488 U.S. 902 (1988)

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U.S. Supreme Court

LEGO v. ILLINOIS , 488 U.S. 902 (1988)

488 U.S. 902

Donald R. LEGO
ILLINOIS. No. 88-5319.

Supreme Court of the United States

October 11, 1988

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

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.


Adhering to my view 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, 231, 2973, 49 L. Ed.2d 859 (1976) (MARSHALL J., dissenting), I would grant the petition for certiorari and vacate the death sentence in this case. Even if I did not take this view, I would grant the petition in order to resolve the question whether a state court, when recognizing a new federal constitutional rule governing criminal procedure, is bound by the retroactivity principles fashioned by this Court, and if so, whether the principle of retroactivity announced in Griffith v. Kentucky, 479 U.S. 314 (1987), applies to a state-court decision recognizing such a rule, notwithstanding the state court's pre-Griffith determination that, under the retroactivity decisions of this Court then in force, the new rule would be given prospective application only.

Page 488 U.S. 902 , 903


In March 1984, the petitioner was tried in state court for murder. During voir dire, the petitioner proposed that the trial court ask the venirepersons whether they "believe[d] in the presumption of innocence as it applies to a person charged with a crime." The trial court refused. The petitioner was subsequently convicted and, after a death penalty hearing, sentenced to death. In his direct appeal to the Illinois Supreme Court, the petitioner argued that the trial court's refusal to ask the proposed question violated People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), which was issued approximately six months after the petitioner's trial concluded. Zehr held that a criminal defendant is deprived of his right to "a fair and impartial jury" by a trial court's refusal to question prospective jurors on their view on the presumption of innocence. Id., at 477, 83 Ill.Dec., at 130, 469 N.E.2d, at 1064.

The Illinois Supreme Court rejected the petitioner's claim, noting that in People v. Britz, 112 Ill.2d 314, 97 Ill.Dec. 768, 493 N.E.2d 575 ( 1986), it had held that Zehr would not be applied retroactively because it " 'represented a change in Illinois law.' " 116 Ill.2d 323, 338, 107 Ill. Dec. 647, 652, 507 N.E.2d 800, 805 (1987) (quoting Britz, supra, 112 Ill. 2d, at 319, 97 Ill.Dec., at 770, 493 N.E.2d, at 577). Justice Simon dissented, finding that Britz could not be squared with this Court's subsequent decision in Griffith. In Griffith, the Court held that decisions announcing new constitutional rules governing criminal procedure are "to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." 479 U.S., at 328. In so doing, the Court explicitly abandoned the "clear break" exception, under which a new constitutional rule would not be applied retroactively if it represented a substantial departure from past precedent or accepted practice. Ibid.

As noted above, the Illinois Supreme Court's Britz decision is based on this now-discredited "clear break" exception, but the state court nonetheless insisted on applying it in the petitioner's case for reasons not made clear until People v. Harris, 123 Ill.2d 113, 112 Ill.Dec. 76, 526 N.E.2d 335 (1988), cert. den. sub nom. Wilson v. Illinois, 488 U.S. 902. There, the state court explained: " Griffith was not the law on retroactivity at the time this court decided Britz. We do not read Griffith as requiring us to recon- [488 U.S. 902 , 904]

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