Friends believe that pro-life individuals should not take human life without substantial justification. On the other hand, they are firmly committed to the proposition that the unborn are persons in the constitutional sense whose life ought not to be taken without substantial justification either. In that regard they do not believe that Paul Hill received a fair trial as to whether his acts on that particular occasion, in the defense of the unborn, were justified. They are also concerned that the rights of that the unborn, in this, and other litigation, have been unrepresented or under-represented as to their interest in the outcome.

Amici Curiæ adopt by reference Petitioner's statement of the case and facts. Pet., p. 7.

1.Review is required because it appears that Hill was given faulty Farretta advisements, did not qualify to represent himself, and prejudiced by a denial of a meaningful access to the courts to provide the following defenses:

2. In view of Sullivan v. Louisiana, 113 S.Ct. 2078 (1993), review is required because it appears to have been unreasonable for the court below to refuse the defense of the right to use reasonable force, and deadly force if reasonable, in the defense of others, to wit the unborn because they are members of posterity" as used in the Preamble of the Constitution, and therefore a person entitled to a defense.

The constitutional prohibition against cruel and unusual punishment "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by humane justice." McCleskey v. Kemp, 481 U.S. 279 citing Weems v. United States, 217 U.S. 349 (1910), 378. "[T]he 'basic concept underlying the 8th Amendment' in this area is that the penalty must accord with the 'dignity of man.'" Id, citing Trop v. Dulles, 356 U.S. 86 (1958), 99, 100. Decisions in this area have been informed by "contemporary values concerning the infliction of a challenged sanction." McCleskey, citing Gregg v. Georgia, 428 U.S. 153 (1976), 173.

A survey of "contemporary values concerning the infliction" of the death penalty suggests there are three objective evolving standards of decency which restrict when the death penalty may be inflicted: (i) a re-examination of the 8th Amendment in the context of the amount of force which a state may use to defend its citizens; (ii) a historical retreat from infliction of the death penalty in all felonies to those limited circumstances when a victim is killed, and there is the requisite culpability; (iii) a historical retreat from public executions.

However, because of Farretta errors, Hill was denied an opportunity to marshal legal arguments and present them, with supporting facts, to the court. He was prejudiced because the emerging standards demonstrate a potentially meritorious claim the state may impose the death penalty, if at all, only on a showing that the state can not control Hill's conduct by mere incarceration. As an important instruction was not given, review is required to determine whether reversal is automatic and mandatory. Sullivan v. Louisiana, 113 S.Ct. 2078 (1993).

Sovereignty resides in the People. U.S. Constitution, Preamble ["We, the People"]. The federal powers are expressly recognized as being delegated powers. U.S.Const., 10th Amendment. 1 Rotunda, Treatise on Constitutional Law §§ 3.1, 3.2. By its terms, the 10th Amendment implies that powers are delegated by the People to the State, and the concept is written into the California Constitution's Preamble.

It has always been recognized that a Person could only grant that estate which he possessed. Blackstone, Commentaries on the Laws of England, Vol. 2, page 290; Cheshire, The Modern Law of Real Property, p. 660 (Citing common law principles). At the time the constitution was drafted, an individual could use only reasonable force for self-defense, and deadly force only when met with deadly force and its use is reasonable. If the attacker retreats or abandons the fray, then the victim can no longer use deadly force. Foster, Crown Law 273-277 (1762); Brown v. United States, 256 U.S. 335 (1921); Perkins, Criminal Law and Procedure (1972) 660-667; Tennessee v. Garner, 471 U.S. 1 (1986).

Because an individual at common law could only use reasonable force, and deadly force if reasonable [Foster], that is all the power the individual collectively could delegate to the States, hence the State may only use reasonable force, and deadly force if reasonable. Garner.

Because of the Farretta error, Hill was denied an opportunity to bring this to the Court's attention, therefore reversal is required. Sullivan, supra.

The rules of self-defense apply to states in International Law. United Nations Charter, Chapter VI [commencing with Article 33]. It is considered a rule of jus cogens, vis peremptory norm of international law, from which no state may derogate. Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AJIL 55 (1961), 60, #3; Id, Forbidden Treaties in International Law, 31 AJIL 571-77. The concept is preserved in the United States Constitution, Art. I, § 1 (No State shall, ... engage in War, unless actually invaded ... imminent Danger ...). It has been tacitly recognized by stare decisis. Tennessee v. Garner, 471 U.S. 1 (1986) [Striking down State's fleeing felon statute].

Once an individual is incarcerated, that is all the force required to protect society from further harm and the death penalty therefore would be cruel and unusual punishment, unless the State shows, in a given case, beyond a reasonable doubt that society cannot protect itself by mere incarceration.

Because of the Farretta error, Hill was denied an opportunity to bring this to the Court's attention, therefore reversal is required. Sullivan, supra.

In Barefoot v. Estelle, 463 U.S. 880 (1983) it was held that it was proper for the jury to consider whether or not defendant would commit criminal acts in the future and thus pose a threat to society. However, the court went on to say in Solem v. Helm, 463 U.S. 277 (1983), that we will not assume that there is no rehabilitative opportunity. Accord, Hitchcock v. Dugger, 481 U.S. 393 (1987) [reversing death penalty for refusal to consider mitigating circumstances].

Every day we incarcerate People who pose a threat to society. LPS Act, Welfare & Institutions Code § 5000, et seq.; Probate Code, § 1400, et seq.; Conservatorship and Wardship, Welfare & Institutions Code § 200, et seq.; Generally, Note, Probate Code Conservatorships: A Legislative Grant of New Procedural Protections (1977) 8 Pacific L.J. 73. Thus, the relevant inquiry is not whether the defendant poses a future threat to society, an entirely speculative and subjective opinion of what may happen, but whether or not society can effectively control the behavior by incarceration, with a possibility of rehabilitation. That is to say, the emerging standards of decency is such that the State may not exact the death penalty unless it demonstrates beyond a reasonable doubt that it cannot protect society by mere incarceration.

Because of the Farretta error, Hill was denied an opportunity to bring this to the Court's attention, therefore reversal is required. Sullivan, supra.

At common law, all felonies, regardless of whether death resulted, and in theft cases, regardless of the amount taken, warranted the death penalty, except mayhem for which mutilation was substituted. Perkins, Criminal Law and Procedure (Foundation press, 4th Ed., 1972), p. 4-5. Whipping was substituted for death as the penalty for petite larceny, but that was a change from the common law resulting from an early statute. Id. Statute of Westminster, 1, c. 15 (1275). In the words of Blackstone, "the true criterion of felony is forfeiture." 4 Bl.Comm. *97. Modernly, few felonies are recognized as capital crimes. Perkins, at p. 5; generally, 4 Encyclopædia Britannica 847 (1971). Moreover, and notwithstanding Apodaca v. Oregon, 406 U.S.404 (1972), there is not a single jurisdiction left which allows the infliction of the death penalty with less than a unanimous jury verdict.

The United States Supreme Court has recognized further restrictions upon the utilization of the death penalty. Thus in non-fatal felonies, the court held that the imposition of the death penalty was unconstitutional. Coker v. Georgia, 433 U.S. 584 (1977); Eberhardt v. Georgia, 433 U.S. 917 (1977). Similarly, in Enmund v. Florida, 458 U.S. 752 (1982), the court held that in felony-murder cases, the death Penalty was unconstitutional where the accomplice did not commit murder, nor intend that death result. Then in Tison v. Arizona, 481 U.S. 137 (1987), the Court distinguished Enmund on the basis that in Enmund "the degree of participation was so tangential that it could not be said to justify a sentence of death", and held that "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result."

Congress at one point abolished the death penalty altogether. Pub.L. 98-473, Title II, §§ 212(a), 235(a)(1), Oct. 12, 1984, 98 Stat. 1987-2020, 2031, effective November 1, 1987, adopting Chapter 227 - Sentences, 18 U.S.C. §§ 3551, et seq. 10 States of the United States have abolished it. 4 Encyclopædia Britannica 847 (1971). Of 20 Latin American Countries, 10 have abolished it. Id. All but 4 Mexican States have abolished it. Id.

At common law, and the early days of this Country, executions were a public affair designed as a deterrent. 3 Encyclopædia Britannica 404 (1971) [except heads of state]; 4 Id 847; 6 Id 825; 11 Id 64; 18 Id 556. At the restoration, Cromwell's body was exhumed, and his head displayed on a spike at the gates as a warning to all. 6 Encyclopædia Britannica 802. Common Law displays of execution have become a relict of the past. The last public execution occurred in Kentucky in 1936. 11 Encyclopædia Britannica 64. Under modern statutes, the public is excluded, witnesses limited to those found by law necessary to be present to assure the State that the law had been obeyed. Infliction of the death penalty has steadily been withdrawn from public view. Former 18 U.S.C. § 3566 [Chap. 227]; California Penal Code § 3605. Thus, much of the deterrent effect is now gone, if there ever was any deterrent effect. AC App., p. 8.

Thus, the emerging standards of decency has been withdrawal of the death penalty from all felonies to those felonies in which the victim dies as a proximate result of culpable personal conduct on the part of the defendant. Where the death penalty is imposed, it is hidden from the public eye, therefore lacks any significant impact on deterrence.

Because of the Farretta error, Hill was denied an opportunity to bring this to the Court's attention, therefore reversal is required. Sullivan, supra.

Capital punishment is no longer a universally recognized means of controlling human behavior. It has been withdrawn as a public spectacle, and restricted to a narrow class of cases in which a victim dies as a proximate result of the defendant's own culpable conduct. Most jurisdictions that do allow capital punishment require a unanimous verdict. Just as Tison teaches that some homicides are justifiable, anthropologists can show in recent modern time cultures that recognize cannibalism as socially acceptable. Youths who are left unguided, misguided by parents, or abused by others may well have grown up with maladaptive behavior through no fault of their own.

The sum total of the foregoing, implicit in Garner, is that the State may not use its sovereignty with any more force than is reasonably under the circumstances, and the death penalty only if it has demonstrated beyond a reasonable doubt that it cannot protect society by mere incarceration.

It is not clear whether there is a factual basis for a plea, but that can be explained by the fact Hill was denied appropriate Farretta considerations, and thus denied meaningful access to the Courts. Assuming arguendo a potentially meritorious defense, in view of Hill's conviction and sentence of life in federal court, if the case involves the same set of facts necessary for guilt or death litigated in the federal case, then double jeopardy would apply, absent Heath v. Alabama, 474 U.S. 82, 96 (1985). However, current scholarly research suggests that the court erred in Heath.

D was tried, convicted, and given life in Georgia, then tried and given the death penalty for the same homicides in Alabama. Held: Dual Sovereignty does not bar second trial. Heath v. Alabama, 474 U.S. 82 (1985), 96. The court readily conceded had Georgia attempted a second shot to get the death penalty, it could not. The Court relied on Moore v. Illinois, 14 How. 13 (1852), 20; United States v. Wheeler, 435 U.S. 313 (1978), 317. The court over-looks the fact that Dual sovereignty is a concept rejected by itself in Elkin v. United States, 364 U.S. 206 (1960). The very concept is flawed in the United States where sovereignty is vested in the People. U.S. Constitution, Preamble; Scott v. Sanford, 60 U.S. (19 How.) 393 [The 13th & 14th Amendments enlarge the class of persons belonging to sovereignty]. As each State is a part of the whole, it is the Peace and Dignity of the People violated, whereever situated, and it can be punished but once. The concept was understood at Common Law to bar punishment for the same offenses committed abroad. Rex v. Hutchingson, 2 Keb 785, 84 E.R. 1011 (16__?); Hughes v. Cornelius, 2 Show. KB 232, 89 E.R. 907, 89 E.R. 907 (1664) [Admiralty; Captain charged with piracy on the high seas pleaded in abatement he was found by an admiralty court in another country to have taken a prize according to articles of war; plea held to be good]; Rex v. Cottingham, Cro Car. 506, 2 Roll. Abr. 83; Beake v. Tyrrell, 3 Mod. 194, S.C. 1 Show 6, 89 E.R. 411 (1689?); Rex v. Roche, 1 Lench 134, 168 E.R. 169 (1775) [Plea withdrawn]; Rex v. Sawyer, 2 Car. & Kir. 101, 175 E.R. 41, 44 (1815); Rex v. Elrington, 9 Cox, Crim Cases 86, 121 E.R. 870 (1861); In re Thompson, 9 W.R. 203; Rex v. Sheen, 2 Carr. & P. 634, 172 E.R. 287 (1827); Rex v. Walker, 2 Moo & Rob 446, 174 E.R. 345, 347 (1843). In Roche, quoting Beake on Hutchingson' Case, Hutchingson was tried and acquitted in Portugal, arrested in Newgate to be tried for the same murder, and it was agreed having been acquitted in Portugal, he could not be tried again in England. Support for this common law tradition is found in the Constitution: Sovereignty vested in People (Preamble); Rights and limits of federal power (Art. I, §§ 8 & 9); rights and limits of State Power (Art. I, § 10; Art. IV, § 1 [supremacy; full faith and credit], 9th, 10th & 14th Amendments); limits on both federal and state power (1st [speech, petition, religion], 2nd [quartering of soldiers], 4th through 7th [rights of "people", "person", and "accused"]. By 28 U.S.C. §§ 1738 and 1739, Congress has made the full faith and credit clause applicable to federal courts. Davis v. Davis, 305 U.S. 52 (1938), 118 ALR 1518. Heath v. Alabama, 474 U.S. 82 (1985) should be overruled as being inconsistent with the warp and wolf of common law and American notions of double jeopardy jurisprudence. Other cases of note: Ex Parte Lange, 85 U.S. (18 Wall.) 163, 172 (1875); 3 Rotunda § 23.20,fn. 2. The constitution protects People, not places. The Katz Doctrine. It is absurd to believe that the Federal Government cannot deny rights; a state acting alone cannot deny rights; but the federal government acting in concert with a State, or two States acting in concert can. The Constitution protects People, not abstract notions of sovereignty the common law tradition of which has been abolished by Article I §§ 9 & 10.

Because of the Farretta error, Hill was denied an opportunity to bring this to the Court's attention, therefore reversal is required. Sullivan, supra.

The Court below denied Hill an opportunity to justify his conduct as defense of third persons. IBA, pp. 53. If in fact the unborn are persons in the Constitutional sense, then Hill was privileged to use reasonable force in their defense. Roe v. Wade, 410 U.S. 113 (1973), is an aberration and should be discarded as unsound in principal and unworkable in practice because, in light of scholarly research, it appears that the court overlooked where in the Constitution the unborn are persons in the constitutional sense, and thus entitled to the same protections as others.

Neither the 5^th nor the 14^th Amendment defines person. The 14^th Amendment defines citizenship. In other contexts, the court has held that aliens (E.g., Hampton v. Mow Sun Wong, 426 U.S. 88 (1976); U.S. Const., Art. VI (Treaty Clause); McKechnie, Magna Carta; The Great Charter of King John, Art. 41 (Aliens)) and non-natural person are person entitled to Constitutional protection. E.g., Land v. Dollar, 330 U.S. 731 (1947) (Replevin; Stock taken under color of law). Not to recognize the unborn is therefore an anomaly. As "Person" is used without qualification, the most logical place to look for meaning is the Preamble, because, while its purpose is not to create rights, it does define for whom the rights were created. The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. The Preamble creates two classes of sovereignty: "Ourselves" and "our Posterity." Its purpose appears to be to include "Posterity" on an equal footing with, and the same rights as, "our selves" as evidenced by the parallel structure of the phrase. Therefore, "posterity," as to those who are lives in being, is synonymous, if not with "citizen," surly with "person." This understanding is consistent with the meaning of 'posterity' in 1787 when the Constitution was signed. In 1644, in a well known pamphlet, it was argued that Parliament can no more censure the issue of the mind than it can the issue of the womb." At common law, it was understood that certain members of future generations, fetuses, were a life in being for the purposes of the Rule Against Perpetuities. Moreover, prenatal injuries, were to a limited extent, recognized at Common Law, and it does not appear that tort actions for prenatal injuries were barred. Had the framers used "and our heirs", it would have created the equivalent of a fee simple absolute with the powers of alienation, a concept clearly inconsistent with the concept of "unalienable rights" found in the Declaration of Independence and the concept of an "indestructible and perpetual union" in the Preamble, whereas if construed as a fee tail, it would be consistent with an intent to create "unalienable rights" and "a perpetual union," for the protection of future generations, including the unborn. It was submitted to the People for ratification. Implicit in the Preamble is the concept of social contract wherein society promises the individual inalienable rights, in return for which the individual promises to conform to the laws of the majority which do not derogate from inalienable rights. Mutual promises have always been considered sufficient consideration for enforceability. As persons who have not reached the age of capacity could not consent, it appears that adults are of the class "our selves," and all others of the class "Posterity," to include lives in being, i.e., the unborn.

Taking the approach that the unborn are members of 'Posterity' answers a number of theoretical problems. First, it is a further development of constitutional theory which recognizes there is not just one right, or more precisely- life, at stake, but two, the mother's, a member of 'Ourselves,' and the Unborn, a member of 'Posterity.' Second, it answers why the State cannot force a woman to terminate pregnancy or engage in eugenics, because the life of the unborn cannot be taken, absent legal justification or excuse. Third, it assures that a women's right to terminate pregnancy is not abridged where to carry to term would be an undue burden, i.e. mother has a right to self-defense where fetal life endangers her life. Fourth, it sets a standard for preserving both lives, if possible, guarding against undue state influence. Finally, it does justice by respecting the Constitutional guarantee to protect human life, removing from the discussion a word, abortion, which is inflammatory, ending, hopefully, the carnage done to women, Posterity, and others.

The point is that an important defense was withdrawn from consideration. Properly charged, a jury could have found that Hill acted with a bona fide good faith belief his acts were necessary for the protection of a life protected by the constitution, and reasonable, therefore not guilty, or unreasonable, and therefore guilty only of voluntary manslaughter. The failure to give the jury a third option is constitutional error. Beck v. Alabama, 447 U.S. 627 (1980). Moreover, the Court should not speculate what the jury might have done in a hypothetical case never presented to it, therefore the reversal is automatic and mandatory. Sullivan v. Louisiana, 113 S.Ct. 2078 (1993).

WHEREFORE, Amicus Curiæ pray, for all of the reasons and arguments set forth herein, this court grant review, reverse the judgment, and remand for further proceedings not inconsistent with this court's opinion, and such other and further relief as the court deems just and proper under the circumstances.

Dated: December 12, 1999

COMMITTEE OF DETAIL, I

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[Proceedings of the Convention, June 19 -- July 23.]

COMMITTEE OF DETAIL, IV

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VI

We the People of (and) the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New. York, New. Jersey, Pennsylvania, Delaware, Maryland, Virginia, North. Carolina, South. Carolina and Georgia do ordain declare and establish the following Constitution for the Government of ourselves and of our Posterity.

1.

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COMMITTEE OF DETAIL, IX

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IX

We the People of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia do ordain, declare and establish the following Constitution for the Government of ourselves and our Posterity.

1.

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Monday MADISON August 6

MADISON

Monday August 6th. In Convention

<Mr. John Francis Mercer from Maryland took his seat.>

Mr. Rutlidge <delivered in> the Report of the Committee of detail as follows: < a printed copy being at the same time furnished to each member.>

We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.

Article I

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[To refer the report to a Committee of the whole Ayes -- 5; noes -- 4.

Delaware being represented during the Debate a question was again taken on ye Committee of ye whole Ayes --- 3; noes --- 6.]

On the question to agree to the Preamble to the constitution as reported from the committee to whom were referred the Proceedings of the Convention -- it was passed unan: in the affirmative [Ayes -- 10; noes --- 0.]

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Tuesday MADISON August 7

MADISON

Teusday August 7th. In Convention

The Report of the Committee <of detail being> taken up,

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The <preamble> of the Report was agreed to nem. con. So were Art: I & II.

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Tuesday MADISON August 7

MCHENRY

Augt. 7.

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The preamble or caption and the 1. and 2. article passed without debate, ....

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COMMITTEE OF STYLE

Proceedings of Convention Referred to the Committee
of Style and Arrangement.

We the People of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia do ordain, declare and establish the following Constitution for the Government of ourselves and our Posterity.

ARTICLE I.

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COMMITTEE OF STYLE

Report of Committee of Style

a more perfect union, to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE I.

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Resolved that the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this Convention that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the recommendation of it's Legislature; for their asent and ratification. ***

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[To postpoine the report respecting the 22nd and 23rd Ayes --- 9; noes --- 1.]

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To strike out the word "to" before establish justice Ayes --- 8; bites --- 2,]

The engrossed Constitution being read, ...

Docr. Franklin rose with a speech in hand ....

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... --- He then moved that the Constitution be signed ...

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On the question to agree to the Constitution enrolled in order to be signed. It was agreed to by all the States answering ay.

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Read the engrossed Constitution. Altered the representation in the house of representatives.

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THE CONSTITUTION
OF THE UNITED STATES

We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE I.

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Source: Statistical Abstract of the United States, 1963 (Table 197), 1969 (Table 199), 1976 (Tables 252 & 299), 1986 (Tables 279 & 329), 1996. Total Murders represent number of murders committed in United States. Number per 100,000 represents the number of murders per 100,000 persons in the United States.