488
Blackmun, J., dissenting
with guidance that is somewhat subjective . . . ." Brief for Petitioner 9. That kind of gestalt approach to capital sentencing is precisely what Cartwright and Godfrey forbid.
Ultimately, it hardly seems necessary to look beyond the record of this case to determine that either the majority's construction is inadequate, or that there was insufficient evidence to support the "utter disregard" factor here. The record, which the majority takes pains to assure us "could not be more chilling," ante, at 465,15 includes an explicit finding by the trial judge that Creech was the subject of an unprovoked attack and that the killing took place in an "excessive violent rage." App. 52. If Creech somehow is covered by the "utter disregard" factor as understood by the majority (one who kills not with anger, but indifference, ante, at 476), then there can be no doubt that the factor is so broad as to cover any case. If Creech is not covered, then his sentence was wrongly imposed.
III
Let me be clear about what the majority would have to show in order to save the Idaho statute: that, on its face, the Osborn construction—"the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer"—refers clearly and exclusively to crimes that occur "without feeling or sympathy," that is, to those that occur
15 I note that much of the majority's discussion of the "facts underlying this case" centers on Creech's other crimes—which obviously do not bear on whether "[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life"—and on the argument, repeatedly rejected by the state courts, that Creech engineered the fight with Jensen in order to create a pretext for killing him. The Idaho Supreme Court explicitly noted that the trial court did not "find that the murder had been performed on contract or by plan." State v. Creech, 105 Idaho 362, 364, 670 P. 2d 463, 465 (1983), cert. denied, 465 U. S. 1051 (1984). In fact, the trial court not only found that Jensen's attack was "unprovoked," but it went further and found that the unprovoked nature of the attack actually constituted a mitigating factor. See App. 52.
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