California v. Brown, 475 U.S. 1301 (1986)

ON APPLICATION FOR STAY

California’s application to stay the enforcement of the California Supreme Court’s judgment -- which invalidated respondent’s death sentence for first-degree murder on the ground that the Eighth Amendment to the Federal Constitution was violated by a jury instruction given during the sentencing phase of his trial that told the jury not to be swayed by "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" -- is granted pending disposition of the State’s petition for certiorari. It is likely that four Members of this Court will vote to grant certiorari to review the jury instruction issue, and that the decision below ultimately will be reversed. There is no merit to respondent’s argument that the decision below was based on adequate and independent state grounds, and is therefore unreviewable by this Court. Moreover, the State has met its burden of demonstrating irreparable harm if its application for a stay is not granted.