i ads
SUPREHE COURT OF
OCTOBER TERM,
THE UNITED STATES
1988
KEVIN N. STANFORD, PETITIONER,
COMMONWEALTH OF KENTUCKY, RESPONDENT.
On Writ of Certiorari To The
Supreme Court of Kentucky
REPLY
J. DAVID NIEHAUS
Deputy Appellate Defender
Co-Counsel for Petitioner
DANIEL T. GOYETTE
Jefferson District
Public Defender
Of Counsel
FOR PETITIONER
FRANK W. HEFT, JR.®
Chief Appellate Defender
Jefferson District Public
Defender's Office
200 Civic Plaza
719 West Jefferson Street
Louisville, Kentucky 40202
(502) 625-3800
Counsel for Petitioner
*Counsel of Record
Tabie of Authorities
Preface
Argument
Conclusion
TABLE OF CONTENTS
PAGE
13
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TABLE OF AUTHORITIES
Cases
Trop v. Dulles, 356 U.S. 86, 101 (1958)
Thompson v. Oklahoma, U.S. . 108 S.Ct. 2687,
TOl L.Ed.2d 702 (1988)
Bruton v. United States, 391 U.S. 123, 125 (1968)
Lee v. Illinois, 476 U.S. 530, 539 (1986)
Crane v. Kentucky, 476 U.S. 683 (1986)
Solem v. Helm, 463 U.S. 277, 290 (1983)
Woodson v. North Carolina, 428 U.S. 280, 305 (1976)
Enmund v. Florida, 458 U.S. 782, 793 (1982)
Coker v. Georgia, 433 U.S. 584, 592 (1977)
Cantwell v. Connecticut, 310 U.S. 296 (1940)
Wisconsin v. Yoder, 406 U.S. 205 (1972)
United States v. James, 478 U.S. 597, 606 (1986)
Consumer Product Safety Comm'n v. GTE Syivania, Inc.,
447 U.S. i102, 108 (1980)
Rubin v. United States, 449 U.S. 424, 430 (1981)
TVA v. Hill, 437 U.S. 153, 187 n.33 (1978)
Lockett v. Ohio, 438 U.S. 586, 604 (1978)
Batson v. Kentucky, 476 U.S. 79, 109-111 (1986)
Vance v. Terrazas, 444 U.S. 252, 258-259 n.5 (1980)
Cuyler v. Sullivan, 446 U.S. 335, 343 n.6 (1980)
Procunier v. Navarett, 434 U.S. 555, 559 n.6 (1978)
United States v. Mendenhall, 446 U.S. 544, 551 n.5 (1980)
Eddings v. Oklahoma, 455 U.S. 104, 114 n.9 (1982)
Constitutional Provisions
United States Constitution, Eighth Amendment
United States Constitution, Fourteenth Amendment
Statutes and Rules
N.H. Stats. Rev. Ann. §630:1 (1986 Repl., p. 38)
N.H. Rev. Stats. Ann. §§21-B:1 and 21:44 (1987 Cum. Supp.)
Title 13, Vt. Stat. Ann. §2303 (Supp. 1988)
KRS 208.170
KRS 208.170(1)
KRS 640.040
KRS 208.170(5)(a) and (b)
PAGE
passim
passim
10
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PREFACE
The purpose of this brief is to demonstrate that the
manner in which the respondent has concluded that there is a
consensus in this country which favors capital punishment of
juveniles is misleading and is not supported by a reasonable
examination of available data.
Similarly, this brief will refute the respondent's
position that setting a minimum age of 18 for the imposition of
capital punishment is impermissibly arbitrary. The respondent's
position not only ignores the fact that age barriers are routinely
erected by society because of the fundamental differences between
juveniles and adults but also fails to consider valid, objective
criteria by which "evolving standards of decency" are determined.
Trop v. Dulles, 356 U.S. 86, 101 (1958).
Kentucky did not prescribe a minimum age for the
imposition of capital punishment at the time of the offense for
which the petitioner was convicted. Consequently, this brief will
also address the respondent's attempt to escape the impact of
Thompson v. Oklahoma, U.S. , 108 S.Ct. 2687, 101 L.Ed.2d
702 (1988).
Lastly, this brief will refute the respondent's assertion
that Part D of the petitioner's original brief sets forth arguments
which are not fairly encompassed by the question presented. The
respondent's brief argues that because certain procedural safeguards
exist in capital cases, the imposition of capital punishment on a
juvenile who is under the age of 18 at the time of the crime does
not violate the Eighth and Fourteenth Amendments. In Part D of his
brief, the petitioner demonstrates that the safeguards against
arbitrary imposition of the death penalty on a juvenile are, in
practice, hollow and meaningless. Therefore, the points made in
Part D of the petitioner's brief are fairly presented to the Court
because they refute the respondent's argument concerning the
existence of adequate due process safeguards in capital cases.
Before commencing his arguments, the petitioner finds it
necessary to respond to the respondent's distortion of certain
factual matters and its use of the statement of a non-testifying
co-defendant, David Buchanan, as evidence of the petitioner's guilt.
a
At the outset it should be noted that only Buchanan was
convicted of rape (TE IX, 1347). Indeed, the indictments did not
even charge the petitioner with rape and the instructions allowed
the petitioner to be convicted of only one count of sodomy. (TR
81CR1218, Vol. I, 1-33; TR 82CRO406, Vol. I, 1-3; Vol. II, 234, 237,
245).
Contrary to the respondent's version of the facts,
Buchanan never told Troy Johnson that he and the petitioner had sex
with the victim. On direct examination, Johnson was asked the
following questions and gave the following answers (TE VII, 1036-
1037):
Q. 3073 [D]id [Buchanan] tell you what happened
while he was over at the Checker Station?
A. Said that he had had sex with her
Q. 3076 Did . . . Buchanan tell you why you were
going to the car?
A. To have some more sex with her.
It should also be noted that the prosecution's expert testified that
hair comparisons do not constitute a basis for a positive, personal
identification (TE VI, 804-812, 826).
It is axiomatic that the statement of a non-testifying co-
defendant does not constitute evidence of another defendant's guilt.
Bruton v. United States, 391 U.S. 123, 125 (1968). Indeed,
Buchanan's statement is presumptively unreliable. Lee v. Illinois,
476 U.S. 530, 539 (1986). Nevertheless, the respondent's brief
(pp. 4-5) relies on it as evidence to prove what the petitioner was
supposed to have done in the bathroom of the service station.
The "bragging" and "boasting" (Respondent's Brief, p. 6)
about the crime could have been just that, an attempt to impress the
petitioner's peers and nothing more. Indeed, boasting in front of
peers is perhaps the epitome of juvenile behavior and there are any
number of reasons unrelated to the question of guilt why a juvenile
might admit to criminal conduct. See e.g. Crane v. Kentucky, 476
U.S. 683 (1986).
The prosecution's case was based largely on the self-
serving statements of two co-defendants, but there is objective and
independent evidence that casts substantial doubt on the credibility
of Johnson's testimony and Buchanan's statement.
Two women drove upon the crime scene at the moment the
snots were fired. Two black men walked past their car and a third
man was in a nearby car. Neither of the women identified the
petitioner as being either of the men who walked past their car.
(TE IX, 954-972, 983-992). The women identified David Buchanan's
uncle, Calvin, as being one of the men that passed their car. (TE
IV, 536; TE IX, 972, 991).
Johnson testified that the petitioner was supposed to have
fired the shots from the driver's side of the victim's car but the
position of the victim's body and the location of the gunshot wounds
were inconsistent with the testimony that the shots were fired from
the driver's side of the car. The victim was found face down in the
rear seat of her car. Her head was on the driver's side of the
car. (TE III, 400-401; TE IV, 576-579). She sustained a non-fatal
gunshot wound to the left side of the mouth and also sustained a
lethal gunshot wound to the right side of the head. (TE III,
366-368, 372). This evidence supports the conclusion that the first
shot fired had to have resuited in the non-fatal wound to the left
side of the face. That shot would have caused her head and body to
spin to the right and back of the car and be pushed toward the
driver's side of the car. Since only one gun was alleged to have
been involved and one individual was alleged to have fired the
shots, the position of the body indicates that the fatal shot could
not have been fired from the driver's side of the car where the
petitioner was supposed to have been standing.
Footprints were found in the snow on the driver's and the
passenger's sides of the victim's car. (TE IV, 580-584; See also
photographs Commonwealth's Exhibits 47-1-9 and 48-1-19). Moreover,
scientific testing disclosed a positive reaction for firearms
residue around the dome light in the center of the victim's car.
(TE VI, 760-761, 770-771). When considered with the position of the
victim's body, the evidence is more consistent with the gunshots
having been fired by someone leaning in the passenger side of the
car.
The evidence, taken as a whole, substantially undercuts
the credibility and reliability of Johnson's testimony and
Buchanan's statement.
ARGUMENT
I. Determining Consensus on Imposition of Capital Punishment on
Juveniles.
Of the 36 states which permit capital punishment, 12
preciude the imposition of the death penaity on a juvenile who was
17 at the time of tne crime.t From this data, the respondent
conciudes that there is a national consensus which favors the death
penaity for juvenile offenders. (Respondent's Brief, pp. 13-15).
This conclusion is totally misleading for several reasons and even
if it was true, it would not necessarily establish the
"no penalty is per se constitutionai.'' Solem v. Helm, 453 U.S. 277,
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constitutionality of capital punishment for juveniles because
290 (1983).
The respondent's analysis ignores the 14 states and the
District of Columbia which prohibit capital punishment. Surely, a
national consensus cannot be determined by disregarding those juris-
dictions. It is simply illogical to conclude, as does the
respondent, that such jurisdictions are "false indicators" in
determining a consensus on the issue of the execution of defendants
who are juveniles at the time of their crimes.
As data supporting its conclusion, the respondent has
inappropriately included 18 states which do not expressly establish
a minimum age in their capital punishment statutes (Respondent's
Brief, p. 13, n. 3).2 However, the plurality and concurring opinion
in Thompson do not take those states into account in determining
1 The respondent suggests inn. 4 of its brief (p. 14)
that New Hampshire should not be included among the 12 states which
limit capital punishment to persons over the age of 18. New
Hampshire law provides, "In no event shall any person under the age
of 17 years be culpable of a capital murder." N.H. Stats. Rev. Ann.
§630:1 (1986 Repl., p. 38) Capital Murder - § V. "In no event shall
a sentence of death be carried out upon a pregnant woman or a person
for an offense committed while a minor." § 630:5 N.H. Rev. Stats.
Ann. Procedure in Capital Murder - § XIII (1988 Cum. Supp., p. 10).
The age of majority is 18. N.H. Rev. Stats. Ann. §§21-B:1 and 21:44
(1987 Cum. Supp.). A plain reading of the New Hampshire statutes
indicates that while a 17 year old may be convicted of a capital
murder, he or she cannot be subjected to the death penalty.
Therefore, New Hampshire is properly included among the 12 death
penalty states which prohibit the execution of juveniles. (See
Petitioner's Brief, App. 4).
2. The 18 jurisdictions are listed in the plurality
opinion in Thompson, 106 S.Ct. at 2695, n. 26. Although 19 juris-
dictions are listed in n. 26, Vermont can be deleted therefrom
because it now prohibits capital punishment. See Title 13, Vt.
Stat. Ann. §2303 (Supp. 1988).
whether there is a consensus in favor of the death penalty for
juveniles because "'they do not focus on the question of where the
chronological age iine should be drawn''S and because it is by no
means certain that those states have "deliberately chosen''4 to
permit capital punishment for juveniies who were 17 years old at the
time of committing a crime.
Thus, when these i8 states are added to the 12 states
which prohibit the death penalty for a juvenile who was 17 at the
time of the crime. only six of the 36 death penalty states have
specifically authorized the death penalty for juveniles. (See
Petitioner's Brief, App. 4 at p. 22a). The laws of six states
hardly establish a national consensus.
The respondent's search for a national consensus cannot be
advanced by its argument that age alone should not be a factor in
treating juveniles differently from adults for punishment purposes
because juveniles who are convicted of serious crimes in non-death
penaity jurisdictions must face the same punishment as adult
offenders. This argument ignores the principle that "the penalty of
death is qualitatively different" from any other sentence. Woodson
v. North Carolina, 428 U.S. 280, 305 (1976). The issue here is not
whether juveniles who are convicted of murder should escape punish-
ment, as the respondent's analysis seems to imply, but whether the
Eighth and Fourteenth Amendments preclude the imposition of capital
punishment on an accused who is under the age of 18 at the time of
committing a crime. In light of the difference between the death
penalty and other sentences, it is inappropriate for the respondent
to analyze the constitutionality of the death penalty for juveniles
by relying on the fact that non-death penalty states subject
juveniles to the same punishment as adult offenders.
The respondent asserts not only that "there is no
legislative consensus against" subjecting 17 year old juveniles to
the death penalty, but also that state statutes concerning capital
3. Thompson v. Oklahoma, 106 S.Ct. at 2695 (plurality
opinion).
4. Id. 106 S.Ct. at 2707 (O'Connor, J., concurring).
punishment ‘tare the most reliable indicia of modern societal
standards pertaining to' the issue before the Court. (Respondent's
Brief, p. 19). The respondent presumes that the petitioner can
prevali only if he shows, at the very least, that a substantial
majority of jurisdictions preclude the imposition of the death
penalty on a juvenile who was 17 at the time of the crime. However,
neither unanimity nor a "'compelling" majority of the laws of the
States is constitutionally required to establish a consensus.
Enmund v. Florida, 458 U.S. 782, 793 (1982). Since the respondent
can estabiish that only six states specifically authorize the death
penalty for juvenile offenders, the consensus on the issue of a
deatn penalty for juvenile offenders undoubtedly favors the
petitioner's position.
Since the respondent considers legislative enactments to
ve the most important factor in determining the issue presented by
this case it has summarily dismissed other criteria necessary to
resolve Eighth Amendment issues. In determining whether a
particular punishment violates the Eighth Amendment, the Court's
"judgment ‘should be informed by objective factors to the maximum
possible extent.''' Enmund, 458 U.S. at 788 quoting Coker v.
Georgia, 433 U.S. 584, 592 (1977)(piurality opinion). Such factors
include "the historicai development of the punishment at issue,
legislative judgments, international opinion, and the sentencing
decisions juries have made .. ."'. Enmund, 458 U S. at 788. The
respondent argues that with the exception of legislation, the
criteria used by the Thompson plurality in resolving that Eighth
Amendment issue are invalid or umreliable. Such a notion was
squarely rejected by Enmund, 458 U.S. at 788.
Expressing what can only be described as a distorted view
of what truly constitutes a democratic society, the respondent
concludes that minority views are too much of an "unreliable factor"
upon which to base a decision abolishing capital punishment for
juveniles because "only the minority would be expected to speak out
in opposition" and "{i]f those groups represented the majority view,
they would not find it necessary to advocate that the law be
changed.'"" (Respondent's Brief, p. 21). A democratic society, as
envisioned by the respondent, wouid undoubtedly suppress the
expression of any views contrary to the perceived majority opinion
and thereby render the rights of minorities to be purely fictional.
For true democracy to flourish, the legal system must vigilantly
protect minority rignts. See e.g. Cantwell v. Connecticut, 310 U.S.
296 (1940); Wisconsin v. Yoder, 406 U.S. 205 (1972). The
respondent's argument is particularly surprising in light of the
fact that a majority of the jurisdictions in this country prohibit
the imposition of capital punishment on a juvenile who was under the
age of 18 at the time of the crime.
Equally incredible is the respondent's argument that
expression of the international community's overwhelming opposition
to the imposition of tne death penalty on juveniles can be ignored
by the Court in its Eighth Amendment analysis. The respondent
reasons, "The untrustworthiness of such cross-national comparison is
attributable not only to the substantial differences in culture and
heritage, but to the very nature of crime in other countries."
(Respondent's Brief, pp. 21-22). In defense of its position, the
respondent asserts that the homicide rate in the United States is
considerably higher than that of many other countries. (Respondent's
Brief, p. 22). Aside from the fact that the killing of a human
being is no different whether it occurs in a foreign country or this
country, the respondent's argument completely undercuts and
invalidates the deterrence rationale for a juvenile death penalty
because its existence in this country has not resulted in a decrease
in the homicide rate and its absence in other countries has not
contributed to an increase in their homicide rates.
The respondent's rejection of international opinion on the
basis of differences in culture and heritage is disturbing in light
of the fact that this country began as and continues to be the
worid's melting pot. Our country is an amalgam of the heritage,
cultures, and beliefs brought by the immigrant peoples who settled
here. The prohibition against executing juvenile offenders is a
bond uniting numerous countries that have little else in common.
(See Appendix, A-1 - A-7 of Amicus Curiae Brief filed by Amnesty
International). The substantial diversity among the cultures,
political systems, and economic status of the numerous countries
that have outiawed capital punishment for juveniles is precisely the
reason why it is a reliable factor in determining evolving standards
of decency.
II. Prohibiting Capital Punishment for Juveniles Under the Age
of 18 at the Time of Committing a Crime.
The thrust of the arguments in Section III of the
respondent's brief is that juveniles as a class should not be
exempted from capital punishment. The respondent argues that the
determination of whether a juvenile should be sentenced to death
should be made by considering the accused's background, character
and the circumstances of the crime. The respondent adopts this
approach because of its view that adequate procedural and
substantive safeguards exist which prevent arbitrary imposition of
the death penalty. The premises upon which the respondent bases
these arguments are substantially flawed.
The respondent urges the Court to reject a "bright line"
approach to the resolution of the issue of whether juveniles should
be subjected to capital punishment. '"'The Court should not depart
from its longstanding premise that all capital offenders must be
given individualized consideration by the sentencer. It is
unrealistic to assume that all persons belonging to this age group
{juveniles less than 18 years old at the time of their crimes] share
the same degree of immaturity." (Respondent's Brief, p. 9). That
argument, embodied in Section III of the respondent's brief, ignores
not only society's presumption that persons under the age of 18 are
immature and do not act as adults and cannot be expected to do so,
but also the special treatment society affords juveniles as a class.
As to virtually every aspect of a juvenile's life, society
has erected age barriers which are predicated on the presumption of
a juvenile's immaturity and irresponsibility. Laws which are
enacted by society and which restrict the rights and privileges of
juveniles on the basis of age are absolute. They are the embodiment
of the well-recognized and readily accepted differences between
adults and juveniles.
The respondent is apparently content with such an approach
in all aspects of a juvenile's life with the exception of the
imposition of capital punishment. By way of example, the right to
vote at both the state and federal levels is not determined by an
individual's maturity or other personal characteristics. It is
determined solely by one's age. All persons under the age of 18 are
treated alike and no distinction is made on the basis of socio-
economic or cultural factors or social and intellectual development.
The respondent offers no persuasive reasons why all other aspects of
a juvenile's life can be governed solely by age and why the issue of
whether society should execute a juvenile should be based on
individualized consideration in a given case. The bright-line
approach taken by society on virtually every other important aspect
of a juvenile's life should likewise be utilized in exempting
juveniles under the age of 18 from the imposition of capital
punishment.
III. Impact of Thompson v. Oklahoma
The respondent concedes that the statute under which the
petitioner was transferred to the circuit court for trial as an
adult (KRS 208.170) did not specify a minimum age for capital
punishment. (Respondent's Brief, p. 24). However, the respondent
concludes that the Kentucky Legislature must have considered a
minimum age for capital punishment because the transfer statute [KRS
208.170(1)] permitted a juvenile who was under the age of 16 to be
transferred to circuit court for trial as an adult if reasonable
cause was found to believe that the child had committed a Class A
Felony or a capital offense. The respondent finds this legislative
consideration in the plain language of KRS 208.170 (Respondent's
Brief, pp. 25-26). What the respondent ignores is that the plain
language of the statute undoubtedly permits a 10 or 12 year old
juvenile to face the death penalty. In light of Thompson v.
Oklahoma, it is difficult to believe that such "consideration" by a
state legislature would enable the statute to pass constitutional
muster under the Eighth and Fourteenth Amendments.
Simply because the Kentucky Legislature clarified its
position on a minimum age for capital punishment by enacting KRS
640.040 in 1987, it does not follow, as the respondent suggests,
that any consideration was given to setting a minimum age for the
imposition of capital punishment in 1981 pursuant to KRS 208.170
which was in effect at the time of the crime for which the
petitioner was convicted. ''In the absence of a ‘clearly expressed
legislative intention to the contrary,' the language of the statute
itself ‘must ordinarily be regarded as conclusive.''' United States
v. James, 478 U.S. 597, 606 (1986) quoting Consumer Product Safety
Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). "When
the terms of a statute [are] unambiguous, judicial inquiry is
complete except in 'rare and exceptional circumstances.'"' Rubin v.
United States, 449 U.S. 424, 430 (1981) quoting TVA v. Hill, 437
U.S. 153, 187 n. 33 (1978). As the respondent concedes, KRS 208.170
is unambiguous insofar as it does not set a minimum age for the
imposition of capital punishment. In the absence of any other
evidence, legislative consideration of a minimum age for capital
nunishment cannot be divined from the mere fact that subsequent
legislation specifically enacted a minimum age for capital punish-
ment or that legislation which would have prohibited imposition of
the death penalty on juveniles who were under 18 at the time of the
crime was proposed but not enacted. (Respondent's Brief, p. 26).
The respondent asserts the "[p]etitioner's interpretation
of the Thompson concurrence would exempt juvenile murderers from
non-capital punishments as well as from the death penalty."
(Respondent's Brief, p. 28. Respondent's emphasis). Such an absurd
notion could not be further from the truth and ignores a fundamental
precept of Eighth Amendment jurisprudence, i.e. the "qualitative
difference" between the death penalty and other punishments.
Lockett v. Ohio, 438 U.S. 586, 604 (1978). The petitioner has never
suggested that society cannot subject juvenile offenders who commit
serious crimes to lengthy terms of imprisonment. Indeed, severe
sentences such as life imprisonment or life without parole are the
obvious means by which society can protect itself from
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dangerous juvenile offenders and obtain a measure of retribution
without putting the juvenile to death.
IV. Existence of Safeguards Against Arbitrary Imposition of
Capital Punishaent
On pp. 31-35 of its vrief, the respondent argues that
there is no need to automatically exempt juveniles from the death
penalty because of numerous procedural safeguards that protect them
against the arbitrary imposition of capital punishment. As examples
of these sateguards the respondent cites procedures required by due
process in juvenile court prior to a transfer decision and the use
of mitigating evidence including the age of the accused. The
respondent likewise identifies the proportionality review conducted
by tne Kentucky Supreme Court and a jury instruction on the
petitioner's youth as further safeguards. (Respondent's Brief, p.
35). Finally, the respondent notes that the statute under which the
juvenile court transferred jurisdiction of the petitioner's case to
the circuit court (KRS 208.170), provided for grand jury
reconsideration of the juvenile judge's transfer decision and also
provided the circuit judge with the option of considering the
transfer and returning the juvenile to district court for trial.
(See KRS 208.170(5)(a) and (b); App. la, p. 2a of Petitioner's
Brief ).5
Although recognizing the constitutional requirement that
the accused be permitted to introduce mitigating evidence in the
sentencing phase of a capital trial and the importance that youth
has aS a mitigating factor, the respondent has failed to refute the
petitioner's arguments that he was denied the opportunity to fully
present mitigating evidence, to wit, Robert Jones' testimony, and
that youth or age are hollow safeguards as mitigating evidence
because both concepts operate on a sliding scale which encompasses a
wide range of chronological ages and therefore does little, if
anything, to protect juveniles. Similarly, the respondent has not
5. The respondent, however, has ignored the fact that
these "safeguards" have been eliminated by Kentucky's present
transfer statute (KRS 640.040).
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rebutted the petitioner's argument that the proportionality review
conducted by the Kentucky Supreme Court is constitutionaily
inadequate because the petitioner's case was compared only to adults
who received the death penalty and was aiso compared to one juvenile
case in wnich the defendant's conviction and sentence were reversed.
(See Petitioner's Brief, p. 40).6
The respondent's argument that juveniles who are under 18
at the time of committing a crime should be subjected to capital
punishment is premised on the existence of the aforementioned
procedural safeguards which the respondent perceives as being
sufficient to prevent the arbitrary imposition of the death penalty.
Yet, pointing to Section D of the petitioner's brief, the respondent
argues that the petitioner has raised matters which cannot be fairly
included in the question on which certiorari was granted.
(Respondent's Brief, pp. 2-3). Section D, like Sections C and E, of
the petitioner's brief simply demonstrate that these so-called
safeguards are more illusory than real and are meaningless because
they do not eliminate the arbitrary imposition of capital punishment
on a juvenile. Thus, Section D of the petitioner's brief does not
exceed the fair parameters of the constitutional question presented
by this case and addresses issues necessary for the proper
disposition of the case. Batson v. Kentucky, 476 U.S. 79, 109-111
(1986)(Stevens, J., concurring). Where resolution of a particular
question of law is a "predicate to an intelligent resolution" of the
issue on which certiorari was granted and the parties have briefed
that question of law, the court must address it. Vance v. Terrazas,
444 U.S. 252. 258-259 n. 5 (1980) and Cuyler v. Sullivan, 446 U.S.
335, 343 n. 6 (1980). Issues which are "essential to analysis" of
the question presented or "essential to [itsj correct disposition"
6. Throughout its brief, the respondent frames its
arguments from the perspective that the petitioner is a young
adult. Thus, the premise underlying the respondent's arguments is
fundamentally flawed because our society and its law recognize the
petitioner to be a juvenile and not a young adult. For nearly all
intents and purposes, society has set 18 as the boundary between
childhood and adulthood. We live on either side of that boundary.
A person is either a juvenile or an adult. There is no middle
ground. Therefore, the focus of the respondent's argument is
completely misdirected and is totally inconsistent with a
fundamental precept of our society.
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are ''fairly comprised" by said question and therefore may be
considered by the Court. Procunier v. Navarett, 434 U.S. 555, 559
n. 6 (1978); United States v. Mendenhall, 446 U.S. 544, 551 n. 5
(1980). See also Eddings v. Oklahoma, 455 U.S. 104, 114 n. 9 (1982)
in which the Court held that the question of whether imposition of
the death penalty was excessive comprised ''the argument that the
sentencer erred in refusing to consider relevant mitigating
circumstances" during the sentencing hearing. These principles
fully justify the inclusion of Sections C, D, and E in the
petitioner's brief.
CONCLUSION
The arguments made by the respondent neither dissipate the
strength of the arguments presented in the petitioner's brief nor
justify affirmance of the decision of the Kentucky Supreme Court.
Accordingly, the petitioner, Kevin N. Stanford, respectfully urges
the Court to rule that the imposition of the death penalty on a
juvenile who was under 18 years of age at the time of committing a
crime violates the Eighth and Fourteenth Amendments to the United
States Constitution.
Respectfully submitted,
Paw terse
FRANK W. HEFT, JR2®
Chief Appellate Def'ender
J. DAVID NIEHAUS Jefferson District Public
Deputy Appellate Defender Defender's Office
Co-Counsel for Petitioner 200 Civic Plaza
719 West Jefferson Street
DANIEL T. GOYETTE Louisville, Kentucky 40202
Jefferson District (502) 625-3800
Public Defender Counsel for Petitioner
Of Counsel
*Counsel of Record
