WASHINGTON -- The Supreme Court indicated yesterday that a majority of the justices want to decide, with no more delay, whether to overrule a major death penalty decision reached four years ago in a Maryland murder case.
Rather than wait until Tuesday, when the justices next would be in public session to issue orders, the court decided to announce yesterday that it had ordered lawyers in a Tennessee murder case to offer arguments for and against overruling the 1987 decision in Booth vs. Maryland -- an issue that neither side had raised in the Tennessee appeal.
In addition, the court said, it wanted the new case put on a speedier track so that it would be heard in April, in time for the justices to decide it before their summer recess.
Four years ago, in a case involving John "Ace" Booth, of Pimlico, the court restricted prosecutors' attempts to obtain death sentences by creating sympathy among jurors for murder victims' families.
The court ruled then that it is unconstitutional for prosecutors to offer "victim impact evidence" when they are asking a jury to sentence a convicted murderer to death.
The sentence should focus on the nature of the crime and the murderer, not the victim's family, the court said.
Since then, five of the present justices -- a majority of the court -- have indicated that they think the Booth decision was wrong.
The court had an opportunity to overrule that decision in a 1989 South Carolina case.
Instead, it expanded the Booth decision, ruling out evidence seeking to create juror sympathy for the victim as well as the victim's family.
Another opportunity came last month, when the court took up an Ohio case in which prosecutors urged that both the Booth decision and the 1989 ruling be overturned.
However, the court passed up that chance, too, saying the Ohio case was not a proper test of the question.
Yesterday, the court said it would use the Tennessee trial as the test case on retaining or discarding the Booth restriction on sentencing.
The court's action split the justices 6-3, with dissenters saying it was "unwise and unnecessary" for the court to generate a question that neither defense lawyers nor state attorneys had asked it to consider.
The dissenters were Justices Harry A. Blackmun, Thurgood Marshall and John Paul Stevens.
The new case involves Pervis Payne, sentenced to death in Tennessee for the stabbing murders of a Millington, Tenn., woman and her 2-year-old daughter.
A Tennessee court upheld the death sentence imposed by a jury, saying the jury would have given that sentence even if it had not heard evidence of the effect of the murders on the dead woman's 3-year-old son.