text:
    No. 88-5932.
    Hamdan v. United States.
   C. A. 6th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 88-5943.
    Marshburn v. United States Postal Service.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 88-5948.
    Thissen v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-5951.
    Ellis v. Kentucky State Board of Parole et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-5955.
    Weichert v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-5968.
    Barker v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5973.
    Huggins v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-5995.
    Muhammad v. Johnson et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-5996.
    Koedatich v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 88-5999.
    Gordon v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-6001.
    Smith v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 88-6002.
    Sanchez-Cebezas v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-6007.
    Bryant v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6011.
    No. 88-6028.
    Reinhardt v. United States; and Hendricks v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6016.
    Gurule v. Kautzky, Executive Director, Colorado Department of Corrections.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-6031.
    Feldman v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-6034.
    Garcia v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6035.
    Hatcher v. Jackson, Superintendent, Newark House, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6047.
    Ismail v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6048.
    Hensley, aka Hoskins v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 88-6086.
    Bowen v. Jabe, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6092.
    Landry v. Texas.
   Ct. Crina. App. Tex. Certiorari denied.


text:
    No. 87-1796.
    Massinga et al. v. L. J. et al.
   C. A. 4th Cir. Motion of National Association of Social Workers for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 87-7192.
    Browning v. Jabe, Warden.
   C. A. 6th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 88-5459.
    Seymore v. Alabama et al.
   C. A. 11th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 88-5565.
    Branch v. United States.
   C. A. 5th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 88-630.
    Alabama v. Cox et al.
   Ct. Crim. App. Ala. Motions of Southern Christian Leadership Conference et al. and National District Attorneys Association, Inc., for leave to file briefs as amici curiae granted. Motion of respondent Cox for leave to proceed in forma pauperis granted. Certiorari denied.

Justice White and Justice Kennedy would grant certiorari.


text:
    No. 88-733.
    United Artists Theatre Circuit, Inc., et al. v. Harkins Amusement Enterprises, Inc., et al.
   C. A. 9th Cir. Motion of Columbia Pictures Industries et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 88-738.
    Spring Branch Mining Co., Inc., et al. v. United Mine Workers of America 1950 Pension Trust and 1950 Pension Plan et al.
   C. A. 4th Cir. Certiorari denied. Justice O’Connor would grant certiorari.


text:
    No. 88-785.
    Lease Lights, Inc., et al. v. Public Service Company of Oklahoma.
   C. A. 10th Cir. Motion of Alliance for Fair Competition for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 88-786.
    Carroll v. Moore.
   Sup. Ct. Neb. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.

Justice White and Justice O’Connor would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 88-5271.
    No. 88-5600.
    No. 88-5670.
    No. 88-5684.
    No. 88-5751.
    No. 88-5753.
    No. 88-5756.
    No. 88-5759.
    No. 88-5763.
    No. 88-5777.
    No. 88-5880.
    No. 88-5915.
    No. 88-6042.
    Eaton v. Louisiana. Gilliard v. Scroggy, Commissioner, Mississippi Department of Corrections, et al. Lonchar v. Georgia. Nichols v. Texas. Van Cleave v. Indiana. Mathenia v. Missouri. Munson v. Oklahoma. King v. Lynaugh, Director, Texas Department of Corrections. Silva v. California. Siripongs v. California. Singleton v. Thigpen, Commissioner, Alabama Department of Corrections. Stokes v. Armontrout, Warden, et al. Smith v. Missouri.
   Sup. Ct. La.;

C. A. 5th Cir.;

Sup. Ct. Ga.;

Ct. Crim. App. Tex.;

Sup. Ct. Ind.;

Ct. App. Mo., Eastern Dist.;

Ct. Crim. App. Okla.;

C. A. 5th Cir.;

Sup. Ct. Cal;

Sup. Ct. Cal.;

C. A. 11th Cir.';

C. A. 8th Cir.; and

Sup. Ct. Mo. 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. 88-5755.
    Williams et al. v. Ward et al.
   C. A. 2d Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


author: Justice Marshall,

text:
    No. 88-5806.
    Neelley v. Alabama.
   Ct. Crim. App. Ala. 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 forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting); Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring), I would grant the petition for certiorari and vacate the death sentence in this case. Even if I did not hold this view, I would grant the petition to determine the applicable standard for reviewing Brady violations in the sentencing phase of a capital trial.

I

Petitioner Judith Ann Neelley was convicted of the capital offense of murder during a kidnaping. She did not deny that she had kidnaped and killed the victim. She testified, however, that she had acted at the direction and under the control of her husband, Alvin Neelley, who, petitioner contended, had physically and sexually abused her. Petitioner claimed that she was willing to do anything to avoid further abuse. A clinical psychologist who had examined Neelley testified that she ‘“probably fits the battered women’s syndrome to the most severe extent that [she had] seen.’” The psychologist noted that “‘Alvin’s mental state was substituted’” for petitioner’s so that she had “‘no intents of her own.’” Neelley v. State, 494 So. 2d 669, 681 (Ala. Crim. App. 1985).

To substantiate her defense further, petitioner’s attorney sought disclosure of evidence seized by investigators from her mobile home — in particular, several letters petitioner sent to her husband. These letters contained references to her husband’s “hypnotizing eyes” and the fact that petitioner had been hearing her husband’s voice by mental telepathy. One letter also contained the suggestion that petitioner believed her letters might lead her husband to kill her. The prosecution denied that it had such letters and the trial court denied petitioner’s request. The jury subsequently imposed a sentence of life without parole. Although the trial judge found that petitioner “was substantially influenced by her husband,” he overruled the jury and sentenced petitioner to death. Id., at 693.

After petitioner’s conviction and sentence were affirmed on direct appeal, Ex parte Neelley, 494 So. 2d 697 (1986), her attorney learned that the investigator who had seized the letters did not deliver them to the appropriate law enforcement officials. Petitioner then filed a motion for relief from conviction and sentence, contending, inter alia, that the State’s failure to disclose the seized evidence violated her due process rights. As a preliminary matter, a state court found that the investigator’s failure to disclose the letters could be imputed to the prosecutor. Brief in Opposition 10. After reviewing the letters, however, the court concluded that “‘there is no reasonable probability that any of the evidence would have altered either the guilt or punishment stage of petitioner’s trial.’” Ibid.

II

“It is well settled that the Government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U. S. 39, 57 (1987). This Court has determined that, for Brady violations during the guilt phase of a trial, Brady v. Maryland, 373 U. S. 83 (1963), materiality turns on whether there is a reasonable probability that the evidence might have affected the outcome of the trial, such that, “had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Ritchie, supra, at 57; see also United States v. Bagley, 473 U. S. 667, 674-678 (1985). Here, the state court simply assumed that this same standard of materiality is appropriate for suppression of evidence at the sentencing phase of a capital trial.

I am not so sure. The nondisclosure of evidence favorable to a capital defendant at the sentencing phase not only raises serious due process concerns, but also implicates the defendant’s right under the Eighth and Fourteenth Amendments to present mitigating evidence before the sentencer. Given our heightened concern for reliability and individualized sentencing in the capital context, we have held that a defendant has a right to admit all relevant mitigating evidence. See, e. g., Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982); Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion). Applying the outcome-focused reasonable probability standard to information withheld during the sentencing phase of a capital trial poses a serious threat to that right. In the instant case, petitioner’s letters were directly relevant to her primary mitigation claim that she had acted under her husband’s influence. Her right to introduce those letters into evidence was guaranteed by the Eighth and Fourteenth Amendments, independent of any due process claim she might have otherwise had.

In my view, the standard for reviewing Brady violations in the sentencing phase of a capital trial is an important and recurring issue that warrants the Court’s attention. See Brown v. Chaney, 469 U. S. 1090, 1096 (1984) (Burger, C. J., dissenting from denial of certiorari).

Ill

A final comment is necessary. Petitioner’s counsel before this Court wrote three terse sentences describing the reasons why we should grant certiorari. He merely asserted a Brady violation without discussing the relevant law or analyzing the facts of this case. Such brevity — unconscionable in a capital case — raises a serious question as to whether petitioner has received effective assistance of counsel. I dissent.


text:
    No. 87-1921.
    No. 87-1961.
    No. 87-2128.
    No. 87-6947.
    No. 87-7189.
    No. 87-7284.
    No. 88-296.
    No. 88-418.
    No. 88-445.
    No. 88-474.
    No. 88-5252.
    No. 88-5347.
    No. 88-5400.
    No. 88-5439.
    No. 88-5446.
    No. 88-5451.
    No. 88-5452.
    No. 88-5461.
    No. 88-5462.
    No. 88-5497.
    No. 88-5507.
    No. 88-5511.
    Winslow et ux. v. Williams et al., Town of Huntington, New York, et al. v. Huntington Branch, National Association for the Advancement of Colored People, et al., Chaires v. United States Department of Housing and Urban Development et al., Miner v. New York State Department of Correctional Services, Wohlford et ux. v. United States Department of Agriculture et al., Martin v. Morris, Shostak v. Federal Energy Regulatory Commission, Shanks et al. v. Estes Park Bank, Broad et ux. v. Conway et al., Neville v. Mollen, Presiding Justice, Appellate Division, Supreme Court of New York, Second Judicial Department, et al., Turner v. United States Postal Service, Patillo v. Georgia, In re Radvan-Ziemnowicz, Ikeni v. California Superior Court of Fresno County et al., Cole v. Mississippi, Thompson v. Southeastern Toyota Distributors, Inc., et al., May v. Warner Amex Cable Communications, Campbell v. Kincheloe, Superintendent, Washington State Penitentiary, Krishnan v. Department of the Air Force, Fleming v. Deak et al., Bradshaw v. Zoological Society of San Diego, Bigg v. Office of Personnel Management, Martin v. C. Itoh & Co. (America), Inc., et al., Drabick v. Drabick, Rowe v. Department of the Army, Rowe v. Department of the Army, Martin v. Zook et al.,
   ante, p. 820;

ante, p. 15;

ante, p. 829;

ante, p. 941;

ante, p. 941;

ante, p. 924;

ante, p. 942;

ante, p. 927;

ante, p. 927;

ante, p. 943;

ante, p. 969;

ante, p. 948;

ante, p. 923;

ante, p. 920;

ante, p. 934;

ante, p. 931;

ante, p. 931;

ante, p. 948;

ante, p. 957;

ante, p. 945;

ante, p. 945;

ante, p. 932;

No. 88-5549.

No. 88-5592.

No. 88-5642.

No. 88-5643.

No. 88-5677.

ante, p. 951;

ante, p. 958;

ante, p. 951;

ante, p. 951; and

ante, p. 972. Petitions for rehearing denied.


text:
    No. 88-416.
    Benson v. Bearb et al.,
   ante, p. 926. Motion of petitioner to defer consideration of petition for rehearing denied. Petition for rehearing denied.


text:
    January 17, 1989
    No. 87-1818.
    Badham et al. v. Eu, Secretary of State of California, et al.
   Affirmed on appeal from D. C. N. D. Cal. The Chief Justice, Justice Stevens, and Justice Kennedy would note probable jurisdiction and set case for oral argument.


text:
    No. 88-806.
    Merlino Enterprises, Inc. v. Thompson, Administrator of the Estate of Sousa.
   Appeal from Sup. Ct. Conn, dismissed for want of substantial federal question. The Chief Justice would note probable jurisdiction and set case for oral argument.


text:
    No. 88-809.
    Davis et ux. v. DeChiaro Limited Partnership et al.
   Appeal from Ct. Sp. App. Md. dismissed for want of jurisdiction.


text:
    No. 88-836.
    Asam v. Shapiro 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. 88-838.
    Nieves v. Marina Gardens No. 1, Inc.
   Appeal from Ct. App. Cal., 1st App. 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. 88-5910.
    Tallman v. Kelley.
   Appeal from C. A. 8th 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. 88-5959.
    Williams v. Planned Parenthood Association of the Atlanta Area, Inc., 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. 88-5816.
    Frigard v. Regents of the University of California et al.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question.


text:
    No. 87-42.
    Clift v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Reed v. United Transportation Union, ante, p. 319.


text:
    No. 87-1456.
    International Union of Operating Engineers Local 660 v. Hester et al.
   C. A. 11th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Reed v. United Transportation Union, ante, p. 319.


text:
    No. 88-349.
    Federal Labor Relations Authority v. United States Department of Agriculture et al.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the “routine uses” published at 53 Fed. Reg. 39629 (1988) (Department of Agriculture) and 53 Fed. Reg. 44513 (1988) (Defense Mapping Agency).


text:
    No. 88-5938.
    Sanders v. Clarke, Warden, et al.
   C. A. 8th Cir. Motion of petitioner for leave to proceed in foma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Penson v. Ohio, ante, p. 75.


text:
    No. A-471.
    Darlington v. United States.
   Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-542 (88-6166).
    Allridge v. Texas.
   Application for further stay of issuance of the mandate of the Court of Criminal Appeals of Texas, presented to Justice White, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall would grant the application.


text:
    No. D-752.
    In re Disbarment of Albin.
   It is ordered that Perry Sanford Albin, of Newman, 111., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-753.
    In re Disbarment of Reaves.
   It is ordered that Frank Reaves, -Jr., of Lexington, Ky., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-754.
    In re Disbarment of Hartman.
   It is ordered that Richard Hartman, of Greenwich, Conn., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-755.
    In re Disbarment of McKay.
   It is ordered that Ronald J. McKay, of McKeesport, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-756.
    In re Disbarment of McClurkin.
   It is ordered that Patrick Clark McClurkin, of Chicago, 111., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-757.
    In re Disbarment of Sacco.
   It is ordered that Anthony Joseph Sacco, of Timonium, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-758.
    In re Disbarment of Silverman.
   It is ordered that Mark A. Silverman, of Selden, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-759.
    In re Disbarment of Hartmann.
   It is ordered that Robert Thomas Hartmann, of Middletown, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 87-6571.
    Graham v. Connor et al.
   C. A. 4th Cir. [Certiorari granted, ante, p. 816.] Motion of respondents and North Carolina to permit North Carolina to participate in oral argument as amicus curiae and for divided argument denied.


text:
    No. 88-293.
    Community for Creative Non-Violence et al. v. Reid.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 940.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 88-305.
    South Carolina v. Gathers.
   Sup. Ct. S. C. [Certiorari granted, ante, p. 888.] Motion of Center for Civil Rights et al. for leave to file a brief as amici curiae granted.


text:
    No. 88-357.
    Maleng, King County Prosecuting Attorney, et al. v. Cook.
   C. A. 9th Cir. [Certiorari granted, ante, p. 941.] Motion of William L. Williams, Esq., to permit John M. Jones, Esq., to present oral argument pro hac vice denied.


text:
    No. 88-396.
    Colonial American Life Insurance Co. v. Commissioner of Internal Revenue.
   C. A. 5th Cir. [Certiorari granted, ante, p. 980.] Motion of petitioner to dispense with printing the joint appendix granted.


text:
    No. 88-616.
    Bowen, Secretary of Health and Human Services v. Hudson.
   C. A. 11th Cir. [Certiorari granted, ante, p. 980.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 88-688.
    Peat Marwick Main & Co. v. Superior Court of California, County of Contra Costa, et al.
   Ct. App. Cal., 1st App. Dist. Joint motion of the parties to defer consideration of the petition for writ of certiorari granted.


text:
    No. 88-5906.
    Kokkonen v. Democratic National Committee Chairman et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until February 7, 1989, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Black-mun,

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. 88-5994.
    Vamos v. United States.
   C. A. 2d Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until February 7, 1989, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

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


text:
    No. 88-6062.
    Wrenn v. Bowen, Secretary of Health and Human Services.
   C. A. 2d Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until February 7, 1989, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 88-6142.
    In re Griffin.
   Petition for writ of habeas corpus denied.


text:
    No. 88-608.
    Independent Federation of Flight Attendants v. Zipes et al.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 88-472.
    Biberfeld et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-491.
    Citizens for John W. Moore Party et al. v. Board of Election Commissioners of the City of Chicago et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-530.
    Saldana v. New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-532.
    Asher v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-653.
    Wells et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 88-654.
    Joshi v. Florida State University Health Center et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-703.
    Celotex Corp. et al. v. Smith Land & Improvement Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-730.
    No. 88-932.
    Forest Hills Early Learning Center, Inc., et al. v. Jackson, Director, Department of Social Services of Virginia, et al.; and Jackson, Director, Department of Social Services of Virginia, et al. v. Forest Hills Early Learning Center, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-758.
    McDowell v. Dynamics Corporation of America.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-812.
    Hernandez v. Dianella Shipping Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-815.
    Central Columbia School District et al. v. Polk et ux.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-818.
    Mirabile et al. v. Wright et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-819.
    Elder et al. v. California.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 88-823.
    Pitts v. Turner & Boisseau, Chartered, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-825.
    Liggett Group, Inc., et al. v. Public Citizen et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 88-826.
    Kelsey et al. v. Muskin Inc. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-829.
    King et ux. v. Hilton-Davis, aka Hilton-Davis Chemical Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-832.
    Warren v. Connecticut.
   App. Ct. Conn. Certiorari denied.


text:
    No. 88-837.
    Mulvehill v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 88-842.
    Winstead et al. v. Indiana Insurance Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-864.
    Stout et ux. v. A. M. Sunrise Construction Co., Inc., et al.
   Ct. App. Ind. Certiorari denied.


text:
    No. 88-894.
    Reardon et al. v. Miller, Judge, Superior Court of New Jersey, Chancery Division, Camden County, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-908.
    Turks v. United States Postal Service.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 88-944.
    Barrow v. Harrison et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-951.
    Willner v. University of Kansas; and Willner v. Budig et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-959.
    Rios v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-969.
    Lombardo v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-973.
    Southern Indiana Gas & Electric Co. v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-996.
    Fenn v. Connecticut.
   App. Ct. Conn. Certiorari denied.


text:
    No. 88-5180.
    Plazinich v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-5421.
    Newton v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-5486.
    Anderson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-5557.
    Anglin v. Newsome, Superintendent, Georgia State Prison, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5561.
    Gilmore v. Director, Office of Workers’ Compensation Programs, United States Department of Labor.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 88-5629.
    Andrews v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5639.
    Armas v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-5745.
    Slabaugh v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-5883.
    Doud v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 88-5889.
    Maddux v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 88-5891.
    Rayborn v. Scully, Superintendent, Green Haven Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-5893.
    Golden v. Golden.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 88-5901.
    Lee v. Dutton, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-5902.
    Jenkins v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 88-5912.
    Roden v. Moore et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-5931.
    Kendall v. Williams, Warden.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 88-5933.
    Lamberth v. Muncy, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-5934.
    Feagin v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-5936.
    Davis v. City of Tucson.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-5940.
    McCabe v. Sandness.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-5941.
    Stubblefield v. Wilkenson et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-5942.
    Robertson v. City of Eunice, New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 88-5945.
    Simanonok v. Randle et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5946.
    Pease v. Montana.
   Sup. Ct. Mont. Certiorari denied.


text:
    No. 88-5950.
    Brennan v. Brennan et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-5967.
    McDonald v. Sullivan, Warden.
   C. A. l'Oth Cir. Certiorari denied.


text:
    No. 88-5991.
    Forbes v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-5997.
    Wakefield v. Beyer et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6023.
    Roberson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-6024.
    Turner v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6039.
    Oakey v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-6069.
    Vattle v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-6070.
    No. 88-6088.
    Willoughby v. United States; and Prioleau v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-6076.
    Gilliard v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 88-6083.
    Crum v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6094.
    Fraley v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-6097.
    Vasquez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 87-1914.
    Arn, Superintendent, Ohio Reformatory for Women v. Green.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 88-834.
    Connecticut v. Plourde.
   Sup. Ct. Conn. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 88-914.
    California v. Radke.
   Ct. App. Cal., 4th App. Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 87-6895.
    No. 88-5723.
    No. 88-5733.
    No. 88-5868.
    No. 88-5881.
    No. 88-5899.
    No. 88-5908.
    No. 88-5924.
    Gardner v. Texas. Wright v. Tennessee. Lucky v. California. Belmontes v. California. Bundy v. Dugger, Secretary, Florida Department of Corrections. Davis v. Ohio. Robbins v. California. Babbitt v. California.
   Ct. Crim. App. Tex.;

Sup. Ct. Tenn.;

Sup. Ct. Cal.;

Sup. Ct. Cal.;

C. A. 11th Cir.;

Sup. Ct. Ohio;

Sup. Ct. Cal.; and

Sup. Ct. Cal. 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. 88-639.
    Parungao v. Goerg, as Trustee in Bankruptcy for the Estate of Kaussen.
   C. A. 11th Cir. Motion of Bruno M. Kubler for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 88-811.
    Business Computer Corp. et al. v. U. S. Robotics, Inc., et al.
   C. A. Fed. Cir. Motion of respondent U. S. Robotics, Inc., for attorney’s fees and costs denied. Certiorari denied.


text:
    No. 88-824.
    Coleman v. United States.
   Ct. Mil. App. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 88-941.
    Crawford Painting & Drywall Co. v. J. W. Bateson, Inc.
   C. A. 5th Cir. Motion of Associated Specialty Contractors, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 88-609.
    No. 88-5125.
    No. 88-5230.
    Polyak v. Buford Evans & Sons, Tripati v. Henman, Warden, Caldwell v. Bureau of Federal Prisons,
   ante, p. 962;

ante, p. 982; and

ante, p. 895. Petitions for rehearing denied.


text:
    January 23, 1989
    No. 87-1613.
    Public Service Company of New Hampshire v. New Hampshire.
   Appeal from Sup. Ct. N. H. Motions of Official Committee of Equity Security Holders of Public Service Company of New Hampshire and Official Committee of Unsecured Creditors of Public Service Company of New Hampshire for leave to file briefs as amici curiae granted. Appeal dismissed for want of properly presented federal question.


text:
    No. 88-130.
    Western Union Corp. v. Indiana Department of Revenue.
   Appeal from Ct. App. Ind. dismissed for want of substantial federal question.


text:
    No. 88-898.
    Cohen et al. v. Pennsylvania.
   Appeal from Super. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 88-893.
    Walker et al. v. Valley National Bank of Des Moines, Iowa, Administrator of the Estate of Walker, et al.
   Appeal from Ct. App. Iowa dismissed for want of jurisdiction.


text:
    No. 88-5054.
    Sullivan v. Sullivan.
   Appeal from Sup. Ct. Tex. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 88-6040.
    McCabe v. Dias et al.
   Appeal from Ct. App. Cal., 1st App. 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. 87-1384.
    Thomas v. Shipka.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Owens v. Okure, ante, p. 235.


text:
    No. 88-550.
    United States v. Chavez-Sanchez.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Mistretta v. United States, ante, p. 361.


text:
    No.---.
    Calpin v. Carlson et al.
   Motion to direct the Clerk to file petition for writ of certiorari out of time denied.


text:
    No.---.
    Kirkpatrick v. California.
   Motion for leave to proceed informa pauperis without an affidavit of indigency executed by petitioner granted.


text:
    No. A-568 (88-287).
    Times Mirror Co. et al. v. Doe.
   Ct. App. Cal., 4th App. Dist. Application to stay proceedings in the Superior Court of California, County of San Diego, presented to Justice O’Connor, and by her referred to the Court, denied. Justice Stevens took no part in the consideration or decision of this application.


author: Justice Brennan,

text:
    No. A-580;
    No. A-585;
    No. A-586.
    Bundy v. Dugger, Secretary, Florida Department of Corrections; Bundy v. Florida; and Bundy v. Dugger, Secretary, Florida Department of Corrections.
   Applications for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Justice Blackmun would grant the applications for stay in Nos. A-580 and A-586. Justice Stevens would grant the application for stay in No. A-580.

Justice Brennan,

with whom

Justice Marshall 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, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant the applications for stay of execution.

Even were I not of the foregoing view, I would grant application Nos. A-580 and A-586 pending the filing of a petition for certiorari, which I would hold for our decision in Dugger v. Adams, No. 87-121, cert. granted, 485 U. S. 933 (1988).

In Caldwell v. Mississippi, 472 U. S. 320, 328-329 (1985), we held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Adams and numerous cases that have been held for it raise the question whether the rationale of Caldwell applies to statements made by prosecutors and judges to the effect that the jury’s sentence is merely advisory and that the judge remains responsible for the sentence ultimately imposed. See, e. g., Preston v. Florida, No. A-216; Ford v. Dugger, No. 88-5582; Spisak v. Ohio, No. 88-5169; Grossman v. Florida, No. 88-5136; Harich v. Dugger, No. 88-5216. In Florida cases, the notion that the jury’s sentence is merely “advisory” appears to be at odds with that State’s settled law that the jury determination must be given “great weight” and may be overturned by the judge only when the facts are “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975).

In the present action, the jurors were repeatedly informed throughout voir dire and the sentencing instructions that their role was to “render an advisory opinion only, just that, an opinion,” or “just a sort of recommendation, so to speak, from the jury as to what penalty ought to be imposed,” and that “[t]he law places the awesome burden upon the judge to decide what final disposition is made or penalty is imposed in a capital case.” Unlike the situation we faced recently in Daugherty v. Florida, ante, p. 936, these were not merely two isolated comments of the prosecutor, but rather repeated instructions by both the prosecutor and the trial judge. We have not yet decided that such comments amount to a violation of Caldwell v. Mississippi, but we have held several other cases — whose facts are virtually identical to these — pending our decision in Dugger v. Adams. I see no principled basis for refusing to do so here.

Nor should there be any procedural objection to such a course. In No. A-580, at least, the State has failed to raise any objection, either on the grounds of exhaustion or abuse of the writ. Because the State made no procedural objections in either the District Court or the Court of Appeals, any such claims should be considered waived. Cf. Jenkins v. Anderson, 447 U. S. 231, 234, n. 1 (1980). The District Court’s boilerplate sentence holding all four of the claims applicant Bundy presented to it to constitute abuse of the writ should not change that conclusion, especially as the State subsequently failed to raise that defense in this Court.


text:
    No. D-740.
    In re Disbarment of Smith.
   Disbarment entered. [For earlier order herein, see ante, p. 938.]


text:
    No. D-741.
    In re Disbarment of Weinberg.
   Disbarment entered. [For earlier order herein, see ante, p. 952.]


text:
    No. D-760.
    In re Disbarment of Wallis.
   It is ordered that Grace M. Wallis, of Mill Bay, British Columbia, Canada, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court.


text:
    No. D-761.
    In re Disbarment of Graham.
   It is ordered that Frederick Townley Graham, of San Rafael, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-762.
    In re Disbarment of Kotzker.
   It is ordered that Michael Steve,n Kotzker, of Los Angeles, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-763.
    In re Disbarment of Gridley.
   It is ordered that John N. Gridley III, of Sioux Falls, S. D., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-764.
    In re Disbarment of Smith.
   It is ordered that Thomas Pryor Smith, of Detroit, Mich., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-765.
    In re Disbarment of Douglas.
   It is ordered that Randall R. Douglas, of Phoenix, Ariz., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 87-1207.
    Will v. Michigan Department of State Police et al.
   Sup. Ct. Mich. [Certiorari granted, 485 U. S. 1005.] Motion of respondents for leave to file a supplemental brief after argument granted.


text:
    No. 87-1661.
    ASARCO Inc. et al. v. Kadish et al.
   Sup. Ct. Ariz. [Certiorari granted, ante, p. 887.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Justice O’Connor took no part in the consideration or decision of this motion.


text:
    No. 88-305.
    South Carolina v. Gathers.
   Sup. Ct. S. C. [Certiorari granted, ante, p. 888.] Motion of Washington Legal Foundation et al. for leave to file a brief as amici curiae granted.


text:
    No. 88-449.
    No. 88-513.
    Healy et al. v. The Beer Institute et al.; and Wine & Spirits Wholesalers of Connecticut, Inc. v. The Beer Institute et al.
   C. A. 2d Cir. [Probable jurisdiction noted, ante, p. 954.] Motion of appellants for divided argument denied.


text:
    No. 88-782.
    United States Department of Justice v. Tax Analysts.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 1003.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 88-5977.
    Wrenn v. Thornburgh, Attorney General of the United States, et al.
   C. A. 2d Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until February 13, 1989, within which to pay the docketing fee required by Rule 45(a) and to. submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

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


text:
    No. 88-6204.
    Branion v. Gramly, Warden.
   C. A. 7th Cir. Motion of petitioner to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 88-309.
    Wyoming v. United States et al.
   Sup. Ct. Wyo. Certiorari granted limited to Question 2 presented by the petition.


text:
    No. 87-7205.
    Berry v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-7209.
    Rob J. v. Grant et al.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 88-157.
    Nationwide Mutual Insurance Co. v. Clay.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 88-232.
    Grossman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-519.
    Ho Fat Seto, dba Ho Fat of California v. McLaughlin, Secretary of Labor.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-567.
    Monaco v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-629.
    G & W Laboratories, Inc. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-631.
    Cox Enterprises, Inc., dba Waco Tribune Herald, et al. v. Guinn.
   Ct. App. Tex., 14th Dist. Certiorari denied.


text:
    No. 88-676.
    Ikard, dba Ikard Manufacturing Co. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-702.
    Knox v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-710.
    Orkin Exterminating Co., Inc. v. Federal Trade Commission.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-712.
    Shirley et al. v. Schraer, Postmaster, United States Postal Service, San Antonio Division, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-713.
    Action Automotive, Inc. v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-731.
    Western Pennsylvania Teamsters & Employers Pension Fund et al. v. Carl Colteryahn Dairy, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-743.
    Wilson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-744.
    Turner v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-745.
    New York v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-756.
    International Longshoremen’s Assn., AFL-CIO, et al. v. Federal Maritime Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 88-760.
    Keystone Lamp Manufacturing Co. v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-772.
    Landreth, a Minor, by and Through her Guardian ad Litem, Ore v. United States.
   C. A. 9th Cir.

Certiorari denied.


text:
    No. 88-814.
    Smith v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 88-859.
    Friedman v. Ganassi et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-863.
    Friedgood v. Peters Publishing Co.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 88-871.
    Hughes v. Halifax County School Board et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-872.
    Broida v. Tendrich.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-876.
    Vail Village Inn Associates, dba Village Inn Plaza, et al. v. Giralt, aka Benet.
   Ct. App. Colo. Certiorari denied.


text:
    No. 88-884.
    Kneeland et al. v. National Collegiate Athletic Assn. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-885.
    Firestone Tire & Rubber Co. v. Richard.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-901.
    Adams v. Vandemark et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-904.
    Johnson Moving & Storage Co. v. Daniels.
   Ct. App. Colo. Certiorari denied.


text:
    No. 88-906.
    Zosky v. Boyer et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-909.
    Lockheed California Co. et al. v. Birtell.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 88-910.
    Faux-Burhans v. Board of County Commissioners of Frederick County, Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-912.
    Redgrave v. Boston Symphony Orchestra, Inc.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 88-915.
    Teamsters Local 315 v. Union Oil Company of California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-918.
    No. 88-934.
    Duck, Trustee of the Bankruptcy Estate of Jewell, et al. v. Bank of America, N. T. & S. A.; and Kruse v. Bank of America, N. T. & S. A.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 88-949.
    Post v. Regan et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-978.
    D. C. Transit System, Inc. v. Washington Metropolitan Area Transit Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 88-984.
    Alvarez v. Trans World Airlines, Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-1071.
    Geter, Administratrix of the Estate of Geter v. Wille, Sheriff of Palm Beach County, Florida, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5041.
    Landes v. Department of State et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-5435.
    Moore v. DuBois, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-5598.
    Clark et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-5617.
    Wadley v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 88-5667.
    Harvey v. General Dynamics Corp./Electric Boat et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-5695.
    Simmons v. Bowen, Secretary of Health and Human Services.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 88-5722.
    Ruiz v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 88-5742.
    Yanez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-5821.
    No. 88-5842.
    Cox v. United States; and Carter v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-5866.
    Ezeodo v. United States Immigration and Naturalization Service.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-5918.
    Ruffin v. Dugger, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5947.
    Squires v. Fleming, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-5952.
    Bilder v. Ohio.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 88-5954.
    Lis v. Mamott et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 88-5956.
    Williams v. Arn, Superintendent, Ohio State Reformatory for Women.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-5960.
    Dodrill v. Tate, Superintendent, Chillicothe Correctional Institute.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-5962.
    Grant v. Kerby, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 88-5963.
    Jimenez v. California; and In re Jimenez.
   Ct. App. Cal., 6th App. Dist. Certiorari denied.


text:
    No. 88-5969.
    Campbell v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 88-5972.
    Baggett v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5974.
    Jankowski v. Braumann.
   State Court of Fulton County, Ga. Certiorari denied.


text:
    No. 88-5975.
    Brown v. Rhyne Floral Supply Manufacturing Co., Inc., et al.
   Ct. App. N. C. Certiorari denied.


text:
    No. 88-5976.
    Szarewicz v. Zimmerman, Attorney General of Pennsylvania.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-5978.
    Portee v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5979.
    Shane v. Los Angeles Police Department.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 88-5983.
    Prunty v. Internal Revenue Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-5984.
    Rodriguez-Suarez et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-5987.
    McConico v. Robinson.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 88-5989.
    Owens v. Morris, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-5992.
    Church v. Thompson et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-6003.
    Perotti v. Seiter et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6004.
    Paster v. Curtiss Wright Corp. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 88-6010.
    Jenkins v. Board of Governors of the Federal Reserve System et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 88-6013.
    Shells v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied..


text:
    No. 88-6014.
    Spears v. Thigpen et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-6018.
    Curry v. Clerk of Court, Gloucester County Circuit, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-6019.
    Rivera v. Illinois.
   App. Ct. 111., 3d Dist. Certiorari denied.


text:
    No. 88-6020.
    Wright v. Bank of Louisville.
   Ct. App. Ind. Certiorari denied.


text:
    No. 88-6029.
    Jones v. Illinois.
   App. Ct. 111., 1st Dist. Certiorari denied.


text:
    No. 88-6032.
    Atkins v. Prelesnik, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 88-6033.
    DiPrizio v. Massachusetts.
   App. Ct. Mass. Certiorari denied.


text:
    No. 88-6036.
    Bowie v. Borg, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 88-6041.
    Segura v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 88-6044.
    Rogers v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 88-6045.
    Pacheco v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 88-533.
    No. 88-549.
    Donnelly, Personal Representative of the Estate of Donnelly v. Eklutna, Inc., et al.; and Lee v. Eklutna, Inc., et al.
   C. A. 9th Cir.Motions of Alan Abramson et al. for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 88-568.
    Dugger, Secretary, Florida Department of Corrections, et al. v. Ruffin.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 88-821.
    Vermont v. Brunell.
   Sup. Ct. Vt. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 88-899.
    Lane, Director, Illinois Department of Corrections, et al. v. Williams et al.
   C. A: 7th Cir. Certiorari denied. Justice White took no part in the consideration or decision of this petition.


author: Justice Brennan, Justice Marshall,

text:
    No. 88-5746.
    Hamilton v. California.
   Sup. Ct. Cal. Certiorari denied.

Justice Brennan,

dissenting.

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

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), I would grant certiorari and vacate the death sentence in this case. Even if I did not hold this view, however, I would grant the petition to resolve the question whether a trial court may instruct a penalty phase jury that, “if you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” I have grave doubts that such an instruction permits the individualized and reliable sentencing determination that the Constitution requires in capital cases, particularly where, as here, it is coupled with prosecutorial remarks stressing the limits on jurors’ discretion.

I

Petitioner Bernard Lee Hamilton was charged with first-degree murder, kidnaping, robbery, and burglary. During voir dire, the prosecutor told 11 of the 12 persons who ultimately served as jurors that the law required them to impose a death sentence if they found that the aggravating factors outweighed the mitigating factors. All 11 persons stated that they understood the law as explained by the prosecutor and promised to follow it.

Hamilton was convicted of all charges. He was found to have committed the murder in. the course of robbery, kidnaping, and burglary. These special circumstance findings made him eligible for the death penalty. During closing argument in the penalty phase, the prosecutor emphasized the limits on the jurors’ discretion.

“Now remember at the time of the voir dire you all promised that in the event that this case went to a penalty phase and the aggravation evidence outweighed the mitigation evidence, you would impose the death penalty. Well, that is the case here, and now is the time. You should not let sympathy for the defendant or his family affect your deliberations.” Record 4642.

The trial judge echoed the prosecutor’s remarks when he instructed the jury: “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” Id., at 4669. This instruction mirrors Cal. Penal Code Ann. §190.3 (West 1988), which provides that, “the trier of fact . . . shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.” The jury sentenced Hamilton to death.

The California Supreme Court affirmed Hamilton’s conviction but set aside the special circumstance findings and reversed the death sentence. 41 Cal. 3d 408, 710 P. 2d 981 (1985). This Court granted certiorari, 478 U. S. 1017 (1986), vacated, and remanded for reconsideration in light of Rose v. Clark, 478 U. S. 570 (1986). On remand, the California Supreme Court affirmed both the conviction and the sentence. 45 Cal. 3d 351, 753 P. 2d 1109 (1988). It noted that it had upheld the constitutionality of § 190.3 in People v. Brown, 40 Cal. 3d 512, 726 P. 2d 516 (1985), even though Brown had recognized that “when delivered in an instruction [§ 190.3’s] mandatory sentencing language might mislead jurors as to the scope of their sentencing discretion and responsibility,” 45 Cal. 3d, at 370, 753 P. 2d, at 1122. The court further noted that in Brown it had barred the future use of the “bare words of the statute,” 45 Cal. 3d, at 371, 753 P. 2d, at 1122, and had stated that, with respect to cases in which the bare words had been employed, it would engage in a case-by-case determination whether the jurors may have been misled as to their sentencing discretion.

Applying Brown to the instant case, the California Supreme Court concluded that the instruction did not prejudice Hamilton. It pointed to closing remarks by both the prosecutor and defense counsel which emphasized the jurors’ responsibility for the sentencing decision. In addition, the court noted that the trial judge had instructed the jurors that they should weigh rather than count the aggravating and mitigating factors, and that they had to be “convinced beyond a reasonable doubt that the totality of the aggravating circumstances outweigh[s] the totality of the mitigating circumstances” in order to impose a death sentence. 45 Cal. 3d, at 371, 753 P. 2d, at 1122. The court concluded that, given the statements, the jurors could not have been misled by the mandatory language contained in the instruction.

II

Because the death penalty is qualitatively different from any other sentence, this Court requires that sentencing in capital cases be particularized with regard to the individual and the crime charged. See Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). Toward that end, we have struck down state laws and instructions that prevent a jury from considering any mitigating aspect of a capital defendant’s character or background. See, e. g., Hitchcock v. Dugger, 481 U. S. 393 (1987); Lockett v. Ohio, supra. We have also held that mandatory death sentences are impermissible because they do not allow for consideration of particularized mitigating factors. See, e. g., Sumner v. Shuman, 483 U. S. 66 (1987) (invalidating mandatory death sentence for murder committed by a defendant who is already serving a life sentence); Roberts v. Louisiana, 431 U. S. 633 (1977) (per curiam) (invalidating mandatory death sentence for murder of a police officer).

The mandatory element of the California trial court’s instruction pursuant to § 190.3 runs counter to our demand for individualized consideration in capital cases. It establishes a fixed formula for the jury’s deliberations which severely circumscribes the jury’s discretion in sentencing. Indeed, the California Supreme Court has conceded in the instant case, in Brown, supra, and in People v. Myers, 43 Cal. 3d 250, 729 P. 2d 698 (1987), that a juror who finds that the aggravating evidence outweighs the mitigating evidence, but who believes that the death sentence is not appropriate, may reasonably understand such an instruction to require him to vote for a sentence of death.

Here, the state court found that the instruction’s constitutional defect was cured by other instructions that the jurors must weigh aggravating and mitigating factors, and that they must be convinced beyond a reasonable doubt that the aggravating factors prevailed in order to impose the death penalty. Neither of these instructions, however, informed the jury that it retained discretion to impose a life sentence after it had determined that the aggravating factors outweighed the mitigating ones. At no time, furthermore, did the prosecutor or defense counsel suggest that the jurors had discretion in sentencing once they had decided that the aggravating factors outweighed the mitigating ones. Indeed, the prosecutor expressly reminded the jurors that they had promised during voir dire that they would automatically impose a death sentence if they found that the evidence in aggravation outweighed that in mitigation. In light of the foregoing, it is impossible to know whether Hamilton was sentenced to death because the jurors thought they had no alternative.

The instruction given in this case mandated a death sentence upon a finding that the aggravating circumstances outweighed the mitigating circumstances. Because the instruction does not comport with the individualized sentencing determination required in capital cases by the Eighth and Fourteenth Amendments, I would grant the petition for certiorari.

      Record 587, 650, 670, 740, 750, 879, 1200-1201, 1247, 1435, 1477, 1518. The prosecutor’s exchange with Sandra Sheffield is illustrative. The prosecutor stated:
      “Q. Tf [the trial court] would instruct you that the evidence in aggravation outweighed that in mitigation, there is no way around it, you’d have to bring back a verdict of death. Would you follow that instruction as well?'
      “A. Yes.” Id., at 750 (emphasis added).


text:
    No. 88-5770.
    No. 88-5801.
    No. 88-5861.
    No. 88-5864.
    No. 88-5957.
    No. 88-5964.
    No. 88-5981.
    Presnell v. Kemp, Warden, et al. Jackson v. Florida. Guzman v. California. Hooks v. Alabama. Grant v. California. Ainsworth v. California. Williams v. California. Rich v. California. Daniels v. Alabama. Fairchild v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 11th Cir.;

Sup. Ct. Fla.;

Sup. Ct. Cal;

Sup. Ct. Ala.;

Sup. Ct. Cal.;

Sup. Ct. Cal.;

Sup. Ct. Cal.;

No. 88-5985.

No. 88-6015.

No. 88-6017.

Sup. Ct. Cal.;

Sup. Ct. Ala.; and

C. A. 8th 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 sentences in these cases.


text:
    No. D-724.
    No. 86-1904.
    No. 87-7201.
    No. 88-464.
    No. 88-5318.
    No. 88-5353.
    No. 88-5496.
    No. 88-5524.
    No. 88-5614.
    No. 88-5630.
    No. 88-5660.
    No. 88-5693.
    No. 88-5747.
    No. 88-640.
    No. 88-5558.
    In re Disbarment of Storts, Arizona v. Youngblood, Foley v. Secretary of the Army, Railway Labor Executives’ Assn. et al. v. Chicago & North Western Transportation Co. et al., In re Youngs-Settle, Bentley v. United States, Youngs v. Lawyers Surety Corp. et al., In re Kerpa, aka Lawson, Luther v. Pennsylvania, Hamblin v. Ohio, Tedders v. Lord et al., McColpin v. Brooks, Knowles v. United States, Empire Blue Cross & Blue Shield et al. v. United States, Flowers v. Warden, Connecticut Correctional Institution, Somers, Connecticut,
   ante, p. 963;

ante, p. 51;

ante, p. 980;

ante, p. 966;

ante, p. 923;

ante, p. 970;

ante, p. 945;

ante, p. 964;

ante, p. 971;

ante, p. 975;

ante, p. 962;

ante, p. 984; and

ante, p. 974. Petitions for rehearing denied.

ante, p. 993; and

ante, p. 995. Petitions for rehearing denied.

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


text:
    January 26, 1989
    No. 88-6138 (A-583).
    Julius v. Alabama et al.
   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 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:
    February 3, 1989
    No. A-603.
    Dugger, Secretary, Florida Department of Corrections v. Clark.
   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 Court of Appeals for the Eleventh Circuit, presented to Justice Kennedy, and by him referred to the Court, denied.


text:
    BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICES v. BOUKNIGHT
    No. A-494.
    Decided December 21, 1988
   Chief Justice Rehnquist, Circuit Justice.

The Baltimore City Department of Social Services (DSS) has asked me to stay the judgment of the Court of Appeals of Maryland in this case, In re Maurice, No. 50 (Dec. 19, 1988). The Court of Appeals held that Jacqueline Bouknight’s confinement for civil contempt violated the privilege against self-incrimination secured to her by the Fifth Amendment to the United States Constitution. Bouknight is presently incarcerated until she either presents her child, Maurice M., to the DSS or tells where the child can be found. There is no indication that she is unable to comply in one way or the other.

When Maurice was three months old, he was admitted for treatment of a fractured left leg. X rays disclosed that the child had previously suffered multiple fractures of various other major bones. Nurses and others observing Maurice’s mother at the hospital reported her unusual conduct with the child, including shaking him and dropping him into his crib when he was in a cast. Because of the suspicious nature of Maurice’s injuries at such a young age, DSS obtained authorization to place the child in foster care. It then filed a petition in the Circuit Court for Baltimore City seeking a determination that Maurice was a “child in need of assistance” under Maryland law, Md. Cts. & Jud. Proc. Code. Ann. § 3~801(e) et seq. (1984 and Supp. 1988). Maurice was found to be such.

By agreement of the parties, Bouknight received custody of Maurice under an order of protective supervision specifying that she accept parenting assistance, attend classes, and refrain from corporal punishment of the child. Some months later, DSS advised the court that Bouknight had ceased cooperating with it, and that she had refused to produce the child or tell DSS where he was. DSS feared for Maurice’s safety because Bouknight was not complying with the court order, because of her history of child abuse, because of her known use of drugs and current threats to kill herself, and because Maurice had not been seen for nearly a month and could not be located by DSS or the police.

Bouknight did not attend the hearing set to consider these representations, but was later arrested and ordered to disclose the whereabouts of Maurice. After giving a false answer, she was jailed until she purged herself of contempt by either producing Maurice or revealing his location.

The Court of Appeals of Maryland granted certiorari and heard the case without decision by the state intermediate appellate court. It found that the terms of Bouknight’s confinement violated her privilege against compulsory self-incrimination. Noting, that some acts of production have been found testimonial, see United States v. Doe, 465 U. S. 605 (1984), it concluded that the act of producing Maurice would necessarily admit a measure of continuing control over the child which might be relevant in a subsequent criminal prosecution. That risk, it thought, was so substantial that it could not be outweighed by any governmental interest in-finding Maurice. Two judges dissented. They argued that there were no testimonial components to compliance with the civil contempt order; that if there were, they were clearly outweighed by the public interest in protecting children from abuse; and that Bouknight had waived any Fifth Amendment privilege against disclosing Maurice’s whereabouts when she accepted conditional custody of the child from the city.

In my opinion DSS meets the requirements we have established for the issuance of a stay. See Rostker v. Goldberg, 448 U. S. 1306 (1980) (Brennan, J., Circuit Justice); California v. Riegler, 449 U. S. 1319, 1321 (1981) (Rehnquist, J., Circuit Justice). First, the decision of the Court of Appeals of Maryland is unquestionably based on the United States Constitution. Second, I think the balance of equities favors the granting of a stay. There is undoubtedly a burden on Bouknight’s liberty caused by her confinement, but against it must be weighed a very real jeopardy to a child’s safety, well-being, and perhaps even his life. There is hard evidence in this case suggesting Bouknight has abused Maurice in the past and may well do so again. If she is permitted to go free, DSS may not have an alternative means of obtaining information about the child or of locating the child.

Finally, I conclude that it is likely that four Justices of this Court will vote to grant certiorari in this case, and that DSS has a fair prospect of persuading a majority of the Court that the decision of the Court of Appeals of Maryland was erroneous. Of the claims made in the application to me, I think two fit this category. The first is an important question about whether acts — such as the act of production of Maurice on the part of Bouknight — would constitute testimony for purposes of the Fifth Amendment. See United States v. Doe, supra; Fisher v. United States, 425 U. S. 391, 411-412 (1976); Schmerber v. California, 384 U. S. 757 (1966).

Second, and in my view equally as important, is whether even assuming there is a testimonial element in the act of surrendering Maurice, the Fifth Amendment privilege is available in this situation. In California v. Byers, 402 U. S. 424 (1971), we upheld a California law making it a crime to leave the scene of an automobile accident without giving one’s name and address. In that case we recognized that “[tjension between the State’s demand for disclosures and the protection of the right against self-incrimination” must “[i]nevitably... be resolved in terms of balancing the public need on the one hand, and the individual claim of constitutional protections on the other.” Id., at 427 (plurality opinion of Burger, C. J.). This plurality found it significant that the law “was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities,” id., at 430, and was not aimed at a “‘highly selective group inherently suspect of criminal activities.’” Ibid., quoting Albertson v. Subversive Activities Control Board, 382 U. S. 70, 79 (1965).

“Considering the noncriminal governmental purpose in securing the information, the necessity for self-reporting as a means of securing the information, and the nature of the disclosures involved, I cannot say that the purposes of the Fifth Amendment warrant imposition of a use restriction as a condition on the enforcement of this statute.” 402 U. S., at 458 (Harlan, J., concurring in judgment.)

In New York v. Quarles, 467 U. S. 649 (1984), we recognized a public safety exception to the usual Fifth Amendment rights afforded by Miranda v. Arizona, 384 U. S. 436 (1966), so that police could recover a firearm which otherwise would have remained in a public area. In the present case, a citation for civil contempt in order to obtain the production of a child such as Maurice, or knowledge about his whereabouts, is not essentially criminal in nature and aims primarily at securing the safety of the child. Protecting infants from child abuse seems to me to rank in order of social importance with the regulation and prevention of traffic accidents.

The DSS has offered to file a petition for certiorari within 35 days. The stay requested is therefore granted, pending consideration of a timely petition for certiorari and disposition of the same by the Court. If the petition is granted, the stay shall remain in effect until the Court disposes of the case or otherwise orders.


author: Justice Marshall, Circuit Justice.

text:
    JOHN DOE AGENCY et al. v. JOHN DOE CORP.
    No. A-552.
    Decided January 30, 1989
   Justice Marshall, Circuit Justice.

The Solicitor General requests that I issue a stay pending the disposition of the federal parties’ petition for certiorari to review the judgment of the United States Court of Appeals for the Second Circuit. The Second Circuit granted the request of John Doe Corporation (Corporation), a government contractor, for certain documents under the Freedom of Information Act, 5 U. S. C. §552 (1982 ed. and Supp. IV) (FOIA). The documents had been prepared during a 1978 audit by John Doe Agency (Agency) of certain costs incurred by the Corporation in connection with its performance of government contracts. Eight years later, the Corporation filed a request with the Agency under the FOIA for documents relating to this audit. The request came in the context of a grand jury investigation into possibly fraudulent activity by the Corporation in connection with its government contracts, an investigation in which these documents were believed to be relevant. 850 F. 2d 105, 106 (1988).

The Agency denied the request on November 18, 1986. It stated, apparently upon the advice of a federal prosecutor, that the documents were exempt from disclosure under Exemption 7 of the FOIA, which exempts from mandatory disclosure “records or information compiled for law enforcement purposes” to the extent disclosure gives rise to one or more specified harms. 5 U. S. C. § 552(b)(7) (1982 ed., Supp. IV). It proceeded to transfer the requested records to John Doe Government Agency (Government Agency), a federal law enforcement agency. The Corporation then filed a similar FOIA request with the Government Agency. 850 F. 2d, at 106-107.

After an administrative appeal failed, .the Corporation sought de novo review in the Federal District Court for the Eastern District of New York. The court ordered the Agency and the Government Agency to prepare a “Vaughn index” (after Vaughn v. Rosen, 157 U. S. App. D. C. 340, 484 F. 2d 820 (1973), cert. denied, 415 U. S. 977 (1974)) describing the documents, and to submit the index for an in camera inspection. After reviewing the index, the court ruled, without elaboration, that there was a “substantial risk” that disclosure of the documents or the Vaughn index would jeopardize the grand jury proceedings investigating the Corporation. The court therefore ruled that the Agency and the Government Agency were not required to turn over the documents to the Corporation. 850 F. 2d, at 107.

The Court of Appeals for the Second Circuit reversed. It held that, because the documents in question were prepared in routine audits and only later transferred to a law enforcement agency, they were not “compiled for law enforcement purposes” within the meaning of §552(b)(7). Id., at 106. The court’s mandate issued on November 28, 1988. On remand, the District Court ordered that the Vaughn index be disclosed, and the Court of Appeals refused to stay that order. The Solicitor General, on behalf of the Agency and the Government Agency, ha“s filed a petition for a writ of certiorari (No. 88-1083) seeking review of the Court of Appeals’ determination that the documents in question were not “compiled for law enforcement purposes.” The Solicitor General seeks a recall and stay, pending the disposition of the petition for a writ of certiorari, of the mandate of the Court of Appeals, and a stay of the District Court’s order on remand requiring disclosure of the Vaughn index.

My obligation as a Circuit Justice in considering a stay application under 28 U. S. C. § 2101(f) and this Court’s Rule 44 is “to determine whether four Justices would vote to grant certiorari, to balance the so-called ‘stay equities,’ and to give some consideration as to predicting the final outcome of the case in this Court.” Gregory-Portland Independent School Dist. v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers); see also Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers); Beame v. Friends of the Earth, 434 U. S. 1310, 1312-1313 (1977) (Marshall, J., in chambers). Evaluating these factors, I am convinced that the request for a stay should be granted.

First, the balance of the equities clearly weighs in favor of a stay. The District Court, having undertaken an in camera review of the Vaughn index and other documents, specifically found that disclosure of the Vaughn index and the documents posed a substantial risk of jeopardizing an important ongoing grand jury investigation. The Court of Appeals did not disturb this finding, basing its judgment for the Corporation instead on its determination that Exemption 7 mandated release of the documents. The Solicitor General further supports this interest by proffering an affidavit from an Assistant United States Attorney; the affidavit states that disclosure can reasonably be expected ta interfere with an ongoing law enforcement investigation by apprising the targets of that investigation of the nature of the grand jury’s inquiry and by facilitating hindrance of the investigation. The fact that disclosure would moot that part of the Court of Appeals’ decision requiring disclosure of the Vaughn index would also create an irreparable injury. See New York v. Kleppe, 429 U. S. 1307, 1310 (1976) (Marshall, J., in chambers) (“Perhaps the most compelling justification for a Circuit Justice to upset an interim decision by a court of appeals [is] to protect this Court’s power to entertain a petition for certiorari before or after the final judgment of the Court of Appeals”). Conversely, the Corporation’s interest in receiving this information immediately, while significant if the Corporation’s interpretation of the FOIA is correct, poses no threat of irreparable harm.

I also believe that there is a “reasonable probability” that four Justices will consider the Exemption 7 issue posed by this case sufficiently meritorious to grant certiorari, and that there is a “fair prospect” that a majority of the Court will conclude that the decision below was erroneous. Rostker, supra, at 1308 (Brennan, J., in chambers). The Courts of Appeals have widely differed in interpreting the meaning of the FOIA exemption for documents “compiled for law enforcement purposes.” Compare New England Medical Center Hospital v. NLRB, 548 F. 2d 377, 386 (CA1 1976); Gould, Inc. v. GSA, 688 F. Supp. 689, 699 (DC 1988); Fedders Corp. v. FTC, 494 F. Supp. 325, 328 (SDNY) (holding it is the context in which the documents in question are currently being used rather than the purpose for which they are created that is relevant in determining whether a record was “compiled for law enforcement purposes”), aff’d, 646 F. 2d 560 (CA2 1980), with John Doe Corp. v. John Doe Agency, 850 F. 2d 105, 109 (CA2 1988) (case below); Hatcher v. USPS, 556 F. Supp. 331 (DC 1982); Gregory v. FDIC, 470 F. Supp. 1329, 1333-1334 (DC 1979) (holding that record must originally have been compiled for law enforcement purposes to qualify under Exemption 7); see also Crowell & Moving v. Department of Defense, 703 F. Supp. 1004, 1009 (DC 1989) (reading of Exemption 7 in John Doe Corp. “comports with neither the plain language of the exemption nor the purpose underlying its enactment”).

In light of these divergent interpretations, I believe it likely that four Justices will vote to grant certiorari. In light of the plausibility of the arguments advanced in those cases adopting a broader view of Exemption 7’s compilation provision than that of the court below, there is also a “fair prospect” that a majority of the Court will vote to reverse. I therefore grant the requested stay of the enforcement of the Court of Appeals’ mandate and of the District Court’s disclosure order pending the disposition of the petition for a writ of certiorari in this case.

It is so ordered.


author: Justice O’Connor, Circuit Justice.

text:
    CALIFORNIA v. FREEMAN
    No. A-602.
    Decided February 1, 1989
   Justice O’Connor, Circuit Justice.

The State of California requests that, as Circuit Justice, I stay the enforcement of the judgment of the Supreme Court of California pursuant to 28 U. S. C. § 2101(f) pending the disposition of a petition for certiorari (No. 88-1054) to review that judgment. Because I think it unlikely that four Justices would vote to grant certiorari, see Hicks v. Feiock, 479 U. S. 1305, 1306 (1986) (O’Connor, J., in chambers), I deny the application for issuance of a stay.

In its petition for certiorari, California seeks review of the State Supreme Court’s judgment reversing the conviction of respondent Freeman for pandering under Cal. Penal Code Ann. §266i (West 1988). 46 Cal. 3d 419, 758 P. 2d 1128 (1988). Freeman is a producer and director of pornographic films who hired and paid adults to perform sexual acts before his film cameras. In 1983, Freeman was arrested and charged with five counts of pandering based on the hiring of five such performers. He was not charged with violation of any of California’s obscenity laws. Freeman was tried before a jury and convicted on all five counts of pandering; the State Court of Appeal affirmed the judgment of conviction. 198 Cal. App. 3d 292, 233 Cal. Rptr. 510 (1987).

On discretionary review, the California Supreme Court first considered the relevant statutory language of the State Penal Code. In relevant part, § 266i of the Penal Code provides that a person is guilty of felonious pandering if that person “procure[s] another person for the purpose of prostitution . . . .” Prostitution, in turn, is defined in § 647(b) of the Penal Code as “any lewd act between persons for money or other consideration.” Finally, “‘for a “lewd” or “dissolute” act to constitute “prostitution,” the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute. ’” 46 Cal. 3d, at 424, 758 P. 2d, at 1130 (emphasis in original), quoting People v. Hill, 103 Cal. App. 3d 525, 534-535, 163 Cal. Rptr. 99, 105 (1980).

Interpreting these definitions of terms relevant to the state pandering statute, the State Supreme Court held that “in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification.” 46 Cal. 3d, at 424, 758 P. 2d, at 1131 (emphasis in original). Applying this principle to Freeman, the court characterized the payments made to the performers as “acting fees” and held that “there is no evidence that [Freeman] paid the acting fees for the purposes of sexual arousal or gratification, his own or the actors’.” Id., at 424-425, 758 P. 2d, at 1131. Thus, the court held, “[Freeman] did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution.” Ibid. In the succeeding section of its opinion, the California Supreme Court went on to observe that “even if [Freeman’s] conduct could somehow be found to come within the definition of ‘prostitution’ literally, the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values.” Ibid.

California, in its petition for certiorari, would have us review this First Amendment holding of the State Supreme Court. I recognize that the State has a strong interest in controlling prostitution within its jurisdiction and, at some point, it must certainly be true that otherwise illegal conduct is not made legal by being filmed. I do not, however, think it likely that four Justices would vote to grant the petition because in my view this Court lacks jurisdiction to hear the petition. It appears “clear from the face of the [California Supreme Court’s] opinion,” Michigan v. Long, 463 U. S. 1032, 1041 (1983), that its analysis of the pandering provision of the State Penal Code constitutes an adequate and independent state ground of decision. Interpretations of state law by a State’s highest court are, of course, binding upon this Court. O’Brien v. Skinner, 414 U. S. 524, 531 (1974); Murdock v. City of Memphis, 20 Wall. 590 (1875). Here, the California Supreme Court has decided that Freeman’s hiring and paying of performers for pornographic films does not constitute pandering under §266i of the California Penal Code. That is an adequate ground for reversing Freeman’s conviction.

As I read the State Supreme Court’s opinion, it is independent of federal law as well. This Court has held that where a state court has “felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did ... we have jurisdiction and should decide the federal issue; for if the state court erred in its understanding of our cases and of the First and Fourteenth Amendments, we should so declare, leaving the state court free to decide . . . ‘suits according to its own local law.’” Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568 (1977), quoting Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5 (1950). This does not appear to be such a case.

The discussion section of the California Supreme Court opinion is divided into two subsections, the first titled “The Statutory Language,” the second titled “First Amendment Considerations.” The state court’s discussion of the language of the Penal Code, which concludes with the clear holding quoted above, is not “interwoven with the federal law.” Michigan v. Long, supra, at 1040. Discussion of federal law — specifically the First Amendment — is strictly confined to the second subsection and constitutes an independent, alternative holding. Were we to review the state court’s decision and hold that it had misinterpreted the strictures of the First Amendment, on remand the court would still reverse Freeman’s conviction on state statutory grounds. This is precisely the result the doctrine of adequate and independent state grounds seeks to avoid. Herb v. Pitcairn, 324 U. S. 117, 126 (1945) (“We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion”).

There is language early in the California Supreme Court’s discussion section observing that “the prosecution of [Freeman] under the pandering statute must be viewed as a somewhat transparent attempt at an ’end run’ around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort.” 46 Cal. 3d, at 423, 758 P. 2d, at 1130. Nevertheless, in light of the subsequent clear holding based exclusively on the state pandering statute, as well as the State Supreme Court’s doubts in its discussion of the First Amendment whether “[Freeman’s] conduct could somehow be found to come within the definition of ‘prostitution’ literally,” id., at 425, 758 P. 2d, at 1131 (emphasis added), I conclude that the state court’s statutory holding is independent from its discussion of the First Amendment and was not driven by that discussion. Because the decision of the California Supreme Court rests on an adequate and independent state ground, the State of California’s application for a stay of enforcement of the judgment of the California Supreme Court is denied.

So ordered.