On petition for writ of certiorari to the Supreme Court of
Indiana.
The petition for writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
The trial judge in this case rejected a unanimous jury decision
that petitioner's life should be spared, and sentenced him to die.
Petitioner's allegations, which call into question the reliability
of the judge's sentencing determination, further illustrate why a
judge should not have the awesome power to reject a jury
recommendation of life. Moreover, a serious inadequacy in the
Indiana capital-sentencing procedure dramatically distinguishes it
from the jury-override procedure that this Court upheld in Spaziano
v.
Page 475 U.S.
1036 , 1037
Florida,
468 U.S.
447 (1984). I must dissent from the Court's decision not to
consider petitioner's substantial claims.
I
Thomas N. Schiro was convicted of murder in the course of a rape
and, following a hearing on the appropriateness of sentencing him
to die, the jury recommended a life sentence. The trial judge,
however, rejected the jury's decision and imposed a sentence of
death. Upon direct appeal, the Supreme Court of Indiana found that
the trial court's findings pertaining to the sentencing did not set
out clearly and properly the court's reasons for imposing the death
penalty. Schiro v. State,
451 N.E.2d
1047, 1056 ( Schiro I ), cert. denied, 464 U.S. 1003 ( 1983).
That court ordered that the trial court make written findings
setting out the aggravating circumstance proved beyond a reasonable
doubt and the mitigating circumstances, if any, as listed in the
state statute. 451 N.E.2d, at 1056.
In response, the trial court specified one aggravating
circumstance, that the jury had convicted petitioner of murder in
the course of a rape; it then stated that it found no mitigating
circumstances, listing and rejecting each of the statutory
mitigating circumstances, even though several were suggested by the
evidence. With regard to the mitigating factor concerning a
defendant's mental or emotional condition and the impairment of his
capacity to appreciate the criminality of his acts, the court found
as follows:
"This Court personally observed the
Defendant, while the jury was present, making continual rocking
motions, which did not stop throughout the trial except when the
jury left the Courtroom. In the Court's outer chambers, out of the
presence of the jury, in the eight days of trial, the Court
frequently observed the Defendant sitting calmly and not rocking.
It is apparent to the Court that this may well have influenced and
misled the jury in its recommendation."
On the basis of his own suspicions, not subject to evidentiary
requirements or tested by cross-examination, the judge decided that
a unanimous jury was wrong and that petitioner should die. The
Indiana Supreme Court upheld the sentence of death.
479 N.E.2d
556 (1985).
II
Page 475 U.S.
1036 , 1038
In Spaziano v. Florida, supra, this Court sustained a scheme
that gave the judge the power to override the jury's decision to
impose a life sentence, provided that the judge could make certain
specified findings. The Court relied, in part, on the Florida
Supreme Court's anticipated adherence to the so-called "Tedder
standard." Under Tedder v. State,
322 So. 2d
908, 910 (Fla.1975), a Florida trial judge may not reject a
jury decision of life imprisonment unless the evidence favoring
death is "so clear and convincing that virtually no reasonable
person could differ." Ibid. This Court believed Tedder to be a
"significant safeguard," Spaziano, 468 U.S., at 465, and was
satisfied "that the Florida Supreme Court takes that standard
seriously." Ibid.
In contrast, the State of Indiana has not committed itself to
any comparable safeguard to protect against the arbitrary rejection
of a life sentence. On the contrary, the rules governing the scope
of appellate review of sentences provide that the appellate court
"will not revise a sentence authorized by statute except where such
sentence is manifestly unreasonable," and a "sentence is not
manifestly unreasonable unless no reasonable person could find such
sentence appropriate. . . ." Indiana Rules Appellate Review of
Sentences 1, 2 (emphasis added). Applying these rules to death
sentences, the Supreme Court of Indiana specifically declared that
it "will not engage in a different standard of review where jury
and trial court disagree" concerning the appropriateness of the
death sentence. Schiro I, supra, at 1058. Thus, while the Tedder
standard accords the jury's recommendation a presumption of
correctness by requiring "clear and convincing" evidence to justify
overriding it, the Indiana Supreme Court accords a similar
presumption to the judge's sentence, whether it was imposed
pursuant to the recommendation of the jury or against it.
This Court has emphasized that a sentence of death must reflect
an ethical judgment about the "moral guilt" of the defendant. See
Enmund v. Florida,
458 U.S. 782, 800-801,
3378 ( 1982). "Moral guilt" is a determination that a jury, as
representative of the community, is peculiarly well suited to
render. But if a prosecutor, even with the substantial tools
available to him, see, e.g., Wainwright v. Witt,
469 U.S. 412 (1985);
Witherspoon v. Illinois,
391 U.S. 510 (1968), is
unable to persuade the conscience of the community that death is
the appropriate punishment for a particular offense, then that
expression on the question of "moral guilt" is
Page 475 U.S.
1036 , 1039
entitled to at least some weight. By according no significance
at all to the jury's assessment of the crime and the defendant,
either at the sentencing itself or on appeal, Indiana's procedure
derogates the historic role of the jury. "Furman [v. Georgia,
408 U.S. 238, 33
L. Ed. 2d 346 (1972),] and its progeny provide no warrant
for-indeed do not tolerate-the exclusion from the capital
sentencing process of the jury and the critical contribution only
it can make toward linking the administration of capital punishment
to community values." Spaziano, supra, at 489-490 (STEVENS, J.,
joined by BRENNAN and MARSHALL, JJ., dissenting in part).
Moreover, the disregard of jury determinations injects a "level
of uncertainty and unreliability into the factfinding process that
cannot be tolerated in a capital case." Beck v. Alabama,
447 U.S.
625, 643, 100 S. Ct. 2382 (1980). In this case, for example,
the judge speculated that the jury's recommendation of life "may
well have" resulted from petitioner's propensity to rock back and
forth in the presence of the jury. Indiana law does not require the
jury to set forth its reasons for recommending a life sentence, so
the court could not have known whether the rocking motion had
anything to do with the jury's verdict; the court's decision was
necessarily speculative. The reliability that this Court has
demanded from capital sentencing decisions is totally lacking here,
and the "manifestly unreasonable" standard adopted by the Supreme
Court of Indiana effectively insulates the sentence from meaningful
review.
Because I understand the Eighth Amendment to require, at the
very least, that a jury's considered recommendation of a life
sentence rather than death not be ignored without some showing that
it was unreasonable, I would grant the petition to review Indiana's
method of bringing to execution those whose juries believed that
they should live.
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