author: Justice O’Connor Justice Marshall, Justice Blackmun,

text:
    SATTERWHITE v. TEXAS
    No. 86-6284.
    Argued December 8, 1987
    Decided May 31, 1988

      O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, and Scalia, JJ., joined. Marshall, J., filed an opinion concurring in part and concurring in the judgment, in which Brennan, J., joined, and in Part II of which Blackmun, J., joined, post, p. 260. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 267. Kennedy,-J., took no part in the consideration or decision of the case.

      Richard D. Woods, by appointment of the Court, 484 U. S. 810, argued the cause for petitioner. With him on the brief was Stephen Takas.

      Charles A. Palmer, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Jim Mattox, Attorney General, F. Scott McCown and Paula C. Offenhauser, Assistant Attorneys General, and Mary F. Keller, Executive Assistant Attorney.

        Julius L. Chambers, Joel Berger, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as ami-cus curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

In Estelle v. Smith, 451 U. S. 454 (1981), we recognized that defendants formally charged with capital crimes have a Sixth Amendment right to consult with counsel before submitting to psychiatric examinations designed to determine their future dangerousness. The question in this case is whether it was harmless error to introduce psychiatric testimony obtained in violation of that safeguard in a capital sentencing proceeding.

I

On March 15, 1979, petitioner John T. Satterwhite was charged with the capital crime of murdering Mary Francis Davis during a robbery. The next day, before Satterwhite was represented by counsel, the presiding District Judge granted the State’s request for a psychological examination to determine Satterwhite’s competency to stand trial, sanity at the time of the offense, and future dangerousness. 1 Record 2. Though the State’s motion and the court’s order were placed in the court file, Satterwhite was not served with copies of either. Psychologist Betty Lou Schroeder examined Satterwhite pursuant to the court’s order.

Satterwhite was indicted on April 4. The trial court appointed counsel to represent him and sent a copy of the appointment letter to the Bexar County District Attorney. App. 10. Satterwhite was arraigned on April 13. On April 17, the District Attorney filed a second motion requesting a psychiatric evaluation of Satterwhite’s competency to stand trial, sanity at the time of the crime, and future dangerousness. App. 12. The District Attorney did not serve defense counsel with a copy of this motion. The next day, without determining whether defense counsel had been notified of the State’s motion, the trial court granted the motion and ordered the Sheriff to produce Satterwhite for examination by psychologist Betty Lou Schroeder and psychiatrist John T. Holbrook. The record does not reveal when the court’s order was placed in the court file.

On May 18, a letter to the trial court from psychiatrist James P. Grigson, M. D., appeared in the court file. Dr. Grigson wrote that, pursuant to court order, he had examined Satterwhite on May 3, 1979, in the Bexar County Jail. He further reported that, in his opinion, Satterwhite has “a severe antisocial personality disorder and is extremely dangerous and will commit future acts of violence.” App. 15-16.

Satterwhite was tried by jury and convicted of capital murder. In accordance with Texas law, a separate proceeding was conducted before the same jury to determine whether he should be sentenced to death or to life imprisonment. See Tex. Code Crim. Proc. Ann., Art. 37.071(a) (Vernon Supp. 1988). The State produced Dr. Grigson as a witness in support of its case for the death penalty. Over defense counsel’s objection, Dr. Grigson testified that, in his opinion, Satter-white presented a continuing threat to society through acts of criminal violence.

At the conclusion of the evidence, the court instructed the jury to decide whether the State had proved, beyond a reasonable doubt, (1) that “the conduct of the defendant that caused the death [was] committed deliberately and with the reasonable expectation that the death of [the victim] would result,” and (2) that there is “a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” App. 33. Texas law provides that if a jury returns affirmative findings on both special verdict questions, “the court shall sentence the defendant to death.” Tex. Code Crim. Proc. Ann., Art. 37.071(e) (Vernon Supp. 1988). The jury answered both questions affirmatively, and the trial court sentenced Satterwhite to death.

Satterwhite appealed his death sentence, arguing that the admission of Dr. Grigson’s testimony violated the Sixth Amendment right to assistance of counsel recognized in Estelle v. Smith, supra. The Texas Court of Criminal Appeals agreed but concluded that the error was harmless because an average jury would have found the properly admitted evidence sufficient to sentence Satterwhite to death. 726 S. W. 2d 81, 92-93 (1986). The court acknowledged our holding that a Sixth Amendment violation tainting an entire criminal proceeding can never be considered harmless, Holloway v. Arkansas, 435 U. S. 475 (1978), but reasoned that a per se rule of reversal is inappropriate where, as here, the error relates only to the admission of particular evidence. 726 S. W. 2d, at 93, n. 5. We.granted certiorari to decide whether harmless error analysis applies to violations of the Sixth Amendment right set out in Estelle v. Smith. 482 U. S. 905 (1987).

II

The controversy in Estelle v. Smith, supra, also centered on the expert testimony of Dr. James P. Grigson. In that case, as in this, Dr. Grigson appeared as a witness for the State in a capital sentencing proceeding and testified that the defendant was a severe sociopath who would continue to commit violent crimes in the future. He based his testimony upon a psychiatric examination of the defendant that he had conducted pursuant to court order. The problem in the case was that defense counsel were not given advance notice that Dr. Grigson’s psychiatric examination, encompassing the issue of their client’s future dangerousness, would take place. We recognized that, for a defendant charged with a capital crime, the decision whether to submit to a psychiatric examination designed to determine his future dangerousness is “ ‘literally a life or death matter’ ” which the defendant should not be required to face without “‘the guiding hand of counsel.’” 451 U. S., at 471, quoting Smith v. Estelle, 602 F. 2d 694, 708 (CA5 1979), and Powell v. Alabama, 287 U. S. 45, 69 (1932). We held that defense counsel must be given advance notice of such an examination.

The Texas Court of Criminal Appeals determined that the Sixth Amendment notice requirement set out in Estelle v. Smith was not met in this case, and we agree. Since Satter-white’s indictment, arraignment, and appointment of counsel had all occurred before Dr. Grigson examined him in the Bexar County Jail, it is clear that his Sixth Amendment right to counsel had attached at the time. See Estelle, 451 U. S., at 469; Kirby v. Illinois, 406 U. S. 682, 688-689 (1972). The State does not contest the lower court’s finding that Satter-white did not waive his right to consult with his attorney before participating in the psychiatric examination. The State contends, however, that various ex parte motions and orders contained in the court file provided defense counsel with notice that an examination encompassing the issue of his client’s future dangerousness would take place.

We note preliminarily that the applicability and timing of some of these filings are disputed: the record does not contain a court order authorizing Dr. Grigson to examine Satterwhite, 726 S. W. 2d, at 92; and, as we have already noted, it is unclear whether the April 18 order appointing Drs. Schroeder and Holbrook was placed in the court file before Dr. Grig-son performed his examination. See n. 1, supra. Yet even if the ex parte orders and filings were timely and were applicable to Dr. Grigson’s examination, we agree with the Texas Court of Criminal Appeals that they did not adequately notify defense counsel that Dr. Grigson would examine the defendant to assess his future dangerousness. The Court of Criminal Appeals did not find that defense counsel had actual knowledge of the motion and order for the psychiatric examination. The State has cited no authority for its proposition that constructive notice to defense counsel achieved by mere placement of the State’s motions and the court’s ex parte orders in the court file satisfies the Sixth Amendment, and we hold that it does not. Accordingly, like the Texas Court of Criminal Appeals, we conclude that the use of Dr. Grigson’s testimony at the capital sentencing proceeding on the issue of future dangerousness violated the Sixth Amendment.

Our conclusion does not end the inquiry because not all constitutional violations amount to reversible error. We generally have held that if the prosecution can prove beyond a reasonable doubt that a constitutional error did not contribute to the verdict, the error is harmless and the verdict may stand. Chapman v. California, 386 U. S. 18, 24 (1967). The harmless error rule “‘promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.”’ Rose v. Clark, 478 U. S. 570, 577 (1986) (quoting Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986)).

Some constitutional violations, however, by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless. Sixth Amendment violations that pervade the entire proceeding fall within this category. See Holloway v. Arkansas, 435 U. S. 475 (1978) (conflict of interest in representation throughout entire proceeding); Chapman, supra, at 23, n. 8 (citing Gideon v. Wainwright, 372 U. S. 335 (1963) (total deprivation of counsel throughout entire proceeding)); White v. Maryland, 373 U. S. 59 (1963) (absence of counsel from arraignment proceeding that affected entire trial because defenses not asserted were irretrievably lost); Hamilton v. Alabama, 368 U. S. 52 (1961) (same). Since the scope of a violation such as a deprivation of the right to conflict-free representation cannot be discerned from the' record, any inquiry into its effect on the outcome of the case would be purely speculative. As explained in Holloway:

“In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. . . . Thus, any inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.” 435 U. S., at 490-491 (citations omitted).

Satterwhite urges us to adopt an automatic rule of reversal for violations of the Sixth Amendment right recognized in Estelle v. Smith. He relies heavily upon the statement in Holloway that “when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U. S. 335 (1963); Hamilton v. Alabama, 368 U. S. 52 (1961); White v. Maryland, 373 U. S. 59 (1963).” 435 U. S., at 489. His reliance is misplaced, however, for Holloway, Gideon, Hamilton, and White were all cases in which the deprivation of the right to counsel affected — and contaminated — the entire criminal proceeding. In this case, the effect of the Sixth Amendment violation is limited to the admission into evidence of Dr. Grigson’s testimony. We have permitted harmless error analysis in both capital and noncapital cases where the evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial. In Milton v. Wainwright, 407 U. S. 371 (1972), for example, the Court held the admission of a confession obtained in violation of Massiah v. United States, 377 U. S. 201 (1964), to be harmless beyond a reasonable doubt. And we have held that harmless error analysis applies to the admission of identification testimony obtained in violation of the right to counsel at a postindictment lineup. Moore v. Illinois, 434 U. S. 220 (1977); Gilbert v. California, 388 U. S. 263 (1967) (capital case); United States v. Wade, 388 U. S. 218 (1967). Just last year we indicated that harmless error analysis would apply in a noncapital case to constitutional error in the use of a psychological evaluation at trial. Buchanan v. Kentucky, 483 U. S. 402, 425, n. 21 (1987).

It is important to avoid error in capital sentencing proceedings. Moreover, the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sen-tencer. Nevertheless, we believe that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury. Accordingly, we hold that the Chapman harmless error rule applies to the admission of psychiatric testimony in violation of the Sixth Amendment right set out in Estelle v. Smith.

Ill

Applying the Chapman harmless error test, we cannot agree with the Court of Criminal Appeals that the erroneous admission of Dr. Grigson’s testimony was harmless beyond a reasonable doubt. A Texas court can sentence a defendant to death only if the prosecution convinces the jury, beyond a reasonable doubt, that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann., Art. 37.071(b)(2) (Vernon Supp. 1988). The Court of Criminal Appeals thought that the admission of Dr. Grigson’s expert testimony on this critical issue was harmless because “the properly admitted evidence was such that the minds of an average jury would have found the State’s case [on future dangerousness] sufficient. . . even if Dr. Grigson’s testimony had not been admitted.” 726 S. W. 2d, at 93. The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 U. S., at 24.

The evidence introduced at sentencing showed that, in addition to his conviction in this case, Satterwhite had four prior convictions of crimes ranging from aggravated assault to armed robbery. Eight police officers testified that Satter-white’s reputation for being a peaceful and law-abiding citizen was bad, and Satterwhite’s mother’s former husband testified that Satterwhite once shot him during an argument. The State also introduced the testimony of Bexar County psychologist Betty Lou Schroeder. Dr. Schroeder testified that she found Satterwhite to be a “cunning individual” and a “user of people,” with an inability to feel empathy or guilt. She testified that in her opinion, Satterwhite would be a continuing threat to society through acts of criminal violence. App. 55-56.

Dr. Grigson was the State’s final witness. His testimony stands out both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message. Dr. Grigson was the only licensed physician to take the stand. He informed the jury of his educational background and experience, which included teaching psychiatry at a Dallas medical school and practicing psychiatry for over 12 years. He stated unequivocably that, in his expert opinion, Satterwhite “will present a continuing threat to society by continuing acts of violence.” He explained that Satterwhite has “a lack of conscience” and is “as severe a sociopath as you can be.” To illustrate his point, he testified that on a scale of 1 to 10 — where “ones” are mild sociopaths and “tens” are individuals with complete disregard for human fife — Satterwhite is a “ten plus.” Dr. Grigson concluded his testimony on direct examination with perhaps his most devastating opinion of all: he told the jury that Satterwhite was beyond the reach of psychiatric rehabilitation. Id., at 72-73.

The District Attorney highlighted Dr. Grigson’s credentials and conclusions in his closing argument:

“Doctor James Grigson, Dallas psychiatrist and medical doctor. And he tells you that on a range from 1 to 10 he’s ten plus. Severe sociopath. Extremely dangerous. A continuing threat to our society. Can it be cured? Well, it’s not a disease. It’s not an illness. That’s his personality. That’s John T. Satterwhite.” 8 Record 2725-2726.

The finding of future dangerousness was critical to the death sentence. Dr. Grigson was the only psychiatrist to testify on this issue, and the prosecution placed significant weight on his powerful and unequivocal testimony. Having reviewed the evidence in this case, we find it impossible to say beyond a reasonable doubt that Dr. Grigson’s expert testimony on the issue of Satterwhite’s future dangerousness did not influence the sentencing jury. Accordingly, we reverse the judgment of the Texas Court of Criminal Appeals insofar as it affirms the death sentence, and we remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Kennedy took no part in the consideration or decision of this case.

Justice Marshall,

with whom Justice Brennan joins and with whom Justice Blackmun joins as to Part II, concurring in part and concurring in the judgment.

I

I agree with the Court that the psychiatric examination on which Dr. Grigson testified at the capital sentencing proceeding was in bald violation of Estelle v. Smith, 451 U. S. 454 (1981), and that petitioner’s death sentence should be vacated. I write separately because I believe the Court errs in applying harmless-error analysis to this Sixth Amendment violation. It is my view that the unique nature of a capital sentencing determination should cause this Court to be especially hesitant ever to sanction harmless-error review of constitutional errors that taint capital sentencing proceedings, and even if certain constitutional errors might properly be subject to such harmless-error analysis, a violation of Estelle v. Smith is not such an error.

Until today’s ruling, this Court never had applied harmless-error analysis to constitutional violations that taint the sentencing phase of a capital trial. In deciding to apply harmless-error analysis to the Sixth Amendment violation in this case, I believe the Court fails to adequately consider the unique nature of a capital sentencing proceeding and a sentencer’s decision whether a defendant should live or die. The Court’s analysis is also flawed in that it fails to accord any noticeable weight to the qualitative difference of death from all other punishments.

Unlike the determination of guilt or innocence, which turns largely on an evaluation of objective facts, the question whether death is the appropriate sentence requires a profoundly moral evaluation of the defendant’s character and crime. See California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring) (a death sentence should “reflect a reasoned moral response to the defendant’s background, character, and crime”); Enmund v. Florida, 458 U. S. 782, 801 (1982) (capital defendant’s “punishment must be tailored to his personal responsibility and moral guilt”). Moreover, although much of the Court’s capital jurisprudence since Furman v. Georgia, 408 U. S. 238 (1972), has been focused on guiding and channeling the decision whether death is the appropriate sentence in a specific case, the sentencer nonetheless is afforded substantial discretion. See, e. g., McCleskey v. Kemp, 481 U. S. 279, 304-306 (1987); Woodson v. North Carolina, 428 U. S. 280 (1976). Even in the face of overwhelming aggravating evidence, the sentencer has discretion to act with leniency and refuse to impose the death sentence. See McCleskey, supra, at 311 (“[Discretionary exercises of leniency [by the sentencer] are final and unre viewable”).

Because of the moral character of a capital sentencing determination and the substantial discretion placed in the hands of the sentencer, predicting the reaction of a sentencer to a proceeding untainted by constitutional error on the basis of a cold record is a dangerously speculative enterprise. As the Court recognized in Caldwell v. Mississippi, 472 U. S. 320, 330 (1986), “[wjhatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record.” In the same vein, an appellate court is ill equipped to evaluate the effect of a constitutional error on a sentencing determination. Such sentencing judgments, even when guided and channeled, are inherently subjective, and the weight a sentencer gives an instruction or a significant piece of evidence that is later determined to violate a defendant’s constitutional rights is nowhere apparent in the record. In McCleskey v. Kemp, supra, the Court acknowledged that “[i]ndividual jurors bring to their deliberations ‘qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable,’” and their collective judgment of the appropriate sentence is marked by an “inherent lack of predictability.” Id., at 311, quoting Peters v. Kiff, 407 U. S. 493, 503 (1972) (opinion of Marshall, J.). The threat of an erroneous harmless-error determination thus looms much larger in the capital sentencing context than elsewhere.

That threat is of particular concern because of the unique nature of the death sentence. The awesome severity of a sentence of death makes it qualitatively different from all other sanctions. See, e. g., Lockett v. Ohio, 438 U. S. 586, 605 (1978) (plurality opinion). For this reason, the Court has emphasized the greater need for reliability in capital cases, and has required that “capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding.” Strickland v. Washington, 466 U. S. 668, 704 (1984) (Brennan, J., concurring in part and dissenting in part); see California v. Ramos, 463 U. S. 992, 998-999 (1983) (“[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination”). Because of this heightened concern for reliability, “[t]ime and again the Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case.” Barefoot v. Estelle, 463 U. S. 880, 913 (1983) (Marshall, J., dissenting). Harmless-error analysis impinges directly on the reliability of the capital sentencing decision by allowing a court to substitute its judgment of what the sentencer would have done in the absence of constitutional error for an actual judgment of the sentencer untainted by constitutional error.

I therefore have serious doubts whether a constitutional error that infects the sentencing phase of a capital case ever may be considered harmless beyond a reasonable doubt. But even if I could agree that harmless-error analysis is appropriate for certain constitutional errors at the sentencing phase, such a situation is not presented when the error is a violation of the Sixth Amendment under Estelle v. Smith.

hH h — 1

As an initial matter, the Court in Estelle v. Smith gave no hint that harmless-error analysis ever could apply to the admission of psychiatric testimony in a capital sentencing proceeding which was based on an examination of the defendant conducted in violation of his Sixth Amendment right to counsel. After finding constitutional error, the Court simply vacated the death sentence. See 451 U. S., at 473. The failure of the Court to engage in harmless-error analysis in Smith is understandable, because the factors on which this Court traditionally has focused to determine whether harmless-error review is appropriate make clear that an Estelle v. Smith violation that taints a capital sentencing proceeding should lead to automatic reversal. First, the potential for actual prejudice resulting from such a violation of Smith is so high that a “case-by-case inquiry into prejudice is not worth the cost.” Strickland v. Washington, supra, at 692. As evidenced in this case, psychiatric testimony is generally of critical importance to the sentencing determination, covering issues of rehabilitative potential, future dangerousness, and individual culpability. Moreover, psychiatric testimony on these issues is clothed with a scientific authority that often carries great weight with lay juries. Cf. Ake v. Oklahoma, 470 U. S. 68, 79 (1985) (recognizing “pivotal role” psychiatry has come to play in criminal proceedings).

Second, it is difficult, if not impossible, to accurately measure the degree of prejudice arising from the failure to notify defense counsel of an impending psychiatric examination and the subsequent admission at the sentencing phase of evidence acquired from the examination. Cf. Hamilton v. Alabama, 368 U. S. 52, 55 (1961) (rejecting harmless-error analysis where “the degree of prejudice can never be known”); Holloway v. Arkansas, 435 U. S. 475, 490-491 (1978), (“[A]n inquiry into a claim of harmless error [in a case involving defense counsel’s conflict of interests] would require, unlike most cases, unguided speculation”). As I discussed above, the decision whether a defendant should live or die is a discretionary, moral judgment involving a balancing of often intangible factors. Divining the effect of psychiatric testimony on a sentencer’s determination whether death is an appropriate sentence is thus more in the province of soothsayers than appellate judges. In addition, contrary to the Court’s claim, see ante, at 257, the prejudice arising from an Estelle v. Smith violation is not limited to the illegal admission of psychiatric testimony. If defense counsel is properly notified under Smith of the State’s intention to perform a psychiatric examination, the course of subsequent proceedings may be altered significantly. For instance, defense counsel might extensively prepare his client for the examination, or perhaps advise his client to refuse to participate in the examination by the particular psychiatrist; defense counsel also might urge that a different psychiatrist perform the examination. Cf. Estelle v. Smith, 451 U. S., at 471 (defendant “was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s findings could be employed”). I therefore believe that any attempt to predict the effect of such an Estelle v. Smith violation would require the appellate court to engage in unguided speculation. The confluence of these factors — the likelihood of prejudice and the difficulty in evaluating the degree of that prejudice — together with the heightened concern for reliability in capital cases, convinces me that a psychiatric examination conducted in violation of Estelle v. Smith, and the later admission at a capital sentencing proceeding of psychiatric testimony based on this examination, may never be considered harmless error.

I would have thought that this Court’s decision in Holloway v. Arkansas, supra, already had settled the question whether an Estelle v. Smith violation in a capital case can ever be harmless error. In Holloway we stated: “ ‘The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’. . . Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic.” 435 U. S., at 488-489, quoting Glasser v. United States, 315 U. S. 60, 76 (1942). We stated in Estelle v. Smith, supra, that a pretrial examination by a state psychiatrist of a capital defendant is a “critical stage” in a capital case. Id., at 470. As the Court recognized in that case, “the decision to be made regarding the proposed psychiatric evaluation is ‘literally a life or death matter’ and is ‘difficult . . . even for an attorney’ because it requires ‘a knowledge of what other evidence is available, of the particular psychiatrist’s biases and predilections, [and] of possible alternative strategies at the sentencing hearing.’” Id., at 471, quoting Smith v. Estelle, 602 F. 2d 694, 708 (CA5 1979).

The Court attempts to distinguish Holloway by arguing that in that case the “deprivation of the right to counsel affected — and contaminated — the entire criminal proceeding.” Ante, at 257. But Holloway anticipated automatic reversal not only when the deprivation affected the entire proceeding, but also when the deprivation occurred during a “critical stage in, at least, the prosecution of a capital offense.” 435 U. S., at 489 (emphasis added). By focusing on whether the error occurred in a capital case, Holloway exhibited an appreciation of the heightened concern for reliability in this context— something I believe today’s decision fails to recognize.

In the end, the Court principally relies on its belief “that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury. ” Ante, at 258. I do not possess the same confidence in an appellate court’s ability to divine the prejudice arising from such a significant error in a capital sentencing proceeding. In my view, the speculation engendered by harmless-error review of a violation of Estelle v. Smith in the context of a capital sentencing proceeding presents an intolerable danger that the death sentence will be administered erroneously. Accordingly, I do not join in that aspect of the Court’s opinion sanctioning harmless-error analysis for violations of Estelle v. Smith.

Justice Blackmun,

concurring in part and concurring in the judgment.

I join Part II of Justice Marshall’s concurring opinion because I agree that harmless-error analysis is inappropriate where the error is a Sixth Amendment violation under Estelle v. Smith, 451 U. S. 454 (1981), which results in the erroneous admission of psychiatric testimony in a capital-sentencing proceeding. The situation is particularly acute where, under a system such as that of Texas, the jury must answer the very question that the psychiatrist purports to answer. I am fortified in this conclusion by my continuing concern — wholly apart from the testimony of the ubiquitous Doctor Grigson in Texas capital cases — about the reliability of psychiatric testimony as to a defendant’s future dangerousness (wrong two times out of three). See Barefoot v. Estelle, 463 U. S. 880, 916 (1983) (dissenting opinion).

       The Assistant Attorney General represented at oral argument that the trial court’s order was stamped with the Clerk’s stamp showing that it was filed on April 18. Tr. of Oral Arg. 22. The copy of the April 18 order contained in the record before us, however, contains no such stamp. 1 Record 23. Defense counsel informs us that although he examined the court file twice, he did not discover the April 18 order until mid-May. Tr. of Oral Arg. 7.

       The State points to the following documents in the record: (1) the State’s March 16 motion for a psychological examination, App. 3-4; (2) the court’s March 16 order granting that motion and appointing Dr. Betty Lou Sehroeder to examine Satterwhite, id., at 5; (3) the State’s April 17 motion for a psychiatric examination to be conducted by Drs. Holbrook and Sehroeder, id., at 12-13; and (4) the court’s April 18 order granting that motion, id., at 14.

       Satterwhite now contends that Dr. Schroeder’s testimony was also admitted in violation of Estelle v. Smith, 451 U. S. 454 (1981). The Texas Court of Criminal Appeals explicitly noted that this claim was not raised at trial or on appeal, and we decline to consider it.

       The likelihood of actual prejudice arising from the illegal admission of psychiatric testimony is even greater in the context of this case. The Texas capital sentencing statute provides that, in the absence of evidence of provocation by the victim, the court “shall sentence the defendant to death” if the jury finds that the murder was “committed deliberately and with the reasonable expectation that the death of the deceased . . . would result,” and that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1988). The psychiatrist’s evaluation of future dangerousness thus purports to answer one of two questions posed by the statute.

       It is also important to note that a violation of petitioner’s Sixth Amendment right to counsel under Estelle v. Smith is easy to identify and, “for that reason and because the prosecution is directly responsible, easy for the government to prevent.” Strickland v. Washington, 466 U. S. 668, 692 (1984). Because the error is in the control of the State and is easy to prevent, holding that such a violation will result in automatic reversal does not pose a significant burden on the State.

       Moreover, in the present case the Court is unable to cite a single capital case since our decision in Furman v. Georgia, 408 U. S. 238 (1972), in which we have ignored Holloway’s reasoning and have applied harmless-error analysis to a Sixth Amendment violation occurring during a critical stage of the proceedings. The Court cites dicta in Buchanan v. Kentucky, 483 U. S. 402, 425, n. 21 (1987), as an indication of the Court’s willingness to apply harmless-error analysis to the admission of psychological testimony in violation of Estelle v. Smith, 451 U. S. 454 (1981). But the petitioner in Buchanan was not prosecuted for a capital offense, and thus the Court’s indication in that case that harmless-error analysis might apply to the illegal admission of psychological testimony has little relevance in the present context.


source: Caselaw Access Project

author: Justice Scalia

license: Public Domain

text:
    NEW ENERGY COMPANY OF INDIANA v. LIMBACH, TAX COMMISSIONER OF OHIO, et al.
    No. 87-654.
    Argued March 29, 1988
    Decided May 31, 1988

      Scalia, J., delivered the opinion for a unanimous Court.

      Herman Schwartz argued the cause for appellant. With him on the briefs was David J. Young.

      Rickard C. Farrin, Assistant Attorney General of Ohio, argued the cause for appellees. With him on the brief for ap-pellees Limbach et al. was Anthony J. Celebrezze, Jr., Attorney General. David C. Crago and Karen B. Mozenter filed a brief for appellee South Point Ethanol.

      Briefs of amici curiae urging affirmance were filed for the State of Idaho et al. by Michael H. Gottesman, Peter 0. Shinevar, James T. Jones, Attorney General of Idaho, Tam B. Ormiston, Assistant Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, and Hubert H.

        Humphrey III, Attorney General of Minnesota; for the State of Illinois by Neil F. Hartigan, Attorney General, Shawn W. Denney, Solicitor General, and Rosalyn B. Kaplan and Michael Wynne, Assistant Attorneys General; and for the National Governors’ Association et al. by Benna Ruth Solomon and Stuart A. Smith.

   Justice Scalia

delivered the opinion of the Court.

Appellant New Energy Company of Indiana has challenged the constitutionality of Ohio Rev. Code Ann. §5735.145(B) (1986), a provision that awards a tax credit against the Ohio motor vehicle fuel sales tax for each gallon of ethanol sold (as a component of gasohol) by fuel dealers, but only if the ethanol is produced in Ohio or in a State that grants similar tax advantages to ethanol produced in Ohio. The question presented is whether § 5735.145(B) discriminates against interstate commerce in violation of the Commerce Clause, U. S. Const., Art. I, §8, cl. 3.

I

Ethanol, or ethyl alcohol, is usually made from com. In the last decade it has come into widespread use as an automotive fuel, mixed with gasoline in a ratio of 1 to 9 to produce what is called gasohol. The interest in ethanol emerged in reaction to the petroleum market dislocations of the early 1970’s. The product was originally promoted as a means of achieving energy independence while providing a market for surplus corn; more recently, emphasis has shifted to its environmental advantages as a replacement for lead in enhancing fuel octane. See United States Department of Agriculture, Ethanol: Economic and Policy Tradeoffs 1 (1988). Ethanol was, however (and continues to be), more expensive than gasoline, and the emergence of ethanol production on a commercial scale dates from enactment of the first federal subsidy, in the form of an exemption from federal motor fuel excise taxes, in 1978. See Energy Tax Act of 1978, Pub. L. 95-618, § 221, 92 Stat. 3185, codified, as amended, at 26 U. S. C. §§4041, 4081 (1982 ed. and Supp. IV). Since then, many States, particularly those in the grain-producing areas of the country, have enacted their own ethanol subsidies. See United States General Accounting Office, Importance and Impact of Federal Alcohol Fuel Tax Incentives 5 (1984). Ohio first passed such a measure in 1981, providing Ohio gasohol dealers a credit of so many cents per gallon of ethanol used in their product against the Ohio motor vehicle fuel sales tax payable on both ethanol and gasoline. This credit was originally available without regard to the source of the ethanol. See Act of June 10, 1981, § 1, 1981-1982 Ohio Leg. Acts 1693, 1731-1732. In 1984, however, Ohio enacted § 5735.145(B), which denies the credit to ethanol coming from States that do not grant a tax credit, exemption, or refund to ethanol from Ohio, or, if a State grants a smaller tax advantage than Ohio’s, granting only an equivalent credit to ethanol from that State.

Appellant is an Indiana limited partnership that manufactures ethanol in South Bend, Indiana, for sale in several States, including Ohio. Indiana repealed its tax exemption for ethanol, effective July 1, 1985, see Act of Mar. 5, 1984, §§ 4, 5, 8, 1984 Ind. Acts 189, 194-195, at which time it also passed legislation providing a direct subsidy to Indiana ethanol producers (the sole one of which was appellant). See Ind. Code §§4-4-10.1 to 4-4-10.8 (Supp. 1987). Thus, by reason of Ohio’s reciprocity provision, appellant’s ethanol sold in Ohio became ineligible for the Ohio tax credit. Appellant sought declaratory and injunctive relief in the Court of Common Pleas of Franklin County, Ohio, alleging that § 5735.145(B) violated the Commerce Clause by discriminating against out-of-state ethanol producers to the advantage of in-state industry. The court denied relief, and the Ohio Court of Appeals affirmed. A divided Ohio Supreme Court initially reversed, finding that §5735.145(B) discriminated without adequate justification against products of out-of-state origin, and shielded Ohio producers from out-of-state competition. The Ohio Supreme Court then granted appel-lees’ motion for rehearing and reversed itself, a majority of the court finding that the provision was not protectionist or unreasonably burdensome. 32 Ohio St. 3d 206, 513 N. E. 2d 258 (1987). We noted probable jurisdiction. 484 U. S. 984 (1987).

II

It has long been accepted that the Commerce Clause not only grants Congress the authority to regulate commerce among the States, but also directly limits the power of the States to discriminate against interstate commerce. See, e. g., Hughes v. Oklahoma, 441 U. S. 322, 326 (1979); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 534-535 (1949); Welton v. Missouri, 91 U. S. 275 (1876). This “negative” aspect of the Commerce Clause prohibits economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. See, e. g., Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 270-273 (1984); H. P. Hood & Sons, supra, at 532-533; Guy v. Baltimore, 100 U. S. 434, 443 (1880). Thus, state statutes that clearly discriminate against interstate commerce are routinely struck down, see, e. g., Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982); Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980); Dean Milk Co. v. Madison, 340 U. S. 349 (1951), unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism, see, e. g., Maine v. Taylor, 477 U. S. 131 (1986).

The Ohio provision at issue here explicitly deprives certain products of generally available beneficial tax treatment because they are made in certain other States, and thus on its face appears to violate the cardinal requirement of nondiscrimination. Appellees argue, however, that the availability of the tax credit to some out-of-state manufacturers (those in States that give tax advantages to Ohio-produced ethanol) shows that the Ohio provision, far from discriminating against interstate commerce, is likely to promote it, by encouraging other States to enact similar tax advantages that will spur the interstate sale of ethanol. We rejected a similar contention in an earlier “reciprocity” case, Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366 (1976). The regulation at issue there permitted milk from out of State to be sold in Mississippi only if the State of origin accepted Mississippi milk on a reciprocal basis. Mississippi put forward, among other arguments, the assertion that “the reciprocity requirement is in effect a free-trade provision, advancing the identical national interest that is served by the Commerce Clause.” Id., at 378. In response, we said that “Mississippi may not use the threat of economic isolation as a weapon to force sister States to enter into even a desirable reciprocity agreement.” Id., at 379. More recently, we characterized a Nebraska reciprocity requirement for the export of ground water from the State as “facially discriminatory legislation” which merited “ ‘strictest scrutiny.’ ” Sporhase v. Nebraska ex rel. Douglas, supra, at 958, quoting Hughes v. Oklahoma, supra, at 337.

It is true that in Cottrell and Sporhase the effect of a State’s refusal 'to accept the offered reciprocity was total elimination of all transport of the subject product into or out of the offering State; whereas in the present case the only effect of refusal is that the out-of-state product is placed at a substantial commercial disadvantage through discriminatory tax treatment. That makes no difference for purposes of Commerce Clause analysis. In the leading case of Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935), the New York law excluding out-of-state milk did not impose an absolute ban, but rather allowed importation and sale so long as the initial purchase from the dairy farmer was made at or above the New York State-mandated price. In other words, just as the appellant here, in order to sell its product in Ohio, only has to cut its profits by reducing its sales price below the market price sufficiently to compensate the Ohio purchaser-retailer for the forgone tax credit, so also the milk wholesaler-distributor in Baldwin, in order to sell its product in New York, only had to cut its profits by increasing its purchase price above the market price sufficiently to meet the New York-prescribed minimum. We viewed the New York law as “an economic barrier against competition” that was “equivalent to a rampart of customs duties.” Id., at 527. Similarly, in Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 349-351 (1977), we found invalid under the Commerce Clause a North Carolina statute that did not exclude apples from other States, but merely imposed additional costs upon Washington sellers and deprived them of the commercial advantage of their distinctive grading system. The present law likewise imposes an economic disadvantage upon out-of-state sellers; and the promise to remove that if reciprocity is accepted no more justifies disparity of treatment than it would justify categorical exclusion. We have indicated that reciprocity requirements are not per se unlawful. See Cottrell, supra, at 378. But the case we cited for that proposition, Kane v. New Jersey, 242 U. S. 160, 167-168 (1916), discussed a context in which, if a State offered the reciprocity did not accept it, the consequence was, to be sure, less favored treatment for its citizens, but nonetheless treatment that complied with the minimum requirements of the Commerce Clause. Here, quite to the contrary, the threat used to induce Indiana’s acceptance is, in effect, taxing a product made by its manufacturers at a rate higher than the same product made by Ohio manufacturers, without (as we shall see) justification for the disparity.

Appellees argue that §5735.145(B) should not be considered discrimination against interstate commerce because its practical scope is so limited. Apparently only one Ohio ethanol manufacturer exists (appellee South Point Ethanol) and only one out-of-state manufacturer (appellant) is clearly disadvantaged by the provision. Our cases, however, indicate that where discrimination is patent, as it is here, neither a widespread advantage to in-state interests nor a widespread disadvantage to out-of-state competitors need be shown. For example, in Bacchus Imports, Ltd. v. Dias, supra, we held unconstitutional under the Commerce Clause a special exemption from Hawaii’s liquor tax for certain locally produced alcoholic beverages (okolehao and fruit wine), even though other locally produced alcoholic beverages were subject to the tax. Id., at 265, 271. And in Lewis v. BT Investment Managers, Inc., supra, we held unconstitutional a Florida statute that excluded from certain business activities in Florida not all out-of-state entities, but only out-of-state bank holding companies, banks, or trust companies. In neither of these cases did we consider the size or number of the in-state businesses favored or the out-of-state businesses disfavored relevant to our determination. Varying the strength of the bar against economic protectionism according to the size and number of in-state and out-of-state firms affected would serve no purpose except the creation of new uncertainties in an already complex field.

Appellees contend that even if § 5735.145(B) is discriminatory, the discrimination is not covered by the Commerce Clause because of the so-called market-participant doctrine. That doctrine differentiates between a State’s acting in its distinctive governmental capacity, and a State’s acting in the more general capacity of a market participant; only the former is subject to the limitations of the negative Commerce Clause. See Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 806-810 (1976). Thus, for example, when a State chooses to manufacture and sell cement, its business methods, including those that favor its residents, are of no greater constitutional concern than those of a private business. See Reeves, Inc. v. Stake, 447 U. S. 429, 438-439 (1980).

The market-participant doctrine has no application here. The Ohio action ultimately at issue is neither its purchase nor its sale of ethanol, but its assessment and computation of taxes — a primeval governmental activity. To be sure, the tax credit scheme has the purpose and effect of subsidizing a particular industry, as do many dispositions of the tax laws. That does not transform it into a form of state participation in the free market. Our opinion in Alexandria Scrap, supra, a case on which appellees place great reliance, does not remotely establish such a proposition. There we examined, and upheld against Commerce Clause attack on the basis of the market-participant doctrine, a Maryland cash subsidy program that discriminated in favor of in-state auto-hulk processors. The purpose of the program was to achieve the removal of unsightly abandoned autos from the State, id., at 796-797, and the Court characterized it as proprietary rather than regulatory activity, based on the analogy of the State to a private purchaser of the auto hulks, id., at 808-810. We have subsequently observed that subsidy programs unlike that of Alexandria Scrap might not be characterized as proprietary. See Reeves, Inc., supra, at 440, n. 14. We think it clear that Ohio’s assessment and computation of its fuel sales tax, regardless of whether it produces a subsidy, cannot plausibly be analogized to the activity of a private purchaser.

It has not escaped our notice that the appellant here, which is eligible to receive a cash subsidy under Indiana’s program for in-state ethanol producers, is the potential beneficiary of a scheme no less discriminatory than the one that it attacks, and no less effective in conferring a commercial advantage over out-of-state competitors. To believe the Indiana scheme is valid, however, is not to believe that the Ohio scheme must be valid as well. The Commerce Clause does not prohibit all state action designed to give its residents an advantage in the marketplace, but only action of that description in connection with the State’s regulation of interstate commerce. Direct subsidization of domestic industry does not ordinarily run afoul of that prohibition; discriminatory taxation of out-of-state manufacturers does. Of course, even if the Indiana subsidy were invalid, retaliatory violation of the Commerce Clause by Ohio would not be acceptable. See Cottrell, 424 U. S., at 379-380.

III

Our cases leave open the possibility that a State may vali date a statute that discriminates' against interstate commerce by showing that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. See, e. g., Maine v. Taylor, 477 U. S., at 138, 151; Sporhase v. Nebraska ex rel. Douglas, 458 U. S., at 958; Hughes v. Oklahoma, 441 U. S., at 336-337; Dean Milk Co. v. Madison, 340 U. S., at 354. This is perhaps just another way of saying that what may appear to be a “discriminatory” provision in the constitutionally prohibited sense— that is, a protectionist enactment — may on closer analysis not be so. However it be put, the standards for such justification are high. Cf. Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978) (“[W]here simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected”); Hughes v. Oklahoma, supra, at 337 (“[Fjacial discrimination by itself may be a. fatal defect” and “[a]t a minimum . . . invokes the strictest scrutiny”).

Appellees advance two justifications for the clear discrimination in the present case: health and commerce. As to the first, they argue that the provision encourages use of ethanol (in replacement of lead as a gasoline octane-enhancer) to reduce harmful exhaust emissions, both in Ohio itself and in surrounding States whose polluted atmosphere may reach Ohio. Certainly the protection of health is a legitimate state goal, and we assume for purposes of this argument that use of ethanol generally furthers it. But §5735.145(B) obviously does not, except perhaps by accident. As far as ethanol use in Ohio itself is concerned, there is no reason to suppose that ethanol produced in a State that does not offer tax advantages to ethanol produced in Ohio is less healthy, and thus should have its importation into Ohio suppressed by denial of the otherwise standard tax credit. And as far as ethanol use outside Ohio is concerned, surely that is just as effectively fostered by other States’ subsidizing ethanol production or sale in some fashion other than giving a tax credit to Ohio-produced ethanol; but these helpful expedients do not qualify for the tax credit. It could not be clearer that health is not the purpose of the provision, but is merely an occasional and accidental effect of achieving what is its purpose, favorable tax treatment for O/wo-prodúced ethanol. Essentially the same reasoning also responds to appellees’ second (and related) justification for the discrimination, that the reciprocity requirement is designed to increase commerce in ethanol by encouraging other States to enact ethanol subsidies. What is encouraged is hot ethanol subsidies in general, but only favorable treatment for Ohio-produced ethanol. In sum, appellees’ health and commerce justifications amount to no more than implausible speculation, which does not suffice to validate this plain discrimination against products of out-of-state manufacture.

# * *

For the reasons stated, the judgment of the Ohio Supreme Court is

Reversed.

       Section 5736.145(B) provides:
      “The qualified fuel otherwise eligible for the qualified fuel credit shall not contain ethanol produced outside Ohio unless the tax commissioner determines that the fuel claimed to be eligible for credit contains ethanol produced in a state that also grants an exemption, .credit or refund from such state’s motor vehicle fuel excise tax or sales tax for similar fuel containing ethanol produced in Ohio; provided however, that such credit shall not exceed the amount of the credit allowable for qualified fuel containing ethanol produced in Ohio.”
      This provision was passed in 1984 and took effect on January 1, 1985. After this litigation began, Ohio again amended its ethanol credit statute to reduce the amount of the credit and scheduled it for elimination in 1993. See Ohio Rev. Code Ann. §5735.145 (Supp. 1987).

       Appellant also argued there, as it has here, that § 5735.145(B) was an excessive burden on commerce under the test set forth in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). To the extent that claim requires separate analysis we find it unnecessary to reach it, in light of our disposition of the discrimination claim. Appellant also alleged in the state courts violations of the Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth Amendment; those challenges are not at issue in this appeal.

       We do not interpret the trial court’s acceptance of appellees’ proposed finding of fact of April 10, 1985, as a judicial finding that protecting health was in fact a purpose of the Ohio General Assembly, rather than merely one of several conceivable purposes for the enactment. In any event, a subjective purpose that has so little rational relationship to the provision in question is not merely implausible but, even if true, inadequate to validate patent discrimination against interstate commerce.