State v. Bourque, 699 So. 2d 1, 10 (La. 1997) (fair comment for the prosecutor to argue that the jury should not return a sentence less than death out of sympathy for the defendant's daughter); State v. Sepulvado, 672 So. 2d 158, 166 (La. 1996) (cross-examination of defense witness that implied the possibility of early release from a life sentence did not constitute error); State v. Scales, 655 So. 2d 1326, 1332-33 (La. 1995) (prosecutor's reference to death penalty was appropriate).
244. See State v. Frost, 727 So. 2d 417, 433 (La. 1998) (prosecutor's comments about his own childhood abuse as an attempt to weaken defendant's excuse for his behavior was error, but harmless); State v. Tyler, 723 So. 2d 939, 950 (La. 1998) (while prosecutor misled the jury somewhat in arguing that the prosecution experts were not paid while the defense experts were, such error was harmless); State v. Robertson, 712 So. 2d 8, 20-21 (La. 1998) (assuming arguendo that the prosecutor's reference to a presumption of intent from actions was erroneous, there was no prejudice because the error had been corrected by the trial judge); State v. Langley, 711 So. 2d 651, 664-65 (La. 1998) (assuming arguendo prosecutor's comments at penalty phase about defendant's diary were improper, any such error was harmless); State v. Williams, 708 So. 2d 703, 716 (La. 1998) (reference by prosecutor to his own handicapped mother to detract from defendant's excuse for his behavior was perhaps inappropriate but harmless); State v. Bourque, 699 So. 2d 1, 5-6 (La. 1997) (prosecutor's remarks that the jury's verdict would be a "recommendation" was harmless because no juror could have failed to appreciate the gravity of his or her responsibility); State v. Seals, 684 So. 2d 368, 376 (La. 1996) (unspecified prosecutorial comments throughout the trial did not constitute reversible error); State v. Roy, 681 So. 2d 1230, 1239-40 (La. 1996) (error by prosecutor in arguing for presumption of intent from actions was harmless because trial judge corrected the mistake); State v. Mitchell, 674 So. 2d 250, 257-58 (La. 1996) (prosecutor's remark that the state was only asking for the same penalty as the defendant had given the victims, only in a nicer manner, was harmless); State v. Sepulvado, 672 So. 2d 158, 166 (La. 1996) (prosecutor's reference to defendant, who had many women consorts, as a "harem king" was harmless); State v. Taylor, 669 So. 2d 364, 375-76 (La. 1996) (prosecutor's remark that any sentence other than death would be a "disgrace" was harmless); State v. Scales, 655 So. 2d 1326, 1333-35 (La. 1995) (harmless error for the prosecutor to quote another case by name, which is not permitted in Louisiana; to present the facts wrongly albeit not in a false or misleading manner; to speak of the lifestyle the defendant would live in prison); State v. Sanders, 648 So. 2d 1272, 1285-86 (La. 1994) (harmless error for the prosecutor to ask the jurors to take a stand against crime, but sentence reversed on other grounds); State v. Martin, 645 So. 2d 190, 200 (La. 1995) (assuming arguendo that it was error for the prosecutor to tell the jurors that the victim was looking down from heaven, and to characterize the defendant as a malevolent version of "the Beast" in the story "Beauty and the Beast" was harmless).
245. See, e.g., State v. Taylor, 669 So. 2d 364, 375 (La. 1996) ("The emphasized portion of this argument [that any penalty other than death would be a shame and a disgrace] treads dangerously close to reversible error, and we caution this prosecutor to refrain from such conduct in the future. Nevertheless, we find that this statement does not warrant reversal of the sentence under current harmless error standards.").
246. United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946).
247. Id.
248. State v. Robertson, 712 So. 2d 8, 20-21 (La. 1998) (arguable error in comments regarding presumption of intent from actions corrected by trial judge instructions); State v. Bourque, 699 So. 2d 1, 5-6 (La. 1997) (prosecutor's remark about the jury's sentencing "recommendation" where nothing else in the record led the jurors to believe that the sentencing authority resided elsewhere); State v. Roy, 681 So. 2d 1230, 1239-40 (La. 1996) (prosecutor's comment about presumption of intent from actions corrected by trial court instruction).
249. 477 U.S. at 179-180 & nn.4-12, 106 S. Ct. at 2470-71 & nn.4-12 (prosecutor called the defendant an "animal" and stated several times that he wished the defendant had either killed himself or been shot by somebody else).
250. State v. Sepulvado, 672 So. 2d 158, 166 (La. 1996).
251. State v. Taylor, 669 So. 2d 364, 375 (La. 1996).
252. State v. Martin, 645 So. 2d 190, 200 (La. 1994).
253. State v. Mitchell, 674 So. 2d 250, 257 (La. 1996).
254. See Palmer, supra note 203, at 132-33 (explaining the process in non-weighing jurisdictions).
255. Id. at 130-32 (explaining the process in weighing jurisdictions).
256. See, e.g., Arave v. Creech, 507 U.S. 463, 471, 1138. Ct. 1534, 1541 (1993) (aggravating circumstance that the defendant exhibited "utter disregard for human life," was saved by the Idaho Supreme Court's narrowing interpretation); Walton v. Arizona, 497 U.S. 639, 654-55, 110 S. Ct. 3047, 3057 (1990) (aggravating circumstance of "especially heinous, cruel or depraved" was saved from unconstinationality by Arizona Supreme Court narrowing interpretation); Maynard v. Cartwright, 486 U.S. 356, 364-66, 108 S. Ct. 1853, 1859-60 (1988) (aggravating circumstance of "especially heinous, atrocious, or cruel," was unconstitutional unless saved by narrowing construction by state courts); and Godfrey v. Georgia, 446 U.S. 420, 430-33, 100 S. Ct. 1759, 1765-67 (1980) (aggravating circumstance which was "outrageously or wantonly vile, horrible or inhuman [in that it involved] torture, depravity of mind, or an aggravated battery to the victims," was unconstitutional without application of a state court narrowing construction).
257. 462 U.S. 862, 103 S. Ct. 2733 (1983).
258. Id. at 866, 103 S. Ct. at 2737.
259. Id. at 864, 103 S. Ct. at 2736.
260. Arnold v. State, 224 S.E.2d 386 (Ga. 1976).
261. Stephens v. State, 297 S.E2d 1, 4 (1982).
262. Zant v. Stephens, 462 U.S. 862, 888, 103 S. Ct. 2733, 2748 (1983).
263. Id., 103 S. Ct. at 2749.
264. Id. at 889, 103 S. Ct. at 2749.
265. 494 U.S. 738, 110 S. Ct. 1441 (1990).
266. Id. at 745, 110 S. Ct. at 1446.
267. Id. at 745-46, 110 S. Ct. at 1446-47.
268. See La. Code Crim. P. art. 905.3 ("A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, determines that the sentence of death should be imposed."). See also State v. Hamilton, 681 So. 2d 1217, 1227 (La. 1996) (no balancing required of aggravating and mitigating circumstances). Indeed, the Louisiana Supreme Court developed a Stephens-like doctrine before Stephens was decided. See State v. Sawyer, 422 So. 2d 95, 101 (La. 1982) (stating that a death sentence will be upheld if the sentencer properly found one of several alleged aggravating circumstances, as long as any unsupported aggravating circumstance did not inject an arbitrary factor into the sentencing process); and State v. Monroe, 397 So. 2d 1258, 1276 (La. 1981) (to same effect).
269. Such a challenge was raised by defendants in almost half the cases in my six-year sample (19 of 44). By far the most common claim was that the "heinous, atrocious and cruel" alleged aggravating circumstance was not sufficiently supported by the evidence. In nine of the nineteen cases, that aggravating circumstance was the only one challenged as being unsupported by the evidence. See State v. Letulier, No. 97-KA-1360, 1998 WL 378356 (La. July 8, 1998); State v. Gradley, No. 97-KA-0641, 1998 WL 252461 (May 19, 1998); State v. Robertson, 712 So. 2d 8, 44-45 (La. 1998); State v. Craig, 699 So. 2d 865, 873-74 (La. 1997); State v. Lavalais, 685 So. 2d 1048, 1058 (La. 1996); State v. Allen, 682 So. 2d 713, 728 (La. 1996); State v. Taylor, 669 So. 2d 364, 382 (La. 1996); State v. Martin, 645 So. 2d 190, 201 (La. 1994); State v. Davis, 637 So. 2d 1012, 1030 (La. 1994). In five other cases, the "heinous, atrocious and cruel" aggravating circumstance was challenged as being insufficiently supported along with at least one other aggravating circumstance. See State v. Ortiz, 701 So. 2d 922, 935 (La. 1997) (additionally challenging support for aggravated circumstance of aggravated burglary and circumstance of risk to others); State v. Connolly, 700 So. 2d 810, 822 (La. 1997) (also challenging aggravating circumstance of aggravated rape); State v. Comeaux, 699 So. 2d 16, 28 (La. 1997) (also challenging aggravating circumstance of risk to others); State v. Roy, 681 So. 2d 1230, 1242 (La. 1996) (also challenging aggravating circumstances of aggravated burglary and armed robbery); State v. Mitchell, 674 So. 2d 250, 258 (La. 1996) (also challenging aggravating circumstance of aggravated burglary). The five cases that did not involve challenges to the "heinous, atrocious and cruel" aggravating circumstance were the following: State v. Chester, 724 So. 2d 1276, 1288-89 (La. 1998) (challenge to the sufficiency of the evidence of the aggravating circumstance of distribution of a controlled substance); State v. Brumfield, No. 96-KA-2667, 1998 WL 727412 (La. Oct. 20, 1998) (challenge to the aggravating circumstance evidence relating to intention to kill a police officer); State v. Baldwin, 705 So. 2d 1076, 1081 (La. 1997) (challenge to sufficiency of evidence regarding aggravated burglary); State v. Koon, 704 So. 2d 756, 776 (La. 1997) (challenge to sufficiency of evidence relating to aggravating circumstance of killing to eliminate eyewitnesses); State v. Scales, 655 So. 2d 1326, 1337-38 (La. 1995) (challenge to sufficiency of evidence relating to aggravating circumstance of causing great risk to others).
270. Clemons, 494 U.S. at 771, 110 S. Ct. at 1460 (Blackmun, J., dissenting).
271. See James Luginbuhl & Julie Howe, Discretion In Capital Sentencing Instructions: Guided or Misguided?, 70 Ind. L. J. 1161, 1173 (1995) ("Jurors appear to be influenced by whether the aggravating factors are stronger or more numerous than the mitigating factors." (emphasis added)).
272. Zant v. Stephens, 462 U.S. 862, 888, 103 S. Ct. 2733, 2748-49 (1983).
273. Id.
274. See Steiker & Steiker, supra note 2, at 402 ("[C]ontemporary death penalty law is remarkably undemanding. The narrowing, channeling, and individualization requirements can be simultaneously and completely satisfied by a statute that defines capital murder as any murder accompanied by some additional, objective factor or factors and that provides for a sentencing proceeding in which the sentencer is asked simply whether the defendant should live or die.").
275. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65 (1978).
276. See Gilmore v. Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 2117 (1993) (citations omitted): Nevertheless, Boyde was a capital case, with respect to which we have held that the Eighth Amendment requires a greater degree of accuracy and factfinding than would be true in a noncapital case. Outside of the capital context, we have never said that the possibility of a jury misapplying state law gives rise to federal constitutional error. To the contrary, we have held that instructions that contain errors of state law may not form the basis for federal habeas relief.
277. 494 U.S. 370, 110 S. Ct. 1190 (1990).
278. See Calderon v. Coleman, 119 S. Ct. 500 (1998) (holding that the next step after a court finds Boyde error is to apply harmless error analysis).
279. 472 U.S. 320, 105 S. Ct. 2633 (1985).
280. Id. at 329, 105 S. Ct. at 2639.
281. See State v. Bourque, 699 So. 2d 1, 6 (La. 1997) (prosecutor's characterization of the jury's verdict on sentence as a "recommendation" was harmless because given the entire context of the proceeding, no jury could have failed to appreciate the gravity of its responsibility).
282. See State v. Robertson, 712 So. 2d 8, 41 (La. 1998) (failure to instruct on attempted perpetration of aggravated felony when the evidence overwhelmingly demonstrated that the crime was not only attempted but completed); State v. Langley, 711 So. 2d 651, 667 (La. 1998) (no error for court to not instruct on a presumption of life without parole since such was not the law); State v. Koon, 704 So. 2d 756, 772-73 (La. 1997) (trial court properly rejected requested instructions on "weighing" when Louisiana is a "non-weighing" jurisdiction); State v. Bourque, 699 So. 2d 1, 12 (La. 1997) (instruction that the jury was not to decide the sentence on the basis of sympathy was correct); State v. Strickland, 683 So. 2d 218, 237 (La. 1996) (where jury was required to find an aggravating circumstance in order to convict and the same aggravating circumstance had to be found at the sentencing, harmless for trial judge to instruct a jury that had found the aggravating circumstance at the guilt phase that that finding carried over to the penalty phase); State v. Hamilton, 681 So. 2d 1217, 1227 (La. 1996) (defendants requested instruction on "weighing" would have been improper in a "non-weighing" jurisdiction like Louisiana).
283. See State v. Cousan, 684 So. 2d 382, 392-94 (La. 1996) (relying on finding of unconstitutionality in State v. Jones, 639 So. 2d 1144, 1146 (La. 1994)).
284. Cousan, 684 So. 2d at 392.
285. See Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S. Ct. 792, 795-97 (1963).
286. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970).
287. 466 U.S. 668, 104 S. Ct. 2052 (1984).
288. Id. at 687, 692, 104 S. Ct. 2064, 2067.
289. See id. at 693, 104 S. Ct. at 2067 ("[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice."). But a more likely than not standard is "not quite appropriate." Id. at 694, 104 S. Ct. at 2068. Instead "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" Id. But one commentator has noted, "However, it is the allocation of the burden [on the prejudice prong of Strickland], rather than the standard, that is important The party who bears the burden of proof of the virtually unprovable [possible change of outcome], by any standard, can be expected to lose." William S. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 Wm. & Mary Bill of Rights J. 91, 131-36 (1995).
290. See Lockhart v. Fretwell, 506 U.S. 364, 369 n.2, 133 S. Ct. 838, 842 n.2 (1993): "Harmless error analysis is triggered only after the reviewing court discovers that an error has been committed. And under Strickland v. Washington, an error of constitutional magnitude occurs in the Sixth Amendment context only if the defendant demonstrates (1) deficient performance and (2) prejudice."
291. See Geimer, supra note 284, at 131: "In spite of the Court's recent pronouncement [in Lockhart v. Fretwell] that Strickland's application does not involve harmless error analysis, the contrary is obviously true."
292. See, e.g., Stephen B. Bright, Death By Lottery - Procedural Bar of Constitutional Claims in Capital Cases Due to Inadequate Representation of Indigent Defendants, 92 W. Va. L. Rev. 679 (1990) (explaining the detrimental interaction between the Strickland test and the Supreme Court's line of procedural default cases for federal habeas corpus);
293. Ivan K. Fong, Ineffective Assistance of Counsel at Capital Sentencing, 39 Stan. L. Rev. 461, 482-85 (1987) (arguing that Strickland's prejudice requirement is inconsistent with the Court's capital punishment jurisprudence); Geimer, supra note 284 (challenging Strickland's prejudice requirement as inconsistent with the Court's other harmless error jurisprudence).
294. The Hawaii Supreme Court rejected the Strickland prejudice component as being unduly difficult for a defendant to meet in State v. Smith, 712 P.2d 496, 500 n.7 (1986). See also State v. Briones, 848 P.2d 966, 977 (1993) (holding that actual prejudice is not required and that it is only necessary for the defendant to show the withdrawal or substantial impairment of a potentially meritorious defense).
295. See State v. Fuller, 454 So. 2d 119, 125 & n.9 (La. 1984).
296. See State v. Brumfield, No. 96-KA-2667, 1998 WL 727412 (La. Oct. 20, 1998) (citations omitted) ("A claim of ineffective assistance of counsel generally is more properly raised in an application for post-conviction relief than on appeal. In post-conviction proceedings, the district judge can conduct a full evidentiary hearing on the matter. However, when the record contains evidence sufficient to decide the issue, the appellate court may consider the issue in the interests of judicial economy.").
297. See State v. Hamilton, 699 So. 2d 29, 32-34 (La. 1997); State v. Brooks, 661 So. 2d 1333, 1337-39 (La. 1995); State v. Sanders, 648 So. 2d 1272, 1291-93 (La. 1994).
298. For a discussion of the Strickland test, see supra notes 282-284 and accompanying text
299. Indeed, this was much the situation in the Strickland case itself where the defense lawyer became despondent over the weight of evidence against his client and his client's behavior, and essentially gave up the fight at the penalty phase. Strickland v. Washington, 466 U.S. 668, 672-73, 104 S. Ct. 2052, 2056-57 (1984). Nonetheless, the court held this to be a supportable strategic decision, id. at 699, 104 S. Ct. at 2070, and held that the evidence against the defendant was so overwhelming that any error did not cause prejudice to the defendant. Id. at 700, 104 S. Ct. at 2071.
300. Same defendant as in 40. In case 40 Robertson's conviction and death sentence were reversed. The state retried Robertson and he was again sentenced to death. That conviction and sentence were affirmed in case 7. I have treated these two proceedings as two cases for purposes of my analysis.
301. Same defendant as in 42. In case 42 Bourque's death sentence was reversed. At resentencing he was again sentenced to death. This sentence was affirmed in case 15. I have treated these two proceedings as two cases for purposes of my analysis.