ROBERTSON v. CALIFORNIA
498 U.S. 1004 (1990)

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U.S. Supreme Court

ROBERTSON v. CALIFORNIA , 498 U.S. 1004 (1990)

498 U.S. 1004

Andrew Edward ROBERTSON, petitioner
v.
CALIFORNIA. No. 90-5774.

Supreme Court of the United States

December 3, 1990

On Petition for Writ of Certiorari to the Supreme Court of California.

The petition for a writ of certiorari is denied.

Justice BLACKMUN, with whom Justice MARSHALL joins, dissenting.

I would grant the petition for certiorari to determine whether petitioner's capital sentence was imposed in violation of the Eighth and Fourteenth Amendments.

In 1978, a California jury convicted petitioner Andrew Edward Robertson on two counts of first-degree murder and sentenced him to death. On appeal, the Supreme Court of California reversed that judgment as to the penalty. People v. Robertson, 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P. 2d 279 (1982). The second sentencing proceeding was assigned to Judge Roy E. Chapman. Robertson waived his right to be sentenced by a jury, and Judge Chapman sat as trier of fact during the second penalty phase. [ Robertson v. California 498 U.S. 1004 (1990) ][1004-Continued.]

Robertson introduced extensive evidence in mitigation. Among this was the testimony of his mother and sister concerning Robertson's difficult childhood, during which he allegedly suffered abuse at the hands of his father and stepfather. Through these witnesses, Robertson presented evidence that he had had developmental difficulties as a young child and was slow to walk and talk; that his parents were divorced when he was young; that his father subsequently had kidnaped him; that, upon being returned from the kidnaping, he had been cared for by a disturbed mother and a strict grandmother; and that at age nine he had been diagnosed as suffering from mild mental retardation with possible brain damage. See People v. Robertson, 48 Cal.3d 18, 32, 255 Cal.Rptr. 631, 636, 767 P.2d 1109, 1114, cert. denied, 493 U.S. 879d 169 (1989). Robertson, however, was again sentenced to death, and the California Supreme Court, by a divided vote, affirmed. 48 Cal.3d, at 64, 255 Cal.Rptr., at 1131, 767 P.2d, at 1136.

In December 1989, Robertson's counsel for the first time learned that Judge Chapman, prior to his going on the bench, had represented Robertson's mother, Lillian Goodin, in her divorce from Robertson's stepfather. App.D. to Brief in Opposition 1. The divorce proceeding was initiated by Robertson's stepfather in 1963 and involved extensive allegations by both parties of domestic violence and child abuse. In March 1963, Judge Chapman, then Lillian Goodin's attorney, sought a temporary restraining order against Robertson's stepfather, prohibiting him from "threatening, molesting, injuring, harassing, or annoying [Goodin] and [Goodin's] children." App.C. to Brief in Opposition 4. In

Page 498 U.S. 1004 , 1005

support of the request for a temporary restraining order, Robertson's mother executed a declaration attesting that Robertson's stepfather "has struck and beat [Goodin], the minor child of [Goodin and the stepfather], and [Goodin's] children by a prior marriage." Id., at 3. Judge Chapman withdrew from his representation of Robertson's mother on November 16, 1967. When interviewed by Robertson's counsel in 1989, Judge Chapman acknowledged that "the court documents demonstrated that he had represented" Goodin, but stated that he had no present recollection of the divorce proceeding, and that he believed that he had no independent recollection of them at the time of Robertson's sentencing. App.D to Brief in Opposition 2.

Immediately upon learning of the past representation, Robertson filed a petition for a writ of habeas corpus in state court. After the California Supreme Court denied Robertson's petition, he filed in this Court a petition for a writ of certiorari. I would grant that petition.

    "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 625 (1955); see also Ward v. Village of Monroeville, 409 U.S. 57 (1972). The entitlement to an impartial tribunal applies to the sentencing phase of a criminal proceeding as well as to the guilt phase. See Witherspoon v. Illinois, 391 U.S. 510, 518, 1775 (1968). Due process demands more than that the sentencer actually be impartial; rather, " 'justice must satisfy the appearance of justice.' " In re Murchison, 349 U.S., at 136, quoting Offutt v. United States, 348 U.S. 11, 14, 13 (1954); see also In re Murchison, 349 U.S., at 136, 75 S.Ct. at 625 ("[O]ur system of law has always endeavored to prevent even the probability of unfairness"); Mayberry v. Pennsylvania, 400 U.S. 455, 469, 507 (1971) (Harlan, J., concurring) ("[T]he appearance of even-handed justice . . . is at the core of due process"). The risk that Judge Chapman may have brought to bear on his decision specific information about Robertson not presented as evidence in the sentencing proceeding is too great in this case to satisfy the demands of the Due Process Clause. See In re Murchison, 349 U.S., at 136, 75 S.Ct. at 625 ("Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties").

Moreover, the Fourteenth Amendment prohibits consideration during the sentencing phase of evidence that the defendant has not had an opportunity to rebut. Consequently, in Gardner v. Florida, 430 U.S. 349, 358, 1204 (1977) (plurality opinion), the Court [498 U.S. 1004 , 1006]


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