|
On February 5, 1985, Helen Schartner
was raped and bludgeoned to death by O'Dell outside night club in
Virginia Beach. Her body was then dumped in a vacant lot. Ten years
previously, a Florida woman had narrowly escaped meeting a similar
fate at the hands of O'Dell.
She testified for the
prosecution at the Schartner trial in Virginia that O'Dell had
trapped her in the back of a car and said, 'do you know what
necrophilia is? I'm going to have sex with you whether you're alive
or dead'.
Although O'Dell managed to get
considerable attention and support from some citizens of Italy who
believed him to be wrongfully convicted, the evidence presented at
trial indicated conclusively that O'Dell was responsible for
Schartner's murder.
The victim's blood type was
found on the seat of O'Dell's car. Tire tread marks that were unique
to O'Dell's vehicle were found at the scene where the body was
dumped, seminal fluids and pubic hairs found in and on the victim's
body matched that of O'Dell.
O'Dell had a criminal record
with 17 felony convictions stretching back to 1958.
Joseph O'Dell
Virginia
Conviction: 1986, Executed: 1997
Deathpenaltyinfo.org
New DNA blood evidence has thrown considerable
doubt on the murder and rape conviction of O'Dell. In reviewing his
case in 1991, three Supreme Court Justices, said they had doubts
about O'Dell's guilt and whether he should have been allowed to
represent himself. Without the blood evidence, there is little
linking O'Dell to the crime.
In September, 1996, the 4th Circuit of the U.S.
Court of Appeals reinstated his death sentence and upheld his
conviction. The U.S. Supreme Court refused to review O'Dell's claims
of innocence and held that its decision regarding juries being told
about the alternative sentence of life-without-parole was not
retroactive to his case. O'Dell asked the state to conduct DNA tests
on other pieces of evidence to demonstrate his innocence but was
refused. He was executed on July 23rd.
Joseph Roger O'Dell
On February 6, 1985, Joseph Roger O'Dell was
arrested for the murder, rape, and sodomy of Helen Schartner; he was
convicted of these crimes a year-and-a-half later based largely on
blood evidence and the word of a jailhouse "snitch."
For much of the decade that followed, O'Dell's
unsuccessful appeals went to the Virginia Supreme Court, Federal
District Court, and the Supreme Court, where Justice Harry Blackmun
found "serious questions as to whether O'Dell committed the crime"
and warned of "the gross injustice that would result if an innocent
man were sentenced to death."
Originally at trial, O'Dell represented himself;
afterward, he continued to make his case, sending letters on
stationery headed with an address of "P.O. Box 500-Death Row." In
one letter, O'Dell petitioned the Circuit Court for release of the
evidence in his case for DNA testing. In June, 1997, the U.S.
Supreme Court rejected his last appeal.
That same month, the Virginia Circuit Court
rejected a petition filed on O'Dell's behalf to release the evidence
for testing. His innocence still questioned, and his case being
closely followed by anti-death penalty groups in Virginia and around
the nation, O'Dell was executed in July of 1997.
Following his death, efforts to conduct further
tests on the evidence in O'Dell's case continued unabated. Late in
1997, the Roman Catholic Diocese of Richmond, Virginia, petitioned
the Circuit Court of Virginia Beach to release evidence for testing,
but the Court denied the request and suggested that the evidence be
disposed of as required by law.
In a 1999 law review article on the case, Lori
Urs, an anti-death penalty advocate who married O'Dell just prior to
his execution in order to gain access to the evidence in the case,
argued strongly against previous court opinions in the case which,
she felt, relied on mistaken early reports of a blood "match" in the
case and did not take seriously enough the import of the subsequent
DNA testing.
None of these appeals mattered. In March of 2000,
the last of the DNA evidence in the O'Dell case being stored in the
circuit court of Virginia Beach was burned without any further
testing.
Man Executed Despite
Protest From the Pope
The New York Times
July 24, 1997
A death row inmate whose
cause was championed by the Pope, Mother
Teresa and the Italian Government was
married in prison today and was then
executed by injection a few hours later for
a 1985 rape and murder he said he did not
commit.
The inmate, Joseph Roger
O'Dell 3d, 54, died by injection at 9:16 P.M.
after the United States Supreme Court
rejected a last-minute appeal.
Earlier in the day, Gov.
George F. Allen rejected a plea for clemency,
and on Tuesday a Federal appeals court
refused to order newer, more sophisticated
DNA tests of semen taken from the victim,
Helen Schartner. Mr. O'Dell's lawyers had
argued that the tests could prove their
client's innocence.
Mr. O'Dell also argued
that he should have been allowed to tell the
jurors at the sentencing part of his trial
in 1986 that if they did not give him the
death penalty, he would have to spend the
rest of his life in prison.
The Supreme Court ruled
in 1994 that juries in capital cases must
sometimes be told whether defendants have no
chance of parole. But last month, the Court
said that was not retroactive and did not
cover Mr. O'Dell.
Mr. O'Dell's case has
gotten extraordinary attention in Italy,
where opposition to capital punishment runs
high and where Lori Urs, the Boston
University law student whom Mr. O'Dell
married today in a cell block next to the
death chamber, was in constant touch with
reporters.
A death row chaplain
officiated as Mr. O'Dell and Ms. Urs
exchanged vows through the bars of his cell.
Sister Helen Prejean, who wrote ''Dead Man
Walking,'' and prison guards served as
official witnesses. For security reasons,
the newlyweds were not permitted to touch.
Saying Mr. O'Dell's guilt
had been firmly established, Governor Allen
declared that his decision on clemency would
not be influenced by pressure from Mother
Teresa, Pope John Paul II and the Italian
Government.
At Mr. O'Dell's trial,
prosecutors showed that the wounds on Mrs.
Schartner's head matched the shape of a
pellet gun owned by Mr. O'Dell. Semen on her
body matched Mr. O'Dell's blood and enzyme
types, and hairs found in his car matched
hers.
Gail Lee, Mrs.
Schartner's sister, said the international
support for Mr. O'Dell left her family
frustrated.
''We're all very fragile
at this point,'' Ms. Lee said. ''It's just
like the Italians hate us. They in essence
have said to my family, 'You are worthless.
Helen's life didn't matter.' ''
In an argument to the
Supreme Court today, Mr. O'Dell's lawyers
asked that the execution be barred because
of Mr. O'Dell's claim that another man,
David Mark Pruett, had killed Mrs. Schartner.
The Virginia Attorney
General, Richard Cullen, responded that Mr.
Pruett could not have committed the crime
because his blood type was AB, while semen
taken from the victim contained type A blood.
Mr. O'Dell has type A
blood, Mr. Cullen said, adding, ''Thus
O'Dell's longstanding claim that Pruett was
the real killer is simply biologically
impossible.''
Mr. Pruett was executed
for stabbing a woman to death in 1985.
Virginia inmate executed despite international
campaign
Appeals from pope, Mother Teresa fail to save
him
July 23, 1997
RICHMOND, Virginia (CNN) -- Despite an international campaign to
save his life that included appeals from Mother Teresa and Pope John
Paul II, Joseph O'Dell was executed by lethal injection in Virginia
Wednesday night for a 1985 rape and murder.
Hours before he was scheduled to die, O'Dell, 54, married Lori Urs,
a Boston University law student who had been a volunteer paralegal
on his case.
She helped wage a public relations campaign in the Italian media
that made O'Dell a cause celebre in that country, where opposition
to the death penalty is strong.
The quest to save O'Dell from the execution table has been front
page news in Italy; the mayor of Palermo even offered him a burial
plot. In the days leading up to the execution, Virginia officials
said they had received nearly 10,000 calls and faxes about the
O'Dell case, about 90 percent of which were from Italy.
But Wednesday, both Gov. George Allen and the U.S. Supreme Court
rejected last-minute pleas to spare his life. O'Dell was pronounced
dead at 9:15 p.m. EDT.
After being strapped to the gurney, O'Dell said
it "was the happiest day of my life, because I got married to my
wife." He pledged to love his bride "throughout eternity."
He also reiterated his innocence and made a
direct appeal to the son of the woman he was convicted of killing,
who was believed to be witnessing the execution.
"Eddie, I did not kill your mother," O'Dell said.
About a dozen opponents of capital punishment
showed up outside the Greensville Correctional Center in Jarratt to
conduct a candlelight vigil as the execution hour approached.
Earlier in the day, O'Dell and Urs exchanged
wedding vows through the bars of his cell, as a death row chaplain
officiated. Sister Helen Prejean, a death penalty opponent and the
author of "Dead Man Walking," was one of the witnesses.
For security reasons, the bride and groom were
not permitted to touch.
The Richmond Times-Dispatch reported that Urs
receives $144,000 a year in alimony from her ex-husband, a New
Jersey physician -- alimony that, under the terms of their 1995
divorce agreement, she loses upon remarriage.
O'Dell's attorneys asked for DNA tests
O'Dell was sentenced to death for raping and
murdering Helen Schartner outside a Virginia Beach nightclub. He had
maintained his innocence, and his attorneys had pressed
unsuccessfully for new, more sophisticated DNA tests of semen taken
from the victim, saying the tests might clear O'Dell.
O'Dell's attorneys also argued that jurors should
have been told at his sentencing in 1986 that he would have spent
the rest of his life in prison, if they spared him the death penalty.
The Supreme Court ruled in 1994 that juries in
capital cases sometimes must be told defendants have no chance of
parole. But last month, the court said the ruling is not retroactive
and therefore would not cover O'Dell's case.
O'Dell's lawyers also had an affidavit claiming
that another inmate executed in 1993, David Mark Pruett, had
confessed to the crime.
But in rejecting clemency for O'Dell, Allen said
his guilt had been firmly established.
At trial, prosecutors showed that the wounds on
Schartner's head matched the shape of a pellet gun owned by O'Dell.
Tire tracks from the crime scene matched his car, and the semen
matched O'Dell's blood and enzyme types. Hairs found in his car
matched those of the victim.
Arguing before the Supreme Court Wednesday,
Virginia Attorney General Richard Cullen said Pruett could not have
committed the crime, because his blood type did not match the blood
type of the perpetrator, as determined by tests on the semen.
International support angers victim's family
The international support for O'Dell, which
included an appeal from the European Parliament, the Italian
parliament, and a visit to Allen by a delegation of Italian
officials, left the Schartner family frustrated.
"It's just like the Italians hate us," said Gail
Lee, the victim's sister. "They, in essence, have said to my family,
'You are worthless. Helen's life didn't matter.'"
"His case has been appealed and reviewed so many times by so many
courts that we've lost track. It's been many long years, and we're
hoping for closure," said Emily Capps, Schartner's mother.
SUPREME COURT OF THE UNITED
STATES
No.
96-6867
JOSEPH ROGER O'DELL,
III, PETITIONER
v.
J. D. NETHERLAND, WARDEN,
et al.
on writ of certiorari to the
united states court of appeals for the fourth
circuit
[June 19,
1997]
Justice
Thomas delivered the opinion of the Court.
This case
presents the question whether the rule set out
in Simmons v. South Carolina, 512
U.S. 154 (1994)--which requires that a capital
defendant be permitted to inform his sentencing
jury that he is parole ineligible if the
prosecution argues that he presents a future
danger--was "new" within the meaning of
Teague v. Lane, 489 U.S. 288 (1989),
and thereby inapplicable to an already final
death sentence. We conclude that it was new, and
that it cannot, therefore, be used to disturb
petitioner's death sentence, which had been
final for six years when Simmons was
decided.
Helen
Schartner was last seen alive late in the
evening of February 5, 1985, leaving the County
Line Lounge in Virginia Beach, Virginia. Her
lifeless body was discovered the next day, in a
muddy field across a highway from the lounge.
Schartner's head had been laid open by several
blows with the barrel of a handgun, and she had
been strangled with such violence that bones in
her neck were broken and finger imprints were
left on her skin.
An abundance
of physical evidence linked petitioner to the
crime scene and crime--among other things, tire
tracks near Schartner's body were consistent
with petitioner's car, and bodily fluids
recovered from Schartner's body matched
petitioner. He was indicted on counts of capital
murder, rape, sodomy, and abduction (which count
was later dismissed).
After a jury
trial, petitioner was found guilty on the murder,
rape, and sodomy counts. During the subsequent
sentencing hearing, the prosecution sought to
establish two aggravating factors: that
petitioner presented a future danger, and that
the murder had been "wanton, vile or inhuman."
Evidence was
presented that, prior to Schartner's murder,
petitioner had been convicted of a host of other
offenses, including the kidnaping and assault of
another woman while he was on parole, and the
murder of a fellow inmate during an earlier
prison stint.
Petitioner
sought a jury instruction explaining that he was
not eligible for parole if sentenced to life in
prison. The trial judge denied petitioner's
request. After the sentencing hearing, the jury
found beyond a reasonable doubt that petitioner
"would constitute a continuous serious threat to
society" and that "his conduct in committing the
offense was outrageously wanton, vile, or
inhuman." 46 Record 208. The jury recommended
that petitioner be sentenced to death.
[n.1]
The trial judge adopted the
jury's recommendation and sentenced petitioner
to 40 years' imprisonment each for the rape and
sodomy convictions, and to death by
electrocution for Schartner's murder. Petitioner
appealed to the Supreme Court of Virginia, which
affirmed both the conviction and the sentence.
O'Dell v. Commonwealth, 234 Va.
672, 364 S. E. 2d 491 (1988). We denied
certiorari. O'Dell v. Virginia,
488 U.S. 871(1988). Petitioner's efforts at
state habeas relief were unsuccessful, and we
again denied certiorari. O'Dell v.
Thompson, 502 U.S. 995 (1991).
Petitioner
then filed a federal habeas claim. He contended,
inter alia, that newly obtained DNA
evidence established that he was actually
innocent, and that his death sentence was faulty
because he had been prevented from informing the
jury of his ineligibility for parole. The
District Court rejected petitioner's claim of
innocence. O'Dell v. Thompson, Civ.
Action No. 3:92CV480 (ED Va., Sept. 6, 1994),
App. 171-172. But it agreed with petitioner that
he was entitled to resentencing under the
intervening decision in Simmons v.
South Carolina, supra.
The District
Court described Simmons as holding "that
where the defendant's future dangerousness is at
issue, and state law prohibits the defendant's
release on parole, the Due Process Clause of the
Fourteenth Amendment requires that the
sentencing jury be informed that the defendant
is not eligible for parole." App. 198.
The court
concluded that the Simmons rule was not
new and thus was available to petitioner.
Because the prosecutor "obviously used O'Dell's
prior releases on cross examination, and in his
closing argument, to argue that the defendant
presented a future danger to society," App. 201
(citations omitted), the District Court held
that petitioner was entitled to be resentenced
if it could be demonstrated that he were in fact
ineligible for parole.
A divided en
banc Court of Appeals for the Fourth Circuit
reversed. 95 F. 3d 1214 (1996). After an
exhaustive review of our precedents, the Court
of Appeals majority determined that "Simmons
was the paradigmatic `new rule,' " id.,
at 1218, and, as such, could not aid petitioner.
The Fourth Circuit was closely divided as to
whether Simmons set forth a new rule, but
every member of the court agreed that
petitioner's "claim of actual innocence [was]
not even colorable." 95 F. 3d, at 1218; see also
id., at 1255-1256 (Ervin, J., concurring
in part and dissenting in part). We declined
review on petitioner's claim of actual innocence,
but granted certiorari to determine whether the
rule of Simmons was new. 519 U. S. ___
(1996); see also ibid. (Scalia, J.,
respecting the grant of certiorari).
Before a
state prisoner may upset his state conviction or
sentence on federal collateral review, he must
demonstrate as a threshold matter that the court
made rule of which he seeks the benefit is not "new."
We have stated variously the formula for
determining when a rule is new. See, e.g.,
Graham v. Collins, 506 U.S. 461,
467 (1993) ("A holding constitutes a `new rule'
within the meaning of Teague if it
`breaks new ground,' `imposes a new obligation
on the States or the Federal Government,' or was
not `dictated by precedent existing at
the time the defendant's conviction became
final' ") (quoting Teague, 489 U. S., at
301) (emphasis in original).
At bottom,
however, the Teague doctrine "validates
reasonable, good faith interpretations of
existing precedents made by state courts even
though they are shown to be contrary to later
decisions." Butler v. McKellar,
494 U.S. 407, 414 (1990) (citation omitted). "Reasonableness,
in this as in many other contexts, is an
objective standard." Stringer v.
Black, 503 U.S. 222, 237 (1992).
Accordingly,
we will not disturb a final state conviction or
sentence unless it can be said that a state
court, at the time the conviction or sentence
became final, would have acted objectively
unreasonably by not extending the relief later
sought in federal court.
The
Teague inquiry is conducted in three steps.
First, the date on which the defendant's
conviction became final is determined.
Lambrix v. Singletary, 520 U. S. ___,
___ (1997) (slip op., at 8). Next, the habeas
court considers whether "a state court
considering [the defendant's] claim at the time
his conviction became final would have felt
compelled by existing precedent to conclude that
the rule [he] seeks was required by the
Constitution." Ibid. (quoting Saffle
v. Parks, 494 U.S. 484, 488 (1990)) (alterations
in Lambrix). If not, then the rule is new.
If the rule is determined to be new, the final
step in the Teague analysis requires the
court to determine whether the rule nonetheless
falls within one of the two narrow exceptions to
the Teague doctrine. 520 U. S., at ___.
The first,
limited exception is for new rules "forbidding
criminal punishment of certain primary conduct [and]
rules prohibiting a certain category of
punishment for a class of defendants because of
their status or offense." Penry v.
Lynaugh, 492 U.S. 302, 330 (1989).
The second,
even more circumscribed, exception permits
retroactive application of "watershed rules of
criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding."
Graham, supra, at 478 (quoting
Teague, 489 U. S., at 311) (internal
quotation marks omitted). "Whatever the precise
scope of this [second] exception, it is clearly
meant to apply only to a small core of rules
requiring observance of those procedures that .
. . are implicit in the concept of ordered
liberty." Graham, supra, at 478 (internal
quotation marks omitted).
Petitioner's
conviction became final on October 3, 1988, when
we declined to review the Virginia Supreme
Court's decision affirming his sentence on
direct review. Simmons, the rule of which
petitioner now seeks to avail himself, was
decided in 1994.
In
Simmons, the defendant had been found guilty
of capital murder for the brutal killing of an
elderly woman. The defendant had also assaulted
other elderly women, resulting in convictions
that rendered him--at least as of the time he
was sentenced--ineligible for parole.
Prosecutors in South Carolina are permitted to
argue to sentencing juries that defendants'
future dangerousness is an appropriate
consideration in determining whether to affix a
sentence of death. 512 U. S., at 162-163 (plurality
opinion). Simmons sought to rebut the
prosecution's "generalized argument of future
dangerousness" by presenting the jury with
evidence that "his dangerousness was limited to
elderly women," none of whom he was likely to
encounter in prison. Id., at 157.
Simmons'
efforts to shore up this argument by
demonstrating to the jury that, under South
Carolina law, he was ineligible for parole were
rebuffed by the trial court. This Court reversed
the judgment of the South Carolina Supreme Court
upholding Simmons' death sentence.
A plurality
of the Court noted that a prosecutor's future
dangerousness argument will "necessarily [be]
undercut" by "the fact that the alternative
sentence to death is life without parole." Id.,
at 169. The plurality, relying on Gardner
v. Florida, 430 U.S. 349 (1977), and
Skipper v. South Carolina, 476 U.S. 1
(1986), concluded that "[b]ecause truthful
information of parole ineligibility allows the
defendant to `deny or explain' the showing of
future dangerousness, due process plainly
requires that he be allowed to bring it to the
jury's attention." 512 U. S., at 169.
Justice
O'Connor, joined by The Chief Justice and
Justice Kennedy, concurred in the judgment,
providing the dispositive votes necessary to
sustain it. The concurrence recognized:
"[The
Court has] previously noted with approval . . .
that `[m]any state courts have held it improper
for the jury to consider or to be informed--through
argument or instruction--of the possibility of
commutation, pardon, or parole.' California
v. Ramos, 463 U. S. [992, 1013, n. 30
(1983)]. The decision whether or not to inform
the jury of the possibility of early release is
generally left to the States." Id., at
176.
The
concurrence also distinguished Skipper,
noting that Skipper involved an attempt
to introduce "factual evidence" regarding the
defendant himself, while Simmons "sought to rely
on the operation of South Carolina's sentencing
law" to demonstrate that he did not present a
future danger. 512 U. S., at 176. But the
concurrence nonetheless concluded that, "[w]hen
the State seeks to show the defendant's future
dangerousness," the defendant "should be allowed
to bring his parole ineligibility to the jury's
attention." Id., at 177.
Petitioner
asserts that the Simmons rule covers his
case, and that because he was parole ineligible--but
not allowed to relay that information to the
jury in order to rebut the prosecutor's argument
as to his future dangerousness--Simmons
requires vacatur of his sentence. Before we can
decide whether petitioner's claim falls within
the scope of Simmons, we must determine
whether the rule of Simmons was new for
Teague purposes, and, if so, whether that
rule falls within one of the two exceptions to
Teague's bar.
We observe,
at the outset, that Simmons is an
unlikely candidate for "old rule" status. As
noted above, there was no opinion for the Court.
Rather, Justice Blackmun's plurality opinion,
for four Members, concluded that the Due Process
Clause required allowing the defendant to inform
the jury--through argument or instruction--of
his parole ineligibility in the face of a
prosecution's future dangerousness argument. 512
U. S., at 168-169. Two members of the plurality,
Justice Souter and Justice Stevens, would have
further held that the Eighth Amendment mandated
that the trial court instruct the jury on a
capital defendant's parole ineligibility even if
future dangerousness was not at issue. Id.,
at 172-174 (Souter, J., concurring). Justice
Ginsburg, also a member of the plurality, wrote
a concurrence grounded in the Due Process Clause.
Id., at 174-175.
The Chief
Justice and Justice Kennedy joined Justice
O'Connor's decisive opinion concurring in the
judgment, as described above. Id., at
175-178. And, two Justices dissented, arguing
that the result did not "fit" the Court's
precedents and that it was not, in any case,
required by the Constitution. Id., at
180, 185 (opinion of Scalia, J., joined by
Thomas, J.). The array of views expressed in
Simmons itself suggests that the rule
announced there was, in light of this Court's
precedent, "susceptible to debate among
reasonable minds." Butler, 494 U. S., at
415; cf. Sawyer v. Smith, 497 U.S.
227, 236-237 (1990) (citing, as evidence that
Caldwell v. Mississippi, 472 U.S. 320
(1985), announced a new rule, the views of the
three Caldwell dissenters). An assessment
of the legal landscape existing at the time
petitioner's conviction and sentence became
final bolsters this conclusion.
Petitioner's
review of the relevant precedent discloses the
decisions relied upon in Simmons, namely
Gardner v. Florida, supra
and Skipper v. South Carolina,
supra. Petitioner asserts that a reasonable
jurist considering his claim in light of those
two decisions "would have felt `compelled . . .
to conclude that the rule [petitioner] seeks was
required by the Constitution.' " Brief for
Petitioner 14 (quoting Saffle, 494 U. S.,
at 488) (emphasis omitted).
In
Gardner, the defendant received a death
sentence from a judge who had reviewed a
presentence report that was not made available
to the defendant. Gardner produced no
opinion for the Court. A plurality of the Court
concluded that the defendant "was denied due
process of law when the death sentence was
imposed, at least in part, on the basis of
information which he had no opportunity to deny
or explain." 430 U. S., at 362. Justice White
concurred in the judgment, providing the
narrowest grounds of decision among the Justices
whose votes were necessary to the judgment. Cf.
Marks v. United States, 430 U.S.
188, 193 (1977).
He concluded
that the Eighth Amendment was violated by a "procedure
for selecting people for the death penalty which
permits consideration of such secret information
relevant to the character and record of the
individual offender." 430 U. S., at 364 (internal
quotation marks omitted; emphasis added).
In
Skipper, the prosecutor argued during the
penalty phase that a death sentence was
appropriate because the defendant "would pose
disciplinary problems if sentenced to prison and
would likely rape other prisoners." 476 U. S.,
at 3. Skipper's efforts to introduce evidence
that he had behaved himself in, and made a "good
adjustment" to, jail in the time between his
arrest and his trial were rejected by the trial
court. Ibid. The Court concluded: "[E]vidence
that the defendant would not pose a danger if
spared (but incarcerated) must be considered
potentially mitigating. Under Eddings [v.
Oklahoma, 455 U.S. 104 (1982)], such
evidence may not be excluded from the
sentencer's consideration." 476 U. S., at 5 (footnote
omitted). This holding was grounded, as was
Eddings, in the Eighth Amendment.
The Court
also cited the Due Process Clause, stating that
"[w]here the prosecution specifically relies on
a prediction of future dangerousness in asking
for the death penalty" due process required that
"a defendant not be sentenced to death `on the
basis of information which he had no opportunity
to deny or explain.' " 476 U. S., at 5, n. 1 (quoting
Gardner, supra, at 362).
Simmons,
argues petitioner, presented merely a variation
on the facts of Skipper. In each, the
prosecution raised the issue of future
dangerousness. Skipper was unconstitutionally
prevented from demonstrating that he had behaved
in prison and thus would not be a danger to his
fellow prisoners. Simmons, likewise, says
petitioner, was not allowed to inform the jury
that he would be in, rather than out of, prison
and so could not present a danger to elderly
women. Because the rule of Simmons was
allegedly set forth in the 1986 decision in
Skipper, which in turn relied upon the 1977
decision in Gardner, petitioner argues
that his death sentence was flawed when affirmed
in 1988, and we may set it aside without running
afoul of Teague.
[n.2]
Even were
these two cases the sum total of relevant
precedent bearing on the rule of Simmons,
petitioner's argument that the result in
Simmons followed ineluctably would not be
compelling. Gardner produced seven
opinions, none for a majority of the Court.
Taking the view expressed in Justice White's
opinion concurring in the judgment as the rule
of Gardner, see Marks, supra,
at 193, the holding is a narrow one--that "[a]
procedure for selecting people for the death
penalty which permits consideration of . . .
secret information relevant to the character
and record of the individual offender"
violates the Eighth Amendment's requirement of "reliability
in the determination that death is the
appropriate punishment. " 430 U. S., at 364) (citation
and internal quotation marks omitted; emphasis
added). Petitioner points to no secret evidence
given to the sentencer but not to him. And, the
evidence that he sought to present to the jury
was not historical evidence about his "character
and record," but evidence concerning the
operation of the extant legal regime.
In
Skipper, too, the evidence that the
defendant was unconstitutionally prevented from
adducing was evidence of his past behavior. It
is a step from a ruling that a defendant must be
permitted to present evidence of that sort to a
requirement that he be afforded an opportunity
to describe the extant legal regime. Cf.
Simmons, 512 U. S., at 176 (O'Connor, J.,
concurring in judgment).
Whatever
support Gardner and Skipper,
standing alone, might lend to petitioner's claim
that Simmons was a foregone conclusion,
the legal landscape in 1988 was far more complex.
Respondent points to, and the Fourth Circuit
majority relied on, two other cases that had
been decided by the time petitioner's conviction
became final and that bear on its
constitutionality: California v.
Ramos, 463 U.S. 992 (1983), and Caldwell
v. Mississippi, 472 U.S. 320 (1985). In
Ramos, the Court upheld an instruction
that informed the jury that a defendant
sentenced to life in prison without parole could
nonetheless be rendered parole eligible if the
Governor elected to commute his sentence.
The Court
concluded that the instruction neither
introduced a constitutionally irrelevant factor
into the sentencing process, Ramos, 463
U. S., at 1001-1004, nor diverted the jury's
attention from the task of rendering an "individualized
sentencing determination," id., at 1005.
Within the bounds of the Constitution, the Court
stated that it would defer to California's "identification
of the Governor's power to commute a life
sentence as a substantive factor to be presented
for the sentencing jury's consideration." Id.,
at 1013.
We
emphasized, however, that this conclusion was
not to be taken to "override the contrary
judgment of state legislatures" that capital
juries not learn of a governor's
commutation power. Ibid. "Many state
courts," we pointed out, "have held it improper
for the jury to consider or to be informed--through
argument or instruction--of the possibility of
commutation, pardon, or parole." Id.,
at 1013, n. 30 (emphasis added); see also
ibid. (citing, inter alia, Ga. Code
Ann. §17-8-76 (1982), and describing that
statute as "prohibiting argument as to
possibility of pardon, parole, or
clemency") (emphasis added).
"We sit as judges, not as legislators, and the
wisdom of the decision to permit juror
consideration of possible commutation is best
left to the States." 463 U. S., at 1014.
The
dissenters in Ramos disputed the
constitutionality of ever informing
juries of the governor's power to commute a
death sentence. See id., at 1018 (opinion
of Marshall, J., joined by Brennan and Blackmun,
JJ.); see also id., at 1019-1020 (asserting
that consideration by a capital sentencing jury
of a defendant's prospects for commutation or
parole is unconstitutional).
The general
proposition that the States retained the
prerogative to determine how much (if at all)
juries would be informed about the
postsentencing legal regime was given further
credence in Caldwell v. Mississippi,
supra. In that case, the prosecution and
the judge had, the Court concluded, improperly
left the jury with the impression that a death
sentence was not final because it would be
extensively reviewed. Justice Marshall authored
the opinion for the Court except for one portion.
In that
portion, Justice Marshall--writing for a
plurality--concluded that, Ramos
notwithstanding, sentencing juries were not to
be given information about postsentencing
appellate proceedings. Justice O'Connor, who
provided the fifth vote necessary to the
judgment, did not join this portion of Justice
Marshall's opinion.
She wrote
separately, stating that, under Ramos, a
State could choose whether or not to "instruc[t]
the jurors on the sentencing procedure,
including the existence and limited nature of
appellate review," so long as any information it
chose to provide was accurate. 472 U. S., at 342
(O'Connor, J., concurring in part and concurring
in judgment).
In light of
Ramos and Caldwell, we think it
plain that, a reasonable jurist in 1988 would
not have felt compelled to adopt the rule
later set out in Simmons. As noted above,
neither Gardner nor Skipper
involved a prohibition on imparting information
concerning what might happen, under then extant
law, after a sentence was imposed. Rather, the
information at issue in each case was
information pertaining to the defendant's "character
and record."
Although the
principal opinions in Simmons found
Skipper (which, in turn, relied on
Gardner) persuasive, Justice O'Connor
distinguished Skipper from the facts
presented in Simmons on this very ground,
see 512 U. S., at 176 (opinion concurring in
judgment), suggesting that the rule announced in
Simmons was not inevitable. See also
id., at 183 (Scalia, J., dissenting).
That
distinction--between information concerning
state postsentencing law on the one hand and
evidence specifically related to the defendant
on the other--was also at the heart of Ramos
and Caldwell. In Ramos, the
majority concluded that California had
reasonably chosen to provide some, limited,
postsentence information to the capital
sentencing jury--though it noted that many other
States had elected just the opposite.
The
principal dissent in Ramos would have
forbidden the provision of any
information about postsentence occurrences for
the very reason that it did not constitute
evidence concerning the defendant's "character
or the nature of his crime." 463 U. S., at 1022
(opinion of Marshall, J.). In Caldwell,
the plurality and Justice O'Connor contested
whether the fact that "appellate review is
available to a capital defendant sentenced to
death" was "simply a factor that in itself is
wholly irrelevant to the determination of the
appropriate sentence" (as the plurality
concluded, 472 U. S., at 336), or whether
provision of that information was a
constitutional "policy choice in favor of jury
education" (as Justice O'Connor concluded, id.,
at 342 (opinion concurring in part and
concurring in judgment)).
A reasonable
jurist in 1988, then, could have drawn a
distinction between information about a
defendant and information concerning the extant
legal regime. It would hardly have been
unreasonable in light of Ramos and
Caldwell for the jurist to conclude that his
State had acted constitutionally by choosing not
to advise its jurors as to events that would (or
would not) follow their recommendation of a
death sentence, as provided by the legal regime
of the moment. Indeed, given the sentiments,
expressed in Justice Marshall's Ramos
dissent and Caldwell plurality, that
information about postsentence procedures was
never to go to the jury and given that the
decision whether to provide such information had
been described by the Ramos majority
opinion and Justice O'Connor's concurrence in
Caldwell as a "policy choice" left to the
States, the reasonable jurist may well have
concluded that the most surely constitutional
course, when confronted with a request to inform
a jury about a defendant's parole eligibility,
was silence.
Teague
asks state court judges to judge reasonably, not
presciently. See Stringer v. Black,
503 U. S., at 244 (Souter, J., dissenting). In
Simmons, the Court carved out an
exception to the general rule described in
Ramos by, for the first time ever, requiring
that a defendant be allowed to inform the jury
of postsentencing legal eventualities. A 1988
jurist's failure to predict this cannot, we
think, be deemed unreasonable. Accordingly, the
rule announced in Simmons was new, and
petitioner may not avail himself of it unless
the rule of Simmons falls within one of
the exceptions to Teague's bar.
[n.3]
Petitioner
contends that, even if it is new, the rule of
Simmons falls within the second exception to
Teague, which permits retroactive
application of " `watershed rules of criminal
procedure' implicating the fundamental fairness
and accuracy of the criminal proceeding."
Graham, 506 U. S., at 478 (quoting Teague,
489 U. S., at 311). Petitioner describes the "practice
condemned in Simmons" as a "shocking one."
Brief for Petitioner 33.
The rule
forbidding it, we are told, is "on par" with
Gideon v. Wainwright, 372 U.S. 335
(1963)--which we have cited as an example of the
sort of rule falling within Teague's
second exception, see Saffle, 494 U. S.,
at 495--because "both cases rest upon this
Court's belief that certain procedural
protections are essential to prevent a
miscarriage of justice," Brief for Petitioner 35
(citations omitted). We disagree.
[n.4]
Unlike the sweeping rule of
Gideon, which established an affirmative
right to counsel in all felony cases, the narrow
right of rebuttal that Simmons affords to
defendants in a limited class of capital cases
has hardly " ` "alter[ed] our understanding of
the bedrock procedural elements" '
essential to the fairness of a proceeding."
Sawyer, 497 U. S., at 242 (quoting Teague,
supra, at 311, quoting, in turn,
Mackey v. United States, 401 U.S.
667, 693 (1971) (Harlan, J., concurring in
judgments in part and dissenting in part) (emphasis
in Teague)). Simmons possesses
little of the "watershed" character envisioned
by Teague's second exception.
For the
reasons stated herein, the judgment of the Court
of Appeals is affirmed.
It is so
ordered.
*****
Notes
Justice Stevens,
with whom Justice Souter,
Justice Ginsburg, and
Justice Breyer join,
dissenting.
Although petitioner's guilt
has been established, it is
undisputed that the conduct
of the sentencing hearing
that led to the imposition
of his death penalty
violated the Due Process
Clause of the Fourteenth
Amendment. His eligibility
for a death sentence
depended on the prosecutor's
ability to convince the jury
that there was a "probability
that he would commit
criminal acts of violence
that would constitute a
continuous threat to society."
App. 69.
In support of his argument
to the jury that nothing
short of the death penalty
would be sufficient, the
prosecutor emphasized
petitioner's misconduct when
he was "outside of the
prison system," id.,
at 61,
[n.1]
and stated that O'Dell had "forfeited
his right to live among us,"
id., at 66.
Nevertheless, the trial
court refused to allow
petitioner to advise the
jury that if the death
sentence were not imposed,
he would be imprisoned for
the rest of his life without
any possibility of parole.
Thus, he was denied the
opportunity to make a fair
response to the prosecutor's
misleading argument about
the future danger that he
allegedly posed to the
community.
Our virtually unanimous
decision in Simmons
v. South Carolina,
512 U.S. 154 (1994),
[n.2]
recognized the fundamental
unfairness of the
restrictive procedure
followed in this case. As
Justice O'Connor's opinion,
which has been treated as
expressing the narrowest
ground on which the decision
rested, explained:
" `Capital sentencing
proceedings must of course
satisfy the dictates of the
Due Process Clause,'
Clemons v.
Mississippi, 494 U.S.
738, 746 (1990), and one of
the hallmarks of due process
in our adversary system is
the defendant's ability to
meet the State's case
against him. Cf. Crane
v. Kentucky, 476 U.S.
683, 690 (1986). In capital
cases, we have held that the
defendant's future
dangerousness is a
consideration on which the
State may rely in seeking
the death penalty. See
California v. Ramos,
463 U.S. 992, 1002-1003
(1983). But `[w]here the
prosecution specifically
relies on a prediction of
future dangerousness in
asking for the death
penalty, . . . the elemental
due process requirement that
a defendant not be sentenced
to death "on the basis of
information which he had no
opportunity to deny or
explain" [requires that the
defendant be afforded an
opportunity to introduce
evidence on this point].'
Skipper v. South
Carolina, 476 U.S. 1, 5,
n. 1 (1986), quoting
Gardner v. Florida,
430 U.S. 349, 362 (1977) (plurality
opinion); see also 476 U.
S., at 9-10 (Powell, J.,
concurring in judgment)."
Id., at 175 (O'Connor,
J., concurring in judgment).
Thus, this case is not about
whether O'Dell was given a
fair sentencing hearing;
instead, the question
presented is whether,
despite the admittedly
unfair hearing, he should be
put to death because his
trial was conducted before
Simmons was decided.
Because the Court regards
the holding in Simmons
as nothing more than a novel
"court made rule," ante,
at 4, it rejects
petitioner's plea. In my
view, our decision in
Simmons applied a
fundamental principle that
is as old as the adversary
system itself, and that had
been quite clearly
articulated by this Court in
two earlier opinions.
Accordingly, I respectfully
dissent.
My analysis begins where the
majority tersely ends--with
the petitioner's contention
that the rule in Simmons
implicates "the fundamental
fairness and accuracy of the
criminal proceeding,"
Saffle v. Parks,
494 U.S. 484, 495 (1990),
and therefore should be
retroactively applied even
if it would constitute a "new"
rule under Teague v.
Lane, 489 U.S. 288,
307 (1989).
Our decision in Teague
recognized two exceptions to
the general rule of
nonretroactivity. The
relevant exception for our
purposes establishes that "a
new rule should be applied
retroactively if it requires
the observance of `those
procedures that . . . are "implicit
in the concept of ordered
liberty." ' " Ibid. (quoting
Mackey v. United
States, 401 U.S. 667,
693 (1971) (Harlan J.,
concurring in judgments in
part and dissenting in part),
which in turn quotes
Palko v. Connecticut,
302 U.S. 319, 325 (1937)).
In the opinion that provided
the basis for the
limitations on collateral
review adopted in Teague,
Justice Harlan emphasized
the importance of protecting
"bedrock procedural elements"
that are "essential to the
substance of a full hearing."
Mackey, 401 U. S., at
693-694. We endorsed that
view, with the caveat that
this exception should be
limited to those "procedures
without which the likelihood
of an accurate [determination
of guilt or innocence] is
seriously diminished."
Teague, 489 U. S., at
313.
[n.3]
Since Teague was
decided, this Court has
never found a rule so
essential to the fairness of
a proceeding that it would
fall under this exception.
[n.4]
In my view, the right in
Simmons--the right to
respond to an inaccurate or
misleading argument--is
surely a bedrock procedural
element of a full and fair
hearing. As Justice O'Connor
recognized in her opinion in
Simmons, this right
to rebut the prosecutor's
arguments is a "hallmar[k]
of due process," 512 U. S.,
at 175 (concurring opinion).
See also id., at 174
(Ginsburg, J., concurring)
("This case is most readily
resolved under a core
requirement of due process,
the right to be heard").
When a defendant is denied
the ability to respond to
the state's case against him,
he is deprived of "his
fundamental constitutional
right to a fair opportunity
to present a defense."
Crane v. Kentucky,
476 U.S. 683, 687 (1986).
The Court today argues that
Simmons defined only
a "narrow right of rebuttal
[for] defendants in a
limited class of capital
cases," ante, at 16,
and therefore that the rule
cannot be in that class of
rules so essential to the
accuracy of a criminal
proceeding that they are
excepted from Teague's
nonretroactivity principle.
The majority appears not to
appreciate that the reason
Simmons' holding
applied directly to only a
narrow class of capital
defendants is because only a
very few states had in place
procedures that allowed the
prosecutor to argue future
dangerousness while at the
same time prohibiting
defendants from using "the
only way that [they] can
successfully rebut the
State's case." Simmons,
512 U. S., at 177 (O'Connor,
J., concurring in judgment).
[n.5]
The prevailing rule in the
States that provided a life
without parole sentencing
alternative required an
instruction explaining that
alternative to the jury.
[n.6]
Although the majority relies
on the limited impact of the
Simmons rule to
discount its importance, the
broad consensus in favor of
giving the jury accurate
information in fact
underscores the importance
of the rule applied in
Simmons. The rule's
significance is further
demonstrated by evidence of
the effect that information
about the life without
parole alternative has on
capital jury deliberations.
For example, only two death
sentences have been imposed
in Virginia for crimes
committed after January 1,
1995--whereas ten were
imposed in 1994 alone--and
the decline in the number of
death sentences has been
attributed to the fact that
juries in Virginia must now
be informed of the life
without parole alternative.
See Green, Death Sentences
Decline in Virginia,
Richmond Times Dispatch,
Nov. 24, 1996,
[n.7]
p. A1.
The consensus among the
scholars and practitioners
who drafted the Model Penal
Code is that instructing the
jury completely about the
available sentencing
alternatives is the best way
to ensure accuracy in
sentencing. See American Law
Institute, Model Penal Code
§210.6 (1980). And we
affirmed this basic point in
Beck v. Alabama,
447 U.S. 625, 637 (1980),
when we acknowledged that
the likelihood that a jury
would find an obviously
guilty defendant eligible
for the death penalty was
significantly increased when
an arguably more appropriate
sentencing alternative was
not available.
Thus, even if the rule in
Simmons could properly
be viewed as a "new" rule,
it is of such importance to
the accuracy and fairness of
a capital sentencing
proceeding that it should be
applied consistently to all
prisoners whose death
sentences were imposed in
violation of the rule,
whether they were sentenced
before Simmons was
decided or after. Moreover,
to the extent that the
fundamental principles
underlying the rule needed
explicit articulation by
this Court, they clearly had
been expressed well before
O'Dell's 1988 sentencing
proceeding.
Distinguishing new rules
from those that are not new
under our post-Teague
jurisprudence is not an easy
task, but it is evident to
me that if there is such a
thing as a rule that is not
new for these purposes, the
rule announced in Simmons
is one.
In Gardner v.
Florida, 430 U.S. 349
(1977), a plurality of the
Court concluded that the
defendant's due process
rights had been violated
because his "death sentence
was imposed, at least in
part, on the basis of
information which he had no
opportunity to deny or
explain." Id., at
362. Nine years later, in
Skipper v. South
Carolina, 476 U.S. 1
(1986), all nine Justices
cited Gardner, with
approval, as establishing
the "elemental due process
requirement that a defendant
not be sentenced to death `on
the basis of information
which he had no opportunity
to deny or explain.'
Gardner v. Florida,
430 U.S. 349, 362 (1977)."
Skipper, 476 U. S.,
at 5, n. 1; see also id.,
at 10-11 (Powell, J.,
concurring in judgment) ("The
Court correctly concludes
that the exclusion of the
proffered testimony violated
due process . . . . [P]etitioner's
death sentence violates the
rule in Gardner").
When the Court was presented
with the facts in Simmons,
it was no surprise that
Justice Blackmun said that
"[t]he principle announced
in Gardner was
reaffirmed in Skipper,
and it compels our decision
today." 512 U. S., at
164-165 (plurality opinion).
Or that Justice O'Connor
quoted Gardner and
Skipper for the
proposition that "elemental
due process" requires that a
defendant must be allowed to
answer a prosecutor's "prediction
of future dangerousness"
with "evidence on this point."
512 U. S., at 175.
Today, however, the Court
seeks to revise the import
of this line of cases. The
first misstep in the Court's
analysis is its treatment of
Gardner. The majority
makes much of the fact that
the lead opinion was joined
by only three Justices,
[n.8]
and instead of accepting the
plurality's due process
analysis as the rule of
Gardner, the Court takes
Justice White's concurring
opinion, which was grounded
in the Eighth Amendment, as
expressing the holding of
the case.
The Court's reading of
Gardner ignores the fact
that Justice White himself
squarely adopted the due
process holding of
Gardner in his opinion
for the Court in Skipper.
Although his opinion
accepted Skipper's argument
that the exclusion of
evidence of his good
behavior in prison at the
sentencing hearing violated
the Eighth Amendment
requirement that the jury be
allowed to consider all
relevant mitigating evidence,
Justice White went out of
his way to add a footnote
endorsing the Gardner
plurality's statement of the
law and emphasizing that
this "elemental due process
requirement" provided an
even more basic
justification for the
Court's holding.
[n.9]
Moreover, in his opinion
concurring in the judgment
in Skipper, Justice
Powell, joined by the Chief
Justice and then Justice
Rehnquist, rejected the
mitigating evidence
rationale, relying instead
on "the rule in Gardner."
476 U. S., at 10-11. Thus,
in Skipper, all nine
Justices then serving on the
Court endorsed Gardner's
holding that due process was
violated when a sentencing
determination rested on
information that a defendant
was not permitted to explain
or deny. See also Clemons
v. Mississippi, 494
U.S. 738, 746 (1990) (citing
Gardner for the
proposition that "[c]apital
sentencing proceedings must
of course satisfy the
dictates of the Due Process
Clause"); Simmons,
512 U. S., at 180 (Scalia,
J., dissenting) (quoting
Skipper and Gardner
as "indicat[ing] that
petitioner's due process
rights would be violated if
he was `sentenced to death "on
the basis of information
which he had no opportunity
to deny or explain," ' " but
concluding that the
petitioner could not show
that his sentence violated
this principle).
As to Skipper, the
only distinction the
majority is able to draw
between that case and
Simmons is that the
defendant in Skipper
sought to introduce "evidence
of his past behavior" while
Simmons wished "an
opportunity to describe the
extant legal regime."
Ante, at 11. This
distinction is simply not
enough to make the rule in
Simmons "new". In
both cases, the prosecution
was seeking to mislead the
jury with an argument that
excluded facts essential to
the defendant's actual
circumstances.
The rule in Skipper
and Gardner--that a
defendant must be allowed an
opportunity to rebut
arguments put forward by the
prosecution--simply cannot
turn on whether his rebuttal
relies on the fact that he
is ineligible for parole or
on the fact that he is a
model prisoner.
The two cases on which the
majority relies to argue
that a reasonable jurist in
1988 would have thought that
O'Dell did not have a right
to rebut the prosecutor's
future dangerousness
arguments simply provide
further support for the
conclusion that Simmons
did not announce a new rule
of law. In both
California v. Ramos,
463 U.S. 992 (1983), and
Caldwell v.
Mississippi, 472 U.S.
320 (1985), the Court
focused its analysis on
whether the information
being presented (or withheld)
in a sentencing
determination permitted
accurate and informed
decision making on the part
of the sentencer.
In Ramos, the Court
held that California's
capital sentencing procedure--in
which the judge was required
to inform the jury that it
could sentence the defendant
to death or to life without
parole, and then to provide
the further instruction that
the Governor could commute a
life sentence without parole--was
not constitutionally infirm.
(This further instruction is,
of course, only relevant
when the jury has first been
advised that the alternative
to the death sentence is the
option that was concealed
from the jury in Simmons
and in this case.)
The Court correctly
explained that the
instruction on commutation
of the life sentence was
relevant to the issue of
future dangerousness, 463 U.
S., at 1003, and consistent
with the rule of Gardner
because it provided the jury
with accurate information
and did not preclude the
defendant from offering
argument or evidence
regarding the Governor's
power to commute a life
sentence. Id., at
1004. In a comment that
anticipated the precise
holding in Simmons,
the Court concluded that the
instruction under review "corrects
a misconception and supplies
the jury with accurate
information for its
deliberation in selecting an
appropriate sentence." 463
U. S., at 1009.
[n.10]
While the Ramos Court
concluded that a State
could constitutionally
require trial judges to
inform sentencing juries
about the possibility of
commutation of a life
sentence, the Court did not
hold that a State was
constitutionally compelled
to do so. The majority today,
ante, at 12, suggests
that the Ramos
Court's endorsement of that
option--involving a choice
between two nonmisleading
instructions, one mentioning
and the other not mentioning
the remote "possibility" of
parole--might have led
reasonable state judges to
conclude that they could
allow juries to be misled on
the future dangerousness
issue by concealing entirely
the legal certainty of
parole impossibility.
But the general rule applied
in Ramos simply
permits state courts to give
accurate instructions that
will prevent juries from
being misled about
sentencing options in
capital cases. In order to
decide Simmons
correctly, there was no need
to "carv[e] out an exception,"
ante at 14, from that
rule.
The Court's reading of
Caldwell is equally
unpersuasive. In that case,
the prosecutor had urged the
jury not to view itself as
finally determining whether
the defendant would die,
because the death sentence
was subject to appellate
review. As Justice
O'Connor's controlling
opinion explained, the
prosecutor's remarks were
improper "because they were
inaccurate and misleading in
a manner that diminished the
jury's sense of
responsibility." 472 U. S.,
at 342.
Because Justice Marshall's
plurality opinion suggested
that any comment on
appellate review was "wholly
irrelevant" to the
sentencing determination,
id., at 336, the Court
today suggests that state
judges might reasonably have
concluded "that information
about postsentence
procedures was never
to go to the jury." Ante,
at 14.
Apart from the fact that an
instruction describing a
sentencing alternative does
not relate to "postsentence
procedures," I see no basis
for assuming that concerns
about describing the process
of appellate review to a
jury might have anything to
do with the necessity for
providing the jury with
accurate information about
sentencing options when the
prosecutor makes the
misleading argument that the
death penalty is the only
way to prevent a defendant's
future dangerousness "outside
of the prison system."
The Court has consistently,
and appropriately, shown a
particular concern for
procedures that protect the
accuracy of sentencing
determinations in capital
cases.
[n.11]
Today, the majority discards
this concern when it relies
on a nonexistent tension
between Gardner and
Skipper on the one
hand and Ramos and
Caldwell on the other to
justify its refusal to apply
the rule in Simmons
to this case.
I respectfully dissent.
*****
Notes
|
