WASHINGTON -- Attorney General Richard L. Thornburgh urged the Supreme Court yesterday to lift all constitutional restraints on prosecutors who put an emotional focus on murder victims or their families as a way to persuade juries to vote for the death penalty.
Appearing personally before the justices, the government's highest legal officer asked the court to overrule its 1987 decision in a Maryland case that it is unconstitutional for prosecutors to offer "victim impact evidence" as part of a plea for the death penalty.
That decision came in the case of John "Ace" Booth of Pimlico, sentenced to die for murdering two of his neighbors, Irvin Bronstein, 78, and his wife, Rose, 75.
Members of the Bronstein family told, in a pre-sentence report, of the devastating impact of the murders on them.
The Supreme Court barred such evidence in death-sentence hearings, striking down a Maryland law requiring such reports on "victim impact."
Five of the present nine justices have said since then that they thinkthe Booth ruling was wrong, and the court has taken special steps to set up a Tennessee case as a test of whether to overrule the Booth decision, and along with it, a 1989 ruling barring prosecutors from dwelling on the personal qualities of the murder victim.
yesterday's hearing, two of the five justices who have been critical of the Booth decision -- Anthony M. Kennedy and Sandra Day O'Connor -- asked questions that suggested they were troubled about how far prosecutors and defense lawyers would feel free to go to put before juries emotional evidence about the victim if all restraints were eliminated.
Justice Kennedy, for example, commented that he was concerned that "prosecutors tend to go to the very limits of the law" and that if the Booth decision were overturned, "you're going to have testimony of this very, very emotional and potentially prejudicial kind" in death-sentencing hearings.
But Mr. Thornburgh told the court that the Constitution should have nothing to say about it if prosecutors dwell on the good qualities of the victim's life in order to get a death sentence, or if defense lawyers counter by dwelling on a victim's bad qualities to help the murderer avoid a death penalty.
He said, when asked by Justice John Paul Stevens, that there would be nothing wrong constitutionally if a state banned defense lawyers from presenting evidence against the victim's character while allowing prosecutors to present favorable evidence.
In his 10-minute appearance, marking only the second time he had stepped into a Supreme Court case personally, the attorney general said that prosecutors should be allowed to submit any evidence informing jurors about "the full extent of the harm" done by a murderer -- and that would include any evidence about how the survivors or the community had suffered.
The one justice who was not on the court when either of the two rulings against victim evidence came down, Justice David H. Souter, remarked during the hearing that "the real problem" of allowing evidence about the victim to be put before a jury is that "it implies society is valuing victims differently . . . a two-tier 'equality' before the law."
The Tennessee case involves Pervis Tyrone Payne of Millington, Tenn., sentenced to die for stabbing to death a woman and her small daughter, and stabbing her young son in the same attack. The son survived.
At the sentencing hearing, a prosecutor told the jurors that the son would want to know, when he grew up, what kind of sentence the murderer of his mother and sister had received.