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Court hears death case that drew pope’s protest

March 18, 1997

WASHINGTON (AP) _ A seemingly divided Supreme Court pondered the fate Tuesday of a Virginia death row inmate whose sentence has drawn protests from Pope John Paul II and the Italian government.

In a 60-minute argument session, the court zeroed in on a narrow area of capital-punishment law: the retroactivity of its 1994 ruling that said sentencing juries sometimes must be told the alternative to a death sentence would be life in prison without chance of parole.

Joseph Roger O’Dell III was not allowed to tell that to the jurors who sentenced him in 1988 to die in Virginia’s electric chair for a 1985 murder.

Questions and comments from the justices indicated their decision, expected by July, might be a split one.

The session was far from dramatic. The justices asked questions in a kind of legal shorthand.

For example, Justice John Paul Stevens at one point asked O’Dell’s lawyer, ``Do you consider Skipper more relevant than Gardner?″ He was referring to two previous decisions on jury instructions.

Chief Justice William H. Rehnquist and Justices Antonin Scalia, Sandra Day O’Connor and Anthony M. Kennedy appeared most hostile to O’Dell’s efforts to obtain a new sentencing trial.

Justices Stephen G. Breyer and David H. Souter appeared most sympathetic.

Justices John Paul Stevens and Ruth Bader Ginsburg also participated in the questioning, but Justice Clarence Thomas was silent throughout.

O’Dell, who contends he is innocent of killing Helen Schartner, a secretary, outside a Virginia Beach nightclub, had challenged both his murder conviction and death sentence.

But the nation’s highest court last December made clear that it would review only the validity of his death sentence. Arguments Tuesday did not include O’Dell’s claim of innocence based on newly available, and hotly debated, DNA evidence.

New York lawyer Robert Smith argued that the 1994 ruling entitles O’Dell to a new sentencing trial because it was based on prior decisions and ``should not be considered a new rule.″

Smith said O’Dell also was entitled to a new sentencing trial because of ``the egregiousness of the practice of scaring a jury about a dangerous man being back on the streets of their community without telling them″ he’d be in prison for life.

The court has said criminal-law rulings that establish such new rules are not to be applied retroactively to already-completed cases.

Virginia Assistant Attorney General Katherine Baldwin said denying O’Dell the chance to tell jurors about the life-without-parole alternative to a death sentence was ``a reasonable interpretation of existing law″ in 1988. ``In 1988, there was no error,″ she said.

She also noted that the court’s 1994 decision requiring such jury instructions in some cases was not unanimous _ ``compelling, if not dispositive (proof) that it was a new rule″ and should not be applied retroactively, she said.

O’Dell’s case has been front-page news in Italy, which does not have capital punishment and where U.S. death-penalty cases frequently prompt protests.

The pope asked President Clinton and Gov. George Allen to spare O’Dell’s life, and the Italian government registered a protest with the U.S. Embassy in Rome.

In addition, Sister Helen Prejean, the Louisiana anti-death penalty activist who wrote ``Dead Man Walking,″ also has worked in O’Dell’s behalf.

The case is O’Dell vs. Netherland, 96-6867.

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