MARGARET BRADSHAW, WARDEN, PETITIONER
v. JOHN DAVID STUMPF
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 13, 2005]
Justice Souter, joined by Justice
Ginsburg, concurring.
I join the opinion of the Court and
add this word to explain the issue that I understand we are
remanding for further consideration. As the Court notes in its
opinion, although respondent John Stumpf challenged both his
conviction and his death sentence, his attack on the sentence
was not always distinct from the issue raised about the
conviction.
I understand Stumpf to claim that it
violates the basic due process standard, barring fundamentally
unfair procedure, to allow his death sentence to stand in the
aftermath of three positions taken by the State: (1) at
Stumpf’s sentencing hearing;
(2) at the trial of Stumpf’s
codefendant, Clyde Wesley; and (3) in response to Stumpf’s motion to withdraw his guilty
plea in light of the State’s position at the Wesley trial.
At the hearing on Stumpf’s
sentence, the State argued that he was the triggerman, and it
urged consideration of that fact as a reason to impose a death
sentence. App. 186, 188—189. The trial court found that
Stumpf had pulled the trigger and did sentence him to death,
though it did not state that finding Stumpf to be the shooter
was dispositive in determining the sentence. App. to Pet. for
Cert. 219a. After the sentencing proceeding was over, the
State tried the codefendant, Wesley, and on the basis of
testimony from a new witness argued that Wesley was in fact the
triggerman, App. 282, and should be sentenced to death. The
new witness was apparently unconvincing to the jury, which in
any event was informed that Stumpf had already been sentenced
to death for the crime; the jury rejected the specification
that named Wesley as the triggerman, and it recommended a
sentence of life, not death. Stumpf then challenged his death
sentence (along with his conviction) on the basis of the
prosecution’s position in the Wesley case. In response,
the State did not repudiate the position it had taken in the
codefendant’s case, or explain that it had made a mistake
there. Instead, it merely dismissed the testimony of the
witness it had vouched for at Wesley’s trial, id.,
at 125, and maintained that Stumpf’s death sentence should stand for some or all of
the reasons it originally argued for its imposition. At the
end of the day, the State was on record as maintaining that
Stumpf and Wesley should both be executed on the ground that
each was the trigger-man, when it was undisputed that only one
of them could have been.
Stumpf’s claim as I understand it is not a challenge to
the evidentiary basis for arguing for the death penalty in
either case; nor is it a claim that the prosecution
deliberately deceived or attempted to deceive either trial
court, as in Mooney v. Holohan, 294 U.S. 103 (1935)
(per curiam); nor does it implicate the rule that
inconsistent jury verdicts may be enforced, United
States v. Powell, 469 U.S. 57 (1984);
Dunn v. United States, 284 U.S. 390 (1932).
As I see it, Stumpf’s
argument is simply that a death sentence may not be allowed to
stand when it was imposed in response to a factual claim that
the State necessarily contradicted in subsequently arguing for
a death sentence in the case of a codefendant. Stumpf’s position was anticipated by
Justice Stevens’s observation 10 years ago that
“serious questions are raised when the sovereign itself
takes inconsistent positions in two separate criminal
proceedings against two of its citizens,” and that
“the heightened need for reliability in capital cases only
underscores the gravity of those questions … .”
Jacobs v. Scott, 513 U.S. 1067, 1070
(1995) (citation and internal quotation marks omitted).
Justice Stevens’s statement in turn echoed the more
general one expressed by Justice Sutherland in Berger v.
United States, 295 U.S. 78, 88
(1935), that the State’s interest in winning some point in
a given case is transcended by its interest “that justice
shall be done.” Ultimately, Stumpf’s argument appears to be that sustaining a death
sentence in circumstances like those here results in a
sentencing system that invites the death penalty “to be
… wantonly and … freakishly imposed.” Lewis
v. Jeffers, 497 U.S. 764, 774
(1990) (quoting Gregg v. Georgia, 428 U.S. 153, 188
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)
(internal quotation marks omitted)).
If a due process violation is found
in the State’s maintenance of such inconsistent positions,
there will be remedial questions. May the death sentence stand
if the State declines to repudiate its inconsistent position in
the codefendant’s case? Would it be sufficient simply to
reexamine the original sentence and if so, which party should
have the burden of persuasion? If more would be required,
would a de novo sentencing hearing suffice?
