On petition for writ of certiorari to the Court of Criminal
Appeals of Oklahoma.
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, Gregg v. Georgia,
428 U.S.
153, 231, 2973, 49 L. Ed. 2d 859 (1976) (MARSHALL, J.,
dissenting), I would vacate the judgment of the Oklahoma Court of
Criminal Appeals insofar as it left undisturbed the death sentence
imposed in this case. But even if I did not hold this view, I would
grant this petition for certiorari for two reasons. First, the
trial court incorrectly decided an unsettled question of law
concerning an accused's right to the assistance of experts in
preparing his defense. Second, the trial court's instructions at
the sentencing hearing, in combination with the prosecutor's
closing argument, deprived petitioner of his right to have the
sentencing jury consider all of the mitigating evidence he offered.
[ Johnson v. Oklahoma
484
U.S. 878 (1987) ][878-Continued.]
I
Petitioner Malcolm Johnson was charged with the first-degree
murder of Ura Thompson, an elderly woman who had been raped and
suffocated in her apartment. Recognizing that the prosecution's
case against petitioner rested largely on the opinion of a police
chemist, who would testify that petitioner's hair, blood, semen,
and clothing were consistent with physical evidence found in
Thompson's apartment, petitioner's counsel requested the court
prior to trial to appoint a chemist to aid in petitioner's defense.
Counsel argued that a chemist was needed to challenge the police
chemist's qualifications and testimony and to conduct an
electrophoresis test, which even the prosecution conceded could
show that petitioner was not the perpetrator of the crime. The
trial court agreed with counsel that the appointment of a chemist
was warranted, but denied the request on the ground that the
Oklahoma Court of Criminal Appeals previously had rejected the view
that criminal defendants were entitled to the assistance of such
experts. Brief in Opposition 8.
At trial, the prosecution presented two kinds of evidence.
First, the prosecution offered evidence showing that petitioner had
in his possession at the time of his arrest several items missing
from Thompson's apartment. Second, the prosecution pre-
Page 484 U.S.
878 , 879
sented the testimony of the police chemist. The prosecutor
referred to the chemist's testimony as the "real crux" of the
State's case against petitioner. Id., at 15. The jury convicted
petitioner of first-degree murder.
During a separate sentencing proceeding, defense counsel offered
mitigating evidence relating to petitioner's personal background.
Witnesses testifying on behalf of petitioner stated, for example,
that petitioner's father frequently had beaten petitioner and his
mother, that petitioner's parents eventually had separated, that
petitioner had grown up in poverty, and that petitioner as a
youngster had suffered from a mysterious and debilitating illness
requiring a long hospital stay. Immediately after defense counsel
offered this evidence, the trial court instructed the jury. As part
of the charge, the trial court stated: "[Y] ou should not allow
sympathy, sentiment or prejudice to affect you in reaching your
decision. You should avoid any influence of passion, prejudice, or
any other arbitrary factor when imposing sentence." Id., at 19.
After the delivery of these instructions, the prosecutor gave his
closing argument, in which he ridiculed the mitigating evidence
that petitioner's counsel had offered. The prosecutor stated:
"I've got great empathy for his folks. But so what? . . . [H] is
parents divorced when he was young. Oh, wow. . . . That's a
mitigating factor for violent conduct. That's bologna [sic]. . . .
Deprivation builds character. We ought to have fewer silver spoons
in the mouths of our children and a little more deprivation. He
wants to use that as a mitigating circumstance. . . . I was
offended by what happened in this courtroom when the little
children were placed on the witness stand to try to generate
sympathy for a cold- blooded killer. . . . So what if he was sick
or retarded: What's that got to do with-we're dealing with what he
is today. . . . Not whether he had a disease when he was a baby,
not whether he was mildly retarded at some time in his life. Id.,
at 20-21.
At the close of the sentencing hearing, the jury recommended a
sentence of death, and the court imposed that sentence.
II
This Court long has acknowledged that when a State brings
criminal proceedings against an indigent defendant, it must
take
Page 484 U.S.
878 , 880
steps to ensure that the accused has a meaningful opportunity to
present a defense. See, e.g., Douglas v. California,
372 U.S. 353 (1963);
Griffin v. Illinois,
351 U.S. 12 (1956).
Although the State need not purchase for an indigent defendant all
of the services that the wealthy may buy, see Ross v. Moffitt,
417 U.S.
600, 616, 2446 (1974), the State must provide the defendant
with the "basic tools of an adequate defense," Britt v. North
Carolina,
404 U.S.
226, 227, 433 (1971). We recently have begun to confront the
questions whether and when expert assistance is such a basic tool.
In Ake v. Oklahoma,
470 U.S.
68, 80, 1095 (1985), we recognized that when a defendant's
mental condition is at issue, the assistance of a psychiatrist is
"crucial to the defendant's ability to marshal his defense" and the
State must therefore provide psychiatric assistance. A few months
later, in Caldwell v. Mississippi,
472 U.S. 320, 323, n. 1,
2637, n. 1 (1985), we reserved the equally important questions
whether and when an indigent defendant is entitled to
nonpsychiatric expert assistance. This case demonstrates the
pressing need to consider and resolve those questions.
The denial of petitioner's request for the appointment of an
expert chemist resulted in a fundamentally unfair trial in two
respects. First, the denial prevented petitioner from raising
doubts about the strength of the State's evidence against him. The
prosecution's case against petitioner rested largely on the
testimony of the police chemist that petitioner's bodily fluids,
hair, and clothing comported with samples found at the scene of the
crime. We previously have recognized that " '[t] estimony emanating
from the depth and scope of specialized knowledge is very
impressive to a jury.' " Ake v. Oklahoma, supra, 470 U.S. at 81, n.
7, 105 S. Ct. at 1095, n. 7 (quoting F. Bailey & H. Rothblatt,
Investigation and Preparation of Criminal Cases 175 (1970)).
Without expert assistance, a defendant will usually be powerless to
create doubts in the jury's mind about such testimony's strength or
correctness. As Justice (then Chief Judge) Cardozo once stated, a
defendant is "at an unfair disadvantage if he is unable because of
poverty to parry by his own [ expert] witnesses the thrusts of
those against him." Reilly v. Berry, 250 N.Y. 456, 461, 166 N.E.
165, 167 (1929). Petitioner here was at such a disadvantage with
respect to testimony that the prosecutor termed the " real crux" of
the State's case. Second and equally important, the denial of the
request for expert assistance prevented petitioner from gaining
potentially conclusive exculpatory evidence in support of his
affirmative alibi defense. As petition-
Page 484 U.S.
878 , 881
er's counsel explained to the trial court, petitioner desired
expert assistance partly because he wanted to undergo a test that
could have conclusively disproved his commission of the crime. In
Little v. Streater,
452
U.S. 1 (1981), this Court held that a State's refusal to pay
for a blood-grouping test in the context of a quasi- criminal
proceeding to establish paternity violated the requirements of due
process. Yet the trial court here effectively prevented an accused
charged with a capital offense from gaining access to a similar
kind of test. By denying petitioner the chance to obtain
potentially conclusive exculpatory evidence, as well as by denying
him the means to challenge the testimony of the police witness, the
rejection of the request for expert assistance deprived petitioner
of a meaningful opportunity to present a defense.
III
In California v. Brown,
479 U.S. 538 ( 1987),
this Court upheld a jury instruction cautioning jurors that they "
must not be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling" during the
penalty phase of a capital murder trial. In holding that the
instruction did not suggest to the jury that it should disregard
sympathetic aspects of the accused's background or character, the
Court argued primarily that by cautioning the jury not to rely on
"mere sympathy," the instruction directed the jury to ignore "only
the sort of sympathy that would be totally divorced from the
evidence adduced during the penalty phase." Id., at 542, 106 S. Ct.
at 840 . In a concurring opinion, Justice O'CONNOR stated that
although this jury instruction, taken alone, was constitutional,
courts must recognize and guard against the possibility that
instructions "attempt[ing] to remove emotion from capital
sentencing," especially when combined with certain kinds of
prosecutorial remarks, will mislead juries into thinking that they
should ignore mitigating evidence about a defendant's background or
character. Id., at 545-546, 106 S. Ct. at 841. I continue to
believe that any instruction forbidding the sentencer to take
sympathy into account "precludes precisely the response that a
defendant's evidence of character and background is designed to
elicit, thus effectively negating the intended effect of the
Court's requirement that all mitigating evidence be considered."
Id., at 548, 106 S. Ct. at 843. (BRENNAN, J., dissenting). But even
under the majority's view in Brown, the instruction in this case,
when considered in conjunction with the prosecutor's comments,
diverted the jury from its
Page 484 U.S.
878 , 882
constitutional duty to consider all mitigating evidence
introduced by the defendant at the sentencing phase of the
trial.
The problem in this case arises both from the trial court's
instruction to the jury and from the prosecutor's closing argument.
The instruction cautioned the jury to disregard not "mere
sympathy," but " sympathy" in general, which surely includes the
sympathy deriving from petitioner's mitigating evidence. The
prosecutor's closing argument emphatically endorsed the suggestion
that the jury should disregard the mitigating evidence petitioner
had offered. By consistently ridiculing the evidence relating to
petitioner's background-by saying time and again " so what?"-the
prosecutor indicated that such evidence was irrelevant to the
sentencing determination. Thus, the conjunction of the court's
anti- sympathy instruction and the prosecutor's closing argument
diverted the jury from considering the factors of background and
character that this Court has decreed a jury must take into account
in reaching a sentencing determination.
IV
The handling of this case almost ensured that petitioner would
not prevail at either the guilt phase or the sentencing phase of
his trial. The denial of the request for expert assistance deprived
petitioner of a meaningful opportunity to contest his guilt. The
court's antisympathy instruction and the prosecutor's closing
argument denied petitioner a fair chance to challenge the
appropriateness of the death penalty. Because I believe that the
trial court unconstitutionally stacked the deck against petitioner
at both stages of this capital proceeding, I would grant the
petition for certiorari.
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