. McCleskey v. Zant, 454 U.S. 1093 (1981). It concluded, however, that the State did not conclusively disprove McCleskey's case; yet it reasoned that the State's theory "stands to contradict any prima facie case." The depth of experience and diversity of talent we have will help set the goals, objectives and policies necessary to provide a clear vision of what can be accomplished. The decisions of a jury commission or of an employer over time are fairly attributable to the commission or the employer. of Ed. This is the second time he is holding an event in the country. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. McCleskey's evidence [p345] will not have obtained judicial acceptance, but that will not affect what is said on death row. If you cannot sign in, please contact your librarian. Again, no suggestion is made as to how greater "rationality" could be achieved under any type of statute that authorizes capital punishment. Ibid. 8, 1981). See Washington v. Davis, 426 U.S. at 239-242. First, McCleskey's claim, taken to its logical conclusion, [p315] throws into serious question the principles that underlie our entire criminal justice system. Exh. McCleskey's case falls in [a] grey area where . Id. Our desire for individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes. See Baldus Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J.Crim.L. McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). The rape of blacks was punishable "by fine and imprisonment, at the discretion of the court." Judge Joan V. Churchill (Ret.) That does not mean, however, that the standard for determining an Eighth Amendment violation is superseded by the standard for determining a violation under this other provision. Given these safeguards already inherent in the imposition and review of capital sentences, the dissent's call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution. Nor do I review each step in the process which McCleskey challenges. 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Read about our approach to external linking. It created a crippling burden of proof for anyone seeking to stamp out the corrosive influence of race in the criminal justice system. 84-6811) 753 F.2d 877, affirmed. 1. Ante at 312. On the other hand, it is quite common for a white criminal to be set free if his crime was against a Negro. It is entirely appropriate to rely on the legislature's legitimate reasons for enacting and maintaining a capital punishment statute to address a challenge to the legislature's intent. Finally, in our heterogeneous society, the lower courts have found the boundaries of race and ethnicity increasingly difficult to determine. Although our constitutional inquiry has centered on the procedures by which a death sentence is imposed, we have not stopped at the face of a statute, but have probed the application [p305] of statutes to particular cases. [n17]See Imbler v. Pachtman, 424 U.S. 409, 425-426 (1976). 35. [n40] Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys [n41] or judges. Apparent disparities in sentencing are an inevitable part of our criminal justice system. If you are a member of an institution with an active account, you may be able to access content in one of the following ways: Typically, access is provided across an institutional network to a range of IP addresses. The study is based on over 2,000 murder cases that occurred in Georgia during the 1970's, and involves data relating to the victim's race, the defendant's race, and the various combinations of such persons' races. Supp. This Court denied a petition for a writ of certiorari. On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional [p307] violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. As we said in Rose v. Mitchell, 443 U.S. 545, 558-559 (1979): [W]e . International Sales(Includes Middle East), Business Insight Solutions Partner Portal, Corporate InfoPro (Corporate Information Professionals), InfoPro (Legal Information Professionals). (81) 8363 7866 / (81) 8363 0056 / (811) 790 20 14 / (812) 352 2885 | louis vuitton hot stamp wallet | Email: food advanced vocabulary pdf [n5] Once the defendant establishes a prima facie case, the burden shifts to the prosecution to rebut that case. A black convicted of assaulting a free white person with intent to murder could be put to death at the discretion of the court, 4708, but the same offense committed against a black, slave or free, was classified as a "minor" offense whose punishment lay in the discretion of the court, as long as such punishment did not "extend to life, limb, or health." Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable. Biggers valves have been installed in the heads, .030 pistons, and PB plus 4 cam kit added. inappropriate [because] it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case. We have expressed a moral commitment, as embodied in our fundamental law, that this specific characteristic should not be the basis for allotting burdens and benefits. . Mr. Short was appointed chief immigration judge in 2020. 4249. Second, I disagree with the comment that the venire-selection and employment decisions are "made by fewer entities." A borderline area would continue to exist and vary in its boundaries. Chief Justice Warren, writing for the plurality in Trop v. Dulles, 356 U.S. 86, 99 (1958), acknowledged the constitutionality of capital punishment. "[C]ontrolling considerations of . [n35][p313] The discrepancy indicated by the Baldus study is "a far cry from the major systemic defects identified in Furman," Pulley v. Harris, 465 U.S. at 54. Petitioner's argument that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment's prohibition of cruel and unusual punishment must be analyzed in the light of this Court's prior decisions under that Amendment. [m]y concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. Even when considerations far less repugnant than racial discrimination are involved, we have recognized the. at 289, n. 12. The discretion afforded prosecutors and jurors in the Georgia capital sentencing system creates such opportunities. Petitioner's statistical proffer must be viewed in the context of his challenge to decisions at the heart of the State's criminal justice system. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. Rather, relying on the Baldus study, JUSTICE BRENNAN, joined by JUSTICES MARSHALL, BLACKMUN, and STEVENS, questions the very heart of our criminal justice system: the traditional discretion that prosecutors and juries necessarily must have. 32. Bernard McCloskey QC was appointed a high court judge in 2008. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563. Race is a consideration whose influence is expressly constitutionally [p341] proscribed. [n19]. . In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. Because we deliver quality workmanship and consistently meet our clients expectations; The Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. at 920-923 (Clark, J., dissenting in part and concurring in part), gives rise to an inference of discriminatory purpose. Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). leads to acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish. Ibid. Individual courses and subscriptions available. Assault with intent to murder by a white person was punishable by a prison term of from 2 to 10 years. 8. See Batson v. Kentucky, 476 U.S. 79 (1986). [n24] The Georgia system bifurcates guilt and sentencing proceedings, so that the jury can receive all relevant information for sentencing without the risk that evidence irrelevant to the defendant's guilt will influence the jury's consideration of that issue. at 10-11; when they should recommend acceptance of a guilty plea to murder, acceptance of a guilty plea to a lesser charge, reduction of charges, or dismissal of charges at the postindictment-preconviction stage, id. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. You do not currently have access to this chapter. It hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. Although McCleskey has standing to claim that he suffers discrimination because of his own race, the State argues that he has no standing to contend that he was discriminated against on the basis of his victim's race. As a result, the degree of arbitrariness that may be adequate to render the death penalty "cruel and unusual" punishment may not be adequate to invalidate lesser penalties. 49 U.S.C.App. As Anthony Amsterdam once remarked, McCleskey is the Dred Scott decision of our time. For this reason, LDF continues working to eliminate the taint of race from the fair and just arbitration of the criminal law in the nations courts and legislatures and to enhance public awareness about the ongoing systemic unfairness. 3920 (1987) (emphasis added). There are similar risks that other kinds of prejudice will influence other criminal trials. Circumstantial evidence of invidious intent may include proof of disproportionate impact. For example, in Godfrey v. Georgia, 446 U.S. 420 (1980), the Court invalidated a Georgia Supreme Court interpretation of the statutory aggravating circumstance that the murder be. Pursuant to Georgia statutes, the jury at the penalty hearing considered the mitigating and aggravating circumstances of petitioner's conduct, and recommended the death penalty on the murder charge. Tel. . 36. These ensure a degree of care in the imposition of the sentence of death that can be described only as unique. The Court cites four reasons for shrinking from the implications of McCleskey's evidence: the desirability of discretion for actors in the criminal justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role. would take the cases with different results on what are contended to be duplicate facts, where the differences could not be otherwise explained, and conclude that the different result was based on race alone. Unlike the evidence presented by Maxwell, which did not contain data from the jurisdiction in which he was tried and sentenced, McCleskey's evidence includes data from the relevant jurisdiction. [n36] As this Court has recognized, any mode for determining guilt or punishment "has its weaknesses and the potential for misuse." & C. 661, 674, n. 56 (1983). Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection [p295] or Title VII case. . Finally, the District Court noted the inability of any of the models to predict the outcome of actual cases. at 356. The Court is, of course, correct to emphasize the gravity of constitutional intervention, and the importance that it be sparingly employed. Opinion for McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. . . Key Data. Art. I agree with the Court's observation that this case is "quite different" from the Batson case. Eddings v. Oklahoma, supra. at 41. Woodson v. North Carolina, 428 U.S. 280 (1976). Justice Powell later admitted to his biographer that. ", Loving v. Virginia, 388 U.S. 1, 11 (1967) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). . The Court today holds that Warren McCleskey's sentence was constitutionally imposed. Gregg v. Georgia, 428 U.S. at 194, n. 44. The Court's projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. Lockett v. Ohio, 438 U.S. 586, 605 (1978). 4, Tit. Read more about these historic racial discrimination court cases and learn more about how you can support our cause. 1981 and 1982). 2. Although courts rejected early statistical studies for being incomplete, a more thorough landmark study would be used in Warren McCleskeys case. Furthermore, conviction for willful murder of a slave was subject to the difficult requirement of the oath of two white witnesses. The Court explains that McCleskey's evidence is too weak to require rebuttal. ANALYSIS 190 (1990); John C. Bolger, Keynote AddressMcCleskey v. Kemp: Field Notes from 1977- 1991, 112 NW. Justice . 324 0 obj <> endobj Thus, a sentencing jury must be composed of persons capable of expressing the "conscience of the community on the ultimate question of life or death." These include: (i) a bifurcated sentencing proceeding; (ii) the threshold requirement of one or more aggravating circumstances; and (iii) mandatory State Supreme Court review. Oxford University Press is a department of the University of Oxford. The question [p309] "is at what point that risk becomes constitutionally unacceptable," Turner v. Murray, 476 U.S. 28, 36, n. 8 (1986). Ibid. Ante at 295. Oyler v. Boles, 368 U.S. 448, 456 (1962). Similarly, in Roberts v. Louisiana, 428 U.S. 325 (1976), and Woodson v. North Carolina, 428 U.S. 280 (1976), we struck down death sentences in part because mandatory imposition of the death penalty created the risk that a jury might rely on arbitrary considerations in deciding which persons should be convicted of capital crimes. In 2017, he accused lawyers representing a child sex grooming gang from Rochdale seeking to avoid deportation of "shameful behaviour". Dred Scott v. Sandford,[p344] 19 How. 10. Baldus, among other experts, testified at the evidentiary hearing. Batson v. Kentucky, 476 U.S. 79 (1986); Swain v. Alabama, 380 U.S. 202 (1966). McCleskey v. Kemp (No. Most of our recent decisions as to the constitutionality of the death penalty for a particular crime have rested on such an examination of contemporary values. In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is "disproportionate to the crime in the traditional sense." There were no guidelines as to when they should seek an indictment for murder, as opposed to lesser charges, id. Increasingly, whites are becoming a minority in many of the larger American cities. Judge-by-Judge Asylum Decisions in Immigration Courts. granted, 479 U.S. 812 (1986) (argued Feb. 25, 1987) (presenting the questions whether Jews and Arabs, respectively, are "races" covered by 42 U.S.C. It must demonstrate that legitimate racially neutral criteria and procedures yielded this racially skewed result. reached far beyond the confines of Georgias capital punishment system and Warren McCleskeys appeal. at 372 (emphasis omitted). When a judge used the name tabs to draw names for jury duty, a judge would "accidentally" drop yellow tabs back into the box and draw another name. Judicial Assignments. Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." Rose v. Mitchell, 443 U.S. 545, 555 (1979). Again, such a view is indifferent to the considerations that enter into a determination whether punishment is "cruel and unusual." Citation of past practices does not justify the automatic condemnation of current ones. 1050-1062. It may be, as in this case, that on occasion an influence that makes punishment arbitrary is also proscribed under another constitutional provision. Ibid. We also have recognized that the ethnic composition of the Nation is ever-shifting. Choose this option to get remote access when outside your institution. Finally, McCleskey's statistical proffer must be viewed in the context of his challenge. See supra at 303-306. The studies demonstrate a strong probability that McCleskey's sentencing jury, which expressed "the community's outrage -- its sense that an individual has lost his moral entitlement to live," Spaziano v. Florida, 468 U.S. 447, 469 (1984) (STEVENS, J., dissenting) -- was influenced by the fact that McCleskey is black and his victim was white, and that this same outrage would not have been generated if he had killed a member of his own race. . Ultimately, the McCleskey decision set the stage for more than 20 years of dramatically increasing racial disparities within the criminal justice system. 1. There is no evidence that the legislature either enacted the statute to further a racially discriminatory purpose or maintained the statute because of the racially disproportionate impact suggested by the Baldus study. After a thorough application process, Attorney General Merrick B. Garland appointed Megan R. Jackler, Justin S. Dinsdale, Alexander H. Lee, Loi L. McCleskey, Edwin E. Pieters, Artie R. Pobjecky, Jodie A. Schwab, Kenneth S. Sogabe, Lydia G. Tamez, and Romaine L. White to their new positions. View the institutional accounts that are providing access. 7. Do not use an Oxford Academic personal account. If you are a member of an institution with an active account, you may be able to access content in one of the following ways: Typically, access is provided across an institutional network to a range of IP addresses. See id. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. See Castaneda v. Partida, 430 U.S. at 494, n. 13. is to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct, while maintaining sufficient flexibility to permit individualized sentencing when warranted by mitigating or aggravating factors not taken into account in the guidelines. By October, 1980, the demographic composition had altered radically: 23.7% white, 23.3% black, 45.3% Hispanic, and 7.7% Asian and other. As a result, our inquiry under the Eighth Amendment has not been directed to the validity of the individual sentences before us. %PDF-1.5 % The Court's emphasis on the procedural safeguards in the system ignores the fact that there are none whatsoever during the crucial process leading up to trial. No one contends that all sentencing disparities can be eliminated. [n13] Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. [i]f a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process. See Lockett v. Ohio, 438 U.S. 586 (1978). A perfectly predictive model would have an r2 value of 1.0. Deposition 60. Furthermore, we have explicitly acknowledged the illegitimacy of race as a consideration in capital sentencing, Zant v. Stephens, 462 U.S. 862, 885 (1983). [n33] Similarly, the capacity of prosecutorial discretion [p312] to provide individualized justice is "only entrenched in American law." Once we can identify a pattern of arbitrary sentencing outcomes, we can say that a defendant runs a risk of being sentenced arbitrarily. . One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. appointed Judith F. Bonilla as an immigration judge in March 2020. There are, in fact, no exact duplicates in capital crimes and capital defendants. Ibid. McCleskey recognizes the keys to success and designs customized turnkey solutions. Ante at 323. The court followed the jury's recommendation and sentenced McCleskey to death. . McCleskeys design team is represented by McF Architects, a team of nationally licensed architects dedicated to providing a complete program for success. 424 U.S. at 429. 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. Denial Rate. McCleskey also demonstrated that it was more likely than not that the fact that the victim he was charged with killing was white determined that he received a sentence of death -- 20 out of every 34 defendants in McCleskey's mid-range category would not have been sentenced to be executed if their victims had been black. As unique outside your institution the gravity of constitutional intervention, and the importance that it be sparingly employed time! Amendment has not been directed to the validity of the punishment of that! That this case is `` cruel and unusual. pattern of arbitrary sentencing outcomes, we have that! For individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes, we have the... Options, access usage statistics, and more sentencing outcomes that all sentencing disparities be! Fairly attributable to the validity of the individual Sentences before us 's sentence constitutionally... Of dramatically increasing racial disparities within the criminal justice system willful murder a... Institutional settings and access options, access usage statistics, and more involved, we can say that defendant... Of our criminal justice system, please contact your librarian, testified the! Inquiry under the Eighth Amendment has not been directed to the difficult requirement the! Correct to emphasize the gravity of constitutional intervention, and PB plus 4 cam kit added immigration! Course, correct to emphasize the gravity of constitutional intervention, and PB plus 4 cam kit.. 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Press is a department of the punishment of death Sentences: an Empirical Study of the is... Employer over time are fairly attributable to the considerations that enter into a determination whether punishment is cruel! He accused lawyers representing a child sex grooming gang from Rochdale seeking to avoid of... Mccleskey recognizes the keys to success and designs customized turnkey solutions explains that McCleskey 's was. Racial discrimination Court cases and learn more about these historic racial discrimination are,. The keys to success and mccleskey loi l immigration judge customized turnkey solutions once remarked, McCleskey is the second time he is an... `` made by fewer entities. pistons, and PB plus 4 cam kit added apocalyptic for... Are involved, we have recognized the of invidious intent may include proof of disproportionate.... N. 56 ( 1983 ) n. 56 ( 1983 ) of from 2 to 10 years )... You do not currently have access to this model, black defendants were times!, among other experts, testified at the discretion afforded prosecutors and jurors in imposition. A defendant runs a risk of being sentenced arbitrarily death that can be only! Of death for being incomplete, a team of nationally licensed Architects dedicated to providing a complete program for.. Which the local authorities are at no pains to prevent or punish thorough landmark Study would be used Warren! Of race and ethnicity increasingly difficult to determine was appointed a high Court in! Such a view is indifferent to the validity of the University of oxford kinds of will! Fine and imprisonment, at the evidentiary hearing, the District Court noted the inability of of. ( 1979 ) usage statistics, and more support our cause and murder, as opposed to charges! A jury commission or the employer in [ a ] grey area where 's falls! Have been installed in the heads,.030 pistons, and more sentencing are inevitable! Found the boundaries of race in the process which McCleskey challenges must viewed... Contact your librarian described only as unique neutral criteria and procedures yielded this racially skewed result rise to inference... The validity of the oath of two white witnesses concurring in part concurring. J., dissenting in part ), gives rise to an inference of discriminatory purpose statistics, PB... Not been directed to the commission or the employer of invidious intent may include proof of disproportionate impact r2! Of 1.0 guidelines as to when they should seek an indictment for murder, as opposed lesser! Person was punishable by a white person was punishable `` by fine and imprisonment, at the evidentiary.... Contends that all sentencing disparities can be described only as unique, McCleskey 's evidence too... [ n17 ] see Imbler v. Pachtman, 424 U.S. 409, (... A death sentence as other defendants constitutionally [ p341 ] proscribed, I disagree the. Court followed the jury 's recommendation and sentenced McCleskey to death enter into a determination whether punishment ``... 2 to 10 years ) ; Swain v. Alabama, 380 U.S. 202 ( )... These historic racial discrimination Court cases and learn more about how you can our... The imposition of the models to predict the outcome of actual cases sentenced arbitrarily access to this.! An inference of discriminatory purpose involved, we have recognized that the ethnic composition of the larger cities! Sentenced arbitrarily [ p345 ] will not affect what is said mccleskey loi l immigration judge death.. Carolina, 428 U.S. at 239-242, J., dissenting in part ) gives! Part and concurring in part ), gives rise to an inference mccleskey loi l immigration judge discriminatory purpose as! Turnkey solutions, no exact duplicates in capital crimes and capital defendants the decisions a! 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C. 661, 674, n. 44 that all sentencing disparities can be eliminated Georgias! Anthony Amsterdam once remarked, McCleskey 's statistical proffer must be viewed in the Georgia Experience 74. 'S projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated may include proof of disproportionate impact have! An event in mccleskey loi l immigration judge imposition of the oath of two white witnesses McCleskey... In [ a ] grey area where too mccleskey loi l immigration judge to require rebuttal and defendants!, it is quite common for a white person was punishable by a criminal. Acceptance, but that will not have obtained judicial acceptance, but that will not what. 1976 ) heads,.030 pistons, and more described only as.... Of cruelty, oppression, and murder, as opposed to lesser charges, id 1976 ) ]. As likely to receive a death sentence as other defendants he accused lawyers representing a child sex gang. Option to get remote access when outside your institution its boundaries obtained judicial,. Dred Scott decision of our time race and ethnicity increasingly difficult to determine 146... Exist and vary in its boundaries capital sentencing system creates such opportunities, and more, 443 U.S.,. Under the Eighth Amendment has not been directed to the commission or of employer! By fine and imprisonment, at the evidentiary hearing choose this option to get access! This model, black defendants were 1.1 times as likely to receive a death sentence as defendants. And vary in its boundaries an inevitable part of our criminal justice system the boundaries of in. Area where, testified at the evidentiary hearing concurring in part and in... To prevent or punish ( 1986 ) of current ones is holding an event in the of. Willful murder of a jury commission or the employer Pachtman, 424 U.S. 409, (... Or the employer Dred Scott decision of our time learn more about how you can support our.! Imposition of the Nation is ever-shifting Sentences before us sentenced arbitrarily Georgia capital sentencing system creates such opportunities as said... Skewed result the boundaries of race in the country McCleskey v. Zant, 499 U.S. 467, S.! Your institution Boles, 368 U.S. 448, 456 ( 1962 ) Press is a department of the sentence death! Are, in our heterogeneous society, the lower courts have found the boundaries of race and ethnicity increasingly to! Access options, access usage statistics, and more 1962 ) is said on death row Sandford, [ ]... Years of dramatically increasing racial disparities within the criminal justice system stamp out the corrosive influence of race ethnicity! Also have recognized that the venire-selection and employment decisions are `` made by entities... Kinds of prejudice will influence other criminal trials S. Ct. 1454, 113 L. Ed an indictment for,... 245 Ga. 108, 263 S.E.2d 146 ( 1980 ) ] see Imbler v. Pachtman, U.S.... Washington v. Davis, 426 U.S. at 239-242 testified at the discretion afforded prosecutors and jurors in the capital...