The freedom from governmental intrusion into an individual's papers has long been recognized in the law. Even before the American Revolution, the English Court of Common Pleas stated "Papers are the owner's goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection ...." (Entick v. Carrington (1765) 19 Howell State Trials 1029, 1066.)
However, this factor is not adequate to meet Lockett's requirements. It authorizes the jury to consider only those circumstances which extenuate the gravity of the crime. It fails to tell the jurors that they are free to give independent mitigating weight to those aspects of an individual's character or record which do not pertain to "the crime" of which he was convicted. Lockett itself demonstrates the inadequacy of factor (j), for Lockett requires that a jury be allowed to consider as mitigation not merely "any of the circumstances of the offense" but also the "defendant's character and record." (438 U.S. at p. 605 [57 L.Ed.2d at p. 990].)
Appellant's jury was told that, after considering the evidence, "[y]ou shall consider, take into account and be guided by the following factors, if [38 Cal. 3d 751] applicable ...." (CALJIC No. 8.88.1.) The jury was then given the list of 10 statutory factors. By telling the jurors that they were free to disregard factors which they found not to be "applicable" ¶ and by failing to tell them that they were free to add any mitigating factors which were proffered by appellant ¶ the instruction created a compelling inference that the list was an exclusive one. The reasonable juror, upon hearing this instruction, would conclude that the list was his or her exclusive "guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision." (Gregg v. Georgia (1976) 428 U.S. 153, 192 [49 L. Ed. 2d 859, 885, 96 S. Ct. 2909].
North Carolina has addressed Lockett's concerns by requiring that the judge instruct the jury on any nonstatutory mitigating circumstance "proffered by and specifically requested by a defendant which is supported by the evidence and from which the jury might reasonably find mitigating value." (State v. Stokes (1983) 308 N.C. 634 [304 S.E.2d 184, 195-196, 198].) Thus California's factor (j) problem could not arise; if a North Carolina defendant presents mitigating evidence of his character or record which is not covered by one of the statutory factors, he is nonetheless entitled to an instruction which draws the jury's attention to the evidence, and [38 Cal. 3d 753] instructs the jury that it is free to give the evidence independent mitigating weight. fn. 17
At least one other court has required the same unambiguous showing that the sentencing authority understood that it was free to give independent weight to all of the mitigating evidence proffered by the defendant, even where the sentencing authority was a judge rather than a jury. The Arizona Supreme Court set aside a death judgment in a case where the sentencing judge had considered all the defendant's psychiatric evidence and had determined that none of the statutory mitigating factors had been established. (State v. McMurtrey (1983) 136 Ariz. 93 [664 P.2d 637, 646], cert. den. (1983) 464 U.S. 858 [78 L. Ed. 2d 161, 104 S. Ct. 180].) Reversal was required because it was not clear that the judge understood that he was required [38 Cal. 3d 755] after finding no statutory mitigating factors, to "consider the offered evidence further to determine whether it in some other way suggests that the defendant should be treated with leniency." (664 P.2d at p. 646.)
NOTE: EEOC investigators must take great care in situations involving both (a) the statutory rights of employees to be free from discrimination at work, and (b) the rights of employers under the First Amendment and RFRA. Although a resolution satisfactory to all may come from good faith on the part of the employer and employee through mutual efforts to reach a reasonable accommodation, on occasion the religious interests of the employer and employee may be in conflict. EEOC personnel should seek the advice of the EEOC Legal Counsel in such a situation, and on occasion the Legal Counsel may consult as needed with the U.S. Department of Justice.
While some employees believe that religion is intensely personal and private, others are open about sharing or outwardly expressing their religion. In addition, there are employees who may believe that they have a religious obligation to share their views and to try to persuade coworkers of the truth of their religious beliefs, i.e., to proselytize. Certain private employers, too, whether or not they are religious organizations, may wish to express their religious views and share their religion with their employees. As noted above, however, some employees may perceive proselytizing or other religious expression as unwelcome based on their own religious beliefs and observances, or lack thereof. In an increasingly pluralistic society, the mix of divergent beliefs and practices can give rise to conflicts requiring employers to balance the rights of employers and employees who wish to express their religious beliefs with the rights of other employees to be free from religious harassment under the foregoing Title VII harassment standards. 2b1af7f3a8