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Sunday, 31 October 2010
Today's Flowers #117 Clematis tangutica
21 comments:
Very beautiful and unique flowers.ReplyDelete
They have a different but beautiful seed head. Wonderful photos.ReplyDelete
Honestly, I think I like the seed heads better. Great post!ReplyDelete
very interesting and lovely flowers. i've never seen these before.ReplyDelete
Lovely shots of a beautiful flower I admire.ReplyDelete
They are beautiful aren't they? Loved your photos, thanks so much for sharing them.ReplyDelete
An English Girl Rambles
wow! fascinating! I love it! =)ReplyDelete
I had heard of tangutica clematis but had not seen one before - interesting shape and one of my favourite species.ReplyDelete
Thanks for visiting me - yes, there is always something in the garden but far too wet and windy to go out with the camera!
I like the shiny mopheads. This plant has some really fascinating features!ReplyDelete
What fun to see this unusual flower. I love the yellow color. Thank you for sharing this with us.ReplyDelete
You are definitely right about the little shy smiling face. I'm sure I cought a glimpse...ReplyDelete
It is a beautiful clematis.
My yellow rose has so many buds that still have to open. I'm hoping the frost will keep away for a couple of months.
I like that a lot!ReplyDelete
Pretty Blue
I love the seed heads. Casual and elegant at the same time. So pretty.ReplyDelete
Kay, Alberta, Canada
An Unfittie's Guide to Adventurous Travel
I think your Clematis tangutica look much better than mine do right now. You are inspiring me to take my camera for a walk around my gardens right NOW to see. :)ReplyDelete
I have never seen that variety before. Splendid seed heads!ReplyDelete
Very nice shots!ReplyDelete
Someone gave me a clematis one month ago but the flowers should be blue or purple I think! Let's wait and see;o)
Have a happy Monday****
The seedheads are pretty bizarre looking! But I think they are lovely! I have not seen a flower that shape on any of the varieties here.ReplyDelete
That's gorgeous!ReplyDelete
Golden Monday
Wow this flower is so pretty!! Love it!ReplyDelete
Trick or Treat
wow! So pretty.ReplyDelete
The last photo look like a heart. You can send this over at http://clytie-randomhearts.blogspot.com/ and enjoy amazing random hearts.
You can also visit my heart blog.
Happy Monday!
Wonderful details in the image of the bud and the photos of the seed head.ReplyDelete
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By pretty much any measure, lending to American small businesses is weak. Most recently, small business borrowing dropped 5% from May to June, according to the research firm PayNet, which tracks such lending. And while May's borrowing had encouragingly reversed a four-month decline, June's numbers were actually in sync with a broader trend.According to the recent annual report from U.S. Small Business Administration Office of Advocacy, a year-0ver-year comparison of outstanding loans to the nation's small business revealed a decrease of almost 7%, for the 12 months that ended in June 2011. At that point, banks had $606.9 billion in outstanding loans to the U.S. small businesses, compared with $652.2 billion for the same 12-month period ending in June 2010. That's not good news for anybody, except maybe the Romney campaign.
But understanding why lending to small firms is down—and how important small firms are to the economy in general and employment in particular—is not simple. Because for as much as politicians glorify entrepreneurs, it's unclear how crucial they are when it comes to job creation. For that matter, it's a little unclear what we're talking about when we talk about small business. Because one entrepreneur's small business is another's gigantic competitor. According to the SBA, for example, a small business is defined in one of the following ways, depending on industry:
- Annual revenues of $750,000 or less for most agricultural industries
- $33.5 million or less for heavy construction industries
- $14 million or less for specialty trade contractors
- 500 employees of fewer for most manufacturing and mining industries
- 100 employees or fewer for wholesale trade industries
- $7 million or less for most retail and service industries
(MORE: Unemployment Rate Ticks Up to 8.3%—But There's Good News Too?)
That's a wide range of range of definitions, especially given the way politicians and Chamber of Commerce types like portray entrepreneurs as an urban version of the family farmer. In fact, even the SBA's small-business loan data is based on a a sort of proxy measure. The agency defines a loan to small business as any business loan of $1 million or less. So a $1.1 million loan to a chain of dry cleaners with $5 million in revenues doesn't get counted, while a $500,00o loan to a 150-worker auto parts wholesaler does.
Small wonder there's no consensus as to why lending is down. Despite speculation that banks are still making it harder for small companies to borrow, PayNet president William Phelan says his firm's research reveals that banks are actually making it easier. Indeed, while the most recent survey from the National Federation of Independent Business reports that 7% of respondents in June described loans as "harder to get," that figure is actually two percentage points lower than it was in May. And 93% of respondents said "that all their credit needs were met or that they were not interested in borrowing."
Which makes sense. Small businesses often have a relatively thin barrier between success and failure. Facing minimal economic growth—not to mention uncertainty about the effects of healthcare reform and other regulatory and legislative agendas—only the most confident and/or desperate of entrepreneurs will increase their borrowing. And pretty much any rational business owner would be hesitant to expand, as the NFIB survey shows. The question is, How big a deal is that to the nation's employment picture?
(MORE: The Qualities of Outperforming Companies)
Depends on who you ask, of course, but in the next few months you can expect to hear a lot about the importance of small businesses to the U.S. economy—and not just because of President Obama's mischaracterized "You didn't build that" sentence fragment regarding the role of government in business creation. As they do with American small farmers, politicians overemphasize the importance of American small-business operators. That is, small farmers aren't the reason U.S. food prices have plummeted over the decades (adjusted for inflation); most of the credit goes to the efficiencies that came with the rise of corporate farms. Likewise, medium- and large-sized firms likely account for one half to two thirds of U.S. non-farm and non-government employment. Small businesses are important, certainly, employing tens of millions of people and driving innovation. But many if not most small concerns stay that way—or go out of business entirely.
The real Little Engine That Could when it comes to job creation, as shown in a 2010 study from the National Bureau of Economic Research—"Who Creates Jobs? Small vs. Large vs. Young"—is new companies, regardless of their size. As the authors (John Haltiwanger, Ron Jarmin, Javier Miranda) concluded: "Firm startups account for only 3% of employment but almost 20% of gross job creation. The fastest growing continuing firms are young firms under the age of five."
This distinction might seem nuanced—very few business launches start with 1,000 employees—but it's important. When politicians criticize government for small-business-strangling regulation, they're being disingenuous. Most small businesses fail to grow because that's the nature of the beast. What you want, from a job-creation perspective, is government to foster an environment in which starting a business—period—is easy. It's a numbers game really; since most small businesses will fail or stall, you want to throw as many ideas on the pavement as possible so that the small percentage of start-ups that thrive is part of an increasing pool of new companies. The success rate may not change, but the absolute number of successes will.
(MORE: Billionaires Fuel Money Race to the White House)
Judging by that measure, the state of U.S. entrepreneurship is ripe for meaningful discussion. On the one hand, the Romney campaign might focus on the most recent annual data for U.S. business start-ups, which dropped to a record low in 201o. Conversely, the Obama campaign might highlight the World Bank's most recent "Doing Business" annual report, which ranks the ease of organized commerce in 183 countries, based on business-friendly regulations. The U.S.—which finished 4th overall—ranks 13th when it comes to starting a business. That's the second-highest ranking among the world's 10 biggest economies.
Rather than arguing over who's more supportive of existing small-business owners—or harping on regulations, which are not the problem; or worrying about weak borrowing, which is most likely a cyclical phenomenon—both candidates should explain how they'd help wannabe entrepreneurs take the big leap. Because the more of those folks we can guide from fantasy to reality, the more jobs we'll create down the line.


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Come visit us at Newlands Children's Centre!
Lots of fun activities for you and your children to play, learn and have fun together.
Our Children's Centre is part of a nationwide programme of services for 0-5 year olds and their families. Our aim is to offer information, advice and support to parents, as well as integrated childcare and early learning, health services, family support and parental outreach.


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The average Canadian household spent $63,723 on goods and services in 2017, according to Statistics Canada.
That figure is up 2.5 per cent from 2016.
Shelter remains the largest budget item for households in 2017, accounting for 29.2 per cent of their total consumption of goods and services. Shelter is deemed unaffordable if it absorbs more than 30 per cent of household income. Shelter costs also partially account for the fact that households in B.C. spent almost $8,000 more than the average. Only Alberta households ($72,957) spent more than those in British Columbia ($71,001).
In fact, average shelter costs in British Columbia reached an average of $21,844 — the highest in Canada, ahead of second-placed Alberta, where average household spent $21,068. Not surprisingly, households in British Columbia and Alberta recorded the highest average spending on mortgage payments, and spent the most on rent.
The cost of shelter also has a class bias. Whereas Canadian households in the lowest income group spent almost 35 per cent on their incomes on shelter, individuals in the highest income category spent 27.4 per cent. In terms of raw numbers, the richest Canadian households spent an average of $28,921 on shelter, the poorest $11,733.
Looking for the cheapest place in Canada to live? According to Statistics Canada, that would be New Brunswick, where households spent the least on goods and services, averaging $52,608, and the least on shelter at $12,692.
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prize winner! The winner of my 700th blog post prize is ROBYN VICKERS! YAY! Robyn, send me an email with your address and I will send out your DVD! thank you to everyone for playing!
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University of Michigan
Runs his own tutoring company
Carl taught upper-level math in several schools and currently runs his own tutoring company. He bets that no one can beat his love for intensive outdoor activities!
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University of Michigan
Runs his own tutoring company
Carl taught upper-level math in several schools and currently runs his own tutoring company. He bets that no one can beat his love for intensive outdoor activities!
We're now going to look at two different ways to organize data and they're very, very similar in theory, but the answers are going to be very, very different. So the first one we're going to look at is we're trying to arrange four guys and four girls in such a way that guys and girls have to alternate.
So when you're dealing with guys and girls each guy is going to be different, I don't have them named up here because they'd be a lot more writing, but basically we have four different guys, four different girls and we can rearrange our guys and it will be a different order completely.
So what we can think about is 2, 4, 6, 7, 8 so what we picked is one gender has to go first it doesn't matter who we'll say a guy. So we have four guys to choose from, any of these four guys can go first which tells us we have four people who can go here.
The next spot is a girl and we have four different girls, so any of those four will be able to go second, so we have guy, girl, our next one has to be a guy. One guy is already in place, so we only have three left to choose from, so that tells us we have three remaining. Same thing for the girls, somewhere down the road we've already used two guys already to get to this point so then we have two guys that can go here, two girls can go here one guys, one girl.
So what we end up in this case is 4 factorial times 4 factorial, but one other thing we have to consider is that here I assumed that guys go first, that doesn't have to be the case, there is no stipulation that said guys have to go first, so what we could do is have a girl first in which case the number of options is still going to be exactly the same, four girls could go first then four guys could go second and so on and so forth.
So what basically we could do is say this times 2 to include the guys going first and the girls going first, so what we end up having we could Foil this out or multiply this out, I'm only concerned with the number I'm concerned with the concept so what we end up here is two groups alternating four factorial times four factorial times 2. A very similar question, but extremely different answer is going to be the case with balls, so in this case I chose to write it blue, colors don't really matter, but we're trying to arrange four red balls and four blue balls so that they are alternating as well.
So for this one 5, 6, 7, 8 we can choose a color to go first either red or blue let's say red and the trick for this one is that these are supposed to be balls that are not distinguishable, so the red is the red you're not going to be able to tell the difference at all and so basically one red is here, one red is here we're not going to tell the difference so there is really one way that this will look if red goes first because they're all going to look the same.
There is another way that you can look if blue goes first, so here we could just say red, red, red, red, and then the blues fill in the gap we're not going to be able to tell the difference. Similarly we could do it the other way where we could say blue goes first and then we have red going second, fourth, sixth and last. Again we're not going to be able to tell the difference from those because these balls look exactly the same.
So in this case what we're really left with is just 2, so this is the difference between a non-distinguishable situation and a distinguishable situation. With the kids we can tell them apart. Two kids don't necessarily look the same so therefore we can rearrange them a little different, while we're dealing with the ball situation, we rearrange those where you can't really tell the difference so therefore we only have two situations that we're dealing with.


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This year, add a decorative touch to your Thanksgiving table with personalized pumpkin shaped place cards. Decorate them to your taste or leave them unfinished, either way they'll add extra creativity to your table.
Made from 1/8 thick Baltic Plywood, they are lightweight enough to be used as a ornamental decoration but sturdy enough to be finished with paint, stain, or other medium.
When ordering, please indicate the personalized name you would like engraved in your pumpkins. There will be a customization box in the Cart, please type in the box the names you would like to have engraved. Please note, there is a 10 character limit.


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Single vs. Married Entrepreneurs: Who Has the Edge?
Entrepreneurs are often categorized as intense visionaries who sleep little and cheerily work around the clock to be successful. One could assume that being single would then automatically help your business. But is that really true?
A 2009 Kauffman Foundation report, "Anatomy of an Entrepreneur," found the stereotypical image of the single, free-wheeling entrepreneur may not be the norm. The Kansas City, Mo.-based nonprofit group surveyed 549 company founders across a variety of industries and found nearly 70% percent were married when they launched their first business, about 60% had at least one child, and almost 44% percent had two or more children.
So, who's better off in business: the single entrepreneur with an unlimited supply of midnight oil to burn or the married entrepreneur with obvious time limitations, but also the support of a loving spouse and family?
"I think there are benefits either way, but they're different," said Melinda Carlisle Brackett, a San Jose, Calif-based therapist and business coach who works with entrepreneurs.
Here, a look at how being single or married can give you an edge when it comes to three important aspects of living a successful entrepreneurial life.
Who has the edge? Single entrepreneurs
"A single entrepreneur has the benefit of not stressing out about getting home to take care of building a relationship," Brackett said. "They may date, but it doesn't really take the same sort of energy."
For example, having the flexibility to attend networking events in the evenings, while married entrepreneurs may not be able to, can certainly offer an advantage when it comes to growing a business. If your industry also requires constant travel, the flexibility of being able to hop on a plane at a moment's notice can also offer an edge to the single entrepreneur.
"There are also some industries where going out and partying is more important than being perceived as stable," said Meredith Haberfeld, a New York-based business coach, who works with many single and married entrepreneurs. "As a generalization, in more traditional professions, having a spouse can make you appear more stable to your peers, but in newer fields like new media or entertainment, being able to stay out late can be a benefit."
Work-Life Balance
Who has the edge? Married entrepreneurs
Finding ways to balance work and family is often top of mind for married entrepreneurs because they grapple with it on a daily basis, while single entrepreneurs can — albeit unwittingly — shift their personal needs to the back burner.
"When you're married, you're always revisiting the priorities, asking yourself: 'What am I doing this for? What's the long-term goal?'" Brackett said. "That's a benefit because it forces you to make choices you're probably going to be happy with in the long run."
To be sure, married business owners are also left wondering if their business is suffering because they need to spend more time working. Still, experts agree that finding some semblance of balance between work and play is critical for any business owner. Of course, that's not to say single entrepreneurs don't think at all about long-term goals, they're just not necessarily forced to face them every day.
"The biggest mistake single entrepreneurs make is not planning for the day when they're not going to want to keep that same pace, and I think there's a price to be paid for that," Brackett said. "They may be on top of their game, making money, and believe in their business, but not having that balance can create a ton of stress."
Haberfeld suggests forcing yourself to sit down and put your priorities on paper, instead of always being guided by the squeakiest wheel.
"Then, structure your time each week to be in alignment with those priorities, and follow the plan," Haberfeld said. "The balance is within one's reach, but for some it's a skill that has to be learned."
Time & Energy
Who has the edge? Single entrepreneurs
"A single entrepreneur has more available time and energy to throw toward their business, and I think that unquestionably contributes to the success and thriving of a venture," Haberfeld said.
On the other hand, being in a loving relationship can bring an emotional high and there's an energy and optimism that goes a long with it, according to Brackett. "When we're feeling good and optimistic we tend to get past our fears about taking that next step in business because we don't feel so isolated," she said.
Whether you have a lot or a little time, experts say what's most important to being a successful entrepreneur is knowing how to manage it.
"While it's quite obvious how the needs of a family can cut into time, I see that issue get in the way of almost all the entrepreneurs I work with," Haberfeld said. "Navigating one's way through that is a big leveler of the field to making a successful entrepreneur."


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Weather and climate extremes are associated with loss of life, destruction of property and many other socio-economic miseries worldwide. They threaten livelihoods and the very survival of humankind. The vulnerability of societies seems to be increasing year after year in many developing countries, especially in Africa.
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The contents of the April 1958 Bulletin covered meteorological transmissions in Europe, reducing evaporation from reservoirs, aviation aspects of mountain waves, the 50th anniversary of the Australian Bureau of Meteorology (see MeteoWorld/February 2008/Anniversaries) and Part II of "The conquest of the third dimension", as well as reports of the second session of Regional Association III, the second session of the Commission for Synoptic Meteorology and activities of regional associations and technical commissions.
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The discovery process is the phase in which both parties research and investigate the facts and events that gave rise to the claim. During the discovery phase, parties will have access to information that was inaccessible to them before. While the rules provide for mutual cooperation in the exchange of documents and information to expedite the arbitration, many parties will attempt to avoid disclosing unfavorable information. Parties in Financial Industry Regulatory Authority (FINRA) arbitration are required to cooperate to the fullest extent practicable in discovery. Measures have been put in place to compel discovery, including orders from the panel directing one party to disclose certain information, and even sanctions for difficult parties.
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In a bifurcated proceeding conducted pursuant to Mississippi's capital punishment statute, petitioner was convicted of murder and sentenced to death. Petitioner's lawyers in their closing argument at the sentencing stage, referred to petitioner's youth, family background, and poverty, as well as to general character evidence, and they asked the jury to show mercy, emphasizing that the jury should confront the gravity and responsibility of calling for another's death. In response, the prosecutor urged the jury not to view itself as finally determining whether petitioner would die, because a death sentence would be reviewed for correctness by the Mississippi Supreme Court. That court unanimously affirmed the conviction but affirmed the death sentence by an equally divided court, rejecting, in reliance on California v. Ramos, 463 U.S. 992 , the contention that the prosecutor's comments violated the Eighth Amendment.
The death sentence is vacated.
443 So.2d 806, reversed in part and remanded.
E. Thomas Boyle argued the cause and filed briefs for petitioner.
William S. Boyd III, Special Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief were Edwin Lloyd Pittman, Attorney General, and Marvin L. White, Jr., Special Assistant Attorney General. *
[ Footnote * ] Briefs of amici curiae were filed for the State of Arizona et al. by David Crump, Jean F. Powers, Robert K. Corbin, Attorney General of Arizona, Steve Clark, Attorney General of Arkansas, Austin J. McGuigan, Chief State's Attorney of Connecticut, and John M. Massameno, Assistant State's Attorney, Jim Smith, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, William J. Guste, Jr., Attorney General of Louisiana, John Ashcroft, Attorney General of Missouri, Michael T. Greely, Attorney General [472 U.S. 320, 323] of Montana, Paul L. Douglas, Attorney General of Nebraska, Lacy H. Thornburg, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael C. Turpen, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Mark V. Meierhenry, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, and Gerald L. Baliles, Attorney General of Virginia; and for the National Association of Criminal Defense Lawyers et al. by Daniel F. Kolb, Nancy R. Grunberg, Ephraim Margolin, Richard J. Wilson, Dennis N. Balske, and John Charles Boger. [472 U.S. 320, 323]
JUSTICE MARSHALL delivered the opinion of the Court, except as to Part IV-A.
This case presents the issue whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case. In this case, a prosecutor urged the jury not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the State Supreme Court. We granted certiorari, 469 U.S. 879 (1984), to consider petitioner's contention that the prosecutor's argument rendered the capital sentencing proceeding inconsistent with the Eighth Amendment's heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). Agreeing with the contention, we vacate the sentence. 1 [472 U.S. 320, 324]
Petitioner shot and killed the owner of a small grocery store in the course of robbing it. In a bifurcated proceeding conducted pursuant to Mississippi's capital punishment statute, petitioner was convicted of capital murder and sentenced to death.
In their case for mitigation, petitioner's lawyers put on evidence of petitioner's youth, family background, and poverty, as well as general character evidence. In their closing arguments they referred to this evidence and then asked the jury to show mercy. The arguments were in large part pleas that the jury confront both the gravity and the responsibility of calling for another's death, even in the context of a capital sentencing proceeding.
Respondent first argues that this Court lacks jurisdiction to decide this issue because the decision of the Mississippi Supreme Court rests on adequate and independent state grounds. See Herb v. Pitcairn, 324 U.S. 117 (1945). Although petitioner interposed a contemporaneous objection to the prosecutor's argument, he did not initially assign the issue as error on appeal. Under Mississippi rules, "[n]o error not distinctly assigned shall be argued by counsel, except upon request of the Court, but the Court may, at its option, notice a plain error not assigned or distinctly specified." Miss. Sup. Ct. Rule 6(b) (1976). In this case, the State Supreme Court raised the issue of the prosecutor's [472 U.S. 320, 327] comments sua sponte. It was discussed at oral argument, in postargument briefs submitted by both sides, and in the opinion of the State Supreme Court. Respondent nevertheless argues that the decision below rests on the state-law ground of failure to comply with Rule 6.
The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case. See Ulster County Court v. Allen, 442 U.S. 140, 152 -154 (1979). Moreover, we will not assume that a state-court decision rests on adequate and independent state grounds when the "state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion." Michigan v. Long, 463 U.S. 1032, 1040 -1041 (1983). "If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision." Id., at 1041
An examination of the decision below reveals that it contains no clear or express indication that "separate, adequate, and independent" state-law grounds were the basis for the court's judgment. Indeed, the reference to the waiver issue in the prevailing opinion below, although somewhat cryptic, argues against the position urged by respondent. The State Supreme Court stated:
This conclusion is substantially bolstered by the fact that the Mississippi court discussed the challenge to the prosecutor's argument at some length, evaluating it as a matter of both federal and state law before rejecting it as unmeritorious. Moreover, this conclusion is consistent with the Mississippi Supreme Court's behavior in other capital cases, where it has a number of times declined to invoke procedural bars. See, e. g., Williams v. State, 445 So.2d 798, 810 (1984) (explicitly citing Bell as authority for the proposition that "we have in death penalty cases the prerogative of relaxing our contemporaneous objection and plain error rules when the interests of justice so require"); Culberson v. State, 379 So.2d 499, 506 (1979) (reaching merits "only because this is a capital case" where counsel failed to follow Rule requiring prior objections to jury instructions). Given the standards of Michigan v. Long and Ulster County Court, it is apparent that we have jurisdiction.
On reaching the merits, we conclude that it is constitutionally impermissible to rest a death sentence on a determination [472 U.S. 320, 329] made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. This Court has repeatedly said that under the Eighth Amendment "the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S., at 998 -999. Accordingly, many of the limits that this Court has placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion. See, e. g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion); Gardner v. Florida, 430 U.S. 349 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280 (1976). 2
In evaluating the various procedures developed by States to determine the appropriateness of death, this Court's Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State. Thus, as long ago as the pre-Furman case of McGautha v. California, 402 U.S. 183 (1971), Justice Harlan, writing for the Court, upheld a capital sentencing scheme in spite of its reliance on jury discretion. The sentencing scheme's premise, he assumed, he assumed, was "that jurors confronted with the truly awesome responsibility of decreeing [472 U.S. 320, 330] death for a fellow human will act with due regard for the consequences of their decision . . . ." Id., at 208. Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an "awesome responsibility" has allowed this Court to view sentencer discretion as consistent with - and indeed as indispensable to - the Eighth Amendment's "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, supra, at 305 (plurality opinion). See also Eddings v. Oklahoma, supra; Lockett v. Ohio, supra.
In the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.
Bias against the defendant clearly stems from the institutional limits on what an appellate court can do - limits that jurors often might not understand. The "delegation" of sentencing responsibility that the prosecutor here encouraged would thus not simply postpone the defendant's right to a fair determination of the appropriateness of his death; rather it would deprive him of that right, for an appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance. Whatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record. This inability to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of what this Court has termed "[those] compassionate or mitigating factors stemming from the diverse frailties of humankind." Woodson, supra, at 304. When we held that a defendant has a constitutional right to the consideration of such factors, Eddings, supra; Lockett, supra, we [472 U.S. 320, 331] clearly envisioned that that consideration would occur among sentencers who were present to hear the evidence and arguments and see the witnesses. As the dissenters below noted:
Writing on this kind of prosecutorial argument in a prior case, JUSTICE STEVENS noted another reason why it presents an intolerable danger of bias toward a death sentence: Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to "send a message" of extreme disapproval for the defendant's acts. This desire might make the jury very receptive to the prosecutor's assurance that it can more freely "err because the error may be corrected on appeal." Maggio v. Williams, 464 U.S. 46, 54 -55 (1983) (concurring in judgment). A defendant might thus be executed, although no [472 U.S. 320, 332] sentencer had ever made a determination that death was the appropriate sentence.
Bias could similarly stem from the fact that some jurors may correctly assume that a sentence of life in prison could not be increased to a death sentence on appeal. See Arizona v. Rumsey, 467 U.S. 203, 211 (1984). The chance that this will be the assumption of at least some jurors is increased by the fact that, in an argument like the one in this case, appellate review is only raised as an issue with respect to the reviewability of a death sentence. If the jury understands that only a death sentence will be reviewed, it will also understand that any decision to "delegate" responsibility for sentencing can only be effectuated by returning that sentence. But for a sentencer to impose a death sentence out of a desire to avoid responsibility for its decision presents the specter of the imposition of death based on a factor wholly irrelevant to legitimate sentencing concerns. The death sentence that would emerge from such a sentencing proceeding would simply not represent a decision that the State had demonstrated the appropriateness of the defendant's death. 3 This would thus also create the danger of a defendant's being executed in the absence of any determination that death was the appropriate punishment.
In evaluating the prejudicial effect of the prosecutor's argument, we must also recognize that the argument offers jurors a view of their role which might frequently be highly [472 U.S. 320, 333] attractive. A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community. Moreover, they are given only partial guidance as to how their judgment should be exercised, leaving them with substantial discretion. See, e. g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio 438 U.S. 586 (1978); Woodson v. North Carolina, 428 U.S. 280 (1976). Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role. Indeed, one can easily imagine that in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in.
This problem is especially serious when the jury is told that the alternative decisionmakers are the justices of the state supreme court. It is certainly plausible to believe that many jurors will be tempted to view these respected legal authorities as having more of a "right" to make such an important decision than has the jury. Given that the sentence will be subject to appellate review only if the jury returns a sentence of death, the chance that an invitation to rely on that review will generate a bias toward returning a death sentence is simply too great.
It is, therefore, not surprising that legal authorities almost uniformly have strongly condemned the sort of argument offered by the prosecutor here. For example, this has been the view of almost all of the State Supreme Courts that have dealt with this question since Furman v. Georgia, [472 U.S. 320, 334] 408 U.S. 238 (1972). 4 Indeed, even before Furman the sort of argument offered by the prosecutor here was viewed as clearly improper by most state courts, whether in capital or noncapital cases. 5 The American Bar Association, in its standards for prosecutorial conduct, agrees with this judgment. 6 And even the Mississippi Supreme Court, since deciding Caldwell, has adopted the position that arguments very similar to that used here are sufficiently improper to merit vacating a death sentence. See Wiley v. State, 449 So.2d 756 (1984); Williams v. State, 445 So.2d 798 (1984). [472 U.S. 320, 335]
The State advances three arguments for why the death sentence should be upheld despite the prosecutor's comments. First, the State argues that under California v. Ramos, 463 U.S. 992 (1983), each State may decide for itself the extent to which a capital sentencing jury should know of postsentencing proceedings. Second, it defends the prosecutor's comments as "invited," in the sense that they were a reasonable response to defense counsel's arguments. Last, the State asserts that an application of this Court's decision in Donnelly v. DeChristoforo, 416 U.S. 637 (1974), precludes a finding of constitutional error based on the sort of impropriety that the state prosecutor's comments are said to contain. None of these arguments is persuasive.
Both respondent and the prevailing justices of the Mississippi Supreme Court interpreted California v. Ramos, supra, as if it had held that States are free to expose capital sentencing juries to any information and argument concerning postsentencing procedures. This is too broad a view of Ramos.
Ramos concerned the constitutionality of California's statutory requirement that capital sentencing juries be informed that the State Governor could commute a sentence of life imprisonment without possibility of parole into a lesser sentence that included the possibility of parole. In upholding this requirement, the Court rested on a determination that this instruction was both accurate and relevant to a legitimate state penological interest - that interest being a concern for the future dangerousness of the defendant should he ever return to society. 463 U.S., at 1001 -1006. The Court concluded that this legitimate sentencing concern gave the jury a valid interest in accurate information on the possibility of parole. [472 U.S. 320, 336]
In contrast, the argument at issue here cannot be said to be either accurate or relevant to a valid state penological interest. The argument was inaccurate, both because it was misleading as to the nature of the appellate court's review and because it depicted the jury's role in a way fundamentally at odds with the role that a capital sentencer must perform. Similarly, the prosecutor's argument is not linked to any arguably valid sentencing consideration. That appellate review is available to a capital defendant sentenced to death is no valid basis for a jury to return such a sentence if otherwise it might not. It is simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence. The argument here urged the jurors to view themselves as taking only a preliminary step toward the actual determination of the appropriateness of death - a determination which would eventually be made by others and for which the jury was not responsible. Creating this image in the minds of the capital sentencers is not a valid state goal, and Ramos is not to the contrary. Indeed, Ramos itself never questioned the indispensability of sentencers who "appreciat[e] . . . the gravity of their choice and . . . the moral responsibility reposed in them as sentencers." Id., at 1011.
Respondent next defends the view of the Mississippi Supreme Court that the prosecutor's argument must be understood as a response to the defense counsel's argument, and that it was not unreasonable in that context. But neither respondent nor the court below explains how the prosecutor's argument was less likely to have distorted the jury's deliberations because of anything defense counsel said.
The Mississippi Supreme Court was less than clear as to the theory of "context" it embraced. The prevailing justices commented on two aspects of the defense's arguments. First, "during defense counsel's argument, . . . he inaccurately sought to convince the jury that if they meted out a life sentence the defendant would remain in prison the remainder [472 U.S. 320, 337] of his life. He left them with the impression that there would be no parole or commutation of sentence." 443 So.2d, at 814. Second, the opinion noted that "[defense counsel had] emphasized his pitch for mercy by referring to the Ten Commandments, Jesus and the Heavenly Father." Ibid.
The first of these arguments, of course, recalls Ramos, in which the Court stated that an instruction describing the alternative to a death sentence as "`life imprisonment without possibility of parole' may generate the misleading impression that the Governor could not commute this sentence to one that included the possibility of parole." 463 U.S., at 1004 -1005, n. 19. But although in Ramos the Court concluded that this possible misimpression underscored a valid sentencing need to give more information on the Governor's power to commute life sentences, there is no rational link between the possibility of this specific misimpression and the argument used by the prosecutor in this case. The prosecutor's argument simply had nothing to do with the consequences that would flow from the life sentence mentioned by defense counsel.
The connection between defense counsel's references to religious themes and texts and the prosecutor's arguments regarding appellate review is similarly unclear. As the dissenting justices noted: "Assuming without accepting the majority's position that the defense counsel's argument invited error, it did not invite this error. Asking the jury to show mercy does not invite comment on the system of appellate review. This is true whether the plea for mercy discusses Christian, Judean or Buddhist philosophies, quotes Shakespeare or refers to the heartache suffered by the accused's mother." 443 So.2d, at 817.
The State seeks to bolster its argument regarding the context of the prosecutor's comments by arguing that, under this Court's decision in Donnelly v. DeChristoforo, supra, the comments of a state prosecutor should rarely be considered [472 U.S. 320, 338] violative of federal constitutional rights. The State points out that Donnelly stands for the proposition that "not every trial error or infirmity which might on direct appeal of a federal conviction call for an application of a federal appellate court's . . . supervisory powers correspondingly constitute the denial of due process." Brief for Respondent 25. But although Donnelly does clearly warn against holding every improper and unfair argument of a state prosecutor to be a federal due process violation, it does not insulate all prosecutorial comments from federal constitutional objections. For a number of reasons, this case is substantially different from Donnelly.
Donnelly was a first-degree murder case in which a state prosecutor responded to defense counsel's expression of hope that the jury would return a verdict of not guilty by saying "I quite frankly think that [the defendant and his attorney] hope that you find him guilty of something a little less than first-degree murder." 416 U.S., at 640 . DeChristoforo's attorney objected and the trial judge later gave this curative instruction:
Two important factors, both emphasized in Donnelly, distinguish Donnelly from Caldwell's case. Most important, the trial judge in Donnelly, who observed the prosecutor's remarks as well as the whole of the trial, had agreed that those remarks were improper, had believed that the unfairness was correctable through an instruction, and had in fact given the jury a strong curative instruction. As this Court said:
Second, the prosecutor's remarks in Donnelly were quite different from the remarks challenged here. The Donnelly Court emphasized that the prosecutor's comment was "admittedly [472 U.S. 320, 340] an ambiguous one," id., at 645, and declared that the case was not one "in which the prosecutor's remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right." Id., at 643 (citing Griffin v. California, 380 U.S. 609 (1965)). Here, in contrast, the prosecutor's remarks were quite focused, unambiguous, and strong. They were pointedly directed at the issue that this Court has described as "the principal concern" of our jurisprudence regarding the death penalty, the "procedure by which the State imposes the death sentence." California v. Ramos, 463 U.S., at 999 . In this case, the prosecutor's argument sought to give the jury a view of its role in the capital sentencing procedure that was fundamentally incompatible with the Eighth Amendment's heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S., at 305 (plurality opinion). Such comments, if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment. 7 [472 U.S. 320, 341]
This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its "truly awesome responsibility." In this case, the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated. Accordingly, the judgment is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings.
[ Footnote 2 ] See also Barefoot v. Estelle, 463 U.S. 880, 924 (1983) (BLACKMUN, J., dissenting) (Woodson's concern for assuring heightened reliability in the capital sentencing determination "is as firmly established as any in our Eighth Amendment jurisprudence"); Eddings v. Oklahoma, 455 U.S., at 118 (O'CONNOR, J., concurring) ("[T]his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake"); Godfrey v. Georgia, 446 U.S. 420, 443 (1980) (BURGER, C. J., dissenting) ("[I]n capital cases we must see to it that the jury has rendered its decision with meticulous care").
[ Footnote 3 ] We note that in Mississippi, for example, "[i]f the jury does not make the findings requiring the death sentence" the court must impose a sentence of life imprisonment. Miss. Code Ann. 99-19-101(3)(c) (Supp. 1984). Indeed, "[i]f the jury cannot, within a reasonable time, agree as to punishment" the court must similarly impose a sentence of life imprisonment. 99-19-103.
[ Footnote 4 ] See, e. g., Hawes v. State, 240 Ga. 327, 333, 240 S. E. 2d 833, 839 (1977) (setting aside death sentence in spite of counsel's failure to object to prosecutor's argument); Fleming v. State, 240 Ga. 142, 146, 240 S. E. 2d 37, 40 (1977) (setting aside death sentence in spite of curative instruction); State v. Willie, 410 So.2d 1019, 1034-1035 (La. 1982) (use of this argument by prosecutor calls for setting aside death sentence even in the absence of other improprieties); State v. Jones, 296 N.C. 495, 498-499, 251 S. E. 2d 425, 427 (1979) (ordering new trial on issue of guilt in capital case where argument was used during guilt phase even though there was no contemporaneous objection); State v. White, 286 N.C. 395, 404-405, 211 S. E. 2d 445, 450 (1975) (ordering new trial on issue of guilt in capital case where argument was used during guilt phase even though trial judge gave curative instruction); State v. Gilbert, 273 S. C. 690, 696-698, 258 S. E. 2d 890, 894 (1979) (setting aside death sentence in spite of defendant's failure to raise issue on appeal).
[ Footnote 5 ] See, e. g., People v. Morse, 60 Cal. 2d 631, 649-653, 388 P.2d 33, 44-47 (1964); Pait v. State, 112 So.2d 380, 383-384 (Fla. 1959); Blackwell v. State, 79 So. 731, 735-736 (Fla. 1918); People v. Johnson, 284 N. Y. 182, 30 N. E. 2d 465 (1940); Beard v. State, 19 Ala. App. 102, 95 So. 333 (1923). See generally Annot., Prejudicial Effect of Statement of Prosecutor that if Jury Makes Mistake in Convicting It Can Be Corrected by Other Authorities, 3 A. L. R. 3d 1448 (1965); Annot., Prejudicial Effect of Statement of Court that if Jury Makes Mistake in Convicting It Can Be Corrected by Other Authorities, 5 A. L. R. 3d 974 (1966).
[ Footnote 6 ] See ABA Standards for Criminal Justice 3-5.8 (2d ed. 1980) ("References to the likelihood that other authorities, such as the governor or the appellate courts, will correct an erroneous conviction are impermissible efforts to lead the jury to shirk responsibility for its decision"). Id., at 3.90.
[ Footnote 7 ] The dissent argues that Donnelly does in fact control this case because the prosecutor's argument regarding appellate review was "corrected" by later prosecutorial comments, even if uncorrected by the judge. We disagree.
In the dissent's view, because the prosecutor did later say that the jury played an important role in the sentencing process, the argument as a whole merely emphasized "that the jury was not solely responsible for petitioner's sentence." Post, at 348. But even if the prosecutor's later comments did leave the jury with the view that they had an important role to play, the prosecutor did not retract, or even undermine, his previous insistence that the jury's determination of the appropriateness of death would be reviewed by the appellate court to assure its correctness. As we have discussed, in one crucial sphere of a system of capital punishment, the capital sentencer comes very near to being "solely responsible for [the defendant's] sentence," ibid., and that is when it makes the often highly subjective, "unique, individualized judgment regarding the punishment that a particular person deserves." Zant v. Stephens, 462 U.S. 862, 900 (1983) (REHNQUIST, J., concurring in judgment). It is beyond question that an [472 U.S. 320, 341] appellate court, performing its task with a presumption of correctness, would be relatively incapable of evaluating the "literally countless factors that [a capital sentencer] consider[s,]" id., at 901, in making what is largely a moral judgment of the defendant's desert. The prosecutor's erroneous suggestion that a moral judgment in favor of death would be reviewed for error - a suggestion endorsed by the trial judge - was never corrected.
JUSTICE O'CONNOR, concurring in part and concurring in the judgment.
I join the judgment and the opinion of the Court, with the exception of Part IV-A. I write separately to express my views about the Court's discussion of California v. Ramos, 463 U.S. 992 (1983), in Part IV-A. I do not read Ramos to imply that the giving of nonmisleading and accurate information regarding the jury's role in the sentencing scheme is irrelevant to the sentencing decision.
The Court distinguishes the prosecutor's remarks regarding appellate review in this case from the Briggs instruction in Ramos, which informed the jury that the Governor could [472 U.S. 320, 342] commute a life sentence without parole. The Court observes that the Briggs instruction in Ramos was "both accurate and relevant to a legitimate state penological interest - that interest being a concern for the future dangerousness of the defendant should he ever return to society." Ante, at 335. The statement here, the Court concludes, was neither accurate nor relevant. In my view, the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility. I agree there can be no "valid state penological interest" in imparting inaccurate or misleading information that minimizes the importance of the jury's deliberations in a capital sentencing case. Ante, at 336.
The Court, however, seems generally to characterize information regarding appellate review as "wholly irrelevant to the determination of the appropriate sentence." Ibid. The Court correctly observes that Ramos does not imply that "States are free to expose capital sentencing juries to any information and argument concerning postsentencing procedures" no matter how inaccurate. Ante, at 335. Certainly, a misleading picture of the jury's role is not sanctioned by Ramos. See California v. Ramos, supra, at 1010. But neither does Ramos suggest that the Federal Constitution prohibits the giving of accurate instructions regarding postsentencing procedures. See 463 U.S., at 1004 , n. 19, 1012, n. 27.
Jurors may harbor misconceptions about the power of state appellate courts or, for that matter, this Court to override a jury's sentence of death. Should a State conclude that the reliability of its sentencing procedure is enhanced by accurately instructing the jurors on the sentencing procedure, including the existence and limited nature of appellate review, I see nothing in Ramos to foreclose a policy choice in favor of jury education.
As the Court notes, however, the Mississippi prosecutor's argument accomplished the opposite result. In telling the jurors, "your decision is not the final decision . . . [y]our job [472 U.S. 320, 343] is reviewable," the prosecutor sought to minimize the sentencing jury's role, by creating the mistaken impression that automatic appellate review of the jury's sentence would provide the authoritative determination of whether death was appropriate. In fact, under Mississippi law the reviewing court applies a "presumption of correctness" to the sentencing jury's verdict. 443 So.2d 806, 817 (1983) (Lee, J., dissenting). The jury's verdict of death may be overturned only if so arbitrary that it "was against the overwhelming weight of the evidence," or if the evidence of statutory aggravating circumstances is so lacking that a "judge should have entered a judgment of acquittal notwithstanding the verdict." Williams v. State, 445 So.2d 798, 811 (Miss. 1984).
Laypersons cannot be expected to appreciate without explanation the limited nature of appellate review, especially in light of the reassuring picture of "automatic" review evoked by the sentencing court and the prosecutor in this case. Ante, at 325-326. Although the subsequent remarks of the prosecutor to which JUSTICE REHNQUIST refers in his dissent, post, at 345-346, may have helped to restore the jurors' sense of the importance of their role, I agree with the Court that they failed to correct the impression that the appellate court would be free to reverse the death sentence if it disagreed with the jury's conclusion that death was appropriate. See ante, at 340-341, n. 7. I believe the prosecutor's misleading emphasis on appellate review misinformed the jury concerning the finality of its decision, thereby creating an unacceptable risk that "the death penalty [may have been] meted out arbitrarily or capriciously," California v. Ramos, supra, at 999, or through "whim . . . or mistake," Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (concurring opinion).
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE WHITE join, dissenting.
The Court holds that under the Eighth Amendment it is "constitutionally impermissible to rest a death sentence on [472 U.S. 320, 344] a determination made by a sentencer who has been led to believe that the responsibility for the appropriateness of the defendant's death rests elsewhere." Ante, at 328-329. Even if I were to agree with this proposition in the abstract, I do not believe that under the circumstances of this case it can properly be applied to justify the overturning of petitioner's death sentence.
Petitioner robbed a grocery and bait shop owned by a Mr. and Mrs. Faulkner. When Mrs. Faulkner screamed, petitioner shot her twice and fled with a bank bag taken from the counter. After a trial the jury found petitioner guilty of capital murder, and the case proceeded to the sentencing phase. At that point the prosecution sought to prove four aggravating factors under Mississippi law, including the facts that the offense was committed while petitioner was engaged in a robbery, and that petitioner had previously been convicted of four felonies involving the use of threats or violence to the person. With respect to the latter factor the prosecution introduced evidence that petitioner had been convicted of felonies four times since 1975 - twice for armed robbery, once for attempted armed robbery, and once for aggravated assault. In mitigation petitioner introduced testimony from family and friends emphasizing petitioner's youth and his sound upbringing, and indicating that he was a nice person and a hard worker.
At the guilt phase the jurors had been instructed that they were the "sole judges of the facts," and that it was their duty to find those facts in accordance with the evidence presented, and to apply the rules of law charged by the judge to the facts found. The jurors were also charged that statements made by counsel were not evidence. Prior to closing argument at the sentencing phase the judge further charged the jury that it "must now decide whether the Defendant will be sentenced to death or to life imprisonment." To return the death penalty, the jury was instructed that it must find at least one aggravating circumstance, and that the aggravating circumstances found must outweigh the mitigating circumstances. [472 U.S. 320, 345]
Counsel then presented closing arguments. Pursuant to Mississippi law the prosecutor spoke first and last; his initial statement for the most part argued the aggravating factors, and petitioner does not complain of anything said there. Defense counsel then spoke; as the Court indicates, this argument consisted mostly of a plea for mercy, which emphasized the jury's "awesome responsibility." The prosecutor then made the rebuttal argument of which petitioner complains. Because the Court mischaracterizes the prosecutor's statements, it is worth noting again what the prosecutor actually said:
Counsel continued:
In Donnelly v. DeChristoforo, this Court rejected a claim that a state murder conviction should be overturned on due process grounds because of statements made by the prosecutor during closing argument. We there stressed that "not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a `failure to observe that fundamental fairness essential to the [472 U.S. 320, 348] very concept of justice.'" 416 U.S., at 642 (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Similarly, this Court's recent opinions concerning the Eighth Amendment, while recognizing that the "qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination," California v. Ramos, supra, at 998-999, have also noted that in general the Eighth Amendment is satisfied where the procedures ensure that the sentencer's discretion is "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Zant v. Stephens, 462 U.S. 862, 874 (1983); Barclay v. Florida, 463 U.S. 939, 950 (1983) (plurality opinion). Thus, in both Zant and Barclay we upheld death sentences despite the fact that they had been based in part on invalid aggravating circumstances, where the jury also had found valid aggravating circumstances.
Donnelly, Zant, and Barclay teach that a death sentence need not be vacated in every case where the procedures by which it is imposed are in some way flawed. If the prosecutor in this case actually had argued to the jury that it should go ahead and impose the death sentence because it did not really matter - the appellate court would correct any "mistake" the jury might make in choice of sentence - and if the trial judge had not corrected such an argument, I might well agree that the process afforded did not comport with some constitutional norm related to procedural fairness. But despite the Court's sweeping characterization the argument here fell far short of telling the jury that it would not be responsible for imposing the death penalty. Admittedly, some of the remarks early in the prosecutor's rebuttal indicated that the jury's decision was not "final" because it was subject to appellate review. But viewed in its entirety, cf. Cupp v. Naughten, 414 U.S. 141 (1973), it is evident that the thrust of the prosecutor's argument was that the jury was not solely responsible for petitioner's sentence. In addition [472 U.S. 320, 349] to appellate review, the prosecutor referred to the decision of the Mississippi Legislature to allow capital punishment, to the rules that the jury must follow in determining the appropriate sentence, and to the jury's ultimate responsibility under the law to render a "fair verdict," "without passion, without prejudice, without sympathy."
There is nothing wrong with urging a capital sentencing jury to disregard emotion and render a decision based on the law and the facts. Despite the Court's rhetorical references to the need for "reliable" sentencing decisions rendered by jurors that comprehend their "awesome responsibility," I do not understand the Court to believe that emotions in favor of mercy must play a part in the ultimate decision of a capital sentencing jury. Indeed, much of our Eighth Amendment jurisprudence has been concerned with eliminating emotion from sentencing decisions. Here the prosecutor did not suggest that the prospect of appellate review should lead the jurors to lean toward the death penalty, and the prosecutor's statements that followed the challenged portion of the argument forcefully emphasized the jury's important role under Mississippi law in determining whether to impose death.
Indeed, under the circumstances here the importance of the jury's role could hardly have been lost on the jurors themselves. The charge at the guilt phase highlighted the jurors' role as factfinders and their duty to follow the law in reaching their conclusions. The importance of their role at sentencing was evident from the charge, from the impassioned plea for mercy from petitioner's counsel, petitioner, and petitioner's mother, as well as from the prosecutor's rebuttal. It is indeed difficult to agree with the Court that a group subjected to all this attention nevertheless interpreted a few remarks by the prosecutor to mean that the group's decision was no more than a sideshow - a mere "preliminary step" toward the ultimate sentencing determination.
Once it is recognized that the Court has overstated the seriousness of the prosecutor's comments the Court's analysis [472 U.S. 320, 350] tumbles like a house of cards. Given that it is highly unlikely that the jury's sense of responsibility was diminished, there is no need to respond to the Court's conjecture that the jury would in addition have "delegated" its responsibility by erring in favor of imposing the death penalty. And even assuming that the challenged statements were in some way infirm, I believe this is a case where we should heed the directives of Donnelly, Zant, and Barclay, and hold that any error did not amount to constitutional error. During the course of a heated trial prosecutors may make many statements that stray from debating society rules as to relevancy, but the ultimate inquiry must be whether the statements rendered the proceedings as a whole fundamentally unfair. I do not believe this analysis is substantially altered because the challenged statements were made during a capital sentencing proceeding. Although the fact that this is a capital case calls for careful review of applicable legal principles, it seems to me that the Court's concern would be essentially the same if at the guilt phase the prosecutor had told the jury to go ahead and convict because any mistakes would be corrected on appeal. Cf. ante, at 334, n. 5, and authorities cited therein.
I therefore find unconvincing the Court's scramble to identify an independent Eighth Amendment norm that was violated by the statements here. The Court's string citations to our prior cases, many of which yielded only plurality opinions, which hold that capital sentencing juries must be allowed to consider all forms of mitigating evidence so as to facilitate individualized and rational determinations of the appropriateness of capital punishment, simply highlight the lack of authority for the path that the Court now takes. Nor do I find particularly illuminating the citation to dicta that the Eighth Amendment requires procedures that will ensure a "reliable" determination that death is an appropriate punishment. Although the Eighth Amendment requires certain processes designed to prevent the arbitrary imposition of [472 U.S. 320, 351] capital punishment, it does not follow that every proceeding that strays from the optimum is ipso facto constitutionally unreliable. Zant and Barclay hold as much.
Nor does the Eighth Amendment prohibit any and all communication to a capital sentencing jury concerning the availability of appellate review. In California v. Ramos, we upheld against Eighth Amendment challenge a California statute that required capital sentencing juries to be informed that the sentence of life without possibility of parole was subject to commutation by the Governor. We noted, inter alia, that the instruction was "merely an accurate statement of a potential sentencing alternative," 463 U.S., at 1009 , and held that informing the jury of the possibility of commutation did not inject too speculative a concern into the jury's deliberations. Although we noted in Ramos that the challenged information bore more than marginal relevance to the jury's sentencing determination, Ramos is not distinguishable from this case on that ground; there is no constitutional requirement that all information received by a sentencing jury be "relevant." In any event, the fact that the jury's determination is subject to appellate review, if not common knowledge, is in any event information concerning the judicial process that one would think the jury is entitled to know. Nor do I think this case distinguishable from Ramos because here the prosecutor's statements "misrepresented" the appellate process. There are circumstances where misrepresentations by prosecutors will violate due process, see Miller v. Pate, 386 U.S. 1 (1967); Brady v. Maryland, 373 U.S. 83 (1963), but here the reference to appellate review certainly did not include an express statement that such review was de novo, and any implication along those lines was cured by the later statements emphasizing the jury's responsibility under the Mississippi sentencing scheme.
This Court should avoid turning every perceived departure from what it conceives to be optimum procedure in a capital case into a ground for constitutional reversal. In this case [472 U.S. 320, 352] the State of Mississippi proved four aggravating factors, including that petitioner previously had been convicted of four crimes involving threat of violence to a person. The jury was instructed to find the facts based upon the evidence and to apply those facts to the law as charged; at the sentencing proceeding it was told that it must find that the aggravating factors outweighed the mitigating factors, and the prosecutor's argument stressed these aspects of the jury's singular duty. There is no indication in the record that the jury returned the death sentence on any basis other than the evidence adduced, nor is there any reason to question the jury's conclusion. Under those circumstances I do not think that the Eighth Amendment or any other provision of the Constitution requires that petitioner's death sentence be overturned. * I would affirm the judgment of the Mississippi Supreme Court.
[ Footnote * ] The Court notes that other state courts have condemned the type of argument challenged here, ante, at 334, and that the Mississippi Supreme Court, since its decision in this case, has also found such an argument to be reversible error. See Williams v. State, 445 So.2d 798 (1984). But these facts suggest that draconic intervention by this Court in the name of the Eighth Amendment generally is not required to correct aspects of state procedure that appear less than ideal to all of us. Doctrinal development in the tradition of the common law, where state-court decisions commend themselves not by their authority but by their reason, ultimately bids fair to remedy such minor departures from procedural norms as may be involved in this case. [472 U.S. 320, 353]
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Citation: 472 U.S. 320
Docket No: No. 83-6607
Argued: February 25, 1985
Decided: June 11, 1985
Court: United States Supreme Court
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Plane shaped swimming pool of death
Tuesday, 25th March 2008 by James Turnbull
Around this time last year we put together a collection of swimming pools shaped like airplanes.
And, at first glance, this pool in Slovenia seems to fit into that same category. But I wouldn't recommend going for a dip, as this pool is filled with petrol and designed to be set on fire!
Apparently this flaming pool of death, which is located near Brnik Airport, is used during firefighter training exercises.
But, surely a pool filled with petrol isn't very good practice for a burning craft? Why don't they just have a fire training craft like most other airports?
Thanks: Sigurdr