*1 state penological it would serve no valid be invalid because might interest: defendant sen- available to a
“That review is to return such is no valid basis for tenced to death It a factor might simply if otherwise it not. is sentence the ap- to the determination of wholly is irrelevant itself the urged here argument sentence. The propriate toward the only preliminary step taking view themselves as death—a de- appropriateness actual determination of by others and eventually which would be made termination image this responsible. Creating for which the is not a valid in the minds of the sentencers Id., . . . .” goal instruction to an accurate analysis equally applicable
This is recommendation nature of an Ohio nonbinding garding however, part not join of death. O’Connor, Justice to state analysis separately and wrote articulating Caldwell pre- instruction would nonmisleading an accurate and her view that (concurring at 341-343 sent no constitutional difficulties. because Justice Accordingly, part judgment). Caldwell, id., 341, majority see Powell did not take the constitutional a view as to expressed of this Court has never minimize nonmisleading instructions status of accurate their nature of preliminary jury responsibility by emphasizing decision. and set the case petition vote to grant would therefore by unresolved Caldwell.
oral on the issue left argument al. C. et A. Warden, No. 87-5449. Andrews Shulsen, denied. 10th Cir. Certiorari Marshall, whom Justice with in all circum- penalty view that the death
Adhering my by Eighth prohibited cruel and unusual punishment stances Georgia, Amendments, Gregg see and Fourteenth grant I would dissenting), death sentence. for certiorari and vacate petition be- grant I would view, Even if I did not hold this murder and was convicted cause Andrews petitioner William concerns raising grave sentenced to death under circumstances impermissible racial bias. These circumstances include a mid- trial incident in a which handed the bailiff a napkin with a *2 of a drawing man on a above inscription, “Hang Niggers.” The District this case refused even to under- take an investigate substantial The Constitution cannot counte- nance such summary indifference and person’s treatment when a life is at stake.
Petitioner was convicted for his role in a multiple murder during hi-fi robbery of a shop Ogden, Utah. The ringleader of the crimes, Pierre, Dale was executed last year. Evidence in- at trial dicated that a substantially had less active role in the murders than Pierre. The two men shop entered the together people forced five into the store’s basement. There the vic- tims were forced to drink liquid cleaner, drain which induced vio- lent vomiting. ofOne the two victims who survived the robbery petitioner said, testified that “I it, can’t do I’m scared,” and that petitioner left the scene shortly Only thereafter. after petitioner carry out, did Pierre 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 sen- timents, inasmuch as the defendants were black people and the victims were white members of the local community. The single black member of the venire excluded, was and an jury all-white was empaneled.
An ugly racial incident involving jury occurred during the trial. The jury was lunch in eating a separate dining room when presented the bailiff with a drawing that had been made a napkin. on The drawing represented a stick figure a gallows. Underneath the figure were words, “Hang the The bailiff Niggers.” was unable say who had made the draw- or how jurors had it, seen although 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 was to issue sponse general instruction to the jury to “ignore communications from foolish people.” Id., 9-10, and n. 4. convicted,
After and Pierre were the court ordered sequestered. time, 5-day During recess. widespread and, petitioner media of the conviction was coverage racially inflammatory. alleges, example, Petitioner alleges, ran a false newspaper report that one had directed a “Black closed-fist at one of the vic- gesture surviving Power” tims after the verdict was read. at 10. The returned separate sentencing hearing unanimously for the and voted to sen- to death. corpus, petitioner alleged In his for a writ of habeas sentiment had in- publicity community that adverse and hostile right racial animus into his trial and undermined his to a jected an evidentiary fair trial. The District Court refused to convene (Utah 600 F. Supp. to consider this claim. 1984). this re- Appeals upheld The Court of for the Tenth Circuit *3 discussion, fusal with little reviewed the briefs stating: “Having record, required and the conclude that no hearing we Sain, of Townsend under principles and that for a fair trial been met.” the constitutional standard has (1986) (citations omitted). 1260
II remedy allegations “This has held that of long op- in juror partiality is a which the defendant has Phillips, actual bias.” Smith portunity prove to 455 U. S. is, course, especially 215 of vital when Such Murray, In Turner to die. the defendant has been condemned the Court vacated a death sentence entered in had refused the defendant’s re- a case in which the trial court quest jurors to on racial prospective finality “in of plurality light complete that recognized be district courts to sentence,” requires death the Constitution especially prejudice solicitous of of racial allegations sentence, cases. therefore vacated the 35. The Court had been prejudice even no though specific allegations made other than the that the case involved a black defendant fact risk that that “the plurality and a white victim. The concluded sentencing racial have infected prejudice may could risk which that unacceptable light of the ease with [was] Id., have been minimized.” specific This case involves far more serious and Turner, than including vulgar racial animus incident of Moreover, of Reconstruction lynch-mob days. racism reminiscent is not this Court to decide whether there is asking suffi- prejudice impeach cient evidence of racial the conviction and to have the only sentence. He seeks District Court undertake an his evidentiary hearing charges. consider would think it Constitution, not to decency, clear that the mention common See Tanner v. United procedure. modest quires no less than this States, dissenting part).
Ill (or more) petitioner’s jurors it one who drew a black Was and attached the inscription, “Hang man How saw the Niggers”? incendiary draw- it turned over to the bailiff? Might before was it have had on the deliberations? Was the any effect decision to sen- by racially to die influenced charged media cover- guilt penalty phases? of the trial between the are age These deserves to among questions have at least con- put sidered before he is to death for a series of murders in which secondary role. It is conscience all played only shocking judiciary willing three levels the federal are to send much as these investigating allega- to his death without so serious only Not is this less than hearing. process tions at an due; at all. I dissent. process it is no
No. 87-5722. Patterson United States. C. A. 9th Cir. Certiorari denied. *4 White, with whom Justice Tucker, 433, Michigan
In v. this Court ex- open question admissibility of the pressly physical evi- interrogation obtained as a result of an contrary dence conducted Arizona, in Miranda to the rules set forth v. time, the and federal have been divided on Since courts White, Indeed, Massachusetts question.1 physical evi with this have concluded that 1 Some courts faced g., e. Cas See, United States suppressed.
dence so obtained must be
tellana,
Preston,
(CA5
1974);
State
411 A. 2d
White,
(Me.
Commonwealth 1980);