On petition for writ of certiorari to the Supreme Court of
Virginia.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
I continue to adhere to my view that the death penalty is under
all circumstances cruel and unusual punishment forbidden by the
Eighth and Fourteenth Amendments, and I would vacate the judgment
of the Supreme Court of Virginia insofar as it left
Page 471 U.S.
1025 , 1026
undisturbed the death sentence imposed in this case. Gregg v.
Georgia,
428 U.S.
153, 231, 2973 (1976) (MARSHALL, J ., dissenting). However,
even if I believed that the death penalty could constitutionally be
imposed under certain circumstances, I would grant certiorari to
decide the constitutional validity of the death sentence imposed
here.
I
Petitioner Wilbert Lee Evans was convicted of capital murder in
April 1981. At his sentencing hearing, the State urged the jury to
recommend the death sentence based on Evans' "future
dangerousness." To prove future dangerousness, the State relied
principally upon the records of seven purported out-of-state
convictions. The State's prosecutor later admitted that he knew, at
the time he introduced the records into evidence, that two of them
were false. App. to Pet. for Cert. 50a-52a. One of the seven
"convictions," for assault on an officer with a deadly weapon, had
been dismissed on appeal. Another, for engaging in an affray with a
deadly weapon, had been vacated on appeal, and Evans had been
reconvicted in a trial de novo; the conviction for one crime was,
however, counted as two convictions. [
Footnote 1] After considering Evans' prior "history," the
jury determined that there was a probability that he would commit
criminal acts of violence that would constitute a continuing
serious threat to society, see Va.Code 19.2-264.4 C (1983), and it
recommended the death penalty based solely upon its finding of
future dangerousness. 228 Va. 468,
323 S.E.2d
114 (1984). Evans was sentenced to death on June 1, 1981.
On October 16, 1981, while Evans' direct appeal was pending, the
Supreme Court of Virginia ruled that, when a capital defendant's
right to a fair and impartial jury is violated during the
sentencing phase of trial, a death sentence must be commuted to
life imprisonment. Patterson v. Commonwealth, 222 Va. 653,
283 S.E.2d
212 (1981). The court premised its decision on a construction
of the then-existing death-penalty statute under which only the
jury that finds a capital defendant guilty can fix his punishment.
Because the original jury, tainted by the constitutional error,
could not be reconvened to resentence the defendant, the
Page 471 U.S.
1025 , 1027
death sentence had to be reduced automatically to life
imprisonment. Id., at 660, 283 S.E.2d, at 216.
This ruling was in effect when the Virginia Supreme Court
considered Evans' direct appeal. Therefore, had that court known of
the error in the sentencing hearing and vacated Evans' death
sentence, he would very likely have received a life sentence.
[
Footnote 2] But the State not
only failed to confess its error, it listed all the purported
convictions, including the erroneous ones, in its brief. App. to
Pet. for Cert. 42a. In sustaining Evans' death sentence, the State
Supreme Court relied, in part, on this inaccurate record. Id., at
31a. When Evans petitioned this Court for a writ of certiorari, the
State again relied on the misleading records of convictions in its
brief in opposition. Id., at 46a. Certiorari was denied. 455 U.S.
1038 (1982).
The State did not notify Evans that it would confess its error
regarding the false evidence until March 28, 1983. App. to Pet. for
Cert. 73a. On that day, the Virginia Governor signed into law a
bill that amended the state death-penalty statute to allow for
resentencing by a different jury after a death sentence was set
aside, thus effectively overruling Patterson. See Va.Code
19.2-264.3 C (1983). The State subsequently confessed error to the
trial judge on April 12, 1983. At a hearing to consider the
propriety of resentencing Evans, the prosecutor at Evans' trial
admitted that he knew the evidence that he introduced at the
sentencing hearing was false. The judge then ordered a new
sentencing hearing. A new jury recommended the death penalty, and
petitioner was again sentenced to death.
II
In Napue v. Illinois,
360 U.S. 264 ( 1959),
this Court reversed a conviction obtained through the use of false
evidence that was known to be false by representatives of the
State. Since Napue,
Page 471 U.S.
1025 , 1028
this Court has adhered to the principle that a conviction
obtained by the knowing use of false evidence is fundamentally
unfair. See, e.g., United States v. Agurs,
427 U.S.
97, 103, 2397 ( 1976); Miller v. Pate,
386 U.S.
1, 7, 788 ( 1967). The rule of Napue is undoubtedly applicable
to the sentencing phase of a capital trial. In this case, the
prosecutor admitted that he knowingly introduced false evidence at
Evans' sentencing hearing to demonstrate "future dangerousness."
Evans was therefore deprived of the fundamental fairness due him
under the Fourteenth Amendment.
To remedy this injury, the state court ordered a new sentencing
hearing free from the taint of false evidence. This remedy,
however, was inadequate to undo the harm suffered by Evans. For the
State compounded its original misconduct by concealing the
deception during both Evans' direct appeal and his petition for
certiorari to this Court. Had the State honestly confessed the
error, petitioner's sentence would almost certainly have been
commuted to life imprisonment under the then-existing statute.
Instead, the State did not confess error until nearly two years
after the original death sentence had been imposed, by which time
the death-penalty statute had been amended.
The court below ruled that, even assuming that the prosecutor's
handling of the sentencing hearing involved serious prosecutorial
misconduct, the State was not barred from seeking the death penalty
a second time. In doing so, it relied on the holding in United
States v. Morrison,
449 U.S. 361 (1981), that
drastic remedies should not be used to redress "deliberate" and
"egregious" violations of constitutional rights "absent
demonstrable prejudice, or substantial threat thereof," to the
defendant. Id., at 365. The court concluded that Evans'
resentencing hearing removed any prejudice. But the court
considered only the prejudice suffered by Evans at the initial
sentencing. It failed to account for the harm done to Evans
afterwards, during his direct appeal. Had the State not continued
to rely on the false evidence, very likely the death sentence would
have been commuted to life imprisonment.
The State argues, nevertheless, that this Court cannot consider
the harm done to Evans by its conduct during the appeal. It directs
our attention to the finding by the trial judge that the State did
not delay its confession of error until after the death-penalty
statute was amended just to have a second chance to sentence
Page 471 U.S.
1025 , 1029
Evans to death. App. to Pet. for Cert. 20a. This argument misses
the point. Regardless of its purpose in regard to the amendment,
the State's continued, knowing use of false evidence during the
direct appeal and petition for certiorari, and its failure to
disclose this misconduct, constituted egregious conduct that
seriously harmed Evans. [
Footnote
3]
III
To my mind, the only way to remedy the federal constitutional
violation Evans has suffered would be for the Virginia courts to
consider, nunc pro tunc, how Patterson would have applied to this
case. I would grant the petition for certiorari to consider whether
the court below was constitutionally obligated to make this
inquiry. Accordingly, I dissent from the denial of certiorari.
Footnotes
Footnote 1 In addition,
several of the other convictions had been obtained when Evans was
without the benefit of counsel. App. to Pet. for Cert. 3a- 4a.
Footnote 2 In its brief in
opposition, the State urges that the opinion of the Virginia
Supreme Court implied that the court would not have applied the
Patterson rule to Evans' sentence. A fair reading of the opinion
below, however, indicates that the court was not rejecting Evans'
contention that Patterson would have controlled his case had it not
been legislatively overruled; rather, the court was rejecting
Evans' ex post facto argument, which was based on the subsequent
overruling of Patterson. See 228 Va. 468, 476-477,
323 S.E.2d
114, 118-119 (1984).
Footnote 3 Further, whether
the delay of nearly two years in confessing error was intentional
or merely negligent has no bearing on the degree of prejudice
suffered by Evans. "Clearly, a deliberate attempt by the government
to use delay to harm the accused, or governmental delay that is
'purposeful or oppressive,' is unjustifiable. . . . The same may be
true of any governmental delay that is unnecessary, whether
intentional or negligent in origin." Dickey v. Florida,
398 U.S.
30, 51, 1576 (1970) (BRENNAN, J., concurring).
Nor does it matter whether the state attorney who appeared at
the sentencing hearing, and who admitted that he knew the evidence
on which the State relied was false, took part in preparing the
State's briefs in the Virginia Supreme Court or in this Court. The
prosecutor's office is an entity, not just a group of isolated
individuals, and the prosecutor is responsible for assuring that
relevant information is communicated among the lawyers in the
office. See Giglio v. United States,
405 U.S.
150, 154, 766 (1972); Moore v. Illinois,
408 U.S.
786, 810, 2575 (1972) (MARSHALL, J., concurring in part and
dissenting in part).
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