Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy
The application for stay of execution of sentence of death presented to JUSTICE KENNEDY and by him
referred to the Court are denied.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL 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, 227 (1976), I would grant the applications for stay of execution.
Even were I not of the foregoing view, I would grant applications A-580 and A-586 pending the filing of a petition for certiorari, which I would hold for our decision of Dugger v. Adams, No. 87-121.
In Caldwell v. Mississippi, 472 U.S. 320, 328-329 (1985), we held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Adams, supra, and numerous cases that have been held for it raise the question whether the rationale of Caldwell applies to statements made by prosecutors and judges to the effect that the jury's sentence is merely advisory and that the judge remains responsible for the sentence ultimately imposed. See, e.g., Preston v. Florida, No. A-216; Ford v. Dugger, No. 88-5582; Spisak v. Ohio, No. 88-5169; Grossman v. Florida, No. 88-5136; Harich v. Dugger, No. 88-5126. In Florida cases, the notion that the jury's sentence is merely "advisory" appears to be at odds with that State's settled law that the jury determination must be given "great weight" and may be overturned by the judge only when the facts are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975).
In the present case, the jurors were repeatedly informed throughout voir dire and the sentencing instructions that their role was to "render an advisory opinion only, just that, an opinion," or "just a sort of recommendation, so to speak, from the jury as to what penalty ought to be imposed," and that "[t]he law places the awesome burden upon the judge to decide what final disposition is made or penalty is imposed in a capital case." Unlike the situation we faced recently in Daugherty v. Florida, U.S. (1988), these were not merely two isolated comments of the prosecutor, but
rather repeated instructions by both the prosecutor and the trial judge. We have not yet decided that such comments amount to a violation of Caldwell v. Mississippi, but we have held several other cases - whose facts are virtually identical to these - pending our decision in Adams v. Dugger. I see no principled basis for refusing to do so here.
Nor should there be any procedural objection to such a course. In No. A-580, at least, the State has failed to raise any objection, either on the grounds of exhaustion or abuse of the writ. Because the State made no procedural objections in either the District Court or the Court of Appeals, any such claims should be considered waived. Cf. Jenkins v. Anderson, 447 U.S. 231, 234, n.1 (1980). The District Court's boilerplate sentence holding all four of the claims Bundy presented to it to constitute ...