author: Justice Marshall,

text:
    No. 84-6558.
    Stewart v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner in this case seeks no revolutionary expansion of the principles underlying this Court’s current death penalty jurisprudence. All he asks is the benefit of existing law as proclaimed by a majority of this Court. This Court has declared that a sentence of death may not be imposed on one “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Enmund v. Florida, 458 U. S. 782, 797 (1982). Yet the Court’s refusal to consider petitioner’s case countenances just that result. Even if I believed, therefore, that the death penalty could constitutionally be imposed under certain circumstances,1 would grant certiorari in this case and vacate the death sentence imposed here.

I

At his murder trial, petitioner Darryl Elroy Stewart and his accomplice Kelvin Kelly provided conflicting theories about the crime. According to Stewart’s statement, which the State introduced at trial, he and Kelly were walking past the deceased’s apartment when Kelly saw through the open door a stereo that he wanted to steal. Kelly told Stewart that he was going to run in and grab the stereo, and instructed Stewart to stand guard at the door. Stewart heard a woman scream; heard Kelly attempt to force sexual relations on her; saw glimpses of a struggle; and heard two shots. Thus, Stewart’s statement indicated that he agreed to assist in Kelly’s theft of the stereo; that Kelly strayed from the plan to steal the stereo and attempted to commit a sexual offense against the occupant of the apartment; and that during the course of this offense Kelly killed the victim. If Stewart’s account of the crime is accepted, he did not himself kill, did not attempt to kill, and did not intend that a killing would take place. According to Kelly, however, it was Stewart who entered the apartment to commit burglary, Stewart who had the gun, Stewart who attempted a sexual assault on the victim, and Stewart who killed her, while Kelly waited at the door; the State introduced some evidence corroborating this story. Kelly was promised, in exchange for his testimony, that he would receive no more than 50 years in prison.

II

The jury was asked to resolve this conflicting evidence and determine the guilt or innocence of Stewart on the murder charge. In order to guide the jury in that endeavor, the trial judge gave a lengthy instruction on the Texas “law of parties,” set out in full in the margin. 686 S. W. 2d 118, 123 (Tex. Crim. App. 1984). The instructions provided the jury with two theories of capital murder. First, the jury could find Stewart guilty of having intentionally shot the victim himself. Alternatively, the jury could find the following series of facts: that Stewart conspired to commit burglary; that the murder was committed by Kelly in the course of the burglary; that Stewart was intentionally aiding Kelly in the execution of the burglary at the time that Kelly committed the murder; and that the murder was an offense that “should have been anticipated” as a result of the conspiracy. Either of the two findings would support a verdict of guilty of capital murder.

The jury returned a verdict of guilty. Defense counsel requested that the jury be instructed to specify upon which of the two murder offenses it had convicted Stewart, but the trial judge denied the request. The trial proceeded to the sentencing phase, and petitioner was sentenced to die. .

Ill

Under the Texas capital murder statute, a murder does not constitute capital murder merely because it was committed in the course of a burglary or other specified felony. The statute explicitly provides that the murder must have been committed “intentionally” in the course of the other felony. Tex. Penal Code Ann. § 19.03(a)(2) (Supp. 1985). In theory, therefore, a person cannot be required to face the death penalty without having acted with an intent to kill. Ironically, it was this reading of the statute that led this Court, in Emnund, to number Texas among the States that did not permit a capital sentence to be imposed upon a person convicted only of felony murder. 458 U. S., at 790, n. 7.

The Enmund Court’s assessment, however, did not take into account the Texas “law of parties.” Under that law, a person can be punished for an offense committed by another if he is “criminally responsible” for the other person. Tex. Penal Code Ann. § 7.01(a) (1974). The “criminal responsibility” of person A arises if A conspires to commit one felony and, in furtherance of that unlawful purpose, a co-conspirator in the first felony commits a second offense that “should have been anticipated” as a result of the conspiracy. The statute explicitly provides that A is guilty of the second offense even “though having no intent to commit it.” Tex. Penal Code Ann. § 7.02(b) (1974); see Ruiz v. State, 579 S. W. 2d 206, 209 (1979) (“[S]ection 7.02(b) . . . eliminates any necessity on the part of the State to prove the appellant had any intent to kill”). If the first offense is burglary, and the co-conspirator’s second offense happens to be murder, then A may be deemed to have committed capital murder — even though the capital murder statute requires that the murder be committed intentionally in the course of a felony. The vulnerability of A to a capital charge under these circumstances, therefore, is entirely dependent on the acts of his co-conspirator; A’s own criminal accountability is not entirely within his control. In this application of the Texas statutes, every intent element that would normally guard against a capital charge for one who did not kill or intend to kill can be neatly circumvented and substituted with the fiction of vicarious intent. This is no mere theoretical quirk in state law; it is precisely the train of logic that quite possibly led to the death sentence in this case.

The entire conduct of petitioner’s trial operated to buttress the prejudice created by the State’s reliance on this illusory edifice of intent. For example, every juror who ended up on petitioner’s panel had stated in voir dire that he or she could find a non-triggerman guilty of capital murder and could impose the death sentence, even if the defendant had no specific intent to kill or to cause a killing. Moreover, when the defense attorney attempted to explain to the jury that the law of parties —that is, vicarious intent — is not applicable to sentencing decisions, the trial court sustained the prosecutor’s objection on the ground that counsel had misstated the law. Further, the judge did not instruct the jury that at the sentencing stage it was obliged to consider mitigating circumstances, such as the possibility that Stewart played a relatively minor role in the murder. At every step of the way, one or more of these factors contributed to the likelihood that the jury failed to understand that it could not rely on vicarious intent to determine whether a defendant deserves to die.

Respondent contends that any deficiency in the jury’s consideration of intent was cured at the sentencing phase. The judge’s charge to the jury made it clear that imposition of the death sentence would be contingent upon a jury finding that “the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.” See Tex. Code Crim. Proc. Ann., Art. 87.071(b)(1) (Vernon 1981). But the deliberateness of a burglary simply cannot be equated with an intent to kill. Moreover, it seems that the judge informed the jury, over defense objection, that the conduct which must be found to be deliberate as a prerequisite to the death sentence includes the conduct of the triggerman, as attributed to the defendant through the law of parties. Thus, the “individualized consideration” of the defendant’s own culpability, required by Lockett v. Ohio, 438 U. S. 586, 605 (1978), was entirely neglected. Nor can the constitutional demand for culpable intent be satisfied by the jury’s finding that there was a reasonable expectation that death would result from the burglary. Such a finding does not even purport to be a measure of “personal responsibility and moral guilt,” without which a defendant cannot be held accountable with his life. Enmund v. Florida, 458 U. S., at 801.

IV

This case differs from Enmund in only one pertinent respect. In Enmund, the only evidence implicating the defendant was an inference that he was waiting near the scene of the crime in order to help the principal perpetrators escape. Id., at 788. No conflicting evidence tended to show that Enmund may have been the actual killer. Here, in contrast, there was some evidence tending to establish Stewart as the triggerman. Nevertheless, we cannot be certain whether the jury imposed a sentence of death in the absence of an essential factual premise or not. For purposes of determining whether the Constitution has been violated, therefore, we simply cannot discount the grave possibility that Stewart was sentenced to death without the mental state that Enmund recognized as prerequisite to any such sentence. See Sandstrom v. Montana, 442 U. S. 510, 517 (1979). The courts should not permit unconstitutional death sentences to escape meaningful review merely because one can conceive of an alternative theory under which the execution can be imagined to fall within the terms of this Court’s demands. The obligation of the courts is especially compelling here, because the State clearly had the option of eliminating any doubt on the issue by charging only the intentional murder offense and thus forestalling any Enmund problem. At least the State might have refrained from objecting to the defense counsel’s attempts to inform the jury regarding the inapplicability of the law of parties at the sentencing phase. One cannot help but wonder why the State did not do anything to reduce the confusion, if it is indeed as confident as it claims to be that the jury’s finding of guilt was based solely on intentional murder.

The likelihood that Stewart was convicted and sentenced to death on a theory of vicarious intent requires that Enmund be our guide in evaluating the legal claims put forward by petitioner. Like Enmund, Stewart has been sentenced to death “in the absence of proof” that he “killed or attempted to kill,” or that he “intended or contemplated that life would be taken.” 458 U. S., at 801. Some disputed evidence suggested that Stewart had such intent, but we have no proof thereof, and we cannot tell from the verdict whether the jury so found.

V

Although this Court upheld the Texas capital sentencing scheme against certain challenges in Jurek v. Texas, 428 U. S. 262 (1976), petitioner’s case demonstrates that the statute must be measured against a different standard when the State seeks to execute one convicted of felony murder. In this context, the statute is wholly inadequate to meet the constitutional demands articulated in En-mund, because it does not ensure that the ultimate sentence will be reserved for those who have intended to kill. Quite simply, that is what Enmund demands, and what the Eighth and Fourteenth Amendments, at a minimum, require. I would grant the petition, vacate the sentence, and remand for further proceedings.

       I continue to adhere to my view that the death penalty is, in all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 163, 231 (1976) (Marshall, J., dissenting); Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring).

         The judge charged the jury as follows:
      “ ‘Now, if you find from the evidence beyond a reasonable doubt that . . . the Defendant, Darryl Elroy Stewart, did while in the course of committing or attempting to commit burglary of a habitation, . . . intentionally caused [sic] the death of [the victim] by shooting her with a gun, then you will find the Defendant guilty of Capital Murder, as charged in the Indictment. Or if you find from the evidence beyond a reasonable doubt that . . . Kelvin Kelly and Darryl Elroy Stewart entered into a conspiracy to burglarize the habitation . . . , and that pursuant thereto they did carry out or attempt to carry out such conspiracy to commit burglary, and while in the course of committing such burglary, if any, Kelvin Kelly did intentionally cause the death of [the victim] by shooting her with a gun and that the Defendant, Darryl Elroy Stewart, pursuant to said conspiracy, if any, with the intent to promote, assist, or aid Kelvin Kelly in the commission or attempted commission of the said burglary, then and there, at the time of the shooting, if any, was acting with and aiding Kelvin Kelly in the execution or attempted execution of said burglary, and that the shooting of [the victim] followed in the execution of the conspiracy and in furtherance of the unlawful purpose of Kelvin Kelly and Darryl Elroy Stewart to commit the burglary, and that the shooting of [the victim] was an offense that should have been anticipated as a result of the carrying out of the conspiracy, then you will find the Defendant, Darryl Elroy Stewart, guilty of Capital Murder as charged in the indictment.’” 686 S. W. 2d, at 123-124.

       Petitioner was sentenced before this Court issued its decision in En-mund. Petitioner has not made it clear whether defense counsel moved to strike the panel on the basis of its expressed willingness to impose death in the absence of intent. Even if he did not, however, the Enmund claim was preserved by counsel’s request for a specification of the offense on which petitioner was convicted, his unsuccessful attempt to state to the jury that the law of parties does not apply at sentencing, and other related objections made at trial.

       Petitioner argues that this failure of the trial court to instruct the jury that it must consider mitigating circumstances violates Eddings v. Oklahoma, 455 U. S. 104 (1982), in which the Court held that a State may not preclude the sentencer from considering mitigating circumstances. Id., at 113-114. Whether Eddings requires such instructions in all cases has not been explicitly decided. In this case, however, the lack of instruction concerning the jury’s obligation to consider mitigating factors is particularly troubling, because the determination that the jury was expected to make at sentencing was strikingly similar to the findings it had already made at the guilt phase. Without guidance from the judge, it is quite possible that the jury believed the death sentence to be an automatic result of the conviction.

       This Term, the Court will consider whether Enmund requires that the jury make a finding of intent, or whether an appellate court may make the requisite finding upon review of the evidence. See Bullock v. Lucas, 743 F. 2d 244 (CA5 1984), cert. granted sub nom. Cabana v. Bullock, 471 U. S. 1052 (1985). If this Court determines in Bullock that a jury finding of intent is required, petitioner’s sentence will have to be vacated. Moreover, even if this Court resolves Bullock by concluding that an appellate finding of intent will suffice under Enmund, petitioner’s sentence should still be vacated, because such a finding could not be made by an appellate court in this case. Petitioner’s jury did not explicitly convict on one offense or the other, and the evidence supporting an intentional murder conviction conflicts with the evidence supporting a conviction for felony murder. Thus, it would be impossible for an appellate court to divine which of the mutually exclusive sets of testimony was accepted by the jury and should accordingly be examined for indications of intent. We should grant this petition irrespective of Bullock.


source: Caselaw Access Project

license: Public Domain

text:
    No. 84-6589.
    Brofford v. Morris, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Cer-tiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 84-6660.
    Beck v. Georgia.
   Sup. Ct. Ga. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 85-5094.
    Bailey v. Delaware.
   Sup. Ct. Del. Certio-rari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 84-6668.
    No. 84-6673.
    No. 84-6872.
    Thomas v. United States; Thomas v. United States; and Thomas v. United States.
   C. A. D. C. Cir. Certiorari denied.

Justice Marshall would grant certiorari.

Reported below: No. 84-6668, 243 U. S. App. D. C. 349, 753 F. 2d 167; No. 84-6673, 243 U. S. App. D. C. 348, 753 F. 2d 166; No. 84-6872, 245 U. S. App. D. C. 234, 759 F. 2d 960.


text:
    No. 84-6980.
    Whitley v. United States.
   C. A. 4th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 85-5045.
    Groza v. Veterans Administration et al.
   C. A. 9th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 84-6864.
    Busby v. Louisiana.
   Sup. Ct. La. Certiorari denied.

Justice Marshall,

with whom Justice Brennan and Justice Blackmun join,

dissenting.

Once again this Court has declined to correct an error of constitutional magnitude with a defendant’s life in the balance. The petitioner’s death sentence was unconstitutionally imposed under last Term’s decision in Caldwell v. Mississippi, 472 U. S. 320 (1985), and this Court’s refusal to vacate that sentence is an unwarranted departure from procedures that we follow routinely in the most insignificant case.

I

The petitioner was convicted of first-degree murder. At the sentencing phase of his trial, his counsel attempted to impress upon the jury the significance of its role, in light of the growing number of executions in Louisiana and the Nation as a whole. Counsel admonished the jurors that, should they decide upon the death penalty, they should “ ‘give it with the appreciation that it’ll be carried out.’” 464 So. 2d 262, 266 (La. 1985). The prosecutor responded by arguing to the jury:

“ ‘Though it’s difficult to stand before you ladies and gentlemen and ask you to consider imposing upon anyone the penalty of death, but in order to make your task easier, we’ll state for you that first of all, you have a solemn obligation to live up to your oath. Second of all, that whatever you decide will be recommendations — and recommendations to the Judge, for the Judge to impose the death penalty. It will be the Judge that sentences this defendant to whatever the sentence might be. You make recommendations.’” Ibid.

The jury sentenced petitioner to death.

II

After the Louisiana Supreme Court had affirmed petitioner’s conviction and death sentence, and after his petition for certiorari had been filed, this Court decided Caldwell. There, the Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” 472 U. S., at 328-329. In Caldwell, the prosecutor argued to the jury that the State Supreme Court would automatically review the death sentence. This Court noted that the jury might not understand the limits on appellate review, and might conclude that the ultimate determination of the appropriateness of a death sentence for that defendant would lie with the court. Id., at 330-331. Furthermore, whether or not the jury was misled as to the appellate court’s function, it might decide to “delegate” its responsibility to the court. Id., at 332.

In the present case, we need not speculate about the misleading nature of the prosecutor’s argument, for it flatly misstated Louisiana law. In Louisiana, a jury’s decision in favor of death is binding on the court. La. Code Crim. Proc. Ann., Art. 905.8 (West 1984). Thus, the prosecutor's argument in this case was not an “accurate statement of a potential sentencing alternative,” as in California v. Ramos, 463 U. S. 992, 1009 (1983); cf. Caldwell, supra, at 342 (O’Connor, J., concurring in part and concurring in judgment). Rather, the prosecutor’s argument urged the jury “to minimize the importance of its role,” 472 U. S., at 333, with statements that were both improper under Caldwell and factually inaccurate.

Although the Louisiana Supreme Court acknowledged that the prosecutor’s remarks were “troublesome,” 464 So. 2d, at 266, it concluded that the jury was not misled. The court noted that the trial judge had remarked to the jury, at the beginning of the sentencing phase, that the jury “is given the authority to make a binding recommendation to the trial judge as to the sentence.” Ibid. The judge had also stated that he would impose life imprisonment if the jury could not reach a unanimous recommendation. Id., at 267.

Those statements are inadequate to cure the prosecutor’s inaccurate remarks. The judge did not correct the prosecutor’s statements in his charge, nor did he acknowledge the binding effect of the jury’s decision. Indeed, he compounded the error by telling the jurors that it was their duty “ ‘to make your recommendation as to the sentence that the Court should impose.’” Ibid. Because the prosecutor had affirmatively and unambiguously informed the jury that the ultimate responsibility for the decision rested with the judge, the jury could easily have believed that its decision to impose the death penalty was not automatically binding. In this situation, one cannot possibly conclude that the improper argument “had no effect on the sentencing decision,” Caldwell, supra, at 341. Petitioner’s death sentence, therefore, cannot stand.

Ill

The death sentence in this case was imposed in violation of the Eighth and Fourteenth Amendments as interpreted in Caldwell, supra. Our usual practice when an intervening decision of the Court may affect a lower court’s decision is to grant the petition, vacate the judgment or sentence as appropriate, and remand for further consideration in light of the intervening case. See, e. g., Wainwright v. Henry, 463 U. S. 1223 (1983). Because the Court has declined to follow our general practice, with such enormous consequences for the petitioner, I dissent.

      This chronology explains petitioner’s failure to raise the Caldwell violation in his petition for certiorari. This Court, of course, may correct a plain error not presented in the petition for certiorari. Washington v. Davis, 426 U. S. 229, 238 (1976). The Louisiana Supreme Court expressly decided the issue, so there is no jurisdictional bar to our considering it.


text:
    No. 84-6866 (A-923).
    Breeze v. United States.
   C. A. 4th Cir. Application for release and motion for stay of mandate, addressed to Justice Brennan and referred to the Court, denied. Certiorari denied.


author: Justice Brennan, Justice Marshall,

text:
    No. 84-6873.
    Patten v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Brennan,

dissenting.

Adhering to my view 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 (1976), I would grant certiorari and vacate the judgment below so that the court below can determine the sentence — other than death — that may be appropriate.

Justice Marshall,

dissenting.

I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). I also continue to believe that the death penalty’s cruel and unusual nature is made all the more arbitrary when it is imposed by a judge in the face of a jury determination that death is an inappropriate punishment. See Jones v. Alabama, 470 U. S. 1062, 1063 (1985) (Marshall, J., dissenting from denial of certiorari); Spaziano v. Florida, 468 U. S. 447, 481-490 (1984) (Stevens, J., dissenting). However, even were I to believe that the death penalty could constitutionally be imposed under certain circumstances and that a jury decision for life could be accorded mere advisory status, I would grant certiorari in this case to decide whether the Double Jeopardy Clause bars the State from forcing a defendant to face a second sentencing jury even though the presumptive validity of his first jury’s life recommendation has never been overcome.

I

Petitioner Robert Patten was convicted of first-degree murder, and the State sought the death penalty. During subsequent sentencing deliberations, the jury advised the trial judge that they were deadlocked, 6 to 6; the note concluded: “What now?” Over petitioner’s objections, the judge responded by giving an Allen charge encouraging further deliberations. After continued deliberations, the jury returned with a 7-to-5 recommendation for death. The court imposed the death sentence. On appeal, the Florida Supreme Court affirmed petitioner’s conviction. 467 So. 2d 975 (1985). It emphasized, however, that under Florida law, “if seven jurors do not vote to recommend death, then the recommendation is life imprisonment.” Rose v. State, 425 So. 2d 521, 525 (Fla. 1982), cert. denied, 461 U. S. 909 (1988). The court consequently found the giving of the Allen charge improper and vacated the death sentence. At this point, though, rather than instructing the trial judge to determine whether it would be appropriate to enter a death sentence regardless of the jury’s action, the court chose to remand the case to the trial court for a new sentencing proceeding before a jury. In his motion for rehearing, petitioner urged that the Double Jeopardy Clause barred a second sentencing proceeding. That motion was denied.

II

In Bullington v. Missouri, 451 U. S. 430 (1981), this Court held that because Missouri’s capital sentencing proceeding was comparable to a trial, in which a life sentence constituted a determination that the prosecution had failed to prove its case, the Double Jeopardy Clause barred the State from subjecting a defendant who had received a life sentence in his first trial to the ordeal of a second sentencing proceeding after his conviction had been reversed. In Arizona v. Rumsey, 467 U. S. 203 (1984), where a life sentence had been imposed by a judge rather than a jury, the Court found that the Double Jeopardy Clause barred resentencing even though the judge’s decision to grant life had been based upon what was later held to be a misinterpretation of state law. “[A]n acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge.” Id., at 211.

In Florida, the jury is not the sole decisionmaker in the sentencing proceedings; the trial judge has the power to override a jury’s recommendation for life. See Spaziano v. Florida, supra. Yet the defendant who has persuaded a jury to reject the State’s claim that he deserves to die has nonetheless won a significant victory, for Florida has severely limited the trial judge’s power to override a life recommendation. In Tedder v. State, 322 So. 2d 908 (1975), the Florida Supreme Court held an override to be appropriate only where the “facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Id., at 910; accord, Odom v. State, 403 So. 2d 936, 942 (Fla. 1981), cert. denied, 456 U. S. 925 (1982). Thus, while the life recommendation of a Florida jury does not have the conclusive effect of the Missouri jury’s decision for life that was considered in Bullington, the recommendation is presumed final, subject to reversal only where “virtually no reasonable person could differ.”

Because a Florida jury’s life recommendation is not completely final, this Court has held that the Double Jeopardy Clause does not bar the judge’s override of a jury’s life recommendation. Spaziano v. Florida, supra. However, where a defendant is deprived of the benefits of a jury’s life recommendation without any subsequent finding by the trial judge that that recommendation was “clear[ly] and convincingly]” unreasonable, I believe there to be a double jeopardy bar to the State’s demand that the defendant convince yet another jury that he does not deserve to die. If not held unreasonable, a jury’s life recommendation should end a Florida defendant’s jeopardy as surely as a life verdict ended that of the Missouri defendant in Bullington.

Petitioner was deprived of a jury’s life recommendation without any court having found that advisory verdict unreasonable. Under Florida law, a 6-to-6 vote is a life recommendation. See Rose v. State, supra, at 525. When the trial judge received the jury’s note indicating that it was deadlocked 6 to 6, there was therefore nothing left for him to do but recall the jury and apply the Tedder standard to its life recommendation. I can scarcely believe that the trial judge would have overridden such a recommendation in this case; had he done so, he doubtless would have been reversed on appeal. But instead, the trial judge altered the verdict by giving an Allen charge. Then, even while holding the judge to have erred in giving the charge, the Florida Supreme Court proceeded to disregard the fact that the jury’s deadlock was a finding for defendant on the issue of death. The Supreme Court’s decision to remand was not based upon any finding that a life sentence was unreasonable. The Supreme Court remanded only because the jury’s report of a 6-to-6 deadlock had not been contained in a formal recommendation. Since I do not believe that this adherence to formalism is consistent with the double jeopardy concerns implicated by the Supreme Court’s demand that petitioner convince yet another jury that he does not deserve to die, I must dissent from this Court’s refusal to hear this case.

         Allen v. United States, 164 U. S. 492, 501-502 (1896).

       Indeed, by “direct[ing] the trial court’s attention” to Eddings v. Oklahoma, 455 U. S. 104 (1982), “and its possible application to the facts of this case,” the Florida Supreme Court suggested its concern that the trial judge had failed to consider evidence militating in favor of a life sentence. 467 So. 2d 975, 980 (1985).


text:
    No. 84-6982.
    Burr v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

This petition presents the question whether the sentencing jury in a capital case may be prohibited from taking into account its own nagging doubts about the defendant’s guilt as it considers whether the defendant deserves to die. The Supreme Court of Florida has squarely resolved that question in the affirmative, despite the clear message of Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), that a capital defendant is entitled to have the jury consider “any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, supra, at 604.

Even if I accepted the prevailing view that the death penalty can constitutionally be imposed under certain conditions, I would grant certiorari in this case to consider the grave constitutional question it presents. Today’s decision lets stand a ruling that clearly “creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Lockett, supra, at 605 (opinion of Burger, C. J.), quoted in Eddings, supra, at 118 (O’Connor, J., concurring).

I

Petitioner, Charlie Burr, was charged with the murder of a convenience-store clerk during a robbery of the store. At trial, the State’s key witness was Burr’s girlfriend, Domita Williams, who testified that she had been waiting for Burr outside the store when she heard a shot and then saw Burr come out. The State provided some circumstantial evidence in corroboration. The following day, however, Williams took the stand for the defense and recanted her testimony of the previous day. This time she swore that she had not been with Burr at all on the morning of the murder, and recited a different account of her actions that morning. The defense produced witnesses to support this testimony, including an eyewitness who placed Williams elsewhere at the time of the murder. The defense attempted to establish that Williams’ first testimony had been the product of coercion by the prosecutor; the State, in turn, attempted to show that her second testimony was contrived out of fear of petitioner. Without Williams’ first testimony, the State would not have had a case, for while the State introduced evidence implicating Burr in similar robberies of other convenience stores, it adduced no other evidence directly linking Burr with this crime. The jury returned a verdict of guilty.

At the sentencing hearing, defense counsel devoted his entire closing argument to the inconclusive nature of the evidence against Burr. Counsel drove home to the jury the fact of Domita Williams’ recantation, repeatedly exhorting each juror to “ask yourself ... , is it possible that I’m recommending death for an innocent person?” Suggesting that the guilty verdict might have been based on the evidence of the other robberies, he admonished the jury, “if you go back and recommend death . . . and Mr. Burr is eventually electrocuted and put to death, then it’s going to be a little too late for the truth to come out . . . .” He concluded, “don’t make a recommendation where a man is going to die when he may not have even committed the crime.”

The jury recommended a sentence of life imprisonment. The trial judge, however, overrode this recommendation and sentenced petitioner to death, having identified three aggravating circumstances and nothing in mitigation. Petitioner deduced, and argued on appeal, that the jury’s recommendation of life had been based, legitimately, on residual doubt of Burr’s guilt. The Florida Supreme Court rejected this argument, concluding that “a ‘convicted defendant cannot be “a little bit guilty.”’” 466 So. 2d 1051, 1054 (1985), quoting Buford v. State, 403 So. 2d 943, 953 (Fla. 1981), cert. denied, 454 U. S. 1164 (1982).

II

Implicit in the Florida Supreme Court’s decision is an assumption about the equation of finality and truth that transgresses law and intuition alike. For our legal system is no pretender to absolute truth. In two important ways, the factfinding process falls short of that ideal. First, the beacon of the truth-seeking process in criminal cases is not absolute certainty, but the “reasonable doubt” standard, which has eluded definition by the courts for centuries. See 9 J. Wigmore, Evidence §2497 (J. Chadbourn rev. 1981). Attempts at such a definition typically, and often erroneously, include phrases such as “substantial doubt, not a trivial doubt,” Holland v. United States, 209 F. 2d 516, 522 (CA10), aff’d, 348 U. S. 121 (1954), and “substantial, . . . real doubt,” Tay lor v. Kentucky, 436 U. S. 478, 488 (1978). Although a uniform definition of the term has never evolved, it is clear that juries are not instructed to return a verdict only when all doubt has been eliminated. Rather, the “reasonable doubt” standard merely attempts “to exclude as nearly as possible the likelihood of an erroneous judgment.” Addington v. Texas, 441 U. S. 418, 423 (1979). Hence, “beyond a reasonable doubt” cannot ensure that a jury will not convict a defendant without foreclosing all possibility of innocence in the jurors’ own minds.

Moreover, no instruction can prevent the possibility of human error. “[I]n a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened.” In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). Accordingly, the institutions of criminal justice have been adjusted in recognition that a jury’s verdict and truth are not unerringly synonymous. Every jurisdiction provides some mechanism for awarding a convicted defendant a new trial on the basis of newly discovered evidence. If a convicted defendant can produce sufficient indication that the jury’s finding of guilt beyond a reasonable doubt was wrong, the institutional need for finality yields to the more compelling concerns of truth and fairness. Thus, the “reasonable doubt” foundation of the adversary method attains neither certainty on the part of the factfinders nor infallibility, and accommodations to that failing are well established in our society. See also Jackson v. Virginia, 443 U. S. 307, 317-318 (1979) (reversal of jury verdict supported by insufficient evidence). In the capital sentencing context, the consideration of possible innocence as a mitigating factor is just such an essential accommodation.

Prominent scholars of our time agree. The Model Penal Code absolutely precludes the imposition of a death sentence if the sen-tencer is satisfied that, “although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant’s guilt.” ALI, Model Penal Code §210.6(1), p. 107 (1980). Three Justices of this Court have stated that the possibility of an irrevocable mistake is a valid reason for a jury to conclude that the death penalty is not morally justified. Spaziano v. Florida, 468 U. S. 447, 488, n. 34 (1984) (Stevens, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); Heiney v. Florida, 469 U. S. 920, 924 (1984) (Marshall, J., dissenting). Finally, two Courts of Appeals have determined that jurors may hold a genuine, if not a reasonable, doubt of guilt sufficient to support a sentence of life. Smith v. Wainwright, 741 F. 2d 1248, 1255 (CA11 1984), cert. denied, 470 U. S. 1087 (1985); Smith v. Balkcom, 660 F. 2d 573, 580-581 (CA5 1981), cert. denied, 459 U. S. 882 (1982).

I have written before to describe the subjective personal horror that must face a juror who contemplates sentencing a man to die without being sure of his guilt. Heiney v. Florida, supra, at 921-922. But there is an additional point to be made: that permitting the consideration of lingering doubt at sentencing is objectively a rational and consistent element of our system of criminal justice. Like postconviction remedies in light of new evidence, the conscience of the jury serves to protect against irremediable errors arising in that gray area known as “reasonable doubt.” And when the stakes are life and death, the Constitution forbids the closure of that safety valve, as surely as it forbids the preclusion of other considerations suggesting that a convicted defendant should not die. See Eddings v. Oklahoma, 455 U. S. 104 (1982).

The defendant who has been condemned to die will not reap the benefits of postconviction remedies designed to compensate for jury fallibility when the basis for such relief arises long after conviction. His only protection lies in the consciences of the jurors, for only they know the degree of certainty with which they voted the defendant guilty. The State of Florida would wrest from the jurors their only way of expressing their lingering doubts about their verdict, and from the defendant his only hope of vindication.

Ill

We cannot know the basis for a jury’s recommendation of life, as long as the jury is not required to supply its reasons. Nevertheless, in petitioner’s case we do know several relevant things. First, we know that little, if any, mitigating evidence other than the possibility of innocence could have accounted for the jury’s sentence. Second, we know that the defense counsel rested his plea for his client’s life solely on the striking inconclusiveness of the evidence against petitioner, conceding that this argument had not carried the day at the guilt phase, but imploring the jurors to consider it as a matter of conscience at sentencing. Third, we know that the Supreme Court of Florida considered petitioner’s claim on its merits, without questioning the factual premise of the argument, and ruled that doubt as to a convicted defendant’s guilt cannot be considered as a factor mitigating against the death sentence. This determination bars consideration of a factor that is both relevant, see Eddings, supra, at 113-114, and reasonable, see Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975). Under these compelling circumstances, this Court should not shrink from correcting a misguided principle of law that so surely increases the likelihood that innocent people will go to their deaths.

Rather than bristle at a superficial inconsistency between a guilty verdict and a life sentence based on doubt, we should readily acknowledge that a juror may understand the law to demand less than the conscience. In a capital case, the Eighth Amendment does not tolerate such a distinction.

      To the extent that a jury recommendation of life based on doubt can be said to be inconsistent with that same jury’s finding of guilt, the legitimacy of the guilty verdict itself is rendered unreliable and therefore constitutionally suspect. The remedy for such a defect is not a death sentence, but a new trial.


text:
    No. 84-7002.
    Del Vecchio v. Illinois.
   Sup. Ct. Ill. Cer-tiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Despite this Court’s demand “for reliability in the determination that death is the appropriate punishment in a specific case,” Woodson v. North Carolina, 428 U. S. 280, 305 (1976), the Illinois Supreme Court found there to be no error in the admission of two confessions at petitioner’s capital sentencing hearing, without any inquiry having been made as to their reliability. Because those confessions had been obtained in connection with charges to which petitioner had long before pleaded guilty, the court found petitioner precluded from challenging their voluntariness later, when he was fighting for his life. Even were I to believe that the death penalty could constitutionally be imposed under certain circumstances, I would grant certiorari in this case to determine whether the Illinois Supreme Court’s decision can be reconciled with “the standard of reliability that the Eighth Amendment requires,” Caldwell v. Mississippi, 472 U. S. 320, 341 (1985). See Bare foot v. Estelle, 463 U. S. 880, 924-925 (1983) (Blackmun, J., dissenting).

I

Petitioner George Del Veechio was convicted in 1979 of murder, rape, deviate sexual assault, and burglary, and the State sought the death penalty. At his capital sentencing hearing, the prosecutor urged as a statutory aggravating factor the fact that in 1965, when he was 16 years old, petitioner had been convicted upon a plea of guilty to charges of murder, robbery, and attempted robbery. The prosecution also sought to introduce two confessions that petitioner had made to those previous crimes; these confessions, made to a police officer and an Assistant District Attorney respectively, contained detailed statements as to petitioner’s role in the 1965 crimes. Petitioner moved to suppress these statements at the sentencing hearing on the grounds that they had been induced through physical and psychological coercion and that their use was therefore barred by the Fifth and Fourteenth Amendments. The trial court denied this motion, refusing even to conduct a hearing on it. In his closing argument, the prosecutor pointed to the 1965 confessions as evidence that petitioner was a career criminal who did not deserve to live. The jury proceeded to find two aggravating circumstances and no mitigating circumstances sufficient to preclude a sentence of death. Petitioner was sentenced to die.

In his appeal to the Illinois Supreme Court, petitioner argued that the use of his 1965 confessions without a hearing as to their voluntariness was prejudicial error. The court rejected this claim, concluding:

“While defendant contests the voluntariness of his inculpatory statement, he does not contend that the guilty plea was involuntarily entered. This court has held that ‘a constitutional right, like any other right of an accused, may be waived, and a voluntary plea of guilty waives all errors or irregularities that are not jurisdictional.’ (People v. Brown (1969), 41 Ill. 2d 503, 505 [, 244 N. E. 2d 159, 160].) Thus, the issue was waived by the voluntary plea of guilty.” 105 Ill. 2d 414, 432-433, 475 N. E. 2d 840, 849 (1985).

II

The Illinois Supreme Court’s harsh waiver rule stands in opposition to and must ultimately give way to the constitutional requirement that a defendant facing a death sentence be given an opportunity to challenge the reliability of all evidence urged by the prosecution in support of that sentence. Although this Court has on occasion been divided as to whether this requirement is rooted in the Due Process Clause or the Eighth Amendment, compare Gardner v. Florida, 430 U. S. 349, 358-360 (1977) (plurality opinion), with id., at 362-364 (White, J., concurring in judgment), a concern for reliability has been one of the central “themes ... reiterated in our opinions discussing the procedures required by the Constitution in capital sentencing determinations,” Zant v. Stephens, 462 U. S. 862, 884 (1983). See Barefoot v. Estelle, supra, at 924-925 (Blackmun, J., dissenting). This concern is squarely implicated by the introduction of confessions whose voluntariness has never been determined.

The constitutional bar to the use of involuntary confessions in criminal proceedings is based in part upon the “strongly felt attitude of our society that important human values are sacrificed where an agency of government . . . wrings a confession out of an accused against his will,” Blackburn v. Alabama, 361 U. S. 199, 206-207 (1960), and upon “the deep-rooted feeling that the police must obey the law while enforcing the law,” Spano v. New York, 360 U. S. 315, 320 (1959). Equally significant, however, is our awareness of “the probable unreliability of confessions that are obtained in a manner deemed coercive.” Jackson v. Denno, 378 U. S. 368, 386 (1964). And if the “inherent untrustworthiness” of involuntary confessions, Spano v. New York, supra, at 320, requires their exclusion from the jury during trial, see Jackson v. Denno, supra, at 383-391, it surely forbids their introduction in a capital sentencing proceeding, where the nature of the punishment faced makes the need for reliable information “of still greater constitutional concern.” Barefoot v. Estelle, supra, at 925 (Blackmun, J., dissenting).

That petitioner pleaded guilty to the 1965 crimes and made no effort to contest the voluntariness of his confessions to those crimes has no bearing on the issue of whether the confessions were coerced. “A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against [him],” Tollett v. Henderson, 411 U. S. 258, 268 (1973), are all considerations that may have led petitioner to plead guilty even while he had a compelling claim under the Fifth and Fourteenth Amendments. See Haring v. Prosise, 462 U. S. 306, 318-319 (1983). Nor does the fact that petitioner pleaded guilty establish the truth of the confessions as a whole. Even if the plea constituted an admission of the basic facts comprising the elements of the offenses charged, that admission did not necessarily extend to the truth of other aspects of the confessions. And it is the reliability of those other aspects that is at issue here because it was for them that the prosecutor is likely to have sought admission of the confessions in the first place. Had he wished only to establish petitioner’s guilt of the 1965 crimes, he could have merely introduced the 1965 convictions without more.

Respondent argues that regardless of the voluntariness of petitioner’s confessions, this Court should not review his claim because the Illinois Supreme Court’s decision was based upon a reasonable state procedural rule. However, whether the forfeiture rule applied to preclude petitioner’s claim constitutes an adequate state ground is a federal question, and if the rule does not serve a legitimate state interest it “ought not be permitted to bar vindication of important federal rights,” Henry v. Mississippi, 379 U. S. 443, 448 (1965). Once a defendant has pleaded guilty, the State has a legitimate interest in barring him from attacking his conviction collaterally by asserting constitutional claims that would have been adjudicated had he stood trial. Since the plea “represents a break in the chain of events which has preceded it in the criminal process,” Tollett v. Henderson, supra, at 267, this Court has held that such a conviction is based only on the plea itself, and not whatever might have gone before. See Haring v. Prosise, supra, at 321.

No such state interest supports the extension of the waiver rule to bar an attack, in a subsequent capital sentencing proceeding, on the voluntariness of a confession made by a defendant concerning a crime to which he had previously pleaded guilty. Indeed, were it not for this case, one might have reasonably assumed that a rule so clearly developed to cut off collateral attacks upon a conviction supported by a plea would be applied only in that context. The Illinois Supreme Court’s failure to give any justification for such a radical extension of the rule raises serious questions as to the legitimacy of the state interests implicated. Moreover, any interest the State may have in resolving the voluntariness of a confession soon after the alleged coercion has occurred must in this case be subordinated to the special demand for reliability imposed by the Eighth Amendment. The refusal of the trial court here to inquire into the voluntariness of petitioner’s 1965 confessions outside the presence of the jury pursuant to Jackson v. Denno, supra, was thus error of constitutional magnitude.

Respondent contends that petitioner was not prejudiced by the introduction of the 1965 confessions because this evidence was merely cumulative, the prosecution having already offered evidence of petitioner’s conviction and the confessions of two of petitioner’s codefendants from that proceeding. But a confession is not merely another aggregate of factual assertions. Even before this Court decided that an involuntary confession could not be admitted at trial, it noted that “such a confession combines the persuasiveness of apparent conclusiveness with what judicial experience shows to be illusory and' deceptive evidence.” Stein v. New York, 346 U. S. 156, 192 (1953). What made the introduction of the confessions at petitioner’s sentencing hearing so prejudicial is precisely the reason why the prosecution sought their admission: More damning than the information contained in them was the fact that petitioner was heard to tell of his crimes in his own words. Certainly, it cannot be said that the admission of the confessions had “no effect” on the sentencing decision as required by Caldwell v. Mississippi, 472 U. S., at 341.

Because the trial court here made no effort to determine whether statements so apparently conclusive of petitioner’s character had been obtained in a manner that would cast doubt on their trustworthiness, it failed to guarantee the “reliability in the determination that death is the appropriate punishment” that this Court has demanded in capital procedures, Woodson v. North Carolina, 428 U. S., at 305. I would therefore grant certiorari and vacate petitioner’s death sentence.

      Petitioner also raises a substantial claim that the prosecutor’s summation at trial falsely represented to the jury that petitioner would eventually be eligible for discretionary parole if he were to receive a life sentence. Such inaccurate representations may well have “so affect[ed] the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment,” Caldwell v. Mississippi, 472 U. S., at 340, and had this Court granted certiorari, this claim would have merited its attention.


text:
    No. 85-10.
    Presbytery of Beaver-Butler of the United Presbyterian Church in the United States of America et al. v. Middlesex Presbyterian Church et al.
   Sup. Ct. Pa. Motion of petitioners to consolidate this case with No. 84-2035, York v. First Presbyterian Church of Anna, supra, denied. Cer-tiorari denied.


text:
    No. 85-186.
    Burlington Northern Inc. v. Herold et al.
   C. A. 8th Cir. Motion of Association of American Railroads for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 85-200.
    O’Kane et al. v. Ford Motor Co. et al.
   C. A. 3d Cir. Petition for writ of certiorari and/or prohibition denied.


text:
    No. 85-230.
    Authier v. Ginsberg et al.
   C. A. 6th Cir. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 85-5042.
    Taylor, a Minor, by her Mother, Taylor, et al. v. O’Keefe et al.
   C. A. 2d Cir. Motion of Victims of Crime Advocacy League of New York State, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 85-5102.
    Poyner v. Virginia.
   Sup. Ct. Va. Certiorari denied.

Justice Brennan would grant certiorari.

Justice Marshall,

dissenting.

Adhering to my view 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, 231 (1976), I would grant certiorari and vacate the death sentence in this case.


text:
    No. 85-5186.
    South v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.

Justice Blackmun would grant the petition for writ of certiorari, vacate the judgment, and remand the case for further consideration in light of Caldwell v. Mississippi, 472 U. S. 320 (1985).

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Last June, this Court held it “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 328-329 (1985). In Caldwell, the prosecutor had urged the jury not to view its sentence recommendation as determining whether defendant would die because any death sentence would be reviewed by the State Supreme Court. “The argument was inaccurate, both because it was misleading as to the nature of the appellate court’s review and because it depicted the jury’s role in a way fundamentally at odds with the role that a capital sentencer must perform.” Id., at 336.

I believe the facts of this case similarly demand reversal. At petitioner’s sentencing hearing, the prosecutor set the stage for the trial judge’s instructions, noting:

“ ‘He will explain to you about the mitigating parts, things that the defense will say you should consider in imposing life imprisonment.
“‘And even behind all of that there are many safeguards built into this law. There are many many guidelines, safeguards for the defendant’s benefit. And I have no problems with that. I agree with that. I want it that way.
‘“We are talking about the ultimate punishment. There are even safeguards that I can’t tell you about because the law says I am not suppose [sic] to tell you about them, and I have no problems with that. I am glad it is that way.’” App. to Pet. for Cert. 12a (emphasis supplied).

The jury returned a recommendation for death, and that sentence was accordingly imposed by the trial court. On appeal, the South Carolina Supreme Court deferred to the “wide discretion” of the trial judge “regarding the propriety of the argument,” id., at 6a, and refused to disturb his ruling. Seven days later, this Court handed down its decision in Caldwell.

In Caldwell, the prosecutor’s specificity as to the alleged safeguards allowed this Court to assess the degree to which his remarks might have led the jury to “shift its sense of responsibility to an appellate court.” 472 U. S., at 330. Such an assessment is impossible here because the prosecutor’s vague assurances invited jurors to speculate freely as to the extent to which they could share their duty of deciding whether petitioner should die. Their ability to shift their responsibility was limited only by their imaginations. But there can be no doubt that, as in Caldwell, the argument “urged the jurors to view themselves as taking only a preliminary step toward the actual determination of the appropriateness of death — a determination which would eventually be made by others and for which the jury was not responsible.” Id., at 336.

The South Carolina Supreme Court asserted that any prejudice attributable to the prosecution’s remarks was negated by defense counsel’s arguments and the trial judge’s instructions. But once the prosecutor had alluded to safeguards that he claimed could not even be disclosed to the jury, the absence of further reference to such safeguards could only corroborate, not cure. Certainly, it cannot be seriously suggested that the remarks had “no effect” upon the jury’s decision to recommend that petitioner receive the death sentence. See Caldwell, swpra, at 341.

Even were I to believe that the death penalty could constitutionally be imposed under certain circumstances, I would grant the petition, vacate the sentence, and remand this case to the South Carolina Supreme Court for reconsideration in light of Caldwell. This Court’s refusal to treat like cases alike can only add to the unconstitutionally arbitrary nature of the death penalty.


text:
    No. 81-1718.
    Devex Corp. et al. v. General Motors Corp.,
   456 U. S. 990. Motion of petitioner Technograph, Inc., for leave to file petition for rehearing denied.


text:
    No. 83-676.
    Sam Rayburn Dam Electric Cooperative, Inc. v. United States,
   465 U. S. 1005. Motion of petitioner for leave to file petition for rehearing denied.

Justice Blackmun would grant this motion.


text:
    October 10, 1985
    No. 85-248.
    Crawford Fitting Co. et al. v. J. T. Gibbons, Inc.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Brennan and Justice Marshall,

text:
    October 11, 1985
    No. A-280.
    Bowden v. Kemp, Warden.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, 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 a petition for writ of certiorari and would vacate the death sentence in this case.


text:
    October 12, 1985
    No. 85-5334.
    In Re Bellin.
   Petition for writ of mandamus dismissed under this Court’s Rule 53.


text:
    October 14, 1985
    No. A-285 (85-5607).
    Bowden v. Kemp, Warden.
   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 pending the final disposition of the petition for writ of certiorari.


text:
    October 15, 1985
    No. 84-921.
    Northeastern International Airways, Inc., et al. v. Florida Department of Revenue.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.


text:
    No. 84-926.
    Eastern Airlines Inc. v. Florida Department of Revenue.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.


text:
    No. 84-929.
    Delta Air Lines, Inc. v. Florida Department of Revenue.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.


text:
    No. 84-1773.
    Pine Hill Civic Club, Inc., et al. v. DeKalb County, Georgia, et al.
   Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question.


text:
    No. 84-1881.
    Hedges v. Allinder.
   Appeal from Sup. Ct. App. W. Va. dismissed for want of substantial federal question.


text:
    No. 85-417.
    Exotic Coins, Inc., et al. v. Beacom, District Attorney for County of Adams, et al.
   Appeal from Sup. Ct. Colo, dismissed for want of substantial federal question.


author: Justice White,

text:
    No. 85-19.
    Fein v. Permanente Medical Group.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.

Justice White,

dissenting.

California Civ. Code Ann. §3333.2 (West Supp. 1985) establishes a $250,000 maximum limitation in medical malpractice actions for “noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damage.” This statute is part of the Medical Injury Compensation Act of 1975, enacted by the California Legislature in response to the dramatic rise in consumer medical costs caused by the increase in both monetary awards in medical malpractice actions and medical malpractice insurance premiums. See 1975 Cal. Stats., 2d Ex. Sess., ch. 2, §12.5(l)(b), p. 4007.

Appellant brought a medical malpractice action against appellee, Permanente Medical Group, a partnership of physicians, for failing to diagnose and prevent a myocardial infarction. The jury awarded appellant total damages of $1,287,783, including $500,000 for noneconomic losses. The trial judge, however, pursuant to § 3333.2, reduced the amount of noneconomic damages to $250,000.

The California Supreme Court affirmed, rejecting appellant’s challenge that §3333.2 contravenes both the Due Process and Equal Protection Clauses of the Federal Constitution. 38 Cal. 3d 137, 695 P. 2d 665 (1985). The court found no due process violation based on the theory that “the Legislature retains broad control over the measure, as well as the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and . . . the Legislature may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest.” Id., at 158, 695 P. 2d, at 680 (emphasis in original). The court then reasoned that the limitation imposed by §3333.2 was a rational response to the problem of rising medical malpractice insurance costs.

Similarly, the court found that § 3333.2 did not improperly discriminate either between medical malpractice plaintiffs and other tort plaintiffs, or within the class of medical malpractice plaintiffs by denying full recovery to those with noneconomic damages exceeding $250,000. The legislature’s decision to limit the application of §3333.2 to medical malpractice cases, and within those cases to those with large noneconomic damages awards, the court reasoned, was a rational response to escalating malpractice insurance rates.

California thus joins Indiana as the only two States to uphold the constitutionality of this type of medical malpractice damages limits. See Johnson v. St. Vincent Hospital, Inc., 404 N. E. 2d 585, 598-601 (Ind. 1980). Four other States which have addressed similar damages limitations have invalidated the challenged provisions on federal constitutional grounds. Baptist Hospital of Southeast Texas v. Baber, 672 S. W. 2d 296, 298 (Tex. App. 1984) ($500,000 limit on damages other than medical expenses); Carson v. Maurer, 120 N. H. 925, 941-943, 424 A. 2d 825, 836-838 (1980) ($250,000 limit on “noneconomic” damages); Arneson v. Olsen, 270 N. W. 2d 125, 135-136 (N. D. 1978) ($300,000 limit on total damages); Simon v. St. Elizabeth Medical Center, 3 Ohio Op. 3d 164, 166, 355 N. E. 2d 903, 906-907 (Com. PI. 1976) ($200,000 limit on “general” damages).

One of the reasons for the division among the state courts is a question left unresolved by this Court in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 (1978). In that case, the Court upheld the provisions of the Price-Anderson Act, 42 U. S. C. § 2210, which place a dollar limit on total liability that would be incurred by a defendant in the event of a nuclear accident. One of the objections raised against the liability limitation provisions was that they violated due process by failing to provide those injured by a nuclear accident with an adequate quid pro quo for the common-law right of recovery which the Act displaced. The Court noted: “It is not at all clear that the Due Process Clause in fact requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy. However, we need not resolve this question here . . . .” 438 U. S., at 88 (footnote omitted).

The North Dakota Supreme Court in Ameson, supra, followed Duke Power Co., and refused to hold that the legislature may not limit a pre-existing right without providing a quid pro quo. 270 N. W. 2d, at 134-135. Nevertheless, the court went on to find that the imposition of a damages cap on malpractice claims did not provide a sufficient quid pro quo for the severely injured malpractice plaintiff, as his loss of recovery was offset only by lower medical costs for all recipients of medical care, and he received no specific benefit in return. Id., at 136, citing Wright v. Central Du Page Hospital Assn., 63 Ill. 2d 313, 328, 347 N. E. 2d 736, 743 (1976). This approach has been followed by the courts in Texas and New Hampshire. See Baptist Hospital of Southeast Texas, supra, at 298; Carson, supra, at 941-943, 424 A. 2d, at 837-838. In the instant case, however, the California Supreme Court concluded that “it would be difficult to say that the preservation of a viable medical malpractice insurance industry in this state was not an adequate benefit for the detriment the legislation imposes on malpractice plaintiffs.” 38 Cal. 3d, at 160, n. 18, 695 P. 2d, at 681-682, n. 18.

Whether due process requires a legislatively enacted compensation scheme to be a quid pro quo for the common-law or state-law remedy it replaces, and if so, how adequate it must be, thus appears to be an issue unresolved by this Court, and one which is dividing the appellate and highest courts of several States. The issue is important, and is deserving of this Court’s review. Moreover, given the continued national concern over the “malpractice crisis,” it is likely that more States will enact similar types of limitations, and that the issue will recur. I find, therefore, that the federal question presented by this appeal is substantial, and dissent from the Court’s conclusion to the contrary.

      In addition, at least one other court has struck down a similar medical malpractice damages cap as violative of the State’s Constitution. Wright v. Central Du Page Hospital Assn., 63 Ill. 2d 313, 329-330, 347 N. E. 2d 736, 743 (1976). Cf. Jones v. State Board of Medicine, 97 Idaho 859, 877, 555 P. 2d 399, 416-417 (1976) (remanding for factual determination on whether a medical malpractice “crisis” actually existed in Idaho to justify adoption of damages limitation).


text:
    No. 85-37.
    Spendlove et al. v. Anchorage Municipal Zoning Board of Examiners and Appeals et al.
   Appeal from Sup. Ct. Alaska dismissed for want of jurisdiction.


text:
    No. 85-152.
    Thompson et al. v. First National Bank & Trust Co.
   Appeal from Cir. Ct. Ky., Kenton County, dismissed for want of jurisdiction.


text:
    No. 85-191.
    Zerman et al. v. Avant Garde Condominium Assn., Inc., et al.; and Zerman v. White, Clerk of the Florida Supreme Court, et al.
   Appeals from Sup. Ct. Fla. dismissed for want of jurisdiction. Reported below: 466 So. 2d 218 (first case); 472 So. 2d 1182 (second case).


text:
    No. 85-123.
    Muka v. Carter, Chief Disciplinary Counsel.
   Appeal from Sup. Ct. R. I. dismissed for want of a final judgment.


text:
    No. 85-309.
    Roussos v. Retina Consultants, P. C.
   Appeal from Ct. Sp. App. Md. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-5263.
    Smith v. Scully.
   Appeal from Ct. App. Ore. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-231.
    Boating Industry Assns. et al. v. Moore et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U. S. 284 (1985).


text:
    No. 85-5193.
    Yates v. Aiken, Warden, et al.
   Sup. Ct. S. C. Motion of petitioner for leave to proceed informa pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Francis v. Franklin, 471 U. S. 307 (1985).


text:
    No. A-207 (85-369).
    Tucker v. Hartford Federal Savings & Loan Assn.
   Sup. Ct. Conn. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. D-493.
    In re Disbarment of Surdut.
    [For earlier order herein, see 471 U. S. 1114.]
   Disbarment entered.


text:
    No. D-501.
    In re Disbarment of Chartier.
    [For earlier order herein, see 472 U. S. 1005.]
   Disbarment entered.


text:
    No. D-507.
    In re Disbarment of Roth.
    [For earlier order herein, see 472 U. S. 1024.]
   Disbarment entered.


text:
    No. D-518.
    In re Disbarment of O’Boyle.
   It is ordered that Edwards C. O’Boyle, Jr., of Peacham, Vt., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-519.
    In re Disbarment of Davis.
   It is ordered that James Nelson Davis, of Daytona Beach, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-521.
    In re Disbarment of Kline.
   It is ordered that David L. Kline, of Lake City, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-522.
    In re Disbarment of Kaminsky.
   It is ordered that James Raymond Kaminsky, of Columbus, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-523.
    In re Disbarment of Gantt.
   It is ordered that Richard Allison Gantt, of Greenville, S. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-524.
    In re Disbarment of Wetherbee.
   It is ordered that R. Michael Wetherbee, of Los Angeles, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 35,
    Orig.
    United States v. Maine et al.
    [For earlier order herein, see, e. g., ante, p. 808.]
   Motion of Massachusetts for leave to file a reply brief granted.


text:
    No. 84-1076.
    Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Board of Mississippi et al.
   Sup. Ct. Miss. [Probable jurisdiction noted, 470 U. S. 1083.] Motion of Louisiana for leave to file a brief as amicus curiae out of time denied.


text:
    No. 84-1198.
    Texas v. McCullough.
   Ct. Crim. App. Tex. [Certiorari granted, 472 U. S. 1007.] Motion of John Mann, Esquire, to permit Jeff Blackburn, Esquire, to present oral argument pro hac vice on behalf of respondent granted.


text:
    No. 84-1236.
    Cabana, Superintendent, Mississippi State Penitentiary, et al. v. Bullock.
   C. A. 5th Cir. [Certiorari granted, 471 U. S. 1052.] Motion of National Association of Criminal Defense Lawyers for leave to file a brief as amicus curiae granted.


text:
    No. 84-1274.
    Board of Governors of the Federal Reserve System v. Dimension Financial Corp. et al.
   C. A. 10th Cir. [Certiorari granted, 471 U. S. 1064.] Motion of respondents for divided argument granted.

Justice White took no part in the consideration or decision of this motion.


text:
    No. 84-1279.
    Delaware v. Van Arsdall.
   Sup. Ct. Del. [Certiorari granted, 473 U. S. 923.] Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 84-1480.
    Wainwright, Secretary, Florida Department of Corrections v. Greenfield.
   C. A. 11th Cir. [Cer-tiorari granted, 471 U. S. 1098.] Motion of Illinois Psychological Association for leave to participate in oral argument as amicus curiae and for divided argument denied.


text:
    No. 84-1538.
    Fisher et al. v. City of Berkeley, California, et al.
   Sup. Ct. Cal. [Probable jurisdiction noted, 471 U. S. 1124.] Motion of appellants for divided argument to permit California Apartment Association to present oral argument as amicus curiae denied.


text:
    No. 84-1554.
    Sielaff, Director, Virginia Department of Corrections v. Carrier.
   C. A. 4th Cir. [Certiorari granted, 473 U. S. 903.] Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion for appointment of counsel granted, and it is ordered that Sherman Louis Cohn, Esquire, of Washington, D. C., be appointed to serve as counsel for respondent in this case.


text:
    No. 84-1731.
    Lorain Journal Co. et al. v. Milkovich.
   Sup. Ct. Ohio. Motion of Ohio Newspaper Association for leave to file a brief as amicus curiae granted.


text:
    No. 84-1750.
    Ballam v. United States.
   C. A. 4th Cir. The Solicitor General is requested to state the views of the United States with respect to the jurisdiction of the Court of Appeals to hear the appeal in this case. See the views of the United States stated in its petition for certiorari to review United States v. Squillacote, 747 F. 2d 432 (CA7 1984), cert. denied, 471 U. S. 1016 (1985).


text:
    No. 84-6470.
    Davidson v. Cannon et al.
   C. A. 3d Cir. [Certiorari granted, 471 U. S. 1134.] Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-82.
    Building & Construction Trades Council of Philadelphia and Vicinity et al. v. Altemose Construction Co. et al.
   C. A. 3d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 85-273.
    Florida v. Ross.
   Dist. Ct. App. Fla., 4th Dist. Motion of respondent for leave to proceed in forma pauperis granted.


text:
    No. 85-5262.
    Newby et al. v. Department of Labor.
   C. A. Fed. Cir. Motion of petitioners for leave to proceed in forma pauperis denied. Petitioners are allowed until November 5, 1985, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 85-5319.
    Darden v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. [Certiorari granted, 473 U. S. 928.] Motion of respondent to vacate stay of execution and suggestion that writ was improvidently granted is denied.


text:
    No. 85-394.
    No. 85-5284.
    No. 85-5346.
    In re Tracey; In re Sanchez-Berridi; and In re Krahn.
   Petitions for writs of mandamus denied.


text:
    No. 84-1905.
    Heckler, Secretary of Health and Human Services v. Owens et al.
   Appeal from D. C. C. D. Cal. Probable jurisdiction noted.


text:
    No. 85-88.
    Paulussen v. Herion.
   Appeal from Super. Ct. Pa. Probable jurisdiction noted.


text:
    No. 85-117.
    Baker et al. v. General Motors Corp. et al.
   Appeal from Sup. Ct. Mich. Probable jurisdiction noted.


text:
    No. 85-217.
    International Longshoremen’s Assn., AFL-CIO v. Davis.
   Appeal from Sup. Ct. Ala. Probable jurisdiction noted.


text:
    No. 84-1560.
    Press-Enterprise Co. v. Superior Court of California for the County of Riverside.
   Sup. Ct. Cal. Certiorari granted.


text:
    No. 84-1717.
    United States v. Quinn.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 84-1744.
    Henderson et al. v. United States.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 84-1777.
    International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, et al. v. Brock, Secretary of Labor.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 84-1809.
    Federal Trade Commission v. Indiana Federation of Dentists.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 84-1973.
    Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P. C., et al.
   Sup. Ct. N. D. Certiorari granted.


text:
    No. 85-195.
    Icicle Seafoods, Inc. v. Worthington et al.
   C. A. 9th Cir. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 85-246.
    United States v. Dion.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-6859.
    Skipper v. South Carolina.
   Sup. Ct. S. C. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Question I presented by the petition.


text:
    No. 84-1805.
    Tulalip Tribes of Washington et al. v. Federal Energy Regulatory Commission.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1877.
    No. 84-1938.
    Stearns Co. et al. v. Hodel, Secretary of the Interior, et al.; and Gabriel Energy Corp. v. Hodel, Secretary of the Interior, et al.
   C. A. 6th Cir. Certiorari denied. Reported below: 753 F. 2d 521.


text:
    No. 84-1880.
    City of Alcoa et al. v. Myers, on Behalf of Herself and her Three Minor Children, Dixon et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-1996.
    Truck Drivers Local 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. v. National Labor Relations Board et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6784.
    Yater v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-6821.
    Grace v. Golden et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-6822.
    Grace v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certio-rari denied.


text:
    No. 84-6828.
    Villanueva v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-6846.
    No. 84-6935.
    No. 84-6949.
    Kirby v. United States; Greenspun v. United States; and Balchaitis v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: 758 F. 2d 879.


text:
    No. 84-6921.
    Kramsvogel v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 84-6952.
    Kepreos v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-71.
    Locals 666 and 780 of the International Alliance of Theatrical Stage Employees et al. v. United States Department of Labor et al.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 85-76.
    Graham v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 85-81.
    Christmann & Welborn v. United States Department of Energy et al.
   Temp. Emerg. Ct. App. Certio-rari denied.


text:
    No. 85-94.
    Zimmer Paper Products Inc. v. Berger & Montague, P. C., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-115.
    National Freight, Inc., et al. v. Larson, Secretary of Transportation of Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-122.
    First Citizens Bank of Billings v. Equal Employment Opportunity Commission.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 85-131.
    Lewis v. Blackburn, Clerk of Superior Court for Mecklenburg County, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-156.
    Hoover et al. v. Dole, Secretary of Transportation, et al.
   Sp. Ct. R. R. R. A. Certiorari denied.


text:
    No. 85-163.
    Balair, Ltd., et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-254.
    Kearney & Trecker Corp. v. Gulf South Machine, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-256.
    Heckler, Secretary of Health and Human Services v. St. James Hospital et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 85-261.
    Binladen BSB Landscaping v. M. V. “Nedlloyd Rotterdam.”
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-264.
    Aragon v. Local No. 572, International Brotherhood of Teamsters et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-265.
    Hallstrom et al. v. Stivers et al.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 85-266.
    Wilco Marsh Buggies & Draglines, Inc., et al. v. Kori Corp. et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-267.
    Matrix Enterprises, Inc., et al. v. Millington Telephone Co., Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-268.
    Mitsui & Co. (U. S. A.), Inc., et al. v. Western Concrete Structures Co., Inc.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 85-271.
    California v. Walnut Properties, Inc., et al.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Cer-tiorari denied.


text:
    No. 85-272.
    Arrow Northwest, Inc., et al. v. Greater Houston Transportation Co., dba Yellow Cab Co., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-275.
    Gay v. Coats & Clark, Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-280.
    Lawhorn et ux. v. King.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 85-283.
    Argus Chemical Corp. v. Fibre Glass-Evercoat Co., Inc.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-284.
    Hayes v. Cannon et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 85-285.
    Peil v. Sporck.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-286.
    Beary v. West Publishing Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-288.
    Deane et al. v. Thomson McKinnon Securities, Inc., et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-292.
    Beckham v. Harris et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-293.
    Ozark Air Lines, Inc. v. Air Line Pilots Assn., International.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-296.
    Geisler v. Kansas.
   Ct. App. Kan. Certiorari denied.


text:
    No. 85-297.
    Bieker v. Kansas.
   Ct. App. Kan. Certiorari denied.


text:
    No. 85-302.
    Montgomery v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 85-305.
    Fryzel, Director, Department of Financial Institutions v. Cash Currency Exchange, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-310.
    Montgomery Ward & Co., Inc. v. Dabney.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-313.
    Cavros v. Connecticut.
   Sup. Ct. Conn. Cer-tiorari denied.


text:
    No. 85-315.
    Italiano v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 85-317.
    Hestnes et al. v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-323.
    B & G Crane Service, Inc. v. Dolphin Titan International, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-325.
    Bruscantini v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-327.
    Ward v. L & C Marine Transport, Ltd.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-336.
    Eubanks v. O’Brien et al.
   Ct. App. Colo. Certiorari denied.


text:
    No. 85-339.
    Johnston v. Dowling et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-341.
    Villarreal v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-344.
    Dutka v. Department of the Treasury.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-347.
    Jacob v. Attorney Grievance Commission of Maryland.
   Ct. App. Md. Certiorari denied.


text:
    No. 85-352.
    North American Reporting, Inc., et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-355.
    Brown et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-396.
    Duff v. Virginia.
   Cir. Ct. Rockingham County, Va. Certiorari denied.


text:
    No. 85-418.
    Crawford, Special Administratrix of the Estates of Pawlisa et al. v. Edmonson et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-427.
    McGee v. First Federal Savings & Loan Association of Brunswick.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-433.
    No. 85-5330.
    No. 85-5368.
    No. 85-5379.
    Bisig v. United States; Green v. United States; Hardin v. United States; and Hardin v. United States.
   C. A. 6th Cir. Certiorari denied. Reported below: 770 F. 2d 167.


text:
    No. 85-443.
    Kwiatecki v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-450.
    Bridgeport v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-452.
    Dale et ux. v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5025.
    Hernandez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5062.
    Griffin v. Scully, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5073.
    No. 85-5134.
    Alongi v. United States; and Mustacchio v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: 759 F. 2d 1099.


text:
    No. 85-5149.
    Fuentes v. New York.
   Ct. App. N. Y. Cer-tiorari denied.


text:
    No. 85-5226.
    Williams v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5231.
    Turner v. Morris, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5246.
    Delespine v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5247.
    Enriquez v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 85-5250.
    Sturm v. California.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 85-5252.
    Sanford v. Bradley, Judge, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5256.
    Moore v. Orner, Shayne & Reizner, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5266.
    In re Baker.
   Ct. App. Wash. Certiorari denied.


text:
    No. 85-5269.
    Stewart v. Wisconsin.
   Sup. Ct. Wis. Cer-tiorari denied.


text:
    No. 85-5274.
    Williams v. Sielaff, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5279.
    Goldman v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 85-5280.
    Kaltenbach v. Acadian Metropolitan Code Authority.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 85-5281.
    Greif et al. v. City of Bedford, Ohio.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5282.
    Welch v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 85-5289.
    Aguilera v. Cook County Police and Corrections Merit Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5294.
    McAfee v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5296.
    Coder v. Grine et al.
   C. A. 3d Cir. Certio-rari denied.


text:
    No. 85-5297.
    Kosyla v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 85-5300.
    Wilson v. Barnes et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5303.
    Howard v. Radio Corporation of America et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5305.
    Farris v. United States Postal Service.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-5315.
    Garcia v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5324.
    Masters v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5340.
    Lovelace v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5341.
    Arbelaez v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5342.
    Beard v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5357.
    Brown v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5363.
    Gillis v. Orr, Secretary of the United States Air Force.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5364.
    Davis v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5369.
    Blandon-Gaviria v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5377.
    Staples v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5382.
    Wallace v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5383.
    Lazard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5390.
    Revels v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5391.
    Brisbon v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 85-5396.
    Pointer v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 85-5407.
    Faulisi v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5410.
    Veatch v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5416.
    Harrelson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5420.
    Marshall et al. v. Maine.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 85-5423.
    Swain v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5429.
    Sweeney v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5435.
    Como v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 85-5442.
    Hawes v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-1699.
    Public Service Company of Indiana, Inc. v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Motion of National Association of Regulatory Utility Commissioners for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 84-1738.
    Sackett-Chicago, Inc. v. Midgett.
   Sup. Ct. Ill. Motion of respondent for leave to proceed informa pauperis denied. Certiorari denied.


text:
    No. 84-1821.
    Ford, Warden v. Ford.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 84-1857.
    Lucker et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.

Justice White and Justice Powell would grant certiorari.


text:
    No. 85-65.
    Shanghai Power Co. v. United States.
   C. A. Fed. Cir. Certiorari denied.

Justice White and Justice Powell would grant certiorari.


text:
    No. 84-1925.
    National Treasury Employees Union et al. v. O’Connor, Special Counsel, Merit Systems Protection Board.
   C. A. D. C. Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 84-1928.
    Pacific Employers Insurance Co. v. M/V Capt. W. D. Cargill et al.
   C. A. 5th Cir. Certiorari denied.

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

Justice White,

dissenting.

In this case, the United States Court of Appeals for the Fifth Circuit held, respecting the District Court’s dismissal of a declaratory action, that review is limited to the question of whether the District Court abused its discretion. 751 F. 2d 801, 804 (1985). This standard of review conflicts with that adopted by other Courts of Appeals. See, e. g., Bilbrey v. Brown, 738 F. 2d 1462, 1470 (CA9 1984) (whether a district court properly exercised its discretion to grant declaratory relief is subject to more searching review on appeal than under the “abuse of discretion” standard); International Harvester Co. v. Deere & Co., 623 F. 2d 1207, 1217 (CA7 1980) (a court of appeals, in deciding whether jurisdiction should be taken in a declaratory action, does not defer to the judgment of the district court, but must exercise its own sound discretion). I would grant certiorari to resolve this conflict among the Courts of Appeals.


text:
    No. 84-2016.
    Greyhound Lines, Inc. v. Wilhite et al.
   C. A. 9th Cir. Certiorari denied.

Justice White,

dissenting.

In this case, the United States Court of Appeals for the Ninth Circuit held that DelCostello v. Teamsters, 462 U. S. 151 (1983) (actions brought under § 301 of the Labor Management Relations Act, 29 U. S. C. §185, are governed by the 6-month statute of limitations provided in § 10(b) of the National Labor Relations Act, 29 U. S. C. § 160(b)), was not to be applied retroactively because such retroactive application would shorten the applicable limitations period. Cf. Glover v. United Grocers, Inc., 746 F. 2d 1380 (CA9 1984) (applying DelCostello retroactively when doing so lengthened time for filing). In so holding, the Court of Appeals followed a prior decision in that court that relied on the factors outlined in Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971), in deciding this retroactivity question. See Barina v. Gulf Trading & Transportation Co., 726 F. 2d 560, 563-564 (CA9 1984).

The decision below conflicts with those in other Circuits which have held that DelCostello should be applied retroactively. See, e. g., Smith v. General Motors Corp., 747 F. 2d 372 (CA6 1984) (en banc); Graves v. Smith’s Transfer Corp., 736 F. 2d 819 (CA1 1984). Other Circuits have also held that the Huson analysis is not necessary to determine whether retroactivity is appropriate in this context. See, e. g., Welyczko v. U. S. Air, Inc., 733 F. 2d 239 (CA2), cert. denied, 469 U. S. 1036 (1984); Smith, supra. I would grant certiorari to resolve these conflicts.


text:
    No. 84-2034.
    Saville v. Westinghouse Electric Corp. et al.
   C. A. 3d Cir. Certiorari denied.

Justice White,

dissenting.

In this case, the United States Court of Appeals for the Third Circuit held that DelCostello v. Teamsters, 462 U. S. 151 (1983) (actions brought under § 301 of the Labor Management Relations Act, 29 U. S. C. § 185, are governed by the 6-month statute of limitations provided in § 10(b) of the National Labor Relations Act, 29 U. S. C. § 160(b)), applies retroactively. In so holding, the Court of Appeals followed a prior decision in that court which relied on the factors outlined in Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971), in making that retroactivity determination. See Perez v. Dana Corp., Parish Frame Div., 718 F. 2d 581 (CA3 1983). For the reasons stated in my dissent in Greyhound Lines, Inc. v. Wilhite, ante, p. 910, I would grant certio-rari in this case.


text:
    No. 84-6962.
    No. 84-6975.
    No. 85-5171.
    Cape v. Francis, Warden. Alderman v. Georgia. Wilson v. Louisiana.
   C. A. 11th Cir.;

Sup. Ct. Ga.; and

Sup. Ct. La. Certiorari denied. Reported below: No. 84-6962, 741 F. 2d 1287; No. 84-6975, 254 Ga. 206, 327 S. E. 2d 168; No. 85-5171, 467 So. 2d 503.

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. 85-5116.
    Lucas v. New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.

Justice White,

dissenting.

The issue presented in this case is whether the prohibition established in New Jersey v. Portash, 440 U. S. 450 (1979), against using a statement obtained from a criminal defendant in violation of his Fifth Amendment right against self-incrimination for impeachment purposes applies equally to statements taken in violation of the Sixth Amendment right to counsel. The United States Court of Appeals for the Second Circuit in United States v. Brown, 699 F. 2d 585 (1983), and the Tenth Circuit in United States v. McManaman, 606 F. 2d 919 (1979) (pre-Portash), have answered this question in the affirmative. The Appellate Division of the Supreme Court of New York in the present case, 105 App. Div. 2d 545, 481 N. Y. S. 2d 789 (1984), and the New York Court of Appeals in New York v. Ricco, 56 N. Y. 2d 320, 437 N. E. 2d 1097 (1982), however, have given the opposite answer. I would grant certiorari to resolve this conflict.


text:
    No. 84-6738.
    Shahryar v. Martin, Warden,
   472 U. S. 1031. Motion for leave to file petition for rehearing denied.


text:
    October 18, 1985
    No. 85-304.
    Curtis v. Doubleday & Co., Inc.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 53.