Smith v. Murray, 477 U.S. 527 (1986)

Author: John Paul Stevens

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Smith v. Murray, 477 U.S. 527 (1986)

JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join and with whom JUSTICE BRENNAN joins as to Parts II and III, dissenting.

The record in this case unquestionably demonstrates that petitioner’s constitutional claim is meritorious, and that there is a significant risk that he will be put to death because his constitutional rights were violated.

The Court does not take issue with this conclusion. It is willing to assume that (1) petitioner’s Fifth Amendment right against compelled self-incrimination was violated; (2) his Eighth Amendment right to a fair, constitutionally sound sentencing proceeding was violated by the introduction of the evidence from that Fifth Amendment violation; and (3) those constitutional violations made the difference between life and death in the jury’s consideration of his fate. Although the constitutional violations and issues were sufficiently serious that this Court decided to grant certiorari, and although the Court of Appeals for the Fourth Circuit decided the issue on the merits, this Court concludes that petitioner’s presumably meritorious constitutional claim is procedurally barred and that petitioner must therefore be executed.

In my opinion, the Court should reach the merits of petitioner’s argument. To the extent that there has been a procedural "default," it is exceedingly minor -- perhaps a kind of "harmless" error. Petitioner’s counsel raised a timely objection to the introduction of the evidence obtained in violation of the Fifth Amendment. A respected friend of the Court -- the University of Virginia Law School’s Post-Conviction Assistance Project -- brought the issue to the attention of the Virginia Supreme Court in an extensive amicus curiae brief. Smith’s counsel also raised the issue in state and federal habeas corpus proceedings, and, as noted, the Court of Appeals decided the case on the merits. Consistent with the well-established principle that appellate arguments should be carefully winnowed,{1} however, Smith’s counsel did not raise the Fifth Amendment issue in his original appeal to the Virginia Supreme Court -- an unsurprising decision in view of the fact that a governing Virginia Supreme Court precedent, which was then entirely valid and only two years old, decisively barred the claim.{2}

Nevertheless, the Court finds the lawyer’s decision not to include the constitutional claim "virtually dispositive." Ante at 535. The Court offers the remarkable explanation that "[u]nder these circumstances" -- in which petitioner’s death penalty will stand despite serious Fifth and Eighth Amendment violations that played a critical role in the determination that death is an appropriate penalty --

we do not believe that refusal to consider the defaulted claim on federal habeas carries with it the risk of a manifest miscarriage of justice.

Ante at 538.

I fear that the Court has lost its way in a procedural maze of its own creation, and that it has grossly misevaluated the requirements of "law and justice" that are the federal court’s statutory mission under the federal habeas corpus statute.{3} To understand the nature of the Court’s error, it is necessary to assess the Court’s conclusion that the claim is procedurally defaulted; to consider the Fifth Amendment violation; and to consider the Eighth Amendment violation.


We begin with the common ground. The historic office of the Great Writ as the ultimate protection against fundamental unfairness is well known.{4} That mission is reflected in the statutory requirement that the federal court "dispose of the matter as law and justice require." 28 U.S.C. § 2243. It is by now equally clear that the application of the Court’s "cause and prejudice" formulation as a rigid bar to review of fundamental constitutional violations has no support in the statute, or in Federal Rule of Criminal Procedure 12 (b)(2), from which it was initially imported;{5} the standard thus represents judicial lawmaking of the most unabashed form. The Court nonetheless reaffirms today, as it has consistently held in the past,{6} that federal courts retain thepower to entertain federal habeas corpus requests despite the absence of "cause and prejudice," ante at 537; the only question is whether to exercise that power. Despite the rigor of its cause-and-prejudice standard, moreover, the Court continues to commit itself to maintaining the availability of habeas corpus under certain circumstances, even in the absence of "cause," ibid.; indeed, this Term, the Court has emphasized the importance of that availability by remanding a case to consider the merits of a prisoner’s claim even though the prisoner failed to show "cause" for the default. Murray v. Carrier, ante p. 478.

The Court concludes in this case that no miscarriage of justice will result from a refusal to entertain Smith’s challenge to his death sentence. This conclusion is flawed in three respects. First, the Court mistakenly assumes that only a claim implicating "actual innocence" rises to the level of a miscarriage of justice. Second, the Court does not properly assess the force of a claim that a death penalty is invalid. Finally, the Court vastly exaggerates the state interest in refusing to entertain this claim.

The Court accurately quotes the holding in Murray v. Carrier:

"[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."

Ante at 537. The Court then seeks to transfer this "actual innocence" standard to capital sentencing proceedings, and concludes that, in petitioner’s sentencing hearing, "the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones." Ante at 538. The Court does not explain, however, why Carrier’s clearly correct holding about the propriety of the writ in a case of innocence must also be a limiting principle on the federal court’s ability to exercise its statutory authority to entertain federal habeas corpus actions; more specifically, the Court does not explain why the same principle should not apply when a constitutional violation is claimed to have resulted in a lack of fundamental fairness, either in a conviction or in a death sentence.

This analysis is far removed from the traditional understanding of habeas corpus. For instance, in Moore v. Dempsey, 261 U.S. 86 (1923), the Court considered a claim that the murder convictions and death sentences of five black defendants were unconstitutional. The Federal District Court had dismissed the writ of habeas corpus. In his opinion for the Court, Justice Holmes explained that, in view of the allegations -- systematic exclusion of blacks from the jury and threatened mob violence -- the Federal District Court should not have dismissed the writ without considering the factual allegations. The Court noted the presence of a clear procedural default -- the Arkansas Supreme Court had refused to entertain the challenge to discrimination in the jury because the objection "came too late." Id. at 91. The Court nevertheless held that the Federal District Court should have entertained the petition. Id. at 92.

Although the allegations clearly implicated questions about the accuracy of the truthfinding process, the Court’s opinion cannot be fairly read to rest on the kind of "innocence" inquiry that the Court propounds today. For the Court specifically rejected the notion that its inquiry into the presence of a serious constitutional violation was actually an inquiry into the guilt or innocence of the petitioners:

The petitioners say that [the victim] must have been killed by other whites [rather than by the black petitioners], but that we leave on one side, as what we have to deal with is not the petitioners’ innocence or guilt, but solely the question whether their constitutional rights have been preserved.

Id. at 87-88 (emphasis added). Today, the Court adopts the converse of Justice Holmes’ proposition: it leaves to one side the question whether constitutional rights have been preserved, and considers only petitioner’s innocence or guilt.{7}

The majority’s reformulation of the traditional understanding of habeas corpus appears to be premised on the notion that only constitutional violations which go to guilt or innocence are sufficiently serious to implicate the "fundamental fairness" alluded to in Engle v. Isaac, 456 U.S. 107, 126 (1982).{8} If accuracy in the determination of guilt or innocence were the only value of our criminal justice system, then the Court’s analysis might have a great deal of force. If accuracy is the only value, however, then many of our constitutional protections -- such as the Fifth Amendment right against compelled self-incrimination and the Eighth Amendment right against cruel and unusual punishment, the very claims asserted by petitioner -- are not only irrelevant, but possibly counterproductive.{9} Our Constitution, however, and our decision to adopt an "accusatorial," rather than an "inquisitorial," system of justice{10} reflect a different choice. That choice is to afford the individual certain protections -- the right against compelled self-incrimination and the right against cruel and unusual punishment among them -- even if those rights do not necessarily implicate the accuracy of the truthfinding proceedings. Rather, those protections are an aspect of the fundamental fairness, liberty, and individual dignity that our society affords to all, even those charged with heinous crimes.

In my opinion, then, the Court’s exaltation of accuracy as the only characteristic of "fundamental fairness" is deeply flawed. Our criminal justice system, and our Constitution, protect other values in addition to the reliability of the guilt or innocence determination, and the statutory duty to serve "law and justice" should similarly reflect those values.

Thus, the Court begins with a conception of "fundamental fairness" that is far too narrow, and that conflicts with the nature of our criminal justice system. The Court similarly fails to give appropriate weight to the fact that capital punishment is at stake in this case. It is now well settled that "death is a different kind of punishment from any other which may be imposed in this country." Gardner v. Florida, 430 U.S. 349, 357 (1977) (STEVENS, J.).{11} It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, the consequence of scrupulously fair procedures. When a condemned prisoner raises a substantial, colorable Eighth Amendment violation, there is a special obligation, consistent with the statutory mission to "dispose of the matter as law and justice require," to consider whether the prisoner’s claim would render his sentencing proceeding fundamentally unfair. Indeed, it was precisely this concern that prompted the Court of Appeals to consider petitioner’s argument on the merits:

[W]e give weight to the consideration that we have before us a matter of life and death. The imminent execution of Smith serves as sufficient grounds to review the issue.

Smith v. Procunier, 769 F.2d 170, 172 (1985).

Finally, as in every habeas corpus decision, the magnitude of the State’s interest must be considered. In this case, several factors suggest that the State’s interest is not adequate to obstruct federal habeas corpus consideration of petitioner’s claim. First, petitioner made a timely objection at trial, and the state interest in enforcing procedural default rules at trial is far greater than the State’s interest in enforcing procedural default rules on appeal.{12} Second, the issue was raised before the state court in an amicus curiae brief.{13} Since this is a matter on which courts ordinarily may exercise discretion,{14} the discretionary decision not to address the issue hardly rises to a state interest of sufficient magnitude that a man should die even though his Fifth and Eighth Amendment rights were violated to achieve that objective. Third, the issue was presented to the state courts in state habeas proceedings -- after the precedent blocking petitioner’s claim had been repudiated{15} -- and the state habeas court, while finding that the decision by Smith’s counsel not to raise the issue with a governing Virginia precedent squarely against him was entirely reasonable,{16} concluded that the Fifth Amendment claim was procedurally barred, and thus did not address it.{17} Fourth, the Court of Appeals for the Fourth Circuit addressed the merits, and did not rest on any notion of procedural default; this Court customarily defers to federal courts of appeals on questions of state law,{18} including questions about "cause" for failure to comply with state procedural rules.{19} Finally, and most importantly, the inadequacy of the state interest in this death penalty context is decisively shown by the prevailing practice in many States that appellate courts have a special duty in capital cases to overlook procedural defaults and review the trial record for reversible error, before affirming that most severe of all sentences.{20}

Thus, the Court is mistaken in its narrow definition of fundamental fairness, in its failure to appreciate the significance of a challenge to a death penalty, and in its exaggeration of the State’s interest in refusing to entertain a claim that was raised at trial, on appeal by an amicus, and in state habeas proceedings; that was addressed on the merits by the Court of Appeals (and briefed and argued on the merits in this Court); and that must be assumed to make the difference between life and death. Because I disagree with the Court’s evaluation of these matters, I would address the merits of petitioner’s argument that constitutional violations render his sentence of death fundamentally unfair.


The introduction of petitioner’s comments to the court-appointed psychiatrist clearly violated the Fifth Amendment. As the majority points out, psychiatric reports by court-appointed psychiatrists "were routinely forwarded to the court, and . . . were then admissible under Virginia law." Ante at 529. However,

[a]t no point prior to or during the interview did Dr. Pile inform petitioner that his statements might later be used against him, or that he had the right to remain silent and to have counsel present if he so desired.

Ante at 530. Moreover, the court-appointed psychiatrist related petitioner’s description of an earlier sexual assault in a letter to the court and to the prosecution, as well as to the defense, and testified about the description, at the State’s request, at petitioner’s capital sentencing hearing. The State thus relied on Dr. Pile’s testimony as evidence of "future dangerousness," one of the two aggravating circumstances found by the jury to justify a sentence of death.{21}

CHIEF JUSTICE BURGER’s opinion for the Court in Estelle v. Smith, 451 U.S. 454 (1981), makes it absolutely clear that the introduction of this evidence by the prosecution at the sentencing stage violated the Fifth Amendment. As THE CHIEF JUSTICE explained, the Fifth Amendment fully applies to a capital sentencing proceeding:

Just as the Fifth Amendment prevents a criminal defendant from being made "`the deluded instrument of his own conviction,’" Culombe v. Connecticut, 367 U.S. [568,] 581, quoting 2 W. Hawkins, Pleas of the Crown 595 (8th ed. 1824), it protects him as well from being made "the deluded instrument" of his own execution.

Id. at 462. As THE CHIEF JUSTICE also explained, prosecutorial use of evidence from a psychiatric interrogation in a capital sentencing proceeding requires the protections, and warnings, accorded the Fifth Amendment right in other contexts:

Because [the defendant] did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to [the psychiatrist] to establish his future dangerousness.

Id. at 468.

Thus, the use of petitioner’s statements clearly violated the Fifth Amendment.{22} In view of the majority’s willingness to assume that the constitutional violation is present, but that the failure to address it does not affect the fundamental fairness of petitioner’s sentence, moreover, it is instructive to recall the importance of the Fifth Amendment right at issue. Again, THE CHIEF JUSTICE’s opinion in Estelle v. Smith provides guidance:

Miranda held that

the prosecution may not use statements, whether exculpatory or inculpatory stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

. . . The purpose of these admonitions is to combat what the Court saw as "inherently compelling pressures" at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of forgoing it, which is the prerequisite for "an intelligent decision as to its exercise."

* * * *

The Fifth Amendment privilege is "as broad as the mischief against which it seeks to guard," Counselman v. Hitchcock, 142 U.S. 547, 562 (1892), and the privilege is fulfilled only when a criminal defendant is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will and to suffer no penalty . . . for such silence." Malloy v. Hogan, 378 U.S. at 1, 8 (1964).

Id. at 466-468.

Given the historic importance of the Fifth Amendment, and the fact that the violation of this right made a significant difference in the jury’s evaluation of petitioner’s "future dangerousness" (and consequent death sentence), it is not only proper, but imperative, that the federal courts entertain petitioner’s entirely meritorious argument that the introduction of the psychiatrist’s testimony at his sentencing hearing violated that fundamental protection.{23}


It is also quite clear that the introduction of the evidence violated his Eighth Amendment right to a fair sentencing proceeding. In this respect, I disagree with the Court of Appeals’ reading of the opinion that I authored for the Court in Zant v. Stephens, 462 U.S. 862 (1983). The Court of Appeals concluded that, because the jury also found an aggravating circumstance of "vileness," the death sentence could stand even if Dr. Pile’s testimony represented a flagrant Fifth Amendment violation.

In Zant, we held that the Georgia Supreme Court’s invalidation of one of the three aggravating circumstances found by the jury did not require that the death penalty be set aside. But that conclusion was reached only after we satisfied ourselves that the evidence relating to the invalid aggravating circumstance had been properly admitted.{24} We did not conclude, as the Court of Appeals seems to have assumed, that any evidence concerning the invalid circumstance was simply irrelevant because the valid circumstances were, in all events, sufficient to support the death penalty. The fact that the record adequately establishes one valid aggravating circumstance may make the defendant eligible for the death penalty, but it does not justify the conclusion that a death sentence should stand even though highly prejudicial inadmissible evidence was presented to the jury at the sentencing hearing. The introduction of such highly prejudicial, inadmissible evidence -- evidence that itself represents an independent constitutional violation -- quite clearly undermines the validity of the capital sentencing proceeding and violates the Eighth Amendment.


Thus, I would not only reach the merits of petitioner’s constitutional claim, but also would conclude that it has merit. The question that remains is the one the Court addresses in the last two paragraphs of its opinion -- whether the constitutional error warrants the conclusion that the death penalty should be set aside in this habeas corpus proceeding. I think that question should be answered by reference to the language of the governing statute -- the writ should issue "as law and justice require." To hold, as the Court does today, that petitioner’s death sentence must stand despite the fact that blatant constitutional violations presumably made the difference between the jury’s recommendation of life or death, violates not only "law," but, quite clearly, "justice" as well.

I respectfully dissent.


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Chicago: John Paul Stevens, "Stevens, J., Dissenting," Smith v. Murray, 477 U.S. 527 (1986) in 477 U.S. 527 477 U.S. 540–477 U.S. 555. Original Sources, accessed March 31, 2023,

MLA: Stevens, John Paul. "Stevens, J., Dissenting." Smith v. Murray, 477 U.S. 527 (1986), in 477 U.S. 527, pp. 477 U.S. 540–477 U.S. 555. Original Sources. 31 Mar. 2023.

Harvard: Stevens, JP, 'Stevens, J., Dissenting' in Smith v. Murray, 477 U.S. 527 (1986). cited in 1986, 477 U.S. 527, pp.477 U.S. 540–477 U.S. 555. Original Sources, retrieved 31 March 2023, from