text:
    No. 85-1470.
    Community Nutrition Institute et al. v. Young, Commissioner of Food and Drug Administration, et al.
   C. A. D. C. Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 85-1473.
    Edwards v. Goldberg et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1474.
    Williams v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1475.
    Kalin et al. v. Casillas, District Director, Immigration and Naturalization Service.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1478.
    Boyce v. Ridgely et al., Personal Representatives of the Estate of Boyce.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 85-1484.
    Owen Steel Co., Inc., et al. v. South Carolina Tax Commission et al.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 85-1489.
    Hilgeford et al. v. Peoples Bank, Portland, Indiana.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-1497.
    Flynn v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1531.
    Gumz v. Morrissette et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-1532.
    Fleming v. Moore.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-1534.
    No. 85-1562.
    Bolden v. United States; and Edwards v. United States.
   C. A. 11th Cir. Certiorari denied. Reported below: 777 F. 2d 644.


text:
    No. 85-1552.
    Mosher v. Internal Revenue Service et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1557.
    Greenspan v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-1564.
    Cade et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1566.
    Kakar v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-1567.
    Varraso v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 85-1580.
    Gibson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5873.
    Best v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5911.
    Rouco v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6038.
    Walker v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 85-6074.
    Young v. Henderson, Superintendent, Auburn Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6167.
    Crittendon v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 85-6221.
    No. 85-6222.
    No. 85-6230.
    Gometz v. United States; Fountain v. United States; and Silverstein v. United States.
   C. A. 7th Cir. Certiorari denied. Reported below: 768 F. 2d 790 and 777 F. 2d 345.


text:
    No. 85-6227.
    Glasgow v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6352.
    Bordan v. Stratton.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 85-6360.
    Smith v. Scully, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6361.
    Pearson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6385.
    Richards v. Tennessee.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 85-6391.
    Carter et al. v. Louisiana.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 85-6392.
    Noll v. Petrovsky, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6393.
    Ray v. White, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6399.
    Morris v. Christian Hospital.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 85-6401.
    Kaltenbach v. Louisiana.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 85-6402.
    Mueller v. Petsock, Superintendent, State Correctional Institution and Diagnostic and Classification Center.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6405.
    Crawford v. Parks et al.
   Ct. App. Ga. Certiorari denied.


text:
    No. 85-6406.
    Boyer v. Frey et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6408.
    McDaniel v. Kellum.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6409.
    Cisneros v. Merit Systems Protection Board.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-6412.
    Masters v. Whittaker Steel et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6416.
    Redman v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6419.
    Lampkin v. Wainwright, Secretary, Florida Department of Corrections.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 85-6420.
    White v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 85-6421.
    Jahn v. Bowen, Secretary of Health and Human Services.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-6423.
    Shimkus v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 85-6426.
    Cissell v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 85-6427.
    Mitchell v. Ohio.
   Ct. App. Ohio, Hamilton County. Certiorari denied.


text:
    No. 85-6431.
    Dale v. South Dakota.
   Sup. Ct. S. D. Certiorari denied.


text:
    No. 85-6432.
    Jackson v. Newsome, Warden.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 85-6434.
    Morales v. LeFevre, Superintendent, Clinton Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6436.
    Day v. Continental Insurance Cos.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6437.
    Campbell v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6443.
    French v. O’Leary, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-6444.
    Lampkin v. Morris, Superintendent, Southeastern Training Center.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6445.
    Gunther v. Workmen’s Compensation Appeal Board.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 85-6446.
    Howard v. Fitzpatrick et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6449.
    Mayfield v. National Broadcasting Corp. et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6450.
    Rutledge v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 85-6452.
    Todd v. Rees, Superintendent, Deuel Vocational Institution.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6453.
    Sawdey v. Smith, Superintendent, Attica Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6455.
    Farquhar v. Food and Drug Administration.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-6459.
    Ostrom v. Housewright, Director, Nevada Department of Prisons, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6463.
    Guichard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6466.
    Campbell v. Montana.
   Sup. Ct. Mont. Certiorari denied.


text:
    No. 85-6469.
    Draper v. Murray, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6473.
    Garivay v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6477.
    White v. Moore, Chairman and Compact Administrator, Missouri Board of Probation and Parole, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6479.
    Dorsey v. Bowen, Secretary of Health and Human Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6490.
    Tipton v. Bowen, Secretary of Health and Human Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6493.
    Kahn v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6503.
    Vella v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6505.
    Rivera v. Green et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6513.
    Wrenn v. Walters, Administrator, Veterans Administration.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-6520.
    Meyer v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6522.
    Isenberg v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6532.
    Tripp v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6537.
    Hooks v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-6539.
    Hairston v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6543.
    Jackson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6564.
    James v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6567.
    Roderick v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-6569.
    Hernandez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6577.
    Sotelo v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6579.
    Volino v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6582.
    Tierno v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-791.
    O’Dell v. United States.
   C. A. 6th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-1445.
    Deas et al. v. PACCAR, Inc.
   C. A. 11th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-1454.
    Will et al. v. Comprehensive Accounting Corp. et al.
   C. A. 7th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-1177.
    Miller v. United States.
   C. A. 11th Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


author: Chief Justice Burger,

text:
    No. 85-1235.
    Poythress et al. v. Kessler.
   C. A. 11th Cir. Certiorari denied.

Chief Justice Burger,

with whom Justice White joins,

dissenting.

This petition presents the question whether a prevailing plaintiff, a lawyer, who acted for herself may recover attorney’s fees under 42 U. S. C. § 1988. The Courts of Appeals have uniformly held that a pro se litigant may not recover attorney’s fees under § 1988, since such a litigant does not require the assistance of an attorney to enforce his rights. Lovell v. Snow, 637 F. 2d 170 (CA1 1981); Pitts v. Vaughn, 679 F. 2d 311 (CA3 1982); Cofield v. City of Atlanta, 648 F. 2d 986 (CA5 1981); Rheuark v. Shaw, 628 F. 2d 297 (CA5 1980), cert. denied sub nom. Rheuark v. Dallas County, Texas, 450 U. S. 931 (1981); Davis v. Parratt, 608 F. 2d 717 (CA8 1979); Turman v. Tuttle, 711 F. 2d 148 (CA10 1983).

Here, the Court of Appeals for the Eleventh Circuit required the District Court to award fees to respondent Kathleen Kessler, who is an attorney, even though she was proceeding pro se. 777 F. 2d 1508 (1985). In the analogous context of attorney’s fee awards under the Freedom of Information Act, 5 U. S. C. § 552(a)(4)(E), the Courts of Appeals have reached conflicting conclusions concerning whether a pro se plaintiff who is also an attorney is entitled to fees. Compare Falcone v. Internal Revenue Service, 714 F. 2d 646 (CA6 1983) (attorney-litigant denied fees), cert. denied, 466 U. S. 908 (1984), with Cazalas v. United States Dept. of Justice, 709 F. 2d 1051 (CA5 1983) (attorney-litigant entitled to fees). District Courts have also reached conflicting determinations concerning an attorney-plaintiff’s eligibility for fees under § 1988. Compare Rybicki v. State Board of Elections of Ill., 584 F. Supp. 849 (ND Ill. 1984) (attorney-plaintiff entitled to fees), with Lawrence v. Staats, 586 F. Supp. 1375 (DC 1984) (attorney-plaintiff denied fees).

Because the award of fees under § 1988 and under the Freedom of Information Act have much in common, and because the award of fees in this case is in conflict with the general rule against the award of fees to pro se litigants, I would grant certiorari in order to resolve the conflicting decisions in the lower federal courts.


author: Justice White,

text:
    No. 85-1314.
    Wilsey, Individually and as Special Administratrix of the Estate of Hammel v. Eddingfield et al.
   C. A. 7th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan and Justice Marshall join,

dissenting.

Petitioner Krista Wilsey, an Iowa resident, filed this wrongful-death action in the United States District Court for the Central District of Illinois against respondents, three Illinois physicians. Specifically, petitioner alleged that respondents had been negligent in performing surgery on her 4-year-old daughter, the decedent. Petitioner also requested that she be appointed special administrator of the estate of her deceased daughter so that she could properly prosecute the action: Under Illinois law, a special administrator is appointed to administer a decedent’s estate where the only asset of that estate is a cause of action for wrongful death. See Ill. Rev. Stat., ch. 70, ¶ 2.1 (1986). Jurisdiction was allegedly based on diversity of citizenship under 28 U. S. C. § 1332.

A panel of the United States Court of Appeals for the Seventh Circuit, however, held that diversity jurisdiction was lacking and dismissed the action. 780 F. 2d 614 (1985). Relying on its earlier decision in Betar v. De Havilland Aircraft of Canada, Ltd., 603 F. 2d 30 (1979), the Court of Appeals concluded that a special administrator under Illinois law has no personal stake in the proceeds of a wrongful-death action but merely distributes those proceeds to the statutory beneficiaries. Consequently, the statutory beneficiaries and not the special administrator are the real parties in interest whose citizenship is determinative for diversity purposes. Because the decedent’s father, one of the statutory beneficiaries, was an Illinois resident, there was incomplete diversity between the parties and diversity jurisdiction was lacking.

This holding, as the Court of Appeals itself recognized, is in conflict with the Tenth Circuit’s decision in Hackney v. Newman Memorial Hospital, Inc., 621 F. 2d 1069 (1980), in which that court found diversity jurisdiction to be proper in a very similar situation involving the Oklahoma wrongful-death statute. See also, e. g., Bettin v. Nelson, 744 F. 2d 53 (CA8 1984); Bianca v. Parke-Davis Pharmaceutical Div. of Warner-Lambert Co., 723 F. 2d 392 (CA5 1984). Moreover, as Judge Posner pointed out in his dissent from the Court of Appeals’ decision not to rehear this case en banc, under Illinois law the special administrator is a fiduciary of the estate’s beneficiaries and has sole control over the litigation. See Rodgers v. Consolidated Railroad Corp., 136 Ill. App. 3d 191, 193, 482 N. E. 2d 1080, 1082 (1985). Thus, the holding below is also in tension with this Court’s decision in Navarro Savings Assn. v. Lee, 446 U. S. 458, 465 (1980), in which we held that business trustees — “active trustees whose control over the assets held in their names is real and substantial” — were real parties in interest for diversity purposes. See also Mecom v. Fitzsimmons Co., 284 U. S. 183 (1931). In addition, defining diversity jurisdiction by the citizenship of the statutory beneficiaries, the approach taken by the Seventh Circuit panel, could make for a difficult and time-consuming determination in ascertaining diversity for jurisdictional purposes. See Navarro, supra, at 464, n. 13.

Because of the conflict among the Circuits and the tension between the Court of Appeals’ holding and our decision in Navarro, I would grant certiorari.


text:
    No. 85-1399.
    Edward Hines Lumber Company of Oregon v. Lumber & Sawmill Workers Local No. 2588 et al.
   C. A. 9th Cir. Motion of Chamber of Commerce of the United States for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 85-1414.
    Lapeyrouse Grain Corp. et al. v. Nelson, dba W. J. Nelson Co.
   Sup. Ct. Ala. Motion of petitioner to defer consideration of the petition for certiorari denied. Certiorari denied.


text:
    No. 85-1476.
    Blackburn, Warden v. Flowers.
   C. A. 5th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 85-6147.
    King v. Healy et al.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Justice Marshall would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 85-6299.
    No. 85-6365.
    Esquivel v. McCotter, Director, Texas Department of Corrections. Quince v. Florida.
   C. A. 5th Cir.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 85-6299, 777 F. 2d 956; No. 85-6365, 477 So. 2d 535.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 84-1360.
    No. 84-1636.
    No. 85-897.
    No. 85-979.
    No. 85-982.
    No. 85-1050.
    No. 85-1090.
    No. 85-1115.
    No. 85-1123.
    No. 85-5386.
    No. 85-5907.
    No. 85-5921.
    No. 85-5935.
    City of Renton et al. v. Playtime Theatres, Inc., et al., Morris, Superintendent, Southern Ohio Correctional Facility v. Mathews, Kowalchuk v. United States, Svendrowski v. Missouri, Sampson v. Raskin et al., Trahan v. Trahan, Hudnut, Mayor of City of Indianapolis, Indiana, et al. v. American Booksellers Assn., Inc., et al., Moats v. Wick, Director, United States Information Agency, et al., Taylor v. United States et al., Fleming v. Kemp, Warden, Lumbert v. DeRobertis, Warden, In re Murphy, Smith v. South Carolina,
   ante, p. 41;

ante, p. 237;

ante, p. 1012;

ante, p. 1001;

ante, p. 1013;

ante, p. 1002;

ante, p. 1001;

ante, p. 1017;

ante, p. 1018;

ante, p. 1058;

ante, p. 1022;

ante, p. 1008; and

ante, p. 1031. Petitions for rehearing denied.


text:
    No. 85-5952.
    No. 85-5964.
    No. 85-5998.
    No. 85-6009.
    No. 85-6058.
    No. 85-6070.
    No. 85-6139.
    No. 85-6193.
    No. 85-6231.
    Gisriel v. Board of Appeals, Maryland Department of Employment and Training, Leventhal v. United States Department of Labor et al., Runnels v. Kingston et al., Boggs v. Virginia, Lackhouse v. Merit Systems Protection Board et al., Fields v. Simmons et al., Reeder v. Morris, Superintendent, Southern Ohio Correctional Facility, Colatriano v. Cave et al., Sommer v. Clinton County Supreme Court et al.,
   ante, p. 1023;

ante, p. 1024;

ante, p. 1025;

ante, p. 1031;

ante, p. 1049;

ante, p. 1027;

ante, p. 1051;

ante, p. 1052; and

ante, p. 1067. Petitions for rehearing denied.


text:
    No. 84-1044.
    Pacific Gas & Electric Co. v. Public Utilities Commission of California et al.,
   ante, p. 1. Petition for rehearing denied.

Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 85-961.
    Holding v. Sovran Bank et al.,
   ante, p. 1036. Petition for rehearing denied.

Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 85-6194.
    Rodman v. Reed et al.,
   ante, p. 1066. Petition for rehearing denied.

Justice Brennan took no part in the consideration or decision of this petition.


text:
    April 22, 1986
    No. A-807 (85-6761).
    Funchess v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, is granted until 5:00 p.m., April 22, 1986.


text:
    No. 85-6761 (A-807).
    Funchess v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. The order heretofore entered staying execution of sentence of death until 5:00 p.m., April 22, 1986, is vacated. Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    April 28, 1986
    No. 84-1672.
    Hepps et al. v. Philadelphia Newspapers, Inc., et al.
   Appeal from Sup. Ct. Pa. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-6501.
    Robinson v. United States.
   Appeal from C. A. D. C. Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


author: Chief Justice Burger.

text:
    No. 85-6004.
    Clark v. Florida.
   Appeal from Dist. Ct. App. Fla., 5th Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Chief Justice Burger.

I agree that we should dismiss this improper appeal, and treating the appeal as a petition for certiorari, deny certiorari. The merits of this appeal are utterly frivolous, as were most of appellant’s persistent efforts in the courts of Florida. In light of that frivolousness, as well as appellant’s status as a member of the Florida Bar, I would award the State costs and fees under Rule 49.2.

This case originated when appellant Bret Clark received a speeding ticket while traveling on the Florida Turnpike on August 12, 1982. At the time he was a law student. Appellant pleaded not guilty, went to trial pro se and lost; he was fined $100. On appeal the Fifth Judicial Circuit Court of Florida, sitting in its appellate capacity, affirmed without opinion on September 4, 1984. At some point during 1984 appellant graduated from law school and was admitted to the Florida Bar.

Five months later, on February 14, 1985, appellant sought a writ of certiorari from the Florida Fifth District Court of Appeal. Under Florida Rule of Appellate Procedure 9.100(c), however, a petition for that writ must be filed within 30 days of the order sought to be reviewed, or in this case, no later than October 4, 1984. Appellant claimed that his petition was nevertheless timely under an exception to the rule when denial of appellate review would be fundamentally unfair, because he claimed he did not become aware of the Fifth Judicial Circuit’s order of affirmance until January 14, 1985, after his driver’s license had been suspended by the Florida Department of Highway Safety and Motor Vehicles. He apparently failed to inform the Circuit Court of his change of address while appeal was pending and to keep a watchful eye on that court’s docket, as he was obligated to do if he intended to pursue his claim.

On the merits, he challenged the arresting officer’s failure to show him the digital display on the radar detection device indicating that he was exceeding the speed limit. He also challenged the Florida sentencing procedure as discriminating against traffic offenders who plead not guilty by imposing “double or nothing” fines that exceed the fine imposed if they plead guilty, thereby discouraging offenders from protesting their guilt. Finally, he challenged the constitutionality of the 55-mile-per-hour speed limit. The Court of Appeal ordered the State to show cause why the petition should not be granted, and the State filed a response raising the jurisdictional bar based on the untimely filing of the petition. On April 15, 1985, the court dismissed the petition for lack of jurisdiction.

Undeterred, appellant filed a motion for rehearing which was stricken as untimely. Over a month later he filed a motion to recall mandate and a suggestion for reconsideration. At this point the State, frustrated with appellant’s frivolous litigious efforts, filed a response pointing out that the court had no power to recall mandate, and that no mandate had even issued. The State also moved for attorney’s fees pursuant to Fla. Stat. § 57.105 (1985), which provides for an award of fees where a losing party’s position is completely lacking any “justiciable issue” of law or fact. The State emphasized that appellant’s motion for recall of mandate

“demonstrates a startling ignorance of the law, and, more importantly, an unwillingness to expend even minimal effort to research facts or law before taking the time of this counsel and this honorable court. . . . [T]he correspondence and pleadings in this cause . . . amply demonstrate petitioner’s misconception that his law training entitles him to file whatever he wants whenever he wants without the slightest regard for the law or judicial resources.” App. to Juris. Statement A-4.

Appellant responded by citing a Florida District Court of Appeal decision from 1980 supporting his position that the court could consider his rehearing motion. See Rogers v. State Farm Mutual Automobile Insurance Co., 390 So. 2d 138 (Fla. App. 1980). He also asserted that the State’s motion for fees “demonstrate[d] a shocking degree of arrogance and lack of professionalism,” App. to Juris. Statement A-7, and that the State, “by its motion, reveals that it has nothing but contempt for a law student who does not simply permit an injustice to run its course, paying an unjust penalty.” Id., at A-8.

The Court of Appeal issued an order to show cause why sanctions should not be awarded, and appellant again responded that his efforts were not frivolous, relying on the same 1980 case. He claimed his driver’s “license was suspended without notice or an opportunity to be heard.” Id., at A-10. The State filed a notice of supplemental authority pointing out that the 1980 case upon which appellant relied had been reversed by the Florida Supreme Court in 1981. See State Farm Mutual Automobile Insurance Co. v. Judges of District Court of Appeal, Fifth District, 405 So. 2d 980 (Fla. 1981), reversing 390 So. 2d 138 (Fla. App.). The Court of Appeal thereafter denied the motion for recall of mandate and awarded attorney’s fees in the amount of $100 against appellant pursuant to Florida Rule of Appellate Procedure 9.400(b).

Not one to suffer defeat lightly, appellant untimely moved the Court of Appeal to review its order granting the nominal $100 fee award. For the first time, as appellant acknowledges, see Juris. Statement 2, he claimed that the award of sanctions was in retaliation for certain correspondence he had sent to the Court of Appeal complaining about the “denial” of appellate review of his conviction, in violation of his First Amendment right to petition for redress of grievances. He contended that the fee statute was therefore “repugnant to the Constitution and laws of the United States.” App. to Juris. Statement A-14. The Court of Appeal summarily denied his motion to review the award on September 12, 1985, and the Florida Supreme Court informed appellant that it lacked jurisdiction to review orders granting fee awards under Rule 9.400(c) on November 14, 1985.

From the Florida Fifth District Court of Appeal’s “final” order, appellant brings this appeal challenging the fee award as in violation of the First Amendment. He claims Fla. Stat. § 57.105 (1985) permits an award of fees based “upon the vague concept of what constitutes a‘justiciable issue.’” Juris. Statement 2. This claim, coming from an attorney, is so utterly frivolous as to not warrant any further discussion. All this suggests is that appellant considers the judicial system a laboratory where small boys can play.

Rule 49.2 provides that “[w]hen an appeal or petition for writ of certiorari is frivolous, the Court may award the appellee or the respondent appropriate damages.” Plainly this is an appropriate case for sanctions. As the State makes clear:

“This case, although the subject of considerable judicial attention, has been troubled by two common elements — untimeliness and only casual observance of proper state procedural rules. Every pleading Clark filed after the affirmance of his speeding ticket was either late or inappropriate and filed with but a minimal knowledge of relevant procedure. That which started him litigating in the Fifth District Court of Appeal was filed almost four months late. Even after being informed that the court was without jurisdiction to entertain the petition, Clark nevertheless persisted in his efforts to obtain something to which he was not legally entitled under state law. When that persistence resulted in a motion for him to pay for the state’s costs in the litigation, he was given an opportunity to show cause why such an assessment should not issue. At most, Clark only offered reasons which had nothing to do with the purpose of the motion.” Motion to Dismiss 4-5.

Appellant now claims that he “is the victim of a state court system which, confronted by a critical and recalcitrant defendant, decided to punish him for attempting to assert his right to a day in court on an appeal from a conviction in a presumably routine traffic case.” Brief Opposing Motion to Dismiss 1. This distorted framing of the issue simply illuminates the frivolousness of this appeal. The extended proceedings in this case make clear that no one has denied Bret Clark his day in court. Rather, appellant has demonstrated a contempt for the Florida courts and the system of justice by repeatedly ignoring filing deadlines and by raising patently frivolous claims. As a result of his protracted efforts to keep this case alive, the State has been denied its right to put an end to this tedious litigation.

This curious sequence suggests the dangers of a system of legal education that trains students in technique without instilling a sense of professional responsibility and ethics — a bit like giving a small boy a loaded pistol without instruction as to when and how it is to be used. Had he thus conducted himself after finishing law school and before being admitted to practice the State would plainly have been entitled to conclude that he was unfit to be a member of the Bar.

I would impose a penalty of $1,000 in favor of the State against appellant, who, as a member of the Florida Bar, has abused his privilege to practice law by repeatedly filing frivolous papers.


text:
    No. 85-1295.
    Tyus v. Martinez.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded to the Court of Appeals to consider the question of mootness.


text:
    No. 85-1446.
    United Retail Workers Union, Local 881, Chartered by the United Food & Commercial Workers International Union v. National Labor Relations Board et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of NLRB v. Financial Institution Employees, ante, p. 192.


text:
    No. 85-6213.
    Murphy v. Holland, Warden.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Michigan v. Jackson, ante, p. 625.


text:
    No. 84-6903.
    Mattheson v. Phelps, Secretary, Louisiana Department of Public Safety and Corrections.
   C. A. 5th Cir. Petition for writ of certiorari dismissed as moot.


text:
    No. - - -.
    Smith v. Transworld Drilling Company Vessel.
   Motion to direct the Clerk to file a petition for writ of certiorari out of time denied.


text:
    No. A-749.
    Treadwell Ford, Inc. v. Campbell et al.
   Sup. Ct. Ala. Application for stay, addressed to Justice Black-mun and referred to the Court, denied.

Justice Blackmun would deny this application as moot.


text:
    No. D-519.
    In re Disbarment of Davis.
    [For earlier order herein, see 474 U. S. 896.]
   Disbarment entered.


text:
    No. 85-494.
    California Federal Savings & Loan Assn. et al. v. Guerra, Director, Department of Fair Employment and Housing, et al.
   C. A. 9th Cir. [Certiorari granted, 474 U. S. 1049.] Motion of American Civil Liberties Union et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for oral argument denied.


text:
    No. 85-495.
    Ansonia Board of Education et al. v. Philbrook et al.
   C. A. 2d Cir. [Certiorari granted, 474 U. S. 1080.] Motion of respondent Ansonia Federation of Teachers for divided argument and for additional time for oral argument denied.


text:
    No. 85-767.
    North Carolina Department of Transportation et al. v. Crest Street Community Council, Inc., et al.
   C. A. 4th Cir. [Certiorari granted, 474 U. S. 1049.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-6491.
    In re Pallett.
   Petition for writ of habeas corpus denied.


text:
    No. 85-6304.
    No. 85-6396.
    No. 85-6488.
    No. 85-6517.
    In re Parker; In re Wollak; In re Hegwood; and In re Frazier.
   Petitions for writs of manda-

mus denied.


text:
    No. 85-6364.
    In re May.
   Petition for writ of mandamus and/or prohibition denied.


text:
    No. 85-1122.
    Behrend et al. v. Godwin et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1234.
    Benavides, Webb County Judge, et al. v. Gonzalez.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1318.
    Adamick et al. v. Hodel, Secretary of the Interior, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1413.
    Marcantonio v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-1464.
    Newkirk et al. v. Bigard, Individually and dba B & B Oil Co., et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 85-1465.
    Maryland State Teachers Assn., Inc., et al. v. Hughes, Governor of Maryland, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-1468.
    Woods v. Superior Court of California, County of Alameda (Jones, Real Party in Interest).
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-1469.
    Massachusetts Department of Education et al. v. David D.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-1482.
    Tilkens, Personal Representative of the Estate of Jones v. Parks.
   Ct. App. Okla. Certiorari denied.


text:
    No. 85-1492.
    Borg-Warner Leasing, a Division of Borg-Warner Acceptance Corp. v. Doyle Electric Co., Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-1496.
    Alperstein et al. v. Three Lakes Water and Sanitation District.
   Ct. App. Colo. Certiorari denied.


text:
    No. 85-1498.
    Moore et al. v. Volkswagenwerk, A. G., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-1509.
    Vintilla et al. v. United States Steel Corporation Plan for Employee Pension Benefits.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-1516.
    Giammario et al. v. Trenton Board of Education et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 85-1523.
    Caldwell v. Enoch, Judge, 101st District Court of Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-1527.
    Johnson v. North Dakota.
   Sup. Ct. N. D. Certiorari denied.


text:
    No. 85-1595.
    Karapinka v. Union Carbide Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-1601.
    Winfield v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1614.
    Pollina v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5591.
    No. 85-5704.
    Steele v. United States; and Godfrey v. United States.
   C. A. 11th Cir. Certiorari denied. Reported below: 763 F. 2d 1401.


text:
    No. 85-5925.
    Brewer v. Garner, Warden.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 85-5936.
    Thibodeau v. Maine.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 85-6108.
    Scott v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6109.
    Brown v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6164.
    Miller v. Oregon.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 85-6171.
    Davenport et al. v. California.
   App. Dept., Super. Ct. Cal., County of Santa Barbara. Certiorari denied.


text:
    No. 85-6200.
    Neal v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6234.
    Willis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-6274.
    Dean v. Young, Superintendent, Waupun Correctional Institution, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-6478.
    Quinn v. Armontrout, Director, Missouri Department of Corrections, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6482.
    Williams v. Alabama et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6483.
    Bergstrom v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 85-6484.
    Grieder v. Illinois Department of Employment Security et al.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 85-6485.
    Hall v. Grant, Superintendent, Corrections Camp Program.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6486.
    Edaburn v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 85-6487.
    Hall v. Henderson, Superintendent, Auburn Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6489.
    Jeter v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6492.
    Jenkins v. Rafferty, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6494.
    Hakim v. Wolverine Packing Co.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 85-6496.
    Benedum v. Perini, Superintendent, Marion Correctional Institution.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6497.
    Gates v. Johnson, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-6500.
    Privett v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 85-6502.
    Sutton v. Morris, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6507.
    Keller v. Petsock, Superintendent, State Correctional Institution and Diagnostic and Classification Center, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6541.
    Spann v. Clark.
   Ct. App. Ga. Certiorari denied.


text:
    No. 85-6585.
    Fleming v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 85-6597.
    Lloyd v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-6598.
    Barker et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-6601.
    Carr v. Bowen, Secretary of Health and Human Services.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-6609.
    Spear v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-6615.
    Guzman v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-465.
    Mountain Plains Congress of Senior Organizations et al. v. Malchman et al.
   C. A. 2d Cir. Certiorari denied.

Justice Blackmun would grant certiorari. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 85-744.
    Maine v. Thibodeau.
   Sup. Jud. Ct. Me. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.

Chief Justice Burger,

dissenting.

John Tower’s brother reported him missing on October 27, 1988; his mother told police that he had last been seen taking respondent Jay Thibodeau for a test drive in his car that he had for sale. On the morning of October 28, police officers went to the Thibodeau apartment where they spoke with respondent in the presence of his parents for about 10 minutes. Respondent told police that he and Tower had gone for a test drive the previous day, after which Tower dropped him off at home.

Two police officers returned to the Thibodeau household that afternoon and asked respondent to show them the route he and Tower had taken the day before. Respondent agreed and got into the backseat of the police car, a two-door automobile. For about an hour and a half the three retraced the complicated route respondent described to the police, after which respondent was returned home. At no time did respondent ask to leave the car. At one point in the journey respondent asked if he was a suspect. The police stated that he had been the last person seen with the victim, to which respondent replied, “Well, I guess I am.”

Two days later police found John Tower’s body, shot in the head with a .22-caliber rifle. The next day, police discovered that respondent had traded in his .22-caliber rifle for another gun. Police arrested respondent on November 1. After waving his Miranda rights, respondent confessed to the killing.

At trial respondent moved to suppress his statements to the police on the morning and afternoon of October 28 on the ground that he was subjected to custodial interrogations without the necessary Miranda warnings. The trial court denied the motion, finding that the statements were “voluntary beyond a reasonable doubt” and that “the circumstances did not constitute custodial interrogation” because respondent had willingly cooperated with the police in generally noncoercive settings.

The Maine Supreme Judicial Court, three justices dissenting, reversed respondent’s murder conviction on the ground that the afternoon session with police constituted a custodial interrogation requiring Miranda warnings. 496 A. 2d 635 (1985). The court listed the following criteria for determining whether there had been a custodial interrogation: (1) the locale where the statements were made; (2) the party initiating the contact; (3) the existence or nonexistence of probable cause to arrest; (4) the subjective intent of the police; (5) the subjective belief of the defendant; and (6) the focus of the investigation. Applying these factors to this case, the court noted that the officers’ suspicions had “increased dramatically since the morning” and that, although no crime had yet been detected, respondent “was the only suspect.” Id., at 639. Furthermore, a reasonable person would have felt, as did respondent, that he had no choice but to accompany the officers. Finally, by placing him in the backseat of a two-door automobile, police had deprived him of his freedom in a significant way.

This decision of the Maine Supreme Judicial Court illustrates an acute need for clarification of the proper factors to be considered in making the “in custody” determination — a clarification perhaps made necessary by our own lack of clarity as to the standards to be applied. However, four of the six factors enumerated by the Maine court have been rejected by either this Court or other state and federal courts.

(1) We plainly rejected the relevancy of the “subjective intent of the police” in Berkemer v. McCarty, 468 U. S. 420, 442 (1984), where we stated “[a] policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time.”

(2) In Beckwith v. United States, 425 U. S. 341 (1976), we held that whether police suspicion had focused upon the defendant has no bearing whatever on the “in custody” determination: “‘If was the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning.’” Id., at 346-347 (quoting United States v. Caiello, 420 F. 2d 471, 473 (CA2 1969)). See also People v. Black, 698 P. 2d 766 (Colo. 1984) (trial court erred in suppressing evidence by considering whether the police’s investigation had “focused” on the defendant). Cf. Green v. Superior Court, 40 Cal. 3d 126, 707 P. 2d 248 (1985) (lack of police suspicion dispositive).

(3) The Ninth Circuit has held that the existence of probable cause at the time of the interrogation is similarly irrelevant. See United States v. Woods, 720 F. 2d 1022 (1983).

(4) In Berkemer we noted that “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” 468 U. S., at 442. The Maine court eschewed this objective test, substituting instead the “subjective belief of the defendant.” But see State v. Willis, 145 Vt. 459, 475, 494 A. 2d 108, 116 (1985) (“Inquiring into the subjective thoughts of either the police or the defendant is likely to pervert the factfinding process in a Miranda hearing . . .”); State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P. 2d 1368, 1371 (1983) (the test is not whether the defendant “felt” he or she was in custody, but rather whether objective indicia of arrest are present, including the site of the questioning, the length of the interrogation, and the method used to summon the individual); People v. Viduya, 703 P. 2d 1281, 1286 (Colo. 1985) (“We have held that this question of custody turns on an objective assessment of whether a reasonable person in the suspect’s position would believe himself to be deprived of his freedom of action in any significant way”). The Oregon Supreme Court espouses yet a third view, stating that the touchstone of the “in custody” determination is whether “the officer should be aware that the totality of circumstances in which the interrogation takes place is such that the person questioned would reasonably believe he is not free to leave.” State v. White, 297 Ore. 302, 310, 685 P. 2d 983, 987 (1984).

With this confusion, it is perhaps helpful to turn for guidance to the Miranda decision itself. In Miranda, the Court stated that “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U. S. 436, 444 (1966). As the trial court found, in this case there is no indication that the questioning took place in a context where respondent’s freedom was restricted in any significant way. Respondent voluntarily accompanied the officers. He never asked to leave. The police never told him that he was not free to leave, never used any physical restraint of any kind, never threatened him, never confronted him with any incriminating evidence, and dropped him off at home at the end of the trip. Respondent was not being coerced by the “inherently compelling pressures” of a custodial setting. See Miranda, supra, at 467. As he testified in the suppression hearing, he took police on the long road trip “to keep them off [his] track.” It was he, and not the police, who exploited the situation. Respondent may have therefore unwisely placed himself in an uncomfortable position, but no more so than a suspect who voluntarily comes to the police station for questioning, see Beckwith, supra; Oregon v. Mathiason, 429 U. S. 492 (1977), or a motorist who is involuntarily detained for questioning concerning a traffic violation. See Berkemer, supra.

The- Maine Supreme Judicial Court’s rejection of the factual findings of the trial court cannot be reconciled with the decisions of this and other courts. I would grant the petition and give plenary consideration to this case.


text:
    No. 85-1038.
    Euroquilt, Inc. v. Scandia Down Corp. et al.
   C. A. 7th Cir. Certiorari denied.

Justice White,

dissenting.

One of the questions presented by this case is whether, in a trademark infringement action under § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a), a district court’s finding of “likelihood of confusion” is reviewable under the “clearly erroneous” standard, as a finding of fact, or de novo, as a conclusion of law. As I have previously noted, the Courts of Appeals are divided on this question. Elby’s Big Boy of Steubenville, Inc. v. Frisch’s Restaurants, Inc., 459 U. S. 916 (1982) (White, J., dissenting from denial of certiorari). I would grant certiorari to resolve this conflict.


text:
    No. 85-1281.
    Hibernia National Bank in New Orleans v. Chung, Yong Il, et al.
   C. A. 11th Cir. Certiorari denied.

Justice White,

dissenting.

In this case, the United States Court of Appeals for the Eleventh Circuit held that the penalty wage provision of 46 U. S. C. §596, which operates in favor of seamen whose wages are not timely paid, applies to wages earned aboard a docked vessel for which no voyage has been scheduled. Chung, Yong Il v. Overseas Navigation Co., 774 F. 2d 1043 (1985). This holding conflicts with the decisions in Compton v. Alton Steamship Co., 608 F. 2d 96 (CA4 1979), and Eaton v. S.S. Export Challenger, 376 F. 2d 725 (CA4 1967).

The Eleventh Circuit also held that penalty wages continued to accrue against petitioner despite its filing with the District Court of a $400,000 letter of undertaking, in lieu of a bond, by which petitioner guaranteed payment of all maritime liens against its vessel. In so holding, the Eleventh Circuit rejected the view expressed in Southern Cross Steamship Co. v. Firipis, 285 F. 2d 651, 659-660 (CA4 1960), and Swain v. Isthmian Lines, Inc., 360 F. 2d 81, 88, n. 26 (CA3 1966), that a shipowner may stop the accruing of penalty wages by placing in the hands of the court the allegedly unlawfully withheld wages.

Additionally, the Eleventh Circuit held that penalty wages continued to accrue against petitioner up to the actual payment of the disputed wages shortly prior to oral argument on appeal. This ruling is difficult if not impossible to square with Pacific Mail S.S. Co. v. Schmidt, 241 U. S. 245 (1916), which we recently characterized with approval as “holding that when an appeal is taken on reasonable grounds, the penalty should not apply to delays in payment beyond the date on which the district court’s decree is entered, since those delays are supported by sufficient cause.” Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 574, n. 9 (1982).

I would grant certiorari to resolve the questions presented concerning the correct interpretation of the penalty wage statute.


author: Justice Marshall,

text:
    No. 85-1435.
    Little v. First Baptist Church, Crestwood.
   Cir. Ct., City of Chesapeake, Va. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

In this case a state court conducted an election to determine whether petitioner, who was previously elected pastor of the First Baptist Church, Crestwood (Church), is still entitled to serve as pastor. I believe that such an action threatens to erode the First Amendment’s prohibitions against entanglement between religious and secular authority, and I would therefore grant the petition for certiorari.

I

In December 1982 petitioner was elected pastor of the Church. The Church is congregational or self-governing, as opposed to assoeiational or hierarchical, which refers to churches that are part of and governed by a larger organization. See generally Watson v. Jones, 13 Wall. 679, 722-728 (1872). During 1984 petitioner and certain members of the Church became involved in a dispute. Respondents, individual members of the Church, then filed this action for an injunction, claiming to act on behalf of the Church. Respondents alleged that at a duly held meeting of the congregation, a majority had voted to terminate petitioner’s employment. Petitioner’s answer disputed respondents’ authority to initiate the action on behalf of the Church.

The trial court, based only on the pleadings, temporarily enjoined petitioner from entering the Church premises and appointed a commissioner to hold an election of the congregation. After the commissioner had held the election and certified to the court that a majority had voted to fire petitioner, the court permanently enjoined petitioner from entering Church property or interfering in Church affairs.

II

Because religious organizations may own property and enter into contracts, it is inevitable that they will become involved in legal disputes. However, where the use of property or the terms of contracts necessitate reference to ecclesiastical principles or authority, courts must exercise extreme care to avoid taking sides on matters of religious belief. This Court set down the basic framework for such situations over 100 years ago, in Watson, supra. Although it has undergone some refinements, see, e. g., Jones v. Wolf, 443 U. S. 595 (1979), the Watson approach is simple. A court may apply neutral principles of secular law to the dispute at hand. When that process requires a court to determine the validity of a church decision, the court ordinarily must discern from the relevant canonical law what body is authorized to make a particular decision within the church, and what decision that body has reached. Having done so, the court may not inquire whether the decision was made arbitrarily or whether it conflicts with the ecclesiastical precepts of the organization. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (1976); Maryland and Virginia Eldership v. Church of God at Sharpsburg, Inc., 396 U. S. 367, 368 (1970) (Brennan, J., concurring).

In the present case the trial court clearly did not follow this method; indeed it imposed its own view of proper procedures on the congregation’s decisionmaking. The court took respondents’ word that they represented the Church without any evidence, although petitioner contested the fact. The court made no inquiry into whether the alleged meeting at which petitioner was fired actually took place, whether a quorum was present, or how the members voted. Lacking any evidence that the authorized decisionmaker had acted, the court induced a decision on its own initiative.

This participation in the decisionmaking of an ecclesiastical body is both dangerous and unwarranted. Courts have no business “helping” a religious organization to make its wishes known. The court in this case should have limited its inquiry to the terms of petitioner’s employment contract and to whether the Church had taken the actions requisite to terminating that contract. If the authorized body had indeed terminated petitioner’s employment, then the court could validly have taken steps to enforce the Church’s right to keep petitioner off Church property. Until respondents, who bore the burden of proof, demonstrated that such termination had taken place, the court’s only proper response was to do nothing. Because the trial court instead plunged directly into the dispute, heedless of the severe risk of entanglement in religious affairs, I dissent from this Court’s denial of certiorari.


text:
    No. 85-1477.
    Lucy, Personal Representative of the Estate of Lucy, et al. v. Amoco Oil Co.
   C. A. 6th Cir. Motions of Concerned Leaders in Government, Education and Business and Service Station Dealers of America, Inc., for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 85-6170.
    Prescott v. New York.
   Ct. App. N. Y. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-6495.
    Holcomb v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 83-6950.
    No. 84-1538.
    May v. Kroger Co. et al., Fisher et al. v. City of Berkeley, California, et al.,
   469 U. S. 847; and

ante, p. 260. Petitions for rehearing denied.

Justice Brennan took no part in the consideration or decision of these petitions.


text:
    No. 85-676.
    No. 85-6001.
    No. 85-6002.
    No. 85-6100.
    No. 85-6144.
    No. 85-6150.
    No. 85-6293.
    Bock v. New York et al., Dooley v. Belcher, Dooley v. Federal Home Loan Mortgage Corporation et al., Kalyon v. New York, Acuff v. Henry et al., In re Nelson, McDonald v. Tennessee,
   474 U. S. 996;

ante, p. 1002;

ante, p. 1002;

ante, p. 1086;

ante, p. 1042;

ante, p. 1044; and

ante, p. 1088. Petitions for rehearing denied.


text:
    No. 85-1182.
    No. 85-1185.
    No. 85-6186.
    No. 85-6201.
    No. 85-6212.
    Humble Exploration Co., Inc., et al. v. Browning et al., Wheaton v. City of Oklahoma City et al., Tucker et al. v. Maschner, Warden, et al., Prantil v. California, Smiga v. Dean Witter Reynolds, Inc.,
   ante, p. 1065;

ante, p. 1062;

ante, p. 1066;

ante, p. 1067; and

ante, p. 1067. Petitions for rehearing denied.

Justice Brennan took no part in the consideration or decision of these petitions.


author: Justice Rehnquist, Circuit Justice.

text:
    CALIFORNIA v. BROWN
    No. A-699.
    Decided March 27, 1986
   Justice Rehnquist, Circuit Justice.

Applicant, the State of California, asks that I stay pending disposition of its petition for certiorari the enforcement of the judgment of the California Supreme Court, which invalidated the death sentence imposed on respondent Brown in 1980 for the first-degree murder of a 15-year-old girl. See 40 Cal. 3d 512, 709 P. 2d 440 (1986). The California Supreme Court invalidated Brown’s death sentence because it believed that a jury instruction given during the sentencing phase of Brown’s trial, which told the jury that it “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling,” violated the Eighth Amendment to the United States Constitution. The court felt that this instruction was incompatible with our decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), which construed the Eighth Amendment to require that the sentencer in a capital case be allowed to consider, “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id., at 110, quoting Lockett, supra, at 604.

I think it is likely that four Members of this Court would vote to grant certiorari to review the California Supreme Court’s holding that the jury instruction at issue in this case violated Brown’s Eighth Amendment rights under Lockett and Eddings, and that the decision below ultimately would be reversed. The California death penalty statute in effect at the time of Brown’s trial expressly permitted Brown to introduce evidence, at sentencing, “as to any matter relevant to . . . mitigation . . . including, but not limited to, the nature and circumstances of the present offense, . . . and the defendant’s character, background, history, mental condition and physical condition.” Cal. Penal Code Ann. § 190.3 (West Supp. 1986). The California statute also provided:

“In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:
“(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true ....
“(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
“(g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects [sic] of intoxication.
“(i) The age of the defendant at the time of the crime,
“(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
“(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Ibid.

A portion of the jury instructions given at the sentencing phase of Brown’s trial tracked the above statutory language, thus clearly informing the jury of its constitutional duty to consider in mitigation all relevant aspects of the defendant’s character and the circumstances of his crime. See California Jury Instructions-Criminal No. 8.84.1 (4th ed. 1979). In my view a strong argument can be made that these statutory provisions, and the instructions which explained them to Brown’s sentencing jury, fully complied with the dictates of Lockett and Eddings.

The jury instruction held by the California Supreme Court in this case to be unconstitutional was in no way inconsistent with the aforementioned statutory provisions. Nor did the instruction tell the jury to ignore any relevant evidence or mitigating circumstances. On the contrary, it simply told the jury not to be swayed by “mere séntimént, conjecture,” and the like. Such an instruction focuses the jury’s attention on the evidence and the reasonable inferences to be drawn therefrom. It is consistent with Justice Stevens’ observation in Gardner v. Florida, 430 U. S. 349 (1977), that “[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Id., at 358.

Brown argues that the decision below was based on adequate and independent state grounds, and is therefore unreviewable by this Court. It is true that, prior to this Court’s 1972 decision in Furman v. Georgia, 408 U. S. 238 (1972), the California Supreme Court had held that a jury instruction identical to the one at issue in this case violated the State Constitution. See People v. Bandhauer, 1 Cal. 3d 609, 618-619, 463 P. 2d 408, 416 (1970). After this Court’s 1976 decision in Gregg v. Georgia, 428 U. S. 153, however, the California Supreme Court revisited the question, treating it as a matter of federal, not state, constitutional law. See People v. Robertson, 33 Cal. 3d 21, 56-59, 655 P. 2d 279, 286-287 (1982). In People v. Easley, 34 Cal. 3d 858, 671 P. 2d 813 (1983), the court explained that “the federal cases following Furman and Gregg do not undermine [the prior] line of California authority, but, on the contrary, establish that these decisions are compelled as a matter of federal constitutional law.” Id., at 876, 671 P. 2d, at 824 (emphasis added); see also People v. Lanphear, 36 Cal. 3d 163, 164, 680 P. 2d 1081, 1082 (1984) (“federal constitutional law forbids” the instruction at issue in this case). Finally, in the instant case, the court did not cite the State Constitution at all, but stated that it was relying on “the individualized sentencing concerns inherent in the Eighth Amendment.” 40 Cal. 3d, at 537, 709 P. 2d, at 453. Thus, it seems that this case is one in which, “ ‘at the very least, the [state] court felt compelled by what it understood to be federal constitutional considerations to construe ... its own law in the manner it did.’” Delaware v. Prouse, 440 U. S. 648, 653 (1979), quoting Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568 (1977). As such, we have jurisdiction to review the California Supreme Court’s decision. “If the state court misapprehended federal law, ‘[i]t should be freed to decide . . . these suits according to its own local law.’” Delaware v. Prouse, supra, at 653, quoting Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5 (1950).

I also think the State has met its burden of demonstrating irreparable harm if its application for a stay is not granted. The California Supreme Court denied the State’s application for a stay of issuance of its remittitur, and for an order deferring enforcement of its judgment, and issued the remittitur to the California Superior Court for Riverside County on January 30, 1986. The remittitur was filed by the Superior Court on February 3. Under California law, if the State does not hold a new trial on the issue of Brown’s penalty ■within 60 days of the filing of the remittitur, or by April 4, it will be forever barred from seeking the death penalty in the instant case. See Cal. Penal Code Ann. § 1382(2) (West 1982). On the other hand, since the California Supreme Court affirmed Brown’s murder conviction, his status will be unaffected by the issuance of a stay pending disposition of the State’s petition for certiorari. Accordingly, I grant the State’s application for a stay.

       In California v. Ramos, 463 U. S. 992 (1983), we cited these very same provisions of the California statute and noted:

        “[Respondent does not, and indeed could not, contend that the California sentencing scheme violates the directive of Lockett v. Ohio, 438 U. S. 586 (1978). The California statute in question permits the defendant to present any evidence to show that a penalty less than death is appropriate in his case.” Id., at 1005, n. 19.

       Moreover, in practical terms, I would expect the instruction at issue to generally help capital defendants, by reducing the possibility that sentencing juries will be swayed by sympathy for the victim, along with other adverse forms of “passion, prejudice, public opinion or public feeling.” See People v. Easley, 34 Cal. 3d 858, 886, 671 P. 2d 813, 831 (1983) (Mosk, J., dissenting) (“In the current climate of public opinion, sympathy is more likely to be aroused for the victim and his family than for a defendant who has been found guilty of a brutal first degree murder. Thus cautioning a jury in the penalty phase of the trial not to be swayed by mere sympathy redounds to the benefit, not the detriment, of the defendant”).

       The State’s petition for certiorari also asks this Court to review a portion of the California Supreme Court’s opinion in which it placed a new construction on certain portions of the California death penalty statute in order to avoid what it perceived to be a potential Eighth Amendment problem. See 40 Cal. 3d 512, 538-545, 709 P. 2d 440, 453-459 (1985). I express no view on whether this Court would be likely to grant certiorari on this issue, which was not relied upon by the California Supreme Court as an alternative basis for invalidating Brown’s death sentence.


author: Justice White Justice Powell,

text:
    SKIPPER v. SOUTH CAROLINA
    No. 84-6859.
    Argued February 24, 1986
    Decided April 29, 1986

      White, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in the judgment, in which Burger, C. J., and Rehnquist, J., joined, post, p. 9.

      David I. Bruck, by appointment of the Court, 474 U. S. 942, argued the cause and filed briefs for petitioner.

      Harold M. Coombs, Jr., Assistant Attorney General of South Carolina, argued the cause for respondent. With him on the brief was T. Travis Medlock, Attorney General.

       A brief of amici curiae was filed for the State of Alabama et al. by David Crump, Charles A. Graddick, Attorney General of Alabama, Steve Clark, Attorney General of Arkansas, James J. Kelly, Chief State’s Attorney of Connecticut, Jim Smith, Attorney General of Florida, James T. Jones, Attorney General of Idaho, William L. Webster, Attorney General of Missouri, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Gerald L. Baliles, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, and Archie G. McClintock, Attorney General of Wyoming.

   Justice White

delivered the opinion of the Court.

Petitioner Ronald Skipper was convicted in a South Carolina trial court of capital murder and rape. The State sought the death penalty, and a separate sentencing hearing was held before the trial jury under S. C. Code § 16-3-20 (1985), which provides for a bifurcated trial and jury sentencing in capital cases. Following introduction by the State of evidence in aggravation of the offense (principally evidence of petitioner’s history of sexually assaultive behavior), petitioner presented as mitigating evidence his own testimony and that of his former wife, his mother, his sister, and his grandmother. This testimony, for the most part, concerned the difficult circumstances of his upbringing. Petitioner and his former wife, however, both testified briefly that petitioner had conducted himself well during the Tk months he spent in jail between his arrest and trial. Petitioner also testified that during a prior period of incarceration he had earned the equivalent of a high school diploma and that, if sentenced to life imprisonment rather than to death, he would behave himself in prison and would attempt to work so that he could contribute money to the support of his family.

Petitioner also sought to introduce testimony of two jailers and one “regular visitor” to the jail to the effect that petitioner had “made a good adjustment” during his time spent in jail. The trial court, however, ruled that under the South Carolina Supreme Court’s decision in State v. Koon, 278 S. C. 528, 298 S. E. 2d 769 (1982) (Koon I), such evidence would be irrelevant and hence inadmissible. The decision in Koon I, the judge stated, stood for the rule that “whether [petitioner] can adjust or not adjust” was “not an issue in this case.” App. 11.

After hearing closing arguments — during the course of which the prosecutor contended that petitioner would pose disciplinary problems if sentenced to prison and would likely rape other prisoners, id., at 13-14 — the jury sentenced petitioner to death. On appeal, petitioner contended that the trial court had committed constitutional error in excluding the testimony of the jailers and the visitor: the testimony of these witnesses, petitioner argued, would have constituted relevant mitigating evidence, and exclusion of such evidence was improper under this Court’s decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). The Supreme Court of South Carolina rejected petitioner’s contention, stating:

“The trial judge properly refused to admit evidence of [petitioner’s] future adaptability to prison life. State v. Koon, supra. However, evidence of his past adaptability was admitted through testimony of his former wife, his mother and his own testimony. This contention is without merit.” 285 S. C. 42, 48, 328 S. E. 2d 58, 61-62 (1985).

We granted certiorari, 474 U. S. 900 (1985), to consider petitioner’s claim that the South Carolina Supreme Court’s decision is inconsistent with this Court’s decisions in Lockett and Eddings, and we now reverse.

There is no disputing that this Court’s decision in Eddings requires that in capital cases “ ‘the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’” Eddings, supra, at 110 (quoting Lockett, supra, at 604 (plurality opinion of Burger, C. J.)) (emphasis in original). Equally clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering “any relevant mitigating evidence.” 455 U. S., at 114. These rules are now well established, and the State does not question them.

Accordingly, the only question before us is whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of punishment. It can hardly be disputed that it did. The State does not contest that the witnesses petitioner attempted to place on the stand would have testified that petitioner had been a well-behaved and well-adjusted prisoner, nor does the State dispute that the jury could have drawn favorable inferences from this testimony regarding petitioner’s character and his probable future conduct if sentenced to life in prison. Although it is true that any such inferences would not relate specifically to petitioner’s culpability for the crime he committed, see Koon I, supra, at 536, 298 S. E. 2d, at 774, there is no question but that such inferences would be “mitigating” in the sense that they might serve “as a basis for a sentence less than death.” Lockett, swpra, at 604. Consideration of a defendant’s past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing: “any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose.” Jurek v. Texas, 428 U. S. 262, 275 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). The Court has therefore held that evidence that a defendant would in the future pose a danger to the community if he were not executed may be treated as establishing an “aggravating factor” for purposes of capital sentencing, Jurek v. Texas, supra; see also Barefoot v. Estelle, 463 U. S. 880 (1983). Likewise, evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings, such evidence may not be excluded from the sentencer’s consideration.

The State advances several arguments as to why the exclusion of petitioner’s proffered evidence was, nonetheless, not erroneous. First, the State contends that the trial court ruled only that petitioner’s witnesses could not offer incompetent lay opinion testimony regarding petitioner’s ability to adjust to prison life in the future. Eddings, the State argues, does not displace reasonable state-law rules regarding the competency of testimony. The record does not, however, support the State’s contention that the trial court’s ruling was no more than an evenhanded application of rules restricting the use of opinion testimony. It is true that petitioner’s request for a ruling on the admissibility of the testimony of the two jailers and the “regular visitor” was immediately preceded by an attempt to introduce his former wife’s opinion (ruled inadmissible by the trial judge, App. 10) regarding his prospects for adjustment to prison life. In seeking a ruling on the testimony of the three witnesses at issue here, however, petitioner made it clear that he expected them “to testify that [petitioner] has made a good adjustment” to jail. Id., at 11 (emphasis added). Defense counsel was not offering opinion testimony regarding future events. Under these circumstances, any ruling premised on the assumption that petitioner planned to present incompetent opinion testimony would have been — as the State conceded at oral argument — a “mistake.” Such a misunderstanding could by no means justify the exclusion of nonopinion evidence bearing on the defendant’s ability to adjust to prison life.

Second, the State echoes the South Carolina Supreme Court in arguing that the trial court’s ruling was not improper because it did not prevent petitioner from introducing evidence of past good conduct in jail for purposes of establishing his good character, but only foreclosed the introduction of “irrelevant” evidence of his future adaptability to prison life. There is no clear support for this contention in the record of this case, as the trial court did not explicitly rely on any such distinction and appears to have excluded petitioner’s evidence of good conduct for any purpose whatsoever. The State’s proposed distinction between use of evidence of past good conduct to prove good character and use of the same evidence to establish future good conduct in prison seems to be drawn from the decision of the South Carolina Supreme Court in another case altogether, State v. Koon, 285 S. C. 1, 328 S. E. 2d 625 (Koon II), cert. denied, 471 U. S. 1036 (1985). There, the court stated that although “future adaptability to prison [is] irrelevant evidence because it does not bear on a defendant’s character, prior record, or the circumstances of his offense[,] . . . [p]ast behavior in prison does bear on a defendant’s character and, therefore, is relevant.” 285 S. C., at 3, 328 S. E. 2d, at 626. This distinction is elusive. As we have explained above, a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination. Accordingly, the precise meaning and practical significance of the decision in Koon II and of the State’s argument is difficult to assess. Assuming, however, that the rule would in any case have the effect of precluding the defendant from introducing otherwise admissible evidence for the explicit purpose of convincing the jury that he should be spared the death penalty because he would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to fife imprisonment, the rule would not pass muster under Eddings. Since the trial court’s ruling in this case — whether or not it can credibly be said to be consistent with Koon II — sX least had this effect, it cannot stand under Eddings.

Finally, the State seems to suggest that exclusion of the proffered testimony was proper because the testimony was merely cumulative of the testimony of petitioner and his former wife that petitioner’s behavior in jail awaiting trial was satisfactory, and of petitioner’s testimony that, if sentenced to prison rather than to death, he would attempt to use his time productively and would not cause trouble. We think, however, that characterizing the excluded evidence as cumulative and its exclusion as harmless is implausible on the facts before us. The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses — and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges— would quite naturally be given much greater weight by the jury. Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect upon the jury’s deliberations. The prosecutor himself, in closing argument, made much of the dangers petitioner would pose if sentenced to prison, and went so far as to assert that petitioner could be expected to rape other inmates. Under these circumstances, it appears reasonably likely that the exclusion of evidence bearing upon petitioner’s behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury’s decision to impose the death sentence. Thus, under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.

The exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury’s ability to carry out its task of considering all relevant facets of the character and record of the individual offender. The resulting death sentence cannot stand, although the State is of course not precluded from again seeking to impose the death sentence, provided that it does so through a new sentencing hearing at which petitioner is permitted to present any and all relevant mitigating evidence that is available. Eddings, 455 U. S., at 117. The judgment of the Supreme Court of South Carolina is therefore reversed insofar as it affirms the death sentence, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Powell,

with whom The Chief Justice and Justice Rehnquist join,

concurring in the judgment.

Although I agree that petitioner’s death sentence must be vacated, that result is not required by our decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). I would reverse the judgment below, not because the trial court excluded “relevant mitigating evidence” within the meaning of those decisions, id., at 114; see Lockett, supra, at 604-605, but because petitioner was not allowed to rebut evidence and argument used against him. See Gardner v. Florida, 430 U. S. 349 (1977).

I

In the course of cross-examining petitioner at his sentencing proceeding, the prosecutor adduced testimony that petitioner had kicked the bars of his cell following his arrest. In closing argument, the prosecutor contended that petitioner was likely to commit violent crimes in prison if allowed to live, and referred to the incident in petitioner’s cell to support his characterization of petitioner as a hopelessly violent man:

“[Petitioner’s] wife said he told her . . . that he had been raped in prison. With his history and what you know about him, who do you think the raper was and who do you think the rapee was? And if given the opportunity again with this four time sexual abusing loser, who do you think will get raped in prison? Will it be Ronald Skipper, big old robust Ronald Skipper who knocks woman [sic] in the side of the head, or will it be some little boy in prison?
“These are the mitigating circumstances submitted by the defendant. . . . That the defendant has shown significant and positive adjustments to confinement and education and employment skills that enable him to be a stable and productive prisoner. Didn’t he admit kicking on the bars over there? That’s the kind of prisoner he is. Kicking on the bar. Kicking on the bars....” App. 14.

Petitioner had offered evidence that would undermine this line of argument: the testimony of two guards and a prison visitor, all of whom would have testified that petitioner had behaved well while in prison awaiting trial. The trial court excluded that evidence, relying on the Supreme Court of South Carolina’s decision in State v. Koon, 278 S. C. 528, 298 S. E. 2d 769 (1982). Petitioner was sentenced to death, and the Supreme Court of South Carolina affirmed the sentence. 285 S. C. 42, 328 S. E. 2d 58 (1985).

II

The Court correctly concludes that the exclusion of the proffered testimony violated due process. Ante, at 5, n. 1. In Gardner v. Florida, supra, we vacated a death sentence on the ground that the sentencing judge had considered a confidential presentence report without permitting the defendant to see the report. The plurality concluded that the defendant was denied due process because “the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Id., at 362 (opinion of Stevens, J.). See also id., at 364 (White, J., concurring in judgment) (applying the same analysis under the Eighth Amendment). As in Gardner, petitioner in this case was not permitted to “deny or explain” evidence on which his death sentence may, in part, have rested. This error was aggravated by the prosecutor’s closing argument, which emphasized and exaggerated petitioner’s misconduct in prison after his arrest. Therefore, petitioner’s death sentence violates the rule in Gardner.

Ill

A

The Court unnecessarily abandons this narrow ground of decision for a broader one, holding that the proffered testimony was mitigating evidence that must be admitted under the Eighth Amendment. In my view, the Court’s reasoning is flawed. The Eighth Amendment requires that the sentencing authority consider “relevant mitigating evidence” concerning the defendant’s “character or record” and “the circumstances of the offense.” Eddings v. Oklahoma, supra, at 114; Lockett v. Ohio, supra, at 604. But the States, and not this Court, retain “the traditional authority” to determine what particular evidence within the broad categories described in Lockett and Eddings is relevant in the first instance. 438 U. S., at 604, n. 12. As long as those determinations are reasonable — as long as they do not foreclose consideration of factors that may tend to reduce the defendant’s culpability for his crime, see Eddings, supra, at 115-116 — this Court should respect them.

I see no reason why a State could not, consistent with these principles, exclude evidence of a defendant’s good behavior in jail following his arrest, as long as the evidence is not offered to rebut testimony or argument such as that tendered by the prosecution here. Such evidence has no bearing at all on the “circumstances of the offense,” since it concerns the defendant’s behavior after the crime has been committed. Nor does it say anything necessarily relevant about a defendant’s “character or record,” as that phrase was used in Lockett and Eddings.

Those decisions clearly focus on evidence that lessens the defendant’s culpability for the crime for which he was convicted. The sentencing jury in Lockett was barred from considering evidence of the defendant’s youth, her “lack of specific intent to cause death,” and “her relatively minor part in the crime.” 438 U. S., at 597. Such evidence obviously bore strongly on the degree to which the defendant was morally responsible for her crime; indeed, we have since held that similar evidence -precludes application of the death penalty for precisely this reason. Enmund v. Florida, 458 U. S. 782, 798-801 (1982). In Eddings, the judge refused to consider the defendant’s youth and history of “beatings by a harsh father, and of severe emotional disturbance.” 455 U. S., at 115. We emphasized that this evidence tended to diminish the defendant’s responsibility for his acts, noting that youths “are less mature and responsible than adults,” id., at 116, and that they “‘deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults.’” Id., at 115, n. 11, quoting Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978). The type of evidence required to be admitted under Lockett and Eddings thus pertained to conduct and circumstances prior to the crime, and to the nature and extent of the defendant’s participation in the crime. In this case, for the first time, the Court classifies as “mitigating” conduct that occurred after the crime and after the accused has been charged. Almost by definition, such conduct neither excuses the defendant’s crime nor reduces his responsibility for its commission. It cannot, therefore, properly be considered “mitigating evidence” that the sentencer must consider under the Constitution.

B

It is useful to recall the origins of the rule the Court applies today. Ten years ago, in Woodson v. North Carolina, 428 U. S. 280 (1976), we determined that States could not carry out the death penalty without some “particularized consideration of relevant aspects of the character and record of each convicted defendant.” Id., at 303 (plurality opinion). See also Roberts v. Louisiana, 428 U. S. 325, 333-336 (1976) (plurality opinion). That determination flowed from the conviction that “individual culpability is not always measured by the category of the crime committed.” Furman v. Georgia, 408 U. S. 238, 402 (1972) (Burger, C. J., dissenting), quoted in Woodson, supra, at 298. See also Roberts, supra, at 333. Thus, we reasoned, it was unconstitutionally arbitrary to execute a man or woman without considering factors showing that death was not a “just and appropriate sentence.” Woodson, supra, at 304. Cf. Enmund v. Florida, supra.

Lockett and Eddings followed naturally from our decision in Woodson. But it also follows from Woodson and its companion cases that States are only bound to consider those factors that are central to the fundamental justice of execution. We have recognized that society has important and legitimate interests in retribution and deterrence, and that these interests provide the necessary justification for imposing the death penalty. Gregg v. Georgia, 428 U. S. 153, 183-187 (1976) (joint opinion). Society’s legitimate desire for retribution is less strong with respect to a defendant who played a minor role in the murder for which he was convicted. Cf. Lockett, 438 U. S., at 597. Similarly, the death penalty has little deterrent force against defendants who have reduced capacity for considered choice. Cf. Eddings, 455 U. S., at 115, n. 11. Evidence concerning the degree of the defendant’s participation in the crime, or his age and emotional history, thus bear directly on the fundamental justice of imposing capital punishment. That simply cannot be said of the defendant’s behavior in prison following his arrest. Society’s interest in retribution can hardly be lessened by the knowledge that a brutal murderer, for self-interested reasons, has been a model of deportment in prison while awaiting trial or sentence. Nor is society’s important interest in deterrence served by allowing such a murderer to avoid the death penalty by following his counsel’s advice to behave himself in a tightly controlled prison environment.

IV

Even if a defendant’s apparent capacity to adjust well to prison fell within the scope of the mitigating factors that must be considered under Lockett and Eddings, a State should have the right to exclude evidence of conduct in prison while awaiting trial or sentencing. One arrested for a capital crime, and particularly a convicted defendant awaiting sentencing, has every incentive to behave flawlessly in prison if good behavior might cause the sentencing authority to spare his life. Good behavior in those circumstances would rarely be predictive as to the conduct of the prisoner after sentence has been imposed. For this further reason, state courts reasonably could determine that such evidence has little or no probative value. Certainly it will not aid the sentencer in “distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Furman v. Georgia, supra, at 313 (White, J., concurring), quoted in Gregg v. Georgia, supra, at 188.

The Court’s contrary determination apparently rests on the notion that the States have little or no authority to decide that certain types of evidence may have insufficient probative value to justify their admission. But cf. ante, at 7, n. 2. Lockett explicitly rejected such an approach, 438 U. S., at 604, n. 12, and for good reason. This Court has no special expertise in deciding whether particular categories of evidence are too speculative or insubstantial to merit consideration by the sentencer. Cf. Barefoot v. Estelle, 463 U. S. 880, 899-902 (1983). It makes little sense, then, to substitute our judgment of relevance for that of state courts and legislatures. Nor is such intrusive review necessary in this context to guard against fundamentally unjust executions. One cannot plausibly equate the type of evidence at issue in Lockett and Eddings with evidence that a capital defendant has refrained from assaulting anyone in prison while awaiting trial or sentencing. I would therefore leave the disposition of evidence of the kind involved here to the States, subject to the requirements of due process.

       The relevance of evidence of probable future conduct in prison as a factor in aggravation or mitigation of an offense is underscored in this particular case by the prosecutor’s closing argument, which urged the jury to return a sentence of death in part because petitioner could not be trusted to behave if he were simply returned to prison. Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death “on the basis of information which he had no opportunity to deny or explain.” Gardner v. Florida, 430 U. S. 349, 362 (1977).

       We do not hold that all facets of the defendant’s ability to adjust to prison life must be treated as relevant and potentially mitigating. For example, we have no quarrel with the statement of the Supreme Court of South Carolina that “how often [the defendant] will take a shower” is irrelevant to the sentencing determination. State v. Plath, 281 S. C. 1, 15, 313 S. E. 2d 619, 627, cert. denied, 467 U. S. 1265 (1984). In the case before us, there is no credible suggestion that petitioner sought to introduce evidence of his personal hygiene practices. Rather, petitioner apparently attempted to introduce evidence suggesting that he had been a well-behaved and disciplined prisoner. Such evidence of adjustability to life in prison unquestionably goes to a feature of the defendant’s character that is highly relevant to a jury’s sentencing determination.

       The following colloquy took place at the close of the cross-examination:
      “Q: You are the fellow that when you got to the Horry County jail went to kicking the cell, right?
      “A: Yes, Sir.
      “Q: That’s you. [T]hat’s the kind of fellow you are, but you are nice today, right?” App. 7.

       We have noted that for many types of murders, “the death penalty undoubtedly is a significant deterrent.” Gregg v. Georgia, 428 U. S. 153, 185-186 (1976). See also id., at 186 (actual deterrent value of death penalty in particular contexts “is a complex factual issue the resolution of which properly rests with the legislatures”). This deterrent value inevitably is diluted when defendants are allowed to escape execution based on factors that have nothing to do with their criminal responsibility. The consequences of such mistakes extend further than the cases in which they occur, for when some defendants are able to avoid execution based on irrelevant criteria, there is a far graver risk of injustice in executing others. See Furman v. Georgia, 408 U. S. 238, 311-314 (1972) (White, J., concurring). I thus find it difficult to accept the proposition that the Constitution compels States to consider factors, such as a defendant’s willingness to conform to prison rules, that plainly undermine deterrence without advancing retributive goals.

       After today’s decision competent defense counsel in capital cases will instruct their clients to behave like Eagle Scouts while awaiting trial, and particularly while awaiting sentencing. In capital cases, this will be more important to a defendant than the customary advice of counsel in a criminal trial to advise his client to behave himself while in the courtroom. It is indeed novel doctrine that compliance with this advice by a defendant charged with capital murder becomes a “mitigating factor” that the sentencing judge or jury must — as a matter of constitutional law — consider in passing sentence.


author: Justice Stevens

text:
    McLAUGHLIN v. UNITED STATES
    No. 85-5189.
    Argued March 31, 1986
    Decided April 29, 1986
    Stevens, J., delivered the opinion for a unanimous Court.

      Stephen J. Cribari, by appointment of the Court, 474 U. S. 1003, argued the cause for petitioner. With him on the briefs was Fred Warren Bennett.

      Christopher J. Wright argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz.

   Justice Stevens

delivered the opinion of the Court.

The question presented is whether an unloaded handgun is a “dangerous weapon” within the meaning of the federal bank robbery statute.

At about 9:30 a.m. on July 26, 1984, petitioner and a companion, both wearing stocking masks and gloves, entered a bank in Baltimore. Petitioner thereupon displayed a dark handgun and ordered everyone in the bank to put his hands up and not to move. While petitioner remained in the lobby area holding the gun, his companion vaulted the counter and placed about $3,400 in a brown paper bag. The two robbers were apprehended by a police officer as they left the bank. Petitioner’s gun was not loaded.

Petitioner pleaded guilty to charges of bank robbery and bank larceny and, on the basis of stipulated evidence, was found guilty of assault during a bank robbery “by the use of a dangerous weapon.” The latter conviction depends on the validity of the District Court’s conclusion that petitioner’s unloaded gun was a “dangerous weapon” within the meaning of 18 U. S. C. § 2113(d). The Court of Appeals agreed with the District Court, and so do we.

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a “dangerous weapon.” First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

Accordingly, the judgment of the Court of Appeals is

Affirmed.

       The federal bank robbery statute, 18 U. S. C. § 2113, provides in pertinent part:
      “(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association . . .
      “Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
      “(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both;. . .
      “(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.”

       We granted certiorari, 474 U. S. 944 (1985), to resolve an apparent conflict. See, e. g., United States v. Wardy, 777 F. 2d 101, 105-106 (CA2 1985); United States v. Terry, 760 F. 2d 939, 942 (CA9 1985).

       The floor debate on the provision that became § 2113(d) indicates that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as “dangerous” within the meaning of the statute. See 78 Cong. Rec. 8132 (1934) (colloquy among Reps. Sumners, Blanton, and Dockweiler).