354
Blackmun, J., concurring in judgment
In Dugger v. Adams, the Court continued to equate the notion of a "fundamental miscarriage of justice" in a capital trial with the petitioner's ability to show that he or she "probably is 'actually innocent' of the sentence he or she received," 489 U. S., at 412, n. 6, but appeared to narrow the inquiry even further. Adams' claim, that the trial judge repeatedly had misinformed the jurors, in violation of the Eighth Amendment and Caldwell v. Mississippi, 472 U. S. 320 (1985), that their sentencing vote was strictly advisory in nature (when in fact Florida law permitted the judge to overturn the jury's sentencing decision only upon a clear and convincing showing that its choice was erroneous), surely satisfied the standard articulated in Smith: whether petitioner can make out a "substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination." 477 U. S., at 539. In a cryptic discussion relegated to a footnote at the end of its opinion, the Court in Adams rejected this obvious application of the Smith standard, apparently for no other reason than its belief that Adams' ability to demonstrate a "fundamental miscarriage of justice" in this case somehow would convert an "extraordinary" exception into an "ordinary" one. See 489 U. S., at 412, n. 6. In rejecting the Smith standard, the Court did not even bother to substitute another in its place. See 489 U. S., at 412, n. 6 ("We do not undertake here to define what it means to be 'actually innocent' of a death sentence"). The Court refused to address Aubrey Adams' claim of constitutional error, and he was executed on May 4, 1989.
Just last Term, in McCleskey v. Zant, the Court again described the "fundamental miscarriage of justice" exception as a " 'safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty,' " 499 U. S., at 495 (quoting Stone v. Powell, 428 U. S. 465, 491-492, n. 31 (1976)). Although the District Court granted relief to McCleskey on his claim that state authorities deliberately had elicited inculpatory admissions from him in violation of his Sixth
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