Sup. Ct. Ohio; Reported below: 31 Ohio St. 3d 111, 509 N.E. 2d 383. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy
The petition for a writ of certiorari is denied.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and JUSTICE BLACKMUN joins as to part II, dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting), I would grant the petition for a writ of certiorari and vacate the death sentence in this case. But even if I did not hold this view, I would grant this petition in order to address the important unresolved issue of whether an instruction that reduces a jury's sense of responsibility over a death sentence is nonetheless per se constitutional if it is accurate and non-misleading, even when the instruction serves no legitimate state penological interest.
In this case, petitioner was sentenced to death in accordance with the jury's recommendation. The trial court had instructed the jury:
You must understand, however, the jury recommendation to the Court that the death penalty be imposed is just that, a recommendation, and is not binding upon the Court. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court after the
Court follows certain additional procedures required by the laws of this State. Therefore, even if you recommend the death penalty, the law requires the Court to decide whether or not the defendant, David Joseph Steffen, will actually be sentenced to death or to life imprisonment.
The Ohio Supreme Court characterized this as an "instruction to the jury that their recommendation of death would not be binding on the court, and that the final responsibility for the imposition of the death penalty rests with the court." State v. Steffen, 31 Ohio St. 3d 111, 113 (1987). The Ohio Supreme Court then rejected petitioner's argument that "such an instruction impermissibly reduces the jury's sense of responsibility and increases the likelihood of a recommendation of death," id., at 113, relying upon State v. Buell, 22 Ohio St. 3d 124 (1986), a prior Ohio Supreme Court case that had rejected the same challenge to a substantially similar instruction. Although Buell went out of its way to "emphatically emphasize [that] the better procedure would be to have no comment by the prosecutor or by the trial judge on the question of ...