474 U.S. 873 (1985)

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U.S. Supreme Court

BUSBY v. LOUISIANA , 474 U.S. 873 (1985)

474 U.S. 873

Ernest BUSBY
No. 84-6864

Supreme Court of the United States

October 7, 1985

Rehearing Denied Dec. 2, 1985.

See 474 U.S. 1015.

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

The petition for writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.

Once again this Court has declined to correct an error of constitutional magnitude with a defendant's life in the balance. The petitioner's death sentence was unconstitutionally imposed under last Term's decision in Caldwell v. Mississippi, 472 U.S. 320 (1985), and this Court's refusal to vacate that sentence is an unwarranted departure from procedures that we follow routinely in the most insignificant case.


The petitioner was convicted of first-degree murder. At the sentencing phase of his trial, his counsel attempted to impress upon the jury the significance of its role, in light of the growing number of executions in Louisiana and the Nation as a whole. Counsel admonished the jurors that, should they decide upon the death penalty, they should " 'give it with the appreciation that it'll be carried out.' " 464 So.2d 262, 266 (La.1985). The prosecutor responded by arguing to the jury:

" 'Though it's difficult to stand before you ladies and gentlemen and ask you to consider imposing upon anyone the pen-

Page 474 U.S. 873 , 874

alty of death, but in order to make your task easier, we'll state for you that first of all, you have a solemn obligation to live up to your oath. Second of all, that whatever you decide will be recommendations-and recommendations to the Judge, for the Judge to impose the death penalty. It will be the Judge that sentences this defendant to whatever the sentence might be. You make recommendations.' " Ibid.

The jury sentenced petitioner to death.


After the Louisiana Supreme Court had affirmed petitioner's conviction and death sentence, and after his petition for certiorari had been filed, this Court decided Caldwell.* There, the Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S., at 328-329. In Caldwell, the prosecutor argued to the jury that the State Supreme Court would automatically review the death sentence. This Court noted that the jury might not understand the limits on appellate review, and might conclude that the ultimate determination of the appropriateness of a death sentence for that defendant would lie with the court. Id., at 330-331. Furthermore, whether or not the jury was misled as to the appellate court's function, it might decide to "delegate" its responsibility to the court. Id., at 332.

In the present case, we need not speculate about the misleading nature of the prosecutor's argument, for it flatly misstated Louisiana law . In Louisiana, a jury's decision in favor of death is binding on the court. La.Code Crim.Proc.Ann., Art. 905.8 (West 1984). Thus, the prosecutor's argument in this case was not an "accurate statement of a potential sentencing alternative," as in California v. Ramos, 463 U.S. 992, 1009, 3457 (1983); cf. Caldwell, supra, 472 U.S., at 342 (O'CONNOR, J., concurring in part and concurring in judgment). Rather, the prosecutor's argument urged the jury [474 U.S. 873 , 875]

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