On petition for writ of certiorari to the Supreme Court of
Florida.
The petition for writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
This petition presents the question whether the sentencing jury
in a capital case may be prohibited from taking into account its
own nagging doubts about the defendant's guilt as it considers
whether the defendant deserves to die. The Supreme Court of Florida
has squarely resolved that question in the affirmative, despite the
clear message of Lockett v. Ohio,
438 U.S. 586 (1978), and
Eddings v. Oklahoma,
455 U.S. 104 (1982), that
a capital defendant is entitled to have the jury consider "any of
the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death." Lockett, supra, 438 U.S., at
604. [ Burr v. Florida
474
U.S. 879 (1985) ][879-Continued.]
Even if I accepted the prevailing view that the death penalty
can constitutionally be imposed under certain conditions, I would
grant certiorari in this case to consider the grave constitutional
question it presents. Today's decision lets stand a ruling that
clearly "creates the risk that the death penalty will be imposed in
spite of factors which may call for a less severe penalty."
Lockett, supra, at 605 (opinion of BURGER, C.J.), quoted in
Eddings, supra, 455 U.S., at 118 (O'CONNOR, J., concurring).
I
Petitioner, Charlie Burr, was charged with the murder of a
convenience-store clerk during a robbery of the store. At trial,
the State's key witness was Burr's girlfriend, Domita Williams, who
testified that she had been waiting for Burr outside the store when
she heard a shot and then saw Burr come out. The State provided
some circumstantial evidence in corroboration. The following day,
however, Williams took the stand for the defense and recanted her
testimony of the previous day. This time she swore that she had not
been with Burr at all on the morning of the murder, and recited a
different account of her actions that morning . The defense
produced witnesses to support this testimony, including an
eyewitness who placed Williams elsewhere at the time of the murder.
The defense attempted to establish that Williams' first testimony
had been the product of coercion by the prosecutor; the State, in
turn, attempted to show that her second testimony was contrived out
of fear of petitioner. Without
Page 474 U.S.
879 , 880
Williams' first testimony, the State would not have had a case,
for while the State introduced evidence implicating Burr in similar
robberies of other convenience stores, it adduced no other evidence
directly linking Burr with this crime. The jury returned a verdict
of guilty.
At the sentencing hearing, defense counsel devoted his entire
closing argument to the inconclusive nature of the evidence against
Burr. Counsel drove home to the jury the fact of Domita Williams'
recantation, repeatedly exhorting each juror to "ask yourself . .
., is it possible that I'm recommending death for an innocent
person?" Suggesting that the guilty verdict might have been based
on the evidence of the other robberies, he admonished the jury, "if
you go back and recommend death . . . and Mr. Burr is eventually
electrocuted and put to death, then it's going to be a little too
late for the truth to come out. . . ." He concluded, "don't make a
recommendation where a man is going to die when he may not have
even committed the crime."
The jury recommended a sentence of life imprisonment. The trial
judge, however, overrode this recommendation and sentenced
petitioner to death, having identified three aggravating
circumstances and nothing in mitigation. Petitioner deduced, and
argued on appeal, that the jury's recommendation of life had been
based, legitimately, on residual doubt of Burr's guilt. The Florida
Supreme Court rejected this argument, concluding that "a 'convicted
defendant cannot be "a little bit guilty." ' "
466 So. 2d
1051, 1054 (1985), quoting Buford v. State,
403 So. 2d
943, 953 (Fla.1981), cert. denied, 454 U.S. 1164 (1982).
II
Implicit in the Florida Supreme Court's decision is an
assumption about the equation of finality and truth that
transgresses law and intuition alike. For our legal system is no
pretender to absolute truth. In two important ways, the factfinding
process falls short of that ideal. First, the beacon of the
truth-seeking process in criminal cases is not absolute certainty,
but the "reasonable doubt" standard, which has eluded definition by
the courts for centuries. See 9 J. Wigmore, Evidence 2497 ( J.
Chadbourn rev. 1981). Attempts at such a definition typically, and
often erroneously, include phrases such as "substantial doubt, not
a trivial doubt," Holland v. United States,
209
F.2d 516, 522 (CA10), aff'd,
348 U.S. 121 (1954), and
"substantial, . . . real doubt," Taylor
Page 474 U.S.
879 , 881
v. Kentucky,
436 U.S.
478, 488, 1936 (1978 ). Although a uniform definition of the
term has never evolved, it is clear that juries are not instructed
to return a verdict only when all doubt has been eliminated.
Rather, the "reasonable doubt" standard merely attempts "to exclude
as nearly as possible the likelihood of an erroneous judgment."
Addington v. Texas,
441 U.S.
418, 423, 1808 (1979). Hence, "beyond a reasonable doubt"
cannot ensure that a jury will not convict a defendant without
foreclosing all possibility of innocence in the jurors' own
minds.
Moreover, no instruction can prevent the possibility of human
error . "[I]n a judicial proceeding in which there is a dispute
about the facts of some earlier event, the factfinder cannot
acquire unassailably accurate knowledge of what happened." In re
Winship,
397 U.S.
358, 370, 1075 (1970) (Harlan, J., concurring). Accordingly,
the institutions of criminal justice have been adjusted in
recognition that a jury's verdict and truth are not unerringly
synonymous. Every jurisdiction provides some mechanism for awarding
a convicted defendant a new trial on the basis of newly discovered
evidence. If a convicted defendant can produce sufficient
indication that the jury's finding of guilt beyond a reasonable
doubt was wrong, the institutional need for finality yields to the
more compelling concerns of truth and fairness. Thus, the
"reasonable doubt" foundation of the adversary method attains
neither certainty on the part of the factfinders nor infallibility,
and accommodations to that failing are well established in our
society. See also Jackson v. Virginia,
443 U.S. 307, 317-318,
2788, 61 L. Ed. 2d 560 (1979) (reversal of jury verdict supported
by insufficient evidence). In the capital sentencing context, the
consideration of possible innocence as a mitigating factor is just
such an essential accommodation.
Prominent scholars of our time agree. The Model Penal Code
absolutely precludes the imposition of a death sentence if the
sentencer is satisfied that, "although the evidence suffices to
sustain the verdict, it does not foreclose all doubt respecting the
defendant's guilt." ALI, Model Penal Code 210.6(1), p. 107 (1980).
Three Justices of this Court have stated that the possibility of an
irrevocable mistake is a valid reason for a jury to conclude that
the death penalty is not morally justified. Spaziano v. Florida,
468 U.S. 447,
488, n. 34, 3178, n. 34 (1984) (STEVENS, J., joined by BRENNAN and
MARSHALL, JJ., concurring in part and dissenting in part); Heiney
v. Florida,
469 U.S.
920, 924, 305 (1984) ( MARSHALL, J., dissenting). Finally, two
Courts of Appeals have determined that
Page 474 U.S.
879 , 882
jurors may hold a genuine, if not a reasonable, doubt of guilt
sufficient to support a sentence of life. Smith v. Wainwright,
741 F.2d
1248, 1255 ( CA11 1984), cert. denied, 470 U.S. 1087 ( 1985);
Smith v. Balkcom,
660 F.2d
573, 580-581 (CA5 1981), cert. denied, 459 U.S. 882 (1982).
I have written before to describe the subjective personal horror
that must face a juror who contemplates sentencing a man to die
without being sure of his guilt. Heiney v. Florida, supra, 469
U.S., at 921-922, 105 S. Ct., at 304. But there is an additional
point to be made: that permitting the consideration of lingering
doubt at sentencing is objectively a rational and consistent
element of our system of criminal justice. Like postconviction
remedies in light of new evidence, the conscience of the jury
serves to protect against irremediable errors arising in that gray
area known as "reasonable doubt." And when the stakes are life and
death, the Constitution forbids the closure of that safety valve,
as surely as it forbids the preclusion of other considerations
suggesting that a convicted defendant should not die. See Eddings
v. Oklahoma,
455 U.S.
104 (1982).
The defendant who has been condemned to die will not reap the
benefits of postconviction remedies designed to compensate for jury
fallibility when the basis for such relief arises long after
conviction. His only protection lies in the consciences of the
jurors, for only they know the degree of certainty with which they
voted the defendant guilty.* The State of Florida would wrest from
the jurors their only way of expressing their lingering doubts
about their verdict, and from the defendant his only hope of
vindication.
III
We cannot know the basis for a jury's recommendation of life, as
long as the jury is not required to supply its reasons.
Nevertheless, in petitioner's case we do know several relevant
things. First, we know that little, if any, mitigating evidence
other than the possibility of innocence could have accounted for
the jury's sentence. Second, we know that the defense counsel
rested his
Page 474 U.S.
879 , 883
plea for his client's life solely on the striking
inconclusiveness of the evidence against petitioner, conceding that
this argument had not carried the day at the guilt phase, but
imploring the jurors to consider it as a matter of conscience at
sentencing. Third, we know that the Supreme Court of Florida
considered petitioner's claim on its merits, without questioning
the factual premise of the argument, and ruled that doubt as to a
convicted defendant's guilt cannot be considered as a factor
mitigating against the death sentence. This determination bars
consideration of a factor that is both relevant, see Eddings,
supra, 455 U.S., at 113-114, and reasonable, see Tedder v. State,
322 So. 2d
908, 910 (Fla.1975). Under these compelling circumstances, this
Court should not shrink from correcting a misguided principle of
law that so surely increases the likelihood that innocent people
will go to their deaths.
Rather than bristle at a superficial inconsistency between a
guilty verdict and a life sentence based on doubt, we should
readily acknowledge that a juror may understand the law to demand
less than the conscience. In a capital case, the Eighth Amendment
does not tolerate such a distinction.
Footnotes
[
Footnote *] To the extent that a
jury recommendation of life based on doubt can be said to be
inconsistent with that same jury's finding of guilt, the legitimacy
of the guilty verdict itself is rendered unreliable and therefore
constitutionally suspect. The remedy for such a defect is not a
death sentence, but a new trial.
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