Rehearing Denied April 18, 1988.
See 485 U.S. 1015.
On petition for writ of certiorari to the United States Court of
Appeals for the Tenth Circuit.
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, see Gregg v. Georgia,
428 U.S. 153, 231-241,
2973-2977 (1976) (MARSHALL, J., dissenting), I would grant the
petition for certiorari and vacate petitioner's death sentence.
Even if I did not hold this view, I would grant the petition
because petitioner William Andrews was convicted of murder and
sentenced to death under circumstances raising grave concerns
Page 485 U.S.
919 , 920
of impermissible racial bias. These circumstances include a
midtrial incident in which a juror handed the bailiff a napkin with
a drawing of a man on a gallows above the inscription, "Hang the
Niggers." The District Court in this case refused even to undertake
an evidentiary hearing to investigate petitioner's substantial
allegations of racial prejudice. The Constitution cannot
countenance such indifference and summary treatment when a person's
life is at stake.
I
Petitioner was convicted for his role in a multiple murder
during the robbery of a hi-fi shop in Ogden, Utah. The ringleader
of the crimes, Dale Pierre, was executed last year. Evidence at
trial indicated that petitioner had a substantially less active
role in the murders than Pierre . The two men entered the shop
together and forced five people into the store's basement. There
the victims were forced to drink liquid drain cleaner, which
induced violent vomiting. One of the two victims who survived the
robbery testified that petitioner said, "I can't do it, I'm
scared," and that petitioner left the scene shortly thereafter.
Only after petitioner left did Pierre carry out, in particularly
gruesome fashion, the multiple murders for which petitioner has
been sentenced to die. Pet. for Cert. 3.
The murders understandably attracted substantial attention in
the local press and the community from which the jury venire was
drawn. The incident also may have generated racist sentiments,
inasmuch as the defendants were black people and the victims were
white members of the local community. The single black member of
the venire was excluded, and an all-white jury was empaneled.
An ugly racial incident involving the jury occurred during the
trial. The jury was eating lunch in a separate dining room when a
juror presented the bailiff with a drawing that had been made on a
napkin. The drawing represented a stick figure hanging on a
gallows. Underneath the figure were the words, "Hang the Niggers."
The bailiff was unable to say who had made the drawing or how many
other jurors had seen it, although he did inform the court that
"some of the jurors" had asked him "what the court may do about
this." The only action the trial court took in response was to
issue a general instruction to the jury to "ignore communications
from foolish people." Id., at 9-10, and n. 4.
Page 485 U.S.
919 , 921
After petitioner and Pierre were convicted, the court ordered a
5-day recess. The jury was not sequestered. During this time, media
coverage of the conviction was widespread and, petitioner alleges,
racially inflammatory. Petitioner alleges, for example, that one
newspaper ran a false report that petitioner had directed a "Black
Power" closed-fist gesture at one of the surviving victims after
the verdict was read. Id., at 10. The jury returned for the
separate sentencing hearing and voted unanimously to sentence
petitioner to death.
In his petition for a writ of habeas corpus, petitioner alleged
that adverse publicity and hostile community sentiment had injected
racial animus into his trial and undermined his right to a fair
trial. The District Court refused to convene an evidentiary hearing
to consider this claim.
600 F.
Supp. 408, 415-416 (Utah 1984). The Court of Appeals for the
Tenth Circuit upheld this refusal with little discussion, stating:
" Having reviewed the briefs and the appellate record, we conclude
that no hearing is required under the principles of Townsend v.
Sain,
372 U.S.
293 [ ] (1963), and that the constitutional standard for a fair
trial has been met."
802 F.2d
1256, 1260 (1986) (citations omitted).
II
"This Court has long held that the
remedy for allegations of juror partiality is a hearing in which
the defendant has the opportunity to prove actual bias." Smith v.
Phillips,
455 U.S.
209, 215, 945 (1982). Such a hearing is, of course, especially
vital when the defendant has been condemned to die. In Turner v.
Murray,
476 U.S.
28 (1986), the Court vacated a death sentence entered in a case
in which the trial court had refused the defendant's request to
question the prospective jurors on racial prejudice . The plurality
recognized that "in light of the complete finality of the death
sentence," the Constitution requires district courts to be
especially solicitous of allegations of racial prejudice in capital
cases. Id., at 35, 106 S. Ct. at 1688. The plurality therefore
vacated the sentence, even though no specific allegations of racial
prejudice had been made other than the fact that the case involved
a black defendant and a white victim. The Court concluded that "the
risk that racial prejudice may have infected petitioner's capital
sentencing [was] unacceptable in light of the ease with which that
risk could have been minimized." Id., at 36.
Page 485 U.S.
919 , 922
This case involves far more serious and specific allegations of
racial animus than did Turner, including a vulgar incident of
lynch-mob racism reminiscent of Reconstruction days. Moreover,
petitioner is not asking this Court to decide whether there is
sufficient evidence of racial prejudice to impeach the conviction
and sentence. He seeks only to have the District Court undertake an
evidentiary hearing to consider his charges. I would think it clear
that the Constitution, not to mention common decency, requires no
less than this modest procedure. See Tanner v. United States,
483 U.S.
107, 142, 2759 ( 1987) (MARSHALL, J., concurring in part and
dissenting in part).
III
Was it one (or more) of petitioner's jurors who drew a black man
hanging on a gallows and attached the inscription, "Hang the
Niggers"? How many other jurors saw the incendiary drawing before
it was turned over to the bailiff? Might it have had any effect on
the deliberations? Was the jury's decision to sentence petitioner
to die influenced by racially- charged media coverage of the trial
between the guilt and penalty phases? These are among the questions
that petitioner deserves to have at least considered before he is
put to death for a series of murders in which he played only a
secondary role. It is conscience shocking that all three levels of
the federal judiciary are willing to send petitioner to his death
without so much as investigating these serious allegations at an
evidentiary hearing. Not only is this less process than due; it is
no process at all. I dissent.
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