924 MARSHALL, J., dissenting ings against it. Instead, the judge actually reported to the jurors the media's conclusion that petitioner was guilty. That the source of this prejudicial publicity was the trial judge magnifies, rather than eliminates, the problem. The jury could reasonably assume that, since the judge had read about the crime, it was acceptable for them to do so as well. The Ohio Supreme Court relied on the cautionary instruction given to the prospective jurors, maintaining that it "minimize[d] any prejudicial effect this comment may have had. . . ." 26 Ohio St. 3d, at 96, 497 N. E. 2d, at 59. This reliance is misplaced. Because "the influence of the trial judge on the jury is necessarily and properly of great weight, and . . . his lightest word or intimation is received with deference, and may prove controlling," Starr v. United States, 153 U. S. 614, 626 (1894), some errors are so fundamental that no instruction can undo the damage they cause. See Quercia v. United States, 289 U. S. 466, 472 (1933). A comment on petitioner's guilt is certainly such a fundamental error; it is "most likely to remain firmly lodged in the memory of the jury and to excite a prejudice which would preclude a fair and dispassionate consideration of the evidence." Ibid. Moreover, any reference to extrajudicial evidence by the trial judge destroys the fundamental premise of any trial—that the ultimate decision rests solely upon evidence presented by the parties within the confines of the rules of evidence. The remedy for this extraordinary error was close at hand. No witness had yet been sworn. The panel of prospective jurors might have been discharged and a new venire called without difficulty. Nonetheless, the trial judge plunged ahead and petitioner was tried by a jury exposed to comments that overwhelmed the presumption of innocence. Because we cannot tolerate such interference with petitioner's right to a fair trial in a capital case, I would grant the petition for certiorari. In addition, petitioner's death sentence was founded on a statutory aggravating circumstance that repeats an element of the underlying capital offense. As in No. 86-5307, Williams v. Ohio, and No. 86-6015, Bradley v. Alabama, I would grant review for reasons stated in my dissent from denial of certiorari in Wiley v. Mississippi, 479 U. S. 906 (1986). No. 86-6082. No. 86-6101. No. 86-6129. No. 86-6171. DUHAMEL v. TEXAS. Ct. Crim. App. Tex.; Certio O'NEAL v. MISSOURI. Sup. Ct. Mo.; and No. 86-6201. NEELLEY v. ALABAMA. Sup. Ct. Ala. rari denied. Reported below: No. 86-6082, 717 S. W. 2d 80; No. 86-6101, 25 Ohio St. 3d 203, 495 N. E. 2d 922; No. 86-6129, 726 S. W. 2d 39; No. 86-6171, 718 S. W. 2d 498; No. 86-6201, 494 So. 2d 697. JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases. No. 86-6285. PIROVOLOS v. UNITED STATES. C. A. 7th Cir. Motion of petitioner to consolidate case with No. 86-6009, Gregg v. United States, supra, denied. Certiorari before judgment denied. Rehearing Denied No. 86-631. CITY OF WATSEKA ET AL. v. ILLINOIS PUBLIC ACTION COUNCIL ET AL., 479 U. S. 1048; No. 86-860. WALKER v. ACTION INDUSTRIES, INC., ET AL., 479 U. S. 1065; No. 86-5654. BARR v. UNITED STATES, 479 U. S. 1055; No. 86-5799. IN RE JOHL, 479 U. S. 1028; and No. 86-5816. JAMES v. GEORGIA, 479 U. S. 1040. Petitions No. 86-1125. WILKINSON, ATTORNEY GENERAL OF THE STATE OF UTAH v. JONES ET AL. Affirmed on appeal from C. A. 10th Cir. THE CHIEF JUSTICE and JUSTICE O'CONNOR would note probable jurisdiction and set case for oral argument. Reported below: 800 F. 2d 989. Appeals Dismissed No. 86-1252. O'KELLEY ET AL. v. HOSPITAL AUTHORITY OF GWINNETT COUNTY, DBA GWINNETT AMBULANCE SERVICE, ET AL. Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question. Reported below: 256 Ga. 373, 349 S. E. 2d 382. No. 86-1272. STICH v. SUPERIOR COURT OF CALIFORNIA, SOLANO COUNTY, ET AL. Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 86-6228. MACKIE v. OLSEN, DISTRICT JUDGE, ET AL. Appeal from Sup. Ct. Mont. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 86-1300. REARDON v. UNITED STATES POSTAL SERVICE ET AL. Appeal from D. C. N. J. dismissed for want of jurisdiction. Certiorari Granted-Vacated and Remanded No. 86-997. PENNSYLVANIA v. LUTZ. Sup. Ct. Pa. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Dunn, ante, p. 294. Reported below: 512 Pa. 192, 516 A. 2d 339. No. 86-1007. UNITED STATES v. MESSINA BUILDERS & CON TRACTORS Co. C. A. 8th Cir. Certiorari granted, judgment (See No. 86-5504, ante, p. 522; and No. 86-5530, ante, p. 527.) Miscellaneous Orders No. DAWSON ET AL. v. LENNON, WARDEN, ET AL. Motion to direct the Clerk to file the petition for writ of certiorari out of time denied. No. A-626. KAVANAGH v. COVEN. Sup. Ct. N. Y., New York County. Application for stay, addressed to JUSTICE O'CONNOR and referred to the Court, denied. No. A-651. MCDONALD WELDING & MACHINE Co., INC., ET AL. v. LEHMAN, SECRETARY OF THE NAVY. C. A. 6th Cir. Application to vacate stay, addressed to THE CHIEF JUSTICE and referred to the Court, denied. No. D-600. IN RE DISBARMENT OF TUCKER. Robert L. Tucker, of Chicago, Ill., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on January 12, 1987 [479 U. S. 1026], is hereby discharged. No. D-617. IN RE DISBARMENT OF CASLER. It is ordered that William Franklin Casler, of Saint Petersburg, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D-618. IN RE DISBARMENT OF WHITTEN. It is ordered that David Rock Whitten, of Wilmington, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D-619. IN RE DISBARMENT OF STOKES. It is ordered that Rhodes Cherry Stokes, of Greenville, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. 85-2068. RANKIN ET AL. v. MCPHERSON. C. A. 5th Cir. [Certiorari granted, 479 U. S. 913.] Motion of the Solicitor General to permit Glen D. Nager, Esquire, to present oral argument pro hac vice granted. No. 86-228. KUNGYS v. UNITED STATES. C. A. 3d Cir. [Certiorari granted, 479 U. S. 947.] Motions of World Jewish Congress and Anti-Defamation League of B'nai B'rith et al. for leave to file briefs as amici curiae granted. No. 86-246. SUMNER, DIRECTOR, NEVADA DEPARTMENT OF PRISONS, ET AL. v. SHUMAN. C. A. 9th Cir. [Certiorari granted, 479 U. S. 948.] Motion of N. Patrick Flanagan III, Esquire, to withdraw as counsel and to substitute M. Daniel Markoff, Esquire, granted. No. 86-357. AMERICAN TRUCKING ASSNS., INC., ET AL. V. SCHEINER, SECRETARY, DEPARTMENT OF REVENUE OF PENN SYLVANIA, ET AL. Sup. Ct. Pa. [Probable jurisdiction noted, 479 U. S. 947.] Motion of Canadian Trucking Association for leave to file a brief as amicus curiae granted. No. 86-495. K MART CORP. v. CARTIER, INC., ET AL.; No. 86-624. 47TH STREET PHOTO, INC. v. COALITION TO PRESERVE THE INTEGRITY OF AMERICAN TRADEMARKS ET AL.; and No. 86-625. UNITED STATES ET AL. v. COALITION TO PRESERVE THE INTEGRITY OF AMERICAN TRADEMARKS ET AL. C. A. D. C. Cir. [Certiorari granted, 479 U. S. 1005.] Motion of the Solicitor General for divided argument granted. No. 86-781. KANSAS GAS & ELECTRIC Co. v. STATE CORPORATION COMMISSION OF KANSAS ET AL.; and No. 86-793. KANSAS CITY POWER & LIGHT Co. v. STATE CORPORATION COMMISSION OF KANSAS ET AL. Sup. Ct. Kan. [Probable jurisdiction noted, 479 U. S. 1082.] Motion of appellants to dispense with printing the joint appendix granted. JusTICE POWELL took no part in the consideration or decision of this motion. No. 86-877. UNITED STATES v. OWENS. C. A. 9th Cir. [Certiorari granted, 479 U. S. 1084.] Motion for appointment of counsel granted, and it is ordered that Allan Ides, Esquire, of Los Angeles, Cal., be appointed to serve as counsel for respondent in this case. No. 86-964. THOMPSON V. THOMPSON, AKA CLAY. C. A. 9th Cir. [Certiorari granted, 479 U. S. 1063.] Motion of Sacramento County, California, et al. for leave to file a brief as amici curiae granted. No. 86-1102. MANUFACTURERS ASSOCIATION OF TRI-COUNTY ET AL. v. KNEPPER ET AL. C. A. 3d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States. No. 86-6169. THOMPSON v. OKLAHOMA. Ct. Crim. App. Okla. [Certiorari granted, 479 U. S. 1084.] Motion for appointment of counsel granted, and it is ordered that Harry F. Tepker, Jr., Esquire, of Norman, Okla., be appointed to serve as counsel for petitioner in this case. |