June 20, 1997

High Court Upholds Death for a Virginia Man

By LINDA GREENHOUSE

WASHINGTON, June 19 - The Supreme Court today upheld a death sentence for a Virginia murderer whose 1988 sentencing proceeding was unconstitutional under the terms of a decision the Court issued six years later. By a 5-to-4 vote, the Justices today declined to order a new sentencing trial for the man, Joseph R. O'Dell, because the majority said the later

decision should not apply retroac- tively to his case.

After finding Mr. O'Dell guilty of rape and murder, a jury sentenced him to death without. ever learning that had it rejected the death sentence, he would have been sent to prison for life without the possibility of parole.

In 1994, the Court ruled in a case from South Carolina that a capital defendant who is described to the jury as a future threat to society - as was Mr. O'Dell, who had committed previous crimes while on parole - has a due process right to have the jury know he will never get out of prison if the jury spares his life.

In refusing today to apply that decision, Simmons v. South Carolina, to Mr. O'Dell, Justice Clarence Thomas's majority opinion invoked the Supreme Court's principle that a "new rule" of constitutional law should not be available to state prison inmates who are seeking Federal court review, through petitions for a writ of., habeas corpus., The Court adopted that position in a 1989 case, Teague v. Lane, as part of its effort to make habeas corpus available to state inmates. So the question for the Court today was whether the 1994 decision was itself a "new rule" or, to e contrary, whether it was foreordained or at least forecast by earlier decisions.

Chief, Justice William H. Rehnquist's selection of Justice Thomas to write the opinion today was striking because Justice Thomas had been one of only two dissenters in the 1994 case. Had he and the other dissenters, Justice Antonin Scalia, believed that the opinion in that case was dictated by precedent, presumably, they would not have dissented, Instead, Justice Thomas joined a biting dissent by Justice Scalia that denounced the 7-to-2 decision as a victory in a "guerrilla war" being waged by opponents of capital punishment against "this unques ably constitutional sentence."

In his opinion today, O'Dell v. Netherland, No. 96-6867, Justice Thomas was dismissive of the 1994 decision. He said it clearly announced a "new rule" because a "reasonable jurist", in 1988, when Mr. O'Dell was sentenced, would not have predicted that the Constitution required a jury to be informed o the life-without-parole alternative.

Under the Court's approach state prisoner can still avail himself of a new constitutional rule if it announces a "watershed" or "a rock" principle of fundamental fairness in a criminal proceeding. But all that the 1994 decision establish I was a "narrow right of rebut Justice Thomas said.

In a dissenting opinion, Justice John Paul Stevens said the "right to respond to an inaccurate or misleading argument" - in this instance the prosecutor's warning that Mr. O'Dell would present a continuing danger if not put to death - "is surely rock procedural element of a f fair hearing." The 1994 decision plied an established principle and did not announce a new rule, Justice Stevens said.

The majority opinion was joined by Chief Justice Rehnquist and Justices Scalia, Sandra Day O'Connor and Anthony M. Kennedy. Justice David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined the dissent.

The decision upheld a 1996 ruling of the United States Court of Appeals for the Fourth Circuit in Richmond.