Tucker v. Kemp, 86-6925
| Decision Date | 22 May 1987 |
| Docket Number | A-844,No. 86-6925,86-6925 |
| Citation | 481 U.S. 1063,95 L.Ed.2d 863,107 S.Ct. 2209 |
| Parties | Richard TUCKER v. Ralph KEMP, Warden () |
| Court | U.S. Supreme Court |
On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.
The application for stay of execution of the sentence of death presented to Justice POWELL and by him referred to the Court is denied. The petition for a writ of certiorari is denied.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 2973, 49 L.Ed.2d 859 (1976), I would grant the application for stay of execution and the petition for certiorari, and would vacate the death sentence in this case.
Even if I did not take this view, however, I would still grant the application for a stay. Tucker's petition for certiorari raises the question whether inflammatory and prejudicial photographs of the victim's body introduced at trial violated his constitutional right to "fundamental fairness and a reliable sentencing determination." Pet. for Cert. i. This question is sufficiently similar to a question that will be decided by the Court in Thompson v. Oklahoma, No. 86-6169 (Feb. 23, 1987), --- U.S. ----, 107 S.Ct. 1284, 94 L.Ed.2d 143 1 that the petition should be held by the Court pending our disposition of the question in Thompson.2
I find particularly disturbing the Court of Appeals' treatment of this question. In deciding that the grant of certiorari in Thompson did not "sufficiently suggest that 'new law' relevant to the present case [was] near at hand," the court stated:
Tucker v. Kemp, --- F.2d ---- (11th Cir.1987).
Page 1064-Continued.
[DCQ!]] Plainly, any doubt that the Court of Appeals had about which issue prompted the Court to grant certiorari should have been resolved in favor of the defendant facing the death penalty. Moreover, given that this Court may restrict its grant of certiorari to those questions it wishes to hear, it seems to me most inappropriate for the court to have engaged in speculation about the possible insignificance of our grant on one of the questions in Tucker's petition.
The relationship between the questions presented by Tucker and Thompson justifies delaying consideration of the former on the ground that it will be illuminated by the disposition of the latter. I dissent.
1 Among the questions presented in Thompson is:
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