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Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 O'Connor gave the Court a pro-death penalty majority when dealing with the certiorari petitions and writs of habeas corpus of those sentenced to die. According to the Supreme Court rules of conduct, when issuing a stay of execution, the justices are required to have a majority, (five votes) to grant the stay. In order to give the minority of the court a voice in the acceptance of petitions of certiorari, only four votes are required to accept the petition. This practice is commonly known as "the rule of four" (Lazarus 1998). The Court must be careful not to indicate prematurely the outcome of a case. If the Court's acceptance of certiorari petitions required a five-person majority vote, its acceptance or denial of a certiorari petition would insinuate the direction the Court was planning to rule. In a majority of cases, trial courts in the individual death penalty states sentence the defendant to die on a certain date. After the trial court's ruling, unless a state or federal appellate court grants a stay of execution, the death sentence is carried out on its scheduled date. When the defendant's case reaches the Supreme Court, the justices in the anti-death penalty minority must recruit members of the pro-death penalty majority in order for a petition of certiorari to truly be considered. Even if the Court's anti-death penalty minority is able to collect the necessary four votes to grant review of a defendant's petition, unless the case receives the majority fifth vote to stay execution, the defendant will die with his or her case pending on the Court's docket. The Supreme Court's acceptance of a petition of certiorari will not stop a state from carrying out an execution. Only the vote of five Justices to grant a stay of execution can force a state to not flip the switch. Just such a scenario became reality in the case of Alpha Stephens. Stephens was a black man sentenced to die in Georgia for killing a white man. The case received the attention of the Legal Defense Fund (LDF) and the National Association for the Advancement of Colored People (NAACP). Both organizations had just sponsored an in-depth investigation into the 2400 post-Furman v. Georgia homicides occurring in Georgia. The investigation, labeled the Baldus study (after its author David Baldus of the University of Iowa,) concluded that Georgia's system for death penalty sentencing established by Gregg v. Georgia was not necessarily biased against black defendants, but biased against those who committed crimes against whites. In the book Closed Chambers, Edward Lazarus writes, "The study further revealed that the victim's race played an especially powerful role in 'mid-range' cases.. .For these cases, in which prosecutors and juries wielded the most discretion, a defendant who killed a white person faced odds of receiving the death penalty as much as 30 percent higher than if the victim were black" (Lazarus 1998). Stephens's attorneys wanted to use the study as part of their second federal habeas petition. The petition claimed that Stephen's sentence was racially motivated. The Eleventh Circuit Court ruled that Stephens's lawyers should have used the Baldus study on their first federal habeas peti- tion. The judge felt that to accept such a study on the second petition would be what Sawyer considered an obvious abuse of the habeas writ. The judge decided not to consider the nature of Stephens's claim, and he immediately denied Stephens's petition and vacated his stay, based on this "abuse of writ" doctrine. Under the before mentioned Sawyer v. Whitley opinion: the federal judiciary can deny all cases that involve; (1) "successive claims covering the ground of earlier petitions," (2) "new claims which were not raised earlier through inexcusable neglect," or (3) "procedurally defaulted claims in which the petitioner failed to comply with state procedural rules." The federal judiciary can now automatically deny all petitions that fall under these three categories. An exception is only made if the petition proves that the case contains a "fundamental miscarriage of justice" (Sawyer v. Whitley 1992). At the point of desperation, Stephens's attorneys appealed to the Supreme Court to overturn the Eleventh Circuit's denial and grant a temporary stay of execution. The Eleventh Circuit Court was currently in the process of deciding the case of McCleskey v. Zant 1991. McCleskey also dealt directly with the Baldus Study, and Stephens's attorneys wanted to convince the Supreme Court that the McCleskey outcome would determine whether the statistics brought forth in the Baldus Study were valid in proving racial bias. On the vote of five Justices (Brennan, White, Marshall, Blackmun, and Stevens), the Supreme Court granted Stephens a stay of execution. The justices felt that the pending decision on the validity of the Baldus study in McCleskey would directly apply to Stephens's case as well. With a stay in place, Stephens filed a certiorari petition that asked the Court to ignore the "abuse of writ" decision by the Circuit Court and to hear his habeas petition. Something odd happened when the Justices met in conference to consider Stephens's petition. Justice's White and Blackmun voted to deny the certiorari petition even though they had just voted to grant Stephens a stay. The change in opinion of White and Blackmun left Stephens's certiorari petition one vote short of the four necessary votes to be accepted by the Court. When the Court announced its denial of the certiorari petition, the stay was automatically lifted and Stephens was again moving toward his scheduled execution. Stephens's attorneys appealed to the Court one last time with a third federal habeas petition that challenged the jury instructions at Stephens's original trial. The Court's anti-death penalty minority was eventually able to convince Justice Blackmun to change his mind and vote to grant the certiorari petition. However, these four votes were still not enough to re-instate a stay of execution; a stay would require Justice White to change his mind as well. However, Justice White stuck to his decision to deny the stay. On December llth, the day of Stephens's execution, Stephens was put to death in the electric chair with the Supreme Court never hearing the certiorari petition they had voted to accept. In the capital punishment appeals process, the minority 39 |