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Should Gang Membership Sway Jury? With AM-Scotus Rdp

November 12, 1991

WASHINGTON (AP) _ A convicted murderer’s membership in a racist prison gang should play no role in a jury’s choice of life or death as his punishment, a Delaware death row inmate’s lawyer told the Supreme Court on Tuesday.

But a Delaware prosecutor said such evidence reflects someone’s character and should be allowed.

Both positions were tested by numerous questions from the justices during a 60-minute argument session. The court’s decision, expected by July, will determine whether Delaware may execute David Dawson or must give him a new sentencing trial.

Dawson’s lawyer, Bernard O’Donnell of Wilmington, Del., contended that the Constitution bars ″use of a person’s beliefs to impose punishment,″

″Advocacy of an abstract doctrine is protected under the First Amendment,″ O’Donnell said.

The amendment protects the freedom of speech and association.

But Delaware Deputy Attorney General Richard Fairbanks argued that Dawson’s membership in the white supremacist Aryan Brotherhood is a relevant factor in considering his sentence because it indicates his ″lawlessness″ and ″his rejection of rehabilitation.″

″He wants to wrap himself in the First Amendment but the gown doesn’t really fit,″ Fairbanks said.

Dawson was convicted of murdering Madeline Kisner on Dec. 1, 1986, the same day he and three others escaped from a state prison near Smyrna, Del.

At his sentencing trial, Dawson’s prosecutors were allowed to tell jurors about his gang membership. The evidence was considered as an aggravating factor to be considered in choosing life in prison or death as punishment.

Dawson’s death sentence was upheld by the Delaware Supreme Court.

Chief Justice William H. Rehnquist and Justice Antonin Scalia, the court’s two most conservative members, appeared least sympathetic to O’Donnell’s arguments in Dawson’s behalf.

Rehnquist likened the evidence of Dawson’s gang membership to a convict’s stated lack of remorse over killing someone. ″Surely that could be taken into consideration″ even though it touches on a ″particular belief that this guy should have been killed.″

Scalia, after getting O’Donnell to concede that prosecutors sometimes could tell a sentencing jury about a criminal’s poor treatment of his mother, asked why prosecutors should be blocked from saying that the same defendant believes all mothers should be treated poorly.

Fairbanks also came under intense questioning, most often from Justice John Paul Stevens.

Could the jury be told simply that Dawson is a racist,″that he voted for a certain person in an upcoming election,″ Stevens asked.

Fairbanks replied that such evidence should be allowed, adding, ″It does speak to a characteristic that is relevant - he is fundamentally at war with this society.″

The response prompted Souter to ask whether jurors could be told a defendant is a Socialist, and Scalia to ask whether they could be told a defendant is a sexist.

When Fairbanks hesitated briefly, Scalia quipped, ″That’s not quite as bad as being racist?″

Questions from both Scalia and Rehnquist suggested that allowing prosecutors broader leeway in what adverse character evidence they can use against a defendant would balance the broad leeway defense lawyers already enjoy to introduce mitigating evidence.

″If you’re going to keep out the bad stuff, you’ve got to keep the good stuff out, too,″ Scalia said.

Fairbanks said Dawson was allowed to tell the sentencing jury about his membership in Alcoholics Anonymous. ″This is the counter to that evidence,″ he said.

O’Donnell forcefully disagreed. ″This is not rebuttal evidence,″ he said, saying there is no relationship between alcoholism and racism - ″or any other ism.″

The case is Dawson vs. Delaware, 90-6704.

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