WASHINGTON -- A majority of the Supreme Court seems convinced that a famous death penalty ruling in a case from Maryland was wrong, but the justices indicated yesterday that the time may not yet have come to overturn it.
An Ohio prosecutor, in an openly emotional plea, urged the court to throw out the nearly 4-year-old Maryland precedent, which forbids prosecutors from trying to gain death sentences by focusing jurors' attention on the impact of a murder on the victim's family.
The decision in the 1987 case of Booth vs. Maryland has been criticized by five of the nine justices, and it has appeared that the precedent might at any time be overturned.
Assistant prosecutor Jonathan E. Rosenbaum of Elyria, Ohio, told the court at the hearing yesterday that the Booth ruling has created a situation in capital punishment cases in which jurors are denied the opportunity to "express a community's outrage" over the harm that a murder causes to others.
"The public will be aware of the harm, but the jury cannot be," he said.
Evidence of those harms is necessary to make a death penalty case one of "fair and evenhanded justice," yet it has been "sacrificed" by the court because jurors supposedly cannot be trusted with that information, Mr. Rosenbaum argued.
He said a "one-sided regime" had been created, in which the murderer who has been found guilty can put on any kind of evidence that may create sympathy as the jury considers what sentence to impose, while the prosecution is barred from "putting on contrary evidence."
As a result, he said, the desire of a community to have "retribution" for a murder that has caused agony to others "is taken out" of capital cases.
In the Ohio case Mr. Rosenbaum was arguing, the defense lawyer put the victim's mother on the stand, and she said that, as a Christian, she could forgive the murderer. But then the prosecution put the father on to counter that evidence, and that led the Ohio Supreme Court to strike down the death sentence the jury had imposed.
That result, the prosecutor contended, was found to be required by the Booth decision, so that precedent should be thrown out, along with a more recent ruling, issued in a South Carolina case in 1989, saying that evidence about the kind of person the victim was is also barred when jurors are weighing whether to impose a death penalty for murder.
The court apparently had agreed to hear the South Carolina case in order to consider overruling the Maryland case precedent, but that did not occur, even though Justice Antonin Scalia strongly urged his colleagues to do so and four other justices left no doubt that they, too, thought it was wrong.
It had appeared that the precedent was again in trouble when the court last fall agreed to hear the Ohio case, Ohio vs. Huertas.
But, as Mr. Rosenbaum went through his argument yesterday, it appeared that a number of the justices who oppose the Booth precedent were developing doubts that the Ohio case offered the occasion to reverse it.
Justice Anthony M. Kennedy suggested that the Ohio Supreme Court decision at issue in the case, nullifying a Lorain man's death sentence, might have been the same even if the Maryland and South Carolina rulings "were not on the books."
Justice Sandra Day O'Connor said the Ohio court might have relied on state law, or at least that state law now in existence might bar the kind of evidence Mr. Rosenbaum was promoting.
The newest justice, David H. Souter, who has as yet taken no position on the issue, suggested that the court might decide the Ohio case simply by giving prosecutors more leeway, and without having to scuttle the Booth case precedent.