The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest on an originalist interpretation of the Sixth Amendment, my thesis relies largely on history, a history that today is well documented by leading legal historians(30) but has been ignored or misread by the Court in fashioning its separate world of capital sentencing rights. Two aspects of that history are central to my argument: (1) unitary capital trials conducted as full adversarial proceedings, and (2) jury verdicts that determined life or death.
John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967 (2005).