493 U.S. 876 (1989)

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U.S. Supreme Court

POTTS v. GEORGIA , 493 U.S. 876 (1989)

493 U.S. 876

Jack Howard POTTS, petitioner,
GEORGIA. No. 88-7495.

Supreme Court of the United States

October 2, 1989

Petition for writ of certiorari to the Supreme Court of Georgia.

Oct. 2, 1989. Denied.

Rehearing Denied Nov. 27, 1989.

See 493 U.S. 985.

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 to consider whether a defendant may be prevented from questioning prospective jurors regarding their ability to adhere to a state sentencing law that precludes jurors from considering the likelihood of parole in their decision whether to impose life imprisonment or death.

Page 493 U.S. 876 , 877

Both the Georgia Supreme Court and the United States Court of Appeals for the Fifth Circuit have held that such a limit on voir dire is constitutional. 259 Ga. 96, 101, 376 S.E.2d 851, 856 (1989); King v. Lynaugh, 850 F.2d 1055, 1060-1061 (CA5 1988). These decisions, however, cannot be squared with minimal due process requirements permitting a defendant to ensure that the jurors who sentence him consider only those factors that the State has deemed relevant to their decision. In the many States that prohibit jury consideration of parole, the Constitution demands that the defendant be allowed to test the jurors' ability to set that factor aside.

Jack Howard Potts was convicted of murder. During voir dire in his sentencing proceeding, several members of the venire volunteered the information that their decision whether to impose the death penalty would be significantly affected by their assessment of the likelihood of parole if they sentenced petitioner to life in prison. Georgia law forbids jurors to consider the possibility of parole during their deliberations. Ga.Code Ann. 17-8-76(a) (1982); Horton v. State, 249 Ga. 871, 873, 295 S.E.2d 281, 284 (1982), cert. denied, 459 U.S. 1188, 74 L. Ed.2d 1030 (1983). Accordingly, the trial judge asked these jurors if they could make their sentencing decision without regard to the possibility of parole; some suggested that they could not. Petitioner sought to question other prospective jurors about the nature and strength of their attitudes about parole on the ground that they, too, might be unable to set such considerations aside. The court refused to permit the questioning.

During its subsequent deliberations, the jury requested information about Potts' eligibility for parole if it were to impose a life sentence. The court instructed the jury to ignore parole in its deliberations, and the jury recommended that Potts be sentenced to death.

A sentence of death is the most violent and final sanction the State can inflict. Jurors who are charged with deciding whether to impose this most serious sanction must make their decision on the basis of law, not on prejudices that operate to the defendant's detriment. If a court fails to permit a defendant to take all reasonable steps to ensure impartial jury deliberations, it undermines the legitimacy of the capital sentencing process and of the legal system itself. By refusing to permit Potts to explore the jurors' [493 U.S. 876 , 878]

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