author: Justice Brennan,

text:
    No. 83-6759.
    Moran v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Petitioner was convicted by an Ohio jury of the murder of her husband Willie Moran. She asserted at trial that she had acted in self-defense, as a result of the repeated and brutal beatings she had suffered at her husband’s hands. She seeks certiorari to review the state appellate court’s holding that the jury properly was instructed that she had the burden of proving self-defense by a preponderance of the evidence. According to petitioner, the Due Process Clause forbids the State to punish her for murder when the jury that convicted her may well have thought it as likely as not that she acted in self-defense. I would grant certio-rari to consider the substantial constitutional question raised by this petition — a question that this Court has labeled as “colorable” and “plausible” in previous decisions and that has for years divided state courts and lower federal courts.

I

A

There was substantial testimony at petitioner’s trial that her husband — a man of violent temperament who virtually always carried firearms and owned a collection of pistols, rifles, and shotguns — had repeatedly beaten and brutalized her. For example, in one incident, Willie Moran “had her by the neck, by the throat, and he was hitting” her with a gun. In another incident, Willie Moran “hit her and knocked her off the chair and, then, kicked her.” Petitioner’s mother testified that earlier in the very week in which the murder occurred she saw Willie Moran “hit [petitioner] and knocked her on the floor, and I seen him take his feet and was kicking her.”

On May 15, 1981, petitioner and Willie Moran had their last fight. According to petitioner’s testimony, Willie Moran had told her that he wanted some money that he thought she had saved. He threatened that if petitioner did not have the money for him by the time he woke up from a nap, he would “blow [her] damn brains out.” Petitioner, who did not have the money, unsuccessfully called a friend for help. Then, realizing that she had no way of raising the necessary funds, she entered the camper where Willie Moran was sleeping, picked up his gun, and fatally shot him.

B

At trial, petitioner pleaded not guilty, asserting that the killing was done in self-defense. Petitioner’s theory at trial was that she was a victim of battered woman’s syndrome. See, e. g., L. Walker, The Battered Woman (1979). Descriptions of this syndrome emphasize the husband’s repeated and violent beatings and the wife’s dependency — economic and emotional — that make it practically impossible for her to leave. When faced with an immediate threat, victims may be driven to take the lives of their mates as the only possible method of escaping the threat. Although traditional self-defense theory may seem to fit the situation only imperfectly, see Eber, The Battered Wife’s Dilemma: To Kill or to be Killed, 32 Hastings L. J. 895, 917-931 (1981); Note, Partially Determined Imperfect Self-Defense: The Battered Wife Kills and Tells Why, 34 Stan. L. Rev. 615 (1982), the battered woman’s syndrome as a self-defense theory has gained increasing support over recent years.

The jury at petitioner’s trial was instructed: “[T]he burden of proving the defense of self-defense is upon the defendant. She must establish such defense by a preponderance of the evidence.” Petitioner made a timely objection to the instructions on the ground that they unconstitutionally placed the burden of proof on her, rather than on the State. The trial court overruled the objection and the jury returned a verdict of guilty of aggravated murder. The Court of Appeals of the County of Cuyahoga affirmed the conviction and the Ohio Supreme Court dismissed the appeal “for the reason that no substantial constitutional question exists.” Petitioner seeks a writ of certiorari to vindicate her Fourteenth Amendment right to have the State bear the burden of proof in a criminal prosecution.

II

A

This Court held in In re Winship, 397 U. S. 358 (1970), that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., at 364. We noted that this standard “plays a vital role in the American scheme of criminal procedure” and that “[t]he standard provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’” Id., at 363 (quoting Coffin v. United States, 156 U. S. 432, 453 (1895)).

Several years later, we applied the teachings of Winship in Mullaney v. Wilbur, 421 U. S. 684 (1975). In Mullaney, the defendant had been convicted in a Maine state court of murder despite his defense of provocation. Under Maine law, as we explained in the opinion:

“[AJbsent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder — i. e., by life-imprisonment — unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter — i. e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years.” Id., at 691-692.

The Mullaney trial judge instructed the jury that “if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.” Id., at 686. We held that this instruction was constitutionally infirm under the Due Process Clause and our holding in Winship: once evidence tending to show provocation was introduced, the State — not the defendant — had to bear the burden of proving beyond a reasonable doubt the absence of provocation.

Two years later, in Patterson v. New York, 432 U. S. 197 (1977), we applied these principles to the New York murder statutes. The defendant in Patterson had claimed that he had committed the murder under the influence of “extreme emotional disturbance” and was therefore entitled to a verdict of manslaughter. The jury found him guilty of murder. New York law provided that the State had to prove only “[t]he death, the intent to kill, and causation” in order to convict a defendant of murder. Id., at 205. If the State met its burden, the defendant could reduce the conviction to manslaughter by proving by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance for which there was a reasonable explanation. We held that — contrary to the situation in Mullaney — shifting the burden to the defendant on the issue of extreme emotional disturbance did not violate the Due Process Clause.

Nothing in Patterson questions the validity of the Winship holding that the burden of proof is on the State to prove beyond a reasonable doubt all of the elements that constitute the crime. Nor is there any doubt that the States have wide discretion in allocating the burden of proof between the prosecution and defense on issues that are not elements of the crime. Thus, in order to determine whether a State may allocate the burden of proof on an issue in a criminal prosecution to the defendant, it must first be determined what elements constitute the crime in question; this was the problem in Mullaney and Patterson. Yet the resolution of those cases left the solution to this problem in some doubt and the lower courts in considerable disarray. The difficulty can be seen by contrasting Mullaney’s insistence that “Winship is concerned with substance rather than . . . formalism,” 421 U. S., at 699, with the statement in Patterson that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” 432 U. S., at 210 (emphasis added). That the Due Process Clause permits the States considerable discretion in defining criminal offenses (and in allocating burdens of proof on matters outside the defined elements of its crimes) is clear. But the Patterson opinion did not purport to overrule Mullaney and itself recognized that “there are obviously constitutional limits beyond which the States may not go in this regard.” 432 U. S., at 210. This case presents the opportunity for us to define those limits.

B

Petitioner did not seek to defend herself on the ground of provocation (as in Mullaney) or extreme emotional disturbance (as in Patterson). Rather, she relied on self-defense as a justification for her action. She asserts that, given the central place of self-defense in Anglo-American jurisprudence and the crucial role it can play in justifying — not merely mitigating — what would otherwise have been a criminal act, the Winship doctrine applies with full force to Ohio’s allocation of the burden of proof on the issue: the State must prove beyond a reasonable doubt the absence of self-defense in any case in which it is an issue.

Under its most restrictive interpretation, Patterson established that the State’s definition of an offense within the “four comers” of its murder statute is dispositive on the question of how it may allocate the burden of proof. Even under this reading, it is not clear whether Ohio’s practice of placing the burden of proof on the defendant asserting self-defense is constitutional. The Ohio aggravated murder statute states that “[n]o person shall purposely, and with prior calculation and design, cause the death of another.” Ohio Rev. Code § 2903.01(A) (1982). Under Ohio law, an assertion of self-defense requires proof, inter alia, that the defendant “was in imminent danger of death or great bodily harm.” State v. Robbins, 58 Ohio St. 2d 74, 388 N. E. 2d 755 (1979) (emphasis added). To place the burden of proof on the defendant asserting self-defense therefore seems to require the defendant to prove he acted when in imminent danger of great bodily harm, and thus to negate the prosecution’s burden of proving that the defendant acted “purposely, and with prior calculation and design.”

On a slightly broader reading of Patterson, sources of Ohio law outside its murder statute may be relevant in determining what elements constitute the crime of aggravated murder in that State. In Engle v. Isaac, 456 U. S. 107 (1982), respondents sought to review the denial of their habeas petitions, in which they raised virtually the identical claim raised by petitioner here. Respondents had been convicted under Ohio’s murder statutes, despite their attempt to show self-defense. The Court disposed of the case on the ground that respondents’ failure to raise this claim at trial was a bar to their habeas petitions under Wainwright v. Sykes, 433 U. S. 72 (1977). Nonetheless, the Engle opinion noted that both judicial decisions and the Ohio' Criminal Code itself indicate that the State only punishes actions that are voluntary, unlawful, and accompanied by the appropriate mens rea. See Engle, supra, at 121. Self-defense negates these elements of criminal behavior. In the course of proving guilt, the State therefore should be required to disprove the defendant’s assertion of self-defense. We characterized this claim as “colorable” and “plausible” in Engle. 456 U. S., at 122.

These arguments concern the constitutionality of requiring the defendant to prove self-defense within the statutory scheme enacted by the Ohio Legislature and interpreted by the Ohio courts. However, lurking in the background is the still more vexing question concerning the scope of the independent constitutional limitations on how the Ohio Legislature and courts may define the elements of criminal offenses. Cf. Patterson, 432 U. S., at 210 (noting that “there are obviously constitutional limits beyond which the States may not go in this regard”). To assert (as the Ohio appellate court here did) that self-defense is not an element of the crime of aggravated murder is to assert that the State may punish a defendant with life imprisonment (the penalty faced by petitioner) for that offense even if the killing was done in the purest self-defense. Yet both the Due Process Clause and the Eighth Amendment may restrict the State’s ability to so punish a defendant whose “crime,” for example, consisted in an immediate response to a murderous attack upon him. See Patterson, supra, at 210; Solem v. Helm, 463 U. S. 277 (1983). If either of these constitutional provisions do so restrict the State, it is difficult to resist the conclusion that absence of self-defense is an element of every aggravated murder charge — an element required by thé Constitution even if not by the State’s enacted or decisional law. See Engle, supra, at 122, n. 22; Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L. J. 1327, 1366-1379 (1979). Of course, the scope of any such constitutional constraints may never require precise definition, for they find their source in the same notions of fundamental fairness that are at the heart of Anglo-American law and that independently influence the construction and application of Ohio’s criminal code. Nonetheless, these constraints must be kept in mind in evaluating the state appellate court’s decision that petitioner properly bore the burden of proof on self-defense in this case.

Ill

Petitioner’s claim places squarely before the Court the constitutionality of the Ohio allocation of burden of proof on self-defense. It is undisputed that petitioner introduced evidence tending to prove self-defense at trial. She then interposed a timely objection to the jury instruction allocating to her the burden of proof on the issue. In Engle v. Isaac, this Court noted the “colorable” and “plausible” nature of claims identical to those of petitioner; claims like hers are certainly sufficiently meritorious to have troubled the courts of appeals and the state courts. I would grant certiorari to address petitioner’s “colorable” and “plausible” constitutional claims.

       Under Ohio law, a murder defendant asserting self-defense must prove “(1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that he was in- imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger.” State v. Robbins, 58 Ohio St. 2d 74, 388 N. E. 2d 755 (1979).

       Since the attempt to use battered woman’s syndrome as a self-defense theory ordinarily raises only the issue whether the defendant has successfully made out the elements of self-defense in a given jurisdiction, the theory has not been addressed in a great many appellate opinions. But see, e. g., Ibn-Tamas v. United States, 407 A. 2d 626 (D. C. 1979) (discussing admissibility of expert testimony on battered woman syndrome); People v. Powell, 102 Misc. 2d 775, 424 N. Y. S. 2d 626 (1980) (same), aff’d, 83 App. Div. 2d 719, 442 N. Y. S. 2d 645 (1981); cf. State v. Wanrow, 88 Wash. 2d 221, 234-241, 559 P. 2d 548, 555-559 (1977).

       The instructions were given in accordance with Ohio Rev. Code Ann. § 2901.05(A) (1982) (“The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused”). As this statute indicates, the concept of “burden of proof” has two components — burden of production and risk of nonpersuasion. Petitioner’s claim here is that the State misalloeated the risk of nonpersuasion. There is no doubt that she introduced sufficient evidence to meet whatever burden of production she may have had under state law to come forward with evidence on the issue of self-defense. The issue in this case — and the only issue with which this opinion is concerned — is whether the State may constitutionally place on the defendant the risk of nonpersuasion with respect to self-defense. Cf. Mullaney v. Wilbur, 421 U. S. 684, 701, n. 28, 702, n. 30 (1975).

       The Sixth Circuit, for instance, has recently noted the “confusion” in this area in a case dealing with the same claim as that asserted by petitioner. See Cherry v. Marshall, 722 F. 2d 1296, 1298 (1983), cert. denied, 467 U. S. 1244 (1984); see also Engle v. Isaac, 456 U. S. 107, 122, n. 23, and 132-133, n. 40 (1982) (citing cases); Melchior v. Jago, 723 F. 2d 486, 492-493 (CA6 1983) (characterizing identical issue to that of petitioner as “open question”), cert. denied, 466 U. S. 952 (1984); Thomas v. Leeke, 725 F. 2d 246, 249-251 (CA4 1984) (similar problem under South Carolina law); Holloway v. McElroy, 632 F. 2d 605 (CA5 1980) (holding that Constitution requires State of Georgia in state murder prosecution to prove absence of self-defense), cert. denied, 451 U. S. 1028 (1981); State v. McCullum, 98 Wash. 2d 484, 656 P. 2d 1064 (1983) (same with respect to State of Washington); Commonwealth v. Hilbert, 476 Pa. 288, 382 A. 2d 724 (1978) (same with respect to State of Pennsylvania); Note, The Constitutionality of Affirmative Defenses After Patterson v. New York, 78 Colum. L. Rev. 655, 672 (1978) (self-defense is “major remaining area of uncertainty after Patterson”). Of course, the defense of provocation recognized by Maine law in Mullaney is but an ancestor of the broader defense of extreme emotional distress recognized by New York law in Patterson. See Patterson, 432 U. S., at 207. Given this close relationship between the two defenses, courts and commentators have had difficulty discerning the outlines of the Constitution’s commands in this area.

       See Note, Partially Determined Imperfect Self-Defense: The Battered Wife Kills and Tells Why, 34 Stan. L. Rev. 615, 630-634 (1982).

       One respondent in Engle had been convicted of voluntary manslaughter, another had been convicted of murder, and a third had been convicted of aggravated assault. All had based their defenses at trial on self-defense. In addition to Engle, this Court has brushed with a similar issue in Hankerson v. North Carolina, 432 U. S. 233 (1977), decided the same day as Patterson. The North Carolina Supreme Court had held that the state law placing the burden of proving self-defense upon the defendant was invalid under Mullaney; the North Carolina court nonetheless refused to reverse the conviction because it held that Mullaney did not apply retroactively. We reversed on the retroactivity issue, but we did not reach the issue whether “it is constitutionally permissible for a State to treat self-defense as an affirmative defense that the prosecution need not negative by proof beyond a reasonable doubt.” 432 U. S., at 240, n. 6.

       Given some of the problems of fitting petitioner’s battered woman theory within traditional self-defense doctrine, the jury may well have faced a close question as to whether the elements of self-defense were proved. It is precisely in these circumstances that allocation of the burden of proof can be most significant. Cf. Winship, 397 U. S., at 372 (Harlan, J., concurring) (discussing “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free”); Speiser v. Randall, 357 U. S. 513, 525-526 (1958) (“There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt”).


source: Caselaw Access Project

author: Justice Marshall,

license: Public Domain

text:
    No. 83-6807.
    Alvord v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

This petition asks us to consider whether an attorney renders effective assistance of counsel when he forgoes all investigation into his client’s only plausible line of defense and defers to his client’s wishes on defense strategy, without any regard for the client’s knowledge of, or ability to understand, the law, the facts, or the ramifications of the decision.

The question could scarcely be more starkly posed. The petitioner here had previously been adjudicated insane at a criminal trial, and his reasoning faculties were therefore highly suspect. Yet appointed counsel accepted his client’s initial refusal to rely on the insanity defense, made no independent investigation of his client’s mental or criminal history, learned no facts that would enable him to persuade his client to change his mind, and instead permitted his client to rely on an unsupported alibi that all acknowledged to have been, at best, weak. The lower court approved this course of conduct on the ground that the client was found competent to stand trial and therefore was entitled to have his wishes followed. Because I believe the lower court decision seriously misconstrues the constitutional role of a criminal defense lawyer, I would grant certiorari to review the decision.

I

The record demonstrates unequivocally that Gary Alvord has a long history of mental illness. He first entered a mental hospital at age 13. In 1967, he was charged in Michigan with rape and murder; he spent two years in a mental hospital and was then declared competent to stand trial. At a bench trial, he was found not guilty by reason of insanity and was committed to the custody of the Michigan Department of Mental Health. After escaping from the Ionia State Hospital in Michigan, he traveled to Florida, where he committed the three murders for which he received the death sentence in Florida.

Counsel, a part-time public defender, was appointed to represent Alvord after his indictment in 1973. Alvord refused to talk to the lawyer; instead, it was the prosecutor who told counsel that Alvord had been adjudicated not guilty by reason of insanity in Michigan. Counsel moved for a mental examination, and two psychiatrists were directed to conduct the examination. Ultimately, the trial judge ruled that Alvord was competent to stand trial.

Appointed counsel saw Alvord for about 15 minutes after Alvord was indicted. Counsel’s subsequent pretrial contact with his client was primarily at court hearings. According to the Court of Appeals, Alvord’s counsel conducted no independent investigation into Alvord’s history of mental illness. He did not contact doctors, other than one brought in by the State to interview Alvord, see n. 1, supra, at the Michigan hospital where Alvord had spent considerable time, and he only obtained a small portion of Alvord’s medical record. He made no effort to have that portion of the medical record examined and interpreted by a psychiatrist. He did not offer to the court any document or testimony indicating that Alvord had previously been adjudicated incompetent, even after the trial judge observed that no such evidence was presented. Nor did he raise at trial the presumption of insanity afforded Alvord under Florida law, because of his prior adjudication of insanity, the effect of which would have been to place the burden of proof on the prosecution to prove sanity beyond a reasonable doubt. Nor, apparently, did counsel even inform Alvord of this legal principle and its potential consequences. Finally, counsel apparently did not contact the attorney who represented Alvord during the Michigan prosecution, who would have told him that Alvord initially had been disinclined to assist in his best defense there as well, until he had'come to trust counsel. “In short, [counsel] undertook virtually no investigation of the one defense [counsel himself] considered viable in Alvord’s case, choosing instead to comply with Alvord’s request that he put petitioner on the stand and proceed with an alibi defense.” 564 F. Supp. 459, 471 (MD Fla. 1983). The lower court opinions and findings establish that counsel made absolutely no effort to pursue the possibility of an insanity defense, after his unstable client’s uneducated objection to the possibility, but instead unquestioningly accepted his client’s direction to pursue a frivolous alibi defense.

The federal habeas court rejected Alvord’s claim on the ground that counsel acted reasonably in deciding that it would be useless to pursue an insanity defense because Alvord would not cooperate. Id., at 473-474. This argument wholly misses the mark. The question is whether counsel had a duty to investigate his client’s case and make a minimal effort to persuade him to follow the only plausible defense. The question is not whether counsel has a duty to override his client’s wishes, or pursue fruitless investigations, thereafter. The Court of Appeals adopted the District Court’s reasoning and also observed that Alvord had been found competent to stand trial — in part because counsel had failed to present to the court evidence of the prior insanity adjudication— and that counsel “was ethically bound to follow his client’s wishes” as a result. 725 F. 2d 1282, 1289 (CA11 1984). This holding is the crux of the decision. With this ruling, the Eleventh Circuit has loudly and clearly signalled that counsel need not question a client’s decisions on crucial trial issues as long as the client is found competent to stand trial, even if counsel’s professional judgment suggests to him that an alternative decision would be in the client’s best interests.

II

It is crucial to recognize precisely what is at issue here. The lower courts in this case have interpreted our decisions to hold that counsel has absolutely no obligation to investigate, at all, the only plausible defense a defendant might have, and no obligation to provide advice on that issue, once the defendant indicates a desire not to pursue that defense, even when the client’s reasoning faculties are highly suspect. The decision establishes that absolute deference to the uninformed reaction of a defendant is acceptable, and that counsel’s decision not to pursue the issue and make an attempt to persuade his client is reasonable.

This result renders meaningless defense counsel’s vital function as an adviser. Counsel must ensure that the client has access to information relevant to the pretrial and trial decisions that the accused must make himself, such as whether to testify on his own behalf, to waive a jury trial, or to plead guilty. Each of these decisions involves the waiver of a constitutional right and must be made by the accused, but with the advice of counsel. Counsel’s role is to provide advice that will assure not only that the waiver is voluntary and intelligent, but also that the accused is reasonably well informed. See McMann v. Richardson, 397 U. S. 759, 769-770 (1970). Thus, if pursuit of an insanity defense is a decision to be made by the accused, it must be done on the advice of a well-informed attorney who has assured that his client has based his decision on relevant information.

Of course the need for assistance of counsel extends well beyond assistance in deciding whether to waive constitutional rights. The Sixth and Fourteenth Amendments embody “a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938). Thus, counsel is authorized to make certain choices for his client, after consultation with the client, during which counsel, who is fully informed of the facts, discusses the options with his client. As this Court has noted, “[w]ith the exception of [the three] specified fundamental decisions [involving waiver of constitutional rights], an attorney’s duty is to take professional responsibility for the conduct of the case, after consulting with his client.” Jones v. Barnes, 463 U. S. 745, 753, n. 6 (1983). When counsel is obliged to make the decision himself, blind deference to a client’s wishes, without any investigation, is unquestionably inappropriate and constitutionally ineffective.

Thus, regardless of whether the ultimate decision on an insanity defense is that of the attorney or his client, counsel must fully inform himself of the facts and law, make a reasonable investigation into the only plausible line of defense, and share his conclusions with his client. This is the essence of effective assistance of counsel. This conclusion, which I would have thought to have been well ingrained in our Sixth Amendment jurisprudence, is wholly at odds with the view that a lawyer reasonably may assume that his client — no matter what his training or mental capacity — has based his decision on sufficient information and knowledge as to render the lawyer’s further effort unnecessary. To my mind, such total deference is only proper, if at all, when counsel has good reason to assume that his client’s decisions are based on an intelligent and informed understanding of his situation.

Moreover, the analysis and result below are inconsistent not only with fundamental principles of the role of counsel, but also with a decision in another Circuit, thereby rendering this case particularly appropriate for certiorari. In contrast to the Eleventh Circuit, the Fourth Circuit has affirmed the grant of a habeas petition when counsel had totally failed to develop the only conceivable defense at the defendant’s state trial, and had neglected to advise the defendant properly as to his legal alternatives. See Brennan v. Blankenship, 472 F. Supp. 149 (WD Va. 1979), aff’d, 624 F. 2d 1093 (1980). In Brennan, counsel had permitted himself to be guided by the defendant’s aversion to insanity pleas. The court applied the “normal level of competence” test and found that under any professional standard, it was improper for counsel to rely blindly on the statement of a criminal client whose reasoning abilities are highly suspect, and that counsel at least had a duty to investigate and try to persuade his client. As the court wrote, “[gjiven the attorneys’ reasonable conclusion that there was no other factual defense or factors in mitigation, it is almost incredible that the attorneys did not press Brennan on the point.” 472 F. Supp., at 156. Neither the Court of Appeals, nor any papers filed here, come even close to distinguishing this case.

Ill

In this case, defense counsel avoided all responsibility to investigate his client’s only plausible defense, to inform his client of the legal ramifications of an insanity plea (of which it is far from certain counsel was even aware), to assure that the decision was not based on a lack of information, to talk -with psychiatrists to determine whether his client understood the ramifications of his decision, to talk with prior counsel to discover that Alvord had in the past hesitated to trust counsel until he was made to feel he was being properly represented, to consider whether the insanity defense was a strong one, or to find out that Florida law would have shifted the burden of proof on insanity because of Alvord’s prior insanity adjudication. Prior to trial, he met with his client — the client who was facing trial for three capital murders— for only 15 minutes outside of court. During this time, his client was in jail, under suicide watch, with no lights in his cell, no furniture except a mattress, no blanket, and no clothing. Also during this time, Alvord refused to talk with psychiatrists unless his lawyer was present, yet his lawyer never visited him in jail, nor attended the interview sessions. It is difficult to imagine how the trial would have differed had Alvord had no counsel at all. There can be little doubt that under almost any standard other than that recognized by the lower courts, counsel’s assistance here would be considered constitutionally ineffective.

IV

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); Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring). But even if I did not so believe, I would grant certiorari in this case. The lower court has countenanced a view of counsel’s constitutional duty that is blind to the ability of the individual defendant to understand his situation and usefully to assist in his defense. The result is to deny to the persons who are most in need of it the educated counsel of an attorney. To avoid that result, I would grant the petition. I dissent from the Court’s refusal to do so.

       Alvord declined to talk to the two psychiatrists unless his lawyer was present. His lawyer did not attend the meetings, and the psychiatrists were unable to give an opinion on his mental state. Thereafter, the State brought in one of the psychiatrists who had known Alvord in Michigan. Alvord spoke with him, and the psychiatrist concluded that Alvord was competent to stand trial. The two other psychiatrists then sought to interview Alvord again. One of them concluded that he was competent to stand trial. The other declined to draw a conclusion. The trial judge then determined that Alvord was competent to stand trial.

       See Livingston v. State, 383 So. 2d 947 (Fla. App. 1980) (Florida presumes insanity, once one has been adjudged insane, until it is shown that sanity has returned); Hixon v. State, 165 So. 2d 436, 439 (Fla. App. 1964) (reversing conviction for failure of prosecutor to overcome defendant’s presumption of insanity, which had been established in a prior Ohio adjudication).

       At the federal habeas hearing, one of Alvord’s Michigan psychiatrists testified:
      “Now, as his lawyer, at that time, Mr. Richey, was a very competent individual. Mr. Alvord would not cooperate and initially we were feeling very much we were going to again have to find him incompetent, but we had a sixty day period during this, worked with him, and I think it was after about a month we finally got sufficient work done to cooperate, but this took a lot of work on Mr. Richey’s part in terms of seeing him, letting him know what was going on, letting him feel that he really was being represented, and I worked with him during this period also. But, there was a built in core of feeling about lawyers and the same thing was seen here, so that the similarity was certainly a warning.” Pet. for Cert. 14 (emphasis added).

       The lower court ruling is therefore premised on a significant misunderstanding of the division of responsibility between counsel and client at trial, and of the obligation of counsel to inform himself and advise his client, as set out in the ethical standards of the American Bar Association. As this Court recognized last Term, those standards act as guides in determining the reasonableness of counsel's assistance. See Strickland v. Washington, 466 U. S. 668 (1984). The ABA’s Standards of Criminal Justice, Part V, entitled Control and Direction of Litigation, are especially relevant. That section provides:
      “Standard 4-5.1. Advising the defendant
      “(a) After informing himself or herself fully on the facts and the law, the lawyer should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.
      “Standard 4-5.2. Control and direction of the case
      “(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are:
      “(i) what plea to enter;
      “(ii) whether to waive jury trial; and
      “(iii) whether to testify in his or her own behalf.
      “(b) The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with the client.” ABA Standards for Criminal Justice 4-5.1, 4-5.2 (2d ed. 1980 and Supp. 1982).

       Ethical Consideration 7-7 of the American Bar Association Code of Professional Responsibility suggests that the decision on an insanity defense might ultimately be one for the client, but that it must be made after the lawyer has fully informed himself and his client on the issue. The section reads in pertinent part:
      “A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.”
      Ethical Consideration 7-8 provides that “[a] lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.” ABA/BNA Lawyers’ Manual on Professional Conduct 01:332-01:333 (1984). Under the lower court ruling, however, once a presumptively insane client has made a decision that is obviously prejudicial, the attorney has no obligation to try to persuade his client otherwise by informing him of relevant considerations.


text:
    No. 83-6851.
    Cox v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.

Justice Marshall would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 83-6919.
    No. 83-6946.
    No. 84-5045.
    No. 84-5170.
    No. 84-5175.
    No. 84-5180.
    No. 84-5205.
    No. 84-5298.
    No. 84-5334.
    No. 84-5349.
    No. 84-5351.
    Frey v. Pennsylvania. Stoyko v. Pennsylvania. Collins v. Francis, Warden. Owens v. Illinois. Owens v. Illinois. Pruett v. Arkansas. Caballero v. Illinois. Kelly v. Texas. Maynard v. North Carolina. Rickman v. Tennessee. White v. Kentucky.
   Sup. Ct. Pa.;

Sup. Ct. Pa.;

C. A. 11th Cir.;

Sup. Ct. Ill.;

Sup. Ct. Ill.;

Sup. Ct. Ark.;

Sup. Ct. Ill.;

Ct. Crim. App. Tex.;

Sup. Ct. N. C.;

Ct. Crim. App. Tenn.; and

Sup. Ct. Ky. Certiorari denied. Reported below: No. 83-6919, 504 Pa. 428, 475 A. 2d 700; No. 83-6946, 504 Pa. 455, 475 A. 2d 714; No. 84-5045, 728 F. 2d 1322; No. 84-5170, 102 Ill. 2d 145, 464 N. E. 2d 252; No. 84-5175, 102 Ill. 2d 88, 464 N. E. 2d 261; No. 84-5180, 282 Ark. 304, 669 S. W. 2d 186; No. 84-5205, 102 Ill. 2d 23, 464 N. E. 2d 223; No. 84-5298, 667 S. W. 2d 720; No. 84-5334, 311 N. C. 1, 316 S. E. 2d 197; No. 84-5351, 671 S. W. 2d 241.

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.


author: Justice White,

text:
    No. 83-6943.
    Wilkes v. United States.
   C. A. 3d Cir. Certiorari denied.

Justice Blackmun would grant certiorari and summarily affirm the judgment of the Court of Appeals.

Justice White,

dissenting.

Posing as a Social Security Administration employee, petitioner Warren Wilkes told a benefit recipient that Social Security over-payments had been made. Wilkes demanded a return of the overpayments, and in this manner repeatedly obtained money. As a result, Wilkes was charged with violating the second clause of 18 U. S. C. §912, which prohibits demanding or obtaining anything of value while impersonating an officer or employee of a United States agency or department.

At the end of the prosecution’s case, Wilkes moved to dismiss the indictment for failure to charge intent to defraud in any of the counts. The District Court denied the motion. The judge found that although the indictment did not specifically allege an intent to defraud, it did charge, in the exact terminology of the statute, that petitioner pretended to be an employee of the United States acting under the authority thereof, and that acting as such and in such pretended character he demanded and obtained money from the victim in violation of the law. The jury found Wilkes guilty on all counts. The Third Circuit affirmed, holding that since the intent to defraud language was deleted from the statute in a 1948 revision, such an intent need not be specifically pleaded and proved. 732 F. 2d 1154 (1984). This rule is consistent with the approach of six other Circuits. See United States v. Cord, 654 F. 2d 490 (CA7 1981); United States v. Robbins, 613 F. 2d 688 (CA8 1979); United States v. Rosser, 174 U. S. App. D. C. 79, 528 F. 2d 652 (1976); United States v. Rose, 500 F. 2d 12 (CA2 1974), vacated on other grounds, 422 U. S. 1031 (1975); United States v. Mitman, 459 F. 2d 451 (CA9), cert. denied, 409 U. S. 863 (1972); United States v. Guthrie, 387 F. 2d 569 (CA4 1967).

The rule in the Fifth Circuit, however, is otherwise. See United States v. Cohen, 631 F. 2d 1223 (1980); United States v. Randolph, 460 F. 2d 367 (1972); Honea v. United States, 344 F. 2d 798 (1965). The Fifth Circuit views congressional deletion of the intent to defraud language as merely an attempt to make statutory wording conform to authoritative judicial construction. As the Fifth Circuit sees it, the legislative history indicates that Congress labored under a misconception over what the prevailing judicial interpretation required. Id., at 802. Thus, intent to defraud is still an element of the offense and must be specifically alleged in the indictment.

The statute at issue defines a federal crime, and it should be applied uniformly throughout the United States. Yet, because of conflicting interpretations, defendants in some parts of this country may be punished for violations without proof or pleading of an element required in another judicial circuit. Criminal culpability for violation of federal statutes should turn on uniform law, not geography. I would grant certiorari to resolve the conflict among the Circuits.

      Title 18 U. S. C. § 912 provides:
      “Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and [clause one] acts as such, or [clause two] in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years.”


text:
    No. 84-6.
    Kennedy v. United States.
   C. A. 9th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan joins,

dissenting.

Because the decision of the Court of Appeals in this case conflicts with the decision of the Court of Appeals for the First Circuit in United States v. Canus, 595 F. 2d 73 (1979), I would grant certiorari.


text:
    No. 84-265.
    California v. Harris.
   Sup. Ct. Cal. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-290.
    Ortho Pharmaceutical Corp. v. Wooderson.
   Sup. Ct. Kan. Motion of Pharmaceutical Manufacturers Association for leave to file a brief as amicus curiae granted. Certiorari denied.

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


text:
    No. 84-331.
    Enright et al. v. Board of School Directors of the City of Milwaukee et al.
   Sup. Ct. Wis. Certiorari denied.

Justice White and Justice O’Connor would deny the petition for writ of certiorari for want of jurisdiction.


text:
    No. 84-365.
    Perez, Administratrix of the Estate of Manas y Pineiro v. Chase Manhattan Bank, N. A.
   Ct. App. N. Y. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 84-382.
    Fleming v. Moore.
   Sup. Ct. Va. Motion of respondent for award of attorney’s fees denied. Certiorari denied.

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


author: Justice Brennan, Justice Marshall,

text:
    No. 84-5247.
    Raulerson v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. 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 death sentence in this case.

Justice Marshall,

dissenting.

In Faretta v. California, 422 U. S. 806 (1975), this Court held that a defendant in a state criminal trial has a right under the Sixth and Fourteenth Amendments to proceed without counsel if he clearly and unequivocally asks to do so. In this case, the petitioner made a motion to represent himself in which he cited Faretta. According to Faretta, when such a motion is made, the court must assure that the petitioner understands the dangers of his decision, and that the decision is knowing and voluntary, and then rule on the motion. The state trial court, however, did not make such an inquiry and effectively denied the motion. Reviewing the District Court’s denial of a petition for habeas corpus, the Federal Court of Appeals held that the state trial court had not committed reversible error because events subsequent to petitioner’s assertion of the right demonstrated that petitioner’s initial request was ambiguous. 732 F. 2d 803 (CA11 1984). The analysis of the Court of Appeals reflects a fundamental misunderstanding of the nature of the right guaranteed by Faretta. I, therefore, dissent.

I

The facts of this case are not in dispute. Petitioner James David Raulerson was convicted of first-degree murder and sentenced to death. His death sentence was stayed by a Federal District Court, 508 F. Supp. 381 (MD Fla. 1980), and a second sentencing hearing was scheduled to be held in state court. Before the second sentencing hearing, petitioner expressed considerable dissatisfaction with his attorney, and the attorney asked the court’s permission to withdraw. The court denied the motion. Thereafter, on July 15, 1980, three weeks prior to the second sentencing hearing, Raulerson asked the trial court to permit him to act as co-counsel with his attorney. The court denied his motion. Next, on July 18, petitioner wrote a letter to the trial judge specifically requesting permission to appear pro se:

“Upon calling [court-appointed counsel] Mr. Busch today I am met with cold indifference. . . .
“With these things to your attention I -wish to make motions to:
“1. appear pro se (Faretta vs. California) 95 S. Ct. 2525. . . . I cannot persist being no part of my defense. . . .” Pet. for Cert. 9.

The state court provided a copy of the letter to counsel and did nothing more. At the start of the sentencing hearing, the trial judge told Raulerson that under Florida law he could appear as co-counsel and that if he “continues to wish to participate in the representation of himself,” id., at 6, he would allow him to participate as co-counsel. In other words, the trial judge instructed Raulerson precisely to the contrary of what the law is, indicating that he could not proceed on his own but could proceed as co-counsel. Later in the hearing, the trial judge reversed himself and held that Raulerson could not even participate as co-counsel. Also at the sentencing hearing, counsel asked for a continuance and informed the court that he was not prepared to proceed; at the end of the hearing, counsel stated that he was too exhausted and unprepared to give a closing argument. Raulerson, of course, had been denied the right to act as his own counsel. As a result, no argument against the death penalty was presented on Rauler-son’s behalf.

The court sentenced petitioner to death. About six months later, in February 1981, the court held a hearing to consider petitioner’s desire to discharge counsel for refusal to pursue the Faretta issue on appeal. At that time, the court began an inquiry such as that required by Faretta. In the course of the hearing, Raulerson walked out.

On the basis of the foregoing, when the Court of Appeals for the Eleventh Circuit reviewed the denial of Raulerson’s habeas petition, it concluded that Raulerson failed to make an unequivocal assertion of a right to relinquish counsel prior to February 1981. 732 F. 2d, at 808. The court noted that Raulerson did not “diligently” pursue his initial motion after it was filed, and that he did not renew his request. On this point, the court did not consider the effect of the trial judge’s ruling, in response to Raulerson’s Faretta motion, that at best Raulerson might have a right to proceed as co-counsel. Finally, the Court of Appeals observed in passing that even if the assertion of the right to self-representation was unequivocal it was waived when Raulerson proceeded with counsel. Again, the Court of Appeals did not acknowledge that the state trial judge had told petitioner that at most he could participate as co-counsel, and that even that ruling later was reversed. Nor did the appeals court suggest what other course petitioner might have followed at that time, after he was told that he could, at most, act as co-counsel.

A dissenting member of the panel concluded that “the failure of the trial court to respond affirmatively to [Raulerson’s] demand for the right to represent himself as required in Faretta was an absolute and final denial of that right which was not waived by his subsequent conduct.” Id., at 814 (Tuttle, J.). Judge Tuttle further pointed out that it was not reasonable to characterize the petitioner’s position as ambiguous when “[w]hatever vacillation appears in the record as it now stands was . . . the fault of the trial judge, whose vacillation could hardly be expected to have been treated by a non-lawyer defendant any differently than it was.” Ibid. Moreover, as the dissent reasoned, “[u]nless we can assume that Raulerson would have acted the same way if the trial court, in response to his first demand, had undertaken in a proper manner to acquaint him with the problems he faced, then it seems to me that the trial court’s failure to hold such a hearing could not be deemed as being ratified because six months after the sentencing hearing, he acted in the manner in which he did.” Ibid.

To my mind, there can be no dispute that Raulerson clearly and unequivocally asserted his right to proceed pro se before the sentencing hearing and was denied that right. The majority’s post hoc rationalization for the trial court’s failure to engage in a Faretta inquiry at that point makes a mockery of the right recognized by this Court.

II

The exercise of the right recognized in Faretta entails a concomitant waiver of the right to counsel expressly guaranteed by the Sixth Amendment. Accordingly, we indicated in Faretta that defendants should be permitted to exercise their right of self-representation only if they execute a valid waiver of their right to counsel, which is to say, only if they “‘knowingly and intelligently’ forgo [the] relinquished benefits” of counsel. 422 U. S., at 835 (citing Johnson v. Zerbst, 304 U. S. 458, 464-465 (1938)). Further, we held, judges are to assure that defendants are made aware of the “dangers and disadvantages of self-representation,” 422 U. S., at 835, before permitting them to relinquish counsel. In other words, since a defendant must act affirmatively to relinquish the right to counsel, it follows that the right of self-representation must affirmatively be asserted as well. We thus have emphasized that courts should not bend over backward to hold that a defendant, who merely hints that he might be better off representing himself, has waived his right to counsel. Cf. Brewer v. Williams, 430 U. S. 387 (1977) (mere failure to request counsel does not result in waiver of right to counsel).

These precautions, which are so necessary to protect the right to counsel, may not be permitted to eviscerate the right of self-representation. Just as we must be watchful not to find a waiver of the right to counsel where none was intended, so must we be cautious not to overlook an asserted right to proceed pro se in our well-meant effort to protect the right to counsel. Accordingly, in Faretta we indicated that a defendant’s clear and unequivocal assertion of a desire to represent himself must be followed by a hearing, in which he is “made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Faretta, 422 U. S., at 835. A Faretta hearing offers a court ample opportunity to assure that a defendant understands and accepts the consequences of his decision, and to create a record to support its finding of a knowing waiver. As a result, once a defendant affirmatively states his desire to proceed pro se, a court should cease other business and make the required inquiry. It is through this hearing that the right to counsel is protected. holds

The foregoing makes clear, then, that if a trial court judge holds a Faretta hearing when the accused clearly asserts his desire to proceed pro se, the result will not do harm to the right to counsel. At the same time, the failure to hold a Faretta inquiry at this time will do injury to the right recognized in Faretta. Delay in holding a hearing after the right is unequivocally asserted undermines that right by forcing the accused to proceed with counsel in whom he has no confidence and whom he may distrust. For that reason, a post hoc effort to construe as subsequently ambiguous a clear assertion of a desire to proceed on one’s own, such as that undertaken by the Court of Appeals in this case, contravenes the right. It encourages courts to leave a Faretta motion pending, in the hope that the request will eventually be construed as ambiguous. It therefore follows that sufficient protection of the Faretta right may only be achieved if the trial court is required to hold a hearing when the right is asserted. On review, a court need look only to the character of the assertion, and not beyond, to assure no error was committed.

Lower courts generally have assertion itself, and not subsequent developments, determines whether there has been a sufficiently clear request to proceed pro se. See, e. g., Brown v. Wainwright, 665 F. 2d 607, 611 (CA5 1982) (en banc). If a request is ambiguous, the trial judge need not respond, because there has been no clear indication of a desire to waive a right to counsel. If the request is clear, however, a Faretta hearing must follow, to assure that the defendant is not required to proceed with the unwanted assistance of counsel. Viewed on its own, Raulerson's original request to proceed pro se was as unambiguous as such a request can be. Under the analysis of these other courts, he therefore was denied the right of self-representation. Thus, the Court of Appeals' post hoc rationalization of the trial court's failure to engage in a Faretta inquiry is not only at odds with the holding and spirit of Faretta, but also with lower court opinions construing Faretta. I therefore dissent from the Court's decision not to review the judgment of the Court of Appeals.

III

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); Furman v. Georgia, 408 U. S. 238, 314 (1972) (MARSHALL, J., concurring). But even if I accepted the prevailing view that the death penalty may be constitutionally imposed under certain circumstances, I would grant this petition for the reasons set out above.

       This rule of course would not apply mechanically to repetitive motions, motions designed to obstruct, or motions that are made at inappropriate times. The issue does not arise here, since petitioner filed his motion well before the sentencing hearing began, and there is no suggestion that he acted for any inappropriate reason. that courts have found

       The State points out in its opposition to waiver of the right to proceed pro se on the basis of subsequent occurrences. In those cases, however, the reviewing courts found an assertion of the right followed by a waiver; they did not find that the right was never asserted.


author: JUSTICE MARSHALL,

text:
    No. 84-5350.
    Maxwell v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.

JUSTICE MARSHALL,

with whom JUSTICE BRENNAN joins,

dissenting.

I would grant certiorari to consider the constitutionality of the Pennsylvania death penalty statute, under which the jury must impose a death sentence upon a finding of one aggravating circumstance and no mitigating circumstances. Such a scheme precludes any individualized consideration that "death is the appropriate punishment in a specific case," Lockett v. Ohio, 438 U. S. 586, 601 (1978) (plurality opinion), quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.), virtually eliminates the possibility of a mercy verdict, and absolves the jury from the obligation of taking moral responsibility for its actions.

I

Maxwell was convicted of first-degree murder, a crime punishable by death in Pennsylvania. At the sentencing hearing, the State presented evidence of two aggravating circumstances. Maxwell did not present any evidence of mitigating circumstances, and the jury failed to find mitigating circumstances. 505 Pa. 152, 477 A. 2d 1309 (1984). Maxwell’s counsel, however, made a plea for mercy. “the verdict

Under the Pennsylvania must be a sentence of death if the jury unanimously finds at least one aggravating circumstance . . . and no mitigating circumstance . . . .” 42 Pa. Cons. Stat. § 9711(c)(1)(iv) (1980) (emphasis added). The trial judge’s instruction to the jury paraphrased the language of the statute.

In construing the statute, the has stated that where no mitigating circumstances are found, “one aggravating circumstance alone requires a verdict of death.” Commonwealth v. Beasley, 504 Pa. 485, 500, n. 3, 475 A. 2d 730, 738, n. 3 (1984) (emphasis added). Indeed, in considering Maxwell’s appeal, that court stated that because Maxwell “did not introduce any evidence of mitigating circumstances, it became unnecessary to ‘weigh’ opposing circumstances.” 505 Pa., at 168, 477 A. 2d, at 1317-1318.

II

I am troubled by Pennsylvania’s mechanical imposition of the death penalty. Under the Pennsylvania death penalty statute, once the jury fails to find mitigating circumstances, it is precluded from making any further inquiry. At that point, in returning its verdict — the most serious judgment that our society can render— the jury acts in a merely ministerial capacity. The legislature and the courts have barred independent decisionmaking. courts,

The Pennsylvania statute, as interpreted by the State’s courts, raises two substantial questions that are worthy of this Court’s attention. The first is whether placing such severe constraints on the jury is consistent with the requirement of individualized punishment in capital cases. See Lockett v. Ohio, supra, at 601. The problem posed by the “mandatory” aspect of death penalty schemes in which the jury must return a death sentence without considering the appropriateness of such a sentence was discussed by Justice Stevens in Smith v. North Carolina, 459 U. S. 1056 (1982) (respecting denial of certiorari). In Smith, the jury was required to make three findings:

"(1) that one ormore aggravating circumstances existed; (2) that the aggravating circumstances were sufficiently substantial to call for the death penalty; and (3) that the aggravating circumstances outweighed the mitigating circumstances.” Ibid.

Justice Stevens’ concern was that a North Carolina jury might answer the second and third questions in the affirmative and yet be in doubt about the proper penalty. Under the Pennsylvania statute at issue here, the jury not only makes no determination on the propriety of the death sentence but is also denied the opportunity to rule on the second question, since the legislature has already made that decision. Thus, the jury’s findings here are even further removed from the question whether death is the appropriate punishment.

More importantly, this issue is squarely presented in this case, whereas it was not in Smith. In Smith, the jury instructions could have been read “as merely requiring that the death penalty be imposed whenever the aggravating circumstances, discounted by whatever mitigating factors exist, are sufficiently serious to warrant the extreme penalty.” Id., at 1056-1057. Under this reading, of course, the instructions would have complied with the Lockett requirement of an individualized determination of the appropriateness of the death penalty. Justice Stevens thus concluded that the Court should not examine the constitutionality of the statute until this statute had been authoritatively construed by the North Carolina courts. Here, in contrast, the Pennsylvania Supreme Court has expressly foreclosed any reading that would make the statute consistent with Lockett.

These severe limitations on the role of the jury take on crucial significance in light of the fact that Maxwell’s sole strategy at his sentencing hearing was to present a plea for mercy. This Court has stated that it is constitutionally permissible for the jury “to dispense mercy on the basis of factors too intangible to write into a statute.” Gregg v. Georgia, 428 U. S. 153, 222 (1976) (White, J., concurring in judgment); see Zant v. Stephens, 462 U. S. 862, 875-876, n. 13 (1983). And Lockett v. Ohio suggests that the possibility of a mercy verdict — a verdict based on unarticulated and perhaps unarticulable reasons — cannot be constitutionally foreclosed, for otherwise there would be no assurance that the death penalty was not imposed “in spite of factors which may call for a less severe penalty.” 438 U. S., at 605. But here, the jury was expressly not given any opportunity to consider whether death was proper. Thus, in order to consider Maxwell’s mercy plea the jury would have had to categorize it as one of eight mitigating circumstances. It seems to me that even the broadest mitigating circumstance in the Pennsylvania statute — “the character and record of the defendant and the circumstances of his offense,” 42 Pa. Cons. Stat. § 9711(e)(8) (1980)—is too restrictive to allow proper consideration of intangible factors. of miti-

This problem is gating circumstances ended the jury’s inquiry. Had the jury balanced aggravating against mitigating circumstances, it would have had another opportunity to take intangibles into account. In addition, at that stage the jury would have been engaged in a more subjective assessment, an assessment perhaps somewhat conducive to the consideration of factors that a juror is persuaded by but cannot articulate. Maxwell’s jury never performed this inquiry. For this reason too, the problem here is more serious than that at stake in Smith.

Ill

My second, related concern is whether Maxwell’s streamlined sentencing hearing gave the jury the opportunity to reflect on the magnitude of the decision it was about to make, and to assume moral responsibility for that decision. As far back as in McGautha v. California, 402 U. S. 183, 207-208 (1971), this Court stressed the importance that “jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision.” Here, all that the jurors actually did was to consider whether aggravating and mitigating circumstances had been proved. The finding that there was at least one aggravating circumstance and no mitigating circumstances precluded any further inquiry. But findings on questions such as “[t]he age of the defendant at the time of the crime,” 42 Pa. Cons. Stat. § 9711(e)(4) (1980), are far removed from what really is at stake in a capital case. I have little faith that a jury told that it is restricted to deciding peripheral issues will ever be aware of, or focus on, the serious consequences of its decision.

The problem here, however, goes beyond a concern that the jury may not take its role seriously enough. Mercy — which I have already identified as a necessary component of capital deci-sionmaking-cannot be dispensed in a vacuum. It is unlikely that a jury whose inquiry is limited to peripheral factors, far removed from the ultimate question of life or death, will ever turn its attention to whether the exercise of mercy is warranted.

`V

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, supra, at 231 (MARSHALL, J., dissenting); Furman v. Georgia, 408 15. S. 238, 314 (1972) (MARSHALL, J., concurring). The issue in this case, however, is such that I would grant review of the sentence even ill accepted the prevailing view that the death penalty may be constitutionally imposed under certain circumstances. I believe that this Court should consider whether the death penalty may constitutionally be mandated merely upon a finding of the existence of at least one aggravating circumstance and the lack of mitigating circumstances. For that reason, I respectfully dissent.


text:
    No. 84-5362.
    Humphrey v. Southern Continental Bell Telephone Co. et al.
   C. A. 11th Cir. Certiorari denied.

JUSTICE O'CONNOR took no part in the consideration or decision of this petition.


text:
    No. 84-5377.
    Skeeter v. City of Suffolk, Virginia.
   C. A. 4th Cir. Certiorari denied.

JUSTICE POWELL took no part in the consideration or decision of this petition.


author: JUSTICE BRENNAN and JUSTICE MARSHALL,

text:
    No. 84-5648 (A-327).
    Barefoot v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to JUSTICE WHITE, and by him referred to the Court, denied. Certiorari denied.

JUSTICE BRENNAN and JUSTICE MARSHALL,

dissenting.

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


text:
    No. 83-6916.
    No. 83-7016.
    No. 84-5203.
    Johnson v. Procunier, Director, Texas Department of Corrections, et al., Landes v. Smith, Attorney General, et al., McLaine v. Agnew et al.,
   ante, p. 846;

ante, p. 850; and

ante, p. 867. Petitions for rehearing denied.


text:
    No. 83-623.
    James et al. v. Clark, Secretary of the Interior, et al.,
   467 U. S. 1209. Motion for leave to file petition for rehearing denied.


text:
    No. 83-6829 (A-308).
    Palmes v. Wainwright, Secretary, Florida Department of Corrections,
   ante, p. 873. Applications to suspend the effect of the order denying the petition for writ of certiorari and for stay of execution of sentence of death denied. Petition for rehearing 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 applications and the petition for rehearing, vacate the order denying certiorari, and would grant the petition for writ of certiorari and vacate the death sentence in this case.


text:
    November 5, 1984
    No. 84-374.
    Thillens, Inc. v. Wall et al.
   C. A. 7th Cir. Certiorari dismissed under this Court's Rule 53.

Appeals Dismissed


text:
    No. 84-243.
    Marengo County Commission et al. v. United States.
   Appeal from C. A. 11th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-412.
    Home Builders & Contractors Association of Palm Beach County, Inc., et al. v. Board of County Commissioners of Palm Beach County et al.
   Appeal from Dist. Ct. App. Fla., 4th Dist., dismissed for want of substantial federal question.


text:
    No. 83-1593.
    Heckler, Secretary of Health and Human Services, et al. v. Kuehner et al.
   C. A. 3d Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the Court of Appeals to be remanded to the United States District Court for the Eastern District of Pennsylvania with instructions to: (1) remand the cases of the named respondents to the Secretary for review pursuant to § 2(d)(2)(C) of the Social Security Disability Benefits Reform Act of 1984; (2) make any necessary clarifications in the definition and scope of the class; (3) remand the cases of the unnamed class members to the Secretary for proceedings pursuant to § 2(d)(3) of that Act; and (4) take other actions appropriate in light of that Act.


text:
    No. A-272.
    Hopfmann v. United States Federal Election Commission et al.
   D. C. D. C. Application for stay, addressed to JUSTICE O'CONNOR and referred to the Court, denied.


author: JUSTICE BRENNAN,

text:
    No. A-277.
    The Daily Pantagraph et al. v. Baner, Judge, Circuit Court of Woodford County, Illinois, et al.
   Application for stay of a juvenile court order, presented to JUSTICE STEVENS, and by him referred to the Court, denied.

JUSTICE BRENNAN,

with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join,

dissenting.

The applicants seek an immediate stay of an order restraining the publication of the identities and location of two juveniles charged in a juvenile delinquency proceeding. The trial court found that the names of these individuals, as well as their former location while in custody, previously had been lawfully released to the public. I would grant the stay with respect to that information. I would also grant the application with respect to any other information that the trial court, after a hearing, finds to have been made public. New York Times Co. v. United States, 403 U. S. 713, 725-727 (1971) (BRENNAN, J., concurring); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931).


text:
    No. A-279.
    Schuchman et ux. v. United States.
   D. C. S. D. Ill. Application for stay, addressed to JUSTICE BRENNAN and referred to the Court, denied.


text:
    No. D-443.
    In re Disbarment of Dizak.
    [For earlier order herein, see 468 U. S. 1223.]
   Disbarment entered.


text:
    No. D-457.
    In re Disbarment of Shapiro.
   Disbarment entered. [For earlier order herein, see ante, p. 914.]


text:
    No. D-461.
    In re Disbarment of Powers.
   It is ordered that Marvin J. Powers, of Dallas, Tex., 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. 83-727.
    Alexander, Governor of Tennessee, et al. v. Choate et al.
   C. A. 6th Cir. [Certiorari granted sub nom. Alexander v. Jennings, 465 U. 5. 1021.] Motion of respondents for leave to ifie a supplemental brief after argument granted.


text:
    No. 83-1748.
    Allis-Chalmers Corp. v. Lueck.
   Sup. Ct. Wis. [Certiorari granted, ante, p. 815.] Motion for appointment of counsel granted, and it is ordered that Gerald S. Boisits, Esquire, of Milwaukee, Wis., be appointed to serve as counsel for respondent in this case.


text:
    No. 83-1950.
    McAllister et al. v. Gulf Federal Savings & Loan Assn.,
   ante, p. 827. Motion of respondents for taxation of costs and attorney's fees denied.


text:
    No. 83-6881.
    Bradford v. Bradford,
   ante, p. 812. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis denied.


text:
    No. 84-129.
    Reavis & McGrath v. Antinore et al.
   C. A. 8th Cir. Motion of respondents Jones et al. to direct the Clerk to file an application for extension of time to file a cross-petition for writ of certiorari and that such cross-petition be considered irrespective of disposition of the opening petition for writ of certiorari denied.


text:
    No. 84-321.
    Alabama v. Sturdivant.
   Sup. Ct. Ala. Motion of respondent for leave to proceed irtforma pauperis granted.


text:
    No. 84-5092.
    Booker v. Mississippi,
   ante, p. 873. Respondent is requested to ifie a response to the petition for rehearing within 30 days.


text:
    No. 84-5407.
    Gemelli v. Pennsylvania.
   Super. Ct. Pa. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until November 26, 1984, 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, JUSTICE MARSHALL, and JUSTICE STEVENS,

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. 83-2126.
    Oklahoma v. Castleberry et al.
   Ct. Crim. App. Okla. Certiorari granted.


text:
    No. 84-205.
    Virginia ex rel. Department of Conservation and Economic Development et al. v. Clark, Secretary of the Interior, et al.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 83-1924.
    City of El Segundo et al. v. Thorne.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-1931.
    Gustafson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-1982.
    Sarmiento-Perez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-2014.
    Frezzo v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-2065.
    Jones v. Department of Human Resources of Georgia et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-2104.
    Homens v. Maryland.
   Ct. Sp. App. Md. Certiorari Denied.


text:
    No. 83-2120.
    Evans v. Lockheed-Georgia Co.
   C. A. 11th Cir. Certiorari Denied.


text:
    No. 83-2124.
    Rutter et al. v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari Denied.


text:
    No. 83-2163.
    Garter-Bare Co. et al. v. Munsingwear, Inc.
   C. A. 9th Cir. Certiorari Denied.


text:
    No. 83-6633.
    Green v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari Denied.


text:
    No. 83-6674.
    Gray v. King, Secretary, Louisiana Department of Corrections, et al.
   C. A. 5th Cir. Certiorari Denied.


text:
    No. 83-6685.
    Viccarone v. Buckley et al.
   C. A. 6th Cir. Certiorari Denied.


text:
    No. 83-6697.
    Essex v. Garraghty, Warden.
   C. A. 4th Cir. Certiorari Denied.


text:
    No. 83-6732.
    Gregg v. Michigan.
   Sup. Ct. Mich. Certiorari Denied.


text:
    No. 83-6746.
    Williams v. Arkansas.
   Sup. Ct. Ark. Certiorari Denied.


text:
    No. 83-6768.
    Craig v. South Carolina.
   Sup. Ct. S. C. Certiorari Denied.


text:
    No. 83-6788.
    Stolle v. Pennsylvania.
   Super. Ct. Pa. Certiorari Denied.


text:
    No. 83-6795.
    Bracewell v. Alabama.
   Sup. Ct. Ala. Certiorari Denied.


text:
    No. 83-6797.
    Johnson v. Maryland.
   C. A. 4th Cir. Certiorari Denied.


text:
    No. 83-6813.
    Rosado v. LeFevre, Superintendent, Clinton Correctional Facility.
   C. A. 2d Cir. Certiorari Denied.


text:
    No. 83-6906.
    Williams v. Coughlin, Commissioner, New York State Department of Correctional Services, et al.
   C. A. 2d Cir. Certiorari Denied.


text:
    No. 83-6954.
    Beck v. United States.
   C. A. 11th Cir. Certiorari Denied.


text:
    No. 83-6989.
    Yates v. United States.
   C. A. 11th Cir. Certiorari Denied.


text:
    No. 83-6996.
    Smith v. Union Mutual Life Insurance Co.
   C. A. 8th Cir. Certiorari Denied.


text:
    No. 84-70.
    Crowder et al. v. Orr.
   Sup. Ct. App. W. Va. Certiorari Denied.


text:
    No. 84-116.
    Vakas v. Rodriquez et al.
   C. A. 10th Cir. Certiorari Denied.


text:
    No. 84-160.
    Beaufort Gazette v. DeLoach.
   Sup. Ct. S. C. Certiorari Denied.


text:
    No. 84-254.
    Hutchinson v. United States.
   Ct. Mil. App. Certiorari Denied.


text:
    No. 84-279.
    James Marine Service, Inc. v. Ryan Walsh Stevedoring Co., Inc., et al.
   C. A. 5th Cir. Certiorari Denied.


text:
    No. 84-386.
    Holloway v. Alabama.
   Ct. Crim. App. Ala. Certiorari Denied.


text:
    No. 84-388.
    Marshall v. McMahan.
   Sup. Ct. Tenn. Certiorari Denied.


text:
    No. 84-391.
    Lyon et al. v. Alabama State Bar.
   Sup. Ct. Ala. Certiorari Denied.


text:
    No. 84-401.
    Rosebrough Monument Co. v. Memorial Park Cemetery Assn. et al.
   C. A. 8th Cir. Certiorari Denied.


text:
    No. 84-403.
    Altman v. Hurst, Chief of Police of City of Hickory Hills, Illinois, et al.
   C. A. 7th Cir. Certiorari Denied.


text:
    No. 84-411.
    University of Texas at El Paso v. Duke.
   C. A. 5th Cir. Certiorari Denied.


text:
    No. 84-414.
    Mead Johnson & Co. v. Louisville & Nashville Railroad Co. et al.
   C. A. 7th Cir. Certiorari Denied.


text:
    No. 84-415.
    Case v. BASF Wyandotte et al.
   C. A. Fed. Cir. Certiorari Denied.


text:
    No. 84-417.
    Moody, Debtor-in-Possession v. Amoco Oil Co.
   C. A. 7th Cir. Certiorari Denied.


text:
    No. 84-431.
    Mid-America Machinery Co. v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari Denied.


text:
    No. 84-442.
    Intelicense Corp., S.A. v. United States Olympic Committee et al.
   C. A. 2d Cir. Certiorari Denied.


text:
    No. 84-463.
    Spiegel, Inc. v. Aldon Accessories, Ltd.
   C. A. 2d Cir. Certiorari Denied.


text:
    No. 84-481.
    Quansah v. All American Copy Inc. et al.
   C. A. 9th Cir. Certiorari Denied.


text:
    No. 84-485.
    Ehm v. National Railroad Passenger Corporation.
   C. A. 5th Cir. Certiorari Denied.


text:
    No. 84-488.
    Bulkley v. United States.
   C. A. 10th Cir. Certiorari Denied.


text:
    No. 84-509.
    Tickel v. United States.
   C. A. 4th Cir. Certiorari Denied.


text:
    No. 84-513.
    Miller v. United States.
   C. A. 6th Cir. Certiorari Denied.


text:
    No. 84-514.
    Muelbl v. United States.
   C. A. 7th Cir. Certiorari Denied.


text:
    No. 84-555.
    Fritzie v. United States.
   C. A. 11th Cir. Certiorari Denied.


text:
    No. 84-5024.
    Wounded Eye v. United States.
   C. A. 9th Cir. Certiorari Denied.


text:
    No. 84-5041.
    Holman v. United States.
   C. A. 6th Cir. Certiorari Denied.


text:
    No. 84-5208.
    Dempsey v. United States.
   C. A. 6th Cir. Certiorari Denied.


text:
    No. 84-5264.
    Test v. United States.
   C. A. 10th Cir. Certiorari Denied.


text:
    No. 84-5320.
    Humphrey v. Bostitch Co. et al.
   C. A. 11th Cir. Certiorari Denied.


text:
    No. 84-5390.
    Porter v. United States.
   C. A. 4th Cir. Certiorari Denied.


text:
    No. 84-5406.
    Jackson v. Oregon.
   Ct. App. Ore. Certiorari Denied.


text:
    No. 84-5414.
    Shaw v. Reed et al.
   C. A. 4th Cir. Certiorari Denied.


text:
    No. 84-5419.
    Weisman v. United States.
   C. A. 7th Cir. Certiorari Denied.


text:
    No. 84-5422.
    Forrester v. United States Government.
   C. A. 2d Cir. Certiorari Denied.


text:
    No. 84-5433.
    Robinson v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari Denied.


text:
    No. 84-5436.
    Jermosen v. Smith, Superintendent, Attica Correctional Facility, et al.
   C. A. 2d Cir. Certiorari Denied.


text:
    No. 84-5442.
    Tyler v. Harper et al.
   Ct. App. Mo., Western Dist. Certiorari Denied.


text:
    No. 84-5448.
    Lance v. South Carolina Highway Department et al.
   C. A. 4th Cir. Certiorari Denied.


text:
    No. 84-5455.
    Staples v. Young et al.
   C. A. 7th Cir. Certiorari Denied.


text:
    No. 84-5470.
    Ledezma-Hernandez v. United States.
   C. A. 5th Cir. Certiorari Denied.


text:
    No. 84-5474.
    No. 84-5514.
    Forshee v. United States; and Rainey v. United States.
   C. A. 6th Cir. Certiorari Denied. Reported Below: 740 F. 2d 969.


text:
    No. 84-5477.
    Harriatt v. United States.
   C. A. 3d Cir. Certiorari Denied.


text:
    No. 84-5485.
    Frazier v. United States.
   C. A. 9th Cir. Certiorari Denied.


text:
    No. 83-6816.
    Ford v. Kentucky.
   Sup. Ct. Ky. Certiorari Denied.

JUSTICE MARSHALL,

dissenting.

Petitioner is a Negro male who was 51 at the time he was indicted for murder in Franklin County, Ky. He challenged the composition of the grand jury that indicted him on the grounds, inter alia, that women and young adults were substantially and systematically underrepresented on grand juries in Franklin County. Testimony from a statistician concluded that this under-representation was statistically significant. Evidence was also presented that the selection system was not facially neutral, for the voter registration list from which grand jurors are selected in the county contains information on the gender, race, and date of birth of the prospective grand jurors.

Despite petitioner's assertion and his substantiating evidence, the Kentucky Supreme Court refused to consider the merits of this challenge. 665 S. W. 2d 304 (1984). Instead, that court held that, because petitioner was a 51-year-old Negro male, he had no standing to challenge the exclusion of women or young adults from grand juries in Franklin County. The court rested its conclusion on the view that challenges to the composition of a grand jury must be rooted in the Equal Protection Clause of the Fourteenth Amendment rather than in that Amendment's due process component. Thus, the court below concluded that petitioner himself the imbalance of the grand jury that indicted him.

The conclusion of the Kentucky Supreme Court is flatly at odds with the opinion announcing this Court’s judgment in Peters v. Kiff, 407 U. S. 493 (1972). That opinion, joined by three Justices, stated: “[W]hen a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances [i. e., the standing] of the person making the claim. ... [A] State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States.” Id., at 498, 502 (emphasis added). This three-justice opinion therefore concluded that a white male had standing under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment to bring a racial-discrimination challenge to the state system used to select his grand and petit juries.

The standing question is particularly important in light of the fact that, as of 1977, at least 22 States had some sort of discretionary system for the selection of grand jurors. J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels, Appendix B, pp. 264-270 (1977). Because the opinion announcing the judgment in Peters was joined by only three Justices, Peters did not definitively resolve the standing question raised in this petition for certiorari. The Court also declined in Alexander v. Louisiana, 405 U. S. 625, 633-634 (1972), to decide whether males could challenge the statutory exemption of women from state grand jury service, although Justice Douglas would have reached the question and invalidated the statute on federal due process grounds. Id., at 634 (Douglas, J., concurring). At the same time, individual Members of the Court have expressed the view that, because the Fifth Amendment right to a grand jury does not apply to state prosecutions, Hurtado v. California, 110 U. S. 516 (1884), “a state defendant has no right to a grand jury that reflects a fair cross-section of the community.” Castaneda v. Partida, 430 U. S. 482, 509 (1977) J., dissenting).

These conflicting pronouncements failure to speak definitively to the issue have spawned the sort of confusion in the lower courts that calls for the exercise of this Court’s certiorari jurisdiction. In contrast to the views of the Kentucky Supreme Court, which are shared by the Supreme Court of Tennessee, see State v. Coe, 655 S. W. 2d 903 (1983), at least two Federal Courts of Appeals have stated that a male defendant does have a due process right not to have women systematically underrepresented on the state grand jury that indicts him. Gibson v. Zant, 705 F. 2d 1543 (CA11 1983); Folston v. Allsbrook, 691 F. 2d 184, 186, n. 3 (CA4 1982), cert. denied, 461 U. S. 939 (1983). In addition to this conflict, and perhaps more importantly, I believe that certiorari is warranted because the decision below, as well as the statements of my colleagues that would support it, misconceives the nature of due process guarantees in the state grand jury context. to provide

The fact a a grand jury for state criminal defendants simply does not entail the conclusion that a defendant has no right to an impartial and representative grand jury once the State does choose to make use of grand juries. On the contrary, the insertion of a grand jury into the process culminating in trial is of major consequence to the criminal defendant. In Kentucky, as in most jurisdictions, the grand jury both investigates alleged crimes and returns indictments when it believes sufficient evidence of a crime has been established. See Ky. Rev. Stat. §§ 29A.210, 29A.220 (1980); see also Turk v. Martin, 23 S. W. 2d 937 (Ky. 1930). In both roles, a grand jury that is biased by virtue of its unrepresentativeness has significánt power to influence the fairness of the ensuing trial; the scope and breadth of the preindictment investigation certainly affects the ability of the State to mount a convincing case at trial, and the fact that a body of the petit jury’s peers has seen fit to return an indictment may be a powerful sign to the petit jury that the charges are well founded.

Given the potential power of the grand jury over the criminal defendant, there can be no question that due process requires state grand juries to be unbiased and impartial. See, e. g., Goldberg v. Kelly, 397 U. S. 254, 271 (1970) (once State chooses to bestow administrative benefits, due process requires that administrative decisionmakers be unbiased); Moore v. Dempsey, 261 U. S. 86 (1923) (holding, many years before Constitution was held to require state jury trials, that state jury must be unbiased). The real question posed by this petition is whether the way to ensure that impartiality is to require that grand juries be fairly representative of the community in which they sit. For two

For two reasons already articulated in our cases, I believe the answer to that question should be yes. First, a grand jury is a collective decisionmaker designed both to find facts and to express the community’s moral sense on the important questions presented to it. With respect to such a body, the exclusion of any large and identifiable segment of the community removes from the jury room “qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” Peters v. Kiff, supra, at 503. The exclusion of such a group deprives the grand jury of a perspective on human events that may have unquantifiable but fully legitimate significance with respect to the issues presented. See Ballard v. United States, 329 U. S. 187, 193-194 (1946) (“The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded”).

Second, once a State chooses to employ grand juries, those grand juries become integral elements in the system of criminal justice in that State. Law is not a process by which a society actually arrives at objective truth, but rather a means for structuring the truth-seeking process so that the answers it yields will be accepted as morally legitimate by the community; it is this acceptance that enables the verdicts of the jury system to be treated as “true.” Imperative to the integrity of that system and to its perceived legitimacy is the perception that any biases from whatever source, including divergent cultural and historical experiences, be minimized. As we have said in an analogous context:

“Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. . . . The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.’” Rose v. Mitchell, 443 U. S. 545, 555-556 (1979) (quoting Ballard, supra, at 195) (emphasis added).

The allegation that, at this time in our history, women are being excluded from grand jury service in some counties of Kentucky— and that potential defendants are being investigated and indicted by such grand juries — surely calls into question the legitimacy of the system of justice in those counties. To sweep this allegation aside with the syllogism that, because there is no right to a state grand jury, there is no right to a fairly representative one, is to elide the practical and symbolic importance of state grand juries. that would

Finally, I note two of result from a decision that the Due Process Clause does not give petitioner standing to raise his grand-jury composition challenge. First, there is no dispute that a defendant has long had the right to challenge the composition of a state grand jury with respect to a cognizable group of which he himself is a member. See, e. g., Strauder v. West Virginia, 100 U. S. 303, 309 (1880). Although the Court has traditionally discussed this right in equal protection terms, it makes little sense to conceive of the right as solely an equal protection one, for the defendant in these cases is not asking to sit on the grand jury but rather to be fairly treated by it. Yet once this is recognized as the fundament of the right at stake, there is no logically defensible or analytically coherent way of arguing that the defendant is not also harmed when any “distinctive” group in the community is underrepresented on his grand jury, see Duren v. Missouri, 439 U. S. 357, 364 (1979). As Tayl or v. Louisiana, 419 U. S. 522, 531 (1975), makes clear, women are such a group. Second, in most States, as is true in Kentucky, see Ky. Rev. Stat. § 29A.060 (Supp. 1984), the same statutory procedures are used for selecting both grand jurors and the petit jury venire; it is irrational and a little unseemly to say that, with respect to the same defendant, the very same procedures (indeed, the very same jury wheels) are both constitutionally valid and invalid-valid when the grand jury is being picked but invalid when used to pick the petit jury venire.

The opinion of the court below, which complains that "federal decisions have enshrined the statistician on the throne of expertise," 665 S. W. 2d, at 306, makes clear that some lower courts refuse to take seriously the principle that state grand juries must be impartially constituted. Language from some of our opinions, and statements of individual Members of the Court, may encourage this response. Yet neither precedent nor logic suggests such a result. Accordingly, I believe the petition should be granted, and I respectfully dissent from the Court's failure to do so.

       The voter lists themselves were fairly representative of women, although there was no evidence of their representativeness with respect to young adults.

       The court did hold, as our precedents command, that petitioner had standing to challenge the exclusion of Negroes from the grand jury. However, the court rejected this claim on the merits by relying in part on the faulty premise that a study establishing a statistically significant violation of the fair-cross-section requirement did not create a prima facie ease of underrepresentation when the violation was shown to exist only over a 2-year period; apparently, the court below believed a far longer period of underrepresentation had to be proved to establish a prima facie case. Our cases have never imposed such a stringent requirement; indeed, in Duren v. Missouri, 439 U. S. 357, 366 (1979), we held that a demonstration of significant underrepresentation in every jury venire “for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic — that is, inherent in the particular jury-selection process utilized.” That same requirement would seem to apply here, for grand juries in Kentucky generally sit for 20-day periods. See Ky. Rev. Stat. § 29A.210 (3) (1980).

       Three other Justices reached the same result, but based their decision on the conclusion that standing was available in Peters to “implement the strong statutory policy” of 18 U. S. C. § 243, which prohibits States from disqualifying state grand jurors on account of race. 407 U. S., at 505 (White, J., joined by Brennan and Powell, JJ., concurring in judgment).

       To resolve the standing question presented by this petition, we therefore need not address the issue of whether young adults constitute a "cognizable group" under the Duren standard.

       This refusal is further illustrated in the Kentucky Supreme Court's cursory treatment on the merits of petitioner's claim that Negroes were systematically underrepresented on grand juries. See n. I, supra. Indeed, the Kentucky court's disregard for the methodological principles laid down in Dv~ren provides an independent reason in my mind for granting certiorari.


text:
    No. 83-6921.
    No. 83-6991.
    No. 84-5451.
    Herring v. Florida. Hernandez v. Procunier, Director, Texas Department of Corrections. Card v. Florida.
   Sup. Ct. Fla.;

C. A. 5th Cir.; and

Sup. Ct. Fla. Certiorari Denied. Reported Below: No. 83-6921, 446 So. 2d 1049; No. 84-5451, 453 So. 2d 17.

JUSTICE BRENNAN and JUSTICE MARSHALL,

dissenting.

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


text:
    No. 84-252.
    Shavers v. Walter E. Heller & Co.
   C. A. 5th Cir. Motion of respondent for damages denied. Certiorari denied.


text:
    No. 84-392.
    Thigpen, Commissioner, Mississippi Department of Corrections v. Reddix.
   C. A. 5th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 84-474.
    Connecticut v. Cohane.
   Sup. Ct. Conn. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 84-406.
    No. 84-418.
    National Football League et al. v. Oakland Raiders, Ltd., et al.; and Oakland-Alameda County Coliseum, Inc. v. Oakland Raiders, Ltd., et al.
   C. A. 9th Cir. Motion of National Basketball Association for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 726 F. 2d 1381.


text:
    No. 84-430.
    First Federal Savings & Loan Association of Bismarck v. Hulm et al.
   C. A. 8th Cir. Motions of respondents Theodore George Hulm and Tom A. Brigham for leave to proceed in forma pauperis granted. Certiorari denied.