On Petition for Writ of Certiorari to the Supreme Court of
California.
The petition for a writ of certiorari is denied.
Justice BLACKMUN, with whom Justice MARSHALL joins,
dissenting.
I would grant the petition for certiorari to determine whether
petitioner's capital sentence was imposed in violation of the
Eighth and Fourteenth Amendments.
In 1978, a California jury convicted petitioner Andrew Edward
Robertson on two counts of first-degree murder and sentenced him to
death. On appeal, the Supreme Court of California reversed that
judgment as to the penalty. People v. Robertson,
33 Cal. 3d 21,
188 Cal. Rptr.
77,
655 P.2d 279
(1982). The second sentencing proceeding was assigned to Judge Roy
E. Chapman. Robertson waived his right to be sentenced by a jury,
and Judge Chapman sat as trier of fact during the second penalty
phase. [ Robertson v. California
498
U.S. 1004 (1990) ][1004-Continued.]
Robertson introduced extensive evidence in mitigation. Among
this was the testimony of his mother and sister concerning
Robertson's difficult childhood, during which he allegedly suffered
abuse at the hands of his father and stepfather. Through these
witnesses, Robertson presented evidence that he had had
developmental difficulties as a young child and was slow to walk
and talk; that his parents were divorced when he was young; that
his father subsequently had kidnaped him; that, upon being returned
from the kidnaping, he had been cared for by a disturbed mother and
a strict grandmother; and that at age nine he had been diagnosed as
suffering from mild mental retardation with possible brain damage.
See People v. Robertson,
48 Cal. 3d 18,
32,
255 Cal. Rptr.
631, 636,
767 P.2d 1109,
1114, cert. denied,
493 U.S. 879d 169 (1989).
Robertson, however, was again sentenced to death, and the
California Supreme Court, by a divided vote, affirmed. 48 Cal.3d,
at 64, 255 Cal.Rptr., at 1131, 767 P.2d, at 1136.
In December 1989, Robertson's counsel for the first time learned
that Judge Chapman, prior to his going on the bench, had
represented Robertson's mother, Lillian Goodin, in her divorce from
Robertson's stepfather. App.D. to Brief in Opposition 1. The
divorce proceeding was initiated by Robertson's stepfather in 1963
and involved extensive allegations by both parties of domestic
violence and child abuse. In March 1963, Judge Chapman, then
Lillian Goodin's attorney, sought a temporary restraining order
against Robertson's stepfather, prohibiting him from "threatening,
molesting, injuring, harassing, or annoying [Goodin] and [Goodin's]
children." App.C. to Brief in Opposition 4. In
Page 498 U.S.
1004 , 1005
support of the request for a temporary restraining order,
Robertson's mother executed a declaration attesting that
Robertson's stepfather "has struck and beat [Goodin], the minor
child of [Goodin and the stepfather], and [Goodin's] children by a
prior marriage." Id., at 3. Judge Chapman withdrew from his
representation of Robertson's mother on November 16, 1967. When
interviewed by Robertson's counsel in 1989, Judge Chapman
acknowledged that "the court documents demonstrated that he had
represented" Goodin, but stated that he had no present recollection
of the divorce proceeding, and that he believed that he had no
independent recollection of them at the time of Robertson's
sentencing. App.D to Brief in Opposition 2.
Immediately upon learning of the past representation, Robertson
filed a petition for a writ of habeas corpus in state court. After
the California Supreme Court denied Robertson's petition, he filed
in this Court a petition for a writ of certiorari. I would grant
that petition.
"A fair trial in a fair tribunal is a
basic requirement of due process." In re Murchison,
349 U.S.
133, 136, 625 (1955); see also Ward v. Village of Monroeville,
409 U.S. 57
(1972). The entitlement to an impartial tribunal applies to the
sentencing phase of a criminal proceeding as well as to the guilt
phase. See Witherspoon v. Illinois,
391 U.S.
510, 518, 1775 (1968). Due process demands more than that the
sentencer actually be impartial; rather, " 'justice must satisfy
the appearance of justice.' " In re Murchison, 349 U.S., at 136,
quoting Offutt v. United States,
348 U.S.
11, 14, 13 (1954); see also In re Murchison, 349 U.S., at 136,
75 S. Ct. at 625 ("[O]ur system of law has always endeavored to
prevent even the probability of unfairness"); Mayberry v.
Pennsylvania,
400 U.S.
455, 469, 507 (1971) (Harlan, J., concurring) ("[T]he
appearance of even-handed justice . . . is at the core of due
process"). The risk that Judge Chapman may have brought to bear on
his decision specific information about Robertson not presented as
evidence in the sentencing proceeding is too great in this case to
satisfy the demands of the Due Process Clause. See In re Murchison,
349 U.S., at 136, 75 S. Ct. at 625 ("Such a stringent rule may
sometimes bar trial by judges who have no actual bias and who would
do their very best to weigh the scales of justice equally between
contending parties").
Moreover, the Fourteenth Amendment prohibits consideration
during the sentencing phase of evidence that the defendant has not
had an opportunity to rebut. Consequently, in Gardner v. Florida,
430 U.S.
349, 358, 1204 (1977) (plurality opinion), the Court
Page 498 U.S.
1004 , 1006
rejected as unconstitutional a "capital-sentencing procedure
which permits a trial judge to impose the death sentence on the
basis of confidential information which is not disclosed to the
defendant or his counsel." See also Booth v. Maryland,
482 U.S. 496, 506-507,
2534-35 (1987).
In light of the stark finality of the death sentence, the
importance of procedural safeguards in capital sentencing
proceedings cannot be overstated. "Because sentences of death are
'qualitatively different' from prison sentences, this Court has
gone to extraordinary measures to ensure that the prisoner
sentenced to be executed is afforded process that will guarantee,
as much as is humanly possible, that the sentence was not imposed
out of whim, passion, prejudice, or mistake." Eddings v. Oklahoma,
455 U.S. 104,
117-118, 878-79 (1982) ( citation omitted) (O'CONNOR, J.,
concurring), see also Saffle v. Parks,
494 U.S. 484, 492-493,
1262-1263 (1990); California v. Ramos,
463 U.S. 992 (1983).
The State argues that no constitutional violation occurred in
this case because Judge Chapman did not recall, at the time of the
sentencing phase, that he had represented Robertson's mother 11
years before. I find it to be somewhat incredible that a competent
and responsible attorney could forget, after only 11 years, a
client whom he had represented over a 4-year period during
acrimonious divorce litigation. Judge Chapman's failure to remember
his representation of Robertson's mother is particularly
implausible because she testified during the sentencing proceedings
concerning the very acts of abuse that formed the basis of the
motion for a temporary restraining order that Judge Chapman filed
when he was her counsel.
Moreover, the fairness of these capital sentencing proceedings
may reasonably be questioned regardless of whether Judge Chapman
had independent recollection of his prior representation of
Robertson's mother . California requires that a judge disqualify
himself if "a person aware of the facts might reasonably entertain
a doubt that the judge would be able to be impartial."
Cal.Civ.Proc. Code, 170.1(a)(6)(C) (West Supp. 1990). See 28 U.S.C.
455(a), which similarly proscribes the participation by a judge of
the United States "in any proceeding in which his impartiality
might reasonably be questioned." Knowledge of the disqualifying
circumstance is not an element of either statute. See, e.g.,
Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 860-861,
2202-2203 (1988), quoting
796 F.2d
796, 802 ( CA5 1986) (" 'Under section 455(a) . . . recusal is
required even when a judge
Page 498 U.S.
1004 , 1007
lacks actual knowledge of the facts indicating his interest or
bias in the case if a reasonable person, knowing all the
circumstances, would expect that the judge would have actual
knowledge' ").
Finally, the Eighth Amendment safeguards the capital defendant
against the mere risk that the death sentence will be imposed
arbitrarily and capriciously. "A constant theme of our cases . . .
has been emphasis on procedural protections that are intended to
ensure that the death penalty will be imposed in a consistent,
rational manner." Barclay v. Florida,
463 U.S.
939, 960, 3430 (1983) ( STEVENS, J., concurring in judgment);
see also Godfrey v. Georgia,
446 U.S.
420, 427, 1764 (1980) (plurality opinion) ("[T]he penalty of
death may not be imposed under sentencing procedures that create a
substantial risk that the punishment will be inflicted in an
arbitrary and capricious manner").
Accordingly, I dissent from the denial of the petition for
certiorari.
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