McGautha v. California (402 U.S. 183)/Dissent Douglas

by William O. Douglas

United States Supreme Court

402 U.S. 183

McGautha  v.  California

 Argued: Nov. 9, 1970. --- Decided: May 3, 1971

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting in No. 204.

In my view the unitary trial which Ohio provides in first-degree murder cases does not satisfy the requirements of procedural Due Process under the Fourteenth Amendment.

Ohio makes first-degree murder punishable by death 'unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life.' Ohio Rev.Code Ann. § 2901.01. Petitioner was indicted and tried for murder in the first degree for the killing of his wife. His pleas were 'not guilty' and 'not guilty by reason of insanity.'

The court, after a psychiatric examination, concluded that petitioner was sane and set the case for trial before a jury. The issues of guilt, punishment, and insanity were simultaneously tried and submitted to the jury.

Petitioner did not testify at the trial. But a psychiatrist testified on his behalf, offering medical records of his case from two state hospitals. His mother testified concerning his childhood, education, and background.

On the issue of punishment the jury was charged:

'You must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings, and to render your verdict accordingly. In fulfilling your duty, your efforts must be to arrive at a just verdict.

'Consider all the evidence and make your finding with intelligence and impartiality, and without bias, sympathy, or prejudice, so that the State of Ohio and the defendant will feel that their case was fairly and impartially tried. * * *' (Emphasis added.)

He was found guilty of murder in the first degree without a recommendation of mercy and the court sentenced him to death. The Supreme Court of Ohio sustained the single-verdict procedure and the absolute discretion of the jury in the matter of punishment. 18 Ohio St.2d 182, 248 N.E.2d 614.

On the issue of guilt the State was required to produce evidence to establish it. On the issue of insanity the burden was on petitioner to prove it by a preponderance of the evidence, State v. Austin, 71 Ohio St. 317, 73 N.E. 218. On the issue of mercy, viz., life imprisonment rather than death, petitioner under Ohio law was banned from offering any specific evidence directed only toward a claim of mercy. Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214.

If a defendant wishes to testify in support of the defense of insanity or in mitigation of what he is charged with doing, he can do so only if he surrenders his right to be free from self-incrimination. Once he takes the stand he can be cross-examined not only as respects the crime charged but also on other misdeeds. In Ohio impeachment covers a wide range of subjects: prior convictions for felonies and statutory misdemeanors, ^[1] pending indictments, ^[2] prior convictions in military service, and dishonorable discharges. ^[3] Once he testifies he can be recalled for cross-examination in the State's case in rebuttal. ^[4]

While the defendant in Ohio has the right of allocution, that right even in first-degree murder cases occurs only after the jury's verdict has been rendered. Unless there is prejudicial error vitiating the conviction or insufficient evidence ^[5] to convict, the jury's verdict stands and the judge must enter the verdict. Allocution, though mandatory, ^[6] is thus a ritual only. ^[7]

If the right to be heard were to be meaningful, it would have to accrue before sentencing; yet, except for allocution, any attempt on the part of the accused during the trial to say why the judgment of death should not be pronounced against him entails a surrender of his right against self-incrimination. It therefore seems plain that the singleverdict procedure is a burden on the exercise of the right to be free of compulsion as respects self-incrimination. For he can testify on the issue of insanity or on other matters in extenuation of the crime charged only at the price of surrendering the protection of the Self-Incrimination Clause of the Fifth Amendment made applicable to the States by the Fourteenth.

On the question of insanity and punishment the accused should be under no restraints when it comes to putting before the court and the jury all the relevant facts. Yet he cannot have that freedom where these issues are tied to the question of guilt. For on that issue he often dare not speak lest he in substance be tried not for this particular offense but for all the sins he ever committed.

Petitioner also had to surrender much of his right to a fair hearing on the issue of punishment to assert his defense of insanity. To support his insanity plea he had to submit his hospital records, both of which contained information about his convictions and imprisonment for prior crimes and about his use of drugs as well.

Of course, a defendant's character witnesses can be examined respecting the defendant's other crimes. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. But that is an effort to weigh the credibility of the proffered testimony as to character. 'Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.' Id., at 479, 69 S.Ct., at 220. It is a far cry, however, to let hospital records tendered on an issue of insanity color a jury's judgment on the wholly different issue of guilt.

The greatest comfort the majority has is this Court's recent decision in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, holding that a two-stage trial is not required when a State under a habitual-offender statute seeks to introduce on the issue of guilt in a unitary trial evidence of a defendant's prior convictions. Yet Spencer was a five-to-four decision which meant it bearly passed muster as a constitutional procedure. The dissent of Mr. Chief Justice Warren, in which three other Justices joined, will have, I think, endurance beyond the majority view.

That dissent, id., at 569 at seq., 87 S.Ct., at 656, points out the prejudice to an accused if, prior to a finding of guilt, earlier convictions are admissible in evidence. There is mounting evidence shown in court decisions (id., at 585, 87 S.Ct., at 664 665) and in modern state procedures that that practice does not comport with fairness implicit in due process. Mr. Chief Justice Warren said: 'In England, the prejudice which results from proof of prior crimes before a finding of guilt has been recognized for more than a century, and the rule has been that a finding as to prior crimes is made in a separate hearing after the finding of guilt.' Id., at 586, 87 S.Ct., at 665.

We should not square with due process the practice which receives impetus in Ohio where reports on a man's insanity contain references to his criminal record which most assuredly prejudice his trial on the issue of guilt. ^[8]

We have already traveled part of the distance required for reversal in the present case. In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, we held that whether on controverted facts a confession was voluntary must be tried by a State in a separate proceeding. We pointed out the vice in allowing the jury that determines guilt also to determine whether the confession was voluntary. We said:

'It is difficult, if not impossible, to prove that a confession which a jury was true. But the New York procedure influenced the verdict or that its finding of voluntariness, if this is the course it took, was affected by the other evidence showing the confession was true. But the New York procedoure poses substantial threats to a defendant's constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined.' Id., at 389, 84 S.Ct., at 1787.

Yet the risk of prejudice in Jackson v. Denno seems minor compared with the risk of prejudice in a unitary trial where the issues of guilt, insanity, and punsihment are combined, submitted to one jury with evidence of prior convictions coming in under cover of hospital records pertinent to insanity, and certainly likely to be prejudicial on the issue of guilt. I see no way to make this unitary trial fair in the sense of procedural due process unless the issue of insanity is segregated and tried to a separate jury.

As noted, evidence as to whether the jury should show mercy to him is excluded from consideration, and the jury is admonished not to show any 'sympathy' to the accused.

Under Ohio law the determination of whether to grant or withhold mercy is exclusively for the jury and cannot be reviewed by either the trial court ^[9] or an appellate court. ^[10] The first time that specific mention of mercy to the jury is permissible is during closing argument where the defendant is permitted 'to argue to the jury the desirability, advisability or wisdom of recommending mercy.' ^[11] While there was not a specific instruction on mercy in the instant case (beyond the instruction to make findings without bias, sympathy, or prejudice), the Ohio courts have approved instructions 'to consider and determine whether or not in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you should or should not make such recommendation (of mercy).' Howell v. State, 102 Ohio St. 411, 413, 131 N.W. 706-707. This instruction means that while the jury may not consider general sociological or environmental data, it may consider any such factors which have specifically been admitted into evidence in the case for other purposes. State v. Caldwell, 135 Ohio St. 424, 21 N.W.2d 343. ^[12]

Ashbrook v. State, supra, holds that evidence 'directed specifically toward a claim for mercy' cannot be introduced. Yet Howell, Caldwell, and Ashbrook show that once evidence is admitted for other purposes the jury is free to consider it for any purpose. In Caldwell the objection of the court was to going outside the record for evidence in considering sociological and environmental matters.

This background evidence often comes in through character witnesses. In one case a defendant presented 12 witnesses who testified to his reputation as a peaceful and law-abiding citizen of good character. ^[13] And even in the instant case petitioner's mother testified concerning his childhood, education, and background.

But the right of allocution is at best partial and incomplete when the accused himself is barred from testifying on the question of sentencing, and when the only evidence admissible comes from other people or is introduced for different and more limited purposes.

The line between the legislative function and the judicial function is clear. The State can make criminal such conduct as it pleases, save as it is limited by the Constitution itself, as for example by the ban on ex post facto laws in Art. I, § 10, or by the Fourteenth Amendment, as where religious exercises or freedom of speech or of the press is involved. It can punish such conduct by such penalties as it chooses, save as its sanctions run afoul of the ban in Art. I, § 10, against bills of attainder or the prohibition against cruel and unusual punishments contained in the Eighth Amendment. The Court is not concerned with the wisdom of state policies, only with the constitutional barriers to state action. Procedural due process ^[14] is one of those barriers, as revealed over and again in our decisions. Some of its requirements are explicit in the Bill of Rights-a speedy trial, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; a trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; the right to confrontation, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923-all as made applicable to the States by reason of the Fourteenth Amendment.

Other requirements of procedural due process are only implied, not expressed; their inclusion or exclusion turns on the basic question of fairness. In that category are notice and the right to be heard. Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255; Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349. It is a phase of that right to be heard that looms large here.

Crampton had the constitutional right as a matter of procedural due process to be heard on the issue of punishment. We emphasized in Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, how the right to be heard through counsel might be crucial to avoid sentencing on a foundation 'extensively and materially false.' But the right to be heard is broader than that; it includes the right to speak for one's self. As was said in Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (opinion of Frankfurter, J.):

'We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.'

The right to be heard, explicit in Rule 32(a) of the Federal Rules of Criminal Procedure, may at times be denied, absent a showing of 'aggravating circumstances' or of a claim that the defendant would have anything to say. See Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417. But where the opportunity to be heard on the sentence is denied both counsel and the defendant, the denial reaches constitutional proportions. See United States v. Johnson, 2 Cir., 315 F.2d 714, 717.

Whether the voice speaking for the defendant be counsel's voice or the defendant's, the right to be heard is often vital at the sentencing stage before the law decides the punishment of the person found guilty. Mempa v. Rhay, 389 U.S. 128, 135, 88 S.Ct. 254, 257, 19 L.Ed.2d 336. The hearing, whether on guilt or punishment, is governed by the requirements of due process. We said in Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326:

'Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.'

If one insists, as in Hill, that there be 'aggravating circumstances' to raise this right to be heard to a constitutional level, all must agree that no one can ever show more 'aggravating' circumstances that the fact that he stands on the verge of receiving the death sentence.

At least then, the right of allocution becomes a constitutional right-the right to speak to the issues touching on sentencing before one's fate is sealed. Yet where the trial is a unitary one, the right of allocution even in a capital case is theoretical, not real, as the Ohio procedure demonstrates. Petitioner also had the protection of the Self-Incrimination Clause of the Fifth Amendment. To obtain the benefit of the former he would have to surrender the latter. Mr. Justice Harlan, speaking for the Court, said in Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247: '(W)e find it intolerable that one constitutional right should have to be surrendered in order to assert another.'

We made that statement in the context of a case where an accused testified on a motion to suppress evidence in order to protect his Fourth Amendment rights but later discovered that the testimony would be used by the prosecution as 'a strong piece of evidence against him.' Id., at 391, 88 S.Ct., at 975. We held that the protection of his Fourth Amendment rights did not warrant surrender or dilution of his Fifth Amendment rights.

In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 we held unenforceable a federal statute which made the death penalty applicable only to those who contested their guilt before a jury. In that case the 'undeniable tension' was between Fifth Amendment rights and Sixth Amendment rights. Mr. Justice Stewart speaking for the Court said: 'The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.' Id., at 581, 88 S.Ct., at 1216.

That 'undeniable tension' between two constitutional rights, which led to that result in Jackson and to a reversal in Simmons, should lead to a reversal here. For the unitary trial or single-verdict trial in practical effect allows the right to be heard on the issue of punishment only by surrendering the protection of the Self-Incrimination Clause of the Fifth Amendment.

The Court of Appeals for the Second Circuit indicated in United States v. Branker, 418 F.2d 378, 380, that Simmons prevented an accused's testimony at a hearing on his application to proceed in forma pauperis and for appointment of counsel to be used by the prosecution as part of its direct case against him:

'The defendant should enjoy his constitutional rights to counsel and to appeal and the means of supporting his assertion of these rights by his own testimony without running the risk that thereby he may be incriminating himself with respect to the charges pending against him.'

The same result was reached by the Court of Appeals for the District of Columbia Circuit in Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653, which held that a parolee who testifies on a hearing in revocation of his parole may give testimony that may not be used in a subsequent criminal trial in violation of the Self-Incrimination Clause of the Fifth Amendment:

'If a parolee is not given the full and free ability to testify in his own behalf and present his case against revocation, his right to a hearing before the Board would be meaningless. Furthermore, his Fifth Amendment rights must not be conditioned 'by the exaction of a price." Id., at 104, 402 F.2d, at 655.

The words 'by the exaction of a price' are from Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 where we held that the threat of discharge of a policeman cannot be used to secure incriminatory evidence against him. We said:

'There are rights of constitutional statute whose exercise a State may not condition by the exaction of a price. Engaging in interstate commerce is one. * * * Resort to the federal courts in diversity of citizenship cases is another. * * * Assertion of a First Amendment right is still another. * * * The imposition of a burden on the exercise of a Twenty-fourth Amendment right is also banned. * * * We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.' Ibid.

Melson v. Sard involved protection of a statutory right to a hearing. Garrity involved only employment rights. In the same category is Thomas v. United States, 368 F.2d 941, where the Court of Appeals for the Fifth Circuit held a convicted man may not receive a harsher penalty than he would have received if he had waived his Fifth Amendment right. And the Court of Appeals for the District of Columbia Circuit expressed the same view in Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264.

If exaction of a constitutional right may not be made for assertion of a statutory right (such as the right to a hearing on parole revocation or the right to appeal), it follows a fortiori that the constitutional right to be free from the compulsion of self-incrimination may not be exacted as a condition to the constitutional right to be heard on the issue of punishment.

The truth is, as Mr. Justice Brennan points out in his dissent in these cases, that the wooden position of the Court, reflected in today's decision, cannot be reconciled with the evolving gloss of civilized standards which this Court, long before the time of those who now sit here, has been reading into the protective procedural due process safeguards of the Bill of Rights. It is as though a dam had suddenly been placed across the stream of the law on procedural due process, a stream which has grown larger with the passing years.

The Court has history on its side-but history alone. Though nations have been killing men for centuries, felony crimes increase. The vestiges of law enshrined today have roots in barbaric procedures. Barbaric procedures such as ordeal by battle that became imbedded in the law were difficult to dislodge. ^[15] Though torture was used to exact confessions, felonies mounted. Once it was thought that 'sanity' was determined by ascertaining whether a person knew the difference between 'right' and 'wrong.' Once it was a capital offense to steal from the person something 'above the value of a shilling.' ^[16]

Insight and understanding have increased with the years, though the springs of crime remain in large part unknown. But our own Federal Bureau of Investigation teaches that brains, not muscle, solve crimes. Coerced confessions are not only offensive to civilized standards but not responsive to the modern needs of criminal investigation. Psychiatry has shown that blind faith in rightness and wrongness is no reliable measure of human responsibility. The convergence of new technology for criminal investigation and of new insight into mental disorders has made many ancient legal procedures seem utterly unfair.

Who today would say it was not 'cruel and unusual punishment' within the meaning of the Eighth Amendment to impose the death sentence on a man who stole a loaf of bread, or in modern parlance, a sheet of food stamps? Who today would say that trial by battle satisfies the requirements of procedural due process?

We need not read procedural due process as designed to satisfy man's deepseated sadistic instincts. We need not in deference to those sadistic instincts say we are bound by history from defining procedural due process so as to deny men fair trials. Yet that is what the Court does today. The whole evolution of procedural due process has been in the direction of insisting on fair procedures. As the Court said in Hebert v. Louisiana, 272 U.S. 312, 316-317, 47 S.Ct. 103, 104, 71 L.Ed. 270:

'(S)tate action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as 'law of the land.' Those principles are applicable alike in all the States and do not depend upon or vary with local legislation.'

One basic application of that test was made in Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 266, 67 L.Ed. 543:

'(I)f the case is that the whole proceeding is a mask-that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.'

To allow a defendant in a state trial to be convicted by confessions 'extorted by officers of the State by brutality and violence' was said by Mr. Chief Justice Hughes to be 'revolting to the sense of justice' and 'a clear denial of due process.' Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682.

In 1884 the Court in Hurtado v. California, 110 U.S. 516, 529, 4 S.Ct. 111, 28 L.Ed. 232, said that due process was not frozen in content as of one point of time: '(T)o hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.'

The Court went on to point out that though due process has its roots in Magna Carta, the latter contained words that changed with meaning as the centuries passed. Ibid. The Court noted that '(t)his flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.' Id., at 530, 4 S.Ct., at 118. And it went on to say that the generalities of our Constitution should be treated in the same way:

'The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues * * *. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.' Id., at 530-531, 4 S.Ct., at 118.

The Court pointed out that in England Magna Carta served merely as a restraint on the executive and as a guide to the House of Commons, the keeper of the Constitution. In this Nation, however, the Constitution serves a different function.

'It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.' Id., at 532, 4 S.Ct., at 119.

In more recent times the issue was forcefully stated by Mr. Justice Black in Chambers v. Florida, 309 U.S. 227, 236-237, 60 S.Ct. 472, 477, 84 L.Ed. 716:

'Tyrannical governments had immemorially utilized dictatorial criminal procedure and punishment to make scapegoats of the weak, or of helpless political, religious, or racial minorities and those who differed, who would not conform and who resisted tyranny. (A) liberty loving people won the principle that criminal punishments could not be inflicted save for that which proper legislative action had already by 'the law of the land' forbidden when done. But even more was needed. From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the 'law of the land' evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve 'the blessings of liberty,' wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed.'

That is all that is involved in this case. It is a mystery how in this day and age a unitary trial that requires an accused to give up one constitutional guarantee to save another constitutional guarantee can be brought within the rubric of procedural due process. It can be done only by a tour de force by a majority that stops the growth and evolution of procedural due process at a wholly arbitrary line or harkens to the passions of men. What a great regression it is when the end result is to approve a procedure that makes the killing of people charged with crime turn on the whim or caprice of one man or of 12!

By standards of a fair trial, the resolution of the question of punishment requires rules and procedures different from those pertaining to guilt. Mr. Justice Butler, speaking for the Court in Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43, said:

'For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.'

Justice ^[17]-in the sense of procedural due process-is denied where a State makes inadmissible evidence designed to educate the jury on the character and propensities of the accused. Ohio does just that.

We noted in Williams v. New York, 337 U.S. 241, 249-252, 69 S.Ct. 1079, 1084-1085, 93 L.Ed. 1337, that the States have leeway in making available to judges probation reports 'to guide them in the intelligent imposition of sentences' without submitting those reports to open court testimony with cross-examination. We said, 'The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.' Id., at 251, 69 S.Ct., at 1085. But so far as I can ascertain we never have intimated that a State can, consistently with procedural due process, close the door to evidence relevant to the 'intelligent imposition of sentences' either by judges or by juries. Cf. Specht v. Patterson, supra, 386 U.S. 605, at 608-609, 87 S.Ct. 1209, at 1211-1212.

It is indeed too late to say that, absent a constitutional amendment, procedural due process has no applicability to the determination of the sentence which is imposed. In Townsend v. Burke, supra, 334 U.S., at 741, 68 S.Ct., at 1255, we held a state sentence imposed 'on the basis of assumptions' concerning the defendant's criminal record 'which were materially untrue' was 'inconsistent with due process of law' whether the result was caused by 'carelessness or design.' A fortiori it would seem to follow that a procedure, which is designed to bar an opportunity to present evidence showing why 'mercy' should be extended to an accused in a death case, lacks that fairness which is implicit in due process.

The unitary trial is certainly not 'mercy' oriented. That is, however, not its defect. It has a constitutional infirmity because it is not neutral on the awesome issue of capital punishment. The rules are stacked in favor of death. It is one thing if the legislature decides that the death penalty attaches to defined crimes. It is quite another to leave to judge or jury the discretion to sentence an accused to death or to show mercy under procedures that make the trial death oriented. Then the law becomes a mere pretense, lacking the procedural integrity that would likely result in a fair resolution of the issues. In Ohio, the deficiency in the procedure is compounded by the unreviewability of the failure to grant mercy. ^[18]

We stated in Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776, that 'a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.' In that case veniremen had been excluded from a jury for cause 'simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' Id., at 522, 88 S.Ct., at 1777. We concluded that no defendant 'can constitutionally be put to death at the hands of a tribunal so selected.' Id., at 522-523, 88 S.Ct., at 1777.

The tribunal selected by Ohio to choose between death and life imprisonment in first-degree murder cases is not palpably 'organized to return a verdict of death' in the Witherspoon sense. But the rules governing and restricting its administration of the unitary trial system, place the weights on the side of man's sadistic drive. The exclusion of evidence relevant to the issue of 'mercy' is conspicuous proof of that lopsided procedure; and the hazards to an accused resulting from mingling the issues of guilt, insanity, and punishment in one unitary proceeding are multiplied. Whether this procedure would satisfy due process when dealing with lesser offenses may be debated. But with all deference I see no grounds for debate where the stake is life itself.

I would reverse this judgment of conviction.

Notes

1. State v. Murdock, 172 Ohio St. 221, 174 N.E.2d 543. And see State v. Pollard, 21 Ohio St.2d 171, 256 N.E.2d 620.
2. State v. Hector, 19 Ohio St.2d 167, 249 N.E.2d 912.
3. State v. Williams, 85 Ohio App. 236, 88 N.E.2d 420. Merely taking the stand puts credibility in issue. Hamilton v. State, 39 Ohio App. 153, 177 N.E. 221.
4. Johns v. State, 42 Ohio App. 412, 182 N.E. 356.
5. State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868; Hoppe v. State, 29 Ohio App. 467, 163 N.E. 715.
6. Silsby v. State, 119 Ohio St. 314, 164 N.E. 232.
7. 'At common law the defendant in a felony case had a right, called 'allocution,' to be asked formally whether he had 'any thing to offer why judgment should not be awarded against him.' * * * (s)ince
8. As Mr. Chief Justice Warren said:
9. Turner v. State, 21 Ohio Law Abst. 276; State v. Klumpp, Ohio App., 15 Ohio Op.2d 461, 175 N.E.2d 767.
10. State v. Ames, Ohio App., 50 Ohio Law Abst. 311, 80 N.E.2d 168. The result is the same if the sentencing decision is based on a guilty plea or a jury waiver. State v. Lucear, 93 Ohio App. 281, 109 N.E.2d 39; State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794.
11. Shelton v. State, 102 Ohio St. 376, 131 N.E. 704 (syllabus).
12. In Caldwell the jury was initially instructed: '(W)hether you recommend or withhold mercy is a matter solely within your discretion, calling for the exercise of your very best and most profound judgment, not motivated by considerations of sympathy or as a means of escaping a hard or disagreeable duty, but must be considered by you in the light of all the circumstances of the case with respect to the evidence submitted to you and the other circumstances surrounding this defendant.' Following some deliberation the jury returned for special instructions and the following occurred:
13. State v. Lucear, supra, n. 10.
14. There have been recurring demands that the Due Process Clause be abolished. See Clark, Some Recent Proposals for Constitutional Amendment, 12 Wis.L.Rev. 313, 324-326 (1937). Others have suggested that due process-apart from the specifics in the Bill of Rights-should mean only such notice, procedures, hearings, or trials as are prescribed by Congress or the States. See Burns, The Death of E Pluribus Unum, 19 DePaul L.Rev. 651, 682 (1970).
15. See 4 W. Blackstone, Commentaries *347-349. Ordeal by battle was finally abolished in 1819 in England. 59 Geo. 3, c. 46.
16. 1 J. Stephen, History of the Criminal Law of England 467 (1883).
17. It is commonly overlooked that justice is one of the goals of our people as expressed in the Preamble of the Constitution:
18. Hoppe v. State, 29 Ohio App. 467, 163 N.E. 715.