Sorola v. Texas/Dissent Brennan

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Petitioner, Joe Sorola, was indicted for capital murder under Tex.Penal Code Ann. § 19.03(a)(2) (Supp.1988-1989). At trial, the State announced in open court that it would not seek the death penalty and jury selection proceeded as if the death penalty was not at issue. As the lower court explained: "The record reflects that following the jury's decision     that [Sorola] was guilty of capital murder, the jury was sent      back to the jury room.  Outside the presence of the jury, the      trial court, the State, and [Sorola] agreed that because the      State had waived the death penalty in this case, the proper      procedure was to have the court assess punishment.  The trial      court then found [Sorola] guilty of capital murder and      sentenced him to life imprisonment in the Texas Department of      Corrections.  Thereafter without objection, the court      informed the parties he was going to release the jury panel." 674 S.W.2d 809, 810 (Tex.App.1984).

Petitioner appealed his conviction and sentence. The Texas Court of Criminal Appeals found that under state law, the State cannot waive its right to seek the death penalty, and a defendant cannot waive the right to a jury's assessment of punishment. 693 S.W.2d 417, 419 (1985). Upon remand for a new trial, petitioner filed an application for writ of habeas corpus arguing that the Double Jeopardy Clause barred the State from seeking the death penalty if he were once again found guilty of capital murder on retrial. The Texas courts rejected his claim and he now seeks certiorari. 769 S.W.2d 920, 926-928 (Tex.Crim.App.1989). Because I believe the Double Jeopardy Clause bars the State from subjecting petitioner to the death penalty on retrial, I would grant the petition and reverse the Texas Court of Criminal Appeals.

* In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), this Court held that the Double Jeopardy Clause prohibits the State from subjecting a defendant who received a life sentence in his first sentencing proceeding to the possibility of a death sentence on retrial after reversal of his conviction or sentence. The Court concluded that because the capital sentencing proceeding "in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence," id., at 438, 101 S.Ct., at 1858, the jury's conclusion that the evidence did not support the death penalty constituted an acquittal of death. Id., at 445, 101 S.Ct., at 1861. In Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984), the Court made clear that the fact that the acquittal resulted from an error of law did not deprive it of finality under the Double Jeopardy Clause.

There should be no doubt that Bullington and Rumsey apply to capital sentencing determinations made by Texas juries. Thus if a Texas jury had determined that petitioner deserved a life sentence, this case would require a straight-forward application of Bullington and Rumsey. In this case, the life sentence was imposed by the trial judge after the State waived the right to seek the death penalty. But this difference is of no significance for double jeopardy purposes because the form of the judicial action does not determine whether it constitutes an acquittal. Rather, the determination turns on "whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). In the context of capital sentencing, "Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has 'decided that the prosecution has not proved its case' that the death penalty is appropriate." Poland v. Arizona, 476 U.S. 147, 155, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123 (1986) (emphasis in original).

The judge's imposition of a life sentence cannot be characterized as anything other than an acquittal of death. The trial judge imposed a sentence of life imprisonment because the State waived its right to seek the death penalty. Thus, there was absolutely no evidence in the record to support the death penalty. That the judge's decision was based on the complete lack of evidence rather than the existence of insufficient evidence should strengthen petitioner's claim to double jeopardy protection. A core purpose of the Double Jeopardy Clause is to ensure that the state does not get a second opportunity to prove its case after failing to do so initially. This principle is equally applicable in the capital sentencing context: "[h]aving received 'one fair opportunity to offer whatever proof it could assemble,' the State is not entitled to another." Bullington, 451 U.S., at 446, 101 S.Ct., at 1862 (quoting Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)).

To be sure, Bullington and Rumsey relied on the fact that the sentencer had determined after a trial-like hearing that the evidence was insufficient to impose the death penalty and in this case there was no sentencing hearing. But the significance of the presence of a trial-like proceeding was that it distinguished a capital case from the noncapital sentencing context, where the imposition of a particular sentence is not an implied acquittal of a greater sentence. See Bullington, 451 U.S., at 439-441, 101 S.Ct., at 1858-1860. The Court justified an exception to the general rule because of the unique features of the capital sentencing scheme where the state bears the burden of proving, often beyond a reasonable doubt, that death is the appropriate penalty. Ibid. As noted, the Texas capital punishment statute requires the State to prove certain facts beyond a reasonable doubt. See Tex.Code Crim.Proc.Ann., Art. 37.071 (Vernon Supp.1988-1989). Thus, the prosecutor's decision to waive the death penalty makes this case more like Bullington than a decision to seek a specific sentence in a noncapital sentencing context; it reflects the prosecutor's conclusion that there was insufficient evidence to justify the death penalty. See Bullington 451 U.S., at 441, 101 S.Ct., at 1859 (use of beyond-reasonable-doubt standard reflects society's belief that defendant's interests are so great that State should bear the risk of error). The fact that the prosecutor responsibly acknowledges the weakness of the case should not lessen the effect of the trial judge's imposition of a life sentence. A contrary conclusion would mean that the Double Jeopardy Clause protects the defendant only if the prosecutor, knowing that the case is weak, actually presents it to the jury and it ratifies that initial judgment by rejecting the death penalty. We do not have such a rule in the guilt phase. See United States v. Martin Linen Supply Co., 430 U.S., at 574, 97 S.Ct., at 1356 (no difference for double jeopardy purposes between entry of judgment of acquittal before or after submission to jury); Smalis v. Pennsylvania, 476 U.S. 140, 144-145, 106 S.Ct. 1745, 1748-1749, 90 L.Ed.2d 116 (1986) (granting demurrer at end of state's case constitutes acquittal even if based on erroneous legal ruling). I see no reason to require such a rule at the sentencing phase.

Finally, the fact that the trial judge did not have the authority under state law to allow the State to waive the death penalty is irrelevant for purposes of the Double Jeopardy Clause. We have consistently held that "the fact that 'the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles' . . . affects the accuracy of that determination, but it does not alter its essential character." United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (quoting id., at 106, 98 S.Ct., at 2201 (BRENNAN, J., dissenting)); see also Rumsey, 467 U.S., at 211, 104 S.Ct., at 2310. Moreover, the trial judge's actions in this case are not distinguishable from those in Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam ). In that case, the District Court ordered the jury to enter judgments of acquittal as to all the defendants based on insufficient evidence and prosecutorial misconduct. The Court held that even if the trial judge's actions were improper, the protection of the Double Jeopardy Clause attached to the acquittal. Id., at 143, 82 S.Ct., at 672. If the judgment in Fong Foo constituted an acquittal, the life sentence in this case must constitute an acquittal of death.

Even if I did not conclude that the Double Jeopardy Clause prevents the imposition of the death penalty on resentencing, my belief that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (BRENNAN, J., dissenting), would compel me to vacate the judgment below and remand for resentencing on the condition that the State be precluded from imposing the death sentence.