The motion of Chris Lonchar Kellogg for leave to intervene is
denied. The petition for a writ of certiorari to the Court of
Criminal Appeals of Texas is denied.
Justice MARSHALL, with whom Justice BLACKMUN joins,
concurring.
I agree with Justice STEVENS that the issue raised in this
petition is important and merits resolution by this Court. I write
to express my frustration with the Court's failure to avail itself
of the ordinary procedural mechanisms that would have permitted us
to resolve that issue in this case.
It is already a matter of public record that four Members of
this Court voted to grant certiorari before petitioner was
executed.
Page 498 U.S.
908 , 909
See Hamilton v. Texas,
497 U.S. 1016 ( 1990)
(Brennan, J., dissenting from denial of application for stay).
According to established practice, this fact should have triggered
a fifth vote to grant petitioner's application for a stay of his
execution.* Indeed, this result flows naturally from the standard
by which we evaluate stay applications, a central component of
which is "whether four Justices are likely to vote to grant
certiorari." Coleman v. Paccar, Inc.,
424 U.S.
1301, 1302, 846 (1976) (REHNQUIST, J., in chambers) (emphasis
added); see also Maggio v. Williams,
464 U.S.
46, 48, 313 (1983) (per curiam) (same).
In my view, the Court's willingness in this case to dispense
with the procedures that it ordinarily employs to preserve its
jurisdiction only continues the distressing rollback of the legal
safeguards traditionally afforded. Compare Boyde v. California,
494 U.S. 370,
387-388, ___ (1990) (MARSHALL, J., dissenting) (criticizing
diminution in standard used to assess unconstitutional jury
instructions in capital cases); Barefoot v. Estelle,
463 U.S. 880, 912-914,
3404-3406 (1983) (MARSHALL, J., dissenting) ( criticizing Court's
endorsement of summary appellate procedures in capital cases);
Autry v. McKaskle,
465 U.S. 1085,
1085-1086, 1458- 1459 (1984) (MARSHALL, J., dissenting from denial
of certiorari) (criticizing expedited consideration of petitions
for certiorari in capital cases).
Justice STEVENS, with whom Justice BLACKMUN joins,
concurring.
This petition for a writ of certiorari raises important,
recurring questions of law that should be decided by this Court.
These questions concern the standards that the Due Process Clause
of
Page 498 U.S.
908 , 910
the Fourteenth Amendment mandates in a hearing to determine
whether a death row inmate is competent to waive his constitutional
right to challenge his conviction and sentence and whether he has
made a knowing and intelligent waiver of this right.
James Edward Smith was convicted of murder and sentenced to
death in Harris County, Texas, in 1984. Smith had a substantial
history of mental illness, and his mental difficulties prompted a
finding by the Texas trial court that he was not competent to
represent himself on appeal. Pet. for Cert., Exh. 2, p. 13, Exhs.
4-8, 10-12. After his conviction, Smith vacillated between forceful
insistence on prosecuting his own appeal and equally forceful
insistence on abandoning any challenge to his conviction or his
sentence. Pet. for Cert., Exh. 2, pp. 10-11, Exh. 11, p. 2.
Petitioner is Smith's natural mother. Proceeding as Smith's
"next friend," she attempted to establish her standing to litigate
on her son's behalf and to have his execution stayed until his
competence was established after a full adversarial hearing. She
was unsuccessful. On May 23, 1990, without notice to petitioner,
the Texas trial court held a nonadversarial hearing, made a finding
that Smith was competent to make a decision regarding his
execution, and set his execution for 12:01 a.m. on June 26, 1990.
Pet. for Cert., Exh. 3.
On June 22, over the dissent of Justice Teague,1 the Texas Court
of Criminal Appeals dismissed petitioner's "Emergency Application
for Stay of Execution and Objections to Trial Court's Prior
Proceedings." Ex Parte Hamilton, No. 18,380-02 (en banc) (per
curiam). On June 24, petitioner filed in this Court her petition
for a writ of certiorari and her application for a stay of
Page 498 U.S.
908 , 911
Smith's execution. Four Members of the Court voted to grant
certiorari2 and to stay the execution. Nevertheless, the stay
application was denied, and Smith was executed on schedule.
Smith's execution obviously mooted this case. The Court has
therefore properly denied the petition for a writ of certiorari.
This denial, however, does not evidence any lack of merit in the
petition; 3 instead, the reason for the denial emphasizes the
importance of confronting on the merits the substantial questions
that were raised in this case.
Justice SOUTER took no part in the consideration or decision of
this motion and this petition.
Footnotes
[
Footnote *] See Autry v. Estelle,
464 U.S.
1, 2, 21 ( 1983) (per curiam) ("Had applicant convinced four
Members of the Court that certiorari would be granted on any of his
claims, a stay would issue "); Darden v. Wainwright,
473 U.S. 928, 928-929,
21-22 (1985) (Powell, J., concurring in granting of stay); Straight
v. Wainwright,
476
U.S. 1132, 1133, n. 2, 2005, n. 2, 90 L. Ed. 2d 683 (1986)
(Powell, J., concurring in denial of stay, joined by Burger, C.J.,
REHNQUIST, and O'CONNOR, JJ.) (noting that "the Court has
ordinarily stayed executions when four Members have voted to grant
certiorari"); id., at 1134-1135-2007 (Brennan, J., dissenting from
denial of stay, joined by MARSHALL and BLACKMUN, JJ.) ("[ W]hen
four vote to grant certiorari in a capital case, but there is not a
fifth vote to stay the scheduled execution, one of the five
Justices who does not believe the case worthy of granting
certiorari will nonetheless vote to stay; this is so that the 'Rule
of Four' will not be rendered meaningless by an execution that
occurs before the Court considers the case on the merits").
Footnote 1 "Teague, J.,
notwithstanding that such might, but probably only will cause a
slight delay in carrying out applicant's obvious desire to carry
into effect his long held death wish, as well as his strong belief
that he will be reincarnated after he is killed, but believing that
this Court, at least implicitly, has ruled that in a case such as
this one, where the reasonable probability that the defendant is
not competent to request that he be put to a premature death, or,
to put it another way, to commit legal suicide through the hands of
others, has been raised, it is necessary for the trial court to
conduct a 'full adversarial hearing' on the issue. Given the
possible favorable evidence now available, a 'full adversarial
hearing' should now be conducted in this cause. See Ex parte
Jordan,
758
S.W.2d 250 (Tex.Cr.App.1988). Also see Ford v. Wainwright,
477 U.S. 399[]
(1986)." Ex Parte Hamilton, No. 18,380-02 (Tex.Crim.App., June 22,
1990) (Teague, J., dissenting from order denying application for
stay).
Footnote 2 See Hamilton v.
Texas,
497 U.S.
1016 (1990) (Brennan, J., dissenting from denial of application
for stay).
Footnote 3 See Singleton v.
Commissioner,
439 U.S.
940, 942, 337 (1978) (opinion of STEVENS, J., respecting denial
of certiorari).
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