Before testimony was heard at the remand proceedings the following colloquy took place:
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and Fahy, Washington, Danaher, Burger, Wright, McGowan, Tamm and Leventhal, Circuit Judges, sitting en banc. Tamm, Circuit Judge, with whom Danaher and Burger, Circuit Judges, Concur, dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY
Appellant was convicted June 11, 1960 of first degree murder in the killing of a police officer while perpetrating a robbery. 22 D.C.Code 2401. He was sentenced to death under the mandatory death penalty in force in the District of Columbia at the time of his conviction. 22 D.C.Code § 2404. This court sitting en banc affirmed in Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555, with four judges dissenting in part, cert. denied, 369 U.S. 813, 82 S. Ct. 689, 7 L. Ed. 2d 613, rehearing denied, 369 U.S. 842, 82 S. Ct. 870, 7 L. Ed. 2d 847. We refer to this decision as Coleman I. While the case was pending in the courts Congress abolished the mandatory death sentence *fn1 for first degree murder in this jurisdiction. 22 D.C.Code § 2404 (Supp. IV, 1965). At the same time Congress provided,
Cases tried prior to March 22, 1962, and which are before the court for the purpose of sentence or resentence shall be governed by the provisions of law in effect prior to March 22, 1962: Provided, That the judge may, in his sole discretion, consider circumstances in mitigation and in aggravation and make a determination as to whether the case in his opinion justifies a sentence of life imprisonment, in which event he shall sentence the defendant to life imprisonment. . . .
A week after the passage of this statute appellant filed a motion in the District Court seeking relief under the new law, which was denied. The death sentence thus remained in effect. On appeal we remanded the case to the District Court to conduct an evidentiary hearing to aid in the consideration of "circumstances in mitigation and in aggravation." Coleman v. United States, 118 U.S.App.D.C. 168, 334 F.2d 558, referred to as Coleman II. Prior to the hearing appellant filed an amended motion for imposition of life imprisonment. An extensive hearing followed, held by Judge McGarraghy, who was not the trial judge, after which he denied both the original and amended motions, filing a Memorandum giving his reasons. I
THE COURT: I am of the opinion it is not a resentencing under the opinion of the Court of Appeals but is a matter of motion for reduction of sentence.
MR. WEINBERG [Attorney for Coleman]: Is it Your Honor's ruling that the Defendant has the burden of proving it?
THE COURT: Yes, that would be my ruling.
No more is necessary to demonstrate that the judge considered the burden to be upon appellant to establish that the sentence should be reduced. His position is further indicated in his Memorandum above referred to in which he said:
The amendatory law as finally enacted expressly provided that cases tried prior to the effective date of the Act shall be governed by the provisions of law in effect prior to the effective date of the Act (mandatory death by electrocution) subject only to the procedure under which the Judge may reduce the sentence to life imprisonment.
We think it was error to consider the matter as though the burden was upon appellant to convince the court that the sentence should be reduced. The previous sentence of death should have been considered as lifted, to be replaced by a new sentence; that is, there was to be a resentencing. Unless the judge determined that life imprisonment was justified he was to impose the death sentence, but in making his determination no weight was to be given to the fact that under the law at the time of the conviction a sentence of death was mandatory.
It is true that a majority of this court, in remanding the case in Coleman II, did not join in stating that the duty of the trial judge was that of resentencing; but it is also clear the court did not place the burden upon the defense. The majority opinion summarized the position as follows:
To recapitulate, Congress by the pertinent portion of Public Law 87-423
118 U.S.App.D.C. at 173, 334 F.2d at 563. We referred to Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (en banc). The concurring opinion there was more explicit:
Public Law 87-423 does not put the burden of proof upon the defendant to show that he should not be executed. It simply states that the judge, in resentencing, "may, in his sole discretion, consider circumstances in mitigation and in aggravation." The House Committee Report explains this language: "If the factors in aggravation outweigh those in mitigation, [the judge] shall impose a sentence of death by electrocution. If, in his judgment, the factors in mitigation outweigh those in aggravation, he shall impose a sentence of life imprisonment." Thus Congress placed the burden on the court to avail itself of all relevant information which may be helpful in imposing the proper sentence.
The original death sentence was fixed by statute. Judge Letts, the trial judge, had no choice whatever as to the sentence. If it had been originally imposed as the result of the exercise of Judge Letts' discretion a reasonable argument could be advanced that the burden rested upon appellant to convince Judge McGarraghy that the sentence should be reduced. But as we have said Judge Letts could exercise no discretion in the matter. Under the transitional statute of March 22, 1962, for the first time a sentencing judge was authorized to make an independent determination between life and death. In doing so he was to receive all relevant information and make a judgment of his own. In this posture of the matter appellant was not charged with the burden of overcoming the weight of the sentence which had been fixed by statute without the guidance of the trial judge's appraisal of the circumstances of the particular case as they bear upon the punishment.
A separate but related phase of the problem revolves around what the judge termed the circumstances of the crime. The decision in Coleman I was that Coleman was validly convicted of first degree, felony murder. This leads now to a sentence of either life imprisonment or death, but not necessarily the latter. Either penalty is now permissible for such a crime. Other circumstances must be considered in determining which of these two penalties shall be imposed.
The murder was of a young police officer in the performance of duty. This is an aggravating circumstance, recognized as such by the judge. He stated in his Memorandum:
police officers are engaged in the dangerous business of protecting the public from vicious criminals and, when they become the victims of such criminals, the public interest, both from the point of view of deterrence and of punishment, requires that the penalty fixed by law be carried into effect.
But this statement also indicates that he thought the punishment fixed by law in this case was death. In the same tenor he said that in his opinion the case,
does not justify a sentence of life imprisonment, but that the sentence shall be governed by the provisions of law in effect prior to the effective date of Public Law 87-423.
The views thus expressed by the sentencing judge disclose, we say with respect, that he reached his ultimate determination by an erroneous process. The full text of the Act of March 22, 1962, including the proviso, means that there is no one penalty "fixed by law" in this case. There are two alternative penalties either of which if validly determined is permitted by law. Yet, it appears reasonably clear, the judge thought that since the case was tried prior to March 22, 1962, weight should be given to the law as it was at the time of the trial, carrying a mandatory death sentence. This approach was not intended by Congress. Though the case was tried prior to March 22, 1962 the judge was to impose punishment under the law of that date; *fn2 but he was not to give weight to the fact that prior thereto the death sentence was the sole punishment. It can hardly be thought that the pre-existing mandatory death sentence, once it was abolished, was to be given weight in this case not applicable to a case tried subsequent to March 22, 1962. *fn3
The matters thus far discussed lead us to conclude that notwithstanding the sentencing judge's conscientious approach to his difficult responsibility the result was influenced by errors.
We need go no further to find the present death sentence invalid; but in aid of a final disposition of the case, as well as in deference to the sentencing judge and the presentations of the parties, we dwell further upon the sentencing record. II
The conviction calls for severe punishment, no less than life imprisonment. That more should not be required was supported by a number of additional considerations presented by appellant's counsel, accompanied by the testimony of a number of witnesses. A record was made of appellant's background, his retarded mental capacity, circumstances attending the commission of the crime not adduced at the trial, post-conviction factors and factors arguing against the death sentence in general and in this particular case.
The judge in his Memorandum summarized appellant's background and mentality as thus presented. He was born in 1934 in Louisa County, Virginia, one of a family of nine children. He completed the 8th grade in the county public schools. All the family, including appellant, bear a good name among both white and Negro members of the community. The crime is in sharp contrast to appellant's known behavior pattern in the county. Due to limited employment opportunities he like many others left the community in order to obtain fulltime employment. He came to Washington when he was 17 years of age. He worked as an apartment house porter and for a year or so lived with his brother Raymond and the latter's girl friend. He then moved to rooming houses until his arrest. The judge continued:
After leaving the job as apartment house porter, the defendant held a number of part-time jobs and in 1953, he went to work as a helper and finally as a truck driver for a Washington firm, for which he worked from October 22, 1953 to November 14, 1956 when he was drafted into the Army. Upon his honorable discharge from the Army he returned to that firm and continued to work from January 20, 1958 until he was discharged from his employment on December 23, 1959 because he was suspected of participation in the theft of company property.
Notwithstanding his discharge, it is reasonable to conclude from the statement of his superior with the company that he was a good worker and a better worker than most of his 16 or 18 co-workers engaged in the same type of employment.
The occurrence which led to the defendant's conviction was on January 7, 1960, approximately three weeks after his discharge from employment, during which period he was unemployed and gradually becoming without funds.
The defendant was never married. For several years prior to his arrest in the instant case, he had a girl friend with whom he lived from time to time. At the time of the robbery and murder, the girl friend knew he was out of work and offered to ...