source: Caselaw Access Project

license: Public Domain

text:
    February 25, 1988
    No. 87-1163.
    American Fermac, Inc., et al. v. United States.
   C. A. Fed. Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-883.
    Honda Motor Co., Ltd., et al. v. Camacho et ux.
   Sup. Ct. Colo. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-183.
    Duff & Phelps, Inc., et al. v. Jordan.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    February 29, 1988
    No. 87-828.
    Szabo Food Service, Inc., et al. v. Canteen Corp.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-747.
    Duffy et ux. v. City of Arcadia.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question.


text:
    No. 87-1179.
    Weil et al. v. Chu et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 87-1133.
    First Federal Savings & Loan Association of Claremore, Oklahoma, et al. v. Oklahoma Tax Commission.
   Appeal from Sup. Ct. Okla. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice O’Con-nor took no part in the consideration or decision of this case.


text:
    No. 87-1145.
    Potter v. Wackenhut Corp. et al.
   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. 87-1148.
    Norton v. Illinois.
   Appeal from App. Ct. Ill., 3d Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 87-6258.
    Howard v. Viacom International et al.
   Appeal from D. C. N. D. Ind. dismissed for want of jurisdiction.


text:
    No. 87-5269.
    Ohse v. Hughes et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Forrester v. White, 484 U. S. 219 (1988).


text:
    No. 103, Orig.
    South Dakota v. Nebraska et al.
   Pending motion for leave to file bill of complaint denied without prejudice to renewal of the motion. [For earlier order herein, see, e. g., 475 U. S. 1093.]


text:
    No. 86-1294.
    Webster, Director of Central Intelligence v. Doe.
   C. A. D. C. Cir. [Certiorari granted, 482 U. S. 913.] Motion of respondent for leave to file a supplemental brief after argument granted.

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


text:
    No. 87-573.
    United States v. Taylor.
   C. A. 9th Cir. [Certiorari granted, 484 U. S. 1025.] Motion for appointment of counsel granted, and it is ordered that Ian G. Loveseth, Esq., of San Francisco, Cal., be appointed to serve as counsel for respondent in this case.


text:
    No. 87-1068.
    Oklahoma Tax Commission v. Muscogee (Creek) Nation et al.
   C. A. 10th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 87-1080.
    Maryland National Bank v. Maryland State Department of Assessments and Taxation.
   Appeal from Ct. App. Md. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

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


text:
    No. 87-1279.
    Morrison, Independent Counsel v. Olson et al.
   C. A. D. C. Cir. [Probable jurisdiction noted, 484 U. S. 1058.] Motion of Whitney North Seymour, Jr., Independent Counsel, for leave to file a brief as amicus curiae granted.

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


text:
    No. 87-5277.
    Amadeo v. Kemp, Warden.
   C. A. 11th Cir. [Certiorari granted, 484 U. S. 912.] Motion of petitioner for an extension of time to file a reply brief denied.


text:
    No. 87-746.
    Michael H. et al. v. Gerald D.
   Appeal from Ct. App. Cal., 2d App. Dist. Probable jurisdiction noted.


text:
    No. 86-1879.
    National Treasury Employees Union et al. v. Von Raab, Commissioner, United States Customs Service.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 86-1904.
    Arizona v. Youngblood.
   Ct. App. Ariz. Certiorari granted.


text:
    No. 87-1097.
    Bowen, Secretary of Health and Human Services v. Georgetown University Hospital et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 87-1190.
    United States v. Broce et al.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 87-981.
    No. 87-1028.
    Beech Aircraft Corp. v. Rainey et al.; Beech Aerospace Services, Inc. v. Rainey et al.; and Pratt & Whitney Canada Inc. v. Rainey et al.
    No. 87-1146.
   C. A. 11th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument.


text:
    No. 87-751.
    Carlucci, Secretary of Defense, et al. v. Doe.
   C. A. D. C. Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 87-1277.
    Lockhart, Director, Arkansas Department of Correction v. Nelson.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 86-203.
    No. 86-208.
    Great Atlantic & Pacific Tea Co., Inc. v. Moldovan et al., as Trustees for the Tri-State UFCW and Employers Benefit Fund; and Moldovan et al., as Trustees for the Tri-State UFCW and Employers Benefit Fund v. Great Atlantic & Pacific Tea Co., Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-262.
    U. A. 198 Health & Welfare, Education & Pension Funds v. Rester Refrigeration Service, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1019.
    Sign, Pictorial & Display Industry Pension Trust Fund et al. v. Formetrics, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-1854.
    New Bedford Fishermen’s Welfare Fund et al. v. Baltic Enterprises, Inc., et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 87-421.
    Bravo v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 87-644.
    Schmidt et al. v. Serpas et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-655.
    Goldberg v. United States Department of State.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 87-814.
    Terminal Realty Penn Co. v. Auerbach et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 87-875.
    Reddington v. Bowen, Secretary of Health and Human Services.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-903.
    Crocker et al. v. Federal Deposit Insurance Corporation et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-949.
    Congregation Sons of Israel v. Shaftan.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 87-953.
    Konizeski et al. v. Livermore Labs et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-1105.
    Arkansas v. Mayfield.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 87-1106.
    Pyle et ux. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1115.
    Ebaugh v. Cessna Aircraft Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1125.
    Holmes v. West Virginia.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 87-1127.
    Konarski v. New York Medical College, Inc., et al.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 87-1129.
    Alaska Trams Corp., aka Alaska Trams, Inc. v. Alaska Electric Light & Power et al.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 87-1134.
    Consulate General of Nigeria et al. v. Joseph.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-1137.
    Kirk v. Michael Reese Hospital & Medical Center et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 87-1141.
    Koch Refining Co. et al. v. Farmers Union Central Exchange, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-1144.
    In re Vannier.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 87-1147.
    Village of New Lenox, Illinois v. Union National Bank & Trust Company of Joliet, as Trustee, et al.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 87-1149.
    Reagin v. Terry et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1158.
    Forastiere, Chairman of the Board of Fire Commissioners of Springfield, Massachusetts v. Breault.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 87-1171.
    Cody et al. v. Hillard et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1175.
    Parker-Hannifin Corp. v. Kiser et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-1188.
    Castaneda v. Immigration and Naturalization Service.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1204.
    Jones et ux. v. Borough of Morrisville, Pennsylvania, et al; and Jones et ux. v. Princeton University et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-1211.
    Guider v. Smith et al.
   Ct. App. Mich. Certiorari denied.


text:
    No. 87-1233.
    MacDonald v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1242.
    Goad v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 87-1247.
    McDonough v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 87-1255.
    Kaplan v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 87-5564.
    Mercado v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-5581.
    White v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 87-5647.
    Thompson v. Pfeiffer et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-5674.
    Brown v. California.
   Ct. App. Cal., 6th App. Dist. Certiorari denied.


text:
    No. 87-5755.
    Leggins v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-5788.
    Miller v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 87-5849.
    Jones v. Jones, Warden, et al.
   C. A. 11th Cir. ' Certiorari denied.


text:
    No. 87-5869.
    Salisbury v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-5929.
    Norman v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-5958.
    McKoy v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 87-6006.
    Perez v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-6117.
    Page v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 87-6168.
    Abokhai v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6176.
    Stout v. Grand Prairie Independent School District et al.
   Ct. App. Tex., 5th Dist. Certiorari denied.


text:
    No. 87-6193.
    Cook v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6195.
    Cazares v. Refugia Sandoval.
   Ct. App. Tex., 3d Dist. Certiorari denied.


text:
    No. 87-6197.
    Donegan v. McWherter, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-6204.
    Milton v. World Savings & Loan Assn.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-6208.
    Robinson v. City of Decatur, Alabama, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-6210.
    Hallingstad v. Harvey et al.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 87-6218.
    Mungin v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 87-6229.
    Sazenski v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6249.
    Ross v. Zimmerman, Superintendent, State Correctional Institution and Diagnostic and Classification Center at Graterford, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-6280.
    Esch v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 87-6288.
    Wilson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-6290.
    Brown v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-6303.
    Smith v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 87-6305.
    Ferris v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 87-6309.
    Hardin v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-6313.
    Griffin v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-1963.
    Arizona v. Chicago Title Insurance Co. et al.
   C. A. 3d Cir. Certiorari denied.

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


author: Justice Marshall,

text:
    No. 86-7002.
    Brecheen v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.

Justice Marshall,

with whom

Justice Brennan joins, dissenting.

This Court has insisted that an accused be tried by “a public tribunal free of prejudice, passion, excitement, and tyrannical power.” Chambers v. Florida, 309 U. S. 227, 236-237 (1940). We have recognized that failure to ensure the impartiality of a jury “violates even the minimal standards of due process.” Irvin v. Dowd, 366 U. S. 717, 722 (1961). The Oklahoma court’s denial of petitioner’s unopposed motion for change of venue raises serious doubts about whether those minimal standards were met in this case. These doubts demand that we undertake two separate inquiries. First, we must consider whether and to what extent our precedents regarding jury impartiality set constitutional limits on state change of venue standards. Second, we must address the proper application of those precedents to the unique setting of capital sentencings.

I

On March 23, 1983, Marie Stubbs, wife of Hilton Stubbs, a prominent storekeeper in Ardmore, Oklahoma, was shot and killed in her home. The murder and the subsequent arrest of petitioner Robert Brecheen were the subject of extensive local newspaper and television coverage. Ardmore, which has a population of approximately 25,000, is located in Carter County, which has a population of approximately 40,000. Petitioner’s attorney filed a motion, accompanied by affidavits, for change of venue from Carter County. Although the motion was unopposed, the trial judge refused to grant it after conducting voir dire. The jury that was finally empaneled contained one person who knew the victim, one who knew the victim’s daughter, and three who knew the victim’s husband. All but one of the jurors were customers at the Stubbs’ family store. Three jurors knew the prosecuting attorney and three knew officers who would testify for the prosecution. All of the jurors had heard of the case through pretrial publicity. The jury convicted petitioner of burglary and homicide and sentenced him to death.

On appeal, petitioner challenged, inter alia, the trial court’s refusal to grant him a change of venue. The Oklahoma Court of Criminal Appeals rejected petitioner’s claim, holding that “[i]t is only when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility that such a motion should be granted.” App. to Pet. for Cert. 2.

II

This Court has established that a refusal to grant a motion for change of venue may constitute a violation of due process. See Groppi v. Wisconsin, 400 U. S. 505 (1971); Rideau v. Louisiana, 373 U. S. 723 (1963); Irvin v. Dowd, supra. A defendant seeking to establish such a violation must demonstrate either that his trial resulted in “identifiable prejudice” or that it gave rise to a presumption of prejudice because it involved “such a probability that prejudice will result that it is deemed inherently lacking in due process.” Estes v. Texas, 381 U. S. 532, 542-543 (1965). In deciding whether such a presumption of prejudice is warranted, courts must examine “any indications in the totality of circumstances that petitioner’s trial was not fundamentally fair.” Murphy v. Florida, 421 U. S. 794, 799 (1975).

We have had little occasion to apply these basic principles to determine whether particular state standards for change of venue comport with the requirements of due process. Most of our precedents regarding due process and jury neutrality consist of careful examinations of the circumstances surrounding specific trials to determine whether they give rise to a presumption of prejudice. See, e. g., Sheppard v. Maxwell, 384 U. S. 333 (1966); Turner v. Louisiana, 379 U. S. 466 (1965). Although we did strike down one state venue statute which categorically denied change of venue for misdemeanors, see Groppi v. Wisconsin, supra, we have not considered any other wholesale restrictions on venue change.

In this vacuum of constitutional precedent, States have taken divergent paths. Most States have followed the well-trod course of granting motions for venue change when the totality of the circumstances establish “ ‘a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.’” Martinez v. Superior Court, 29 Cal. 3d 574, 577-578, 629 P. 2d 502, 503 (1981) (quoting Maine v. Superior Court, 68 Cal. 2d 375, 383, 438 P. 2d 372, 377 (1968)). The Martinez court defined “reasonable likelihood” as a lesser standard of proof than “more probable than not.” 29 Cal. 3d, at 578, 629 P. 2d, at 503. See also People v. Gendron, 41 Ill. 2d 351, 243 N. E. 2d 208 (1968) (adopting “reasonable likelihood” standard), cert. denied, 396 U. S. 889 (1969); State v. Cuevas, 288 N. W. 2d 525 (Iowa 1980) (same); State v. Beier, 263 N. W. 2d 622 (Minn. 1978) (same). Other States have decided to grant change of venue motions when the circumstances establish a substantial likelihood of prejudice. See, e. g., Commonwealth v. Cohen, 489 Pa. 167, 413 A. 2d 1066, cert. denied, 449 U. S. 840 (1980). The American Bar Association has explicitly endorsed this latter approach in its Standards Relating to Fair Trial and Free Press 8-3.3(c) (2d ed. 1980). Oklahoma, however, diverges sharply from its sister States in setting a much higher threshold for granting a change of venue motion, requiring “clear and convincing evidence” that a fair trial is a “virtual impossibility.”

In my view, Oklahoma’s strong presumption against venue change fails to accommodate properly the concerns expressed in our due process precedents. Those precedents implicitly acknowledge that the defendant’s interest in a fundamentally fair trial outweighs the State’s interest in holding that trial in a particular district. Oklahoma’s standard is out of step with this Court’s repeated recognition that “our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U. S. 133, 136 (1955) (emphasis added), quoted in Sheppard v. Maxwell, supra, at 352; Estes v. Texas, supra, at 543. We frequently have invoked the opinion of Chief Justice Taft 50 years ago, which held that “[e]very procedure which would offer a possible temptation to the average man ... to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio, 273 U. S. 510, 532 (1927) (emphasis added), cited in Irvin v. Dowd, supra, at 722; Estes v. Texas, supra, at 543. We should grant certiorari to establish clearly the minimal requirements of the Due Process Clause for state change of venue standards.

Ill

Our prior precedents have left a second gap of perhaps even more importance. We have failed to give any guidance as to the circumstances that might give rise to a presumption of prejudice in the sentencing phase of a bifurcated capital trial. Our cases have dealt exclusively with factors that might influence the jury in its factfinding function when it makes determinations of guilt or innocence. We held, for example, that the pretrial broadcast of a defendant in the act of confessing to the charged crime inherently prejudiced the jury’s ability to evaluate objectively his guilt. See Rideau v. Louisiana, supra. Similarly, we held that when key government witnesses doubled as official guardians of the jury during deliberations, the ability of the jury to assess witness credibility was presumptively prejudiced. See Turner v. Louisiana, supra. But the influences that might impair the truth-seeking function of the jury in guilt determinations are not identical to those that impinge on its responsibility to administer fairly the death penalty.

This case demonstrates that lack of congruence. The fact that many of the jurors knew the victim or members of the victim’s family might not presumptively establish the fundamental unfairness of the guilt proceedings. There may be little reason to doubt the testimony of such jurors at voir dire that they could put aside their knowledge of the consequences of the crime in order to establish the facts of its commission. But the jury wears an altogether different hat when it sits as sentencer. It must make a moral decision whether a defendant already found guilty deserves to die for his crime. As we have previously recognized, the function of the sentencing jury is to “express the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968). When a jury is composed, as this petitioner’s was, of people who are personally familiar with the consequences of a defendant’s crime, it cannot perform this function in an impartial manner. We held as much just last Term, when we declared that the Eighth Amendment forbids the introduction of a victim impact statement during the sentencing phase of a capital trial. We concluded that a description of the effects of the murder on the victim’s family and friends was too likely to inñame the jury and lead to a sentence based on caprice or emotion rather than reason. See Booth v. Maryland, 482 U. S. 496 (1987). Surely empaneling a jury with personal knowledge of these effects would have much the same result. The likelihood of such a result should give rise to a presumption of prejudice during the sentencing phase, just as extensive news coverage might establish that presumption in the guilt phase.

IV

This petition raises two important issues that call for this Court’s review. We must establish what the Due Process Clause requires of state legislatures and courts in formulating general standards for change of venue. Oklahoma’s strong presumption against granting such motions raises serious concerns about the fundamental fairness of its criminál proceedings. In addition, we must recognize and rule on the difference between the guilt and penalty phases of a capital trial for the purpose of presuming prejudice when jury impartiality is called into question. This distinction is required not because death is a qualitatively different penalty from any other (although it is), but because the jury’s function is profoundly altered when it sits as sentencer.


text:
    No. 87-699.
    Maryland et al. v. Anderson.
   Ct. App. Md. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 87-771.
    Clark-Cowlitz Joint Operating Agency v. Federal Energy Regulatory Commission et al.
   C. A. D. C. Cir. Certiorari denied.

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


text:
    No. 87-841.
    Mississippi v. Davis.
   Sup. Ct. Miss. Certiorari denied.

Justice White would grant certiorari.


author: Justice White,

text:
    No. 87-970.
    Hughes et ux. v. United Van Lines, Inc., et al.
   C. A. 7th Cir. Certiorari denied.

Justice White,

dissenting:

The Court of Appeals for the Seventh Circuit held in this case that the Carmack Amendment to the Interstate Commerce Act, 49 U. S. C. § 10103, bars a shipper from pursuing state and common-law remedies against a carrier for damages to goods shipped in interstate commerce. The court reasoned that the Act was designed to establish “uniform federal guidelines” that would “remove the uncertainty surrounding a carrier’s liability when damage occurs to a shipper’s interstate shipment.” 829 F. 2d 1407, 1415 (1987). The congressional intent to eliminate such uncertainty would be defeated, said the court, if shippers were allowed to' choose among federal, state, and common-law remedies. The court’s decision relied in large measure on Adams Express Co. v. Croninger, 226 U. S. 491 (1913), which construed an earlier version of the Carmack Amendment as pre-empting state regulation of carrier liability.

The court recognized that its view of the pre-emptive scope of the Carmack Amendment was shared by three other Circuits. See 829 F. 2d, at 1414 (citing Air Products & Chemicals, Inc. v. Illinois Central Gulf R. Co., 721 F. 2d 483, 484-485 (CA5 1983), cert. denied, 469 U. S. 832 (1984); Fulton v. Chicago, R. I. & P. R. Co., 481 F. 2d 326, 331-332 (CA8), cert. denied, 414 U. S. 1040 (1973); W. D. Lawson & Co. v. Penn Central Co., 456 F. 2d 419, 421 (CA6 1972)). The court noted that a divergent position had been taken by the Tenth Circuit, however, in Reed v. AAACON Auto Transport, Inc., 637 F. 2d 1302, 1304-1305 (1981); Litvak Meat Co. v. Baker, 446 F. 2d 329 (1971); and L. E. Whitlock Truck Service, Inc. v. Regal Drilling Co., 333 F. 2d 488 (1964). For example, the Litvak court held that the Carmack Amendment “did not oust all other remedial rights of shippers” against interstate carriers. 446 F. 2d, at 337.

Accordingly, because a conflict exists among the Circuits concerning the pre-emptive scope of the Carmack Amendment, I would grant certiorari.


text:
    No. 87-999.
    McQuillen v. Wisconsin Education Association Council et al.
   C. A. 7th Cir. Certiorari denied.

Justice White,

dissenting.

This case presents the question whether a plaintiff may prevail on a disparate treatment claim under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq., only by establishing that the employer’s discriminatory intent was the “but for” cause of the adverse employment action.

The Court of Appeals for the Seventh Circuit held in this case that a Title VII plaintiff must prove that “the discriminatory motivation was a determining factor in the challenged employment decision in that the employee would have received the job absent the discriminatory motivation.” 830 F. 2d 659, 664 (1987). The court found support for this “but for” standard of causation in the language of Title VII, which prohibits employers from discriminating against an employee or potential employee “because of such individual’s race, color, religion, sex or national origin.” § 2000e-2(a)(l) (emphasis added).

The Seventh Circuit expressly rejected the standard of causation adopted by the Eighth Circuit in Bibbs v. Block, 778 F. 2d 1318 (1985) (en banc). A plaintiff can establish Title VII liability under Bibbs merely by proving that “an unlawful motive played some part in the employment decision.” Id., at 1323. If the employer establishes that discriminatory intent was not the determinative factor in the employment decision, however, the plaintiff’s recovery is limited to declaratory relief, an injunction against future or continued discrimination, and partial attorney’s fees.

The Seventh Circuit’s view that Title VII liability is established only when an unlawful motive was the “but for” cause of the challenged employment action is shared by three other Circuits. See Haskins v. United States Dept. of Army, 808 F. 2d 1192, 1198 (CA6), cert. denied, 484 U. S. 815 (1987); Lewis v. University of Pittsburgh, 725 F. 2d 910, 915-916 (CA3 1983), cert. denied, 469 U. S. 892 (1984); Mack v. Cape Elizabeth School Bd., 553 F. 2d 720, 722 (CA1 1977). Two Circuits have indicated that the discriminatory motive must be a “significant” or “substantial” factor, but not necessarily the determinative factor, before liability may be imposed on an employer under Title VII. See Fadhl v. City and County of San Francisco, 741 F. 2d 1163, 1166 (CA9 1984); Whiting v. Jackson State University, 616 F. 2d 116, 121 (CA5 1980).

Accordingly, in view of the divergent positions taken by the Federal Courts of Appeals with regard to the standard of causation to be applied in determining Title VII liability, I would grant certiorari.


text:
    No. 87-1119.
    Paravecchio v. Memorial Hospital of Laramie County et al.
   Sup. Ct. Wyo. Motion of Dean Crocker et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 87-1132.
    Toledo Trust Co., as Trustee of Trust No. 4117, et al. v. Santa Barbara Foundation.
   Sup. Ct. Ohio. Motions of Ohio Bankers Association Trust Division and American Bankers Association for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 87-1143.
    Hollis v. Campbell County District Court.
   C. A. 6th Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for writ of certiorari and reverse the judgment.


author: Justice Brennan,

text:
    No. 87-5323.
    Steffen v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.

Justice Brennan,

with whom

Justice Marshall joins and Justice Blackmun joins as to Part II, dissenting.

I

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) (Brennan, J., dissenting), I would grant the petition for a writ of certiorari and vacate the death sentence in this case. But even if I did not hold this view, I would grant this petition in order to address the important unresolved issue whether an instruction that reduces a jury’s sense of responsibility over a death sentence is nonetheless per se constitutional if it is accurate and non-misleading, even when the instruction serves no legitimate state penological interest.

II

In this case, petitioner was sentenced to death in accordance with the jury’s recommendation. The trial court had instructed the jury:

“You must understand, however, the jury recommendation to the Court that the death penalty be'imposed is just that, a recommendation, and is not binding upon the Court. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court after the Court follows certain additional procedures required by the laws of this State. Therefore, even if you recommend the death penalty, the law requires the Court to decide whether or not the defendant, David Joseph Steffen, will actually be sentenced to death or to life imprisonment.” Pet. for Cert. 6.

The Ohio Supreme Court characterized this as an “instruction to the jury that their recommendation of death would not be binding on the court, and that the final responsibility for the imposition of the death penalty rests with the court.” 31 Ohio St. 3d 111, 113, 509 N. E. 2d 383, 387 (1987). The Ohio Supreme Court then rejected petitioner’s argument that “such an instruction impermissibly reduces the jury’s sense of responsibility and increases the likelihood of a recommendation of death,” ibid., relying upon State v. Buell, 22 Ohio St. 3d 124, 489 N. E. 2d 795 (1986), a prior Ohio Supreme Court case that had rejected the same challenge to a substantially similar instruction. Although Buell went out of its way to “emphatically emphasize [that] the better procedure would be to have no comment by the prosecutor or by the trial judge on the question of who bears the ultimate responsibility,” the court concluded that the instruction was neither an inaccurate nor a misleading statement of Ohio law and held that the instruction was thus constitutional. Id., at 144, 489 N. E. 2d, at 813.

I have no cause to second-guess the conclusion that this instruction accurately reflects the state of Ohio law, as authoritatively construed by the Ohio Supreme Court itself. I note, however, that although an Ohio jury’s recommendation of death is not binding on a trial court, a trial court cannot impose the death sentence when the jury recommends life imprisonment. Ohio Rev. Code Ann. § 2929.03(D)(2) (1987). Ohio’s statutory scheme thus contemplates that juries will bear a crucial responsibility in deciding whether Ohio will impose a death sentence: making their recommendation necessary, if not sufficient, to any sentence of death. The question this case presents is whether an instruction stressing the preliminary nature of a jury’s decision can so minimize the jury’s sense of responsibility for its decision and so increase the likelihood of a recommendation of death as to be unconstitutional despite the accuracy of the instruction. This question is particularly sharpened here, where the state court evidently concedes that the instruction serves no valid state interest and indeed “emphatically emphasize[s]” that the instruction should not be given.

In Caldwell v. Mississippi, 472 U. S. 320 (1985), this Gourt laid down a general prohibition against trial comments that minimize a jury’s sense of responsibility for a death sentence. We stated: “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its ‘truly awesome responsibility.’” Id., at 341. The Eighth Amendment was thus violated, we concluded, when the State attempted “to minimize the jury’s sense of responsibility for determining the appropriateness of death,” ibid., by suggesting that the sentencing jury was not ultimately responsible because appellate review would be available. Such a suggestion, we reasoned, biased a jury in favor of death sentences in four ways: (1) a jury comprised of laypersons might not understand the limited nature of appellate review; (2) a jury might reach a death verdict, even if it was unconvinced death was the appropriate punishment, in order to “send a message” of extreme disapproval; (3) some jurors might correctly assume that judicial review can reverse a death sentence but not a life sentence and thus might reach a death verdict in order to delegate, and thus avoid, responsibility for making a decision between death and life; and (4) jurors otherwise reluctant to vote for a death sentence might, particularly on a divided jury, view the availability of judicial review as a good argument for giving in to a death sentence verdict. Id., at 330-333.

Of these four sources of bias, only the first is arguably not present in this case because a jury’s recommendation of death is subject to plenary judicial review in Ohio. The other three sources of bias cited in Caldwell are, however, just as applicable here as •they were in Caldwell. This suggests that an accurate and non-misleading instruction may still raise sufficient fear of jury bias to make it unconstitutional under the Caldwell analysis. Indeed, a four-Justice plurality of the Court implied that an instruction that minimized a jury’s sense of responsibility for a death sentence had to be “both accurate and relevant to a legitimate state penological interest” to survive Eighth Amendment scrutiny. Id., at 335-336 (Marshall, J., joined by Brennan, Blackmun, and Stevens, JJ.) (emphasis added). The plurality went on to suggest that an accurate and nonmisleading instruction about appellate review might be invalid because it would serve no valid state penological interest:

“That appellate review is available to a capital defendant sentenced to death is no valid basis for a jury to return such a sentence if otherwise it might not. It is simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence. The argument here urged the jurors to view themselves as taking only a preliminary step toward the actual determination of the appropriateness of death — a determination which would eventually be made by others and for which the jury was not responsible. Creating this image in the minds of the capital sentencers is not a valid state goal . . . .” Id., at 336.

This analysis is equally applicable to an accurate instruction regarding the nonbinding nature of an Ohio jury’s recommendation of death. Justice O’Connor, however, did not join the part of Caldwell articulating this analysis and wrote separately to state her view that an accurate and nonmisleading instruction would present no constitutional difficulties. Id., at 341-343 (concurring in part and concurring in judgment). Accordingly, because Justice Powell did not take part in Caldwell, see id., at 341, a majority of this Court has never expressed a view as to the constitutional status of accurate and nonmisleading instructions that minimize jury responsibility by emphasizing the preliminary nature of their decision.

I would therefore vote to grant the petition and set the case for oral argument on the issue left unresolved by Caldwell.


text:
    No. 87-5449.
    Andrews v. Shulsen, Warden, et al.
   C. A. 10th Cir. Certiorari denied.

Justice Marshall,

with whom

Justice Brennan joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting), I would grant the petition for certiorari and vacate petitioner’s death sentence. Even if I did not hold this view, I would grant the petition because petitioner William Andrews was convicted of murder and sentenced to death under circumstances raising grave concerns of impermissible racial bias. These circumstances include a mid-trial incident in which a juror handed the bailiff a napkin with a drawing of a man on a gallows above the inscription, “Hang the Niggers.” The District Court in this case refused even to undertake an evidentiary hearing to investigate petitioner’s substantial allegations of racial prejudice. The Constitution cannot countenance such indifference and summary treatment when a person’s life is at stake.

I

Petitioner was convicted for his role in a multiple murder during the robbery of a hi-fi shop in Ogden, Utah. The ringleader of the crimes, Dale Pierre, was executed last year. Evidence at trial indicated that petitioner had a substantially less active role in the murders than Pierre. The two men entered the shop together and forced five people into the store’s basement. There the victims were forced to drink liquid drain cleaner, which induced violent vomiting. One of the two victims who survived the robbery testified that petitioner said, “I can’t do it, I’m scared,” and that petitioner left the scene shortly thereafter. Only after petitioner left did Pierre carry out, in particularly gruesome fashion, the multiple murders for which petitioner has been sentenced to die. Pet. for Cert. 3.

The murders understandably attracted substantial attention in the local press and the community from which the jury venire was drawn. The incident also may have generated racist sentiments, inasmuch as the defendants were black people and the victims were white members of the local community. The single black member of the venire was excluded, and an all-white jury was empaneled.

An ugly racial incident involving the jury occurred during the trial. The jury was eating lunch in a separate dining room when a juror presented the bailiff with a drawing that had been made on a napkin. The drawing represented a stick figure hanging on a gallows. Underneath the figure were the words, “Hang the Niggers.” The bailiff was unable to say who had made the drawing or how many other jurors had seen it, although he did inform the court that “some of the jurors” had asked him “what the court may do about this.” The only action the trial court took in response was to issue a general instruction to the jury to “ignore communications from foolish people.” Id., at 9-10, and n. 4.

After petitioner and Pierre were convicted, the court ordered a 5-day recess. The jury was not sequestered. During this time, media coverage of the conviction was widespread and, petitioner alleges, racially inflammatory. Petitioner alleges, for example, that one newspaper ran a false report that petitioner had directed a “Black Power” closed-fist gesture at one of the surviving victims after the verdict was read. Id., at 10. The jury returned for the separate sentencing hearing and voted unanimously to sentence petitioner to death.

In his petition for a writ of habeas corpus, petitioner alleged that adverse publicity and hostile community sentiment had injected racial animus into his trial and undermined his right to a fair trial. The District Court refused to convene an evidentiary hearing to consider this claim. 600 F. Supp. 408, 415-416 (Utah 1984). The Court of Appeals for the Tenth Circuit upheld this refusal with little discussion, stating: “Having reviewed the briefs and the appellate record, we conclude that no hearing is required under the principles of Townsend v. Sain, 372 U. S. 293 (1963), and that the constitutional standard for a fair trial has been met.” 802 F. 2d 1256, 1260 (1986) (citations omitted).

II

“This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith v. Phillips, 455 U. S. 209, 215 (1982). Such a hearing is, of course, especially vital when the defendant has been condemned to die. In Turner v. Murray, 476 U. S. 28 (1986), the Court vacated a death sentence entered in a case in which the trial court had refused the defendant’s request to question the prospective jurors on racial prejudice. The plurality recognized that “in light of the complete finality of the death sentence,” the Constitution requires district courts to be especially solicitous of allegations of racial prejudice in capital cases. Id., at 35. The Court therefore vacated the sentence, even though no specific allegations of racial prejudice had been made other than the fact that the case involved a black defendant and a white victim. The plurality concluded that “the risk that racial prejudice may have infected petitioner’s capital sentencing [was] unacceptable in light of the ease with which that risk could have been minimized.” Id., at 36.

This case involves far more serious and specific allegations of racial animus than did Turner, including a vulgar incident of lynch-mob racism reminiscent of Reconstruction days. Moreover, petitioner is not asking this Court to decide whether there is sufficient evidence of racial prejudice to impeach the conviction and sentence. He seeks only to have the District Court undertake an evidentiary hearing to consider his charges. I would think it clear that the Constitution, not to mention common decency, requires no less than this modest procedure. See Tanner v. United States, 488 U. S. 107, 142 (1987) (Marshall, J., concurring in part and dissenting in part).

Ill

Was it one (or more) of petitioner’s jurors who drew a black man hanging on a gallows and attached the inscription, “Hang the Niggers”? How many other jurors saw the incendiary drawing before it was turned over to the bailiff? Might it have had any effect on the deliberations? Was the jury’s decision to sentence petitioner to die influenced by racially charged media coverage of the trial between the guilt and penalty phases? These are among the questions that petitioner deserves to have at least considered before he is put to death for a series of murders in which he played only a secondary role. It is conscience shocking that all three levels of the federal judiciary are willing to send petitioner to his death without so much as investigating these serious allegations at an evidentiary hearing. Not only is this less process than due; it is no process at all. I dissent.


text:
    No. 87-5722.
    Patterson v. United States.
   C. A. 9th Cir. Certiorari denied.

Justice White,

with whom

Justice Brennan joins, dissenting.

In Michigan v. Tucker, 417 U. S. 433, 447 (1974), this Court expressly left open the question of the admissibility of physical evidence obtained as a result of an interrogation conducted contrary to the rules set forth in Miranda v. Arizona, 384 U. S. 436 (1966). Since that time, the state and federal courts have been divided on this question. Indeed, in Massachusetts v. White, 439 U. S. 280 (1978), this Court was evenly divided on the issue of the admissibility of physical evidence obtained from an interrogation that violated Miranda.

Here, petitioner was arrested in Mexico by local officials when he attempted to pass a counterfeit $20 bill at a store in Tijuana. While still in the custody of Mexican police, petitioner was questioned by United States Secret Service agents who failed to inform him of his rights under Miranda. During the questioning, petitioner provided agents with a detailed description of a counterfeiting operation based in San Diego, California. Agents used petitioner’s confession to obtain a warrant to search the facility petitioner described; there, a variety of items relating to the counterfeiting enterprise were discovered.

Petitioner argued that the physical evidence obtained in the search of the counterfeiting operation should be suppressed, claiming that this evidence was inadmissible as “fruits” of the interrogation which violated Miranda. But the Court of Appeals for the Ninth Circuit affirmed the District Court’s rejection of this contention. 812 F. 2d 1188 (1987). The Court of Appeals rested its conclusion in part on prior Ninth Circuit decisions, e. g., United States v. Lemon, 550 F. 2d 467, 473 (1977), and in part on our decision in Oregon v. Elstad, 470 U. S. 298, 304-309 (1985), which held that a confession that was the “fruit” of an earlier violation of Miranda (but not the Fifth Amendment) was admissible.

While Elstad has been considered illuminating by some Courts of Appeals on the question of admissibility of physical evidence yielded from a Miranda violation, that decision did not squarely address the question presented here, and in fact, left the matter open. Elstad, 470 U. S., at 308; id., at 347, n. 29 (Brennan, J., dissenting). Consequently, I would grant certiorari in this case to resolve the conflict which has existed since Tucker, and answer the question presented here.

       Some courts faced with this question have concluded that physical evidence so obtained must be suppressed. See, e. g., United States v. Castellana, 488 F. 2d 65, 67 (CA5 1974); State v. Preston, 411 A. 2d 402, 407-408 (Me. 1980); Commonwealth v. White, 374 Mass. 132, 371 N. E. 2d 777 (1977), aff’d by an equally divided Court, 439 U. S. 280 (1978). Others have reached the opposite conclusion. See, e. g., United States ex rel. Hudson v. Cannon, 529 F. 2d 890, 894-895 (CA7 1976); United States v. Massey, 437 F. Supp. 843, 860-861 (MD Fla. 1977); Wilson v. Zant, 249 Ga. 373, 377-379, 290 S. E. 2d 442, 447-448, cert. denied, 459 U. S. 1092 (1982).
      Many courts have noted the conflict, but have declined to take a position. See, e. g., United States v. Scalf, 708 F. 2d 1540, 1545-1546 (CA10 1983); United States v. Downing, 665 F. 2d 404, 409, n. 5 (CA1 1981).

       See, e. g., 812 F. 2d, at 1193 (case below); United States v. Quinn, 815 F. 2d 153, 160 (CA1 1987); United States v. Morales, 788 F. 2d 883, 886-887 (CA2 1986).


text:
    No. 87-5781.
    Engle v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall,

with whom

Justice Brennan joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting), I would grant the petition for certiorari and vacate petitioner’s death sentence.

I

Even if I did not hold this view, I would grant the petition for certiorari to consider petitioner’s contention that the Florida Supreme Court is applying the review standard of Tedder v. State, 322 So. 2d 908, 910 (1975) (per curiam), in a manner that has denigrated the role of legitimate mitigating circumstances in Florida’s sentencing scheme and that has led to the arbitrary infliction of the death penalty. Petitioner’s sentencing jury recommended life imprisonment, but the trial judge overrode the jury’s recommendation and imposed the death sentence. Under Florida’s unusual system of capital sentencing, the trial judge is given the power to overturn a sentencing jury’s rejection of the death penalty. In upholding Florida’s sentencing system against various constitutional challenges, this Court repeatedly has relied on the Florida rule, announced in Tedder, that “[i]n order to sustain a sentence of death following a jury’s recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ,” ibid. See Spaziano v. Florida, 468 U. S. 447, 465-466 (1984); Barclay v. Florida, 463 U. S. 939, 955-956, 958 (1983) (Rehnquist, J., joined by Burger, C. J., and White and O’Connor, JJ.); Proffitt v. Florida, 428 U. S. 242, 249 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). The trial judge in this case failed even to consider the reasonableness of the jury’s recommendation and refused to recognize petitioner’s lesser role in the crime as a valid mitigating circumstance. The Florida Supreme Court nonetheless affirmed the override of the jury’s recommendation, arguing that it would be “unreasonable ... to conclude that [petitioner] played no part in the brutal slaying.” 510 So. 2d 881, 884 (1987) (per curiam). This reasoning evinces a cramped view of mitigating circumstances regarding evidence of petitioner’s lesser role that is contrary to the constitutional principles recognized in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). In addition, a review of this and other cases convinces me that the Florida Supreme Court has embraced conflicting views of whether such mitigating evidence may justify the jury’s recommendation of life imprisonment. The court’s inconsistent application of the Tedder standard in felony-murder cases has led to the arbitrary imposition of the death penalty.

Petitioner was charged, along with Rufus Stevens, with the murder of Eleanor Tolin, a cashier at the Majik Market in Jacksonville, Florida. Evidence presented by the State at trial indicated that Stevens had a leadership role and planned the robbery of the market, whereas petitioner was the follower in the scheme. Evidence also indicated that Stevens was the actual killer. During guilt-phase deliberations, the jurors twice asked the judge whether they had “to be convinced the defendant personally killed the victim to render a [verdict] of murder in the first degree.” Pet. for Cert. 5. The penalty phase of the trial began immediately after the jury returned the guilty verdict. No additional evidence was presented. Counsel presented closing arguments and the jury was instructed to base its penalty recommendation on the evidence presented during the guilt phase. In his summation to the jury prior to the sentencing phase, the prosecutor stated:

“You’re concerned whether he had to have actually thrust the knife on her. I know you were concerned about that. . . . But if you believe, if you believe that Rufus Stevens killed that girl for the purpose of not being identified, that he formed the intent to kill her for that purpose, that is first degree murder and then if you believe that [petitioner] gave this knife to Rufus Stevens, you find he is just as guilty as Rufus Stevens.” Id., at 6-7.

After deliberating for only 25 minutes, the jury returned a recommendation that petitioner be sentenced to life imprisonment.

Defense counsel argued to the trial judge that the jury’s recommendation was reasonable because it was based on the view that Rufus Stevens was the leader, planner, and dominant participant in the robbery and murder, whereas petitioner was the follower and not the actual killer. The trial judge responded: “Are you under the impression that if two men participate in a crime like this, one of them kills her and the other one sits there and aids and abets, that he is not equally guilty? . . . That he should not suffer the same fate?” Id., at 8. The trial judge proceeded to override the jury’s recommendation and sentenced petitioner to death. On direct appeal, the Florida Supreme Court affirmed petitioner’s conviction but reversed the death sentence because the trial judge had considered the testimony of Rufus Stevens at his separate trial in violation of petitioner’s Sixth Amendment right of confrontation. See Engle v. State, 488 So. 2d 803, 813-814 (1983).

Following a new sentencing hearing, the same trial judge found four aggravating circumstances and no mitigating circumstances, and he again sentenced petitioner to death. The judge did not refer to the jury’s recommendation of life imprisonment and made no attempt to evaluate the reasoning behind that recommendation. On appeal, petitioner argued that the jury’s recommendation of life imprisonment was reasonable and thus should be upheld under the standard of Tedder v. State, 322 So. 2d 908 (1975). As developed by the Florida Supreme Court, and relied on by this Court, the Tedder standard requires an inquiry into whether the jury reasonably could have based its recommendation on statutory or nonstatutory mitigating circumstances. See Amazon v. State, 487 So. 2d 8, 13 (1986); Welty v. State, 402 So. 2d 1159, 1164 (1981). Petitioner argued that evidence before the jury — evidence presented by the State’s own witnesses — indicated that petitioner played a lesser role in the robbery and murder and that Stevens did the actual killing. The jury’s questions during its guilt-phase deliberations, and the remarks of the prosecutor prior to the sentencing phase, reinforced the view that the jury returned its life recommendation based on this lesser role.

The Florida Supreme Court affirmed the imposition of the death sentence. The court held that there was “ample support ... for each of the aggravating circumstances,” 510 So. 2d, at 884, and found no error in the trial judge’s determination that there were no mitigating circumstances. The court noted petitioner’s claim that the jury’s recommendation was reasonable because it may have believed that Stevens actually did the killing and was the dominant force behind the robbery. The court concluded, however, that “[i]t would be unreasonable under these circumstances to conclude that [petitioner] played no part in the brutal slaying. Hence, there was not a reasonable basis for the jury’s recommendation of life imprisonment.” Ibid, (emphasis added).

The Florida Supreme Court’s reasoning thus requires that unless petitioner can show he “played no part” in the killing, evidence that he was not the actual killer, and that his role was as a follower rather than a leader, are not mitigating circumstances on which a reasonable juror could rely in recommending a life sentence. Such a view is wrong as a matter of federal law. In Lockett v. Ohio, supra, and Eddings v. Oklahoma, supra, this Court held that any aspect of the defendant’s character and the circumstances of the offense may be considered in mitigation. This Court often has recognized that “the level of criminal responsibility of a person convicted of murder may vary according to the extent of that individual’s participation in the crime.” Sumner v. Shuman, 483 U. S. 66, 79 (1987). Indeed, in Tison v. Arizona, 481 U. S. 137, 151 (1987), the Court recognized that a State may never constitutionally impose the death penalty for felony murder unless the defendant was a major participant in the felony and displayed a reckless indifference to human life. By finding the jury’s recommendation unreasonable because petitioner was unable to show he played no part in the killing, the Florida Supreme Court ignored the presence of valid mitigating evidence that the jury apparently relied on in rendering its recommendation of life imprisonment. The court’s determination denigrates the role of valid mitigating circumstances in Florida’s sentencing scheme, contrary to the principles of Lockett and Eddings.

Completely apart from this infirmity, the Florida Supreme Court’s endorsement of the trial judge’s refusal to consider the mitigating effect of petitioner’s lesser role in this case is at odds with other Florida Supreme Court decisions applying the Tedder standard. This inconsistency is unexplained. The haphazard application of the Tedder standard in cases in which an accomplice’s lesser role may have influenced the jury’s recommendation of life imprisonment convinces me that the Florida sentencing scheme is being applied in a manner inconsistent with the requirements of due process.

The Florida Supreme Court’s decisions in Barclay v. State, 470 So. 2d 691 (1985), and Hawkins v. State, 436 So. 2d 44 (1983), illustrate the court’s occasional readiness to defer to jury recommendations of life imprisonment based on the defendant’s lesser role in the capital crime. In Barclay the court reversed the trial judge’s override of the jury’s recommendation of life imprisonment. The defendant Barclay was a member of a group that called itself the Black Liberation Army. The group abducted a hitchhiker and drove him to a trash dump. The victim was then stabbed repeatedly by Barclay, and shot twice in the head by the apparent leader of the group, Jacob Dougan. See Barclay v. State, 343 So. 2d 1266, 1267 (1977). The Florida Supreme Court held that the jury’s recommendation of life imprisonment for Barclay was reasonable. The court argued:

“The jury apparently distinguished between Barclay and his main co-defendant, Jacob John Dougan, as evidenced by its recommendations of life imprisonment for Barclay (the follower) and death for Dougan (the leader). We hold that there was a rational basis for the jury’s distinction between these co-defendants and that the trial court erred in overriding the jury’s recommendation.” 470 So. 2d, at 695.

Similarly, in Hawkins the court reversed an override of the jury’s recommendation of life imprisonment, noting that evidence indicated that the defendant was not the triggerman, and holding that under those circumstances “there was a reasonable basis for the jury not to recommend the imposition of the death sentence.” 436 So. 2d, at 47. Just as Barclay’s and Hawkins’ roles as followers justified the jury’s recommendation of life, petitioner’s role as a follower would seem to justify the jury’s life recommendation. In the present case, the court did not cite or try to distinguish its holdings in Barclay and Hawkins, and simply concluded that because petitioner played some part in the murder, the jury’s life recommendation was unreasonable. Without more, I fail to see how this reasoning can be squared with Barclay and Hawkins, in which both defendants also clearly played some part in the murders.

Defendants Barclay, Hawkins, and Engle all were present during violent murders. Each presented evidence in mitigation indicating that they were followers, not leaders, and that they did not do the actual killings. All three were sentenced to die by the trial judge after their juries determined that death was an inappropriate sentence. Barclay and Hawkins are now serving life sentences. If the Florida Supreme Court’s decision in this case is allowed to stand, Engle will die in the electric chair. The Florida Supreme Court has not explained how these cases can be reconciled. As petitioner explains, these holdings create confusion as to whether it is wise, or even competent, for defense counsel to emphasize at trial the defendant’s lesser role in a capital crime. The opinions in Barclay, Hawkins, and Engle appear collectively to “stand for the proposition that trying a penalty phase or appealing a ‘life override’ under Florida’s capital sentencing scheme is akin to Russian Roulette.” Pet. for Cert. 26. I believe the Florida Supreme Court has failed to apply the Tedder review standard in a consistent manner in these cases, leading to the arbitrary imposition of the death penalty. I also believe that in the present case the Florida Supreme Court based its decision on a view of mitigation that is contrary to the constitutional principles of Lockett and Eddings. I would therefore grant the petition for certiorari.

       Stevens was convicted of Eleanor Tolin’s murder in a separate trial. The same trial judge, Judge Santora, overrode the jury’s recommendation of life imprisonment and sentenced Stevens to death. The conviction and sentence were affirmed by the Florida Supreme Court. Stevens v. State, 419 So. 2d 1058 (1982), cert. denied, 459 U. S. 1228 (1983).

       Under Florida law, an individual is guilty of first-degree murder when a killing occurs during the commission of a robbery even though the individual did not actually do the killing. See Hawkins v. State, 436 So. 2d 44, 46 (Fla. 1983).


author: Justice Brennan and Justice Marshall,

text:
    No. 87-5834.
    No. 87-5860.
    No. 87-5976.
    No. 87-6150.
    No. 87-6158.
    No. 87-6159.
    No. 87-6203.
    No. 87-6212.
    Williamson v. Florida. Barnard v. Texas. Clayton v. Pennsylvania. Ghent v. California. Hays v. Alabama. Davis v. Kemp, Warden. Kight v. Florida. DeLong v. Virginia.
   Sup. Ct. Fla.; Ct. Crim. App. Tex.; Sup. Ct. Pa.; Sup. Ct. Cal.; Sup. Ct. Ala.; C. A. 11th Cir.; Sup. Ct. Fla.; and Sup. Ct. Va. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 87-460.
    No. 87-720.
    No. 87-890.
    No. 87-5782.
    No. 87-5797.
    No. 87-5801.
    Boscio v. United States, Hagen, Executrix of the Estate of Hagen v. South Dakota et al., Walker v. Consumers Power Co., Becker v. Adams Drug Co., Inc., et al., Verhagen v. New York State Office of Court Administration et al., Arunga v. Johnson et al.,
   484 U. S. 1004; 484 U. S. 998; 484 U. S. 1011; 484 U. S. 1015; 484 U. S. 1015; and 484 U. S. 1015. Petitions for rehearing denied.

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


text:
    March 4, 1988
    No. 87-660.
    Peters et al. v. City of Shreveport.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-985.
    Fina Oil & Chemical Co. et al. v. El Paso Natural Gas Co.
   Sup. Ct. Tex. Certiorari dismissed as to petitioner Sun Exploration & Production Co. under this Court’s Rule 53.


text:
    March 7, 1988
    No. 87-317.
    Bemis Pentecostal Church et al. v. Tennessee et al.
   Appeal from Sup. Ct. Tenn. dismissed for want of substantial federal question.


text:
    No. 86-1008.
    Immigration and Naturalization Service v. Fazelihokmabad.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of INS v. Abudu, ante, p. 94.


text:
    No. 86-1049.
    City of Little Rock, Arkansas v. Williams.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case -remanded for further consideration in light of St. Louis v. Praprotnik, ante, p. 112.


text:
    No. 87-852.
    Union Oil Company of California v. Sierra Club.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49 (1987).


text:
    No.---.
    Murray v. United States.
   Motion to direct the Clerk to file the petition for writ of certiorari from the Judicial Council for the Ninth Circuit denied.


text:
    No. 94, Orig.
    South Carolina v. Baker, Secretary of the Treasury.
   Motion for clarification of the order entered December 7, 1987 [484 U. S. 973], granted. One-half of the total fee application filed November 4, 1987, is to be paid by the United States. One-fourth of the total fee application is to be paid by the State of South Carolina. One-fourth of the total fee application is to be paid by the National Governors’ Association. [For earlier order herein, see, e. g., 484 U. S. 973.]


text:
    No. 105, Orig.
    Kansas v. Colorado.
   Joint motion for approval of expenses incurred by Special Master Wade H. McCree, Jr., deceased, granted, and the allocation set forth in the motion is approved. [For earlier order herein, see, e. g., 484 U. S. 910.]


text:
    No. 108, Orig.
    Nebraska v. Wyoming et al.
   Motion of Basin Electric to file a response to plaintiff’s motion to amend petition granted. Motion of plaintiff to amend petition for an order enforcing decree and for injunctive relief denied. [For earlier order herein, see, e. g., 484 U. S. 1040.]


text:
    No. 86-492.
    Boyle, Personal Representative of the Heirs and Estate of Boyle v. United Technologies Corp.
   C. A. 4th Cir. [Certiorari granted, 479 U. S. 1029.] Parties may file supplemental briefs on reargument, provided the briefs do not exceed 20 pages. Amici curiae may file supplemental briefs on reargument, provided the briefs do not exceed 10 pages. Such briefs shall be served and filed on or before close of business Wednesday, April 13, 1988.


text:
    No. 86-495.
    No. 86-624.
    No. 86-625.
    K mart Corp. v. Cartier, Inc., et al.; 47th Street Photo, Inc. v. Coalition to Preserve the Integrity of American Trademarks et al.; and United States et al. v. Coalition to Preserve the Integrity of American Trademarks et al.
   C. A. D. C. Cir. [Certiorari granted, 479 U. S. 1005.] Cases restored to calendar for reargument on the merits.


text:
    No. 86-2037.
    Landers v. National Railroad Passenger Corporation et al.
   C. A. 1st Cir. [Certiorari granted, 484 U. S. 962.] Motion of respondents .to reconsider order denying motion for divided argument [484 U. S. 1055] denied.


text:
    No. 87-578. No. 87-602.
    Bank of Nova Scotia v. United States; and Kilpatrick et al. v. United States.
   C. A. 10th Cir. [Certiorari granted, 484 U. S. 1003.] Motion of petitioners for leave to file portion of joint appendix under seal granted.


text:
    No. 87-5468.
    Johnson v. Mississippi.
   Sup. Ct. Miss. [Certiorari granted, 484 U. S. 1003.] Motion of Committee on Civil Rights of the Association of the Bar of the City of New York for leave to file a brief as amicus curiae granted.


text:
    No. 87-6248.
    Wilson-Thomas v. Small Business Administration.
   C. A. 3d Cir. Motion of petitioner for leave to proceed informa pauperis denied. Petitioner is allowed until March 28, 1988, within which to pay the docketing fee required by Rule 45(a) and to submit a petition for writ of certiorari 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. 87-5888.
    In re Roy.
   Petition for writ of habeas corpus denied.


text:
    No. 87-1160.
    Duquesne Light Co. et al. v. Barasch et al.
   Appeal from Sup. Ct. Pa. Probable jurisdiction noted.


text:
    No. 86-1088.
    City of Canton, Ohio v. Harris et al.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 87-996.
    Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, as Receiver of FirstSouth, F. A.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 87-1031.
    Reed v. United Transportation Union et al.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 87-1168.
    Commissioner of Internal Revenue v. Clark et ux.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 87-121.
    Dugger, Secretary, Florida Department of Corrections, et al. v. Adams.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari granted.


text:
    No. 87-470.
    No. 87-614.
    Fort Wayne Books, Inc. v. Indiana et al. Sappenfield et al. v. Indiana.
   Sup. Ct. Ind.; and Ct. App. Ind. Motions of PHE, Inc., Video Software Dealers Association, and American Booksellers Association, Inc., et al. for leave to file briefs as amici curiae in No. 87-470 granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument.


text:
    No. 87-1167.
    Price Waterhouse v. Hopkins.
   C. A. D. C. Cir. Certiorari granted. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 87-5259.
    Teague v. Lane, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted.


text:
    No. 87-5677.
    Harris v. Reed, Warden, et al.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 86-1803.
    Blatty v. New York Times Co. et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 86-6710.
    Lewis v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-679.
    McSurely v. Hutchison.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-690.
    Petrone v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-695.
    Turner, Executrix of the Estate of Turner v. City of Atlanta.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 87-710.
    No. 87-735.
    Swan et al. v. Ruben et al.; and Warren City School District Board of Education et al. v. Ruben et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-784.
    No. 87-1334.
    Porter v. United States; and Bell et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-845.
    Gowdy v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-872.
    Times-Picayune Publishing Corp. et al. v. Edwards et al.
   C. A. 5th Cir.- Certiorari denied.


text:
    No. 87-873.
    Union de Transports Aeriens v. Beckman.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 87-876.
    Kitchens et al. v. Bowen, Secretary of Health and Human Services, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-947.
    Okun Brothers Shoe Store, Inc. v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-950.
    Red Lake Band of Chippewa Indians et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-958.
    Pennsylvania et al. v. Equal Employment Opportunity Commission et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-961.
    Begay et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-966.
    Ismaili v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-972.
    Scharrer v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-1026.
    Stokes v. University of Tennessee at Martin.
   Ct. App. Tenn. Certiorari denied.


text:
    No. 87-1053.
    Perlmutter v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-1164.
    Terpstra v. Ford Motor Credit Co.
   Ct. App. Ind. Certiorari denied.


text:
    No. 87-1177.
    Burlington Northern Joint Protective Board, Brotherhood Railway Carmen Division, Transportation Communications Union v. Burlington Northern Railroad Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1178.
    Triple-A Baseball Club Associates et al. v. Northeastern Baseball, Inc., et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 87-1182.
    Raschick v. Prudent Supply, Inc., et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1185.
    United Mine Workers of America 1974 Benefit Plan and Trust v. District 29, United Mine Workers of America, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1186.
    Duncan, Carroll County Commissioner, et al. v. City of Carrollton, Georgia, Branch of the National Association for the Advancement of Colored People, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-1198.
    Crown Cork & Seal Co., Inc. v. McNasby et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-1202.
    Hutter Northern Trust et al. v. City of Chicago et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-1225.
    Cherry Hill Township v. Camden County Board of Taxation.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 87-1231.
    Pendergrass v. Office of Personnel Management.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 87-1232.
    Rose v. Long Island Railroad Pension Plan et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-1237.
    Yee v. Smith et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-1238.
    Lund v. Norwest Bank Minneapolis et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1272.
    Peeples v. Commissioner of Internal Revenue.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-1273.
    Wislocki-Goin v. Mears, Judge, Lake County Superior Court, Juvenile Division, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 87-1289.
    McMahon v. Franklin Mint Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-1300.
    Brusgulis v. Justices of the Superior Court of Massachusetts.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 87-1307.
    Porto v. Armco, Inc., et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-1330.
    Potter et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-5752.
    E. R. E. v. District of Columbia.
   Ct. App. D. C. Certiorari denied.


text:
    No. 87-5806.
    Calbas v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-5979.
    Abraham v. DeFelice.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-6022.
    Foret et al. v. Town of Grand Isle et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-6037.
    Martinez-Diaz v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-6038.
    Avery v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 87-6054.
    Badia v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-6214.
    Murphy v. Sisco et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 87-6217.
    Legrone v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 87-6220.
    Williams v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 87-6224.
    Rogers v. Carver, Superintendent, Massachusetts Correctional Institution.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 87-6228.
    Manter v. Town of Fayette, Maine.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 87-6230.
    Burrell v. Iowa.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 87-6240.
    Thomas v. Newsome et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-6242.
    Beauford v. Father Flanagan’s Boys’ Home.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6247.
    Haas v. Wilcox et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-6263.
    Fied v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 87-6268.
    Springer, aka McNeal v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6270.
    Carter v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 87-6275.
    Birdsell v. Leach et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6293.
    Smolarski v. Owens, Commissioner, Pennsylvania Department of Corrections, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-6296.
    Wicker v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 87-6298.
    Economou et ux. v. Securities and Exchange Commission.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 87-6308.
    Eakins v. Foltz, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 87-6323.
    Moline v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-6324.
    Harry v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 87-6327.
    Timmonds v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-6337.
    Parker v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 87-6345.
    Irving v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-6347.
    Ayers v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 87-6352.
    Cordoba v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 87-6366.
    Luna v. New Mexico et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 86-2070.
    Kamen v. Nordberg, Judge, United States District Court for the Northern District of Illinois (Kemper Financial Services, Inc., et al., Real Parties in Interest).
   C. A. 7th Cir. Certiorari denied.

Justice White,

dissenting.

The issue here is when mandamus relief will be available to a party who claims that the District Court wrongly deprived him of the right to a jury trial. Petitioner is a shareholder in a mutual fund and brought a derivative suit against the two companies that administer the fund, alleging breach of fiduciary duty under § 36(b) of the Investment Company Act of 1940, 15 U. S. C. § 80a-35(b). The District Court granted defendants’ motion to strike petitioner’s demand for a jury trial on this claim, and petitioner sought mandamus from the Court of Appeals to compel the District Court to honor his demand for a jury trial. The Seventh Circuit denied relief in an order (No. 87-1455, Apr. 13, 1987), citing its prior decision in First National Bank of Waukesha v. Warren, 796 F. 2d 999 (1986).

In Warren, the Seventh Circuit held that mandamus will lie to enforce a party’s demand for a jury trial only when, first, the party’s right to a jury trial is clear and indisputable and, second, the party has no other adequate means to attain the relief he desires. Id., at 1006. The second point is especially critical because it will prevent interlocutory review of many requests for a writ of mandamus to direct the granting of a jury trial, as in many cases the petitioning party can seek this same relief on appeal from the ultimate resolution of the case in the trial court. This decision conflicts with the decisions of other Courts of Appeals, which hold that mandamus relief is available to review an order denying a claimed right of trial by jury, and that a proper petition for mandamus in these circumstances obliges the Court of Appeals to address the merits of the claimed right to a jury trial. In re Union Nacional de Trabajadores, 502 F. 2d 113, 115-116 (CA1 1974), vacated on other grounds, 527 F. 2d 602 (1975); Lee Pharmaceuticals v. Mishler, 526 F. 2d 1115, 1116-1117 (CA2 1975) (per curiam); Eldredge v. Gourley, 505 F. 2d 769, 770 (CA3 1974); General Tire & Rubber Co. v. Watkins, 331 F. 2d 192, 194 (CA4), cert. denied, 377 U. S. 952 (1964); Black v. Boyd, 248 F. 2d 156, 159-161 (CA6 1957); In re Vorpahl, 695 F. 2d 318, 319 (CA8 1982); Owens-Illinois, Inc. v. United States District Court, 698 F. 2d 967, 969 (CA9 1983); In re Zweibon, 184 U. S. App. D. C. 167, 170-171, 565 F. 2d 742, 745-746 (1977) (per curiam). It may also be inconsistent with this Court’s prior decisions in Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959), and Dairy Queen, Inc. v. Wood, 369 U. S. 469 (1962), which emphasize the responsibility of the Courts of Appeals to grant mandamus relief where it is necessary to protect the constitutional right to trial by jury. I would grant certiorari to resolve the split among the Circuits on this issue.


text:
    No. 87-160.
    Grant, Superintendent, Corrections Camp Program v. Casper.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 87-1227.
    Kemp, Warden v. Dix.
   C. A. 11th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 87-220.
    City of Santa Barbara v. Hall et ux.
   C. A. 9th Cir. Motion of Golden State Mobilehome Owners League, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 87-730.
    United States v. Meyer et al.
   C. A. D. C. Cir. Motions of respondents Judith Hand, Mary Daily, Robert Coleman, Susan Blake, and Mindy Washington for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 87-731.
    Globe Newspaper Co. et al. v. King.
   Sup. Jud. Ct. Mass. Motion of American Newspaper Publishers Association et al. for leave to file a brief as amici curiae granted. Certiorari denied. Justice Brennan would grant certiorari.


text:
    No. 87-894.
    Slyper et al. v. Meese, Attorney General, et al.
   C. A. D. C. Cir. Certiorari denied.

Justice White,

dissenting.

This case presents the issue whether the decision of the United States Information Agency (USIA) to recommend against waiver of the requirement that a foreign doctor in this country for graduate medical training return to his or her foreign residence for two years prior to applying for permanent residence status here is subject to judicial review for abuse of discretion. See 8 U. S. C. § 1182(e) (1982 ed., Supp. IV). A waiver from the 2-year foreign residence requirement can be obtained on “hardship” grounds, one condition for which is that the Director of the USIA make a favorable recommendation concerning the waiver. The Court of Appeals held that because neither the relevant statute nor implementing regulation provided a standard against which to assess the Director’s exercise of discretion, the decision was one committed to the agency’s discretion by law and accordingly not reviewable under the Administrative Procedure Act, 5 U. S. C. § 701(a)(2). 264 U. S. App. D. C. 170, 172-173, 827 F. 2d 821, 823-824 (1987). In so holding, the court reached the same conclusion as the Second and Ninth Circuits, Dina v. Attorney General, 793 F. 2d 473, 476 (CA2 1986) (per curiam); Abdelhamid v. Ilchert, 774 F. 2d 1447, 1449-1450 (CA9 1985), and rejected the contrary conclusion of the Third Circuit, Chong v. Director, USIA, 821 F. 2d 171, 176 (1987). I would grant certiorari to resolve the conflict among the Circuits over this question of federal law.


text:
    No. 87-975.
    SCROGGY et al. v. Summers.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Justice White would grant certiorari.


text:
    No. 87-994.
    General Motors Corp. et al. v. Bennett et al.
   C. A. 9th Cir. Motion of National Railway Labor Conference for leave to file a brief as amicus curiae granted. Certiorari denied. Justice Stevens and Justice Kennedy took no part in the consideration or decision of this motion and this petition.


text:
    No. 87-1151.
    Lederle Laboratories, a Division of American Cyanamid Co. v. Toner et al.
   C. A. 9th Cir. Certiorari denied.

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


text:
    No. 87-1166.
    Mendez v. Mendez.
   Dist. Ct. App. Fla., 3d Dist. Motion of Watchtower Bible & Tract Society of New York, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 87-5803.
    Lekas v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.

Justice White,

dissenting.

This petition presents a constitutional issue over which the state courts are divided: whether the confrontation of a detainee with new evidence or another’s confession is a sufficient intervening event to purge the taint of an allegedly unlawful arrest. The Appellate Court of Illinois held that it was, notwithstanding the facts that the confession here occurred during a period of continued detention following a warrantless nighttime arrest, assumed not to be supported by probable cause, and 12 hours of intermittent custodial interrogation. In contrast, the courts of three other States have reached the opposite conclusion, holding that newly discovered evidence or the confession of a codefendant is an insufficient intervening circumstance to prevent the in-custody confession from being fruit of the illegal arrest. State v. Winegar, 147 Ariz. 440, 711 P. 2d 579 (1985); Commonwealth v. Barnett, 471 Pa. 34, 369 A. 2d 1180 (1977); Gregg v. State, 667 S. W. 2d 125 (Tex. Crim. App. 1984), overruled on other grounds by Russell v. State, 717 S. W. 2d 7 (Tex. Crim. App. 1986). This Court has recognized that release from custody or presentation before a neutral magistrate can purge the taint of an illegal arrest, Wong Sun v. United States, 371 U. S. 471, 491 (1963); Johnson v. Louisiana, 406 U. S. 356, 365 (1972), but we have not held that merely confronting the illegally and continuously detained defendant with new evidence severs the link between the custodial confession and the Fourth Amendment violation. Here, there was apparently no exigency preventing the police from presenting the defendant to a magistrate during the 12-hour period over which they intermittently questioned him. The conflict created by this decision over the scope of the Fourth Amendment’s protection against illegal arrests and the use of the fruits therefrom presents an important question of constitutional law, see Taylor v. Alabama, 457 U. S. 687 (1982); Brown v. Illinois, 422 U. S. 590 (1975), and I would grant certiorari.


author: Justice Brennan

text:
    No. 87-5971.
    Roberts v. Florida. Noland v. North Carolina. Koon v. Florida. Alderman v. Georgia. Ford v. Georgia.
    No. 87-5984.
    No. 87-6223.
    No. 87-6236.
    No. 87-6266.
   Sup. Ct. Fla.; Gen. Ct. Justice, Super. Ct. Div., Mecklenburg County, N. C.; Sup. Ct. Fla.; Sup. Ct. Ga.; and Sup. Ct. Ga. Certiorari denied.

Justice Brennan

and Justice Marshall, dissenting.

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


author: Justice Brennan and Justice Marshall, Justice Blackmun,

text:
    No. 87-6173.
    Darden v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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

Justice Blackmun,

with whom

Justice Brennan and Justice Marshall join, dissenting.

I would grant the petition for certiorari and summarily reverse the judgment below primarily for the reasons stated in the dissent in Darden v. Wainwright, 477 U. S. 168, 188 (1986). I was not persuaded then, and I am not persuaded now, that petitioner Willie Jasper Darden received a fair trial in the Florida courts. A person should not be condemned to die and be executed under any system of justice in this country without a fair trial.


text:
    No. 87-6256.
    Erickson et al. v. Alltech Associates, Inc.
   App. Ct. Ill., 1st Dist. Motion of petitioner Hogan for leave to proceed in forma pauperis denied. Petitioner Hogan is allowed until March 28, 1988, within which to pay the docketing fee required by Rule 45(a) and to submit a petition for writ of certiorari in compliance with Rule 33 of the Rules of this Court. Petition for writ of certiorari as to petitioner Erickson denied.

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. 86-6867.
    Lowenfield v. Phelps, Secretary, Louisiana Department of Corrections, et al., Murphy v. Aetna Life & Casualty et al., Daniels v. Secretary of Health and Human Services, Trapani v. CBS Records, Inc., et al., White v. Department of Justice,
    No. 87-5587.
    No. 87-5839.
    No. 87-5904.
    No. 87-6056.
   484 U. S. 231; 484 U. S. 961; 484 U. S. 1016; 484 U. S. 1036; and 484 U. S. 1046. Petitions for rehearing denied.

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


text:
    No. 87-732.
    Wheeler et al. v. Commissioner of Highways of Kentucky,
   484 U. S. 1007. Petition for rehearing and/or other relief denied.

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


text:
    No. 87-5879 (A-631).
    Frazier v. Railroad Retirement Board,
   484 U. S. 1029. Application to suspend the effect of the order denying certiorari, addressed to Justice Kennedy and referred to the Court, denied. Petition for rehearing denied.

Justice Kennedy took no part in the consideration or decision of this application and petition.


text:
    March 9, 1988
    No. 87-1229.
    S. G. Adams Printing & Stationery Co. v. May Centers, Inc.
   App. Ct. Ill., 5th Dist. Certiorari dismissed under this Court’s Rule 53.


text:
    March 14, 1988
    No. 87-6596 (A-696).
    Felde v. Butler, Warden.
   Sup. Ct. La. 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 of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


author: Justice O’Connor,

text:
    March 15, 1988
    No. A-693.
    Dugger, Secretary, Florida Department of Corrections, et al. v. Johnson.
   Application of the Attorney General of Florida for an order to vacate the stay of execution of sentence of death entered by the United States District Court for the Northern District of Florida, presented to Justice Kennedy, and by him referred to the Court, denied.

Justice O’Connor,

with whom

The Chief Justice joins, dissenting.

Larry Joe Johnson was scheduled to be executed on March 9, 1988. The State informs us that it was served with a petition for a writ of habeas corpus at about 5:45 p.m. on March 7, 1988. That petition raised an issue, under Caldwell v. Mississippi, 472 U. S. 320 (1985), in which Johnson claims that the sentencing jury was improperly informed that its role in the sentencing decision was merely advisory. Noting that issues similar or identical to Johnson’s Caldwell claim are pending before the United States Court of Appeals for the Eleventh Circuit and before this Court, the United States District Court for the Northern District of Florida granted an indefinite stay of execution. The United States Court of Appeals for the Eleventh Circuit denied the State’s motion to vacate the stay. The State then applied to the Circuit Justice for the Eleventh Circuit for a vacation of the stay, and the application was referred to the full Court. Johnson did not file any response, and this Court has voted to deny the application. I respectfully dissent.

The State argues that Johnson has abused the writ of habeas corpus by raising his Caldwell claim at this time. The State avers that Johnson had raised the same claim, along with others, in a previous petition for federal habeas, which was filed before this Court’s decision in Caldwell. The claim was rejected on procedural grounds at that time, and it was not among the issues on which Johnson appealed to the Eleventh Circuit. Our decision in Caldwell was announced while the appeal was pending in the Eleventh Circuit, and Johnson apparently did not bring it to the attention of that court. Concluding that the claim was abandoned, the State now urges that Johnson’s effort to renew the claim at this time constitutes an abuse of the writ.

In my view, the State is clearly correct to argue that the writ of habeas corpus is abused when a claim is raised in one petition, abandoned on appeal, and then raised again in a successive petition. If Johnson’s Caldwell claim falls into this category, then the District Court would seem to have abused its discretion by granting an indefinite stay of execution on the ground that Caldzóell issues are present in other cases pending before the Eleventh Circuit and before this Court.

Without ruling out the possibility that extraordinary circumstances might justify a stay of execution in this case, I note that no such circumstances have been called to our attention. The District Court did not address the argument that the State has made to this Court. The State explains this in the following way. In an effort to facilitate the District Court’s consideration of any habeas petition that Johnson might file, it lodged an anticipatory response with that court. That response did not address Johnson’s Caldwell claim because the State considered that claim abandoned. After Johnson filed his petition on March 7, the State prepared a supplemental response, which it expected to offer to the court at a hearing that was scheduled for the next morning at 10 o’clock. Counsel for the State arrived at 9:30, but “was informed that the hearing was cancelled and that the [District] Court had entered a stay without allowing the State to be heard.” The State’s attorney filed its written supplemental response with the Clerk of the District Court, and subsequently filed a motion to vacate the stay with the Eleventh Circuit.

Arguing before the Eleventh Circuit, Johnson gave two reasons for concluding that the District Court had considered and rejected the State’s abuse-of-the-writ argument. First, Johnson had anticipated and answered the argument in his petition. Second, the stay of execution was not actually entered until 10:31 a.m. on March 8, by which time the District Court would have had an opportunity to review the State’s supplemental response to the petition. Johnson also argued to the Eleventh Circuit that entry of the stay of execution was not an abuse of discretion because he did not “consciously” abandon the Caldwell claim he raised on his first petition for federal habeas. Rather, he suggested, in failing to appeal the rejection of that claim his attorneys merely “conceded defeat on the merits.”

On March 11, 1988, the Eleventh Circuit denied the State’s motion to vacate the stay of execution. No reasons were given, and the only allusion to the State’s arguments was the following sentence: “Such denial is without prejudice to [the State’s] right to present in district court its argument that petitioner’s Caldwell claim is barred because of failure to exhaust, procedural default or otherwise.”

The standard under which we consider motions to vacate stays of execution is deferential, and properly so. Only when the lower courts have clearly abused their discretion in granting a stay should we take the extraordinary step of overturning such a decision. In the present case, however, there is no evident legal basis whatsoever for a stay. The State has presented an apparently meritorious argument that Johnson’s attempt to raise a Caldwell claim at this time is an abuse of the writ, and Johnson’s suggestion that his previous abandonment of the claim was a “concession of defeat on the merits,” rather than a “conscious abandonment” seems altogether specious. If the District Court refused to consider the State’s apparently meritorious argument, that was certainly an abuse of discretion. If the District Court considered the. argument but deemed it too insubstantial to require any comment, that too must be considered an abuse of discretion unless and until we are informed of reasons that would justify the implicit rejection of the State’s position. The Eleventh Circuit articulated no such reasons, and in fact appeared to indicate that it knew of none.

The Eleventh Circuit seems to have thought that the proper course was to leave the stay in effect, but to indicate that the State was free to return to the District Court and repeat the argument it had sought to present earlier. I disagree. When a stay of execution has been granted without an apparent legal basis, and the court of appeals cannot articulate a reason for leaving the stay in effect, the proper course is to vacate the stay. Because neither the District Court nor the Court of Appeals has articulated an adequate legal basis for entering a stay in this case, I would grant the State’s application to vacate. Johnson would, of course, remain free to return to the District Court and seek a stay based on adequate legal grounds, if there are any.

A majority of this Court has previously expressed its disapproval of the litigation tactics that seem to have been employed in this case:

“This is another capital case in which a last-minute application for a stay of execution and a new petition for habeas corpus relief have been filed with no explanation as to why the claims were not raised earlier or why they were not all raised in one petition. It is another example of abuse of the writ.” Woodard v. Hutchins, 464 U. S. 377, 377-378 (1984) (Powell, J., joined by Burger, C. J., and Blackmun, Rehnquist, and O’Connor, JJ., concurring).

While the details of this case are somewhat different, we are faced once again with a last-minute effort to obtain a stay of execution on the basis of a claim that appears to be procedurally barred. Allowing this stay to remain in effect creates incentives that will almost surely lead to similar problems in the future:

“If this Court defers only to grants of stays, while giving searching review to every denial of a stay, the lower federal courts may in time come to issue stays routinely. In that event, Barefoot v. Estelle’s statement that stays of execution are not automatic in capital cases, 463 U. S. [880, 895 (1983)], would effectively be overruled.” Wainwright v. Booker, 473 U. S. 935, 936, n. 3 (1985) (Powell, J., concurring).

Accordingly, I respectfully dissent from the Court’s denial of the State’s application in this case.


text:
    No. 87-6606 (A-699).
    Darden v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied. Justice Brennan, Justice Marshall, and Justice Blackmun dissent for the reasons stated in Justice Blackmun’s dissent from the denial of the petition for writ of certiorari in Darden v. Dugger, ante, p. 943.

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 of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    March 18, 1988
    No. 87-1079.
    Palumbo et al. v. United States.
   C. A. 6th Cir. Certiorari dismissed as to petitioner Robert T. Porter under this Court’s Rule 53.