At petitioner Lankford's arraignment on two counts of first-degree murder, the Idaho trial judge advised him that the maximum punishment under state law that he could receive if convicted on either charge was life imprisonment or death. A jury found him guilty on both counts, and, prior to his sentencing hearing, the court entered an order requiring the State to provide notice whether it would seek the death penalty. The State filed a negative response, and there was no discussion of the death penalty as a possible sentence at the sentencing hearing, where both defense counsel and the prosecutor argued the merits of concurrent or consecutive, and fixed or indeterminate, sentence terms. At the hearing's conclusion, however, the trial judge indicated that he considered Lankford's testimony unworthy of belief, stated that the crimes' seriousness warranted punishment more severe than that recommended by the State, and mentioned the possibility of death as a sentencing option. Subsequently, he sentenced Lankford to death based, inter alia, on five specific aggravating circumstances. In affirming, the State Supreme Court rejected Lankford's claim that the trial court violated the Constitution by failing to give notice of its intention to consider imposing the death sentence despite the State's notice that it was not seeking that penalty. The court concluded that the express advice given Lankford at his arraignment, together with the terms of the Idaho Code, were sufficient notice to him that the death penalty might be imposed.
The sentencing process in this case violated the Due Process Clause of the Fourteenth Amendment because, at the time of the sentencing hearing, Lankford and his counsel did not have adequate notice that the judge might sentence him to death. There is nothing in the record after the State's response to the presentencing order and before the judge's remarks at the end of the hearing to indicate that the judge contemplated death as a possible sentence or to alert the parties that the real issue they should have been debating at the hearing was the choice between life and death. Moreover, the presentencing order was comparable to a pretrial order limiting the issues to be tried, such that it was reasonable for the defense to assume that there was no reason to present argument or evidence directed at whether the death penalty was either appropriate or permissible. If defense counsel had had fair notice that the judge was contemplating a death sentence, presumably she would [500 U.S. 110, 111] have advanced arguments at the sentencing hearing addressing the aggravating circumstances identified by the judge and his reasons for disbelieving Lankford; she did not make these and other arguments, because they were entirely inappropriate in a discussion about the length of Lankford's incarceration. Thus, it is unrealistic to assume that the notice provided by statute and the arraignment survived the State's response to the presentencing order. The trial judge's silence following that response had the practical effect of concealing from the parties the principal issues to be decided at the hearing, and thereby created an impermissible risk that the adversary process may have malfunctioned in this case. Cf. Gardner v. Florida, 430 U.S. 349, 360 . Pp. 119-128.
116 Idaho 279, 775 P.2d 593, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, O'CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and SOUTER, JJ., joined, post, p. 128.
Joan Marie Fisher argued the cause for petitioner. With her on the briefs was Timothy K. Ford.
Larry EchoHawk, Attorney General of Idaho, argued the cause for respondent. With him on the brief were James T. Jones, former Attorney General, and Lynn E. Thomas, Solicitor General.
JUSTICE STEVENS delivered the opinion of the Court.
We granted certiorari to decide whether the sentencing process followed in this capital case satisfied the requirements of the Due Process Clause of the Fourteenth Amendment. 1 More narrowly, the question is whether, at the time of petitioner's sentencing hearing, he and his counsel had adequate notice that the judge might sentence him to death.
The unique circumstance that gives rise to concern about the adequacy of the notice in this case is the fact that, pursuant to court order, the prosecutor had formally advised the trial judge and the petitioner that the State would not recommend the death penalty. To place this circumstance in [500 U.S. 110, 112] proper perspective, it is necessary to relate the procedural history of the case.
On or about June 21, 1983, Robert and Cheryl Bravence were killed at their campsite near Santiam Creek, Idaho. On December 1, 1983, the State filed an information charging petitioner with the crime of first-degree murder. The first count alleged that Robert Bravence had been beaten to death and the second count alleged that Cheryl Bravence had been killed in the same way. Identical charges were also filed against petitioner's older brother, Mark. At the arraignment, the trial judge advised petitioner that "the maximum punishment that you may receive if you are convicted on either of the two charges is imprisonment for life or death." App. 14.
After the arraignment, petitioner's appointed counsel entered into plea negotiations with the prosecutor. During these negotiations, petitioner agreed to take two lie-detector tests. Although the results of the tests were not entirely satisfactory, they convinced the prosecutor that petitioner's older brother Mark was primarily responsible for the crimes, and was the actual killer of both victims. Id., at 193. The parties agreed on an indeterminate sentence with a 1-year minimum in exchange for a guilty plea, subject to a commitment from the trial judge that he would impose that sentence. In February, 1984, the judge refused to make that commitment. In March, the case went to trial. The State proved that petitioner and his brother Mark decided to steal their victims' Volkswagen van. Petitioner walked into the Bravences' campsite armed with a shotgun and engaged them in conversation. When Cheryl left and went to a nearby creek, Mark entered the campsite, ordered Robert to kneel down, and struck him on the head with a nightstick. When Cheryl returned, Mark gave her the same order, and killed her in the same manner. See State v. Lankford, 113 Idaho 688, 691, 747 P.2d 710, 713 (1987). [500 U.S. 110, 113]
Petitioner testified in support of a defense theory that he was only an accessory after the fact. 2 The jury was instructed, however, that evidence that petitioner "was present, and that he aided and abetted in the commission of the crime of robbery" was sufficient to support a conviction for first-degree murder. App. 16. 3 The trial judge refused [500 U.S. 110, 114] to instruct the jury that a specific intent to kill was required. 4 The jury found petitioner guilty on both counts.
At the prosecutor's request, the sentencing hearing was postponed until after the separate trial of petitioner's brother was concluded. The sentencing was first set for June 28, 1984, and later reset for October, 1984. In the interim, pursuant to petitioner's request, on September 6, 1984, the trial court entered an order requiring the State to notify the court and the petitioner whether it would ask for the death penalty, and if so, to file a statement of the aggravating circumstances on which it intended to rely. 5 A week later, the State filed this negative response:
At the sentencing hearing on October 12, 1984, 8 there was no discussion of the death penalty as a possible sentence. The prosecutor [500 U.S. 110, 116] offered no evidence. He relied on the trial record, explained why he had not recommended the death penalty, 9 and ultimately recommended an indeterminate life sentence with a minimum of "somewhere between ten and 20 years." Id., at 104. The defense put on a number of witnesses who testified that petitioner was a nonviolent person, but that he was subject to domination by his brother Mark, who had violent and dangerous propensities. Id., at 95-97. In her argument in mitigation, defense counsel stressed these facts, as well as the independent evidence that Mark was the actual killer. She urged the court to impose concurrent, indeterminate life sentences, which would make petitioner eligible for parole in 10 years, less the time he had already served. She argued against consecutive indeterminate sentences which would have amounted to a 20-year term, or a fixed-life term that would have amounted to a 40-year minimum. She made no reference to a possible death sentence.
At the conclusion of the hearing, the trial judge made a rather lengthy statement in which he indicated that he considered petitioner's testimony unworthy of belief and that the seriousness of the crime warranted more severe punishment than that which the State had recommended. Id., at 114-118. At the beginning of this lengthy statement, he described the options available to the court, including the indeterminate [500 U.S. 110, 117] life sentence recommended by the State, "or a fixed life sentence for a period of time greater than the number of years he would serve on an indeterminate life sentence, i.e., ten. For example, a fixed term of 40 years or death or a fixed life sentence." 10 Id., at 114. He concluded by saying that he would announce his decision on the following Monday.
On that Monday, the trial judge spent the entire day conducting the sentencing hearing in Mark's case. At 9:38 p.m., he reconvened petitioner's sentencing hearing. After a preliminary colloquy, he read his written findings and sentenced petitioner to death. These findings, some of which were repeated almost verbatim in his later order sentencing Mark to death, repeatedly reflected the judge's opinion that the two brothers were equally culpable. 11 [500 U.S. 110, 118]
Petitioner sought postconviction relief on a variety of grounds, including a claim that the trial court violated the Constitution by failing to give notice of its intention to impose the death sentence in spite of the State's notice that it was not seeking the death penalty. Id., at 168. The trial court held that the Idaho Code provided petitioner with sufficient notice, and that the prosecutor's statement that he did not intend to seek the death penalty had "no bearing on the adequacy of notice to petitioner that the death penalty might be imposed." Id., at 200. Petitioner's request for relief on this claim was therefore denied. Id., at 201.
In a consolidated appeal, the Idaho Supreme Court affirmed petitioner's conviction and sentence and also affirmed the denial of postconviction relief. On the notice issue, the Court concluded that the express advice given to petitioner at his arraignment, together with the terms of the statute, were sufficient. State v. Lankford, 113 Idaho at 697, 747 P.2d at 719.
One Justice dissented from the affirmance of petitioner's sentence. Id., at 705, 747 P.2d at 727. Relying on the absence of any contention that petitioner struck any of the fatal blows, and the fact that the evidence concerning petitioner's intent was equivocal, he concluded that the sentence was invalid under our decisions in Enmund v. Florida 12 and Tison v. Arizona, 13 as well as under the Idaho cases that the majority had considered in its proportionality review. 14 [500 U.S. 110, 119]
This Court granted certiorari, vacated the judgment, and remanded the case to the Idaho Supreme Court for further consideration in light of Satterwhite v. Texas, 486 U.S. 249 (1988); 486 U.S. 1051 (1988). On remand, by a vote of 3 to 2, the court reinstated its earlier judgment. 116 Idaho 279, 775 P.2d 593 (1989). We again granted certiorari, 498 U.S. 919 (1990), to consider the question raised by the trial court's order concerning the death penalty and the State's response thereto.
Before discussing the narrow legal issue raised by the special presentencing order and the State's response, it is useful to put to one side certain propositions that are not in dispute in this case. As a matter of substantive Idaho law, the trial judge's power to impose a sentence that is authorized by statute is not limited by a prosecutor's recommendation. Thus, petitioner does not argue that the State made a formal waiver that limited the trial judge's authority to impose the death sentence. The issue is one of adequate procedure, rather than of substantive power. Conversely, the State does not argue that a sentencing hearing would be fair if the defendant and his counsel did not receive adequate notice that he might be sentenced to death. The State's argument is that the terms of the statute, plus the advice received at petitioner's arraignment, provided such notice. This argument would plainly be correct if there had not been a presentencing order, or if similar advice had been given after petitioner received the State's negative response and before the sentencing hearing commenced.
As a factual matter, it is also undisputed that the character of the sentencing proceeding did not provide the petitioner with any indication that the trial judge contemplated death as a possible sentence. A hearing to decide whether the sentences should be indeterminate or fixed, whether they should run concurrently or consecutively, and what period of imprisonment was appropriate, would have proceeded in exactly the [500 U.S. 110, 120] same way as this hearing did. Indeed, it is apparent that the parties assumed that nothing more was at stake. There is nothing in the record after the State's response to the presentencing order and before the trial judge's remark at the end of the hearing that mentioned the possibility of a capital sentence. During the hearing, while both defense counsel and the prosecutor were arguing the merits of concurrent or consecutive, and fixed or indeterminate, terms, the silent judge was the only person in the courtroom who knew that the real issue that they should have been debating was the choice between life or death.
The presentencing order entered by the trial court requiring the State to advise the court and the defendant whether it sought the death penalty, and if so, requiring the parties to specify the aggravating and mitigating circumstances on which they intended to rely, was comparable to a pretrial order limiting the issues to be tried. The purpose of such orders is to eliminate the need to address matters that are not in dispute, and thereby to save the valuable time of judges and lawyers. For example, if the State had responded in the affirmative and indicated an intention to rely on only three aggravating circumstances, the defense could reasonably have assumed that the evidence to be adduced would relate only to those three circumstances, and therefore, the defense could have limited its preparation accordingly. Similarly, in this case, it was surely reasonable for the defense to assume that there was no reason to present argument or evidence directed at the question whether the death penalty was either appropriate or permissible. Orders that are designed to limit the issues would serve no purpose if counsel acted at their peril when they complied with the orders' limitations.
It is, of course, true that this order did not expressly place any limits on counsel's preparation. The question, however, is whether it can be said that counsel had adequate notice of the critical issue that the judge was actually debating. Our [500 U.S. 110, 121] answer to that question must reflect the importance that we attach to the concept of fair notice as the bedrock of any constitutionally fair procedure. Justice Frankfurter eloquently made this point in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951):
One of the arguments that petitioner's counsel could have raised had she known the death penalty was still at issue pertained to a concern voiced by the dissenting Justice in the Idaho Supreme Court, who was troubled by the question whether Bryan Lankford's level of participation met the standard described in Enmund v. Florida, 458 U.S. 782 (1982), Tison v. Arizona, 481 U.S. 137 (1987), and several Idaho cases. 16 The dissenting Justice described the majority's [500 U.S. 110, 123] opinion as having mischaracterized the trial court's findings as to Bryan Lankford's state of mind. State v. Lankford, 113 Idaho 688, 706, 747 P.2d 710, 728 (1987). The factual dispute over the record, combined with the dissenting Justice's reliance on Idaho cases, demonstrates that petitioner failed to make an argument that, at least as a matter of state law, might have influenced the trial judge's deliberations. There was, however, no point in making such an argument if the death penalty was not at issue.
One of the aggravating circumstances that the trial judge found as a basis for his sentence was that the "murders of the Bravences were especially heinous, atrocious or cruel, and manifested exceptional depravity." App. 156-157. Even if petitioner had been the actual killer, it is at least arguable that the evidence was insufficient to support this finding. 17 If petitioner was not the actual killer, this finding was even more questionable. The point, however, is that petitioner's counsel had no way of knowing that the court was even considering such a finding, and therefore she did not discuss that possibility at the sentencing hearing. It is unrealistic to assume that the notice provided by the statute and the arraignment survived the State's response to an order that would have no purpose other than to limit the issues in future proceedings.
In view of the fact that the trial Judge's sentence appears to rest largely on his disbelief of petitioner's testimony 18 and [500 U.S. 110, 124] consequent conclusion that he was just as culpable as his brother, the omission of certain factual evidence takes on special significance. In her postconviction motion, petitioner's counsel represented that the results of two polygraph examinations demonstrated that petitioner was truthful in his testimony concerning "his lack of participation in, or knowledge of, the killings." App. 170. Such evidence is inadmissible in Idaho in an ordinary case, and therefore, appropriately, was not offered at the sentencing hearing. Petitioner argues, however, that under the teaching of our decision in Lockett v. Ohio, 438 U.S. 586 (1978), 19 such evidence would be admissible in a capital sentencing proceeding. Whether petitioner would ultimately prevail on this argument is not at issue at this point; rather, the question is whether inadequate notice concerning the character of the hearing frustrated counsel's opportunity to make an argument that might have persuaded the trial judge to impose a different sentence, or at least to make different findings than those he made.
At the very least, this is a case in which reasonable judges might differ concerning the appropriateness of the death sentence. It is therefore a case in which some of the reasoning that motivated our decision in Gardner v. Florida, 430 U.S. [500 U.S. 110, 125] 349 (1977), is applicable. In that case, relying partly on the Due Process Clause of the Fourteenth Amendment and partly on the Eighth Amendment's prohibition against cruel and unusual punishment, the Court held that a procedure for selecting people for the death penalty that permits consideration of secret information about the defendant is unacceptable. The plurality opinion, like the opinion concurring in the judgment, 20 emphasized the special importance of fair procedure in the capital sentencing context. We emphasized that "death is a different kind of punishment from any other which may be imposed in this country." Id., at 357. 21 We explained: [500 U.S. 110, 126]
Without such notice, the Court is denied the benefit of the adversary process. As we wrote in Strickland v. Washington, 466 U.S. 668 (1984):
The judgment of the Idaho Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
[ Footnote 2 ] The Idaho Supreme Court explained:
Mark "hit [Mr. Bravence] over the head with a thing about a foot long, which is a little club that he has had for a long time. . . . He hit him both times in the back of the neck, actually. Not in the head. Kind of across, you know, across the neck in the back (indicating). . . . Next the lady came up. Mrs. Bravence came up from the river and saw her husband laying there, and Mark told her to get on the ground. . . . Mark hit her apparently, it looked like to me, in the same place." 4 Tr. 705-707.
[ Footnote 3 ] "Based upon that statute, it is therefore not necessary that the State prove that this defendant actually committed the act which caused the death of the victims, provided the State prove beyond a reasonable doubt that the defendant was present, and that he aided and abetted in the commission of the crime of robbery as alleged, or that, if he was not present, that he advised and encouraged the commission of such crime." App. 16.
[ Footnote 4 ] 5 Tr. 833-834; 1 Record 239-242.
[ Footnote 5 ] The court order provided:
[ Footnote 6 ] The judge explained that, because petitioner's counsel had the preliminary hearing transcript, the trial tapes, and the option of consulting with former defense counsel, she had "all of the information . . . that [she] need[ed] to adequately prepare for sentencing." Id., at 60.
[ Footnote 7 ] The dissent relies on the judge's comment at the April 5, 1984 hearing, at which he had indicated that the death penalty was still a possibility, regardless of which sentence the State might ultimately recommend, see post at 132, to support its argument that counsel should have known that the death penalty was still at issue. It should be noted not only that the judge's comment was made prior to the State's response of September 13, 1984, that it would not be seeking the death penalty, but also that the information was imparted to petitioner's former counsel. See Tr. of Oral Arg. 25-27. The information was never given to the counsel who actually represented petitioner during his sentencing, and who was required to proceed without a transcript of the earlier hearing. See id. at 43.
The dissent also suggests that petitioner should have been aware that the judge was still considering the death penalty as a possibility when he ordered a presentence investigation at the April 5, 1984, hearing, see post at 132-133, but of course, that, too, was ordered prior to the State's response of September 13, 1984, in which the State confirmed that it would not be seeking the death penalty. Moreover, there is nothing unusual about ordering a presentence investigation prior to a sentencing.
[ Footnote 8 ] In Idaho, sentencing in both capital and noncapital cases is done by the trial judge alone. See Idaho Code 19-2515 (1987).
[ Footnote 9 ] "Those things, all taken together, in my view and, apparently, in the jury's view, ultimately resulted in a death occurring as part of a robbery and makes Bryan guilty of murder in the first degree. If it were not for the Felony Murder Rule, there would be a difficulty in the proof in this case and in the conviction of Bryan Lankford, but it was, and that was the law. Bryan does stand, then, convicted of two counts of first degree murder for his participation. I tend to generally believe the witnesses from Texas, the family members, and I have believed this for a long time: that Bryan has traditionally been a pretty good person, except when he's been around Mark. Those are the reasons, the bottom line, what his family says about him as to why he would not and I would not and did not earlier recommend the death penalty, as the Court required, to be a filed document." App. 101-102; see id. at 191.
[ Footnote 10 ] He continued:
[ Footnote 11 ] For example:
[ Footnote 12 ] 458 U.S. 782, 801 (1982) ("For purposes of imposing the death penalty, [defendant's] criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt").
[ Footnote 13 ] 481 U.S. 137, 158 (1987) ("[M]ajor participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement").
[ Footnote 14 ] See, e.g., State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985); State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985); State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985); State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985).
[ Footnote 15 ] The statutory aggravating circumstances, identified by the trial judge for the first time when he sentenced Bryan Lankford to death, were:
[ Footnote 16 ] See, e.g., State v. McKinney, 107 Idaho 180, 186, 687 P.2d 570, 576 (1984) ("The difference in the degrees of participation in the actual killing justifies the differences in the sentences"); State v. Small, 107 Idaho 504, 506, 690 P.2d 1336, 1338 (1984) (Codefendants "had different backgrounds [500 U.S. 110, 123] and played different parts in the commission of the crime. Under these circumstances, the disparity in the sentences was justified").
[ Footnote 17 ] "A person of ordinary sensibility could fairly characterize almost every murder as `outrageously or wantonly vile, horrible and inhuman.'" Godfrey v. Georgia, 446 U.S. 420, 428 -429 (1980).
[ Footnote 18 ] In his statement toward the end of the sentencing hearing, the judge described Bryan Lankford as follows: "[H]e is a liar, and he is an admitted liar. He's a deceitful individual." App. 116.
[ Footnote 19 ] "[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S., at 604 (footnotes omitted).
[ Footnote 20 ] In his opinion concurring in the judgment, JUSTICE WHITE made it plain that the holding in Gardner applied only in capital cases.
[ Footnote 21 ] "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the 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) (opinion of Stewart, Powell, and STEVENS, JJ.) (footnote omitted).
[ Footnote 22 ] Baldwin v. Hale, 1 Wall. 223, 233 (1864) ("Common justice requires that no man shall be condemned in his person or property without notice and an opportunity to make his defense"); In re Oliver, 333 U.S. 257, 273 (1948) (due process requires that a person be given "reasonable notice of a charge against him, and an opportunity to be heard in his defense . . . to examine the witnesses against him, to offer testimony, and to be represented by counsel"). In a variety of contexts, our cases have repeatedly emphasized the importance of giving the parties sufficient notice to enable them to identify the issues on which a decision may turn. See, e.g. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"); Armstrong v. Manzo, 380 U.S. 545, 549 -550 (1965) (failure to notify petitioner of pendency of adoption proceedings deprived him of due process of law); Goss v. Lopez, 419 U.S. 565, 579 (1975) ("students facing suspension . . . must be given some kind of notice and afforded some kind of hearing"); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) ("The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story"). In the capital context, in which the threatened loss is so severe, the need for notice is even more pronounced.
JUSTICE SCALIA, with whom CHIEF JUSTICE REHNQUIST, JUSTICE WHITE, and JUSTICE SOUTER join, dissenting.
The Court holds that Lankford's due process rights were violated because he did not receive adequate notice that his sentencing hearing could result in the death penalty. I disagree.
Lankford knew that he had been convicted of first-degree murder, and Idaho Code 18-4004 (1987) clearly states that "every person guilty of murder of the first degree shall be punished by death or by imprisonment for life." At arraignment the presiding judge, after reading aloud the substantive code provisions and describing the charges, told Lankford: "[T]he maximum punishment that you may receive if you are convicted on either of the two charges is imprisonment for life or death. Do you understand . . . ?" 7 Record 15. Lankford stated that he did. Ibid.
The Court's theory is that the unquestionable constitutional adequacy of this notice was destroyed by the judge's later order that the State indicate its intentions with regard to sentencing and the prosecutor's consequent statement that the State would not seek the death penalty. That theory would perhaps be correct if there was any reasonable basis for Lankford or his counsel to believe that the sentence could not exceed the prosecutor's recommendation. But plainly there was not.
The Idaho death penalty statute places full responsibility for determining the sentence upon the judge. It directs that, "[w]here the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be [500 U.S. 110, 129] presented outweigh the gravity of any aggravating circumstance." Idaho Code 19-2515(c) (1987) (emphasis added). Moreover, the finding of a statutory aggravating circumstance is not dependent upon any presentation by the prosecution. Under Idaho law, "[e]vidence admitted at trial shall be considered and need not be repeated at the sentencing hearing." Idaho Code 19-2515(d). Anyone familiar with Lankford's case and Idaho law should have recognized immediately that the judge would necessarily find at least one statutory aggravating circumstance, for the jury's guilty verdict on the two separate murder counts established that, "[a]t the time the murder was committed the defendant also committed another murder," Idaho Code 19-2515(g)(2). 1 Thus, the judge would be bound by law, see 19-2515(e), to weigh all mitigating and aggravating circumstances and to impose the death penalty unless the former outweighed the latter. Moreover, since an aggravating circumstance would necessarily have been found, in the event that Lankford did not receive the death penalty, the court would be required to "detail in writing its reasons" for giving a lesser sentence. Ibid. No provision of the Idaho Code suggests that these duties placed upon the judge by 19-2515 dissolve upon the State's recommending a lower sentence. [500 U.S. 110, 130]
Not only is Idaho statutory law clear on its face, but Idaho case law confirms it. In State v. Rossi, 105 Idaho 681, 672 P.2d 249 (App. 1983), the defendant claimed an abuse of discretion when the trial court sentenced him to a term of imprisonment twice as long as the prosecutor had recommended. The Idaho Court of Appeals stated:
The Court nevertheless holds that Lankford reasonably concluded from the judge's September 6 order and the State's response that the death penalty did not remain an issue. "The presentencing order," the Court says, ". . . was comparable to a pretrial order limiting the issues to be tried." Ante at 120. To say that is simply to assume the conclusion. Assuredly, despite the clarity of Idaho law, if the judge explicitly limited the issues to be considered at sentencing, or in some other way indicated that he would not exceed the prosecutor's recommendation, Lankford would have a case. But was it reasonable to view the September 6 order as "a pretrial order limiting the issues to be tried"? A pretrial order having such preclusive effect is typically entered pursuant to a rule or statute that says it will be preclusive. See, e.g., [500 U.S. 110, 131] Fed.Rule Civ.Proc. 16(e). When an order is not entered pursuant to such a provision, as was the case here, one would expect the order itself to specify its preclusive effect, if any. But the present order said only that the prosecutor must state his intentions. It seems to me that the absolute limit of preclusion even inferable from that order was that the prosecutor, if he did not express the intention to seek the death penalty, would not be permitted to argue for it at the sentencing hearing. The consequence of that, of course, would be that the death penalty would be less likely to be imposed, since no one would be pressing it upon the judge and defense counsel's arguments against it would go unanswered. But neither explicitly in the order, nor as an inference of the order, nor even as a consequence of an inference, does it appear that the judge would be entirely precluded from imposing the death penalty. There was simply no basis for thinking that.
But perhaps it could be argued that, even though the judge was not legally bound by the prosecutor's recommendation against the death penalty, his entry of the order indicated he intended (contrary to Idaho law) to be bound, and that he should be held to that indicated intent by a sort of promissory estoppel. Even as a factual matter, that argument has no support. If the judge had entered the order on his own initiative, one might think "Why else would he demand to know the State's position in advance unless he intended to accept it?" In fact, however, it was not the judge, but defense counsel, who asked that the State make its intentions clear.
In sum, it was clear that the death penalty remained at issue in the sentencing hearing, and there is no basis for the contention that the judge "misled" Lankford to think otherwise. Since that is so, today's decision creates a vast uncertainty in the law. If defendants are no longer to be held to knowledge of the law, or if their unreasonable expectations are henceforth to be the criteria of the process which is their due, the lawfulness and finality of no conviction or sentence can be assured. The defense created by the Court today will always be available, its success to be limited by factors we will presumably seek to identify in a series of future cases that will undertake the impossible task of explaining how much ignorance of the law, or how much unreasonableness of expectation, is too much.
The Court believes, and I have assumed up to this point, that Lankford and his counsel did detrimentally rely upon the State's declaration, i.e., that they did believe, albeit unreasonably, that the death penalty was foreclosed as an option at sentencing. It is far from clear, however, that that was so, [500 U.S. 110, 134] and I do not believe that Lankford has carried the burden of establishing it.
The reality that the death penalty was not foreclosed as a matter of law was so clear - from the Idaho statutes, from the case law, and even from the judge's explicit statement that the death-sentence "inquiry" would have to be held - that it is difficult to believe counsel thought otherwise. Counsel clearly did not believe that the prosecutor's recommendation established the permissible maximum with regard to a sentence less than death. For though the prosecutor, who spoke first at the sentencing hearing, recommended the minimum sentence of life imprisonment with possibility of parole in 10 to 20 years, Lankford's counsel argued specifically against life imprisonment without possibility of parole. 8 Record 329. It is conceivable, I suppose, that counsel thought the judge possessed legal authority to exceed the prosecutor's recommendation in that respect, but not in respect of imposing death; but the possibility of baseless belief that Idaho law contained such peculiar asymmetry is surely remote.
There remains, of course, the possibility that counsel genuinely (though unreasonably) believed, because of the September 6 order, that the death penalty had been precluded not in law, but as a matter of the judge's intentions. But there is some indication that even this was not so. The judge, in his lengthy statement at the end of the sentencing hearing - concluding with the announcement that he would not sentence immediately but would take the matter under advisement - stated that the available sentences included "[f]or example, a fixed term of 40 years or death or a fixed life sentence. So there are a great number of possibilities available to this Court." Id., at 330 (emphasis added). If Lankford's counsel believed that the defense had been given assurance that the death penalty was (at least as a practical matter) out of the case, one would have expected a shocked objection at this point. None was made - though counsel was aggressive [500 U.S. 110, 135] enough in objecting to another portion of the judge's concluding statement, two pages later in the transcript, that the judge interrupted with "Counsel, I'm not here to argue with you." Id., at 332.
The only evidence supporting detrimental (albeit unreasonable) reliance is the fact that counsel's presentation at the sentencing hearing did not specifically address the death penalty. That is not terribly persuasive evidence, since all the arguments made against a life sentence or a minimum term of more than 10 years would apply a fortiori against a sentence of death. In any event, counsel's presentation was entirely consistent with (1) belief that the death penalty was not entirely ruled out, but simply an overwhelmingly unlikely possibility, plus either (2) a tactical decision not to create the impression, by arguing the point, that that option was even thinkable, or (3) sheer negligence. If it was the last, Lankford may have a claim for ineffective assistance of counsel, which can be raised in a petition for habeas corpus. But he has not carried the burden of sustaining the claim made here.
[ Footnote 1 ] Evidence at trial also established that the camping couple whom the Lankford brothers killed offered no provocation or resistance, that their skulls were brutally smashed while they were kneeling in a position of submission, that they were driven - dead or mortally injured - into a remote area where their bodies were hidden under branches and other debris and remained undiscovered until three months later. State v. Lankford, 113 Idaho 688, 691-692, 747 P.2d 710, 713 (1987). Thus, reasonable defense counsel would also have anticipated that a sentencer might well find additional statutory aggravating circumstances, see Idaho Code 19-2515(g)(5) (1987) (aggravating circumstance that the murder was "especially heinous atrocious or cruel, manifesting exceptional depravity"); Idaho Code 19-2515(g)(6) (aggravating circumstance that "the defendant exhibited utter disregard for human life").
[ Footnote 2 ] The majority, ante at 115, n. 7, notes that "the judge's comment was made prior to the State's response." I fail to see how that is relevant. The court's statement was that the death penalty procedures would be followed "whether or not the state intends to pursue the death penalty." 7 Record 56 (emphasis added).
As the Court also notes, ante at 115, n. 7, Lankford obtained new counsel after this discussion. However, I think the knowledge of the first counsel (Mr. Longeteig) should be imputed to the second counsel (Ms. Fisher). It was obviously Ms. Fisher's duty to inform herself of all relevant circumstances, including the knowledge of Mr. Longeteig. That should not have been difficult, as the judge specifically ordered Mr. Longeteig to remain in the case and be at Ms. Fisher's "beck and call," 8 Record 25, to assist her in preparing for sentencing. If Ms. Fisher failed to ask him about the death penalty, that cannot be labelled a due process violation attributable to the State. [500 U.S. 110, 136]