ROBERTSON v. CALIFORNIA , 498 U.S. 1004 (1990)
498 U.S. 1004
Andrew Edward ROBERTSON, petitioner
CALIFORNIA. No. 90-5774.
Supreme Court of the United States
December 3, 1990
On Petition for Writ of Certiorari to the Supreme Court of California.
The petition for a writ of certiorari is denied.
Justice BLACKMUN, with whom Justice MARSHALL joins, dissenting.
I would grant the petition for certiorari to determine whether
capital sentence was imposed in violation of the Eighth and Fourteenth
In 1978, a California jury convicted petitioner Andrew Edward Robertson on
two counts of first-degree murder and sentenced him to death. On appeal,
Supreme Court of California reversed that judgment as to the penalty.
v. Robertson, 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P. 2d 279 (1982). The
second sentencing proceeding was assigned to Judge Roy E. Chapman.
waived his right to be sentenced by a jury, and Judge Chapman sat as trier
of fact during the second penalty phase. [ Robertson v. California 498
1004 (1990) ][1004-Continued.]
Robertson introduced extensive evidence in mitigation. Among this was the
testimony of his mother and sister concerning Robertson's difficult
childhood, during which he allegedly suffered abuse at the hands of his
father and stepfather. Through these witnesses, Robertson presented
that he had had developmental difficulties as a young child and was slow
walk and talk; that his parents were divorced when he was young; that his
father subsequently had kidnaped him; that, upon being returned from the
kidnaping, he had been cared for by a disturbed mother and a strict
grandmother; and that at age nine he had been diagnosed as suffering from
mild mental retardation with possible brain damage. See People v.
48 Cal.3d 18, 32, 255 Cal.Rptr. 631, 636, 767 P.2d 1109, 1114, cert.
493 U.S. 879 d 169 (1989). Robertson, however, was again sentenced to
and the California Supreme Court, by a divided vote, affirmed. 48 Cal.3d,
64, 255 Cal.Rptr., at 1131, 767 P.2d, at 1136.
In December 1989, Robertson's counsel for the first time learned that
Chapman, prior to his going on the bench, had represented Robertson's
mother, Lillian Goodin, in her divorce from Robertson's stepfather. App.D.
to Brief in Opposition 1. The divorce proceeding was initiated by
Robertson's stepfather in 1963 and involved extensive allegations by both
parties of domestic violence and child abuse. In March 1963, Judge
then Lillian Goodin's attorney, sought a temporary restraining order
Robertson's stepfather, prohibiting him from "threatening, molesting,
injuring, harassing, or annoying [Goodin] and [Goodin's] children."
to Brief in Opposition 4. In [498 U.S. 1004 , 1005] support of
for a temporary restraining order, Robertson's mother executed a
attesting that Robertson's stepfather "has struck and beat [Goodin],
minor child of [Goodin and the stepfather], and [Goodin's] children by a
prior marriage." Id., at 3. Judge Chapman withdrew from his
of Robertson's mother on November 16, 1967. When interviewed by
counsel in 1989, Judge Chapman acknowledged that "the court documents
demonstrated that he had represented" Goodin, but stated that he had
present recollection of the divorce proceeding, and that he believed that
had no independent recollection of them at the time of Robertson's
sentencing. App.D to Brief in Opposition 2.
Immediately upon learning of the past representation, Robertson filed a
petition for a writ of habeas corpus in state court. After the California
Supreme Court denied Robertson's petition, he filed in this Court a
for a writ of certiorari. I would grant that petition.
"A fair trial in a fair tribunal is a basic requirement of due
re Murchison, 349 U.S. 133, 136 , 625 (1955); see also Ward v. Village of
Monroeville, 409 U.S. 57 (1972). The entitlement to an impartial tribunal
applies to the sentencing phase of a criminal proceeding as well as to the
guilt phase. See Witherspoon v. Illinois, 391 U.S. 510, 518 , 1775 (1968).
Due process demands more than that the sentencer actually be impartial;
rather, " 'justice must satisfy the appearance of justice.' " In
Murchison, 349 U.S., at 136 , quoting Offutt v. United States, 348 U.S.
14 , 13 (1954); see also In re Murchison, 349 U.S., at 136 , 75 S.Ct. at
("[O]ur system of law has always endeavored to prevent even the
of unfairness"); Mayberry v. Pennsylvania, 400 U.S. 455, 469 , 507
(Harlan, J., concurring) ("[T]he appearance of even-handed justice .
. . is
at the core of due process"). The risk that Judge Chapman may have
to bear on his decision specific information about Robertson not presented
as evidence in the sentencing proceeding is too great in this case to
satisfy the demands of the Due Process Clause. See In re Murchison, 349
U.S., at 136 , 75 S.Ct. at 625 ("Such a stringent rule may sometimes
trial by judges who have no actual bias and who would do their very best
weigh the scales of justice equally between contending parties").
Moreover, the Fourteenth Amendment prohibits consideration during the
sentencing phase of evidence that the defendant has not had an opportunity
to rebut. Consequently, in Gardner v. Florida, 430 U.S. 349, 358 , 1204
(1977) (plurality opinion), the Court [498 U.S. 1004 , 1006]
unconstitutional a "capital-sentencing procedure which permits a
to impose the death sentence on the basis of confidential information
is not disclosed to the defendant or his counsel." See also Booth v.
Maryland, 482 U.S. 496 , 506-507, 2534-35 (1987).
In light of the stark finality of the death sentence, the importance of
procedural safeguards in capital sentencing proceedings cannot be
overstated. "Because sentences of death are 'qualitatively different'
prison sentences, this 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
out of whim, passion, prejudice, or mistake." Eddings v. Oklahoma,
104 , 117-118, 878-79 (1982) ( citation omitted) (O'CONNOR, J.,
see also Saffle v. Parks, 494 U.S. 484 , 492-493, 1262-1263 (1990);
California v. Ramos, 463 U.S. 992 (1983).
The State argues that no constitutional violation occurred in this case
because Judge Chapman did not recall, at the time of the sentencing phase,
that he had represented Robertson's mother 11 years before. I find it to
somewhat incredible that a competent and responsible attorney could
after only 11 years, a client whom he had represented over a 4-year period
during acrimonious divorce litigation. Judge Chapman's failure to remember
his representation of Robertson's mother is particularly implausible
she testified during the sentencing proceedings concerning the very acts
abuse that formed the basis of the motion for a temporary restraining
that Judge Chapman filed when he was her counsel.
Moreover, the fairness of these capital sentencing proceedings may
reasonably be questioned regardless of whether Judge Chapman had
recollection of his prior representation of Robertson's mother .
requires that a judge disqualify himself if "a person aware of the
might reasonably entertain a doubt that the judge would be able to be
impartial." Cal.Civ.Proc. Code, 170.1(a)(6)(C) (West Supp. 1990). See
U.S.C. 455(a), which similarly proscribes the participation by a judge of
the United States "in any proceeding in which his impartiality might
reasonably be questioned." Knowledge of the disqualifying
not an element of either statute. See, e.g., Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847 , 860-861, 2202-2203 (1988), quoting 796
F.2d 796, 802 ( CA5 1986) (" 'Under section 455(a) . . . recusal is
even when a judge [498 U.S. 1004 , 1007] lacks actual
knowledge of the
facts indicating his interest or bias in the case if a reasonable person,
knowing all the circumstances, would expect that the judge would have
Finally, the Eighth Amendment safeguards the capital defendant against the
mere risk that the death sentence will be imposed arbitrarily and
capriciously. "A constant theme of our cases . . . has been emphasis
procedural protections that are intended to ensure that the death penalty
will be imposed in a consistent, rational manner." Barclay v.
U.S. 939, 960 , 3430 (1983) ( STEVENS, J., concurring in judgment); see
Godfrey v. Georgia, 446 U.S. 420, 427 , 1764 (1980) (plurality opinion)
("[T]he penalty of death may not be imposed under sentencing
create a substantial risk that the punishment will be inflicted in an
arbitrary and capricious manner").