1. The Honorable Guido Calabresi, remarks on the occasion of his swearing in as a Judge of the US Court of Appeals for the Second Circuit (Sep 6, 1994), reprinted in Yale Law Report 5, 6 (Fall 1994).

2. Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (Yale U Press, 1975)Google Scholar.

3. Cover, , Justice Accused at 119 (cited in note 2)Google Scholar.

4. Id at 8-32.

5. Id at 28, 29.

6. Id at 34.

7. Id.

8. Cover, Robert M., Book Review, 68 Colum L Rev 1003, 1005 (1968)Google Scholar (reviewing Hildreth, Richard, Atrocious Judges: Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression (New York, 1856)Google Scholar). Cover continued:

Yet, any man in the mid-twentieth century who is not wary of making secular law to [sic] the only standard for human conduct cannot have learned the brutal lessons of Hitler and Stalin. A century ago the abolitionists knew well the danger of obedience to, let alone enforcement of, law which violates all that is worthwhile in human community. Today the lesson ought to be clearer still. Therefore, if we can not expect moral guidance from our judges we must seek to attune them to the grave dangers of oppressive laws unthinkingly executed.

Id. Cover wrote his book review as a polemic against the Vietnam war and judicial complicity in upholding the convictions of draft resisters. “Hildreth wrote his little book in order to hold a mirror to the American judiciary. … The mirror is again necessary.” Id at 1008.

With regard to capital punishment, Cover's words ring true today no less than when they were written. Some, including this author, believe that the death penalty in this country is arbitrarily and discriminatorily imposed, most often on poor defendants who are provided inadequate counsel at trial and on appeal, and no counsel of right on collateral review. See, for example, Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L J 1835 (1994). While I do not expect this article to change the course of capital punishment jurisprudence, I hope that it will serve as a “mirror to the American judiciary, ” by illuminating the problematic nature of death penalty adjudication and placing our nation's capital punishment jurisprudence within a broader historical framework.

9. Excerpts from Senate Hearings on Supreme Court Nominee, NY Times A16 (07 13, 1994)Google Scholar.

10. Federal News Service, July 13, 1994 Capitol Hill Hearing, Hearing of the Senate Judiciary Committee, Supreme Court Confirmation Hearing for Judge Stephen G. Breyer, available on LEXIS.

11. Cover, , Justice Accused at 211 (cited in note 2)Google Scholar.

12. Id.

13. Id.

14. Id at 150.

15. Id at 150-54. Thus William Garrison, writing in the Liberator, urged Chief Justice Shaw to resign: “[H]e had it in his power, and as an honest and humane man was duty bound, to resign his office and to bear his testimony against all such legal diabolism. … Villainy is still villainy though it be pronounced equity in the statute book.” Id at 170 (quoting the Liberator at 3, Nov 4, 1842).

16. Id at 154-58.

17. Id at 212.

18. Proponents of capital punishment criticize the system-and defense attorneys who take advantage of it-for this very reason. See, for example, Coleman v Balkcom, 451 US 949, 956 (1981) (Rehnquist dissenting from denial of certiorari).

19. Cover, , 68 Colum L Rev at 1006 (cited in note 8)Google Scholar.

20. See text accompanying notes 9-10.

21. Ledewitz, Bruce, An Essay Concerning Judicial Resignation and Non-Cooperation in the Presence of Evil, 27 Duquesne L Rev 1, 3 (1988)Google Scholar (applying Cover's paradigm and advocating resignation of modern abolitionist and pro-life judges). See also Paulsen, Michael S., Accusing Justice: Some Variation on the Themes of Robert M. Cover's Justice Accused, 7 J Law & Relig 33, 52-63, 78–79 (1989)CrossRefGoogle Scholar (arguing that pro-life judges should either resign or recuse themselves from cases in which the law requires affirmance of the right to abortion).

22. Forer, Lois G., The Role of Conscience in Judicial Decision-Making, in Witte, John Jr. & Alexander, Frank S., eds, The Weightier Matters of the Law: Essays on Law & Religion 285, 301 n 35 (Scholars Press, 1988)Google Scholar.

23. Id.

24. Ledewitz, , 27 Duquesne L Rev at 2 (cited in note 21)Google Scholar.

25. Cover, , Justice Accused at 211–12 (emphasis added) (cited in note 2)Google Scholar.

26. Id at 212.

27. Id.

28. See Witherspoon v Illinois, 391 US 510 (1968); Wainwright v Witt, 469 US 412 (1985). The Supreme Court's decision in Prigg v Pennsylvania, 41 US 539 (1842), similarly restricted the ability of abolitionists to appeal to jurors' morality in fugitive slave cases. See Burt, Robert A., The Constitution in Conflict 177 (Belknap Press, 1992)Google Scholar (describing Story's opinion in Prigg as “aimed … at the overall litigation agenda of the antislavery bar”).

29. Cover, , Justice Accused at 214–15 (cited in note 2)Google Scholar.

30. See, for example, Lockett v Ohio, 438 US 586 (1978).

31. Burt, Robert A., Disorder in the Court: The Death Penalty and the Constitution, 85 Mich L Rev 1741, 1807 (1987)CrossRefGoogle Scholar.

32. Cover, , Justice Accused at 226 (cited in note 2)Google Scholar.

33. The four were Joseph Story, John McLean, Lemuel Shaw, and Joseph Swan. Id at 234-35.

34. Id at 229-36.

35. Id at 230.

36. Id.

37. Id at 232.

38. Id at 232-34. Such a retreat to mechanistic formalism is evident in Justice England's comments. “Arthur England took refuge from his emotional devastation, he told our seminar, not only in his general conception of his judicial role but in his specific obligation—not equally applicable to Justice Blackmun—of obedience to the hierarchically superior authority of the United States Supreme Court. But the strain was evident nonetheless.” Burt, , 85 Mich L Rev at 1808 (cited in note 31)Google Scholar.

39. Cover, , Justice Accused at 236 (cited in note 2)Google Scholar.

40. Burt, , 85 Mich L Rev at 1819 (cited in note 31)Google Scholar.

41. Cover, , Justice Accused at 227 (cited in note 2)Google Scholar.

42. Justice Harry A. Blackmun, Chubb Lecture, Yale Law School, Feb 27, 1995.

43. See Callins v Collins, — US —, 114 S Ct 1127, 127 LEd2d 435 (1994) (Mem) (Blackmun dissenting).

44. See Feguer v United States, 302 F2d 214 (8th Cir), cert denied, 371 US 872 (1962).

45. They were Pope v United States, 372 F2d 710 (8th Cir 1967) (en banc), vacated and remanded, 392 US 651 (1968); and Maxwell v Bishop, 398 F2d 138 (8th Cir 1968), vacated and remanded, 398 US 262 (1970).

46. Maxwell, 398 F2d at 153-54 (cited in note 45).

47. Maxwell concerned a challenge to the death penalty on the grounds of its unequal application on the basis of race. The petitioner presented a statistical analysis of the issue, which the court dismissed. Id at 146. Nineteen years later, Blackmun would dissent from the Supreme Court's dismissal of another (admittedly more sophisticated) statistical analysis of racial disparity in the imposition of the death penalty. This issue thus provides a snapshot of the evolution of Justice Blackmun's views. For a comparison of Blackmun and Powell's evolving views on this issue, see Section IV B.

48. Callins, 114 S Ct at 1130 (Blackmun dissenting) (cited in note 43).

49. 408 US 238 (1972).

50. Id at 405 (Blackmun dissenting).

51. See text accompanying note 3.

52. Furman, 408 US at 405-06 (cited in note 49).

53. Id at 410 (emphasis added).

54. Id at 410-11.

55. Burt, , 85 Mich L Rev at 1757 (cited in note 31)Google Scholar.

56. Gregg v Georgia, 428 US 153 (1976); Roberts v Louisiana, 428 US 325 (1976); Proffilt v Florida, 428 US 242 (1976); Jurek v Texas, 428 US 262 (1976); Woodson v North Carolina, 428 US 280 (1976).

57. 438 US 586, 612 (1978).

58. Id at 616.

59. Id.

60. 481 US 279 (1987).

61. Burt, , 85 Mich L Rev at 1818 (cited in note 31)Google Scholar.

62. McCleskey, 481 US at 365 (Blackmun dissenting) (cited in note 60).

63. See note 47.

64. 489 US 189 (1989).

65. Id at 212 (Blackmun dissenting).

66. 505 US 333 (1992).

67. Id at 351 (Blackmun concurring).

68. Id at 357 n 2 (Blackmun concurring) (emphasis added).

69. Id at 359.

70. 114 S Ct 1127 (cited in note 43).

71. Callins was decided February 22, 1994. Blackmun announced his retirement, effective upon the confirmation of his successor, on April 6, 1994. See The Supreme Court: Statements on Retirement of Blackmun From the Court, NY Times A24 (04 7, 1994)Google Scholar.

72. Though Blackmun had not yet announced his retirement when he issued his Collins dissent, he clearly had considered the issue. Two years earlier, in Planned Parenthood v Casey, Blackmun hinted at his impending retirement when he wrote “I am 83 years old. I cannot remain on this Court forever. …” 505 US 833, 943 (1992). Indeed, it was widely expected that Blackmun would retire at the end of the October 1993 Term. See Greenhouse, Linda, Supreme Court Faces a Docket Heavy With Unfinished Rights Cases, NY Times B9 (10 1, 1993)Google Scholar (“[I]t would surprise few people if Justice Harry A. Blackmun, now 84 … decides to retire at the end of this term.”). His Callins dissent in fact was viewed as a statement of a retiring Justice, though his retirement announcement had not yet been made. See Greenhouse, Linda, A Capacity to Change as Well as to Challenge, NY Times at § 4, 4 (02 27, 1994)Google Scholar (“One obvious possibility is that Justice Blackmun, the Court's senior member after 24 years on the bench, is planning his retirement, reviewing unfinished business and looking to his place in history.”). I would posit that Callins represents more than Blackmun “looking to his place in history, ” but rather represents his coming to terms with his own conscience before retirement. See also Greenhouse, Linda, Death Penalty is Renounced by Blackmun, NY Times Al (02 23, 1994)Google Scholar (discussing Blackmun's desire to “reopen a dialogue” in the “twilight of his career”).

73. See Section III B 2.

74. Callins, 114 S Ct at 1130 (Blackmun dissenting) (cited in note 43).

75. Id at 1129 (Blackmun dissenting) (emphasis added).

76. Furman, 408 US at 410-11 (Blackmun dissenting) (cited in note 49).

77. Callins, 114 S Ct at 1130 (Blackmun dissenting) (emphasis added) (cited in note 43).

78. — US —, 114 S Ct 2785, 129 LEd2d 896 (1994) (Blackmun dissenting from deni of certiorari).

79. See McFarland, 114 S Ct 2568 (1994) (cited in note 78); Simmons v South Carolin — US —, 114 S Ct 2187, 129 LEd2d 133 (1994); McKoy v North Carolina, 494 US 4 (1990); Sumner v Shuman, 483 US 66 (1987); Gray v Mississippi, 481 US 648 (1987); Bu ington v Missouri, 451 US 430 (1981); Lockett, 438 US 586 (cited in note 30).

80. See McCleskey v Kemp, 481 US 279 (1987); Cabana v Bullock, 474 US 376 (1986); Darden v Wainwright, 477 US 168 (1986); Barefoot v Estelle, 463 US 880 (1983); Californ v Ramos, 463 US 992 (1983); Marshall v Lonberger, 459 US 422 (1983).

81. As Cover notes, “the ethics of the role in a corporate decisional situation at the apex of the pyramid is very different from that of the individual justice on circuit.” Cover, , Justice Accused at 260 (cited in note 2)Google Scholar. This difference in role becomes evident in the examination of the works of Justice Exum and, to an even greater extent. Judge Eisele. See Sections V-VI.

82. Feguer, 302 F2d at 238 (emphasis added) (cited in note 44).

83. Blackmun's use of phrases such as “certainly cannot say” also fits into Cover's typology—what Cover termed the “judicial can't.” Cover, , Justice Accused at 119–23 (cited in note 2)Google Scholar. Cover notes that “can't” in this context does not really mean “physically can not”; rather, by saying he “can't” act, the judge invokes the limits of the judicial role as he sees it. Blackmun's “can't” has this effect, for he certainly could rule the other way. By saying he cannot, he merely internalizes the positivist role of judge, and thus does not confront fully the moral consequences of his actions.

84. 372 F2d 710 (cited in note 45).

85. Id at 730.

86. Maxwell, 398 F2d at 149 (cited in note 45). The Supreme Court eventually took the step Blackmun refused to take in Maxwell, declaring the death penalty for rape unconstitutional in Coker v Georgia, 433 US 584 (1977). Blackmun joined Justice White's majority opinion in Coker.

87. 483 US 402 (1987).

88. 476 US 162 (1986). Blackmun concurred without opinion in the Court's holding in Lockhart. Id at 184. His silent concurrence lends further support to my discussion of Blackmun's compromise. See Section III B 2.

89. Id at 175-76.

90. Buchanan, 483 US at 414-15 (emphasis added) (cited in note 87).

91. Id at 415 (emphasis added).

92. Id at 416 (emphasis added).

93. 431 US 633 (1977).

94. 468 US 447 (1984).

95. 472 US 372 (1985).

96. 483 US 402 (cited in note 87). Blackmun also concurred in the judgment in Sawyer v Whitley, 505 US 333 (1992), in which the Court affirmed a denial of a petition for habeas corpus. Blackmun's concurring opinion in Sawyer reads more like a dissent, however, and actually articulates his growing discomfort with the Court's capital jurisprudence. See text accompanying notes 66-69.

97. See notes 79-80.

98. See text accompanying note 46.

99. McCleskey v Bowers, 501 US 1282 (1991); McCleskey v Bowers, 501 US 1281 (1991); Peterson v Murray, 501 US 1271 (1991); Jones v Whitley, 501 US 1267 (1991); Singletary v Francis, 501 US 1227 (1991); Gaskins v McKellar, 500 US 961 (1991); Francis v Dugger, 500 US 910 (1991); Gilmore v Delo, 497 US 1049 (1990); Derrick v Collins, 497 US 1042 (1990); Hamilton v Texas, 497 US 1016 (1990); Florida v Burr, 496 US 914 (1990) (dissenting from summary reversal of stay of execution); Demosthenes v Baal, 495 US 731 (1990) (dissenting from decision vacating stay of execution); Anderson v Collins, 495 US 942 (1990); Shaw v Armontrout, 495 US 924 (1990); Callins v Texas, 495 US 917 (1990); Smith v Dugger, 494 US 1047 (1990); Mallett v Missouri, 494 US 1009 (1990); Smith v Dugger, 493 US 1064 (1990); Smith v Armontrout, 493 US 1052 (1990); Smith v Armontrout, 493 US 1039 (1990); Hudson v Florida, 493 US 875 (1989); Paster v Lynaugh, 492 US 939 (1989); McCoy v Lynaugh, 490 US 1086 (1989); King v Lynaugh, 489 US 1092 (1989); Crawford v Georgia, 489 US 1040 (1989); Bundy v Dugger, 488 US 1036 (1989); Woods v Florida, 488 US 919 (1988); Byrne v Butler, 486 US 1051 (1988); Lowenfield v Butler, 485 US 995 (1988); Gardner v North Carolina, 484 US 1051 (1988); Streetman v Lynaugh, 484 US 992 (1988); Mulligan v Kemp, 480 US 911 (1987); Tucker v Kemp, 480 US 911 (1987); Evans v McCotter, 479 US 1001 (1986); Peek v Kemp, 479 US 939 (1986); Martin v Wain-wright, 479 US 909 (1986); Rook v Rice, 478 US 1040 (1986); Wicker v McCotter, 478 US 1033 (1986); Smith v Murray, 478 US 1029 (1986); Straight v Wainwright, 475 US 1099 (1986); Jones v Smith, 475 US 1076 (1986); Adams v Wainwright, 475 US 1041 (1986); Moore v Texas, 474 US 1113 (1986); Messer v Kemp, 474 US 1088 (1986); Knighton v Magio, 468 US 1229 (1984); Wainwright v Adams, 466 US 964 (1984) (dissenting from memorandum opinion vacating stay of execution).

100. See, for example, Demosthenes, 495 US at 737 (Brennan dissenting) (cited in note 99).

101. See Knighton, 468 US 1229 (cited in note 99); Wainwright, 466 US 964 (dissenting from memorandum opinion vacating stay of execution) (cited in note 99).

102. Conversation with Justice Harry A. Blackmun, Yale Law School, March 1, 1995. After Callins, Blackmun regularly dissented in every capital case that came before the Court, often simply citing his dissent in Callins for the proposition that the death penalty is unconstitutional. See, for example, Byrd v Ohio, 114 S Ct 2767 (1994); Hill v Texas, 114 S Ct 2693 (1994); Pickens v Tucker, 114 S Ct 1668 (1994). In this respect, he adopted the longstanding practice of Justices Marshall and Brennan.

103. Conversation with Justice Harry A. Blackmun (cited in note 102).

104. 505 US 333 (cited in note 66).

105. Id at 358 (Blackmun dissenting).

106. Callins, 114 S Ct at 1131 (Blackmun dissenting) (cited in note 43).

107. Burt, 85 Mich L Rev at 1757 (cited in note 31).

108. Conversation with Justice Harry A. Blackmun (cited in note 102).

109. Jeffries, John C. Jr., Justice Lewis F. Powell, Jr. 408 (1994)Google Scholar.

110. Id at 409.

111. Furman, 408 US at 417 (Powell dissenting) (cited in note 49).

112. Id at 431.

113. See text accompanying note 55.

114. Roberts, 428 US 325 (cited in note 56); Woodson, 428 US 280 (cited in note 56).

115. Gregg, 428 US 153 (cited in note 56); Proffitt, 428 US 242 (cited in note 56); Jurek, 428 US 262 (cited in note 56).

116. Gregg, 428 US at 175 (opinion of Stewart, Stevens and Powell) (cited in note 56).

117. See Section IV D.

118. Jeffries, , Powell at 427 (cited in note 109)Google Scholar.

119. Id at 427-29.

120. A similar argument was later constitutionalized in Caldwell v Mississippi, 472 US 320 (1985) (prosecutors cannot attempt to lessen jurors' sense of responsibility for their verdict by referring to appellate review of all death sentences). Guido Calabresi has made a similar argument regarding legislators' post-Furman sense of responsibility in voting for death penalty statutes in light of what was then viewed as probable Court nullification of such laws. See Calabresi, Guido, A Common Law for the Age of Statutes 26–27 (Harvard U Press, 1982)Google Scholar.

121. Jeffries, , Powell at 429 (cited in note 109)Google Scholar.

122. Powell, Lewis F. Jr., Capital Punishment, 102 Harv L Rev 1035, 1045 (1989) (footnote omitted)CrossRefGoogle Scholar.

123. DeBenedictis, Don J., The Reasonable Man, 76 ABA J 69 (10, 1990) (interview with Justice Lewis F. Powell)Google Scholar.

124. Id (emphasis added).

125. Jeffries, , Powell at 451 (cited in note 109)Google Scholar.

126. Id at 452-53.

127. See, for example, Cover, , Justice Accused at 228–29 (cited in note 2)Google Scholar (“If a judge were to decide in favor of the Negro in violation of the role strictures, however, his decision would be dissonant with his image of himself as a man faithful to his judicial obligations. There would be a disturbing inconsistency whenever expectations arising from one or another of those self-images [as one opposed to slavery or one faithful to judicial role] was violated in the course of the decision.”). Cover found similar dissonance-reducing behavior in judges who made the moral choice when faced with the moral-formal dilemma. Id at 229.

128. See Section III B 2.

129. See note 47 and accompanying text.

130. Maxwell, 398 F2d at 147 (cited in note 45).

131. Furman, 408 US at 449 (Powell dissenting) (cited in note 49).

132. 464 US 1027 (1983).

133. Id at 1031 n 2 (emphasis added).

134. McCleskey, 481 US at 292-93 (emphasis in original) (cited in note 60).

135. See Section IV C.

136. Furman, 408 US at 461 (Powell dissenting) (cited in note 49).

137. Id at 418.

138. McCleskey, 481 US at 297 (cited in note 60).

139. Id at 314-18 (footnote omitted).

140. Stephens, 464 US at 1031 n 2 (cited in note 132).

141. Cover, , Justice Accused at 260 (cited in note 2)Google Scholar (quoting Jones v Van Zandt, 13 Fed Case 1047 (No 7, 502) (CCD Ohio 1843)).

142. See Kahn, Paul W., The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale L J 1 (1987)CrossRefGoogle Scholar.

143. Furman, 408 US at 418 (Powell dissenting) (cited in note 49).

144. Gregg, 428 US at 175 (opinion of Powell, Stewart and Stevens) (cited in note 56).

145. McCleskey, 481 US at 319 (cited in note 60).

146. Kahn, , 97 Yale L J at 2 (cited in note 142)Google Scholar.

147. 443 US 622 (1979).

148. A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.

Id at 643-44.

149. Mnookin, Robert H., Bellotti v Baird: A Hard Case, in Mnookin, Robert H., ed, In the Interest of Children 149, 217 (Freeman and Co, 1985)Google Scholar.

150. Kahn, , 97 Yale L J at 11 (cited in note 142)Google Scholar.

151. 438 US 265 (1978).

152. Kahn, , 97 Yale L J at 9 (cited in note 142)Google Scholar.

153. Id at 5.

154. See note 31 and accompanying text.

155. Arave v Creech, 113 S Ct 1534, 1550 (1993) (Blackmun dissenting).

156. Politics and the Death Penalty: Can Rational Discourse and Due Process Survive the Perceived Political Pressure?, 21 Fordham Urb L J 239, 270–71 (1994) (Comments of Exum)Google Scholar.

157. Cover, , Justice Accused at 62 (cited in note 2)Google Scholar. For an exploration of such interpretive techniques in antebellum America, see id at 62-82.

158. 212 SE2d 113, 121 (NC 1975) (Exum dissenting).

159. Id at 121-22 (Exum dissenting).

160. 215 SE2d 607, 619 (NC 1975) (Exum concurring).

161. Id at 619-21 (Exum concurring).

162. Id at 621.

163. Justice Blackmun in fact predicted that as a consequence of the Court's holding in Furman states would pass mandatory death penalty statutes. Furman, 408 US at 413 (Blackmun dissenting) (cited in note 49).

164. Woodson, 428 US at 280 (cited in note 56).

165. State v Spaulding, 219 SE2d 178 (NC 1975); State v Bernard, 218 SE2d 327 (NC 1975); State v Carey, 218 SE2d 387 (NC 1975); State v Bock, 217 SE2d 513 (NC 1975); State v King, 215 SE2d 540 (NC 1975); State v Thompson, 214 SE2d 742 (NC 1975); State v Robbins, 214 SE2d 756 (NC 1975); State v Young, 214 SE2d 763 (NC 1975); State v Wetmore, 215 SE2d 51 (NC 1975); State v Vinson, 215 SE2d 60 (NC 1975); State v Cordon, 213 SE2d 708 (NC 1975); State v Boyd, 214 SE2d 14 (NC 1975); State v Burns, 214 SE2d 56 (NC 1975); State v Armstrong, 212 SE2d 894 (NC 1975); State v Woods, 213 SE2d 214 (NC 1975); State v McLaughlin, 213 SE2d 238 (NC 1975); State v Lowery, 213 SE2d 255 (NC 1975); State v Stegmann, 213 SE2d 262 (NC 1975); State v Simmons, 213 SE2d 280 (NC 1975); State v Lampkins, 212 SE2d 106 (NC 1975); State v Avery, 212 SE2d 142 (NC 1975). Exum acted similarly with regard to his dissent in State v Pinch, 292 SE2d 203 (NC 1982). He subsequently dissented in three cases, citing his Pinch dissent as the basis for his vote in each case. See State v Brown, 293 SE2d 569 (NC 1982); State v Williams, 292 SE2d 243 (NC 1982); State v Smith, 292 SE2d 264 (NC 1982).

166. Ledewitz, , 27 Duquesne L Rev at 27 n 42 (quoting Brennan, Justice) (emphasis added) (cited in note 21)Google Scholar.

167. 302 SE2d 144 (NC 1983).

168. 362 SE2 513 (NC 1987).

169. Id at 540 (Exum concurring).

170. 372 SE2d 12 (NC 1988).

171. 486 US 367 (1988).

172. 372 SE2d 517 (NC 1988).

173. Id at 523 (1988).

174. 372 SE2d 855 (NC 1988).

175. Id at 871-72. (“To the extent that the McKoy majority relied for its conclusion on the United States Supreme Court's denial of petitions for certiorari in other North Carolina cases involving the unanimity jury instruction issue, that conclusion has been undercut by the United States Supreme Court's action in Lloyd [remanding the case in light of the Court's decision in Mills].”).

176. State v Huff, 381 SE2d 635 (NC 1989); State v Quesinberry, 381 SE2d 681 (NC 1989); State v McNeil, 375 SE2d 909 (NC 1989); State v Greene, 376 SE2d 430 (NC 1989); State v Hunt, 373 SE2d 400 (NC 1989); State v Fullwood, 373 SE2d 518 (NC 1988).

177. Fullwood, 373 SE2d at 539 (Exum concurring) (citations omitted) (cited in note 176).

178. See text accompanying note 166.

179. Though Justice Exum sat on the North Carolina Supreme Court and was thus bound to follow the mandates of the United States Supreme Court, his court was still the final arbiter on matters of state law. Notwithstanding the North Carolina Constitution's explicit endorsement of capital punishment, NC Const Art II, § 2 (1944), his ability as a state supreme court justice to interpret creatively the state constitution is greater than that of a trial judge. See note 81 and accompanying text.

180. Fairchild v Lockhart, 744 F Supp 1429, 1495-96 (ED Ark 1989).

181. 483 F Supp 1372 (ED Ark 1980).

182. Id at 1376-85.

183. Id at 1385 (emphasis added).

184. Id at 1385 n 16.

185. Eisele's “prediction” turned out to be correct with regard to the Supreme Court. See Lockhart v McRee, 476 US 162 (1986).

186. Grigsby v Mabry, 637 F2d 525, 529 (8th Cir 1980).

187. Id at 529 n 5.

188. Grigsby v Mabry, 596 F Supp 1273, 1277 (ED Ark 1983) (Grigsby II).

189. Id at 1282.

190. Id at 1283.

191. Id at 1322.

192. Grigsby v Mabry, 583 F Supp 629, 630 (ED Ark 1983).

193. Id.

194. 429 US 1012 (1976).

195. 700 F Supp 1005 (ED Ark 1988).

196. Id at 1023-24 (emphasis added).

197. 744 F Supp 1429 (ED Ark 1989).

198. Id at 1496-97 (emphasis added).

199. Franz, 700 F Supp at 1023-24 (cited in note 195).

200. At one point in the litigation, Fairchild's attorneys apparently hinted to the court that it should act sua sponte in reviewing the penalty phase of the trial. Fairchild v Norris, 869 F Supp 672, 675 (ED Ark 1993) (quoting previous “Findings of Fact and Conclusion of Law” made in the case) (“Despite the petitioner's attorneys’ tentative and hedged-around suggestion … that the Court, on its own, might wish to examine the penalty phase of Mr. Fairchild's case for possible errors, there is no authority for it to do so.”).

201. Id at 683-84 and n 2.

202. Id at 684 n 2.

203. 567 F Supp 1548 (ED Ark 1983).

204. Id at 1576.

205. 545 F Supp 83 (ED Ark 1982).

206. Collins v Lockhart, 754 F2d 258 (8th Cir 1985).

207. See, for example, Perry v Lockhart, 656 F Supp 46 (ED Ark 1986); Singleton v Lockhart, 653 F Supp 1114 (ED Ark 1986).

208. Singleton, 653 F Supp at 1137 (cited in note 207).

209. See Perry v Lockhart, 871 F2d 1384 (8th Cir 1989).

210. Wainwright v Norris, 872 F Supp 574 (ED Ark 1994).

211. Id at 607.

212. Cover, Compare, Justice Accused at 62 (cited in note 2)Google Scholar (“Finally, the court can assert a sort of bend-over-backward principle by which there is an obligation to achieve a profreedom result unless there is very specific, concrete positive law that prevents it. … [This] variation was seldom used and, as time went on, explicitly disowned.”).