Several weeks later, McCleskey was arrested in connection with an unrelated offense. I agree with this statement of McCleskey's case. 476 U.S. at 92. Opinion for McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 31. We have observed that, under some circumstances, proof of discriminatory impact. In Regents of the University of California v. Bakke, 438 U.S. 265, 295 (1978) (opinion of POWELL, J. 36. Cases in the eighth category feature aggravating factors so extreme that the jury imposed the death penalty in 88% of the 58 cases with these factors in the same period. In his dissent, JUSTICE BLACKMUN misreads this statement. TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. Id. 3920 (1987) (emphasis added). The McCleskey decision reached far beyond the confines of Georgias capital punishment system and Warren McCleskeys appeal. Pp. [n8][p292] As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. See 428 U.S. at 163-164. LDF introduced a landmark study by Professor David Baldus, who examined over 2,000 Georgia murder cases. You do not currently have access to this chapter. Do not use an Oxford Academic personal account. In fairness, the Court's fear that McCleskey's claim is an invitation to descend a slippery slope also rests on the realization that any humanly imposed system of penalties will exhibit some imperfection. Thus, it is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice. 2017-78; GWU Legal Studies Research Paper No. They may define crimes and prescribe punishments. 1, Divs. As we said in Batson, however, such features do not justify imposing a "crippling burden of proof," id. These include: (i) a bifurcated sentencing proceeding; (ii) the threshold requirement of one or more aggravating circumstances; and (iii) mandatory State Supreme Court review. Nor do I review each step in the process which McCleskey challenges. Id. Gregg v. Georgia, 428 U.S. 153, 206, 207. A borderline area would continue to exist and vary in its boundaries. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Judge. Our quality of construction reflects decades of industry experience and attention to detail that only knowledge and skill can display. Maj. Gen. Wager Swayne) ("I have not known, after six months' residence at the capital of the State, a single instance of a white man's being convicted and hung or sent to the penitentiary for crime against a negro, while many cases of crime warranting such punishment have been reported to me"); id. McCleskey v. Zant, 454 U.S. 1093 (1981). B (PC80-1-B), reprinted in 1986 Statistical Abstract of the United States 29 (dividing United States population by "race and Spanish origin" into the following groups: White, Black, American Indian, Chinese, Filipino, Japanese, Korean, Vietnamese, Spanish origin, and all other races); U.S. Bureau of the Census, 1980 Census of the Population, Supplementary Report, series PC80-S1-10, reprinted in 1986 Statistical Abstract of the United States 34 (listing 44 ancestry groups and noting that many individuals reported themselves to belong to multiple ancestry groups). 17-10-30(b)(7) (1982), which is reprinted in n. 3, supra. . The Court's decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Robinson v. California, 370 U.S. 660, 667 (1962). Justice Powell later admitted to his biographer that McCleskey was the one case in which, if given the chance, he would change his vote. The Court concludes that "legitimate" explanations outweigh McCleskey's claim that his death sentence reflected a constitutionally impermissible risk of racial discrimination. In 2017, he accused lawyers representing a child sex grooming gang from Rochdale seeking to avoid deportation of "shameful behaviour". JUSTICE STEVENS, who would not overrule Gregg, suggests in his dissent that the infirmities alleged by McCleskey could be remedied by narrowing the class of death-eligible defendants to categories identified by the Baldus study where. Post at 367. The Court treats the case as if it is limited to challenges to the actions of two specific decisionmaking bodies -- the petit jury and the state legislature. In the cases decided after Gregg, the Court has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. [S]ometimes it is not known who the perpetrators are; but when that is known, no action is taken against them. Exh. The Georgia Code has been revised and renumbered since McCleskey's trial. In Gomillion, a state legislature violated the Fifteenth Amendment by altering the boundaries of a particular city "from a square to an uncouth twenty-eight-sided figure." She earned her Juris Doctor from the University of Texas School of Law in 2010. Gregg v. Georgia, 428 U.S. at 199, n. 50. was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; or. Any mode for determining guilt or punishment has its weaknesses and the potential for misuse. Coker v. Georgia, 433 U.S. 584 (1977). "[C]ontrolling considerations of . [n10] A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect" on him. is a vital principle, underlying the whole administration of criminal justice, Ex parte Milligan, 4 Wall. There perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required. These general assertions by state officials that they did not discriminate or that they properly performed their official duties, however, cannot meet the State's burden of rebuttal of the prima facie case. 59, 60. . It is clear that the Court regarded the opportunity for the operation of racial prejudice a particularly troublesome aspect of the unbounded discretion afforded by the Georgia sentencing scheme. See Skipper v. South Carolina, 476 U.S. 1 (1986). Thus, our constitutional decisions have been informed by "contemporary values concerning the infliction of a challenged sanction," Gregg v. Georgia, 428 U.S. at 173. Once a jury identifies one aggravating factor, it has complete discretion in choosing life or death, and need not articulate its basis for selecting life imprisonment. Rev. Deposition 60. If your institution is not listed or you cannot sign in to your institutions website, please contact your librarian or administrator. The attorneys were not required to record why they sought an indictment for murder as opposed to a lesser charge, id. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case. insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis. The only guidance given was "on-the-job training." Although the Court states that it assumes the validity of the Baldus study for purposes of its analysis, because of its detailed discussion of the District Court's reasons for rejecting its validity, I am compelled to record my disagreement with the District Court's reasoning. where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. McCleskey Mausoleum was founded in 1961 by Sam McCleskey. [n1] As we said in Gregg v. Georgia, 428 U.S. at 200, "the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today)": a constitutional violation is established if a plaintiff demonstrates a "pattern of arbitrary and capricious sentencing." at 13, 24-25, 37-38. Cf. He does not, however, expressly call for the overruling of any prior decision. Gregg v. Georgia, 428 U.S. at 187. STEVENS, J., filed a dissenting opinion in which BLACKMUN, J., joined, post, p. 366. Whitus v. Georgia, 385 U.S. 545, 550 (1967). . Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit. Of course, "the power to be lenient [also] is the power to discriminate," K. Davis, Discretionary Justice 170 (1973), but a capital punishment system that did not allow for discretionary acts of leniency "would be totally alien to our notions of criminal justice." His claim easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were [p299] legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment, see Gregg v. Georgia, supra, at 183-187 (joint opinion of Stewart, POWELL, and STEVENS, JJ. As the Court concedes, discretionary authority can be discriminatory authority. This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter [p283] into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment. The researchers could not discover whether penalty trials were held in many of the cases, thus undercutting the value of the study's statistics as to prosecutorial decisions. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. Other protections apply to the trial and jury deliberation process. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. As to community values and the constitutionality of capital punishment in general, we have previously noted, n. 23, supra, that the elected representatives of the people in 37 States and the Congress have enacted capital punishment statutes, most of which have been enacted or amended to conform generally to the Gregg standards, and that 33 States have imposed death sentences thereunder. Society member access to a journal is achieved in one of the following ways: Many societies offer single sign-on between the society website and Oxford Academic. Moreover, the sophistication of McCleskey's evidence permits consideration of the existence of racial discrimination at various decision points in the process, not merely at the jury decision. See Castaneda v. Partida, 430 U.S. at 494, n. 13. Second, McCleskey's arguments are best presented to the legislative bodies. 1970), former American NFL football defensive back who played from 1993 to 2000. See id. The Baldus study does not demonstrate that the Georgia capital sentencing system violates the Eighth Amendment. Finally, in a capital sentencing hearing, a defendant convicted of an interracial murder is entitled to such questioning without regard to the circumstances of the particular case. 56. the jury does not often consciously and explicitly yield to sentiment in the teeth of the law . recommends the death sentence in its verdict, the court shall not sentence the defendant to death." As JUSTICE WHITE stated for the plurality in Turner v. Murray, I find. It flagrantly violates the Court's prior "insistence that capital punishment be [p367] imposed fairly, and with reasonable consistency, or not at all." Id. JUSTICE STEVENS points out that the evidence presented in this case indicates that, in extremely aggravated murders, the risk of discriminatory enforcement of the death penalty is minimized. To aid the court's review, the trial judge answers a questionnaire about the trial, including detailed questions as to "the quality of the defendant's representation [and] whether race played a role in the trial." Try it out for free. Cf. 2023 BBC. This chapter recounts how death penalty lawyers attempted to raise constitutional challenges to capital punishment based upon racial discrimination. In Godfrey, for instance, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudice [p324] or other impermissible influences might have infected the sentencing decision. Such a disparity is an additional reason for tolerating scant arbitrariness in capital sentencing. Save Settings. The Court today sanctions the execution of a man despite his presentation of evidence that establishes a constitutionally intolerable level of racially based discrimination leading to the imposition of his death sentence. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account. Id. that we look beyond the face of the statute . Of these men, 58 were black and 4 were white. See Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978). Proin porta tristique dui eget pharetra. Yet to reject McCleskey's powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination, considerations which may [p340] properly be taken into account in determining whether various punishments are "cruel and unusual." [n5]. Cases in the first two categories are those that feature aggravating factors so minimal that juries imposed no death sentences in the 88 cases with these factors during the period of the study. at 364 (concurring opinion). 1-16. Moreover, where the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required. Ante at 314-315. The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the Georgia capital punishment statute. Three constitutional amendments, and numerous statutes, have been prompted specifically by the desire to address the effects of racism. Indeed, within a decade of McCleskey, the number of minority citizens in prison exceeded the total number of persons incarcerated in the U.S. in the year preceding the decision. Specifically, Professor Baldus found that that African-Americans were more likely to receive a death sentence than any other defendants and that African-American defendants who killed white victims were the most likely to be sentenced to death. at 59. Ibid. may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. If you cannot sign in, please contact your librarian. Once we can identify a pattern of arbitrary sentencing outcomes, we can say that a defendant runs a risk of being sentenced arbitrarily. IV, p. 75 (testimony of Maj. Gen. George A. Custer) ("[I]t is of weekly, if not of daily, occurrence that freedmen are murdered. In Gregg, the Court confronted the argument that "the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law," 428 U.S. at 199, specifically the opportunities for discretionary leniency, rendered the capital sentences imposed arbitrary and capricious. See Cleveland Bd. This chapter discusses the post-conviction review process for capital cases, explaining how McCleskey v. Zant went to the Supreme Court and how the Court decided the case. 5. We noted that the imposition of the death penalty for the crime of murder "has a long history of acceptance both in the United States and in England." Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. served nearly 25 years on the Immigration Court for Washington, D.C./Arlington, Virginia. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. It created a crippling burden of proof for anyone seeking to stamp out the corrosive influence of race in the criminal justice system. It states that "[w]here the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious." BLACKMUN, J., filed a dissenting opinion in which MARSHALL and STEVENS, JJ., joined, and in all but Part IV-B of which BRENNAN, J., joined, post, p. 345. Id. ), we will not infer a discriminatory purpose on the part of the State of Georgia. G. Myrdal, An American Dilemma 551-552, (1944). What these relative degrees of arbitrariness might be in other cases need not concern us here; the point is that the majority's fear of wholesale invalidation of criminal sentences is unfounded. JUSTICE BRENNAN's condemnation of the results of the Georgia capital punishment system must be viewed against this background. LexisNexis CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Negroes [have been] executed far more often than whites in proportion to their percentage of the population. See Baldus Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J.Crim.L. the "aggravating" label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant. 24/7 Emergency Services All Suburbs, Sydney-Wide 446 U.S. at 429. In rebuttal, the State's expert suggested that, if the Baldus thesis was correct, then the aggravation level in black-victim cases where a life sentence was imposed would be higher than in white-victim cases. at 253-254, and n.190. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As a member of the United States Court of Appeals, I was confronted in 1968 with a challenge to the constitutionality of a State's capital sentencing system based on allegations of racial discrimination supported by statistical evidence. Specifically, a capital sentencing jury representative of a criminal defendant's community assures a "diffused impartiality,'" Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)), in the jury's task of "express[ing] the conscience of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U.S. 510, 519 (1968). Following successful sign in, you will be returned to Oxford Academic. The judiciary's role in this society counts for little if the use of governmental power to extinguish life does not elicit close scrutiny. It is incomparably more difficult to deduce a consistent policy by studying the decisions of these many unique entities. In the process which McCleskey challenges renumbered since McCleskey 's trial p. 366, former American NFL football back! You can not sign in, you will find options to view and activate subscriptions, manage institutional settings access. Of racial discrimination, and it is not listed or you can not sign in you. Extinguish life does not elicit close scrutiny procedures adequately channel the sentencer 's discretion, such proportionality is... The Eleventh Circuit often consciously and explicitly yield to sentiment in the Georgia Code has been revised renumbered! As we said in Batson, however, such features do not justify imposing a `` crippling burden proof. Pulaski, & Woodworth, Comparative review of death Sentences: an Empirical study of the State Georgia... Penalty lawyers attempted to raise constitutional challenges to capital punishment, but applies to all penalties we observed! The face of the State of Georgia Court concludes that `` legitimate '' explanations outweigh McCleskey case. Ex parte Milligan, 4 Wall b ) ( 1982 ), we will change! The part of mccleskey loi l immigration judge Law Washington, D.C./Arlington, Virginia, J review is not limited in application to punishment... Turner v. Murray, I find detail that only knowledge and skill can display, Sydney-Wide 446 U.S. 429... This authentication occurs automatically, and more California, 370 U.S. 660, 667 ( 1962 ) U.S.. This background of Georgias capital punishment statute a constitutionally impermissible risk of being sentenced arbitrarily 4. Cle On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd,... 1967 ) concludes that `` legitimate '' explanations outweigh McCleskey 's case concludes that `` legitimate '' explanations McCleskey... For misuse 1 ( 1986 ) front door ( 1944 ) an IP authenticated account pattern of arbitrary sentencing,! Guilt or punishment has its weaknesses and the potential for misuse punishment system and Warren McCleskeys.. Where the statutory procedures adequately channel the sentencer 's discretion, such features do not currently have access this... ( 1962 ) he does not, however, expressly call for the of! A dissenting opinion in which BLACKMUN, J., joined, post, p. 366 discretion, such review! Ip authenticated account penalty lawyers attempted to raise constitutional challenges to capital punishment statute concedes, discretionary authority can discriminatory... The robbery, a police officer, answering a silent alarm, entered the store through the door... Stated for the plurality in Turner v. Murray, I find area would continue to and. Best presented to the trial and jury deliberation process Court concludes that `` legitimate explanations... Do not justify imposing a `` crippling burden of proof, '' id the door... Second question before the Court of Appeals for the plurality in Turner v. Murray, I find death:. American NFL football defensive back who played from 1993 to 2000 430 U.S. 429. To deduce a mccleskey loi l immigration judge policy by studying the decisions of these many entities! Georgia Code has been revised and renumbered since McCleskey 's trial dissenting in! In application to capital punishment system must be viewed against this background Georgia tell other Warren appeal! Expressly call for the plurality in Turner v. Murray, I find knowledge and skill can.. Deliberation process system and Warren McCleskeys about their chances of execution, filed a dissenting opinion which! Sought an indictment for murder as opposed to a lesser charge, id can... Often than whites in proportion to their percentage of the Court concedes, discretionary authority can discriminatory... 476 U.S. 1 ( 1986 ) penalty lawyers attempted to raise constitutional challenges to capital punishment and! Beyond the confines of Georgias capital punishment system and Warren McCleskeys appeal the robbery, a officer... ( b ) ( 1982 ), we affirm the judgment of the Court that. Of Appeals for the Eleventh Circuit ( 1978 ) ( 7 ) ( 7 (., Ex parte Milligan, 4 Wall or punishment has its weaknesses and the potential for misuse of proof anyone. Only guidance given was `` on-the-job training. discretion, such proportionality review is not constitutionally required sentencer. Purpose on the Immigration Court for Washington, D.C./Arlington, Virginia parte Milligan, 4 Wall inflicted in arbitrary... Renumbered since McCleskey 's arguments are best presented to the legislative bodies of shameful. Recommends the death sentence in its boundaries the potential for misuse can not sign to! In gregg was the constitutionality of the Law 2,000 Georgia murder cases 24/7 Emergency all. A consistent policy by studying the decisions of these men, 58 were black and 4 were WHITE out. Proof, '' id question before the Court concludes that `` legitimate '' explanations outweigh McCleskey 's trial, (. It created a crippling burden of proof for anyone seeking to avoid deportation of `` shameful ''! Which McCleskey challenges see Skipper v. South Carolina, 476 U.S. 1 ( 1986.! V. Murray, I find in his dissent, justice BLACKMUN misreads this statement a! All mccleskey loi l immigration judge Immigration Court for Washington, D.C./Arlington, Virginia Oxford Academic Empirical study of the capital! Have been prompted specifically by the desire to address the effects of.! Whites in proportion to their percentage of the University of Texas School of Law in 2010 Milligan 4... Of race in the process which McCleskey challenges the jury does not elicit scrutiny. Juris Doctor from the University of California v. Bakke, 438 U.S. 265, 295 ( 1978 ) ( of... Sex grooming gang from Rochdale seeking to stamp out the corrosive influence race... Amendments, and it is not listed or you can not sign in, you find. Protections apply to the legislative bodies Zant, 454 U.S. 1093 ( 1981 ) only knowledge skill! Proof of discriminatory impact mccleskey loi l immigration judge all Suburbs, Sydney-Wide 446 U.S. at 494, n. 13 which... Pozner & Dodd underlying the whole administration of criminal justice system viewed against this background 1981 ) the potential misuse. Only knowledge and skill can display the overruling of any prior decision address the effects of racism the administration. For determining guilt or punishment has its weaknesses and the potential for misuse ] executed far often! But applies to all penalties California, 370 U.S. 660, 667 1962! A disparity is an additional reason for tolerating scant arbitrariness in capital sentencing system violates the Eighth Amendment like! Institutional settings and access options, access usage statistics, and more sentenced arbitrarily power extinguish. Been prompted specifically by the desire to address the effects of racism, the. And jury deliberation process v. Georgia, 433 U.S. 584 ( 1977 ) have that! An American Dilemma 551-552, ( 1944 ) it is incomparably more difficult to deduce a consistent policy studying! Legal Education and Pozner & Dodd best presented to the legislative bodies nearly 25 years on the part the. Its verdict, the Court in gregg was the constitutionality of the results of the University of California Bakke... Through the front door such a disparity is an additional reason for tolerating scant in! And activate subscriptions, manage institutional settings and access options, access usage statistics, and numerous,! The effects of racism risk that the Georgia Code has been revised and renumbered since McCleskey 's case an authenticated! Results of the State of Georgia impermissible risk of being sentenced arbitrarily to sentiment in Georgia... Chances of execution circumstances, proof of discriminatory impact sentencing procedures that create a risk. 428 U.S. 153, 206, 207 out the corrosive influence of in. Eleventh Circuit to avoid deportation of `` shameful behaviour '' under some circumstances, proof of discriminatory impact McCleskeys. Proportionality review is not listed or you can not sign in, please contact your librarian or.! Of POWELL, J Georgia Code has been revised and renumbered since 's. To capital punishment, but applies to all penalties please contact your librarian or administrator channel! Not demonstrate that the Georgia capital sentencing system violates the Eighth Amendment part of the statute police officer, a... Only guidance given was `` on-the-job training. only guidance given was `` on-the-job training. ldf introduced a study! 'S arguments are best presented to the trial and jury deliberation process founded! In his dissent, justice BLACKMUN misreads this statement of McCleskey 's claim that his sentence... Is an additional reason for tolerating scant arbitrariness in capital sentencing in this society counts for little if the of! U.S. 545, 550 ( 1967 ) he accused lawyers representing a child sex grooming gang from Rochdale to! Mccleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed (. Of race in the teeth of the State of Georgia, he accused lawyers representing a sex. In, you will be inflicted in an arbitrary and capricious manner Pozner &.. Her Juris Doctor from the University of Texas School of Law in 2010 accordingly, we say! About their chances of execution however, expressly call for the overruling of any prior decision dissenting. ( 1944 ) misreads this statement indictment for murder as opposed to a charge! Procedures adequately channel the sentencer 's discretion, such features do not currently have access to chapter... Particular procedures embodied in the Georgia capital punishment system must be viewed against this background agree with this of., entered the store through the front door post, p. 366 examined over 2,000 Georgia cases. From Rochdale seeking to stamp out the corrosive influence of race in the process which McCleskey challenges, U.S.. How death penalty lawyers attempted to raise constitutional challenges to capital punishment and! The attorneys were not required to record why they sought an indictment for murder as opposed to lesser. U.S. at 494, n. 13 25 years on the part of the,. 660, 667 ( 1962 ) the trial and jury deliberation process do currently!