GREEN BAY PACKAGING, INC. v. ADAMS EXTRACT CO. ET AL.
No. 84-1677
C. A. 5th Cir.
911
No. 84-1720. HOLDING v. SOVRAN BANK, EXECUTOR AND TRUSTEE OF THE ESTATE OF MUSE. Sup. Ct. Va. Certiorari denied. JUSTICE POWELL took no part in the consideration or decision of this petition.
No. 84-1734. JOHNSON v. PENNSYLVANIA STATE UNIVERSITY ET AL. C. A. 3d Cir. Motion of Student Association of the State University of New York et al. for leave to file a brief as amici curiae granted. Certiorari denied.
No. 84-1741. BOWEN v. OKLAHOMA. Ct. Crim. App. Okla.; No. 84-6700. STAFFORD v. OKLAHOMA. Ct. Crim. App. Okla.; No. 84-6714. CARTWRIGHT v. OKLAHOMA. Ct. Crim. App. Okla.; No. 84-6728. INGRAM v. GEORGIA. Sup. Ct. Ga.; and No. 84-6808. MILLS v. FLORIDA. Sup. Ct. Fla. Certiorari denied. Reported below: No. 84-1741, 715 P. 2d 1093; No. 84-6700, 697 P. 2d 165; No. 84-6714, 695 P. 2d 548; No. 84-6728, 253 Ga. 622, 323 S. E. 2d 801; No. 84-6808, 462 So. 2d 1075.
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.
No. 84-6447. TEAGUE v. TENNESSEE. Sup. Ct. Tenn. Certiorari denied.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.
At the sentencing stage of a capital proceeding, Tennessee requires a capital defendant to prove that any mitigating circum
“If the jury unanimously determines that at least one statutory aggravating circumstance or several statutory aggravating circumstances have been proved by the state beyond a reasonable doubt, and said circumstance or circumstances are not outweighed by any mitigating circumstances the sentence shall be death.”
Tenn. Code Ann. § 39-2-203(g) (1982) (emphasis added).
Sentencing juries are instructed that the defendant‘s failure to carry this burden requires automatic imposition of a death sentence. As the State Supreme Court has held: “[I]f the State does prove an aggravating circumstance beyond a reasonable doubt, then unless the jury finds that mitigation exists and outweighs the aggravating circumstance, it can only impose the death penalty.” State v. Melson, 638 S. W. 2d 342, 366 (Tenn. 1982), cert. denied, 459 U. S. 1137 (1983). The jury in this case was so instructed.
I continue to believe such instructions and statutes are inconsistent with the Court‘s Eighth Amendment precedents.* They impermissibly suggest to the jury a more limited role than the Eighth Amendment requires it to play. A jury must always be free to confront the ultimate question whether “‘death is the appropriate punishment‘” in the specific case, even where mitigating factors do not outweigh aggravating factors. Lockett v. Ohio, 438 U. S. 586, 601 (1978) (plurality opinion) (quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.)). The jury may wish to vote for life out of a desire to render mercy, or it may believe that the death penalty is simply inappropriate for the specific crime the defendant has committed. These factors are properly part of the sentencing process. “[T]he sentencing process must permit consideration of the ‘character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.‘”
Tennessee‘s statute appears to write less quantifiable mitigating factors, such as the desire to render mercy, out of the sentencing proceeding. Because the statute is likely to mislead sentencing juries into believing that only mitigating factors they can label and “weigh” against aggravating ones can properly be considered, I would grant certiorari to review the statute‘s constitutionality. I therefore dissent.
No. 84-6473. GONZALEZ-MARES v. UNITED STATES. C. A. 9th Cir. Certiorari denied. JUSTICE BRENNAN and JUSTICE MARSHALL would grant certiorari.
No. 84-6520. DAVIS v. FLORIDA. Sup. Ct. Fla. Certiorari denied.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.
Petitioner was charged with the brutal beating and shooting of a woman and her two young daughters in Duval County, Florida. The murders and petitioner‘s arrest were the subject of enormous pretrial publicity in the Duval County area. The major local newspapers carried numerous stories on the crime and the details of petitioner‘s arrest, and many minutes of prime-time news coverage were devoted to the subject. Among the specific and prejudicial facts disclosed by this pretrial publicity were that petitioner had failed a lie detector test, that he had a history of violent crime, that he was on parole at the time of his arrest, that he had admitted being in the victim‘s home around the time of the murders, and that particular pieces of evidence appeared to link petitioner to the crimes.
Based on the substantial showing of prejudicial pretrial publicity he had made, petitioner moved for a change of venue. Attached to this motion were affidavits from 15 Duval County attorneys who believed the extent and nature of the pretrial publicity would make it impossible for petitioner to receive a fair and impartial jury in Duval County. Petitioner also moved for individual and sequestered voir dire, and the trial judge deferred ruling on the change-of-venue motion until after voir dire was completed. During voir dire, at least 10 of the 40 veniremen admitted having prior knowledge about the case. The trial judge, however, re-