US SUPREME COURT DECISIONS

The Ohio death penalty statute provides that once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determines that at least one of the following circumstances is established by a preponderance of the evidence: (1) the victim induced or facilitated the offense; (2) it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation; or (3) the offense was primarily the product of the offender's psychosis or mental deficiency. Petitioner, whose conviction of aggravated murder with specifications that it was committed to escape apprehension for, and while committing or attempting to commit, aggravated robbery, and whose sentence to death were affirmed by the Ohio Supreme Court, makes various challenges to the validity of her conviction, and attacks the constitutionality of the death penalty statute on the ground, inter alia, that it does not give the sentencing judge a full opportunity to consider mitigating circumstances in capital cases as required by the Eighth and Fourteenth Amendments.

Held: The judgment is reversed insofar as it upheld the death penalty, and the case is remanded. Pp. 438 U. S. 594-609; 438 U. S. 613-619; 438 U. S. 619-621; 438 U. S. 624-628.

49 Ohio St.2d 48, 358 N.E.2d 1062, reversed in part and remanded.

THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II, concluding:

1. The prosecutor's closing references to the State's evidence as "unrefuted" and "uncontradicted" (no evidence having been introduced to rebut the prosecutor's case after petitioner decided not to testify) did not violate the constitutional prohibitions against commenting on an accused's failure to testify, where petitioner's counsel had already focused the jury's attention on her silence by promising a defense and telling the jury that she would testify. Pp. 438 U. S. 594-595.

2. The exclusion from the venire of four prospective jurors who made it "unmistakably clear" that, because of their opposition to the death penalty, they could not be trusted to "abide by existing law" and to chanrobles.com-red

Page 438 U. S. 587

"follow conscientiously" the trial judge's instructions, Boulden v. Holman, 394 U. S. 478, 394 U. S. 484; did not violate petitioner's Sixth and Fourteenth Amendment rights under the principles of Witherspoon v. Illinois, 391 U. S. 510, or Taylor v. Louisiana, 419 U. S. 522. Pp. 438 U. S. 595-597.

3. Petitioner's contention that the Ohio Supreme Court's interpretation of the complicity provision of the statute under which she was convicted was so unexpected that it deprived her of fair warning of the crime with which she was charged, is without merit. The court's construction was consistent with both prior Ohio law and the statute's legislative history. P. 438 U. S. 597.

THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, concluded, in Part III, that the limited range of mitigating circumstances that may be considered by the sentencer under the Ohio death penalty statute is incompatible with the Eighth and Fourteenth Amendments. Pp. 438 U. S. 597-609.

(a) The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Pp. 438 U. S. 604-605.

(b) The need for treating each defendant in a capital case with the degree of respect due the uniqueness of the individual is far more important than in noncapital cases, particularly in view of the unavailability with respect to an executed capital sentence of such postconviction mechanisms in noncapital cases as probation, parole, and work furloughs. P. 438 U. S. 605.

(c) A statute that prevents the sentencer in capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to the circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty, and, when the choice is between life and death, such risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. P. 438 U. S. 605.

(d) The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments. Only the three factors specified in the statute can be considered in mitigation of the defendant's sentence, and, once it is determined that none of those factors is present, the statute mandates the death sentence. Pp. 438 U. S. 606-608.

MR JUSTICE WHITE concluded that petitioner's death sentence should chanrobles.com-red

Page 438 U. S. 588

be vacated on the ground that the Ohio death penalty statute permits a defendant convicted of aggravated murder with specifications to be sentenced to death, as petitioner was in this case, without a finding that he intended death to result. Pp. 438 U. S. 624-628.

MR. JUSTICE MARSHALL, being of the view that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by the Eighth Amendment, concurred in the judgment insofar as it vacates petitioner's death sentence, and also concurred in the judgment insofar as it affirms her conviction. Pp. 438 U. S. 619-621.

MR. JUSTICE BLACKMUN concluded that petitioner's death sentence should be vacated on the grounds that (1) the Ohio death penalty statute is deficient in regard to petitioner, a nontriggerman charged with aiding and abetting a murder, in failing to allow consideration of the extent of petitioner's involvement, or the degree of her mens rea, in the commission of the homicide, and (2) the procedure provided by an Ohio Rule of Criminal Procedure giving the sentencing court full discretion to bar the death sentence "in the interests of justice" if the defendant pleads guilty or no contest, but no such discretion if the defendant goes to trial, creates an unconstitutional disparity of sentencing alternatives, United States v. Jackson, 390 U. S. 570. Pp. 438 U. S. 613-619.

BURGER, C.J.,announced the Court's judgment and delivered an opinion of the Court with respect to Parts I and II, in which STEWART, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined, and an opinion with respect to Part III, in which STEWART, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 438 U. S. 613. MARSHALL, J., filed an opinion concurring in the judgment, post, p. 438 U. S. 619. WHITE, J., filed an opinion concurring in part, concurring in the judgment, and dissenting in part, post, p. 438 U. S. 621. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, post, p. 438 U. S. 628. BRENNAN, J., took no part in the consideration or decision of the case. chanrobles.com-red

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