BOSTON — THE Supreme Court zigged and then zagged last week in two death-penalty cases.
In one case the high court let an execution verdict stand even though jurors knew a defendant already faced another death sentence. In a separate case, however, the court struck down a jury's vote in favor of execution owing to what the majority of justices regarded as incomplete instructions to the jurors.
Besides these rulings, the Supreme Court issued the first flurry of what could be a blizzard of decisions in the final three weeks of its 1993-94 term. Among the significant actions:
* The court struck down a Massachusetts milk-pricing program intended to shore up the state's declining dairy industry. The plan favored in-state dairy farmers over milk producers from other states in violation of the Constitution's commerce clause, the justices ruled.
* The court allowed Congress to close an estate-tax loophole retroactively, permitting the government to recover up to $7 billion in lost revenue. The loophole was in a 1986 tax act, but the decision also could bolster the tax bill signed by President Clinton last year, which retroactively raised income taxes for some taxpayers.
* The justices made it harder for non-Indians to avoid cigarette taxes by shopping on Indian reservations. The court reinstated New York State regulations that limit the amount of untaxed cigarettes wholesalers can supply to Indian retailers.
IN the first death-penalty case, Romano v. Oklahoma, the justices voted 5 to 4 to uphold the death sentence imposed on a convicted killer, even though the jurors were informed that the defendant was already sentenced to die for another murder. The defense argued that the knowledge of the earlier sentence might lessen the jurors' sense of responsibility for making a life-or-death decision in the case before them.
IN a 1985 case, Caldwell v. Mississippi, the Supreme Court overturned a death sentence, ruling that prosecutors cannot encourage jurors in a capital-punishment case to abdicate their responsibility to decide if execution is the appropriate penalty (in Caldwell the prosecutor had, in effect, let the jurors off the hook by assuring them that their decision would be reviewed by a higher court).
In the current case, John Joseph Romano's lawyer argued that the jurors' awareness of the earlier death sentence similarly eased their conscience.
The Supreme Court rejected the argument. Writing for the majority, Chief Justice William Rehnquist said: ``It is impossible to know how this evidence might have affected the jury. It seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so.''
In a dissenting opinion, Justice Ruth Bader Ginsburg asserted that, given the uncertainty noted by Chief Justice Rehnquist, the court should order a new sentencing hearing.
But in the second capital-punishment case decided last week, Simmons v. South Carolina, the justices, by a 7 to 2 vote, ruled that a murderer was improperly sentenced to death when relevant information was withheld from the jury. Instructed to choose between execution and life imprisonment, the jurors were not informed that, under South Carolina law, defendant Jonathan Dale Simmons - who was convicted of slaying an elderly woman and who had earlier pleaded guilty to other violent crimes - would not be eligible for parole if sentenced to a life term in prison.
Mr. Simmons's lawyer argued that the jury might have imposed the death sentence owing to the widely held belief - inaccurate in this case - that even life-term prisoners often are released on parole, and thus pose a future danger to society. The Supreme Court agreed.
Justice Harry Blackmun wrote: ``The state may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.''
The court ruled, though, that a defendant must request that the jury be informed that he will not be eligible for parole (as Simmons had done).
While most states impose life imprisonment without parole for certain violent crimes, Pennsylvania and Virginia are the only other states that prevent sentencing juries in death-penalty cases from learning when a defendant sentenced to a life term would not be eligible for parole.