A law-and-order leaning United States Supreme Court has of late been wary of throwing out the death penalty on procedural grounds. Nonetheless it has not been reluctant to strike down capital punishment in specific cases raising valid constitutional questions.
The justices appeared to follow this rule of thumb with Tuesday's unanimous ruling overthrowing the death sentence of a convicted Texas killer and its reversal of the murder conviction of a Georgia killer.
John Satterwhite's constitutional right to a lawyer's aid was violated in the penalty phase of his Texas trial, the court held. And it was not the result of what is termed ``harmless error.''
But the court - by a 5-to-3 vote - also ruled that convicted murderers may be executed if states find that violation of their constitutional right to counsel is a result of harmless error.
This result is seen by some as a signal from the court that it will continue to rule on capital punishment on a case-by-case basis - rather than make sweeping rulings as to its constitutionality.
Despite strong pressure from civil rights groups to abolish executions in the US, the justices have repeatedly refused in recent decades to invalidate the death sentence as cruel or unusual punishment. Last term the court narrowly decided that even if there is evidence that capital prosecutions are brought in a racially biased manner, this was not just cause for abolition.
The court is expected to rule shortly on whether the death penalty may be imposed on convicted murderers who committed their crimes when under the age of 18.
Writing for the majority in Satterwhite v. Texas, Associate Justice Sandra Day O'Connor said a defendant facing a capital sentence is not automatically shielded from execution, even if his right to counsel has been violated when determining his continuing threat to society.
``We believe that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury,'' Justice O'Connor wrote.
The high court ruled in 1981 that a defendant faced with state execution had the right to consult with a lawyer before submitting to psychiatric testimony to assess his potential future dangerousness.
Chief Justice William Rehnquist and Associate Justices Antonin Scalia, John Paul Stevens, and Byron White joined the majority.
Dissenting were Associate Justices Harry Blackmun, William Brennan, and Thurgood Marshall. The trio favored automatically striking down the death penalty in any case where a constitutional violation occurs.
Justice Marshall wrote: ``The unique nature of a capital sentencing determination should cause this court to be especially hesitant ever to sanction harmless-error review of constitutional errors that taint capital sentencing proceedings.''
Associate Justice Anthony Kennedy did not vote.
In the Georgia case, the justices unanimously reversed a lower appellate court ruling that a death sentence may be carried out although the juries that charged and convicted the defendant were selected in a manner that discriminated against blacks and women.
Specifically at issue was whether the defendant, Tony Amadeo, should have been allowed to raise the issue of discrimination in jury selection which his lawyers learned of only after the trial - or whether a state procedural rule should prevail which requires such objections to be raised before trial.
This ruling means that Georgia must give the defendant a new trial or free him.