454 U.S. 1000 (1981)

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U.S. Supreme Court

BROWN v. WAINWRIGHT , 454 U.S. 1000 (1981)

454 U.S. 1000

Joseph Green BROWN et al. v.

Louie L. WAINWRIGHT, Secretary, Department of Corrections, Florida
No. 80-6434 Supreme Court of the United States November 2, 1981

On petition for writ of certiorari to the Supreme Court of Florida.

The petition for writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

I continue to believe that in all circumstances the death penalty is cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 231, 96 S. Ct. 2909, 2973 (1976). However, I dissent from the denial of certiorari in this case on the additional ground that the Florida Supreme Court practice challenged by petitioners is questionable under prior precedents of this Court and deserves plenary consideration.

Petitioner Brown and 122 other Florida inmates sentenced to death brought original petitions for writs of habeas corpus in the Florida Supreme Court, 392 So.2d 1327, alleging that since 1975, the Florida Supreme Court has "engaged in the continuing practice of requesting and receiving information concerning capital appellants which was not presented at trial and not a part of the trial record or record on appeal. The information includes . . . pre-sentence investigation reports concerning the capital offense under review or prior convictions unrelated to the capital offense; psychiatric evaluations or contact notes [made in the correctional system after conviction]; psychological screening reports; recitations of a capital defendant's refusal to submit to a psychiatric examination from which a report could be prepared; post-sentence investigation reports; probation or parole violation reports; and state prison classification and admissions summaries." App. to Pet. for Cert. 2c- 3c. With rare exceptions, the State Supreme Court allegedly received this information without notice to the appellant whose sentence the court was reviewing or to his attorney. To support these allegations, petitioners offered written re-

Page 454 U.S. 1000 , 1001

quests by the Court Clerk to correctional officials requesting such information, and letters of transmittal from these officials. Petitioners also suggest that this kind of information may have been received in some cases but not others, thus skewing the appellate process without regard to whether the information may benefit the particular appellant whose sentence is under review. The court accepted these allegations as true for the purposes of its decision but denied the petitions.

I believe that the Florida court's ex parte consideration of such nonrecord evaluative data relating to individual appellants during the court's review is questionable as a matter of due process and is inconsistent with this Court's past insistence on strict procedural regularity in the imposition and review of capital sentences. See Gardner v. Florida, 430 U.S. 349 (1977). Moreover, much of the information appears to be inadmissible and unreliable hearsay, which petitioners should at least have the opportunity to cross-examine. Some may be inadmissible under this Court's recent decision in Estelle v. Smith, 451 U.S. 454 (1981). Accordingly, I dissent.

Gardner, supra, invalidated a Florida death sentence in which the sentencing court had relied in part on a confidential portion of a presentencing report that had not been disclosed to the defendant or to his counsel. The plurality opinion emphasized the "vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." 430 U.S., at 358. Contrary to the State Supreme Court's view, Gardner suggested no relevant distinction between the trial court's initial imposition of a sentence and an appellate court's discharge of its mandatory review function. Such a distinction is irreconcilable with this Court's decision in Proffitt v. Florida, 428 U.S. 242 (1976), which approved the Florida appellate review procedure on [454 U.S. 1000 , 1002]

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