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Willie Jasper
DARDEN Jr.
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: September 8,
1973
Date of arrest:
Next day
Date of birth: 1933
Victim profile: James Carl Turman(furniture store
owner)
Method of murder:
Shooting
Location: Polk County, Florida, USA
Status: Executed by
electrocution in
Florida on March 15,
1988
Darden v. Wainwright
In Darden v. Wainwright,
477 U.S. 168 (1986), the United States Supreme Court
reinforced its rule of deference in reviewing trial
court decisions to exclude jurors in death penalty
cases due to their opposition to the death penalty.
The State had challenged a
potential juror, and the defense had not objected to
his removal. Without further questioning from the
trial court, the juror was excused. Id. at
178. The petitioner argued to the Supreme Court that
the transcript of voir dire did not show that the
removed juror was substantially impaired because the
critical answer he had given was ambiguous. The
Court rejected this argument. "Our inquiry does not
end with a mechanical recitation of a single
question and answer." Id. at 176.
The Court held that even when "the
precise wording of the question asked of [the
venireman], and the answer he gave, do not by
themselves compel the conclusion that he could not
under any circumstance recommend the death penalty,"
the need to defer to the trial court remains because
so much may turn on a potential juror's demeanor.
Id. at 178. The absence of an objection, and the
trial court's decision not to engage in further
questioning as it had prior to excusing other jurors,
supported the conclusion that the juror was impaired.
Ibid.
U.S. Supreme Court
DARDEN v. WAINWRIGHT, 477 U.S. 168 (1986)
477 U.S. 168
DARDEN
v.
WAINWRIGHT, SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
No. 85-5319. Argued January 13, 1986
Decided June 23, 1986
After a jury trial in a Florida court, petitioner was found guilty
of murder, robbery, and assault with intent to kill. Pursuant to
Florida's capital sentencing statute, the same jury heard further
testimony and argument, and made a nonbinding recommendation that
the death penalty be imposed. The trial judge followed that
recommendation, and the Florida Supreme Court affirmed the
conviction and the sentence, rejecting petitioner's contention that
the prosecution's closing argument during the guilt phase of the
trial rendered the trial fundamentally unfair and deprived the
sentencing determination of the reliability required by the Eighth
Amendment.
The court also rejected petitioner's contention that the trial court
erred in excluding a member of the venire for cause on the basis of
his affirmative response to the judge's question during voir dire
"Do you have any moral or religious, conscientious moral or
religious principles in opposition to the death penalty so strong
that you would be unable without violating your own principles to
vote to recommend a death penalty regardless of the facts?" In
subsequent federal habeas corpus proceedings, petitioner raised the
same claims, as well as the additional claim that he had been denied
effective assistance of counsel at the sentencing phase of his trial.
The District Court denied relief, and the Court of Appeals
ultimately affirmed the District Court's judgment in all of its
aspects.
Held:
1. The record of the jury voir dire, viewed in its entirety, shows
that the trial court's decision to exclude the juror involved here
was proper. Wainwright v. Witt, 469 U.S. 412 , held that the proper
test is whether a juror's views on capital punishment would prevent
or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath. Petitioner's argument
on this issue rested solely on the wording of the question (quoted
above) that the trial court asked the juror before excluding him.
However, a proper determination of the issue requires examination of
the context surrounding the juror's exclusion. The record shows that
prior to individual questioning the trial court told the entire
venire that they would be questioned on this point, and that the
juror in question was present while the court repeatedly stated the
correct standard when questioning other individual members of the
panel. Pp. 175-178.
2. The record also supports the rejection of petitioner's contention
as to the prosecution's closing argument. The prosecution's argument
included improper remarks that indicated that petitioner was on
weekend furlough from an earlier prison sentence when the crime
involved here occurred; implied that the death penalty would be the
only guarantee against a future similar act; referred to petitioner
as an "animal"; and reflected an emotional reaction to the case.
However, the relevant question is whether the comments so infected
the trial with unfairness as to make the resulting conviction a
denial of due process. Viewed under this standard, the prosecution's
comments did not deprive petitioner of a fair trial. The comments
did not manipulate or misstate the evidence, or implicate other
specific rights of the accused, and much of their objectionable
content was responsive to the opening summation of the defense
(available under a state procedural rule). Moreover, defense counsel
were able to use their final rebuttal argument to turn much of the
prosecution's closing argument against it. Pp. 178-183.
3. With respect to the claim of ineffective assistance of counsel at
the sentencing phase of the trial, petitioner failed to satisfy the
first part of the two-part test set forth in Strickland v.
Washington, 466 U.S. 668 , that his trial counsels' performance fell
below an objective standard of reasonableness. There is no merit to
petitioner's contention that trial counsel devoted only the time
between the close of the guilt phase of trial and the start of the
penalty phase - approximately one-half hour - to prepare the case in
mitigation. The record indicates that a great deal of time and
effort went into the defense of this case; a significant portion of
that time was devoted to preparation for sentencing. Moreover, a
defendant must overcome the presumption that, under the
circumstances, the challenged action of counsel might be considered
sound trial strategy. Petitioner did not overcome that presumption
here. The record shows several reasons why counsel reasonably could
have chosen to rely on a simple plea for mercy from petitioner
himself, rather than to attempt to introduce mitigating evidence.
Pp. 184-187.
767 F.2d 752, affirmed and remanded.
POWELL, J., delivered the opinion of the Court,
in which BURGER, C. J., and WHITE, REHNQUIST, and O'CONNOR, JJ.,
joined. BURGER, C. J., filed a concurring opinion, post, p, 187.
BRENNAN, J., filed a dissenting opinion, post, p. 188. BLACKMUN, J.,
filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS,
JJ., joined, post, p. 188.
Robert Augustus Harper, Jr., argued the cause and
filed briefs for petitioner.
Richard W. Prospect, Assistant Attorney General
of Florida, argued the cause for respondent. With him on the brief
was Jim Smith, Attorney General.
JUSTICE POWELL delivered the opinion of the Court.
This case presents three questions concerning the validity of
petitioner's criminal conviction and death sentence: (i) whether the
exclusion for cause of a member of the venire violated the
principles announced in Wainwright v. Witt, 469 U.S. 412 (1985); (ii)
whether the prosecution's closing argument during the guilt phase of
a bifurcated trial rendered the trial fundamentally unfair and
deprived the sentencing determination of the reliability required by
the Eighth Amendment; and (iii) whether petitioner was denied
effective assistance of counsel at the sentencing phase of his trial.
I
Petitioner was tried and found guilty of murder,
robbery, and assault with intent to kill in the Circuit Court for
Citrus County, Florida, in January 1974. Pursuant to Florida's
capital sentencing statute, the same jury that convicted petitioner
heard further testimony and argument in order to make a nonbinding
recommendation as to whether a death sentence should be imposed. The
jury recommended a death sentence, and the trial judge followed that
recommendation.
On direct appeal, the Florida Supreme Court
affirmed the conviction and the sentence. Petitioner made several of
the same arguments in that appeal that he makes here. With respect
to the prosecutorial misconduct claim, the court disapproved of the
closing argument, but reasoned that the law required a new trial "only
in those cases in which it is reasonably evident that the remarks
might have influenced the jury to reach a more severe verdict of
guilt . . . or in which the comment is unfair." Darden v. State, 329
So.2d 287, 289 (1976).
It concluded that the comments had not rendered
petitioner's trial unfair. Petitioner's challenge to the juror
exclusion was rejected without comment. Petitioner did not at that
time raise his claim of ineffective assistance of counsel. This
Court granted certiorari, 429 U.S. 917 (1976), limited the grant to
the claim of prosecutorial misconduct, 429 U.S. 1036 (1977), heard
oral argument, and dismissed the writ as improvidently granted, 430
U.S. 704 (1977).
Petitioner then sought federal habeas corpus
relief, raising the same claims he raises here. The District Court
denied the petition. Darden v. Wainwright, 513 F. Supp. 947 (MD Fla.
1981). A divided panel of the Court of Appeals for the Eleventh
Circuit affirmed. Darden v. Wainwright, 699 F.2d 1031 (1983). The
Court of Appeals granted rehearing en banc, and affirmed the
District Court by an equally divided court. 708 F.2d 646 (1983).
Following a second rehearing en banc the Court of Appeals reversed
on the claim of improper excusal of a member of the venire. 725 F.2d
1526 (1984).
This Court granted the State's petition for
certiorari on that claim, vacated the Court of Appeals' judgment,
and remanded for reconsideration in light of Wainwright v. Witt. 469
U.S. 1202 (1985). On remand, the en banc court denied relief, 767
F.2d 752 (1985). Petitioner filed an application for a stay of his
execution that this Court treated as a petition for certiorari and
granted, at the same time staying his execution. 473 U.S. 928
(1985). We now affirm.
II
Because of the nature of petitioner's claims, the
facts of this case will be stated in more detail than is normally
necessary in this Court. On September 8, 1973, at about 5:30 p.m., a
black adult male entered Carl's Furniture Store near Lakeland,
Florida. The only other person in the store was the proprietor, Mrs.
Turman, who lived with her husband in a house behind the store. Mr.
Turman, who worked nights at a juvenile home, had awakened at about
5 p.m., had a cup of coffee at the store with his wife, and returned
home to let their dogs out for a run. Mrs. Turman showed the man
around the store. He stated that he was interested in purchasing
about $600 worth of furniture for a rental unit, and asked to see
several different items. He left the store briefly, stating that his
wife would be back to look at some of the items.
The same man returned just a few minutes later
asking to see some stoves, and inquiring about the price. When Mrs.
Turman turned toward the adding machine, he grabbed her and pressed
a gun to her back, saying "Do as I say and you won't get hurt." He
took her to the rear of the store and told her to open the cash
register. He took the money, then ordered her to the part of the
store where some box springs and mattresses were stacked against the
wall. At that time Mr. Turman appeared at the back door. Mrs. Turman
screamed while the man reached across her right shoulder and shot Mr.
Turman between the eyes. Mr. Turman fell backwards, with one foot
partially in the building. Ordering Mrs. Turman not to move, the man
tried to pull Mr. Turman into the building and close the door, but
could not do so because one of Mr. Turman's feet was caught in the
door.
The man left Mr. Turman faceup in the rain, and
told Mrs. Turman to get down on the floor approximately five feet
from where her husband lay dying. While she begged to go to her
husband, he told her to remove her false teeth. He unzipped his
pants, unbuckled his belt, and demanded that Mrs. Turman perform
oral sex on him. She began to cry "Lord, have mercy." He told her to
get up and go towards the front of the store.
Meanwhile, a neighbor family, the Arnolds, became
aware that something had happened to Mr. Turman. The mother sent her
16-year-old son Phillip, a part-time employee at the furniture
store, to help. When Phillip reached the back door he saw Mr. Turman
lying partially in the building. When Phillip opened the door to
take Turman's body inside, Mrs. Turman shouted "Phillip, no, go
back." Phillip did not know what she meant and asked the man to help
get Turman inside. He replied, "Sure, buddy, I will help you."
As Phillip looked up, the man was pointing a gun
in his face. He pulled the trigger and the gun misfired; he pulled
the trigger again and shot Phillip in the mouth. Phillip started to
run away, and was shot in the neck. While he was still running, he
was shot a third time in the side. Despite these wounds, Phillip
managed to stumble to the home of a neighbor, Mrs. Edith Hill. She
had her husband call an ambulance while she tried to stop Phillip's
bleeding. While she was helping Phillip, she saw a late model green
Chevrolet leave the store and head towards Tampa on State Highway
92. Phillip survived the incident; Mr. Turman, who never regained
consciousness, died later that night.
Minutes after the murder petitioner was driving
towards Tampa on Highway 92, just a few miles away from the
furniture store. He was out on furlough from a Florida prison, and
was driving a car borrowed from his girl friend in Tampa. He was
driving fast on a wet road. Petitioner testified that as he came up
on a line of cars in his lane, he was unable to slow down. He
attempted to pass, but was forced off the road to avoid a head-on
collision with an oncoming car.
Petitioner crashed into a telephone pole. The
driver of the oncoming car, John Stone, stopped his car and went to
petitioner to see if he could help. Stone testified that as he
approached the car, petitioner was zipping up his pants and buckling
his belt. Police at the crash site later identified petitioner's car
as a 1969 Chevrolet Impala of greenish golden brown color.
Petitioner paid a bystander to give him a ride to Tampa. Petitioner
later returned with a wrecker, only to find that the car had been
towed away by the police.
By the time the police arrived at the scene of
the accident, petitioner had left. The fact that the car matched the
description of the car leaving the scene of the murder, and that the
accident had occurred within three and one-half miles of the
furniture store and within minutes of the murder, led police to
suspect that the car was driven by the murderer. They searched the
area. An officer found a pistol - a revolver - about 40 feet from
the crash site. The arrangement of shells within the chambers
exactly matched the pattern that should have been found in the
murder weapon: one shot, one misfire, followed by three shots, with
a live shell remaining in the next chamber to be fired. A specialist
for the Federal Bureau of Investigation examined the pistol and
testified that it was a Smith & Wesson .38 special revolver. It had
been manufactured as a standard .38; it later was sent to England to
be rebored, making it a much rarer type of gun than the standard
.38. An examination of the bullet that killed Mr. Turman revealed
that it came from a .38 Smith & Wesson special.
On the day following the murder petitioner was
arrested at his girl friend's house in Tampa. A few days later Mrs.
Turman identified him at a preliminary hearing as her husband's
murderer. Phillip Arnold selected petitioner's picture out of a
spread of six photographs as the man who had shot him.
1
By that time, a Public Defender had been appointed to
represent petitioner.
As petitioner's arguments all relate to incidents
in the course of his trial, they will be taken up, together with the
relevant facts, in chronological order.
III
Petitioner contends that one member of the venire,
Mr. Murphy, was excluded improperly under the test enunciated in
Wainwright v. Witt, 496 U.S. 412 (1985). That case modified this
Court's opinion in Witherspoon v. Illinois, 391 U.S. 510 (1968).
Witherspoon had held that potential jurors may be excused for cause
when their opposition to the death penalty is such that they
automatically would vote against a sentence of death or would be
impaired in the task of determining defendant's guilt. Witt held
that the proper test is whether the juror's views on capital
punishment would "`prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his
oath.'" 469 U.S., at 424 , quoting Adams v. Texas, 448 U.S. 38, 45
(1980). Witt also made clear that the trial judge's determination
that a potential juror is impermissibly biased is a factual finding
entitled to a presumption of correctness under 28 U.S.C. 2254.
Petitioner's argument on this issue relies solely
on the wording of a question the trial court asked Murphy before
excluding him. The court asked: "Do you have any moral or religious,
conscientious moral or religious principles in opposition to the
death penalty so strong that you would be unable without violating
your own principles to vote to recommend a death penalty regardless
of the facts?" App. 9. Petitioner argues that this question does not
correctly state the relevant legal standard. As Witt makes clear,
however, our inquiry does not end with a mechanical recitation of a
single question and answer. 469 U.S., at 424 -426. We therefore
examine the context surrounding Murphy's exclusion to determine
whether the trial court's decision that Murphy's beliefs would "substantially
impair the performance of his duties as a juror" was fairly
supported by the record.
During voir dire, but prior to individual
questioning on this point, the trial court spoke to the entire
venire, including Murphy, saying:
"Now I am going to ask each of you
individually the same question so listen to me carefully, I want
to know if any of you have such strong religious, moral or
conscientious principles in opposition to the death penalty that
you would be unwilling to vote to return an advisory sentence
recommending the death sentence even though the facts presented
to you should be such as under the law would require that
recommendation? Do you understand my question?"
The court then proceeded to question the members
of the venire individually, but did so while the entire venire was
present in the courtroom. Thus, throughout the individual
questioning, all the veniremen could hear the questions and answers.
In fact, the prosecution frequently incorporated prior questioning
of other veniremen by reference, each time with the assurance from
the individual being questioned that he or she had heard and
understood the previous questions. See Tr. 89-90, 112, 141-142; see
also id., at 150.
The court repeatedly stated the correct standard
when questioning individual members of the venire.
2
Murphy was present and heard the court ask the proper Witherspoon
question over and over again.
3
After many instances of such questioning, Murphy was seated in the
jury box. The court first asked Murphy his occupation, and learned
that he was retired, but had spent the eight years before retirement
working in the administration office of St. Pios Seminary. As
previously noted, the court then asked: "Do you have any moral or
religious, conscientious moral or religious principles in opposition
to the death penalty so strong that you would be unable without
violating your own principles to vote to recommend a death penalty
regardless of the facts?" After Murphy responded "Yes, I have" he
was excused.
The precise wording of the question asked of
Murphy, and the answer he gave, do not by themselves compel the
conclusion that he could not under any circumstance recommend the
death penalty. But Witt recognized that "determinations of juror
bias cannot be reduced to question-and-answer sessions which obtain
results in the manner of a catechism." 469 U.S., at 424 . The trial
court, "aided as it undoubtedly was by its assessment of [the
potential juror's] demeanor," id., at 434, was under the obligation
to determine whether Murphy's views would "`prevent or substantially
impair the performance of his duties as a juror,'" id., at 424. In
making this determination, the trial court could take account of the
fact that Murphy was present throughout an entire series of
questions that made the purpose and meaning of the Witt inquiry
absolutely clear. No specific objection was made to the excusal of
Murphy by defense counsel. Nor did the court perceive, as it had
previously, any need to question further. Viewing the record of voir
dire in its entirety, we agree with the reasoning of the Court of
Appeals that the trial court's decision to exclude this juror was
proper. 767 F.2d, at 754.
IV
Petitioner next contends that the prosecution's
closing argument at the guilt-innocence stage of the trial rendered
his conviction fundamentally unfair and deprived the sentencing
determination of the reliability that the Eighth Amendment requires.
It is helpful as an initial matter to place these
remarks in context. Closing argument came at the end of several days
of trial. Because of a state procedural rule
4
petitioner's counsel had the opportunity to present the initial
summation as well as a rebuttal to the prosecutors' closing
arguments. The prosecutors' comments must be evaluated in light of
the defense argument that preceded it, which blamed the Polk County
Sheriff's Office for a lack of evidence,
5
alluded to the death penalty,
6
characterized the perpetrator of the crimes as an "animal,"
7
and contained counsel's personal opinion of the strength of the
State's evidence.
8
The prosecutors then made their closing argument.
That argument deserves the condemnation it has received from every
court to review it, although no court has held that the argument
rendered the trial unfair. Several comments attempted to place some
of the blame for the crime on the Division of Corrections, because
Darden was on weekend furlough from a prison sentence when the crime
occurred.
9
Some comments implied that the death penalty would be the
only guarantee against a future similar act.
10
Others incorporated the defense's use of the word "animal."
11
Prosecutor McDaniel made several offensive comments
reflecting an emotional reaction to the case.
12
These comments undoubtedly were improper. But as
both the District Court and the original panel of the Court of
Appeals (whose opinion on this issue still stands) recognized, it "is
not enough that the prosecutors' remarks were undesirable or even
universally condemned." Darden v. Wainwright, 699 F.2d, at 1036. The
relevant question is whether the prosecutors' comments "so infected
the trial with unfairness as to make the resulting conviction a
denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637
(1974). Moreover, the appropriate standard of review for such a
claim on writ of habeas corpus is "the narrow one of due process,
and not the broad exercise of supervisory power." Id., at 642.
Under this standard of review, we agree with the
reasoning of every court to consider these comments that they did
not deprive petitioner of a fair trial.
13
The prosecutors' argument did not manipulate or misstate the
evidence, nor did it implicate other specific rights of the accused
such as the right to counsel or the right to remain silent. See
Darden v. Wainwright, 513 F. Supp., at 958. Much of the
objectionable content was invited by or was responsive to the
opening summation of the defense. As we explained in United States
v. Young, 470 U.S. 1 (1985), the idea of "invited response" is used
not to excuse improper comments, but to determine their effect on
the trial as a whole. Id., at 13.
The trial court instructed the jurors several
times that their decision was to be made on the basis of the
evidence alone, and that the arguments of counsel were not evidence.
The weight of the evidence against petitioner was heavy; the "overwhelming
eyewitness and circumstantial evidence to support a finding of guilt
on all charges," 329 So.2d, at 291, reduced the likelihood that the
jury's decision was influenced by argument. Finally, defense counsel
made the tactical decision not to present any witness other than
petitioner.
This decision not only permitted them to give
their summation prior to the prosecution's closing argument, but
also gave them the opportunity to make a final rebuttal argument.
Defense counsel were able to use the opportunity for rebuttal very
effectively, turning much of the prosecutors' closing argument
against them by placing many of the prosecutors' comments and
actions in a light that was more likely to engender strong
disapproval than result in inflamed passions against petitioner.
14
For these reasons, we agree with the District Court below
that "Darden's trial was not perfect - few are - but neither was it
fundamentally unfair." 513 F. Supp., at 958.
15
V
Petitioner contends that he was denied effective
assistance of counsel at the sentencing phase of trial. That claim
must be evaluated against the two-part test announced in Strickland
v. Washington, 466 U.S. 668 (1984). First, petitioner must show that
"counsel's representation fell below an objective standard of
reasonableness." Id., at 688. Second, petitioner must show that "there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id.,
at 694. Petitioner argues that his trial counsel did not delve
sufficiently into his background, and as a result were unprepared to
present mitigating evidence at the sentencing hearing.
As an initial matter, petitioner contends that
trial counsel devoted only the time between the close of the guilt
phase of trial and the start of the penalty phase - approximately
one-half hour - to preparing the case in mitigation. That argument
is without merit. Defense counsel engaged in extensive preparation
prior to trial, in a manner that included preparation for sentencing.
Mr. Jack Johnson, head of the Public Defender's office at the time,
stated to the habeas court that "we had expended hundreds of hours
on [petitioner's] behalf trying to represent him," Tr. of Habeas
Corpus Proceedings 219, and that his office "worked very hard on the
case." Id., at 237. Mr. Goodwill, an experienced criminal trial
lawyer, testified that he "spent more time on this case than I spent
on . . . any capital case I have been involved in, probably more
time than any case I've ever been involved in." Supp. App. 30.
That included time investigating petitioner's
alibi, and driving petitioner around the scene of events to
establish each point of his story. Counsel obtained a psychiatric
report on petitioner, with an eye toward using it in mitigation
during sentencing. Counsel also learned in pretrial preparation that
Mrs. Turman was opposed to the death penalty, and considered the
possibility of putting her on the stand at the sentencing phase. The
record clearly indicates that a great deal of time and effort went
into the defense of this case; a significant portion of that time
was devoted to preparation for sentencing.
Petitioner also claims that his trial counsel
interpreted Fla. Stat. 921.141(6) (1985), a statutory list of
mitigating factors, as an exclusive list. He contends that their
failure to introduce any evidence in mitigation was the result of
this interpretation of the statute, and that he was thereby deprived
of effective assistance of counsel.
We express no view about the reasonableness of
that interpretation of Florida law, because in this case the trial
court specifically informed petitioner and his counsel just prior to
the sentencing phase of trial that they could "go into any other
factors that might really be pertinent to full consideration of your
case and the analysis of you and your family situation, your causes,
or anything else that might be pertinent to what is the appropriate
sentence." Tr. 887. At that point, even if counsel previously
believed the list to be exclusive, they knew they were free to offer
nonstatutory mitigating evidence, and chose not to do so.
As we recognized in Strickland: "Judicial
scrutiny of counsel's performance must be highly deferential. . . .
A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time." 466
U.S., at 689 . In particular, "a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy.'" Ibid.,
quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).
In this case, there are several reasons why
counsel reasonably could have chosen to rely on a simple plea for
mercy from petitioner himself. Any attempt to portray petitioner as
a nonviolent man would have opened the door for the State to rebut
with evidence of petitioner's prior convictions. This evidence had
not previously been admitted in evidence, and trial counsel
reasonably could have viewed it as particularly damaging.
The head of the Public Defenders Office testified
at the habeas corpus hearing that petitioner "had been in and out of
jails and prisons for most of his adult life . . . ." Tr. of Habeas
Corpus Proceedings 209. Petitioner had, for example, previously been
convicted of assault with intent to commit rape. Darden v. State,
218 So.2d 485 (Fla. App. 1969).
In addition, if defense counsel had attempted to
offer testimony that petitioner was incapable of committing the
crimes at issue here, the State could have responded with a
psychiatric report that indicated that petitioner "very well could
have committed the crime; that he was, as I recall his [the
psychiatrist's] term, sociopathic type personality; that he would
act entirely on impulse with no premeditation from the standpoint of
planning. But that when a situation arose, the decision would be
made simultaneously to commit the act." Supp. App. 76 (testimony of
Mr. Goodwill).
For that reason, after consultation with
petitioner, defense counsel rejected use of the psychiatric
testimony. Tr. 886. Similarly, if defense counsel had attempted to
put on evidence that petitioner was a family man, they would have
been faced with his admission at trial that, although still married,
he was spending the weekend furlough with a girlfriend. In sum,
petitioner has not "overcome the presumption that, under the
circumstances, the challenged action `might be considered sound
trial strategy.'" 466 U.S., at 689 , quoting Michel v. Louisiana,
supra, at 101. Petitioner has failed to satisfy the first part of
the Strickland test, that his trial counsels' performance fell below
an objective standard of reasonableness. We agree with both the
District Court and the Court of Appeals that petitioner was not
deprived of the effective assistance of counsel. 699 F.2d, at 1037.
VI
The judgment of the Court of Appeals is affirmed,
and the case is remanded for proceedings consistent with this
opinion.
It is so ordered.
*****
Footnotes
[
Footnote 1
] There are some minor discrepancies in the eyewitness
identification. Mrs. Turman first described her assailant
immediately after the murder while her husband was being taken to
the emergency room. She told the investigating officer that the
attacker was a heavy-set man. Tr. 237. When asked if he was "neat in
his appearance, clean-looking, cleanshaven," she responded "[a]s far
as I can remember, yes, sir." Ibid. She also stated to the officer
that she thought that the attacker was about her height, 5' 6" tall,
and that he was wearing a pullover shirt with a stripe around the
neck. Id., at 227. The first time she saw petitioner after the
attack was when she identified him at the preliminary hearing. She
had not read any newspaper accounts of the crime, nor had she seen
any picture of petitioner. When she was asked if petitioner was the
man who had committed the crimes, she said yes. She also repeatedly
identified him at trial. Phillip Arnold first identified petitioner
in a photo lineup while in the hospital. He could not speak at the
time, and in response to the written question whether petitioner had
a mustache, Phillip wrote back "I don't think so." Id., at 476.
Phillip also testified at trial that the attacker was a heavy-set
man wearing a dull, light color knit shirt with a ring around the
neck. Id., at 443. He testified that the man was almost his height,
about 6' 2" tall. A motorist who stopped at the scene of the
accident testified that petitioner was wearing a white or off-grey
button-down shirt and that he had a slight mustache. Id., at 313,
318-320. In fact, the witness stated that he "didn't know it was
that [the mustache] or the raindrops on him or not. I couldn't
really tell that much to it, it was real thin, that's all." Id., at
318-319. Petitioner is about 5' 10" tall, and at the time of trial
testified that he weighed about 175 pounds.
[
Footnote 2
] Prior to voir dire defense counsel objected to any
questioning by the prosecution regarding a potential juror's
feelings about the death penalty. The judge denied the motion,
stating: "It is my ruling if a prospective juror states on his voir
dire examination that because of his moral, religious or
conscientious principles and belief he would be unwilling to
recommend a death penalty, even though the facts and circumstances
meet the requirements of law, then he in effect has said he would be
unwilling to follow the law . . . ." App. 6. Although the judge
correctly stated the general standard for dismissal, he assured
defense counsel that they were free to make an objection to any
particular Witherspoon question that was otherwise objectionable or
that had "gone too far." Id., at 7.
[
Footnote 3
] For example, the court asked Mrs. Macy: "[D]o you hold such
conscientious moral or religious principles in opposition to the
death penalty that you would be unwilling under any circumstances to
recommend the death sentence?" Tr. 44. To Mr. Varney, who responded
affirmatively to the above question, the court asked further: "[I]n
the event that the evidence should be such that under the law that
should be the legal recommendation you would be unwilling to return
such a recommendation because of your conscientious beliefs?" Ibid.
When three new veniremen replaced others who had been excused, the
court asked: "Do either of the three of you hold such strong
religious, moral or conscientious principles in opposition to the
imposition of the death penalty that you would be unwilling to vote
to recommend the death penalty regardless of what the evidence was?"
Id., at 88. At a similar point later on, the court explained to
replacements from the venire that "I have asked the others and I
will ask each of the four of you whether you have such strong
religious, conscientious or moral principles against the imposition
of the death penalty that you would be unwilling to vote to return a
recommended sentence of the death penalty regardless of what the
evidence or the facts might be?" Id., at 109. When one of the four
expressed reservations, the court once again followed up with
further questioning, demonstrating its practice of assuring itself,
if there was any doubt, of the potential juror's true position. See
also id., at 107. During the voir dire examination prior to Murphy,
four potential jurors were excused on Witherspoon grounds.
[
Footnote 4
] Rule 3.250 of the Florida Rules of Criminal Procedure
(1973) provided that "a defendant offering no testimony in his own
behalf, except his own, shall be entitled to the concluding argument
before the jury."
[
Footnote 5
] "The Judge is going to tell you to consider the evidence or
the lack of evidence. We have a lack of evidence, almost criminally
negligent on the part of the Polk County Sheriff's Office in this
case. You could go on and on about it." Tr. 728.
[
Footnote 6
] "They took a coincidence and magnified that into a capital
case. And they are asking you to kill a man on coincidence." Id., at
730.
[
Footnote 7
] "The first witness that you saw was Mrs. Turman, who was a
pathetic figure; who worked and struggled all of her life to build
what little she had, the little furniture store; and a woman who was
robbed, sexually assaulted, and then had her husband slaughtered
before her eyes, by what would have to be a vicious animal." Id., at
717. "And this murderer ran after him, aimed again, and this poor
kid with half his brains blown away. . . . It's the work of an
animal, there's no doubt about it." Id., at 731-732.
[
Footnote 8
] "So they come on up here and ask Citrus County people to
kill the man. You will be instructed on lesser included offenses. .
. . The question is, do they have enough evidence to kill that man,
enough evidence? And I honestly do not think they do." Id., at
736-737.
[
Footnote 9
] "As far as I am concerned, there should be another
Defendant in this courtroom, one more, and that is the division of
corrections, the prisons. . . . Can we expect him to stay in a
prison when they go there? Can't we expect them to stay locked up
once they go there? Do we know that they're going to be out on the
public with guns, drinking?" App. 15-16. "Yes, there is another
Defendant, but I regret that I know of no charges to place upon him,
except the public condemnation of them, condemn them." Id., at 16.
[
Footnote 10
] "I will ask you to advise the Court to give him death.
That's the only way that I know that he is not going to get out on
the public. It's the only way I know. It's the only way I can be
sure of it. It's the only way that anybody can be sure of it now,
because the people that turned him loose - ." Id., at 17-18.
[
Footnote 11
] "As far as I am concerned, and as Mr. Maloney said as he
identified this man, this person as an animal, this animal was on
the public for one reason." Id., at 15.
[
Footnote 12
] "He shouldn't be out of his cell unless he has a leash on
him and a prison guard at the other end of that leash." Id., at 16.
"I wish [Mr. Turman] had had a shotgun in his hand when he walked in
the back door and blown his [Darden's] face off. I wish that I could
see him sitting here with no face, blown away by a shotgun." Id., at
20. "I wish someone had walked in the back door and blown his head
off at that point." Ibid. "He fired in the boy's back, number five,
saving one. Didn't get a chance to use it. I wish he had used it on
himself." Id., at 28. "I wish he had been killed in the accident,
but he wasn't. Again, we are unlucky that time." Id., at 29. "[D]on't
forget what he has done according to those witnesses, to make every
attempt to change his appearance from September the 8th, 1973. The
hair, the goatee, even the moustache and the weight. The only thing
he hasn't done that I know of is cut his throat." Id., at 31. After
this, the last in a series of such comments, defense counsel
objected for the first time.
[
Footnote 13
] JUSTICE BLACKMUN'S dissenting opinion argues that because
of prosecutorial misconduct petitioner did not receive a fair trial.
The dissent states that the Court is "willing to tolerate not only
imperfection but a level of fairness and reliability so low it
should make conscientious prosecutors cringe." Post, at 189. We
agree that the argument was, and deserved to be, condemned. Supra,
at 179. Conscientious prosecutors will recognize, however, that
every court that criticized the argument went on to hold that the
fairness of petitioner's trial was not affected by the prosecutors'
argument. On direct appeal in 1976, the Florida Supreme Court so
held after a careful review of the "totality of the record." Darden
v. State, 329 So.2d 287, 290-291. On the first federal habeas
petition, the District Court considered the prosecution's closing
argument at length and denied the petition. It concluded after a "thorough
review of the record" that it was "convinced that no relief is
warranted." Darden v. Wainwright, 513 F. Supp. 947, 958 (MD Fla.
1981). "Darden's trial was not perfect - few are - but neither was
it fundamentally unfair." Ibid. The original panel of the Court of
Appeals affirmed the District Court's holding with respect to the
prosecutors' argument. It stated that it had "considered the
prosecutors' remarks and evaluated them in light of Darden's entire
trial," and that it "agree[d] with the district court's conclusion
that the prosecutors' comments did not deny Darden a fundamentally
fair trial." 699 F.2d 1031, 1036-1037 (1983). When the Court of
Appeals reheard the case en banc for the second time it expressly
agreed with the panel decision on the prosecutorial misconduct issue.
725 F.2d 1526, 1532 (1984). The Court of Appeals, however, reversed
the District Court on the Witherspoon issue. This Court granted the
State's petition for certiorari only on that issue, and vacated and
remanded the case for reconsideration in light of Wainwright v. Witt,
469 U.S. 412 (1985). The Court of Appeals denied all relief, 767
F.2d 752 (1985). During this protracted litigation not one court has
agreed with petitioner's claim with respect to improper
prosecutorial argument.
[
Footnote 14
] "Mr. McDaniel made an impassioned plea . . . how many times
did he repeat [it]? I wish you had been shot, I wish they had blown
his face away. My God, I get the impression he would like to be the
man that stands there and pulls the switch on him." Tr. 791; see
also id., at 794. One of Darden's counsel testified at the habeas
corpus hearing that he made the tactical decision not to object to
the improper comments. Based on his long experience with prosecutor
McDaniel, he knew McDaniel would "get much more vehement in his
remarks if you allowed him to go on." By not immediately objecting,
he hoped to encourage the prosecution to commit reversible error.
Supp. App. 46-47.
[
Footnote 15
] JUSTICE BLACKMUN'S dissenting opinion mistakenly argues
that the Court today finds, in essence, that any error was harmless,
and then criticizes the Court for not applying the harmless-error
standard. Post, at 196-197. We do not decide the claim of
prosecutorial misconduct on the ground that it was harmless error.
In our view of the case, that issue is not presented. Rather, we
agree with the holding of every court that has addressed the issue,
that the prosecutorial argument, in the context of the facts and
circumstances of this case, did not render petitioner's trial unfair
- i. e., that it was not constitutional error. Petitioner also
maintains that the comments violated the requirement of reliability
in the sentencing process articulated in Caldwell v. Mississippi,
472 U.S. 320 (1985). The principles of Caldwell are not applicable
to this case. Caldwell involved comments by a prosecutor during the
sentencing phase of trial to the effect that the jury's decision as
to life or death was not final, that it would automatically be
reviewed by the State Supreme Court, and that the jury should not be
made to feel that the entire burden of the defendant's life was on
them.
This Court held that such comments "presen[t] an
intolerable danger that the jury will in fact choose to minimize the
importance of its role," a view that would be fundamentally
incompatible with the Eighth Amendment requirement that the jury
make an individualized decision that death is the appropriate
punishment in a specific case. Id., at 333. There are several
factual reasons for distinguishing Caldwell from the present case.
The comments in Caldwell were made at the sentencing phase of trial
and were approved by the trial judge. In this case, the comments
were made at the guilt-innocence stage of trial, greatly reducing
the chance that they had any effect at all on sentencing.
The trial judge did not approve of the comments,
and several times instructed the jurors that the arguments were not
evidence and that their decision was to be based only on the
evidence. But petitioner's reliance on Caldwell is even more
fundamentally mistaken than these factual differences indicate.
Caldwell is relevant only to certain types of comment - those that
mislead the jury as to its role in the sentencing process in a way
that allows the jury to feel less responsible than it should for the
sentencing decision. In this case, none of the comments could have
had the effect of misleading the jury into thinking that it had a
reduced role in the sentencing process. If anything, the prosecutors'
comments would have had the tendency to increase the jury's
perception of its role. We therefore find petitioner's Eighth
Amendment argument unconvincing.
*****
CHIEF JUSTICE BURGER, concurring.
I concur fully in the opinion for the Court and
write separately only to address the suggestion in JUSTICE
BLACKMUN'S dissent that the Court rejects Darden's Witherspoon claim
because of its "impatience with the progress of Darden's
constitutional challenges to his conviction." Post, at 204. In
support of this contention, reference is made to my dissent from the
grant of certiorari in this case. The dissent states that I voted to
deny the petition because Darden's claims have been reviewed by 95
judges in the 12 years since his conviction. This is simply
incorrect. To set the record straight, I quote my dissent in full:
"In the 12 years since petitioner was
convicted of murder and sentenced to death, the issues now
raised in the petition for certiorari have been considered by
this Court four times, see Darden v. Florida, 430 U.S. 704
(1977) (dismissing certiorari as improvidently granted); Darden
v. Wainwright, 467 U.S. 1230 (1984) (denying certiorari);
Wainwright v. Darden, 469 U.S. 1202 (1985) (vacating and
remanding 725 F.2d 1526 (CA11 1984)); Darden v. Wainwright, [
473 U.S. 927 ] (order dated September 3, 1985, denying
application for stay), and have been passed upon no fewer than
95 times by federal and state court judges. Upon review of the
petition and the history of this case, I conclude that no issues
are presented that merit plenary review by this Court. Because
we abuse our discretion when we accept meritless petitions
presenting claims that we rejected only hours ago, I dissent."
473 U.S. 929 (1985).
As my dissent makes clear, I voted to deny the
petition in this extraordinary case because the meritless claims
raised did not require plenary review. Full briefing and oral
argument have not changed my views.
The dissent's suggestion that this Court is
motivated by impatience with Darden's constitutional claims is
refuted by the record; the 13 years of judicial proceedings in this
case manifest substantial care and patience. Our rejection of
Darden's claims in this the fourth time he has sought review in this
Court is once again based on a thoughtful application of the law to
the facts of the case. At some point there must be finality.
*****
JUSTICE BRENNAN, dissenting.
I join my Brother BLACKMUN'S dissent. Moreover,
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) (BRENNAN, J.,
dissenting), I would vacate the death sentence imposed in this case.
*****
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN,
JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.
Although the Constitution guarantees a criminal
defendant only "a fair trial [and] not a perfect one," Lutwak v.
United States, 344 U.S. 604, 619 (1953); Bruton v. United States,
391 U.S. 123, 135 (1968), this Court has stressed repeatedly in the
decade since Gregg v. Georgia, 428 U.S. 153 (1976), that the Eighth
Amendment requires a heightened degree of reliability in any case
where a State seeks to take the defendant's life.
1
Today's opinion, however, reveals a Court willing to tolerate
not only imperfection but a level of fairness and reliability so low
it should make conscientious prosecutors cringe.
I
A
The Court's discussion of Darden's claim of
prosecutorial misconduct is noteworthy for its omissions. Despite
the fact that earlier this Term the Court relied heavily on
standards governing the professional responsibility of defense
counsel in ruling that an attorney's actions did not deprive his
client of any constitutional right, see Nix v. Whiteside, 475 U.S.
157, 166 -171 (1986), today it entirely ignores standards governing
the professional responsibility of prosecutors in reaching the
conclusion that the summations of Darden's prosecutors did not
deprive him of a fair trial. See ante, at 178-183.
The prosecutors' remarks in this case reflect
behavior as to which "virtually all the sources speak with one voice,"
Nix v. Whiteside, supra, at 166, that is, a voice of strong
condemnation.
2
The following brief comparison of established standards of
prosecutorial conduct with the prosecutors' behavior in this case
merely illustrates, but hardly exhausts, the scope of the misconduct
involved:
1. "A lawyer shall not . . . state a personal
opinion as to . . . the credibility of a witness . . . or the guilt
or innocence of an accused." Model Rules of Professional Conduct,
Rule 3.4(e) (1984); see also Code of Professional Responsibility, DR
7-106(C)(4) (1980); ABA Standards for Criminal Justice 3-5.8(b)(2d
ed. 1980). Yet one prosecutor, White, stated: "I am convinced, as
convinced as I know I am standing before you today, that Willie
Jasper Darden is a murderer, that he murdered Mr. Turman, that he
robbed Mrs. Turman and that he shot to kill Phillip Arnold. I will
be convinced of that the rest of my life." App. 15. And the other
prosecutor, McDaniel, stated, with respect to Darden's testimony: "Well,
let me tell you something: If I am ever over in that chair over
there, facing life or death, life imprisonment or death, I guarantee
you I will lie until my teeth fall out." Id., at 18.
2. "The prosecutor should refrain from argument
which would divert the jury from its duty to decide the case on the
evidence, by injecting issues broader than the guilt or innocence of
the accused under the controlling law, or by making predictions of
the consequences of the jury's verdict." ABA Standards for Criminal
Justice 3-5.8(d) (2d ed. 1980); cf. Model Rules of Professional
Conduct, Rule 3.4(e); Code of Professional Responsibility, DR
7-106(C)(7); ABA Standards for Criminal Justice 3-6.1(c) (2d ed.
1980). Yet McDaniel's argument was filled with references to
Darden's status as a prisoner on furlough who "shouldn't be out of
his cell unless he has a leash on him." App. 16; see also, e. g., id.,
at 17, 18, 23, 24, 26. Again and again, he sought to put on trial an
absent "defendant," the State Department of Corrections that had
furloughed Darden. See, e. g., id., at 15, 17, 23, 32. He also
implied that defense counsel would use improper tricks to deflect
the jury from the real issue. See id., at 15, 26. Darden's status as
a furloughed prisoner, the release policies of the Department of
Corrections, and his counsel's anticipated tactics obviously had no
legal relevance to the question the jury was being asked to decide:
whether he had committed the robbery and murder at the Turmans'
furniture store. Indeed, the State argued before this Court that
McDaniel's remarks were harmless precisely because he "failed to
discuss the issues, the weight of the evidence, or the credibility
of the witnesses." Brief for Respondent 26.
3. "The prosecutor should not use arguments
calculated to inflame the passions or prejudices of the jury." ABA
Standards for Criminal Justice 3-5.8(c) (2d ed. 1980); see Berger v.
United States, 295 U.S. 78, 88 (1935). Yet McDaniel repeatedly
expressed a wish "that I could see [Darden] sitting here with no
face, blown away by a shotgun," App. 20; see also, e. g., id., at
28, 29, 31. Indeed, I do not think McDaniel's summation, taken as a
whole, can accurately be described as anything but a relentless and
single-minded attempt to inflame the jury.
The Court, see ante, at 181, relies on the
standard established in Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974), for deciding when a prosecutor's comments at a state trial
render that trial fundamentally unfair. It omits, however, any
discussion of the facts, so different from those in this case, that
led the Court to conclude in DeChristoforo that that defendant had
not been deprived of a fair trial.
DeChristoforo concerned "two remarks made by the
prosecutor during the course of his rather lengthy closing argument
to the jury." Id., at 640. One remark was "but one moment of an
extended trial." Id., at 645. And even the more objectionable remark
was so "ambiguous," ibid., that it provided no basis for inferring
either that the prosecutor "intend[ed] [it] to have its most
damaging meaning or that a jury, sitting through lengthy exhortation,
[would] draw that meaning from the plethora of less damaging
interpretations," id., at 647. Finally, the trial judge in
DeChristoforo expressly instructed the jury to disregard the
improper statements. Id., at 645. This Court's holding thus rested
on its conclusion that the prosecutor's comments were neither so
extensive nor so improper as to violate the Constitution.
Far from involving "ambiguous" statements that "might
or might not" affect the jury, id., at 647, the remarks at issue
here were "focused, unambiguous, and strong." Caldwell v.
Mississippi, 472 U.S. 320, 340 (1985). It is impossible to read the
transcript of McDaniel's summation without seeing it as a calculated
and sustained attempt to inflame the jury. Almost every page
contains at least one offensive or improper statement; some pages
contain little else. The misconduct here was not "slight or confined
to a single instance, but . . . was pronounced and persistent, with
a probable cumulative effect upon the jury which cannot be
disregarded as inconsequential." Berger v. United States, 295 U.S.,
at 89 .
C
The Court presents what is, for me, an entirely
unpersuasive one-page laundry list of reasons for ignoring this
blatant misconduct. First, the Court says that the summations "did
not manipulate or misstate the evidence [or] . . . implicate other
specific rights of the accused such as the right to counsel or the
right to remain silent." Ante, at 182. With all respect, that
observation is quite beside the point. The "solemn purpose of
endeavoring to ascertain the truth . . . is the sine qua non of a
fair trial," Estes v. Texas, 381 U.S. 532, 540 (1965), and the
summations cut to the very heart of the Due Process Clause by
diverting the jury's attention "from the ultimate question of guilt
or innocence that should be the central concern in a criminal
proceeding." Stone v. Powell, 428 U.S. 465, 490 (1976).
Second, the Court says that "[m]uch of the
objectionable content was invited by or was responsive to the
opening summation of the defense." Ante, at 182, citing United
States v. Young, 470 U.S. 1 (1985). The Court identifies four
portions of the defense summation that it thinks somehow "invited"
McDaniel's sustained barrage. The State, however, did not object to
any of these statements, and, to my mind, none of them is so
objectionable that it would have justified a tactical decision to
interrupt the defense summation and perhaps irritate the jury. Cf.
id., at 13-14.
The Court begins by stating that defense counsel
"blamed" the Sheriff's Office for a lack of evidence. Ante, at 179.
The Court does not identify which, if any, of McDaniel's remarks
represented a response to this statement. I cannot believe that the
Court is suggesting, for example, that defense counsel's one mention
of the "almost crimina[l] negligen[ce] on the part of the Polk
County Sheriff's Office," Tr. 728, justified McDaniel's express and
repeated wish that he could try the Department of Corrections for
murder. See, e. g., App. 15, 17, 23, 32.
Next, the Court notes that defense counsel "alluded"
to the death penalty. Ante, at 179. While this allusion might have
justified McDaniel's statement that "you are merely to determine his
innocence or guilt, nothing else," App. 17, it could hardly justify,
for example, McDaniel's expressions of his personal wish that Darden
be "blown away by a shotgun," id., at 20; see also id., at 28, 29,
31.
Moreover, the Court says, defense counsel twice
referred to the perpetrator as an "animal." Ante, at 179; see Tr.
717, 732. It is entirely unclear to me why this characterization
called for any response from the prosecutor at all. Taken in context,
defense counsel's statements did nothing more than tell the jury
that, although everyone agreed that a heinous crime had been
committed, the issue on which it should focus was whether Darden had
committed it.
Finally, the Court finds that Darden brought upon
himself McDaniel's tirade because defense counsel gave his "personal
opinion of the strength of the State's evidence." Ante, at 179.
Again, the Court gives no explanation of how the statement it quotes
- a single, mild expression of defense counsel's overall assessment
of the evidence - justified the "response" that followed, which
consisted, to the extent it represented a comment on the evidence at
all, of accusations of perjury, see App. 18-19, and personal
disparagements of opposing counsel, see id., at 15, 26. In sum,
McDaniel went so far beyond "respond[ing] substantially in order to
`right the scale,'" Young, 470 U.S., at 13 , that the reasoning in
Young provides no basis at all for the Court's holding today.
The third reason the Court gives for discounting
the effects of the improper summations is the supposed curative
effect of the trial judge's instructions: the judge had instructed
the jury that it was to decide the case on the evidence and that the
arguments of counsel were not evidence. Ante, at 182. But the trial
court overruled Darden's objection to McDaniel's repeated
expressions of his wish that Darden had been killed, App. 31, thus
perhaps leaving the jury with the impression that McDaniel's
comments were somehow relevant to the question before them. The
trial judge's instruction that the attorneys were "trained in the
law," and thus that their "analysis of the issues" could be "extremely
helpful," Tr. 714, might also have suggested to the jury that the
substance of McDaniel's tirade was pertinent to their deliberations.
Fourth, the Court suggests that because Darden
enjoyed the tactical advantage of having the last summation, he was
able to "tur[n] much of the prosecutors' closing argument against
them." Ante, at 182. But the issue before the jury was whether
Darden was guilty, not whether McDaniel's summation was proper. And
the question before this Court is not whether we agree with defense
counsel's criticism of the summation but whether the jury was
affected by it. Since Darden was ultimately convicted, it is hard to
see what basis the Court has for its naked assertion that "[d]efense
counsel were able to use the opportunity for rebuttal very
effectively." Ibid.; cf. Young, 470 U.S., at 18 , n. 15 (the
defendant's acquittal of the most serious charge "reinforces our
conclusion that the prosecutor's remarks did not undermine the
jury's ability to view the evidence independently and fairly").
Fifth, the Court finds, in essence, that any
error was harmless: "The weight of the evidence against petitioner
was heavy; the `overwhelming eyewitness and circumstantial evidence
to support a finding of guilt on all charges,' 329 So.2d, at 291,
reduced the likelihood that the jury's decision was influenced by
argument." Ante, at 182. The Court rejects the "no effect" test set
out in Caldwell v. Mississippi, 472 U.S. 320 (1985), see ante, at
183, n. 14, but it does not identify the standard it does use to
decide the harmlessness of the error.
3
Every harmless-error standard that this Court has
employed, however, shares two salient features. First, once serious
error has been identified, the burden shifts to the beneficiary of
the error to show that the conviction was not tainted. Second,
although different formulations of the harmless-error standard
differ in the level of confidence in the outcome required to
overcome that burden, the question before a reviewing court is never
whether the evidence would have been sufficient to justify
conviction, absent an error, but, rather, whether the error
undermines its confidence in the outcome of the proceeding to an
unacceptable degree. See, e. g., United States v. Young, 470 U.S.,
at 20 ; Chapman v. California, 386 U.S. 18, 24 (1967); Kotteakos v.
United States, 328 U.S. 750, 765 (1946).
Regardless of which test is used, I simply do not
believe the evidence in this case was so overwhelming that this
Court can conclude, on the basis of the written record before it,
that the jury's verdict was not the product of the prosecutors'
misconduct. The three most damaging pieces of evidence - the
identifications of Darden by Phillip Arnold and Helen Turman and the
ballistics evidence - are all sufficiently problematic that they
leave me unconvinced that a jury not exposed to McDaniel's egregious
summation would necessarily have convicted Darden.
Arnold first identified Darden in a photo array
shown to him in the hospital. The trial court suppressed that out-of-court
identification following a long argument concerning the reliability
and constitutionality of the procedures by which it was obtained.
See Tr. 487-488.
4
Mrs. Turman's initial identification was made
under even more suggestive circumstances. She testified at trial
that she was taken to a preliminary hearing at which Darden appeared
in order "[t]o identify him." Id., at 215. Instead of being asked to
view Darden in a lineup, Mrs. Turman was brought into the courtroom,
where Darden apparently was the only black man present. See id., at
220-221. Over defense counsel's objection, after the prosecutor
asked her whether "this man sitting here" was "the man that shot
your husband," ibid., she identified Darden.
5
Cf. Moore v. Illinois, 434 U.S. 220, 229 -230 (1977).
The use of showups has long been condemned by
this Court, precisely because they can result in unreliable
identifications. See, e. g., Stovall v. Denno, 388 U.S. 293, 302
(1967). Similarly, the Court has condemned the use of photo arrays
in which the suspect's photograph "is in some way emphasized."
Simmons v. United States, 390 U.S. 377, 383 (1968). While the
question whether the various in-and out-of-court identifications
ought to have been suppressed is not now before the Court,
6
my confidence in their reliability is nonetheless undermined
by the suggestiveness of the procedures by which they were obtained,
particularly in light of Mrs. Turman's earlier difficulties in
describing the criminal.
Finally, the ballistics evidence is hardly
overwhelming. The purported murder weapon was tied conclusively
neither to the crime nor to Darden. Special Agent Cunningham of the
Federal Bureau of Investigation's Firearms Identification Unit
testified that the bullets recovered at the scene of the crime "could
have been fired" from the gun, but he was unwilling to say that they
in fact had come from that weapon. Tr. 347, 357. He also testified,
contrary to the Court's assertion, that rebored Smith & Wessons were
fairly common. See id., at 350-351, 357-358. Deputy Sheriff
Weatherford testified that the gun was discovered in a roadside
ditch adjacent to where Darden had wrecked his car on the evening of
the crime. But the gun was discovered the next day, id., at 503, and
the ditch was also next to a bar's parking lot. Id., at 531.
Darden testified at trial on his own behalf and
denied any involvement in the robbery and murder. See id., at
571-660. His account of his actions on the day of the crime was
contradicted only by Mrs. Turman's and Arnold's identifications.
Indeed, a number of the State's witnesses corroborated parts of
Darden's account. The trial judge who had seen and heard Darden
testify found that he "emotionally and with what appeared on its
face to be sincerity, proclaimed his innocence." App. 34. In setting
sentence, he viewed the fact that Darden "repeatedly professed his
complete innocence of the charges" as a mitigating factor. Id., at
35.
Thus, at bottom, this case rests on the jury's
determination of the credibility of three witnesses - Helen Turman
and Phillip Arnold, on the one side, and Willie Darden, on the other.
I cannot conclude that McDaniel's sustained assault on Darden's very
humanity did not affect the jury's ability to judge the credibility
question on the real evidence before it. Because I believe that he
did not have a trial that was fair, I would reverse Darden's
conviction; I would not allow him to go to his death until he has
been convicted at a fair trial.
II
Even if Darden had been convicted fairly, however,
I believe his death sentence should be vacated because of the
improper exclusion for cause of a member of the venire who was
qualified to serve under this Court's decisions in Witherspoon v.
Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412
(1985). In Davis v. Georgia, 429 U.S. 122 (1976), the Court held
that the improper exclusion of one juror renders a death sentence
constitutionally infirm per se. In Darden's case, the potential
prejudice is palpable. Even though it was stripped of members
expressing reservations about the death penalty, this jury could not
agree unanimously that a death sentence was appropriate. See Tr.
908; 699 F.2d, at 1041 (dissenting opinion).
Witherspoon concerned an Illinois statute that
excused for cause "`any juror who shall, on being examined, state
that he has conscientious scruples against capital punishment, or
that he is opposed to the same.'" 391 U.S., at 512 , quoting Ill.
Rev. Stat., ch. 38, 743 (1959). The Court held that the Constitution
barred the execution of a defendant sentenced to death by a jury
from which such persons had been excluded for cause. That holding
rested in large part on the Court's recognition that even some
jurors who oppose the death penalty can set aside their personal
beliefs and follow the court's instructions to consider whether
death is an appropriate penalty. See 391 U.S., at 514 -515, n. 7,
515-516, n. 9, 519, 520. As recently as last Term, we held once
again that trial courts must distinguish between "prospective jurors
whose opposition to capital punishment will not allow them to apply
the law or view the facts impartially and jurors who, though opposed
to capital punishment, will nevertheless conscientiously apply the
law to the facts adduced at trial." Witt, 469 U.S., at 421 ; see
also id., at 422, n. 4; Adams v. Texas, 448 U.S. 38, 44 -45 (1980);
Boulden v. Holman, 394 U.S. 478, 483 -484 (1969).
The Court's discussion of Darden's claim rests on
a premise that the claim depends entirely on the wording of a single
question asked by the trial judge prior to the exclusion of venire
member Murphy. See ante, at 176. That premise is mistaken. The trial
court's error lay in its misunderstanding of the proper standard for
exclusion under Witherspoon. This misunderstanding influenced both
the question the court asked Murphy and its evaluation of his answer.
On this record, I cannot say with any assurance that Murphy was
properly excluded.
Prior to the voir dire of individual venire
members, the trial judge announced his intention to excuse, not only
any potential juror whose religious or moral principles made him
unable to impose the death penalty, but also any potential juror who,
if he did follow the court's instructions, "would be going against
his principles" (emphasis deleted). App. 6.
7
This standard is essentially indistinguishable from the
standard employed by Illinois and expressly disapproved by this
Court in Witherspoon. If a juror who has reservations about the
wisdom or morality of the death penalty nonetheless follows the
court's instructions, he has not been "`prevent[ed] or substantially
impair[ed in] the performance of his duties as a juror in accordance
with his instructions and his oath,'" Witt, 469 U.S., at 424 ,
quoting Adams, 448 U.S., at 45 . To permit only those individuals
who have no reservations about exercising "the truly awesome
responsibility of decreeing death for a fellow human," McGautha v.
California, 402 U.S. 183, 208 (1971), to serve on capital juries
would surely mark a return to the empaneling of juries "uncommonly
willing to condemn a man to die," Witherspoon, 391 U.S., at 521 .
This case is thus entirely unlike Witt. Witt's
statement that determinations of juror bias cannot be reduced to a
catechism, 469 U.S., at 424 , and its reliance on the peculiar
ability of trial judges to observe the demeanor and credibility of
potential jurors, id., at 428, make sense when there is "every
indication that the judge . . . applied the correct standard." Id.,
at 431. But the record before us today provides no such indication.
It is impossible to determine whether the judge's finding of bias
reflected a belief that Murphy would be unable to follow the court's
instructions or a belief that Murphy would have to set aside his
personal beliefs to do so.
In fact, Murphy never gave any indication that he
could not follow the court's instructions. The burden of proving
Murphy's bias rested on the State. Id., at 423-424. The Court's
present heavy reliance on "the context surrounding Murphy's
exclusion," ante, at 176, simply cannot support its conclusion
because the trial court's improper interpretation of Witherspoon
infected that context.
The Court's statement that "the trial court could
take account of the fact that Murphy was present throughout an
entire series of questions that made the purpose and meaning of the
Witt inquiry absolutely clear," ante, at 178, suffers from a similar
defect.
8
I find implausible the Court's assumption that Murphy
followed closely the daylong questioning of other jurors. But if
that assumption were correct, then the Court should also assume that
Murphy anticipated being asked whether his beliefs would prevent or
substantially impair performance of his duties as a juror, as other
jurors expressing similar sentiments had been asked.
That three other jurors, under somewhat more
extensive questioning, explicitly stated that they did not think
they could vote for the death penalty, see Tr. 44 (juror Varney); id.,
at 107 (juror Carn); id., at 109-110 (juror Maher), says nothing
about whether Murphy shared their inability to put aside personal
beliefs and obey his oath as a juror. Witt may be right that "many
veniremen simply cannot be asked enough questions to reach the point
where their bias has been made `unmistakably clear,'" 469 U.S., at
424 -425; here, however, the judge did not even ask the one question
that might have given him real insight into Murphy's ability to
serve. The wrong answer is what no question at all begets. Cf. A.
Bickel, The Least Dangerous Branch 103 (1962).
A close reading of the lengthy voir dire
transcript leads me to conclude that the trial court's behavior is
more easily explained by Murphy's appearance in the jury box at the
end of a long day of questioning and the desire to finish jury
selection expeditiously than by any definite impression on the part
of the trial judge that Murphy was unqualified. But neither the
trial court's eagerness to get the trial started, nor this Court's
impatience with the progress of Darden's constitutional challenges
to his conviction and death sentence, see, e. g., 473 U.S. 928, 929
(1985) (BURGER, C. J., dissenting from the grant of certiorari
because 12 years had elapsed since Darden's conviction and sentence
and no fewer than "95" judges had reviewed the case),
9
renders Murphy's exclusion justifiable or harmless.
III
Twice during the past year - in United States v.
Young, 470 U.S. 1 (1985), and again today - this Court has been
faced with clearly improper prosecutorial misconduct during
summations. Each time, the Court has condemned the behavior but
affirmed the conviction. Forty years ago, Judge Jerome N. Frank, in
dissent, discussed the Second Circuit's similar approach in language
we would do well to remember today:
"This court has several times used vigorous
language in denouncing government counsel for such conduct as
that of the [prosecutor] here. But, each time, it has said that,
nevertheless, it would not reverse. Such an attitude of helpless
piety is, I think, undesirable. It means actual condonation of
counsel's alleged offense, coupled with verbal disapprobation.
If we continue to do nothing practical to prevent such conduct,
we should cease to disapprove it. For otherwise it will be as if
we declared in effect, `Government attorneys, without fear of
reversal, may say just about what they please in addressing
juries, for our rules on the subject are pretend-rules. If
prosecutors win verdicts as a result of "disapproved" remarks,
we will not deprive them of their victories; we will merely go
through the form of expressing displeasure. The deprecatory
words we use in our opinions on such occasions are purely
ceremonial.' Government counsel, employing such tactics, are the
kind who, eager to win victories, will gladly pay the small
price of a ritualistic verbal spanking. The practice of this
court - recalling the bitter tear shed by the Walrus as he ate
the oysters - breeds a deplorably cynical attitude towards the
judiciary" (footnote omitted). United States v. Antonelli
Fireworks Co., 155 F.2d 631, 661, cert. denied, 329 U.S. 742
(1946).
I believe this Court must do more than wring its hands when a State
uses improper legal standards to select juries in capital cases and
permits prosecutors to pervert the adversary process. I therefore
dissent.
*****
[
Footnote 1
] See, e. g., Caldwell v. Mississippi, 472 U.S. 320, 328 -329
(1985); California v. Ramos, 463 U.S. 992, 998 -999 (1983); Beck v.
Alabama, 447 U.S. 625, 637 -638 (1980); Lockett v. Ohio, 438 U.S.
586, 604 (1978) (plurality opinion); Gardner v. Florida, 430 U.S.
349, 358 -359 (1977) (plurality opinion); Woodson v. North Carolina,
428 U.S. 280, 305 (1976) (plurality opinion).
[
Footnote 2
] Every judge who has addressed the prosecutors' behavior has
condemned it. See Darden v. State, 329 So.2d 287, 290 (Fla. 1976)
("[T]he prosecutor's remarks under ordinary circumstances would
constitute a violation of the Code of Professional Responsibility");
id., at 291-295 (dissenting opinion); Darden v. Wainwright, 513 F.
Supp. 947, 955 (MD Fla. 1981) ("Anyone attempting a text-book
illustration of a violation of the Code of Professional
Responsibility . . . could not possibly improve upon [prosecutor
White's final statement]"); Darden v. Wainwright, 699 F.2d 1031,
1035-1036 (CA11 1983); id., at 1040-1043 (dissenting opinion). Even
the State's Attorney concedes that prosecutor McDaniel's summation
was an "unnecessary tirade," Supp. App. 46, that "[n]o one has ever
even weakly suggested that McDaniel's closing remarks were anything
but improper," Supplemental Answer in Darden v. Wainwright, Case No.
79-566-Civ. T. H. (MD Fla.) (June 1, 1979), p. 12, and that much of
the summation consisted of "inflammatory irrelevances," Answer to
Pet. for Habeas Corpus in Darden v. Wainwright, Case No. 79-566-Civ.
T. H. (MD Fla.) (May 22, 1979), p. 11. It is true that the Florida
Supreme Court, the Federal District Court, and the Court of Appeals
each ultimately concluded that Darden had not been deprived of a
fair trial. But the grounds on which each rested its conclusion are
troubling indeed. The Florida Supreme Court's "careful review of the
`totality of the record,'" as this Court now would describe it,
ante, at 181, n. 13, consists of three paragraphs. The first of
these discusses evidence that petitioner "was a career criminal,"
who stayed with a woman other than his wife while on furlough, and
used her car to visit various bars and a pool hall contrary to the
conditions of his furlough. The second paragraph notes, among other
things, that petitioner "admitted speeding in a rainstorm and
creating great danger to other motorists" on the night of the murder.
And the last describes the heinousness of the events that occurred
at the Turmans' store, but says absolutely nothing about the
evidence tying petitioner to those events. 329 So.2d, at 290. (The
court earlier had noted that Mrs. Turman and Phillip Arnold had
identified petitioner as the perpetrator. Id., at 288.) The crux of
the Florida Supreme Court's analysis, however, is that it was not "possible
to use language which is fair comment about these crimes without
shocking the feelings of any normal person[.] The language used by
the prosecutor would have possibly been reversible error if it had
been used regarding a less heinous set of crimes. The law permits
fair comment. This comment was fair." Id., at 290. Since the
prosecutors had "reasonably describ[ed] what happened and what
should be done to the guilty party," their comments were not
erroneous. Id., at 291. The standard apparently applied by Florida
is wholly unacceptable. A defendant's right to a fair trial cannot
depend on the nature of the crime of which he is accused. And "what
should be done to the guilty party" cannot be relevant to the
determination of guilt. The District Court's conclusion suffers from
a similar error. In addition to advancing many of the arguments
adopted by the Court today - none of which is persuasive, see infra,
at 194-200 - the District Court found no prejudice because the
offensive statements were not "keyed to arouse prejudice against the
accused on any basis other than the horror of the crimes
themselves." 513 F. Supp., at 956, n. 12. But at the guilt phase of
this bifurcated trial, horror about the crimes was irrelevant. The
sole issue was whether Darden committed them. The Court of Appeals
merely quoted and approved the analysis of the District Court. See
699 F.2d, at 1036-1037. In its catalog of the number of judges who
have found petitioner's trial to have been fair, the Court fails to
include the Magistrate before whom petitioner's federal habeas
proceedings were actually conducted, and who recommended that the
District Court grant petitioner habeas relief on the basis of his
claim of prosecutorial misconduct. Magistrate Paul Game, Jr.,
correctly recognized that this case essentially turned on the
relative credibility of three witnesses, Mrs. Turman, Phillip Arnold,
and Willie Darden, and that the prosecutors' concerted attack on
Darden's humanity could well have affected the jury's assessment of
his credibility. See App. 214. He also recognized that the remarks
occurred "[i]n the context of the emotionally charged trial of
Darden, a black man, accused of robbery, the brutal murder of a
white man, the repeated shooting of a defenseless white teenager and
vile sexual advances on a white woman." Id., at 215. Notably, the
Court today ignores the context in which the trial took place,
including the fact that petitioner's motion for a change of venue
was granted, and contents itself instead with hypothesizing reasons
why the prosecutors' shameful conduct should not deprive them of a
hanging verdict.
[
Footnote 3
] The Court finds Caldwell inapposite because the offending comment
in Caldwell occurred at the sentencing stage of the defendant's
trial and misled the jury as to its role in the sentencing process.
Ante, at 183, n. 14. But Caldwell's Eighth Amendment underpinnings
clearly extend to guilt determinations in capital cases as well as
to sentencing. Beck v. Alabama, 447 U.S., at 637 -638. And under the
circumstances of this case, where the sentencing hearing followed
immediately upon the jury's return of a guilty verdict and the
State's summation consisted of less than a full page of transcript,
see Tr. 894, I think the State must have assumed that its attacks on
the Department of Corrections and repeatedly expressed wish that
Darden die would affect the jury's sentencing decision as well as
its determination of guilt. Indeed, the District Court found that
the summations during the guilt phase were "in effect [the State's]
principal argument in support of the death penalty." 513 F. Supp.,
at 953, and n. 10. Moreover, I do not see why misleading a jury as
to the relevant issues in a capital trial is somehow less pernicious
than misleading a jury as to its role.
[
Footnote 4
] Of the six photographs in the array, Arnold immediately rejected
four because "[t]hey just didn't fit the description" he had earlier
given the police. Tr. 457. Darden's photograph was one of no more
than two that identified the subject by name, and under the name on
Darden's photograph was the notation "Sheriff's Department, Bartow,
Florida" and the date "9/9/73." Id., at 476-477. Arnold was aware at
the time of the identification on September 11 that a suspect
recently had been arrested. Id., at 459.
[
Footnote 5
] Mrs. Turman's identification took place after the following
colloquy between the court, the prosecutor (Mr. Mars), and the
defense attorney (Mr. Hill): "THE COURT: Ask her to identify. "MR.
MARS: Yes, sir. "Q: Can you see this man sitting here? "MR. HILL:
Your Honor, I am going to object to that type of identification. "THE
COURT: I am not. Sit down. "MR. HILL: Judge - "THE COURT: Not under
these circumstances, Mr. Hill. "MR. HILL: Judge, even as a defense
attorney, that shows no respect in court, much less for the Court,
and I - "THE COURT: I appreciate - "MR. HILL: And the objection, I
want on the record. "THE COURT: I appreciate that. It's on the
record. This woman has had a traumatic experience and she - "MR.
HILL: Judge, I appreciate that. I still have an obligation to my
client. "THE COURT: I appreciate that. Now if you want to be held in
contempt, you pardon me. Alright, go ahead. "Q: Is this the man that
shot your husband? "A: Yes, sir." See Pet. for Habeas Corpus in
Darden v. Wainwright, Case No. 79-566-Civ. T. H. (MD Fla.) (May 21,
1979), pp. 18-19; Tr. 218-219.
[
Footnote 6
] Challenges to the admissibility of the various identifications
were presented in Darden's petition to this Court for direct review
of his conviction and sentence. See Brief for Petitioner in Darden
v. Florida, O. T. 1976, No. 76-5382, pp. 2-3 (second and third
questions presented raising issues concerning the witnesses'
identifications). Although that petition for certiorari was granted,
429 U.S. 917 (1976), the Court later limited its grant to the issue
of the prosecutor's closing argument, 429 U.S. 1036 (1977), and
ultimately dismissed the writ as improvidently granted, 430 U.S. 704
(1977).
[
Footnote 7
] In denying Darden's pretrial motion to limit voir dire concerning
jurors' attitudes towards the death penalty, the trial court stated:
"It is my ruling if a prospective juror states on his voir dire
examination that because of his moral, religious or conscientious
principles and belief he would be unwilling to recommend a death
penalty, even though the facts and circumstances meet the
requirements of law, then he in effect has said he would be
unwilling to follow the law the court shall charge upon it and
disregard and be unwilling to follow it or if he did follow it, it
would be going against his principles, and therefore, I would rule
that would be disqualification. If that exists, I intend to
disqualify for cause." App. 6 (emphasis deleted). The Court's
statement that "the judge correctly stated the general standard for
dismissal," ante, at 177, n. 2, comes immediately on the heels of a
truncated quotation of the trial judge's ruling which omits the
critical phrase, "if he did follow it, it would be going against his
principles, and therefore, I would rule that would be
disqualification." The court gave petitioner a continuing objection
to its proposed voir dire questioning. App. 7. Even if this
continuing objection were not enough standing alone to preserve
petitioner's claim - and the Court does not so hold - the statement
that "[n]o specific objection was made to the excusal of Murphy by
defense counsel," ante, at 178, is flatly contradicted by the trial
transcript. Immediately following Murphy's excusal, the court
directed the stenographer to "note the defendant's object to him
being excused for cause." Tr. 165.
[
Footnote 8
] Even to refer to the "Witt inquiry" reflects inattention to
chronology. This case was tried about a dozen years before Witt
sought to dispel the "general confusion surrounding the application
of Witherspoon" under which courts across the country had labored
for 15 years. 469 U.S., at 418 . How the purpose and meaning of Witt
could be clear to a layman like Murphy when they were unclear to the
judge trying this case and to federal and state appellate courts is
nowhere explained. Moreover, from Murphy's perspective, the purpose
of the inquiry was to obtain from him truthful answers regarding his
background and beliefs. His oath as a juror required him to reveal
his strong feelings about the death penalty, even if he believed
that he could follow the judge's instructions notwithstanding those
feelings.
[
Footnote 9
] A public dissent from a grant of certiorari is extremely rare.
Indeed, I know of no other recent case in which a Justice has
dissented on the ground that the claims raised by the petitioner -
which at least four Justices must have found worthy of full
consideration - were meritless. See also Ohio ex rel. Eaton v. Price,
360 U.S. 246, 247 , n. 1 (1959) (memorandum of BRENNAN, J.) (finding
only one instance of such a dissent - the extraordinary case of
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 937 (1952), where
certiorari was granted prior to the Court of Appeals' judgment). The
concurrence filed by THE CHIEF JUSTICE today, see ante, p. 187, to
justify his dissent from the grant of certiorari in this case shows
why. As JUSTICE BRENNAN persuasively explained in Price, a public
dissent from a grant of certiorari poses dangers both to the actual
workings of the adjudicatory process and to public respect for that
process. 360 U.S., at 247 -248. By reprinting his dissent in its
entirety and emphasizing once again the number of times this Court
has been asked to review Darden's claims, THE CHIEF JUSTICE suggests
that he irrevocably had committed himself to rejecting those claims
before he had received the benefit of the full briefing, oral
argument, access to the record, and discussion of the issues by
other Members of the Court that followed our grant of certiorari. To
me, the fact that this Court has granted certiorari three times is
hardly a reason for concluding Darden's claims are meritless, or
that the undoubted interest in finality should outweigh our duty to
ensure that Darden receives due process.
