# Lankford v. Idaho

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## Dissenting Opinion

    Scalia
United States Supreme Court
500 U.S. 110
Bryan Stuart Lankford, Petitioner v. Idaho
No. 88-7247 Argued: Feb. 19, 1991. --- Decided: May 20, 1991
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.
Held: 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 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, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393. 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.
Joan Marie Fisher, Genessee, Idaho, for petitioner.
Larry EchoHawk, Boise, Idaho, for respondent.
Justice STEVENS delivered the opinion of the Court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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