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II. A state may constitutionally relax the rules of evidence
in the penalty phase.

In Issue 46, appellant claims that the relaxation of the rules of evidence in K.S.A. 21-4624(c) violates the Constitution. The United States Supreme Court addressed this precise question over half a century ago and held squarely to the contrary in Williams v. New York, 337 U.S. 241, 250-252, 93 L. Ed. 2d 1337, 69 S. Ct. 1079 (1949). Acceptance of appellant's argument would require a conclusion that the high court has overruled Williams sub silento. It has not. Later cases have created rules excluding certain evidence under certain circumstances, but Williams is still good law for its general proposition.

One red herring needs to be cleared away at the outset. Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (plurality opinion) is a rule of substantive law, not a rule of evidence. In that case, see 438 U.S. at 589-591, as well as in Eddings v. Oklahoma, 455 U.S. 104, 107-108, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), the pertinent facts had been received in evidence, and the question was what use the sentencer could make of them. The Lockett/Eddings rule deals with the factors the defendant is entitled to proffer as mitigating. The question of what evidence is competent and admissible to prove those factors is a different, though related, question. Lockett has an impact on evidence because it makes evidence supporting the defendant's proffered factors relevant, and hence that evidence may not be excluded on the grounds of irrelevance. If a state excludes the evidence for valid reasons other than relevance, e.g., that it is unreliable "junk science," such exclusion is within the state's authority. See, e.g., People v. Fudge, 7 Cal. 4th 1075, 1121-1123, 875 P.2d 36, 64-65 (1994); see also Thompson v. Wainwright, 787 F.2d 1447, 1457-1458 (11th Cir. 1986) (Lockett "does not require a state to abandon its rules of evidence"); Edwards v. Scroggy, 849 F.2d 204, 212 (5th Cir. 1988).⁽²⁾

The state's control of evidence in the penalty phase is, of course, subject to some constitutional limits. However, the Supreme Court has limited the constitutional restrictions to a few narrow rules and expressly disclaimed sweeping preemption of state control. "Within these constitutional limits, 'the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.' [Citation.] This latitude extends to evidentiary rules at sentencing proceedings." Romano v. Oklahoma, 512 U.S. 1, 7, 129 L. Ed. 2d 1, 114 S. Ct. 2004 (1994) (emphasis added). Later in the opinion, the Romano Court was even more emphatic:

"Petitioner's argument, pared down, seems to be a request that we fashion general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would govern the admissibility of evidence at capital sentencing proceedings. We have not done so in the past, however, and we will not do so today. The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings."

512 U.S. at 11-12 (emphasis added).

Examining the opinions requiring or forbidding particular pieces of evidence in particular situations, we see a series of narrow, limited decisions, not upsetting the general rule. In Green v. Georgia, 442 U.S. 95, 97, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1979), defendant sought to introduce a particularly reliable form of hearsay--a spontaneous, well-corroborated confession against penal interest with no indication of an ulterior motive. Green cites Lockett only for the relevance of the evidence. 442 U.S. at 97. For the rule that the federal Constitution overrides the state evidence code in this limited circumstance, Green relied on a noncapital case. See 442 U.S. at 97 (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).

In Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977) (plurality opinion), the high court was careful to note that Williams v. New York, supra, was distinguishable and was not being overruled. See 430 U.S. at 356. The holding of the case is narrow: "petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." 430 U.S. at 362.⁽³⁾

Evidence is inadmissible if it is obtained in violation of the right to counsel. See Satterwhite v. Texas, 486 U.S. 249, 254-255, 100 L. Ed. 2d 284, 108 S. Ct. 1792 (1988). It is also inadmissible if it is not relevant to an aggravating factor and punishes the exercise of First Amendment rights. See Dawson v. Delaware, 503 U.S. 159, 168, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992). If the state argues future dangerousness as an aggravating circumstance, it cannot prevent the defendant from rebutting the argument with the fact that he is ineligible for parole. Simmons v. South Carolina, 512 U.S. 154, 162, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994) (plurality opinion). The Simmons plurality was careful not to express an opinion on petitioner's Eighth Amendment Lockett theory. See 512 U.S. at 162 n. 4.

None of these narrow holdings overturns the general rule stated in Williams and reiterated in Romano that states retain the general authority to decide what rules of evidence will apply in the sentencing phase. The high court has repeatedly relied on the general rule of Williams. See Nichols v. United States, 511 U.S. 738, 747, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994); Witte v. United States, 515 U.S. 389, 397-398, 132 L. Ed. 2d 351, 115 S. Ct. 2199 (1995); United States v. Watts, 519 U.S. 148, 151-152, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997) (per curiam).

Only the United States Supreme Court can overrule its own precedents. Until it does, they remain binding on all other courts, state and federal. State Oil Co. v. Khan, 522 U.S. 3, 20, 139 L. Ed. 2d 199, 118 S. Ct. 275 (1997). Williams v. New York is still good law for its general rule. The state legislature may waive the rules of evidence on both sides for the penalty phase of capital cases, subject to a few narrow, specific constitutional limitations.

Appellant's main argument is to ask this Court to follow the lead of the Washington Supreme Court in State v. Bartholomew, 654 P.2d 1170 (Wash. 1982) ("Bartholomew I"). See Brief for Appellant at 524-527. The simple answer is that Bartholomew I was wrongly decided as a matter of federal constitutional law and was vacated by the United States Supreme Court for that reason. See Washington v. Bartholomew, 463 U.S. 1203, 77 L. Ed. 2d 1383, 103 S. Ct. 3530 (1983). On remand, the Washington court dove head-first into the bunker of independent state grounds to insulate its error from further high court review, see State v. Bartholomew, 683 P.2d 1079, 1085 (Wash. 1984) ("Bartholomew II"), a virtual admission that its federal constitutional analysis would not survive that scrutiny. Appellant has cited no other case, state or federal, following Bartholomew II on this point, and amicus has found none. If there were any doubt in 1984 that Bartholomew II's federal analysis was incorrect, it was eliminated by Romano, discussed above.

The Congress of the United States has twice adopted a similar rule. See 21 U.S.C. §848(j); 18 U.S.C. §3593(c). This is a powerful endorsement of the constitutionality of relaxation of the rules of evidence in the penalty phase. See United States v. Jones, 132 F.3d 232, 242 (CA5 1998), aff'd on other grounds sub nom. Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999) (upholding §3593(c)); see also Chandler v. State, 534 So.2d 701, 703 (Fla. 1988) (per curiam) (upholding similar statute); Hopkinson v. State, 664 P.2d 43, 56 (Wyo. 1983) (same).

Appellant complains that the Kansas statute lacks the explicit authorization contained in the federal statute for excluding evidence, proffered by either side, if its prejudicial effect outweighs its probative value. See Brief for Appellant at 529-530. Yet the statute is phrased in permissive terms, "may," and there is no reason to read it to abrogate this traditional authority of the trial judge. Very similar language in Florida, see Fla. Stat. §921.141(1), has long been understood to leave "wide discretion" with the trial judge. See Chandler, 534 So.2d at 703. In death penalty litigation, as in First Amendment litigation, there is a tendency for litigants to construe statutes in the most extreme terms, contrary to their own interests, in order to get courts to strike them down. Cf. Regan v. Time, Inc., 468 U.S. 641, 693, 82 L. Ed. 2d 171, 104 S. Ct. 3262 (1984) (Stevens, J, concurring in the judgment in part and dissenting in part). Courts should resist this siren song and construe statutes reasonably to uphold their constitutionality. See Jones (Nathaniel) v. United States, 526 U.S. 227, 239-240, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999).

CONCLUSION

The judgment of the district court should be affirmed.

January 19, 2000

Respectfully submitted,

Kent S. Scheidegger

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2. Rupe v. Wood, 93 F.3d 1434, 1439-1441 (9th Cir. 1996) is to the contrary. Rupe is contrary to the Supreme Court's clear language in Romano v. Oklahoma, 512 U.S. 1, 11-12, 129 L. Ed. 2d 1, 114 S. Ct. 2004 (1994) and was wrongly decided.

3. The Kansas statute incorporates the Gardner rule. See K.S.A. 21-4624(c). Any Kansas appellant with a Gardner claim can therefore make that claim under the statute; Gardner provides no basis for attacking the statute itself.