After a jury trial in a Florida court, petitioner was found
guilty of murder, robbery, and assault with intent to kill.
Pursuant to Florida's capital sentencing statute, the same jury
heard further testimony and argument, and made a nonbinding
recommendation that the death penalty be imposed. The trial judge
followed that recommendation, and the Florida Supreme Court
affirmed the conviction and the sentence, rejecting petitioner's
contention that the prosecution's closing argument during the guilt
phase of the trial rendered the trial fundamentally unfair and
deprived the sentencing determination of the reliability required
by the Eighth Amendment. The court also rejected petitioner's
contention that the trial court erred in excluding a member of the
venire for cause on the basis of his affirmative response to the
judge's question during
voir dire
"Do you have any moral or religious, conscientious moral or
religious principles in opposition to the death penalty so strong
that you would be unable without violating your own principles to
vote to recommend a death penalty regardless of the facts?"
In subsequent federal habeas corpus proceedings, petitioner
raised the same claims, as well as the additional claim that he had
been denied effective assistance of counsel at the sentencing phase
of his trial. The District Court denied relief, and the Court of
Appeals ultimately affirmed the District Court's judgment in all of
its aspects.
Held:
The record of the jury
voir dire, viewed in its
entirety, shows that the trial court's decision to exclude the
juror involved here was proper.
Wainwright v. Witt,
469 U. S. 412,
held that the proper test is whether a juror's views on capital
punishment would prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his
oath. Petitioner's argument on this issue rested solely on the
wording of the question (quoted above) that the trial court asked
the juror before excluding him. However, a proper determination of
the issue requires examination of the context surrounding the
juror's exclusion. The record shows that, prior to individual
questioning, the trial court told the entire venire that they would
be questioned on this point, and that the juror in question was
present while the court repeatedly
Page 477 U. S. 169
stated the correct standard when questioning other individual
members of the panel. Pp.
477 U. S.
175-178.
2. The record also supports the rejection of petitioner's
contention as to the prosecution's closing argument. The
prosecution's argument included improper remarks that indicated
that petitioner was on weekend furlough from an earlier prison
sentence when the crime involved here occurred; implied that the
death penalty would be the only guarantee against a future similar
act; referred to petitioner as an "animal"; and reflected an
emotional reaction to the case. However, the relevant question is
whether the comments so infected the trial with unfairness as to
make the resulting conviction a denial of due process. Viewed under
this standard, the prosecution's comments did not deprive
petitioner of a fair trial. The comments did not manipulate or
misstate the evidence, or implicate other specific rights of the
accused, and much of their objectionable content was responsive to
the opening summation of the defense (available under a state
procedural rule). Moreover, defense counsel were able to use their
final rebuttal argument to turn much of the prosecution's closing
argument against it. Pp.
477 U. S.
178-183.
3. With respect to the claim of ineffective assistance of
counsel at the sentencing phase of the trial, petitioner failed to
satisfy the first part of the two-part test set forth in
Strickland v. Washington, 466 U.
S. 668, that his trial counsels' performance fell below
an objective standard of reasonableness. There is no merit to
petitioner's contention that trial counsel devoted only the time
between the close of the guilt phase of trial and the start of the
penalty phase -- approximately one-half hour -- to prepare the case
in mitigation. The record indicates that a great deal of time and
effort went into the defense of this case; a significant portion of
that time was devoted to preparation for sentencing. Moreover, a
defendant must overcome the presumption that, under the
circumstances, the challenged action of counsel might be considered
sound trial strategy. Petitioner did not overcome that presumption
here. The record shows several reasons why counsel reasonably could
have chosen to rely on a simple plea for mercy from petitioner
himself, rather than to attempt to introduce mitigating evidence.
477 U. S.
184-187.
767 F.2d 752, affirmed and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BURGER,
C.J., filed a concurring opinion,
post, p,
477 U. S. 187.
BRENNAN, J., filed a dissenting opinion,
post, p.
477 U. S. 188.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined,
post, p.
477 U. S.
188.
Page 477 U. S. 170
JUSTICE POWELL delivered the opinion of the Court.
This case presents three questions concerning the validity of
petitioner's criminal conviction and death sentence: (i) whether
the exclusion for cause of a member of the venire violated the
principles announced in
Wainwright v. Witt, 469 U.
S. 412 (1985); (ii) whether the prosecution's closing
argument during the guilt phase of a bifurcated trial rendered the
trial fundamentally unfair and deprived the sentencing
determination of the reliability required by the Eighth Amendment;
and (iii) whether petitioner was denied effective assistance of
counsel at the sentencing phase of his trial.
I
Petitioner was tried and found guilty of murder, robbery, and
assault with intent to kill in the Circuit Court for Citrus County,
Florida, in January, 1974. Pursuant to Florida's capital sentencing
statute, the same jury that convicted petitioner heard further
testimony and argument in order to make a nonbinding recommendation
as to whether a death sentence should be imposed. The jury
recommended a death sentence, and the trial judge followed that
recommendation. On direct appeal, the Florida Supreme Court
affirmed the conviction and the sentence. Petitioner made several
of the same arguments in that appeal that he makes here. With
respect to the prosecutorial misconduct claim, the court
disapproved of the closing argument, but reasoned that the law
required a new trial
"only in those cases in which it is reasonably evident that the
remarks might have influenced the jury to reach a more severe
verdict of guilt . . . or in which the comment is unfair."
Darden v. State, 329 So. 2d
287, 289 (1976). It concluded that the comments had not
rendered
Page 477 U. S. 171
petitioner's trial unfair. Petitioner's challenge to the juror
exclusion was rejected without comment. Petitioner did not at that
time raise his claim of ineffective assistance of counsel. This
Court granted certiorari, 429 U.S. 917 (1976), limited the grant to
the claim of prosecutorial misconduct, 429 U.S. 1036 (1977), heard
oral argument, and dismissed the writ as improvidently granted,
430 U. S. 704
(1977).
Petitioner then sought federal habeas corpus relief, raising the
same claims he raises here. The District Court denied the petition.
Darden v. Wainwright, 513 F.
Supp. 947 (MD Fla.1981). A divided panel of the Court of
Appeals for the Eleventh Circuit affirmed.
Darden v.
Wainwright, 699 F.2d 1031 (1983). The Court of Appeals granted
rehearing en banc, and affirmed the District Court by an equally
divided court. 708 F.2d 646 (1983). Following a second rehearing en
banc, the Court of Appeals reversed on the claim of improper
excusal of a member of the venire. 725 F.2d 1526 (1984). This Court
granted the State's petition for certiorari on that claim, vacated
the Court of Appeals' judgment, and remanded for reconsideration in
light of
Wainwright v. Witt, 469 U.S. 1202 (1985). On
remand, the en banc court denied relief, 767 F.2d 752 (1985).
Petitioner filed an application for a stay of his execution that
this Court treated as a petition for certiorari and granted, at the
same time staying his execution.
473 U. S. 928
(1985). We now affirm.
II
Because of the nature of petitioner's claims, the facts of this
case will be stated in more detail than is normally necessary in
this Court. On September 8, 1973, at about 5:30 p.m., a black adult
male entered Carl's Furniture Store near Lakeland, Florida. The
only other person in the store was the proprietor, Mrs. Turman, who
lived with her husband in a house behind the store. Mr. Turman, who
worked nights at a juvenile home, had awakened at about 5 p.m., had
a cup of coffee at the store with his wife, and returned home to
let
Page 477 U. S. 172
their dogs out for a run. Mrs. Turman showed the man around the
store. He stated that he was interested in purchasing about $600
worth of furniture for a rental unit, and asked to see several
different items. He left the store briefly, stating that his wife
would be back to look at some of the items.
The same man returned just a few minutes later asking to see
some stoves, and inquiring about the price. When Mrs. Turman turned
toward the adding machine, he grabbed her and pressed a gun to her
back, saying "Do as I say and you won't get hurt." He took her to
the rear of the store and told her to open the cash register. He
took the money, then ordered her to the part of the store where
some box springs and mattresses were stacked against the wall. At
that time, Mr. Turman appeared at the back door. Mrs. Turman
screamed while the man reached across her right shoulder and shot
Mr. Turman between the eyes. Mr. Turman fell backwards, with one
foot partially in the building. Ordering Mrs. Turman not to move,
the man tried to pull Mr. Turman into the building and close the
door, but could not do so because one of Mr. Turman's feet was
caught in the door. The man left Mr. Turman face-up in the rain,
and told Mrs. Turman to get down on the floor approximately five
feet from where her husband lay dying. While she begged to go to
her husband, he told her to remove her false teeth. He unzipped his
pants, unbuckled his belt, and demanded that Mrs. Turman perform
oral sex on him. She began to cry "Lord, have mercy." He told her
to get up and go towards the front of the store.
Meanwhile, a neighbor family, the Arnolds, became aware that
something had happened to Mr. Turman. The mother sent her
16-year-old son Phillip, a part-time employee at the furniture
store, to help. When Phillip reached the back door, he saw Mr.
Turman lying partially in the building. When Phillip opened the
door to take Turman's body inside, Mrs. Turman shouted "Phillip,
no, go back." Phillip did not know
Page 477 U. S. 173
what she meant, and asked the man to help get Turman inside. He
replied, "Sure, buddy, I will help you." As Phillip looked up, the
man was pointing a gun in his face. He pulled the trigger and the
gun misfired; he pulled the trigger again and shot Phillip in the
mouth. Phillip started to run away, and was shot in the neck. While
he was still running, he was shot a third time in the side. Despite
these wounds, Phillip managed to stumble to the home of a neighbor,
Mrs. Edith Hill. She had her husband call an ambulance while she
tried to stop Phillip's bleeding. While she was helping Phillip,
she saw a late model green Chevrolet leave the store and head
towards Tampa on State Highway 92. Phillip survived the incident;
Mr. Turman, who never regained consciousness, died later that
night.
Minutes after the murder petitioner was driving towards Tampa on
Highway 92, just a few miles away from the furniture store. He was
out on furlough from a Florida prison, and was driving a car
borrowed from his girlfriend in Tampa. He was driving fast on a wet
road. Petitioner testified that as he came up on a line of cars in
his lane, he was unable to slow down. He attempted to pass, but was
forced off the road to avoid a head-on collision with an oncoming
car. Petitioner crashed into a telephone pole. The driver of the
oncoming car, John Stone, stopped his car and went to petitioner to
see if he could help. Stone testified that, as he approached the
car, petitioner was zipping up his pants and buckling his belt.
Police at the crash site later identified petitioner's car as a
1969 Chevrolet Impala of greenish golden brown color. Petitioner
paid a bystander to give him a ride to Tampa. Petitioner later
returned with a wrecker, only to find that the car had been towed
away by the police.
By the time the police arrived at the scene of the accident,
petitioner had left. The fact that the car matched the description
of the car leaving the scene of the murder, and that the accident
had occurred within three and one-half miles of the furniture store
and within minutes of the murder, led police
Page 477 U. S. 174
to suspect that the car was driven by the murderer. They
searched the area. An officer found a pistol -- a revolver -- about
40 feet from the crash site. The arrangement of shells within the
chambers exactly matched the pattern that should have been found in
the murder weapon: one shot, one misfire, followed by three shots,
with a live shell remaining in the next chamber to be fired. A
specialist for the Federal Bureau of Investigation examined the
pistol and testified that it was a Smith & Wesson .38 special
revolver. It had been manufactured as a standard .38; it later was
sent to England to be rebored, making it a much rarer type of gun
than the standard .38. An examination of the bullet that killed Mr.
Turman revealed that it came from a .38 Smith & Wesson
special.
On the day following the murder, petitioner was arrested at his
girlfriend's house in Tampa. A few days later, Mrs. Turman
identified him at a preliminary hearing as her husband's murderer.
Phillip Arnold selected petitioner's picture out of a spread of six
photographs as the man who had shot him. [
Footnote 1] By that time, a Public Defender had been
appointed to represent petitioner.
Page 477 U. S. 175
As petitioner's arguments all relate to incidents in the course
of his trial, they will be taken up, together with the relevant
facts, in chronological order.
III
Petitioner contends that one member of the venire, Mr. Murphy,
was excluded improperly under the test enunciated in
Wainwright
v. Witt, 469 U. S. 412
(1985). That case modified this Court's opinion in
Witherspoon
v. Illinois, 391 U. S. 510
(1968).
Witherspoon had held that potential jurors may be
excused for cause when their opposition to the death penalty is
such that they automatically would vote against a sentence of death
or would be impaired in the task of determining defendant's guilt.
Witt held that the proper test is whether the juror's
views on capital punishment would "
prevent or substantially
impair the performance of his duties as a juror in accordance with
his instructions and his oath.'" 469 U.S. at 469 U. S. 424,
quoting Adams v. Texas, 448 U. S. 38,
448 U. S. 45
(1980). Witt also made clear that the trial judge's
determination that a potential juror is impermissibly biased is a
factual finding entitled to a presumption of correctness under 28
U.S.C. § 2254.
Petitioner's argument on this issue relies solely on the wording
of a question the trial court asked Murphy before excluding him.
The court asked:
"Do you have any moral or religious, conscientious moral or
religious principles in opposition
Page 477 U. S. 176
to the death penalty so strong that you would be unable without
violating your own principles to vote to recommend a death penalty
regardless of the facts?"
App. 9. Petitioner argues that this question does not correctly
state the relevant legal standard. As
Witt makes clear,
however, our inquiry does not end with a mechanical recitation of a
single question and answer. 469 U.S. at
469 U. S.
424-426. We therefore examine the context surrounding
Murphy's exclusion to determine whether the trial court's decision
that Murphy's beliefs would "substantially impair the performance
of his duties as a juror" was fairly supported by the record.
During
voir dire, but prior to individual questioning
on this point, the trial court spoke to the entire venire,
including Murphy, saying:
"Now I am going to ask each of you individually the same
question, so listen to me carefully, I want to know if any of you
have such strong religious, moral or conscientious principles in
opposition to the death penalty that you would be unwilling to vote
to return an advisory sentence recommending the death sentence even
though the facts presented to you should be such as under the law
would require that recommendation? Do you understand my
question?"
The court then proceeded to question the members of the venire
individually, but did so while the entire venire was present in the
courtroom. Thus, throughout the individual questioning, all the
veniremen could hear the questions and answers. In fact, the
prosecution frequently incorporated prior questioning of other
veniremen by reference, each time with the assurance from the
individual being questioned that he or she had heard and understood
the previous questions.
See Tr. 89-90, 112, 141-142;
see also id. at 150.
Page 477 U. S. 177
The court repeatedly stated the correct standard when
questioning individual members of the venire. [
Footnote 2] Murphy was present and heard the court
ask the proper
Witherspoon question over and over again.
[
Footnote 3] After many
instances of such
Page 477 U. S. 178
questioning, Murphy was seated in the jury box. The court first
asked Murphy his occupation, and learned that he was retired, but
had spent the eight years before retirement working in the
administration office of St. Pios Seminary. As previously noted,
the court then asked:
"Do you have any moral or religious, conscientious moral or
religious principles in opposition to the death penalty so strong
that you would be unable, without violating your own principles, to
vote to recommend a death penalty regardless of the facts?"
After Murphy responded "Yes, I have," he was excused.
The precise wording of the question asked of Murphy, and the
answer he gave, do not by themselves compel the conclusion that he
could not under any circumstance recommend the death penalty. But
Witt recognized that "determinations of juror bias cannot
be reduced to question-and-answer sessions which obtain results in
the manner of a catechism." 469 U.S. at
469 U. S. 424.
The trial court, "aided as it undoubtedly was by its assessment of
[the potential juror's] demeanor,"
id. at
469 U. S. 434,
was under the obligation to determine whether Murphy's views would
"
prevent or substantially impair the performance of his duties
as a juror,'" id. at 469 U. S. 424.
In making this determination, the trial court could take account of
the fact that Murphy was present throughout an entire series of
questions that made the purpose and meaning of the Witt
inquiry absolutely clear. No specific objection was made to the
excusal of Murphy by defense counsel. Nor did the court perceive,
as it had previously, any need to question further. Viewing the
record of voir dire in its entirety, we agree with the
reasoning of the Court of Appeals that the trial court's decision
to exclude this juror was proper. 767 F.2d at 754.
IV
Petitioner next contends that the prosecution's closing argument
at the guilt-innocence stage of the trial rendered his conviction
fundamentally unfair and deprived the sentencing
Page 477 U. S. 179
determination of the reliability that the Eighth Amendment
requires.
It is helpful as an initial matter to place these remarks in
context. Closing argument came at the end of several days of trial.
Because of a state procedural rule, [
Footnote 4] petitioner's counsel had the opportunity to
present the initial summation as well as a rebuttal to the
prosecutors' closing arguments. The prosecutors' comments must be
evaluated in light of the defense argument that preceded it, which
blamed the Polk County Sheriff's Office for a lack of evidence,
[
Footnote 5] alluded to the
death penalty, [
Footnote 6]
characterized the perpetrator of the crimes as an "animal,"
[
Footnote 7] and contained
counsel's personal opinion of the strength of the State's evidence.
[
Footnote 8]
The prosecutors then made their closing argument. That argument
deserves the condemnation it has received from every court to
review it, although no court has held that the argument rendered
the trial unfair. Several comments attempted to place some of the
blame for the crime on the
Page 477 U. S. 180
Division of Corrections, because Darden was on weekend furlough
from a prison sentence when the crime occurred. [
Footnote 9] Some comments implied that the
death penalty would be the only guarantee against a future similar
act. [
Footnote 10] Others
incorporated the defense's use of the word "animal." [
Footnote 11] Prosecutor McDaniel
made several offensive comments reflecting an emotional reaction to
the case. [
Footnote 12]
These comments undoubtedly were improper. But as both the District
Court and the
Page 477 U. S. 181
original panel of the Court of Appeals (whose opinion on this
issue still stands) recognized, it "is not enough that the
prosecutors' remarks were undesirable or even universally
condemned."
Darden v. Wainwright, 699 F.2d at 1036. The
relevant question is whether the prosecutors' comments "so infected
the trial with unfairness as to make the resulting conviction a
denial of due process."
Donnelly v. DeChristoforo,
416 U. S. 637
(1974). Moreover, the appropriate standard of review for such a
claim on writ of habeas corpus is "the narrow one of due process,
and not the broad exercise of supervisory power."
Id. at
416 U. S.
642.
Under this standard of review, we agree with the reasoning of
every court to consider these comments that they did not deprive
petitioner of a fair trial. [
Footnote 13] The prosecutors' argument
Page 477 U. S. 182
did not manipulate or misstate the evidence, nor did it
implicate other specific rights of the accused, such as the right
to counsel or the right to remain silent.
See Darden v.
Wainwright, 513 F. Supp. at 958. Much of the objectionable
content was invited by, or was responsive to, the opening summation
of the defense. As we explained in
United States v. Young,
470 U. S. 1 (1985),
the idea of "invited response" is used not to excuse improper
comments, but to determine their effect on the trial as a whole.
Id. at
470 U. S. 13. The
trial court instructed the jurors several times that their decision
was to be made on the basis of the evidence alone, and that the
arguments of counsel were not evidence. The weight of the evidence
against petitioner was heavy; the "overwhelming eyewitness and
circumstantial evidence to support a finding of guilt on all
charges," 329 So. 2d at 291, reduced the likelihood that the jury's
decision was influenced by argument. Finally, defense counsel made
the tactical decision not to present any witness other than
petitioner. This decision not only permitted them to give their
summation prior to the prosecution's closing argument, but also
gave them the opportunity to make a final rebuttal argument.
Defense counsel were able to use the opportunity for rebuttal very
effectively, turning much of the prosecutors' closing argument
against them by placing many of the prosecutors' comments and
actions in a light that was more likely to engender strong
disapproval than result in inflamed passions against petitioner.
[
Footnote 14]
Page 477 U. S. 183
For these reasons, we agree with the District Court below that
"Darden's trial was not perfect -- few are -- but neither was it
fundamentally unfair." 513 F. Supp. at 958. [
Footnote 15]
Page 477 U. S. 184
V
Petitioner contends that he was denied effective assistance of
counsel at the sentencing phase of trial. That claim must be
evaluated against the two-part test announced in
Strickland v.
Washington, 466 U. S. 668
(1984). First, petitioner must show that "counsel's representation
fell below an objective standard of reasonableness."
Id.
at
466 U. S. 688.
Second, petitioner must show that "counsel's representation fell
below and objective standard of reasonableness."
Id. at
466 U. S. 688.
Second, petitioner must show that
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different."
Id. at
466 U. S. 694.
Petitioner argues that his trial counsel did not delve sufficiently
into his background, and, as a result, were unprepared to present
mitigating evidence at the sentencing hearing.
As an initial matter, petitioner contends that the trial counsel
devoted only the time between the close of the guilt phase of trial
and the start of the penalty phase -- approximately one-half hour
-- to preparing the case in mitigation. That argument is without
merit. Defense counsel engaged in extensive preparation prior to
trial, in a manner that included preparation for sentencing. Mr.
Jack Johnson, head of the Public Defender's office at the time,
stated to the habeas court that "we had expended hundreds of hours
on [petitioner's] behalf trying to represent him," Tr. of Habeas
Corpus Proceedings 219, and that his office "worked very hard on
the case."
Id. at 237. Mr. Goodwill, an experienced
criminal trial lawyer, testified that he
"spent more time on this case
Page 477 U. S. 185
than I spent on . . . any capital case I have been involved in,
probably more time than any case I've ever been involved in."
Supp.App. 30. That included time investigating petitioner's
alibi, and driving petitioner around the scene of events to
establish each point of his story. Counsel obtained a psychiatric
report on petitioner, with an eye toward using it in mitigation
during sentencing. Counsel also learned in pretrial preparation
that Mrs. Turman was opposed to the death penalty, and considered
the possibility of putting her on the stand at the sentencing
phase. The record clearly indicates that a great deal of time and
effort went into the defense of this case; a significant portion of
that time was devoted to preparation for sentencing.
Petitioner also claims that his trial counsel interpreted
Fla.Stat. § 921.141(6) (1985), a statutory list of mitigating
factors, as an exclusive list. He contends that their failure to
introduce any evidence in mitigation was the result of this
interpretation of the statute, and that he was thereby deprived of
effective assistance of counsel. We express no view about the
reasonableness of that interpretation of Florida law, because, in
this case, the trial court specifically informed petitioner and his
counsel just prior to the sentencing phase of trial that they
could
"go into any other factors that might really be pertinent to
full consideration of your case and the analysis of you and your
family situation, your causes, or anything else that might be
pertinent to what is the appropriate sentence."
Tr. 887. At that point, even if counsel previously believed the
list to be exclusive, they knew they were free to offer
nonstatutory mitigating evidence, and chose not to do so.
As we recognized in
Strickland:
"Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time."
466 U.S. at
466 U. S. 689.
In particular,
"a court
Page 477 U. S. 186
must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound
trial strategy.'"
Ibid., quoting
Michel v. Louisiana,
350 U. S. 91,
350 U. S. 101
(1955). In this case, there are several reasons why counsel
reasonably could have chosen to rely on a simple plea for mercy
from petitioner himself. Any attempt to portray petitioner as a
nonviolent man would have opened the door for the State to rebut
with evidence of petitioner's prior convictions. This evidence had
not previously been admitted in evidence, and trial counsel
reasonably could have viewed it as particularly damaging. The head
of the Public Defenders Office testified at the habeas corpus
hearing that petitioner "had been in and out of jails and prisons
for most of his adult life. . . ." Tr. of Habeas Corpus Proceedings
209. Petitioner had, for example, previously been convicted of
assault with intent to commit rape.
Darden v. State, 218
So. 2d 485 (Fla.App.1969). In addition, if defense counsel had
attempted to offer testimony that petitioner was incapable of
committing the crimes at issue here, the State could have responded
with a psychiatric report that indicated that petitioner
"very well could have committed the crime; that he was, as I
recall his [the psychiatrist's] term, sociopathic-type personality;
that he would act entirely on impulse, with no premeditation from
the standpoint of planning. But that, when a situation arose, the
decision would be made simultaneously to commit the act."
Supp. App. 76 (testimony of Mr. Goodwill). For that reason,
after consultation with petitioner, defense counsel rejected use of
the psychiatric testimony. Tr. 886. Similarly, if defense counsel
had attempted to put on evidence that petitioner was a family man,
they would have been faced with his admission at trial that,
although still married, he was spending the weekend furlough with a
girlfriend. In sum, petitioner has not "overcome the presumption
that, under the circumstances, the challenged action
might be
considered
Page 477 U. S.
187
sound trial strategy.'" 466 U.S. at 466 U. S. 689,
quoting Michel v. Louisiana, supra, at 350 U. S. 101.
Petitioner has failed to satisfy the first part of the
Strickland test, that his trial counsels' performance fell
below an objective standard of reasonableness. We agree with both
the District Court and the Court of Appeals that petitioner was not
deprived of the effective assistance of counsel. 699 F.2d at
1037.
VI
The judgment of the Court of Appeals is affirmed, and the case
is remanded for proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
There are some minor discrepancies in the eyewitness
identification. Mrs. Turman first described her assailant
immediately after the murder while her husband was being taken to
the emergency room. She told the investigating officer that the
attacker was a heavy-set man. Tr. 237. When asked if he was "neat
in his appearance, clean-looking, clean-shaven," she responded
"[a]s far as I can remember, yes, sir."
Ibid. She also
stated to the officer that she thought that the attacker was about
her height, 5'6" tall, and that he was wearing a pullover shirt
with a stripe around the neck.
Id. at 227. The first time
she saw petitioner after the attack was when she identified him at
the preliminary hearing. She had not read any newspaper accounts of
the crime, nor had she seen any picture of petitioner. When she was
asked if petitioner was the man who had committed the crimes, she
said yes. She also repeatedly identified him at trial.
Phillip Arnold first identified petitioner in a photo lineup
while in the hospital. He could not speak at the time, and in
response to the written question whether petitioner had a mustache,
Phillip wrote back "I don't think so."
Id. at 476. Phillip
also testified at trial that the attacker was a heavy-set man
wearing a dull, light color knit shirt with a ring around the neck.
Id. at 443. He testified that the man was almost his
height, about 6'2" tall.
A motorist who stopped at the scene of the accident testified
that petitioner was wearing a white or off-grey button-down shirt
and that he had a slight mustache.
Id. at 313, 318-320. In
fact, the witness stated that he "didn't know it was that [the
mustache] or the raindrops on him or not. I couldn't really tell
that much to it, it was real thin, that's all."
Id. at
318-319. Petitioner is about 5'10" tall, and at the time of trial
testified that he weighed about 175 pounds.
[
Footnote 2]
Prior to
voir dire, defense counsel objected to any
questioning by the prosecution regarding a potential juror's
feelings about the death penalty. The judge denied the motion,
stating:
"It is my ruling, if a prospective juror states on his
voir
dire examination that, because of his moral, religious or
conscientious principles and belief, he would be unwilling to
recommend a death penalty, even though the facts and circumstances
meet the requirements of law, then he in effect has said he would
be unwilling to follow the law. . . ."
App. 6. Although the judge correctly stated the general standard
for dismissal, he assured defense counsel that they were free to
make an objection to any particular
Witherspoon question
that was otherwise objectionable or that had "gone too far."
Id. at 7.
[
Footnote 3]
For example, the court asked Mrs. Macy:
"[D]o you hold such conscientious moral or religious principles
in opposition to the death penalty that you would be unwilling
under any circumstances to recommend the death sentence?"
Tr. 44. To Mr. Varney, who responded affirmatively to the above
question, the court asked further:
"[I]n the event that the evidence should be such that, under the
law, that should be the legal recommendation, you would be
unwilling to return such a recommendation because of your
conscientious beliefs?"
Ibid. When three new veniremen replaced others who had
been excused, the court asked:
"Do either of the three of you hold such strong religious, moral
or conscientious principles in opposition to the imposition of the
death penalty that you would be unwilling to vote to recommend the
death penalty regardless of what the evidence was?"
Id. at 88. At a similar point later on, the court
explained to replacements from the venire that
"I have asked the others, and I will ask each of the four of
you, whether you have such strong religious, conscientious or moral
principles against the imposition of the death penalty that you
would be unwilling to vote to return a recommended sentence of the
death penalty regardless of what the evidence or the facts might
be?"
Id. at 109. When one of the four expressed
reservations, the court once again followed up with further
questioning, demonstrating its practice of assuring itself, if
there was any doubt, of the potential juror's true position.
See also id. at 107. During the
voir dire
examination prior to Murphy, four potential jurors were excused on
Witherspoon grounds.
[
Footnote 4]
Rule 3.250 of the Florida Rules of Criminal Procedure (1973)
provided that "a defendant offering no testimony in his own behalf,
except his own, shall be entitled to the concluding argument before
the jury."
[
Footnote 5]
"The Judge is going to tell you to consider the evidence or the
lack of evidence. We have a lack of evidence, almost criminally
negligent on the part of the Polk County Sheriff's Office in this
case. You could go on and on about it."
Tr. 728.
[
Footnote 6]
"They took a coincidence and magnified that into a capital case.
And they are asking you to kill a man on coincidence. "
Id. at 730.
[
Footnote 7]
"The first witness that you saw was Mrs. Turman, who was a
pathetic figure; who worked and struggled all of her life to build
what little she had, the little furniture store; and a woman who
was robbed, sexually assaulted, and then had her husband
slaughtered before her eyes, by what would have to be a vicious
animal."
Id. at 717.
"And this murderer ran after him, aimed again, and this poor kid
with half his brains blown away. . . . It's the work of an animal,
there's no doubt about it."
Id. at 731-732.
[
Footnote 8]
"So they come on up here and ask Citrus County people to kill
the man. You will be instructed on lesser included offenses. . . .
The question is, do they have enough evidence to kill that man,
enough evidence? And I honestly do not think they do."
Id. at 736-737.
[
Footnote 9]
"As far as I am concerned, there should be another Defendant in
this courtroom, one more, and that is the division of corrections,
the prisons. . . . Can we expect him to stay in a prison when they
go there? Can't we expect them to stay locked up once they go
there? Do we know that they're going to be out on the public with
guns, drinking?"
"App. 15-16."
"Yes, there is another Defendant, but I regret that I know of no
charges to place upon him, except the public condemnation of them,
condemn them."
Id. at 16.
[
Footnote 10]
"I will ask you to advise the Court to give him death. That's
the only way that I know that he is not going to get out on the
public. It's the only way I know. It's the only way I can be sure
of it. It's the only way that anybody can be sure of it now,
because the people that turned him loose -- ."
Id. at 17-18.
[
Footnote 11]
"As far as I am concerned, and as Mr. Maloney said as he
identified this man, this person as an animal, this animal was on
the public for one reason."
Id. at 15.
[
Footnote 12]
"He shouldn't be out of his cell unless he has a leash on him
and a prison guard at the other end of that leash."
Id. at
16.
"I wish [Mr. Turman] had had a shotgun in his hand when he
walked in the back door and blown his [Darden's] face off. I wish
that I could see him sitting here with no face, blown away by a
shotgun."
Id. at 20. "I wish someone had walked in the back door
and blown his head off at that point."
Ibid. "He fired in
the boy's back, number five, saving one. Didn't get a chance to use
it. I wish he had used it on himself."
Id. at 28. "I wish
he had been killed in the accident, but he wasn't. Again, we are
unlucky that time."
Id. at 29.
"[D]on't forget what he has done according to those witnesses,
to make every attempt to change his appearance from September the
8th, 1973. The hair, the goatee, even the moustache and the weight.
The only thing he hasn't done that I know of is cut his
throat."
Id. at 31. After this, the last in a series of such
comments, defense counsel objected for the first time.
[
Footnote 13]
JUSTICE BLACKMUN's dissenting opinion argues that, because of
prosecutorial misconduct, petitioner did not receive a fair trial.
The dissent states that the Court is "willing to tolerate not only
imperfection but a level of fairness and reliability so low it
should make conscientious prosecutors cringe."
Post at
477 U. S. 189.
We agree that the argument was, and deserved to be, condemned.
Supra, at
477 U. S. 179.
Conscientious prosecutors will recognize, however, that every court
that criticized the argument went on to hold that the fairness of
petitioner's trial was not affected by the prosecutors'
argument.
On direct appeal in 1976, the Florida Supreme Court so held
after a careful review of the "totality of the record."
Darden
v. State, 329 So. 2d
287, 290-291. On the first federal habeas petition, the
District Court considered the prosecution's closing argument at
length, and denied the petition. It concluded, after a "thorough
review of the record," that it was "convinced that no relief is
warranted."
Darden v. Wainwright, 613 F. Supp. 947, 958
(MD Fla.1981). "Darden's trial was not perfect -- few are -- but
neither was it fundamentally unfair."
Ibid. The original
panel of the Court of Appeals affirmed the District Court's holding
with respect to the prosecutors' argument. It stated that it had
"considered the prosecutors' remarks and evaluated them in light of
Darden's entire trial," and that it "agree[d] with the district
court's conclusion that the prosecutors' comments did not deny
Darden a fundamentally fair trial." 699 F.2d 1031, 1036-1037
(1983). When the Court of Appeals reheard the case en banc for the
second time, it expressly agreed with the panel decision on the
prosecutorial misconduct issue. 725 F.2d 1526, 1532 (1984).
The Court of Appeals, however, reversed the District Court on
the
Witherspoon issue. This Court granted the State's
petition for certiorari only on that issue, and vacated and
remanded the case for reconsideration in light of
Wainwright v.
Witt, 469 U. S. 412
(1985). The Court of Appeals denied all relief, 767 F.2d 752
(1985). During this protracted litigation, not one court has agreed
with petitioner's claim with respect to improper prosecutorial
argument.
[
Footnote 14]
"Mr. McDaniel made an impassioned plea . . . how many times did
he repeat [it]? I wish you had been shot, I wish they had blown his
face away. My God, I get the impression he would like to be the man
that stands there and pulls the switch on him."
Tr. 791;
see also id. at 794.
One of Darden's counsel testified at the habeas corpus hearing
that he made the tactical decision not to object to the improper
comments. Based on his long experience with prosecutor McDaniel, he
knew McDaniel would "get much more vehement in his remarks if you
allowed him to go on." By not immediately objecting, he hoped to
encourage the prosecution to commit reversible error. Supp.App.
46-47.
[
Footnote 15]
JUSTICE BLACKMUN's dissenting opinion mistakenly argues that the
Court today finds, in essence, that any error was harmless, and
then criticizes the Court for not applying the harmless error
standard.
Post at
477 U. S. 196-197. We do not decide the claim of
prosecutorial misconduct on the ground that it was harmless error.
In our view of the case, that issue is not presented. Rather, we
agree, with the holding of every court that has addressed the
issue, that the prosecutorial argument, in the context of the facts
and circumstances of this case, did not render petitioner's trial
unfair --
i.e., that it was not constitutional error.
Petitioner also maintains that the comments violated the
requirement of reliability in the sentencing process articulated in
Caldwell v. Mississippi, 472 U. S. 320
(1985). The principles of
Caldwell are not applicable to
this case.
Caldwell involved comments by a prosecutor
during the sentencing phase of trial to the effect that the jury's
decision as to life or death was not final, that it would
automatically be reviewed by the State Supreme Court, and that the
jury should not be made to feel that the entire burden of the
defendant's life was on them. This Court held that such comments
"presen[t] an intolerable danger that the jury will in fact choose
to minimize the importance of its role," a view that would be
fundamentally incompatible with the Eighth Amendment requirement
that the jury make an individualized decision that death is the
appropriate punishment in a specific case.
Id. at
472 U. S.
333.
There are several factual reasons for distinguishing
Caldwell from the present case. The comments in
Caldwell were made at the sentencing phase of trial, and
were approved by the trial judge. In this case, the comments were
made at the guilt-innocence stage of trial, greatly reducing the
chance that they had any effect at all on sentencing. The trial
judge did not approve of the comments, and several times instructed
the jurors that the arguments were not evidence, and that their
decision was to be based only on the evidence. But petitioner's
reliance on
Caldwell is even more fundamentally mistaken
than these factual differences indicate.
Caldwell is
relevant only to certain types of comment -- those that mislead the
jury as to its role in the sentencing process in a way that allows
the jury to feel less responsible than it should for the sentencing
decision. In this case, none of the comments could have had the
effect of misleading the jury into thinking that it had a reduced
role in the sentencing process. If anything, the prosecutors'
comments would have had the tendency to
increase the
jury's perception of its role. We therefore find petitioner's
Eighth Amendment argument unconvincing.
CHIEF JUSTICE BURGER, concurring.
I concur fully in the opinion for the Court, and write
separately only to address the suggestion in JUSTICE BLACKMUN's
dissent that the Court rejects Darden's
Witherspoon claim
because of its "impatience with the progress of Darden's
constitutional challenges to his conviction."
Post at
477 U. S. 204.
In support of this contention, reference is made to my dissent from
the grant of certiorari in this case. The dissent states that I
voted to deny the petition because Darden's claims have been
reviewed by 95 judges in the 12 years since his conviction. This is
simply incorrect. To set the record straight, I quote my dissent in
full:
"In the 12 years since petitioner was convicted of murder and
sentenced to death, the issues now raised in the petition for
certiorari have been considered by this Court four times,
see
Darden v. Florida, 430 U. S. 704 (1977) (dismissing
certiorari as improvidently granted);
Darden v.
Wainwright, 467 U.S. 1230 (1984) (denying certiorari);
Wainwright v. Darden, 469 U.S. 1202 (1985) (vacating and
remanding 725 F.2d 1526 (CA11 1984));
Darden v.
Wainwright, [473 U.S. 927] (order dated September 3, 1985,
denying application for stay), and have been passed upon no fewer
than 95 times by federal and
Page 477 U. S. 188
state court judges. Upon review of the petition and the history
of this case, I conclude that no issues are presented that merit
plenary review by this Court. Because we abuse our discretion when
we accept meritless petitions presenting claims that we rejected
only hours ago, I dissent."
473 U.S. 929 (1985).
As my dissent makes clear, I voted to deny the petition in this
extraordinary case because the meritless claims raised did not
require plenary review. Full briefing and oral argument have not
changed my views.
The dissent's suggestion that this Court is motivated by
impatience with Darden's constitutional claims is refuted by the
record; the 13 years of judicial proceedings in this case manifest
substantial care and patience. Our rejection of Darden's claims in
this, the fourth time he has sought review in this Court, is once
again based on a thoughtful application of the law to the facts of
the case. At some point, there must be finality.
JUSTICE BRENNAN, dissenting.
I join my Brother BLACKMUN's dissent. Moreover, 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,
428 U. S. 227
(1976) (BRENNAN, J., dissenting), I would vacate the death sentence
imposed in this case.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS join, dissenting.
Although the Constitution guarantees a criminal defendant only
"a fair trial [and] not a perfect one,"
Lutwak v. United
States, 344 U. S. 604,
344 U. S. 619
(1953);
Bruton v. United States, 391 U.
S. 123,
391 U. S. 135
(1968), this Court has stressed repeatedly in the decade since
Gregg v. Georgia, 428 U. S. 153
(1976), that the Eighth Amendment requires a heightened degree of
reliability in any case where a State seeks to take the
defendant's
Page 477 U. S. 189
life. [
Footnote 2/1] Today's
opinion, however, reveals a Court willing to tolerate not only
imperfection but a level of fairness and reliability so low it
should make conscientious prosecutors cringe.
I
A
The Court's discussion of Darden's claim of prosecutorial
misconduct is noteworthy for its omissions. Despite the fact that,
earlier this Term, the Court relied heavily on standards governing
the professional responsibility of defense counsel in ruling that
an attorney's actions did not deprive his client of any
constitutional right,
see Nix v. Whiteside, 475 U.
S. 157,
475 U. S.
166-171 (1986), today it entirely ignores standards
governing the professional responsibility of prosecutors in
reaching the conclusion that the summations of Darden's prosecutors
did not deprive him of a fair trial.
See ante at
477 U. S.
178-183.
The prosecutors' remarks in this case reflect behavior as to
which "virtually all the sources speak with one voice,"
Nix v.
Whiteside, supra, at
475 U. S. 166,
that is, a voice of strong condemnation. [
Footnote 2/2] The following brief comparison of
established standards
Page 477 U. S. 190
of prosecutorial conduct with the prosecutors' behavior in this
case merely illustrates, but hardly exhausts, the scope of the
misconduct involved:
Page 477 U. S. 191
1. "A lawyer shall not . . . state a personal opinion as to . .
. the credibility of a witness . . . or the guilt or innocence of
an accused." Model Rules of Professional Conduct, Rule 3.4(e)
(1984);
see also Code of Professional Responsibility, DR
7-106(C)(4) (1980); ABA Standards for Criminal Justice 3-5.8(b)(2d
ed.1980). Yet one prosecutor, White, stated:
"I am convinced, as convinced as I know I am standing before you
today, that Willie Jasper Darden is a murderer, that he murdered
Mr. Turman, that he robbed Mrs. Turman, and that he shot to kill
Phillip Arnold. I will be convinced of that the rest of my
life."
App. 15. And the other prosecutor, McDaniel, stated, with
respect to Darden's testimony:
"Well, let me tell you something: If I am ever over in that
chair over there, facing life or death, life imprisonment or death,
I guarantee you I will lie until my teeth fall out."
Id. at 18.
2.
"The prosecutor should refrain from argument which would divert
the jury from its duty to decide the case on the
Page 477 U. S. 192
evidence, by injecting issues broader than the guilt or
innocence of the accused under the controlling law, or by making
predictions of the consequences of the jury's verdict."
ABA Standards for Criminal Justice 3-5.8(d) (2d ed.1980);
cf. Model Rules of Professional Conduct, Rule 3.4(e); Code
of Professional Responsibility, DR 7-106(C)(7); ABA Standards for
Criminal Justice 3-6. 1(c) (2d ed.1980). Yet McDaniel's argument
was filled with references to Darden's status as a prisoner on
furlough who "shouldn't be out of his cell unless he has a leash on
him." App. 16;
see also, e.g., id. at 17, 18, 23, 24, 26.
Again and again, he sought to put on trial an absent "defendant,"
the State Department of Corrections that had furloughed Darden.
See, e.g., id. at 15, 17, 23, 32. He also implied that
defense counsel would use improper tricks to deflect the jury from
the real issue.
See id. at 15, 26. Darden's status as a
furloughed prisoner, the release policies of the Department of
Corrections, and his counsel's anticipated tactics obviously had no
legal relevance to the question the jury was being asked to decide:
whether he had committed the robbery and murder at the Turmans'
furniture store. Indeed, the State argued before this Court that
McDaniel's remarks were harmless precisely
because he
"failed to discuss the issues, the weight of the evidence, or the
credibility of the witnesses." Brief for Respondent 26.
3. "The prosecutor should not use arguments calculated to
inflame the passions or prejudices of the jury." ABA Standards for
Criminal Justice 3-5.8(c) (2d ed.1980);
see Berger v. United
States, 295 U. S. 78,
295 U. S. 88
(1935). Yet McDaniel repeatedly expressed a wish "that I could see
[Darden] sitting here with no face, blown away by a shotgun," App.
20;
see also, e.g., id. at 28, 29, 31. Indeed, I do not
think McDaniel's summation, taken as a whole, can accurately be
described as anything but a relentless and single-minded attempt to
inflame the jury.
Page 477 U. S. 193
B
The Court,
see ante at
477 U. S. 181,
relies on the standard established in
Donnelly v.
DeChristoforo, 416 U. S. 637,
416 U. S. 643
(1974), for deciding when a prosecutor's comments at a state trial
render that trial fundamentally unfair. It omits, however, any
discussion of the facts, so different from those in this case, that
led the Court to conclude in
DeChristoforo that that
defendant had not been deprived of a fair trial.
DeChristoforo concerned "two remarks made by the
prosecutor during the course of his rather lengthy closing argument
to the jury."
Id. at
416 U. S. 640.
One remark was "but one moment of an extended trial."
Id.
at
416 U. S. 645.
And even the more objectionable remark was so "ambiguous,"
ibid., that it provided no basis for inferring either that
the prosecutor
"intend[ed] [it] to have its most damaging meaning or that a
jury, sitting through lengthy exhortation, [would] draw that
meaning from the plethora of less damaging interpretations,"
id. at
416 U. S. 647.
Finally, the trial judge in
DeChristoforo expressly
instructed the jury to disregard the improper statements.
Id. at
416 U. S. 645.
This Court's holding thus rested on its conclusion that the
prosecutor's comments were neither so extensive nor so improper as
to violate the Constitution.
Far from involving "ambiguous" statements that "might or might
not" affect the jury,
id. at
416 U. S. 647,
the remarks at issue here were "focused, unambiguous, and strong."
Caldwell v. Mississippi, 472 U. S. 320,
427 U. S. 340
(1985). It is impossible to read the transcript of McDaniel's
summation without seeing it as a calculated and sustained attempt
to inflame the jury. Almost every page contains at least one
offensive or improper statement; some pages contain little else.
The misconduct here was not
"slight or confined to a single instance, but . . . was
pronounced and persistent, with a probable cumulative effect upon
the jury which cannot be disregarded as inconsequential."
Berger v. United States, 295 U.S. at
295 U. S. 89.
Page 477 U. S. 194
C
The Court presents what is, for me, an entirely unpersuasive
one-page laundry list of reasons for ignoring this blatant
misconduct. First, the Court says that the summations
"did not manipulate or misstate the evidence [or] . . .
implicate other specific rights of the accused, such as the right
to counsel or the right to remain silent."
Ante at
477 U. S. 182.
With all respect, that observation is quite beside the point. The
"solemn purpose of endeavoring to ascertain the truth . . . is the
sine qua non of a fair trial,"
Estes v. Texas,
381 U. S. 532,
381 U. S. 540
(1965), and the summations cut to the very heart of the Due Process
Clause by diverting the jury's attention "from the ultimate
question of guilt or innocence that should be the central concern
in a criminal proceeding."
Stone v. Powell, 428 U.
S. 465,
428 U. S. 490
(1976).
Second, the Court says that "[m]uch of the objectionable content
was invited by or was responsive to the opening summation of the
defense."
Ante at
477 U. S. 182, citing
United States v. Young,
470 U. S. 1 (1985).
The Court identifies four portions of the defense summation that it
thinks somehow "invited" McDaniel's sustained barrage. The State,
however, did not object to any of these statements, and, to my
mind, none of them is so objectionable that it would have justified
a tactical decision to interrupt the defense summation and perhaps
irritate the jury.
Cf. id. at
470 U. S.
13-14.
The Court begins by stating that defense counsel "blamed" the
Sheriff's Office for a lack of evidence.
Ante at
477 U. S. 179.
The Court does not identify which, if any, of McDaniel's remarks
represented a response to this statement. I cannot believe that the
Court is suggesting, for example, that defense counsel's one
mention of the "almost crimina[l] negligen[ce] on the part of the
Polk County Sheriff's Office," Tr. 728, justified McDaniel's
express and repeated wish that he could try the Department of
Corrections for murder.
See, e.g., App. 15, 17, 23,
32.
Page 477 U. S. 195
Next, the Court notes that defense counsel "alluded" to the
death penalty.
Ante at
477 U. S. 179.
While this allusion might have justified McDaniel's statement that
"you are merely to determine his innocence or guilt, nothing else,"
App. 17, it could hardly justify, for example, McDaniel's
expressions of his personal wish that Darden be "blown away by a
shotgun,"
id. at 20;
see also id. at 28, 29,
31.
Moreover, the Court says, defense counsel twice referred to the
perpetrator as an "animal."
Ante at
477 U. S. 179;
see Tr. 717, 732. It is entirely unclear to me why this
characterization called for any response from the prosecutor at
all. Taken in context, defense counsel's statements did nothing
more than tell the jury that, although everyone agreed that a
heinous crime had been committed, the issue on which it should
focus was whether Darden had committed it.
Finally, the Court finds that Darden brought upon himself
McDaniel's tirade because defense counsel gave his "personal
opinion of the strength of the State's evidence."
Ante at
477 U. S. 179.
Again, the Court gives no explanation of how the statement it
quotes -- a single, mild expression of defense counsel's overall
assessment of the evidence -- justified the "response" that
followed, which consisted, to the extent it represented a comment
on the evidence at all, of accusations of perjury,
see
App. 18-19, and personal disparagements of opposing counsel,
see id. at 15, 26. In sum, McDaniel went so far beyond
"respond[ing] substantially in order to
right the scale,'"
Young, 470 U.S. at 470 U. S. 13,
that the reasoning in Young provides no basis at all for
the Court's holding today.
The third reason the Court gives for discounting the effects of
the improper summations is the supposed curative effect of the
trial judge's instructions: the judge had instructed the jury that
it was to decide the case on the evidence, and that the arguments
of counsel were not evidence.
Ante at
477 U. S. 182.
But the trial court overruled Darden's objection to McDaniel's
repeated expressions of his wish that Darden had been killed, App.
31, thus perhaps leaving the jury with the
Page 477 U. S. 196
impression that McDaniel's comments were somehow relevant to the
question before them. The trial judge's instruction that the
attorneys were "trained in the law," and thus that their "analysis
of the issues" could be "extremely helpful," Tr. 714, might also
have suggested to the jury that the substance of McDaniel's tirade
was pertinent to their deliberations.
Fourth, the Court suggests that, because Darden enjoyed the
tactical advantage of having the last summation, he was able to
"tur[n] much of the prosecutors' closing argument against them."
Ante at
477 U. S. 182.
But the issue before the jury was whether Darden was guilty, not
whether McDaniel's summation was proper. And the question before
this Court is not whether we agree with defense counsel's criticism
of the summation, but whether the jury was affected by it. Since
Darden was ultimately convicted, it is hard to see what basis the
Court has for its naked assertion that "[d]efense counsel were able
to use the opportunity for rebuttal very effectively."
Ibid.;
cf. Young, 470 U.S. at
470 U. S. 18, n.
15 (the defendant's acquittal of the most serious charge
"reinforces our conclusion that the prosecutor's remarks did not
undermine the jury's ability to view the evidence independently and
fairly").
Fifth, the Court finds, in essence, that any error was
harmless:
"The weight of the evidence against petitioner was heavy; the
'overwhelming eyewitness and circumstantial evidence to support a
finding of guilt on all charges,' 329 So. 2d at 291, reduced the
likelihood that the jury's decision was influenced by
argument."
Ante at
477 U. S. 182.
The Court rejects the "no effect" test set out in
Caldwell v.
Mississippi, 472 U. S. 320
(1985),
see ante at
477 U. S. 183,
n. 14, but it does not identify the standard it does use to decide
the harmlessness of the error. [
Footnote 2/3]
Page 477 U. S. 197
Every harmless error standard that this Court has employed,
however, shares two salient features. First, once serious error has
been identified, the burden shifts to the beneficiary of the error
to show that the conviction was not tainted. Second, although
different formulations of the harmless error standard differ in the
level of confidence in the outcome required to overcome that
burden, the question before a reviewing court is never whether the
evidence would have been sufficient to justify conviction, absent
an error, but, rather, whether the error undermines its confidence
in the outcome of the proceeding to an unacceptable degree.
See, e.g., United States v. Young, 470 U.S. at
470 U. S. 20;
Chapman v. California, 386 U. S. 18,
386 U. S. 24
(1967);
Kotteakos v. United States, 328 U.
S. 750,
328 U. S. 765
(1946).
Regardless of which test is used, I simply do not believe the
evidence in this case was so overwhelming that this Court can
conclude, on the basis of the written record before it, that the
jury's verdict was not the product of the prosecutors' misconduct.
The three most damaging pieces of evidence -- the identifications
of Darden by Phillip Arnold and Helen Turman and the ballistics
evidence -- are all sufficiently problematic that they leave me
unconvinced that a jury not exposed to McDaniel's egregious
summation would necessarily have convicted Darden.
Page 477 U. S. 198
Arnold first identified Darden in a photo array shown to him in
the hospital. The trial court suppressed that out-of-court
identification following a long argument concerning the reliability
and constitutionality of the procedures by which it was obtained.
See Tr. 487-488. [
Footnote
2/4]
Mrs. Turman's initial identification was made under even more
suggestive circumstances. She testified at trial that she was taken
to a preliminary hearing at which Darden appeared in order "[t]o
identify him."
Id. at 215. Instead of being asked to view
Darden in a lineup, Mrs. Turman was brought into the courtroom,
where Darden apparently was the only black man present.
See
id. at 220-221. Over defense counsel's objection, after the
prosecutor asked her whether "this man sitting here" was "the man
that shot your husband,"
ibid., she identified Darden.
[
Footnote 2/5]
Cf. Moore v.
Illinois, 434 U. S. 220,
434 U. S.
229-230 (1977).
Page 477 U. S. 199
The use of showups has long been condemned by this Court,
precisely because they can result in unreliable identifications.
See, e.g., Stovall v. Denno, 388 U.
S. 293,
388 U. S. 302
(1967). Similarly, the Court has condemned the use of photo arrays
in which the suspect's photograph "is in some way emphasized."
Simmons v. United States, 390 U.
S. 377,
390 U. S. 383
(1968). While the question whether the various in- and out-of-court
identifications ought to have been suppressed is not now before the
Court, [
Footnote 2/6] my confidence
in their reliability is nonetheless undermined by the
suggestiveness of the procedures by which they were obtained,
particularly in light of Mrs. Turman's earlier difficulties in
describing the criminal.
Finally, the ballistics evidence is hardly overwhelming. The
purported murder weapon was tied conclusively neither to the crime
nor to Darden. Special Agent Cunningham of the Federal Bureau of
Investigation's Firearms Identification Unit testified that the
bullets recovered at the scene of the crime "could have been fired"
from the gun, but he was unwilling to say that they in fact had
come from that weapon
Page 477 U. S. 200
Tr. 347, 357. He also testified, contrary to the Court's
assertion, that rebored Smith & Wessons were fairly common.
See id. at 350-351, 357-368. Deputy Sheriff Weatherford
testified that the gun was discovered in a roadside ditch adjacent
to where Darden had wrecked his car on the evening of the crime.
But the gun was discovered the next day,
id. at 503, and
the ditch was also next to a bar's parking lot.
Id. at
531.
Darden testified at trial on his own behalf, and denied any
involvement in the robbery and murder.
See id. at 571-660.
His account of his actions on the day of the crime was contradicted
only by Mrs. Turman's and Arnold's identifications. Indeed, a
number of the State's witnesses corroborated parts of Darden's
account. The trial judge who had seen and heard Darden testify
found that he "emotionally and with what appeared on its face to be
sincerity, proclaimed his innocence." App. 34. In setting sentence,
he viewed the fact that Darden "repeatedly professed his complete
innocence of the charges" as a mitigating factor.
Id. at
36.
Thus, at bottom, this case rests on the jury's determination of
the credibility of three witnesses -- Helen Turman and Phillip
Arnold, on the one side, and Willie Darden on the other. I cannot
conclude that McDaniel's sustained assault on Darden's very
humanity did not affect the jury's ability to judge the credibility
question on the real evidence before it. Because I believe that he
did not have a trial that was fair, I would reverse Darden's
conviction; I would not allow him to go to his death until he has
been convicted at a fair trial.
II
Even if Darden had been convicted fairly, however, I believe his
death sentence should be vacated because of the improper exclusion
for cause of a member of the venire who was qualified to serve
under this Court's decisions in
Witherspoon v. Illinois,
391 U. S. 510
(1968), and
Wainwright v. Witt, 469 U.
S. 412 (1985). In
Davis v. Georgia,
429 U. S. 122
(1976),
Page 477 U. S. 201
the Court held that the improper exclusion of one juror renders
a death sentence constitutionally infirm
per se. In
Darden's case, the potential prejudice is palpable. Even though it
was stripped of members expressing reservations about the death
penalty, this jury could not agree unanimously that a death
sentence was appropriate.
See Tr. 908; 699 F.2d at 1041
(dissenting opinion).
Witherspoon concerned an Illinois statute that excused
for cause
"'any juror who shall, on being examined, state that he has
conscientious scruples against capital punishment, or that he is
opposed to the same.'"
391 U.S. at
391 U. S. 512,
quoting Ill.Rev.Stat., ch. 38, § 743 (1959). The Court held that
the Constitution barred the execution of a defendant sentenced to
death by a jury from which such persons had been excluded for
cause. That holding rested in large part on the Court's recognition
that even some jurors who oppose the death penalty can set aside
their personal beliefs and follow the court's instructions to
consider whether death is an appropriate penalty.
See 391
U.S. at
391 U. S.
514-515, n. 7,
391 U. S.
515-516, n. 9,
391 U. S. 519,
391 U. S. 520.
As recently as last Term, we held once again that trial courts must
distinguish between
"prospective jurors whose opposition to capital punishment will
not allow them to apply the law or view the facts impartially and
jurors who, though opposed to capital punishment, will nevertheless
conscientiously apply the law to the facts adduced at trial."
Witt, 469 U.S. at
469 U. S. 421;
see also id. at
469 U. S. 422,
n. 4;
Adams v. Texas, 448 U. S. 38,
448 U. S. 44-45
(1980);
Boulden v. Holman, 394 U.
S. 478,
394 U. S.
483-484 (1969).
The Court's discussion of Darden's claim rests on a premise that
the claim depends entirely on the wording of a single question
asked by the trial judge prior to the exclusion of venire member
Murphy.
See ante at
477 U. S. 176.
That premise is mistaken. The trial court's error lay in its
misunderstanding of the proper standard for exclusion under
Witherspoon. This misunderstanding influenced both the
question the court
Page 477 U. S. 202
asked Murphy and its evaluation of his answer. On this record, I
cannot say with any assurance that Murphy was properly
excluded.
Prior to the
voir dire of individual venire members,
the trial judge announced his intention to excuse not only any
potential juror whose religious or moral principles made him unable
to impose the death penalty, but also any potential juror who, if
he did follow the court's instructions, "would be going against his
principles" (emphasis deleted). App. 6. [
Footnote 2/7] This standard is essentially
indistinguishable from the standard employed by Illinois and
expressly disapproved by this Court in
Witherspoon. If a
juror who has reservations about the wisdom or morality of the
death penalty nonetheless follows the court's instructions, he has
not been
"'prevent[ed] or substantially impair[ed in] the performance of
his duties as
Page 477 U. S. 203
a juror in accordance with his instructions and his oath,'"
Witt, 469 U.S. at
469 U. S. 424,
quoting
Adams, 448 U.S. at
448 U. S. 45. To
permit only those individuals who have no reservations about
exercising "the truly awesome responsibility of decreeing death for
a fellow human,"
McGautha v. California, 402 U.
S. 183,
402 U. S. 208
(1971), to serve on capital juries would surely mark a return to
the empaneling of juries "uncommonly willing to condemn a man to
die,"
Witherspoon, 391 U.S. at
391 U. S.
521.
This case is thus entirely unlike
Witt.
Witt's
statement that determinations of juror bias cannot be reduced to a
catechism, 469 U.S. at
469 U. S. 424,
and its reliance on the peculiar ability of trial judges to observe
the demeanor and credibility of potential jurors,
id. at
469 U. S. 428,
make sense when there is "every indication that the judge . . .
applied the correct standard."
Id. at
469 U. S. 431.
But the record before us today provides no such indication. It is
impossible to determine whether the judge's finding of bias
reflected a belief that Murphy would be unable to follow the
court's instructions or a belief that Murphy would have to set
aside his personal beliefs to do so. In fact, Murphy never gave any
indication that he could not follow the court's instructions. The
burden of proving Murphy's bias rested on the State.
Id.
at
469 U. S.
423-424. The Court's present heavy reliance on "the
context surrounding Murphy's exclusion,"
ante at
477 U. S. 176,
simply cannot support its conclusion, because the trial court's
improper interpretation of
Witherspoon infected that
context.
The Court's statement that
"the trial court could take account of the fact that Murphy was
present throughout an entire series of questions that made the
purpose and meaning of the
Witt inquiry absolutely
clear,"
ante at
477 U. S. 178,
suffers from a similar defect. [
Footnote 2/8] I find implausible the Court's
assumption
Page 477 U. S. 204
that Murphy followed closely the day-long questioning of other
jurors. But if that assumption were correct, then the Court should
also assume that Murphy anticipated being asked whether his beliefs
would prevent or substantially impair performance of his duties as
a juror, as other jurors expressing similar sentiments had been
asked. That three other jurors, under somewhat more extensive
questioning, explicitly stated that they did not think they could
vote for the death penalty,
see Tr. 44 (juror Varney);
id. at 107 (juror Carn);
id. at 109-110 (juror
Maher), says nothing about whether Murphy shared their inability to
put aside personal beliefs and obey his oath as a juror.
Witt may be right that "many veniremen simply cannot be
asked enough questions to reach the point where their bias has been
made
unmistakably clear,'" 469 U.S. at 469 U. S.
424-425; here, however, the judge did not even ask the
one question that might have given him real insight into Murphy's
ability to serve. The wrong answer is what no question at all
begets. Cf. A. Bickel, The Least Dangerous Branch 103
(1962).
A close reading of the lengthy
voir dire transcript
leads me to conclude that the trial court's behavior is more easily
explained by Murphy's appearance in the jury box at the end of a
long day of questioning and the desire to finish jury selection
expeditiously than by any definite impression on the part of the
trial judge that Murphy was unqualified. But neither the trial
court's eagerness to get the trial started, nor this Court's
impatience with the progress of Darden's constitutional challenges
to his conviction and death sentence,
see, e.g.,
473 U. S. 928, 929
(1985) (BURGER, C.J., dissenting
Page 477 U. S. 205
from the grant of certiorari because 12 years had elapsed since
Darden's conviction and sentence and no fewer than "95" judges had
reviewed the case), [
Footnote 2/9]
renders Murphy's exclusion justifiable or harmless.
III
Twice during the past year -- in
United States v.
Young, 470 U. S. 1 (1985),
and again today -- this Court has been faced with clearly improper
prosecutorial misconduct during summations. Each time, the Court
has condemned the behavior but affirmed the conviction. Forty years
ago, Judge Jerome N. Frank, in dissent, discussed the Second
Circuit's similar approach in language we would do well to remember
today:
"This court has several times used vigorous language in
denouncing government counsel for such conduct as
Page 477 U. S. 206
that of the [prosecutor] here. But, each time, it has said that,
nevertheless, it would not reverse. Such an attitude of helpless
piety is, I think, undesirable. It means actual condonation of
counsel's alleged offense, coupled with verbal disapprobation. If
we continue to do nothing practical to prevent such conduct, we
should cease to disapprove it. For otherwise it will be as if we
declared in effect,"
"Government attorneys, without fear of reversal, may say just
about what they please in addressing juries, for our rules on the
subject are pretend-rules. If prosecutors win verdicts as a result
of 'disapproved' remarks, we will not deprive them of their
victories; we will merely go through the form of expressing
displeasure. The deprecatory words we use in our opinions on such
occasions are purely ceremonial."
"Government counsel, employing such tactics, are the kind who,
eager to win victories, will gladly pay the small price of a
ritualistic verbal spanking. The practice of this court --
recalling the bitter tear shed by the Walrus as he ate the oysters
-- breeds a deplorably cynical attitude towards the judiciary."
(Footnote omitted.)
United States v. Antonelli Fireworks
Co., 155 F.2d 631, 661,
cert. denied, 329 U.S. 742
(1946).
I believe this Court must do more than wring its hands when a
State uses improper legal standards to select juries in capital
cases and permits prosecutors to pervert the adversary process. I
therefore dissent.
[
Footnote 2/1]
See, e.g., Caldwell v. Mississippi, 472 U.
S. 320,
472 U. S.
328-329 (1985);
California v. Ramos,
463 U. S. 992,
463 U. S.
998-999 (1983);
Beck v. Alabama, 447 U.
S. 625,
447 U. S.
637-638 (1980);
Lockett v. Ohio, 438 U.
S. 586,
438 U. S. 604
(1978) (plurality opinion);
Gardner v. Florida,
430 U. S. 349,
430 U. S.
358-359 (1977) (plurality opinion);
Woodson v. North
Carolina, 428 U. S. 280,
428 U. S. 305
(1976) (plurality opinion).
[
Footnote 2/2]
Every judge who has addressed the prosecutors' behavior has
condemned it.
See Darden v. State, 329 So. 2d
287, 290 (Fla.1976) ("[T]he prosecutor's remarks under ordinary
circumstances would constitute a violation of the Code of
Professional Responsibility");
id. at 291-295 (dissenting
opinion);
Darden v. Wainwright, 513 F.
Supp. 947, 955 (MD Fla.1981) ("Anyone attempting a text-book
illustration of a violation of the Code of Professional
Responsibility . . . could not possibly improve upon [prosecutor
White's final statement]");
Darden v. Wainwright, 699 F.2d
1031, 1035-1036 (CA11 1983);
id. at 1040-1043 (dissenting
opinion). Even the State's Attorney concedes that prosecutor
McDaniel's summation was an "unnecessary tirade," Supp.App. 46,
that "[n]o one has ever even weakly suggested that McDaniel's
closing remarks were anything but improper," Supplemental Answer in
Darden v. Wainwright, Case No. 79-566-Civ.T.H. (MD Fla.)
(June 1, 1979), p. 12, and that much of the summation consisted of
"inflammatory irrelevancies," Answer to Pet. for Habeas Corpus in
Darden v. Wainwright, Case No. 79-566-Civ.T.H. (MD Fla.)
(May 22, 1979), p. 11.
It is true that the Florida Supreme Court, the Federal District
Court, and the Court of Appeals each ultimately concluded that
Darden had not been deprived of a fair trial. But the grounds on
which each rested its conclusion are troubling indeed. The Florida
Supreme Court's "careful review of the
totality of the
record,'" as this Court now would describe it, ante at
477 U. S. 181,
n. 13, consists of three paragraphs. The first of these discusses
evidence that petitioner "was a career criminal," who stayed with a
woman other than his wife while on furlough and used her car to
visit various bars and a pool hall contrary to the conditions of
his furlough. The second paragraph notes, among other things, that
petitioner "admitted speeding in a rainstorm and creating great
danger to other motorists" on the night of the murder. And the last
describes the heinousness of the events that occurred at the
Turmans' store, but says absolutely nothing about the evidence
tying petitioner to those events. 329 So. 2d at 290. (The court
earlier had noted that Mrs. Turman and Phillip Arnold had
identified petitioner as the perpetrator. Id. at
288.)
The crux of the Florida Supreme Court's analysis, however, is
that it was not
"possible to use language which is fair comment about these
crimes without shocking the feelings of any normal person[.] The
language used by the prosecutor would have possibly been reversible
error if it had been used regarding a less heinous set of crimes.
The law permits fair comment. This comment was fair."
Id. at 290. Since the prosecutors had "reasonably
describ[ed] what happened and what should be done to the guilty
party," their comments were not erroneous.
Id. at 291.
The standard apparently applied by Florida is wholly
unacceptable. A defendant's right to a fair trial cannot depend on
the nature of the crime of which he is accused. And "what should be
done to the guilty party" cannot be relevant to the determination
of guilt.
The District Court's conclusion suffers from a similar error. In
addition to advancing many of the arguments adopted by the Court
today -- none of which is persuasive,
see infra, at
477 U. S.
194-200 -- the District Court found no prejudice because
the offensive statements were not "keyed to arouse prejudice
against the accused on any basis other than the horror of the
crimes themselves." 513 F. Supp. at 956, n. 12. But at the guilt
phase of this bifurcated trial, horror about the crimes was
irrelevant. The sole issue was whether Darden committed them. The
Court of Appeals merely quoted and approved the analysis of the
District Court.
See 699 F.2d at 1036-1037.
In its catalog of the number of judges who have found
petitioner's trial to have been fair, the Court fails to include
the Magistrate before whom petitioner's federal habeas proceedings
were actually conducted, and who recommended that the District
Court grant petitioner habeas relief on the basis of his claim of
prosecutorial misconduct. Magistrate Paul Game, Jr., correctly
recognized that this case essentially turned on the relative
credibility of three witnesses, Mrs. Turman, Phillip Arnold, and
Willie Darden, and that the prosecutors' concerted attack on
Darden's humanity could well have affected the jury's assessment of
his credibility.
See App. 214. He also recognized that the
remarks occurred
"[i]n the context of the emotionally charged trial of Darden, a
black man, accused of robbery, the brutal murder of a white man,
the repeated shooting of a defenseless white teenager, and vile
sexual advances on a white woman."
Id. at 215. Notably, the Court today ignores the
context in which the trial took place, including the fact that
petitioner's motion for a change of venue was granted, and contents
itself instead with hypothesizing reasons why the prosecutors'
shameful conduct should not deprive them of a hanging verdict.
[
Footnote 2/3]
The Court finds
Caldwell inapposite because the
offending comment in
Caldwell occurred at the sentencing
stage of the defendant's trial and misled the jury as to its role
in the sentencing process.
Ante at
477 U. S. 183,
n. 14. But
Caldwell's Eighth Amendment underpinnings
clearly extend to guilt determinations in capital cases as well as
to sentencing.
Beck v. Alabama, 447 U.S. at
447 U. S.
637-638. And under the circumstances of this case, where
the sentencing hearing followed immediately upon the jury's return
of a guilty verdict and the State's summation consisted of less
than a full page of transcript,
see Tr. 894, I think the
State must have assumed that its attacks on the Department of
Corrections and repeatedly expressed wish that Darden die would
affect the jury's sentencing decision, as well as its determination
of guilt. Indeed, the District Court found that the summations
during the guilt phase were "in effect [the State's] principal
argument in support of the death penalty." 513 F. Supp. at 953, and
n. 10. Moreover, I do not see why misleading a jury as to the
relevant issues in a capital trial is somehow less pernicious than
misleading a jury as to its role.
[
Footnote 2/4]
Of the six photographs in the array, Arnold immediately rejected
four because "[t]hey just didn't fit the description" he had
earlier given the police. Tr. 457. Darden's photograph was one of
no more than two that identified the subject by name, and under the
name on Darden's photograph was the notation "Sheriff's Department,
Bartow, Florida" and the date "919173."
Id. at 476-477.
Arnold was aware at the time of the identification on September 11
that a suspect recently had been arrested.
Id. at 459.
[
Footnote 2/5]
Mrs. Turman's identification took place after the following
colloquy between the court, the prosecutor (Mr. Mars), and the
defense attorney (Mr. Hill):
"THE COURT: Ask her to identify."
"MR. MARS: Yes, sir."
"Q: Can you see this man sitting here?"
"MR. HILL: Your Honor, I am going to object to that type of
identification."
"THE COURT: I am not. Sit down."
"MR. HILL: Judge --"
"THE COURT: Not under these circumstances, Mr. Hill."
"MR. HILL: Judge, even as a defense attorney, that shows no
respect in court, much less for the Court, and I --"
"THE COURT: I appreciate -- "
"MR. HILL: And the objection, I want on the record."
"THE COURT: I appreciate that. It's on the record. This woman
has had a traumatic experience and she -- "
"MR. HILL: Judge, I appreciate that. I still have an obligation
to my client."
"THE COURT: I appreciate that. Now if you want to be held in
contempt, you pardon me. Alright, go ahead."
"Q: Is this the man that shot your husband?"
"A: Yes, sir."
See Pet. for Habeas Corpus in
Darden v.
Wainwright, Case No. 79-566 Civ.T.H. (MD Fla.) (May 21, 1979),
pp. 18-19; Tr. 218-219.
[
Footnote 2/6]
Challenges to the admissibility of the various identifications
were presented in Darden's petition to this Court for direct review
of his conviction and sentence.
See Brief for Petitioner
in
Darden v. Florida, O.T. 1976, No. 76-5382, pp. 2-3
(second and third questions presented raising issues concerning the
witnesses' identifications). Although that petition for certiorari
was granted, 429 U.S. 917 (1976), the Court later limited its grant
to the issue of the prosecutor's closing argument, 429 U.S. 1036
(1977), and ultimately dismissed the writ as improvidently granted,
430 U. S. 704
(1977)
[
Footnote 2/7]
In denying Darden's pretrial motion to limit
voir dire
concerning jurors' attitudes towards the death penalty, the trial
court stated:
"It is my ruling, if a prospective juror states on his
voir
dire examination that, because of his moral, religious or
conscientious principles and belief, he would be unwilling to
recommend a death penalty, even though the facts and circumstances
meet the requirements of law, then he in effect has said he would
be unwilling to follow the law the court shall charge upon it and
disregard and be unwilling to follow it, or, if he did follow it,
it would be going against his principles, and therefore, I would
rule that would be disqualification. If that exists, I intend to
disqualify for cause."
App. 6 (emphasis deleted). The Court's statement that "the judge
correctly stated the general standard for dismissal,"
ante
at
477 U. S. 177,
n. 2, comes immediately on the heels of a truncated quotation of
the trial judge's ruling which omits the critical phrase, "if he
did follow it, it would be going against his principles, and
therefore, I would rule that would be disqualification."
The court gave petitioner a continuing objection to its proposed
voir dire questioning. App. 7. Even if this continuing
objection were not enough, standing alone, to preserve petitioner's
claim -- and the Court does not so hold -- the statement that "[n]o
specific objection was made to the excusal of Murphy by defense
counsel,"
ante at
477 U. S. 178, is flatly contradicted by the trial
transcript. Immediately following Murphy's excusal, the court
directed the stenographer to "note the defendant's object to him
being excused for cause." Tr. 165.
[
Footnote 2/8]
Even to refer to the "
Witt inquiry" reflects
inattention to chronology. This case was tried about a dozen years
before
Witt sought to dispel the "general confusion
surrounding the application of
Witherspoon" under which
courts across the country had labored for 15 years. 469 U.S. at
469 U. S. 418.
How the purpose and meaning of
Witt could be clear to a
layman like Murphy when they were unclear to the judge trying this
case and to federal and state appellate courts is nowhere
explained. Moreover, from Murphy's perspective, the purpose of the
inquiry was to obtain from him truthful answers regarding his
background and beliefs. His oath as a juror required him to reveal
his strong feelings about the death penalty, even if he believed
that he could follow the judge's instructions notwithstanding those
feelings.
[
Footnote 2/9]
A public dissent from a grant of certiorari is extremely rare.
Indeed, I know of no other recent case in which a Justice has
dissented on the ground that the claims raised by the petitioner --
which at least four Justices must have found worthy of full
consideration -- were meritless.
See also Ohio ex rel. Eaton v.
Prue, 360 U. S. 246,
360 U. S. 247,
n. 1 (1959) (memorandum of BRENNAN, J.) (finding only one instance
of such a dissent -- the extraordinary case of
Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 937
(1952), where certiorari was granted prior to the Court of Appeals'
judgment). The concurrence filed by THE CHIEF JUSTICE today,
see ante, p.
477 U. S. 187,
to justify his dissent from the grant of certiorari in this case
shows why. As JUSTICE BRENNAN persuasively explained in
Price, a public dissent from a grant of certiorari poses
dangers both to the actual workings of the adjudicatory process and
to public respect for that process. 360 U.S. at
360 U. S.
247-248. By reprinting his dissent in its entirety and
emphasizing once again the number of times this Court has been
asked to review Darden's claims, THE CHIEF JUSTICE suggests that he
irrevocably had committed himself to rejecting those claims before
he had received the benefit of the full briefing, oral argument,
access to the record, and discussion of the issues by other Members
of the Court that followed our grant of certiorari. To me, the fact
that this Court has granted certiorari three times is hardly a
reason for concluding Darden's claims are meritless, or that the
undoubted interest in finality should outweigh our duty to ensure
that Darden receives due process.