the specified aggravating factors, the florida supreme court has repeatedly rejected the notion that the jury's verdict is anything other than advisory. florida law entrusts the factual findings of aggravators to the judge alone who may do so on the basis of evidence that the jury never heard and aggravators that the jury was never presented with. >> is there ever a case in which the jury found aggravators and recommended the death sentence and the judge reversed that finding? >> there may well be. this is principally a case about the finding of death eligibility not sentence selection. >> either way -- >> yes. >> -- is there ever a case in which the jury did not find an aggravating circumstance but the judge did? >> well, we don't ever know what the jury found about any of the specified aggravating circumstances.

the only thing that the jury tells the judge is, we recommend life/death by a vote of "x" versus "y." >> right, but they can't recommend death unless they find the aggravator, right? >> well, no. no. as a matter of state law, that's not correct. they can't recommend death unless seven of them each believe that some aggravator is satisfied. >> all right. >> but the florida supreme court -- and this is a -- this is another ring problem here. the florida supreme court has recognized that where two aggravators are presented, it is impossible to know even if a simple majority agreed on a single aggravator. >> well, that's a common feature, though, of jury deliberations. an aggravator is whether the murder is particularly heinous and it can be for -- for a number of factors. one, the victim is a juvenile, so maybe three jurors find that. or an officer was also killed, or it was in the commission --

in the course of another felony. in a typical case, a finding that -- the murder was heinous, you have no idea whether the juror -- jury as a whole made that determination or if there were 12 different reasons. >> mr. chief justice, florida and florida is the only state -- the only death penalty state and, therefore, the only state -- that does not require or permit the jury to be told that it has to agree -- and in all other states it's unanimous. but cannot even be told that a majority have to agree as to the existence. >> that's true of every jury determination. you could have the jury determining that, you know, the person didn't commit the offense because, you know, his alibi was good or because, you know, somebody else did it or, you

know, any number of 12 different reasons that they think he was not guilty. it doesn't have to be agreement by the jury on the particular basis for their verdict. >> we're talking here, mr. chief justice, about elements of the crime and as this court explained in ring, the existence of a statutory aggravating factor is an element of a death eligible crime. and can anybody imagine a world which would be the analog in florida if the jury at the guilt/innocence phase of any trial, shoplifting trial, were told, now, look, i'm the one who will decide if the defendant is or isn't guilty as a matter of law and eligible for punishment, but i'd like your input on what you -- whether you think each of the specified elements is or isn't satisfied. i mean, that -- nobody would stand for an argument like that. >> i'm not sure.

are you sure that if you have a crime that can be satisfied by various elements, the jury has to agree upon the specific element that satisfies it? >> the jury -- if they are distinct elements, and this implies the shad point that the state is raising. if the state consistent with long historical tradition and a finding of equal culpability chooses to permit a particular element. in shad it was premeditation or the mental state, to be satisfied either by premeditation or felony murder, that is fine. but that is not the florida system. florida requires as a matter of law and the florida supreme court has said this over and over again, that a defendant is eligible for death only if the trial judge finds as fact beyond a reasonable doubt that a

particular statutory aggravator exists. and i submit even if that were not the case, extending shad, which held that in light of 150-year history of states, including in the mental element for first-degree murder, either felony murder or premeditation, that combining those two elements didn't satisfy the death penalty. none of that is here. this is a question of the sixth amendment and the eighth amendment. no state ever has said that the jury can just decide some model of aggravation. they just -- they don't agree on the specific element. and that would violate, i think, the sixth and eighth amendment precedents. >> i would think -- i would think just the opposite, that the necessity of finding the elements of the crime goes all the way back into the mists of history, and this necessity of

finding an aggravator -- aggravating factor, we made it up, right? i mean, that's just recent supreme court law. so, if either one of them should be satisfiable by simply finding the generic conclusion rather than agreeing upon the particular species at issue, i would think it's -- it's -- it's the latter rather than the former. >> justice scalia, i'm reminded of your separate opinion, i think it was walton versus arizona, where you were choosing between two things that you didn't particularly like and one of them was the fact that the court had made, recently or not, had made a finding of a -- beyond a reasonable doubt a factual finding of a specified aggravating factor an element of the crime. and whether it's recent, whether the courts should or shouldn't

have done it, it has, and it under ring, just like any other element of the crime. and on the shad point, i think the other thing i would have said is the florida supreme court, and i'll refer the court to the bevel case. the florida supreme court has said that the 16 aggravating factors that makes one eligible for death are vastly incommensurate in terms of relative levels of moral ability opposite of the predicate of shad. >> could i ask you this about ring? i wasn't on the court at the time of ring, so could you tell me if ring is entitled to greater weight as a precedent than, let's say, gregg versus georgia and the other cases upholding the constitutionality of the death penalty? >> oh, i'm not -- i wouldn't be prepared to say -- to assign weight to either of them. i think ring is certainly predicated on gregg to justice scalia's point. if gregg hadn't decided that there has to be a determinate,

specific appellate reviewable narrowing of sentencing jury's discretion, ring wouldn't come up because an aggravating factor wouldn't be an element. >> do you think this scheme, assuming we agree with justice scalia, that you don't really need unanimity? would it still be applicable under the case that said we needed a unanimous jury, but, you know, 9 out of 12 is okay? do you think 7 out of 5 is okay? >> i hope it was clear from our brief that we think 7 out of 5 is not okay. it doesn't require this court to overrule opadapa -- >> we are not required to do anything we could say it's not

the functional e vif lent. but is it good law? should we overrule it? >> we think for the reasons stated in our brief you should overrule it and particularly in the eighth amendment context where the question is death, the jury should be unanimous. there is no other state that permits anyone to be sentenced for death other than a unanimous determination by the jury. and the state of florida requires unanimity for shoplifting, just not for death. it requires unanimity on all the other elements of the crime. now, even -- opodaca is an fmr, even -- opodaca is an >> wait a minute. they require unanimity for conviction, right? >> yes. and -- >> just they don't require unanimity on the sentence. that's quite different from whether the person committed the crime or not. >> justice scalia -- exactly. and justice scalia, leaving aside our eighth amendment point in our brief that followed on justice breyer's concurrence in

ring, this is all about the eligibility, not the determination of what sentence applies. and you have held that the existence of a specified, statutory aggravating factor is a condition. it is an element of capital murder, and it is by stat stat sta chut -- as justice thomas pointed out in mcdonald, it's an extraordinarily unusual case. even there six justices said a simple majority rule would not pass muster. we need to -- once -- when an assignment is made to a jury in a case, to decide beyond a reasonable doubt the existence of an element, however the state defines the element, we need

substantial reliability that the jury actually performs those functions. and in this case -- and, again, in this case if it were true that the sentencing jury was actually determining death eligibility, which it is plainly not, as we point out the eighth amendment would certainly be violated under caldwell, because this florida juries are told that they do not determine death eligibility and the state simply can't have it both ways. either the jury is correctly told that its role is merely advisory. in which case there is a ring violation, or the instruction that it's given violates the eighth amendment under caldwell. because as in caldwell it misleadingly, quote, minimizes the jury's sense of responsibility for determining the appropriate -- >> mr. waxman, do we -- do we just treat as irrelevant what was involved in this case, that

is, the two aggravators that were alleged, the brutality of the murder and that it occurred during a robbery, those were obvious that they existed. is that not so? >> i think it's not so. it's probably a reason why -- i mean, the heinous, atrocious and cruel aggravator can never be obvious. the state isn't even arguing harmlessness with respect to that. and as to robbery i think it's important to recognize the following. the state made a choice. they didn't even even indict timothy hurst for robbery. the sentencing jury was not even instructed on the element of robbery. the argument of harmlessness was never raised in the proceedings from the sentencing proceedings onward including the brief in opposition in this case until the gregg brief, and even there the gregg brief is simply arguing that there was a fatal concession. but in any event, justice ginsburg, there is evidence in the record from which a jury

could certainly find that timothy hurst, although he was found guilty of first-degree murder, did not, in fact, actually commit the robbery. the jury was told that to find the existence of the felony murder aggravator, it had to find -- and i believe this is on page 211 of the joint appendix, that it had to find that the murder was committed while he in the course of him committing a robbery, all of the physical evidence in this case that relates to the robbery, the bank deposit slip, the money, the bank deposit envelope and a piece of paper in leili smith's handwriting toting up the proceeds were all founds found in her possession. so although it is not this court's ordinary function to

determine whether something was or wasn't harmless as in ring, it was remanded for that purpose, i think in this case it manifestly was not harmless. and if there were a remand or any question by this court on that count, it ought to be remanded to the state court, not only to determine constitutional harmlessness but whether there was a waiver by the state in its deliberate choice never to mention this either to the second sentencing jury or thereafter. >> mr. waxman, am i understanding the case properly? the informant who had all of the physical evidence was the main identifier of the defendant, correct? >> correct. >> and -- >> there were -- there was an eyewitness from across the street who testified that he saw somebody go into the popeye's and he positively identified the defendant. and i believe there was another cooperator who backed up leli

smith's testimony. >> so, the defendant claimed, however, that this informant was the one who did the crime. could the jury under the evidence that existed concluded that they both did it? >> certainly. >> and that's why it's debatable whether it's harmless. >> yes. and, in fact -- >> because what makes it an aggravator is if he's the one who actually did the killing. >> that's correct. >> that he wasn't -- >> well, that's what the jury was instructed. >> uh-huh. >> the jury was instructed that in order to find the felony murder aggravator it had to find that the murder was committed in the course of him committing the robbery. >> personally. >> yes. >> all right. that's -- >> now, the statute, the actual aggravator is different, but that is what this jury was told. >> mr. waxman, can i give you a hypothetical state system and this is a two-part question. you tell me if it is consistent with the sixth amendment and if

it is, what makes this case different. okay? so, my system is that a jury whether in the penalty phase or in the guilt phase has to make a determination of an aggravating factor, okay? but once that's done, once the jury decides on an aggravating factor, the judge can do whatever she wants. the judge can add aggravating factors. the judge can reweigh the aggravating factors as compared with the mitigating evidence. the judge can do any of that stuff. but the judge has to leave alone the aggravating factor that the jury finds. so, in other words, the judge can't give death when the jury finds life, and the judge can't throw out the jury's factor. but as long as that jury makes that aggravating factor determination, the judge can do anything.

is that consistent with the sixth amendment? >> okay. you're asking only about the sixth amendment and not the eighth amendment point. >> yes. >> okay. so, the -- so just to be sure that i'm specifically answering your question, if the jury is told you must find for the defendant to be eligible for death, you must find beyond a reasonable doubt the existence of at least one of the statutory aggravating factors. and i would also say for sixth amendment purposes, you must either be unanimous or the vote must be 10-2 and the jury does so find. and then you have the sort of belt-and-suspenders legal system that the state is positing that florida has here, where the judge can say, okay, i'm the one who does the sentence, so i can weigh the ags and the myths. i can't -- he is death eligible because the jury found beyond a reasonable doubt that a statutory aggravator exists, but

the judge can say, nonetheless, i'm giving life. there's nothing -- there's no violation of the sixth amendment when that happens. the question is, in this case, when the sentencing jury has concluded its work -- i mean, and i'm assuming in a case where there's not a conviction for a prior aggravated felony. when the sentencing jury has concluded its work, is the defendant eligible for the death penalty under state law yes or no. and in florida the answer is unquestionably no. even if we knew that 12 of the jurors found the robbery aggravator here, there would be a ring violation just as if we knew that 12 of the jurors found that he had killed the defendant in this case, but they had been told i just want your input on this because i, the judge, will decide --

>> is that what makes a difference, then, in the end, you're saying the jury has to be specifically told that that's what it's doing? that -- you're saying it's the necessary part of a constitutional system for the jury to be instructed that it has the responsibility to find the aggravating factor that serves as a precondition to death? >> at a minimum, if, in fact, the jury is performing that function, it cannot -- at least in a capital case -- be told that it is not performing that function, that its advice -- that its verdict is only advisory. >> but -- >> what if it's told it has to decide on life or death but the judge is -- if you decide on death, the judge is going to review it and the judge has the power to sentence to life? >> if the -- i mean, there's no constitutional violation -- our view and this, again, is justice breyer's eighth amendment point which we endorse. our view is that capital

sentencing always has been and as a matter of constitutional law should be done by a jury. we're not arguing that other sentences have to be jury sentencing and so if a jury recommends -- if a jury says it's death and the judge says, well, i disagree, i'm only going to sentence him to life, there's no constitutional -- >> i'm trying to understand the limiting of your argument that what is done under the florida statute diminishes the jury's sense of responsibility. the jury's sense of responsibility will be diminished to some degree if they know that their verdict is not necessarily the final word. isn't that the case, whether they -- whether they're told you make a recommendation and the judge decides or you impose a sentence but the judge can impose a different sentence, a lesser sentence, they still don't have to bear the responsibility of making the absolutely final decision.

>> justice alito, let me separate out what i'm calling the selection decision, that is life or death and the weighing of ags and myths and the eligibility decision which is all of the elements of capital murder have been found beyond a reasonable doubt by the jury with either unanimously or a sufficient majority and, therefore, when the sentencing jury is done you are eligible for the death penalty. leaving aside the eighth amendment question whether the constitution then requires -- requires the jury to make the intensely moral judgment about whether the penalty should be life without parole or death, assuming that a judge can do that, so long as the jury is not told that its input -- which is how the florida supreme court has put it -- is -- so long as they are not told that its advisory, so long as they're told that you as the finders of

fact have to find that beyond a reasonable doubt that this capital crime was committed which includes the following elements, including one of the two specifying aggravators, the constitution is satisfied. the caldwell problem is an eighth problem. caldwell was an eighth amendment case. and in caldwell what -- i mean, what the jury is told here, if the system exists as the state posits it, what the jury is told here is far more misleading than what was told in caldwell. and caldwell the jury was simply told at closing argument that your decision is going to be reviewable by the mississippi supreme court, and a majority of this court held that that unconstitutionally diminished the jury's responsibility. here the jury was told over and over and over again, inconsistent with florida law, that your judgment is merely advisory, i will be the one to make this determination.

and either -- if that isn't -- that does appear to be the system, that violates ring. if it isn't the system and if somehow it can be argued that the jury is making implicit findings of aggravation writ large, that renders somebody eligible for death, then there is a plain caldwell problem. and that's our position. may i reserve the balance of my time? >> you may. mr. windsor? >> mr. chief justice and may it please the court, florida's capital sentencing system was constitutional before ring versus arizona and it remains constitutional in light of ring versus arizona. what ring required was a jury determination on those facts on which the state legislator conditions the imposition of the death penalty. in this instance mr. hurst got that, the legislature determined the elements pinellas to make a

defendant eligible for the death penalty is the existence of a murder and one or more aggravating circumstances and what the other side calls the advisory sentence includes in it a finding as this court recognized in united states versus jones that the jury determined there was one or more aggravating circumstances. the jury -- >> i'm sorry, how is that? when florida law says that the judge has to find an aggravator to make someone eligible for the death penalty? >> well, i agree with the other side that there's a different between the sentence selection and sentence eligibility so once the defendant is eligible because the jury has found all the necessary elements, then what happens after that, your honor, does not implicate ring at all. >> would you tell me how this is different than arizona? in terms of the system, just like in the arizona case, there had been precedent by this court that arizona law has been constitutional. unlike arizona, every florida --

every court that has -- every judge who has looked at it, not one of them has said that they believe personally it's constitutional. even the courts affirming -- affirm on the basis of the prior precedent, and you have a little less than half the court directly saying it violates ring. so, what's the jury finding when it says 7-5? >> well, if i could back up -- >> even when it says a murder's been committed. felony murder wasn't. felony murder was charged but we don't know if they found a robbery, right? >> at the guilt phase they convicted of first-degree murder which could either have been felony murder with a predicate underlying felony being robbery or premeditated murder. but to answer your actual question -- >> how do we know which one they picked? which makes him eligible for the death penalty? >> our position is he became eligible at the sentencing phase when the jury made its advisory decision because the jury at that phase was instructed that

if you determine no aggravating circumstances are found to exist, you must recommend life. >> but you do agree that that -- it doesn't require unanimous jury. >> it does not require unanimous jury. >> and a simple majority is all you need. >> that's right. >> so -- >> that's right. that's a jury finding. >> even a functionally equivalent unanimous jury finding those aggravators. >> i'm sorry? >> we don't have a unanimous or functionally unanimous jury finding those aggravators. >> our reliance for the final eligibility determination is that 7-5. but i would make this point the 7-5 -- there are two things that go on when the jury determines whether someone should be sentenced to death or not. first the jury looks and determines whether the state has proven beyond a reasonable doubt an aggravating circumstance. that's the eligibility piece of it. then they get into the sentence selection process where they weigh the aggravators that they do find, assuming they find some, against the mitigating

circumstances and, of course, the defendant under this court's precedent is allowed to put in any evidence that he -- >> i'm sorry, the jury's not asked to find an aggravator. >> i'm sorry? >> it's not asked to find an aggravator. >> it is, your honor. it's instructed it may not return a death recommendation. >> it's not found at the jury verdict. >> i'm sorry? >> it's not found at the trial. >> the sentencing phase. >> the sentencing phase. >> suppose the jury comes back at the sentencing phase and says we recommend life, and the reason, although i guess nobody would know it, is because nobody found an aggravator. can the judge nonetheless give death? >> no. with this caveat. >> they have a page in their opinion, on page 20, it cites six florida cases, which suggested to me that they thought the answer to that question is as a matter of florida law is yes, the judge can sentence to death. is it so or not? >> let me be clear. as a matter of florida statutory law it is permitted. we acknowledge under ring it would not be permitted in the

circumstance where the state is relying on the recommendation to satisfy the eligibility. now, you could have a situation -- >> i missed the last part. the jury comes back. they say life. >> right. >> and we know through mental telepathy, although i guess the judge doesn't, is the reason they gave that is no one found an aggravator. my simple question is, as a matter of florida law, can the judge impose the death sentence, yes or no? >> as a matter of florida statutory law, yes. as a matter of ring, no. >> that isn't florida -- i mean, it's federal law. ring is over. so you say the answer is now no? >> with this caveat, justice breyer. >> because you agree that this case is like ring, not this case, but any case in which they recommend life? >> not any case, your honor. >> i would like to know your caveat. what is the caveat? i'm on pins and needles here.

>> the caveat is this. >> i am too. >> there are multiple ways that a defendant in florida can become eligible for death. one is in this case where it's determined at the sentencing phase because of the finding within the jury's recommendation. in other instances, it can be -- a person can become eligible before the sentencing phase either because they have a prior violent felony conviction or a contemporaneous conviction. if someone murdered two people and were convicted of double murder, that person at the guilt phase has been found eligible for the death penalty. at that stage, then in your hypothetical, justice breyer, if that sentencing phase jury recommended life, the judge could override it without violating ring. now, i will tell you that as a matter of florida state law, the judge in that circumstance would face an exacting standard. and as a matter of fact, no judge has overridden a jury's life recommendation since before ring.

so as a matter of function it's not something that happens in florida. to answer your question, we do believe it would be constitutional in the situation i described. >> suppose the jury came in hung. >> i'm sorry? >> on the sentence. >> if the sentencing -- >> if the jury instead of being 7-5, it was hung. could the judge then impose the death penalty? >> not in this situation, your honor. because that would result in a life recommendation, a 6-6 vote is tantamount to a life recommendation. and the judge could not override that if he were relying on the jury sentencing finding to satisfy ring. and even if he weren't, he or she weren't, like i said, it's an exacting florida state law standard. the judge would be reversed for overturning that unless he or she determined or unless the appellate court determined that no reasonable jury in those circumstances could have imposed or recommended a life sentence. and as i indicated, it's been since 1999, since any judge

actually overrode a life recommendation. >> just so i understand, so you're saying that it is possible that under florida law, the jury wouldn't find the existence of an aggravating factor, and then there are different ways this would come out, the hypothetical was a hung jury, but the judge could then proceed to find an aggravating factor, and impose the death penalty. now you say this hasn't happened, it would probably be reversed. but theoretically this could happen? >> that could not happen consistent with ring, your honor, unless there were some other jury finding or admission that established death eligibility. >> you're saying it couldn't happen consistent with ring, meaning there are certain applications of the florida law that would be unconstitutional even in your view. >> that hypothetical that we've explored here, again, with the absence of another aggravating circumstance proven outside, and that actually happens in most cases, justice kagan.

>> we don't sit in judgment of the theoretical scheme that florida has set up, do we? >> no, your honor. >> we have to ajudge that there has been unconstitutionality in this case. >> that's correct, justice scalia. and in this case there is a jury recommendation, actually two jury recommendations. >> can i give you another hypothetical scheme, notwithstanding that we don't sit in judgment of hypothetical schemes? >> sure. >> suppose the jury finds an aggravating fact but then the judge has this whole separate hearing, right, in which other things are presented to him. >> mm-hmm. >> and the judge says, you know, i don't actually agree with the aggravating fact that the jury found but i have my own aggravating facts, and i'm doing all the weighing and i come out in favor of death. i assume you would say that also would be an unconstitutional application. >> no, your honor, that would be consistent with ring, because again, once death eligibility, and there's a substantial difference that this court has recognized over the years between the determination of who

is eligible for death and then of that universe of people eligible for death, for whom is it appropriate. >> yes, quite right. but i'm hypothesizing a case in which the jury finds that death eligibility marker, but the judge throws that one out and substitutes his own. you think that would be constitutional? >> well, the judge in that instance wouldn't be throwing it out. >> no, he does throw it out. he says, i don't agree with that, but i'm substituting my own. would that be all right? >> that would be okay, because eligibility would have determined, just like if in my double murder example the judge believed that -- you know, if he were sitting on the jury maybe he would have acquitted that person of the double murder, and of course you can't just override the jury's verdict based upon mere disagreement. in that instance, that eligibility was determined he had been the decision maker, maybe he would have decided differently. the person is eligible for death, and then it's up to the -- >> i have to say that answer surprises me, because the death

sentence there is not at all a function of the jury's eligibility. the judge has tossed out that eligibility finding and substituted his own, which then leads to the death sentence. how can we say that's possibly constitutional under ring? >> because the point in ring was to make sure that no person was subject to a greater penalty than they bargained for when they did the crime without a jury finding. and in your hypothetical the jury finds there is an aggravator, so there is a jury finding that that person is -- entitled to the punishment. >> the judge said that jury finding is utterly irrelevant to his decision about whether to impose death. but he's imposing death based on something that the jury has not found. >> at that point the judge's determination is separate from the selection point. the judge is exercising the discretion to sentence within -- a person who is determined by a jury to be eligible for the death penalty. >> that didn't happen here, did it? >> no, your honor. >> the thing is, you can't really tell whether that happens in a wide variety of cases.

this goes to the question of because the jury doesn't actually have to find specific things, only the judge has to find specific things, you often are not going to be able to tell whether the judge's sentence is based on the same aggravating facts that the jury has found. >> but it doesn't need to be, under ring. because once the jury has determined there is an aggravating factor or if it's been admitted, then the person is death eligible and ring is completely finished. there's nothing more to do under ring. >> even though the jury is told, now, whatever you say, it's advisory, it's not binding, so you have made a finding of an aggravator, but it's not a binding finder of an aggravator, the jury is told whatever they say is advisory, doesn't that make a difference? >> no, what the jury is told is that its ultimate recommendation is not binding on the court. and that's true. that's one of the great benefits of florida's system.

florida's system was developed in response to the court's decision in furman. the court has said the florida system provides additional benefits to the defendant. you have a judicial backstop -- >> that was before ring. >> that was before ring. we're not contesting that ring would require a finding of those elements. but once the jury makes its recommendation, even if it recommends death, the judge can override that for any reason, just based on disagreement alone, which makes it unlike the usual capital -- excuse me, the usual criminal proceeding where the judge -- >> i'm sorry. >> is it clear to the jury that they are the last word on whether an aggravator exists or not? >> what the jury is told is that they cannot return a death recommendation without finding an aggravating circumstance. >> and they're also told that the judge is ultimately going to decide whether your recommendation stands or not. >> the judge is going to

ultimately impose the sentence. that's true. that's both true under caldwell -- >> shouldn't it be clear to the jury that their determination of whether an aggravator exists or not is final? shouldn't that be clear? >> well, i don't think so, your honor, because the determination of aggravator doesn't yield a death sentence unless the judge in his or her own opinion believes -- >> i'm talking about what responsibility the jury feels. if the jury knows that if -- if we don't find it an aggravator it can't be found, or if we do find an aggravator it must be accepted, that's a lot more responsibility, even just, you know -- well, you know, if you find an aggravator and you weigh it, and provide for the death penalty, the judge is going to review it anyway. >> i'm not sure that's an accurate characterization of what goes on. it's not that the judge must

accept -- the aggravator determination has no purpose or no point other than determining eligibility and the weighing. if the judge determines that the death sentence is not appropriate, for whatever reason, then the fact that the jury found an aggravating circumstance makes no difference. >> suppose in your earlier hypothetical the judge -- the jury finds an aggravator that occurred in the course of the robbery, and therefore there is death eligibility. then it goes to the judge. and the judge says there's simply no evidence to support that aggravating factor, but i find another aggravating factor. under your view, the judge could go ahead and impose the death penalty? >> in that instance, that's a little bit different, as i understand it, than justice kagan's hypothetical. first of all, the recommendation doesn't specify which -- but this is my hypothetical. >> okay. so to make sure i understand -- >> which honestly sounds like the same.

>> i think the difference is, respectfully, includes the finding that the judge finds no evidence to support, as opposed to just disagreeing with their -- excuse me. >> and what would happen? >> if you had a situation, and again, this would be limited -- let me make sure i'm limiting the answer to the situation where the state is depending on the death recommendation. >> yes. >> which is, the minority of cases, as we've said in the brief. if the jury made a specific finding as to a specific aggravator, again, they wouldn't be instructed on that aggravator unless there was sufficient evidence of it at the threshold stage. but if the judge concluded that there was insufficient evidence, than he ever would have submitted to the jury, then -- >> there are two good analogies in other areas of the law. robbery, force of threat of force. no one need ask whether six members of the jury thought there was a threat but no actual. or seven members thought actual,

but no threat. threat or threat of force. i don't think so. so i support you. on the other hand, imagine a normal sentencing case. the statute says you get aggravated punishment if you had 50 grams of cocaine. the jury finds he had 50 grams of cocaine. no, sorry. the statute says aggravated sentence if 50 grams of cocaine or meth. the jury finds he has 50 grams of cocaine. i don't think the judge could say i'm going to give you the aggravated sentence because i don't believe there was any cocaine but i do believe there was meth. >> that may well be right. that's one of the reasons the jury is not asked to find specific aggravating -- >> but we do know that the judge here now, still, your having conceded ring, we know that the

jury can, if the jury finds aggravating factor x, have death on a completely different aggravating factor that the jury never thought of, namely y. we know that, and now compare that to the hypothetical of cocaine and meth, and then we have aprendi, which i disagree with still. >> i think, your honor, in the cocaine and meth example, i believe that the court would look, as they did in jones, and say, is the legislature setting this up as distinct offences or as one offense that can be satisfied by heightened possession of cocaine or meth. if it were the latter, then the jury would be instructed to find one or the other without specifics. >> do you think a 7-5 recommendation is finding an element of the crime that makes you eligible for the death penalty by a unanimous or

functionally equivalent unanimous jury? >> we do, your honor. and let me say -- >> then what do you do with the statement in our case law that says a simple majority is not a unanimous jury? >> we don't say that it's a unanimous jury. let me step back and say, the 7-5 vote, by the way, is not necessarily five votes that there was no aggravating circumstance. because again, there's two things that go on in a jury room. one, they decide whether there were aggravating circumstances. two, they -- >> they don't agree with which one? we don't know whether it was premeditation or robbery. it could be 4-3 or 2-5. it could be anything. >> i'm talking about in the sentencing phase now. >> right. >> 7-5 could well mean all 12 jurors found a robbery and all four jurors found heinous and cruel. >> what does the 7-5 tell us? >> the 7-5 tells us, at a

minimum, the majority of the min numb of the jurors found beyond a reasonable doubt the existence of aggravating circumstances. >> not the same one. >> i'm sorry? >> not the same one. getting back to justice breyer's point, the courts in these situations look at what the legislature, it's definition of the elements. we know as a matter of state law that the element at issue here, to take someone not eligible for the death penalty and make him or her eligible for the death penalty is the existence of one or more aggravating circumstances, not a specific one. so it is like shad versus arizona where you can't say whether the jury agreed there was premeditation or felony murder. in fact that was the case at this defendant's guilt phase back in 1998. he was convicted of first-degree murder. and the guilt phase jury was instructed that they could return that verdict either by finding premeditation or by finding felony murder.

and there was no jury finding as to which one it was. and so as a matter of -- i think to answer your question about whether they all need to be the same or not, it would depend on how the state -- >> do you believe that a simple majority is a jury unanimously or functionally unanimously finding that element beyond a reasonable doubt? >> there's certainly finding of beyond a reasonable doubt. we're relying on the court's decision in apodaca. >> that was 10-2. >> i'm sorry. >> does 10-2 automatically mean that 7-5 is okay? >> not automatically, your honor. if you look at apodaca, they were rejecting the same arguments that this petitioner is asking the court to accept, which is that the long history of unanimity should bring it into this system. i'll say this, too, the 7-5 is not the same kind of jury verdict that you would have in a guilt phase because of this backstop, because of the other protections that florida has put in place.

even if it's a 7-5 vote, you still have the judge coming behind that jury who, unlike at the guilt phase, where he must accept the jury's findings unless they're not supported by evidence, he or she can disagree or any reason. he or she can give mercy for any reason. and that happens a lot. so we cited some cases in our brief where a man was convicted of murder, in a horrible sexual assault, and by virtue of those two convictions, was necessarily eligible for the death penalty. the jury heard all of the evidence, made a recommendation that he receive the death penalty, and the judge said no, i'm going to sentence him to life. and so this court -- this gets back into the jury versus judge sentencing. but there are some real benefits associated with judicial sentencing. if you go back to profitt, this court recognized the advantages of judicial sentencing because you won't have someone's life or determined exclusively on the emotions of the jury.

>> can i go back to the kind of hypotheticals that justice kennedy and i were proposing. let's say a jury has been presented with evidence that the murder was for pecuniary gain, which is one of the aggravating factors. and the jury comes out with a recommendation of death. and that was the only thing that was presented to it. so you know that the jury has made a death eligibility determination on pecuniary gain. then it goes to the judge. the judge says, you know what, i don't really think there's enough evidence of pecuniary gain, but i've had this whole hearing and i find that the crime was heinous and whatnot, and now i'm going to sentence the person to death. now, you say that that's fine; is that right? >> well, let me -- i realize it's a hypothetical, but let me tell you why that couldn't happen in florida. a judge would not instruct a jury on an aggravating circumstance for which there was

not sufficient evidence to find that. and so your hypothetical would not happen. >> well, you know, no. well, he's heard more evidence, because there's a whole new hearing that he has. and now he's considered it more thoroughly, and he thinks, no, i don't agree with that anymore, but i think it was heinous. so that would be fine? >> again, that's not this case, because there was no additional evidence. >> yeah, yeah, yeah. >> if the judge found that there was no evidence of any aggravating -- >> i'm throwing out the jury's aggravating factor. but i'm substituting my own. i thought that was what you told me, that that was constitutional under ring. >> i think it depends why you're throwing it out. as with any jury finding, if the judge finds at the guilt phase that there is insufficient evidence to find any element, he would not rely on the jury's determination. >> this is just as a matter of sentencing. let me get on with my question,

because i think you answered this already. the appeal that's taken, right, the appeal is focusing now only on what the judge has found, isn't that right, under florida law? the appeal, if the person came in and said there was insufficient evidence, the appeal would only be as to the judge's findings and not at all to the jury's. >> well, if i understand the hypothetical correctly, someone is convicted, has a death recommendation, a death sentence, and is appealing to the florida supreme court. >> and he says there was just not enough evidence of all these aggravating factors, but that would only be as to the judge's aggravating factors. it couldn't possibly be that he would challenge the jury's. >> well, the judge's aggravating factors would be detailed in a written order. but if there were -- >> i mean, i'm just suggesting the whole appeal process suggests that the crucial death eligibility determination is being made by the judge, because that's the only death

eligibility determination that the appeals court is ever going to review. >> well, i think that gets to another benefit of florida's system, is that they do have this to review. there's been some suggestion of jury sentencing as a -- >> yes, look, they have something to review. the problem is it's the judge's thing they're reviewing, not the jury's. and that's a sixth amendment problem. >> i don't think it's a sixth amendment problem, any more than here at the guilt phase, when he appealed, and there was an examination of the evidence, they didn't know whether the jury found on felony murder predicate or on first-degree murder. they're reviewing the conviction, and they're reviewing the evidence that sustains it. or that may sustain it. >> how about if the jury -- >> to what degree is there a real dispute here about the presence of the two aggravating factors? >> there is none, justice alito, in my view. and i know that there was some argument a moment ago about the evidence suggesting that someone else may have committed the

crime. we cited in our initial brief in the florida supreme court where they said without any contention this is a two-ing va tor case. it was especially heinous, atrocious or cruel. he doesn't question the seriousness of those aggravators either. his focus, instead, acknowledging all that, was proportionality review, which is not at issue here, but, by the way, another benefit of the florida system, that the florida supreme court reviews everything for proportionality. >> can i ask two separate questions on this? >> yes. >> number one, whenever have we said that a jury waiver on an issue is based on the lack of a challenge by a defense attorney? don't we require waivers of jury trials to be explicit and by the defendant him or herself? >> when someone is waiving the jury trial altogether, absolutely. of course that would be a structural error even if there were no objection. but this goes to more like the element of offense and the court

held in washington versus r ray quendo that they are subject to harmless -- >> where have we ever said that not challenging something is an admission of that something? we take plenty of appeals where people are saying, assuming this state of facts, i'm entitled to x, and then when they go back down, they argue that that assumption is wrong. why isn't this -- >> we've cited other portions where they had acknowledged that back in the sentencing memorandum, the first go-round. to follow up on the question of whether there is an existence of a doubt, the florida supreme court found both of these clearly existed at the post-conviction opinion, which led to the resentencing that's now on appeal here. they sent it back for resentencing not because of anything having to do with death eligibility or the establishment of aggravators. they sent it back because there was insufficient effort to produce mitigating -- >> has there ever been an appeal in florida where an advisory

jury was not given a proper instruction and a resentence was ordered for that reason? >> has there been a florida supreme court reversing a death sentence for -- >> an improper instruction to the advisory jury. >> i'd be surprised if there weren't, your honor, but i don't know. i'll look at that. getting back to the admission, the evidence was clear, there's no question that there was a robbery here, there is no question that there was -- that this was heinous, atrocious and cruel. and we would ask the court affirm the florida supreme court judgment. >> thank you, counsel. mr. waxman, six minutes. >> notwithstanding this flurry of papers, i'm aspiring not to use the six minutes. let me go right to justice

scalia's question, which is not a hypothetical, although i'm happy to answer hypotheticals. your question was, was the jury told and doesn't a jury have to be told that as to death eligibility, the element of the crime of capital murder, that it makes the decision? the answer is, it does have to be told that. it certainly can't be told the opposite. and it absolutely was not told that. it was told over and over again, consistent with the statute, that its decision was purely advisory. and i want to refer the court to the florida supreme court's decision in state versus steele. it is at 921 southern. the florida supreme court in steele said, first of all, nothing in the statute, the standard jury instructions, or

the standard verdict form requires a majority of the jury to agree on which aggravating circumstances exist. under current law, the jury may recommend a sentence of death where four jurors believe only that one aggravator applies, while three others believe that only another aggravator applies, because seven jurors believe that at least one aggravator applies. florida goes beyond that. it is unlawful, the supreme court of florida has said, to require -- to ask the jury, the sentencing jury to provide a special verdict that in any way indicates what their, quote, input is on the sentencing factors. again, steele at page 546. specific jury findings on aggravators without guidance about their effect on the imposition of a sentence could

unduly influence the trial judge's own determination of how to sentence the defendant. the trial court alone must make detailed findings about the existence and weight of aggravating circumstances. >> is that a post-ring -- what's the date of it? >> yes, this is post-ring. the court also held that ring didn't apply. it has no jury findings on which to rely. and in fact, the court also explained later in the decision, in the same decision, and also in its decision in franklin, that florida -- quote, florida bars the special verdict precisely because requiring specific jury findings on aggravators without guidance about their effect would harm the jury's -- the trial court's independent determination. now, counsel, my colleague on the other side here, says that,

well, there would not be a statutory problem but there would be a ring problem if we knew that the jury found that no aggravators existed. so how can ring be satisfied, when we have no earthly idea what the jury found? it could be, as in this case, as steele acknowledges, three for one and four for the other. as to the, i think, hypothetical question that justice kagan was asking, so, you know, in a circumstance, how much leeway does the judge have to make his or her own decisions on the death penalty? the florida supreme court has specifically allowed the death penalty to be imposed and a determination of death eligibility be made based on evidence that was never presented to the sentencing jury, and based on an aggravating factor on which the

sentencing jury was not applied. and the notion that there hasn't been a life override since ring is an interesting fact, but this court, in this court's spaziano decision, in this court's daubert decision, that's exactly what happened. the jury said we want life. the judge said i'm hearing independent evidence and you're getting death. now, as to the supposed concessions in this case, i think i'll rely largely on our brief. but the notion that the lawyer said, this is a two-aggravator case is certainly true. there were two aggravators charged. and maybe the jury -- we know that the trial judge found that two aggravators were satisfied. this defendant has been making the ring argument since before ring was decided. he raised this as an aprendi issue at the very first trial. he asked for a bill of particulars for the state to

indicate which aggravators it was going to rely on. and he was denied on the grounds that aprendi doesn't apply. again, the central ring problem in this case, the central sixth amendment problem in this case, leaving aside the indeterminacy, or maybe 3 for 1 and 4 for the other. which a florida jury finishes its work, there is simply no question. the defendant is not eligible for the death penalty. only the trial judge can do that. thank you. >> thank you, counsel. the case is submitted. monday on the communique wile follow the case of schenck v. united states. charles, who was general secretary of the philadelphia

socialist party, handed out and mailed leaflets against the draft. he was arrested, tried, and found guilty under the recently enacted espionage act. he appealed and the case went directly to the supreme court. follow the case on c-span's new series "landmark cases, historic supreme court decisions" at 7:00 p.m. eastern on c-span. c-span presents "landmark cases" the book, a guide to our "landmark cases" series which explores 12 historic supreme court decisions. "landmark cases" the book features introductions, background, highlights and the impact of each case.

written by tony morrow and published by c-span. "landmark cases" is available for 8.95, plus shipping. get your copy today at c-span.org/landmarkcases. a signature feature of book tv is our all day coverage of book fairs and festivals from across the country with top nonfiction authors. we'll be in massachusetts for the boston book festival. in the middle of the month it's the louisiana book festival in baton rouge. and at the end of november we're live for the 18th year in a row from florida for the miami book fair international. and the national book awards from new york city. just some of the fairs and festivals this fall on c-span 2's book tv. nebraska senator ben sasse

will be among those testifying tomorrow morning on the closure of several health care insurance co-ops. the house energy and commerce subcommittee hearing is live at 10:00 a.m. eastern on c-span 3. former congressman howard coble of north carolina passed away late last night at the age of 84. he was first elected to congress in 1984 and went on to serve for more than three decades before leaving office earlier this year. he sat down with c-span to reflect on the institution and what issues he thought still needed attention. this is about half an hour. >> congressman howard coble, retiring after this session. you'll be longest serving republican congressman in north carolina history. what do you think your legacy is going to be after 30 years here on capitol hill? >> well, not unfavorable, i

hope. i hope it'll be one that has been laced with credibility. we have interns coming that build our staff year round. and many of them have political desires to run for office one day. and they ask me what should we emphasize. i say, you emphasize acredibility, accessibility. people back home expect to see their elected official, and i think justifiably so. i go home just about every weekend. in fact, every weekend this year. i recall having served with a fellow who could have been in the congress in his entire life. he was that good. he was a good public servant, and he have defending in the republican primary. i said what happened to our money. he quit going home was the answer.

quit going home. they never saw him. so they showed him in the gate that leads to the road out of town. >> legislatively, what are you most proud of? >> well, when i was elected in '84, we were known as the furniture, hosiery, and textile and tobacco capital of the world. not true anymore, but they're still hanging on, all those different occupations or professions. my momma was a textile worker, so textile legislation was very close to home with me. so i'd say accessibility and look at after the events back home that the country did not suffer as a result. >> how has your district changed since 1985? >> oh, tremendously. when we were elected, we were at

a very compact three county district. >> northern north carolina. >> northern north carolina. northern central north carolina. now we have eight new counties, continue to embrace two other parts, and then a couple with five complete counties all new. it was quite an adjustment. most recently we had -- that was altered somewhat, but we kept the portions of gilford, davidson, randolph, republican county. home of one of the best zoos in the world.

and pinehurst golf capital of america. lost all that with redistricting. let me tell you story, peter, about pinehurst. dr. charlie norwood now deceased, a dentist of augusta, georgia. i went to his funeral. there was an old man about my age with a big sign with these words, thanks charlie. i wish it had been in the next morning's paper. norwood would go out of his way to put down pinehurst. never missed a chance to do that. one day when i left the floor, one of my colleagues said what's the make up of your district. i know norwood heard the question. my district consists of the furniture capital of the world, high point. i think we are. one of the best zoos in the world, i said to my colleague,

and knowing that norwood was listening, i said in a very condescending tone, of course the golf capital of america, pinehurst. he came out of his seat. he said you sob, i'll give you furniture and the zoo, but i won't give you golf. i told that story to pinehurst. that story was told to them someone called norwood and told them what i had done, so he was waiting for me when i came back to town next week. i finally remembered that exchange. of course, i was right. furniture, zoo, and golf. >> so were you able and has it been the same here in congress to develop relationships with other members? >> pretty much so.

yeah, you hear a lot of talk about how partisan everything is and it is partisan, but we live in a republic where there are only two major parties. partisanship is going to be inevitable, so that in and of itself doesn't bother me. i've got many good friends on the democrat side. my mommy and daddy were democrats. i would say easier than much of the media would portray it to be. >> congressman howard coble, over the years, congress' approval ratings have gone up and down and currently they're pretty low. why do you think that is? >> very low. i'm not sure that i can put my finger -- get my fist around it because i don't see that much changing from the time i came here three decades ago to now within the chamber, but it's

very low. of course, elected officials are an easy target. some folks are not going to be happy unless they're blaming some elected official for his or her problem. that could probably be a lot of it. and i think the president -- i'm trying to be as nonpartisan as i can about this. i think the president, particularly when it comes to foreign affairs, has been very inept, very disinterested, and i think it shows. that may well contribute to the most recent low marks. and you're right. we're at the bottom of the barrel. >> you've worked with speakers since jim wright. what do you think's been most effective? >> well, wally while he was

here. i remember one time just after the contract with america and newt had his work until 11:00, 12:00 at night. i had pretty good rapport with gingrich. one of my buddies about 10:00 one night said howard, why don't you go to the speaker and see if he can make this 100 days 100 legislative days, give us an extra four or five saturdays, sunday, maybe even friday. i went to newt. i said, newt, speaker, the troops are restless. they're wondering if we can extend the 100-daytime frame to 100 legislative days. he thought pensively for a few seconds. he said, get back to work. i said, aye-aye, sir. we got back to work. i think newt. >> you've also worked with

presidents since ronald reagan. who do you think has had the best relationship with congress? i think reagan along with both bushes. i'm very high on the bushes. >> why? >> easy to be with. as a matter of fact, i just called george w. bush within the past month just to wish him well. he called me back a week later. i should have told some folks i called him. one time the senior bush -- do you remember sonny montgomery? he said, did you call the president after the defeat? i said, no. he said, you need to call him. i called him that day. voice message. left my name and number. didn't tell the staff what i had

done. the next george bush calls our office. i don't recall -- kimberly, i believe. i think it was our receptionist out front. sure, you're george bush, and then hung up. you always need to tell your staff what you've done to avoid unpleasant surprises. i'd go with newt as speaker. >> congressman coble, during the clinton administration, you served on the impeachment committee. looking back at that period in time, how do you think that's going to be looked at in future generations? >> well, you know, the late henry hyde -- i won't even

qualify to say probably the most eloquent orator in the congress. henry told me one time -- i think i remember this correctly. he said, i'm not wild about this impeachment. how do you justify that and then turn a blind eye to the president? he said, i can't do it. and i'll always remember henry saying that. your question is how will it play with the passage of time. well, i believe he may be the only one of two presidents who was impeached. am i right about that, peter? i'm not sure. >> that is correct. yep.

he and andrew johnson. >> north carolinian, by the way. >> tennessee. >> via tennessee. >> congressman coble, what brought you to congress in the first place? what made you decide to run for congress? >> well, it started probably some years earlier when an old-time lawyer duke law school -- i'm not a duke fan, but duke law school called me one day and said i want you to run for the state legislature. this was in '68. he said when you go to vote, you turn to the republican side of the ballot and it's vacant. no names on there. how do you expect to build a party with no one willing to run for office? he convinced he i needed to run for state legislature, which i did and was fortunate enough to be elected. then i served three terms in

raleigh. strike that. i was appointed assistant u.s. attorney after my first term in our state capital of raleigh. that's what started looking ahead maybe. the seat was known as the revolving door district. congressman richardson pryor, do you remember the name? pryor was elected in '68, a former federal judge, very good man, ran against bill osteen who later became u.s. attorney and was ultimately appointed to the bench. i now forgot where i was going with this. >> why you got to congress. >> back to mr. mcnair, the old lawyer. he encouraged me to run for congress as well. the revolving door started with the election of richardson pryor

and his race with bill osteen. in 1972, upset of the year, g. johnson defeated richardson pryor in a solid democrat district. would probably have been classified as the number one upset in the country. one-term congressman gene was. i'm sorry. '70 was the first one. in '72 he was defeated by a rookie. then i ran against robins in '74, '84. that was the track. >> you've been on the judiciary committee for quite awhile too.

all 30 years? >> all 30 years. >> why never the chairmanship of that committee? >> i told somebody -- i told my chief of staff this. i believe lamar smith and bob goodlap, i believe they were better lawyers than i. >> why is that? >> just having observed. i've always been a trifling student and lazy, and i just felt like -- i think i could have handled it, but i think they were better equipped and were more talented than i at the bar. >> congressman coble, one of your chairmanships is the subcommittee on the internet, intellectual property, et cetera, and you've been pretty active on that issue, protecting

intellectual property, et cet a cetera. it's been 30 years. what have you done to promote, protect, in your view telecommunicatio telecommunications? >> the high mark of my congressional career would be serving on the intellectual property subcommittee. that's been a good fit for us, and i've met so many interesting people as a result thereof. i've tried along with my colleagues to emphasize the significance of intellectual property, patents, trademark, copyright, what it means to the well-being of our economic society. we've done a good job, i think, of disseminating that work. i would not be qualified to be an intellectual property lawyer. i'm not that good because it's very complex, very intricate.

you do it wrong you pay a high price, but that would be the highlight of my career up here. >> you've also worked on prison reform and some prison issues as well. why did that pique your interest? >> well, when i was practicing law, my two areas would have been criminal law and the law of negligence, so it was coming into an area of the law with which i was not unfamiliar. >> and where would you like to see the prison systems in america go? which direction? how would you like to see them reformed? >> i think prison overcrowding is one of the severe problems facing society today. i think probably we need to look more carefully at sentencing. there may be -- there are many people confined in prisons today serving active -- well, serving

active penalties for this, that, or the other. those people probably should not be in jail. there ought to be some sort of second tier to free up some of the space because that's a time bomb waiting to explode. >> so congressman, do you think maybe drug laws need to be reformed, which a lot of conservative republicans have called for? >> probably. i think that might well be a first step, and i don't say let every jailbird loose on society. i'm not suggesting that at all, but i do think certain sentencing measures could be adopted that would result in freeing up space. >> what's your -- >> behind bars. >> what's your advice to john

boehner? >> well, i'm not sure that he needs my advice. i think boehner has been criticized from within and without. but my rating of john boehner is he's been favorable. i think he's a pretty good speaker. comes from a hard working family. job duties were cleaning up the bathroom at the end of a busy day. he's been there, done that. >> looking around your office here on capitol hill, two things i wanted to note. number one, there's some photos of you with cigars, with cigar smoke. long time cigar smoker? >> there's the cigar picture right there. i like what i call ponies, peter. small cigars. at one time i was smoking probably five or six cigars --

well, strike that. three or four cigars a day. now that changed to three or four cigars a week. then finally i just said to heck with it. part of the reason was the staff didn't like it. some of my colleagues didn't like it. the chief of staff, i think, led the fight on that. what the heck? if it is annoying to them, i don't have to have a cigar in my mouth every day. i've been free of cigar smoke probably in excess of five years. >> congressman coble, you've worked on a couple of issues that may not strike your colleagues as positive, such as limiting congressional retirement, term limits, cola increases, being careful about cola increases. have you gotten so pushback from

your colleagues up here on capitol hill? >> when i came up here, i said i was going to try to get rid of the congressional pension. that got the attention of a lot of senior members who explained things to me. but i vowed that i would -- just to make a point -- that i would not take the congressional pension, which i've not done. that's going to cost me a lot of money, but i felt like that's one of the issues back home. today's issues jobs, the economy, unemployment, all put into one hat -- now i've drawn a blank. >> we were talking about money issues. you're not taking the congressional pension. >> i have a bill that would change the eligibility date. now the congressional pension

kicks in or vests at five years. my bill would increase that to 12 years. not one cosponsor. now term limits subject to interpretation. some favor it. some abhor it. i think a good argument can be made that we have term limits now. if you want to vote for the appeal, you have the right to do that. if you don't, that's you exercising term limits. >> but aren't there a lot of built-in advantages for incumbents? >> i think that's why the folks back home don't like it because it's obvious that -- ultimately, highly favored on the one hand, crumbs from the table on the other. to this day folks come to me and complain about congressional

pension. i may be the only one who has refused the pension and the thrift plan. we really have two pension routes called the thrift plan and the pension. not my most brilliant financial decision, i might add. >> you're a bachelor. lifelong bachelor. why is that? >> yeah. i told a girl i was dating one time -- she asked me. i said i've never had time. that would normally be a bachelor cop out, but knowing you, that's probably the truth. i've dated girls who i've liked more than they liked me, conversely girls that have liked me more than i liked them, but it just never did play out. >> why retire today? why are you retiring? >> well, i've got a bad back. i've got skin cancer.

neither of which is imminently failing my health, but out of a total of ten counties in all with a bum back -- a lot of these folks don't know me as opposed to the old district. i just felt like it might be a good time to walk away. >> where are you going? what are you going to do? >> well, someone asked me that the other day and i said i haven't thought about it. he said, haven't thought about it? you've had 30 years of no spare time. you're going to be in a position where you're going to have nothing but spare time. you better be thinking about it. i won't fail retirement. i'll try to stay active, but the colleagues that have been up here, democrats and republicans alike, were very endearing to me. and i apologize, peter, to you and your staff. i'm coming down with my late

summer/early autumn cold. >> what are you going to miss most about capitol hill? >> tomorrow, i'm scheduled to go to meet with a judicial conference at the supreme court. we meet with them periodically. i'll miss meeting with them. i will not miss my weekly trek to the airport. i recall, peter, several years some months ago -- actually, it's been some years now. i was being driven to the airport by one of our staffers for rural randolph county. 95 degree day. you can see the sun is my enemy. 95 degree day. bumper to bumper traffic. i said to her, i wouldn't live in this town. she said, you do live in this town, but you don't think of this town being home. but that aside, it's still recognized as the cradle of democracy. the cradle of freedom, the cradle of liberty.

and i'm proud -- when i look out that window and see the capital, if i'm griping and complaining, it pretty well falls in line this is the best place to be. >> are you hiding back to the district after january? >> oh, yeah. i'm sure i will be. >> where are you going to keep your papers and your office records? >> university of north carolina at greensboro. >> why there? >> well, my alma mater gilford college didn't have an adequate library that could handle it. uncg does have an adequate library. >> who are you going to miss here? >> i've been richly blessed with a good staff, peter, so i'll miss my staffers. i'll miss my colleagues. both sides of the aisle.

but i really have been indebted to a good stuff. i tried to treat them right. they in turn try to treat me right. >> you've had long-term staff, haven't you? >> attrition has not been a problem for us. people come and they stay, which of course affords reliability, affords -- promotes confidence without walking back and forth, in and out the door. one day here, one day gone. >> any regrets? >> maybe should have taken the congressional pension. i say that halfway in jest. >> congressman howard coble after 30 years retiring from congress. thanks for your time. >> thank you, peter. ohio governor john kasich has announced that a special election to fill the congressional seat vacated by house speaker john boehner will

be held on june 7th. the winner of that election will serve the remainder of the current term. a primary election for that race will be held on march 15th. mr. boehner represented ohio's eight district. it spans six counties and includes the cities of troy and westchester. nebraska senator ben sasse will be among those testifying tomorrow morning on the closure of several health care insurance co-ops. the house energy and commerce subcommittee hearing is live at 10:00 a.m. eastern here on c-span 3. republican congressman jeff miller and democrat tim walz from the house veterans affairs committee talk about the va health care system and what can be done to make it more effective. >> good morning, everyone. thank you for coming to brookings to discuss the

important subject of veterans affairs as we continue to recognize just how much our men and women in uniform have done for us throughout our history and for us in the wars of the last 15 years as well and many of them, of course, leaving the military service with challenges. and also even those more generally who don't have challenges, we still owe them a debt of gratitude. the veterans affairs system is set to address a lot of these enduring needs. let me introduce them. i'm michael o'hanlon with the defense center at brookings in the foreign policy program. just to my left is congressman jeff miller from pensacola, florida, who has been in congress now for a good chunk of time, a good deal of experience. i first met him probably a dozen years ago. he had just been preparing for a trip to north korea. so many interests in his national security and foreign

affairs portfolio. he is, as i say, chairman of the veterans affairs committee and also a member of the armed services committee and was really in many ways the impetus for today's event because he has a lot of ideas he would like to present and discuss about addressing the enduring needs of the department of veterans affair. he is like his colleague tim walz from minnesota, also on both of those committees, a five-term congressman who is the democrat joining congressman miller today. we know we want to take better care of our men and women who have worn the uniform and of course the department of veterans affairs covers issues ranging from the g.i. bill to acute health care problems to enduring chronic health care problems to mental health

challenges. it is an enormous and very expensive part of the federal pushing $200 billion a year now in its annual budget. that's not part of the defense budget. that's separate from the defense budget. it would be roughly tied with china for the second largest military budget in the world, so it is a very expensive system. we have pumped a lot of resources into it, especially since 9/11, and yet we know many problems endure. what we want to do today is focus most of the time with discussion first up here with ourselves and then with you about the problems that are still within the veterans affairs system that we know we need to do better in order to help our men and women in uniform. congressman miller and congressman walz are going to help us do a primmer on where we stand in the department of veterans affairs. the question i would like to pose to both of you gentlemen, if i could, is what are we doing

well and what are we not doing well? we have put a lot of resources and time and effort and a lot of reform into it. we presumably have made some progress in the last decade or 15 years. and i wondered if you could begin just by answering that broad question, what are we doing well and where are the most severe problems today? >> it's great to be here with my friend tim. the department of veterans affairs -- and you set the scene very well. i think part of the story needs to be that it's also about 330,000 individuals that work at the department of veterans affairs, and they've gone a long way from their original mission, which of course abraham lincoln said was to care for those who had borne the battle, their widows, and orphans. now they do everything pretty much from a to z, whether it is managing cemeteries, to home

mortgages, to the g.i. bill, to homelessness, disability benefits. those are things you hear a lot about. what you're hearing a lot about in the media these days -- and the secretary is quick to remind me we're not bad at everything we do. they do a lot of things good. obviously, the national cemetery administration does things extremely well. they do great with the va mortgage side of the world. i come from a home building background. we use the va loans in the northwest florida area significantly, but i will tell you that the biggest problems that exist out there still remain within the disability side, the veterans benefit administration, and then the vha, the veterans health administration. not everything is a bad story, but some of the things that have occurred obviously according to the ieg are systemic. we still have wait lists, some unrealistic wait times.

the va is trying to work on that. i was with the secretary this morning for breakfast. they've got some great ideas they're trying to roll out, moving in a direction that's more than in the 21st century. i would say they're making some strides there, but as bad as he wants me to move away from what's happened in the past, we still have to try to root out some of the culture that's more in the va that's more about taking care of the bureaucrat instead of the veteran. until that is done, i think the va will be operating on all eight cylinders. >> thank you. great introduction. congressman walz. >> pleasure to be here with my friend. we often say that in congress. this time we really mean it. i can tell you our commitment, there's not an inch of daylight between us. i would say this is true of the american public. there's probably no issue that unifies them more than should we

care for our veterans. only 7% of the american public are veterans. so while the public is there, they want to get it right. very few have a deep understanding of how this system works. i've often said i'm the va's staunchest supporter. i'll be their harshest critic. this is a zero sum game. if one veteran waits too long, that's a failure. if it is unrealistic to shoot for 100%, i think in any organization that has to be the goal. i'm a product of that system in terms of the g.i. bill, whiis hi got a college education. a va home loan that allows you to buy a home without -- those things are managed well and are doing well. it is a large organization. i represent the male clinic in

rochester, minnesota. folks saying one of the best health care systems in the country, if not the world. it's the tenth largest, by the way, the male is, with the va being the first. the va being somewhere around 42 billion. jeff is right. we have to simultaneously look at the things that go wrong. you cannot have abuses in the system. you cannot have mismanagement in the system. you cannot have cronyism in the system. if that is a distraction from this big picture fix we need to do, the va does many things right. if you want to get some of the best health care in the world, it's the minneapolis polytrauma center. it's an integral part of our health care system in general. and you can't talk about the va

and va health care reform in a vacuum outside of the larger issue. and i think chairman miller has done a really good job of this, asking va to focus on their core competency. this becomes a proxy fight for privatization versus non-privatization. they're intertwined very closely. when the va, when they do focus on their core competencies, they can get better if they're willing to look at that term of 21st century. i don't think it's as much reform as it is disruptive innovation. health care innovation is changing rapidly. i see it at mayo clinic. when they try to build hospitals, they are not good at it. they're not good at the construction of hospitals, and that is not a proxy fight for government versus nongovernment. it is just a reality. we, as citizens, want the best care for veterans. we want it delivered in a timely

manner because they've earned it, and we want it to be cost effective. whatever model that is is the one we should go for, so i think now is a golden opportunity to do some of that. there are many things going well. there are many people going to work at va facilities that are giving of themselves, veterans themselves delivering highest quality of care. all you have to do is turn on the tv and see that's not the case elsewhere. i think we're holding onto a system that is no longer keeping up with modern challenges. that's our opportunity. >> thank you. before i get to the question of priva privatization, let me ask to break down a little bit the distinction between core competencies of physical health care in the sense of injury, to limbs to the body in general, versus mental health care, pts, traumatic brain injury, is the va system better at one of those than the other, or is that

really not the right framework to break it down? >> i don't know if that's the right framework. you have to look at the va and the way they can treat tbi, the signature injury of the last two wars. post-traumatic stress is an issue that is effecting all generations. you're seeing it really manifest itself within the vietnam veterans now where a lot of them as they get older, certain triggers are being hit. obviously mental health care is something that's important to all of us and to make sure that we do everything we can to stop the scourge of 22 veterans a day committing suicide. the vast majority of those are older veterans, and they're vietnam era veterans. i learned this morning at a breakfast with the secretary that the vast majority of those that do commit suicide aren't even in the va system. i think they said like 7 out of

10. it's a huge number. so the va has no way of even knowing that these folks actually are in need of help and of course the veterans themselves aren't willing to step forward. there's a stigma there that needs to be overridden. >> when you say they're not in the system, you mean they're not actively part of a hospital treatment program at this time? >> right. there's a category 1 through 8. you have to apply to be put in a category. and most of these individuals aren't even getting any type of a health care benefit from the department. >> so they may be getting some kind of a va benefit or their families through a g.i. bill, but they're not in the health care system of the va, which is about half the overall budget, i believe? >> that's correct. >> most of the people. >> the numbers are about 57% on that. i would fall into that category where i do not use the va

hospital for health care services. in many cases you do have some of the highest quality care being delivered. you can have the best physician in the world, but if there's an inept administrator, they're not going to get the help they need. i want to keep coming back to this. as a country in general, mental health parody is something still we're struggling with. the va is moving forward on this. i'm proud just recently, the chairman and i together did the clay hunt suicide act, which started to take some of the new best practices. that was a clear cut case. one of the best practices piece shows if you can get peer counseling and peer work as we recall as possible with some of these folks, you reduce the significance of a suicide or an attempted suicide. that's just smart. that's just smart to get them

back in their community because if they have to travel to minneapolis and they live in southern minnesota, they're disrupted from their community. it's disjointed from that. they would be better off to get that from home. they're starting to lead on many of these things as the va always has done, but again they're not going to do it alone and there are those barriers that make it very difficult for some of the practitioners to deliver that. i think again trying to compare them -- we know it is an overus overused cliche, that if you've been to one va hospital, you've been to all va hospitals, but there are some that are better than others. i think overall compared to patient care in the private sector they stack up pretty well. i think the chairman would say this, as he always has, if you can get in and if you can get by the barriers. >> the surveys are fairly good

for those who are in and getting physical treatment. the level of happiness or satisfaction is roughly comparable to what we see elsewhere. i just have two more questions and then we'll go to all of you. and i'm trying to anticipate the question of what are the policy initiatives or reforms that we still need that we haven't yet accomplished and that's going to be my last question. before that, could you each say a word at what we've gotten better at in the last 15 years? frame this in terms of both the bush and the obama administrations. we're probably going to spend most of the rest of our time talking about what we haven't yet fixed. but just for the sake of understanding the context, are there any reforms of the bush and obama period that have been particularly effective, where we can say we're better now than we were, let's say, in the 1990s? >> i would start out we adjusted for the use of our ground forces that were predominantly active army forces coming out of the national guard.

we're doing a better job of integrating those folks into the system on the benefit side as well as getting them into the va. something we do much better now and the statistics showed this, but it's a double edged sword, more of our newer veterans are joining and enrolling in the va. i remember it when i first got to congress, at that time the va was saying they didn't feel like they could advertise to get people in even. we had to have this debate. they started putting up placards on the side of buses. if you can advertise for a few good men and women, we'll take those few good men and women into the system. again, the downside of this was there was very little preparation to prepare for that. i would say to keep this in mind. the bulk of those suicides and the bulk of the care contrary to what might be popular belief are the veterans of these recent conflicts. it's like the rabbit through the

boa constrictor. the bubble comes 50 years after the conflict starts. we're seeing the vietnam veterans now. the real push to the va from the current conflict will come in 2050. that's why i say there's no excuse for not being prepared for 2050 if we let that slip. that's why i think now is the time. we're getting better. we're getting them to know their benefits are there and treating them and many of those things can be preventive medicine. then the problems that start to arise on wait times i don't believe have gotten significantly better. >> i would also say one of the things that the committee mandated several years ago was mandatory transition assistance, the tap program. it used to be most branchs of the military did not require their folks to go through tap, and even what was required i think was the marine corps and the marines only required five

years. you can't teach everything somebody needs to know about reintegrating into the civilian life in a five-hour period, so it's a longer process, more involved. granted, most folks when they're exiting the service are not focused on the things they may need 20 years down the road. they're focused on getting back to their brand-new pickup truck and their boyfriend or girlfriend, whatever it may be. something very different. but still making sure they know the benefits are available and where they need to go. one of the things va is doing very quickly from an i.t. standpoint, they had websites that are all over the map that provided information for veterans, but you had to figure out where to go. and now they're bringing -- i think i heard the number 70 websites this morning. they're bringing that down into one where a veteran can actually go into one singlular website and navigate their way through

that process, making it easier for them to know what's available. >> by the way, just a framing or a factual point, congressman walz, you mentioned it is only 7% of the population today that's veterans, and that's of course a very important statistic, but it is worth reversing it and looking it at the other way. that's still almost 25 million veterans. when you think of families, we're talking perhaps a 1/3 to half the country that is very closely linked to a veterans issue. the g.i. bill, even though it is not the health care domain, it's part of the broader veterans affairs effort, and that is better because that is now more accessible to family members. but let me now turn to, as you said both earlier, has to be our main concern, which is where are with still falling short. you both alluded to wait times, to the culture of bureaucracy. and so in addition to maybe

delving into any of those issues in greater detail, i wondered if you could also offer for all of us the one or two most important policy initiatives that you would advocate or propose. what's the fix for the worst of the problems that we still face today? >> i'll tell you i think we really started changing the way va does business last august, a year ago august, when we passed the choice act. va has always had fee for services, but it wasn't used in a way i think the veterans would expect it to be used. so what we're trying to do -- not to tear va down brick by brick, but to supplement there's only 6.5 million in the health care system. it's a significantly smaller number, and they're struggling to fill that number. they're trying to be all things to all people, and what i heard the doctor say this morning, who is the new veterans health

administration undersecretary, is that we need to start focusing what we do well and nobody else can do, which is the polytrauma centers, the traumatic brain trauma centers. the amputees, the things that are most critical that va does that are so important. and the things that allow the veteran to go outside the va. it makes no sense that a veteran would be required to go to a clinic to get a flu shot. the same thing with eyeglasses, unless there's an eye injury or something. and from a standpoint of optometry, i understand that. but there are many, many things from the basic health care that can be done outside. and we don't have to go and spend hundreds of millions of dollars in infrastructure that the va owns and has to take care of, but we can leverage what we

already have and expand outside into the community. and that's why i think, you know, for the veterans service organizations, we're very thankful that they were involved in the negotiations when we were doing the choice act, that this is trying to help the va do what they do best. and, and that is, obviously, take care of the most seriously injured of our veterans. >> so just before i go to congressman welch on the same question but to understand that more fully, you're advocating a much, much broader privatization option than we've done so far with the choice act. because the choice act basically says you have to wait a month or be in a rural area where you're a long way away otherwise you have no choice but to use the va system. what you're saying is we should give the veteran the choice no matter where they live or how long they've waited. >> it's probably not going to be reality anytime soon. when we did the choice act, we

appropriated $10 billion. and what that $10 billion was supposed to cover was folks that were outside that 40 mile parameter, and of course those that were on a wait list, longer, if you remember, va was measuring it at 14 days, and now it's 30 days. of course i'd like to see the veteran have the choice of where they go, continuity cares, something you hear the va talk about a lot. and they're very concerned with that. but this is actually va's plan, talking about going outside and taking care of things that they do well and letting others do the things that they do. >> thank you. congressman? >> and i do think you'll see a bit of a blended system. and jeff was right. we've always had fee for service. one of the issues, again, and i want to keep bringing back this frame to it is talking about this outside of health care in general.

can you give, and a bulk, a large percentage, a disproportionate percentage of our veterans do come from rural areas, even though we make up about 20% to 25% of the population, nearly all the veterans come from that area. so if you give it to mountain lake, minnesota, you're trying to make it work. but i do think that there is a reality. we should be using that. we should not be duplicating services. we should not ever forget, though, that dwee have a special responsibility. those who would say just give them a card and let them go on their own, what do congress men do then when the local hospital doesn't get them in on time? do we go to hearings on why mayo didn't get them in quick enough for a knee replacement? a proxy fight for something that it's not. 's a realization that health care and the country's population and changing

demographics and things are changing to the point where we're going to have to be open to this idea that you're not going to be able to drive down the street maybe to a big va hospital in that. that's not the way it works. we can't build them again. if there's open beds at louisville we should be making that work. >> or a dod at that facility. >> or indian health care facility. it has to be the best care for the veteran, it should be the smartest care for veterans and the most cost-effective. but one of the things that we can figure out, because again, this issue of a medical continuity of care, will be greater enhanced, and i think dod should be the place it starts, it's absolutely unacceptable that we do not have electronic medical records. and i've learned from mayo clinic, it is not just a database. it's a diagnostic tool.

if it's done correctly, the al goe riches can make that work. so i am tconvinced you will seea blended system. those core things that need to be there will remain. but we need to be smart about how we deliver it. and that's what we need to think about health care in general. these veterans come back home, yes, they're veterans, we have a responsibility. but they're also citizens seeking health care in the local community. a shortage of primary care physicians in the local community will impact the veteran just like it will the non-veteran. >> i do have one final question. last week there was some high-level, presidential-level political debate about this. you were involved a little bit. and i'm trying to understand exactly, if there's a fair amount of consensus, not just

between you two, but even with the veterans affairs system about what the goal, what the plan, the options that veterans should have. where's the current disaingredient that we need to folk in on to resolve. disagreement gets a bad name. it focuses the issues and the choices that we have to confront. so what's system -- and by system i mean all this in washington -- what's the system doing that it could be doing better to get us to the next step, even if we're not going to get to the final goal anytime soon to at least get us to the next step? >> if i were to pick one thing, accountability is the thing that's going to change the system the quickest. and we pass an accountability bill through the house. we're trying to get, in fact, i spoke to richard blumenthal. he objected when senator rubio

tried to get unanimous consent to bring it to the floor. the number one person in the benefits administration, the other night, said it is too difficult to fire people at the department of veterans affairs, and you have to be able to hold people accountable. that's not to say everybody out there needs to be fired. it's probably not a huge number as relates to 330,000 people, but it still has to be done. and accountability and transparency are the two biggest things. so i would say the most important thing is to make it easier to discipline individuals who can't or won't do their jobs. most people at the va, as tim has already said, are doing their job and doing it very, very well. but there are people out there that know that they are protected, and i can't do anything to them. and they're causing the grief at the va right now. >> well, i agree on one piece of this, the accountability piece. and jeff and i disagree on this. i'm a public schoolteacher, and i've always heard that you can't fire public schoolteachers, one

of the thing is they don't get out of their offices to see if they're performing or not performing. i don't think it makes much sense to strip the ability of workers to have collective bargaining wri bargaining rights. if many cases, we don't disagree. i think he has been a champion on accountability. i couldn't agree more. and we passed one on these ses folks. these are highly qualified people. they can either take a position as the hospital director at the mayo clinic or the va hospital. we want them in the va hospital, so there has to be some incentive, but not the abuse that was there and the idea that they would simply outlast administrations and be there beyond that. so i do agree, the quickest thing you can do is have that accountability piece in it. i think it's done by having high expectations of what we're going to say and do. and there are ways and they would have it if they would just

move on their job and get rid of them, breaking that piece of the culture, but i would say right now, i think a big mistake is going to be made that is going to have long-lasting implications and hurt our opportunity do their is, dod, regardless, and they said they're going to do it, they're on the path to purchasing a new electronic record and they don't care what the va says. so you, the taxpayer, earveryon we're going to buy a system for them that won't be able to communicate with the va and the private sector. i think there's agreement on this. hold those that are doing wrong quickest as possible. but give us the tools to have their big systemic change, and the big systemic change is being able to manage data, being able to manage data towards an outcome. >> real quick to piggyback off what tim said, we spent $1 billion that was supposed to be an integrated system.

dod finally they said, we're not going to do it. now they're using this word inoperable. in the 21st century it doesn't make any sense at all, even though they both are doing different things with that system, the system can be made to work like this, not like this. which is exactly, i'm afraid, what they're doing. >> because they make the argument, dod makes the argument our system has to work in a submarine in limited band with. well, if uber can come up with an app, you should be able to do their. this is more complex than a uber app. but the sentiment is decent that i do believe we have overcome this. i would make the argument that va and dod when it comes to health care and focussiixing th would be better, it would