green
Positive treatment
Issue: Roberts ruleFL ↗
Issue: notion claimCO ↗
Issue: anti-sympathy instructionOK ↗
16.5 score
G Cite
cited 4× by 3 distinct cases, last quoted 1989 · 2 courts ·
…you must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence.
⚠ not in text
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988
2007
2026
Top citers, strongest first. 24 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
Jordan v. Epps
Jordan’s argument heavily relies on the case of Parks v. Brown, 860 F.2d 1545, 1553-55 (10th Cir.1988), which held that an “anti-sympathy” instruction violated the petitioner’s right to individualized consideration of the mitigating circumstances.
discussed
Cited as authority (rule)
State v. Carreon
On appeal, the defendant argued that the omission of the word “mere,” as a modifier of “sympathy,” erroneously directed the jurors “to ignore sympathy that is based on the mitigating evidence.” See Parks v. Brown, 860 F.2d 1545, 1553 (10th Cir.1988), rev’d by Saffle v. Parks, 494 U.S. 484 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990).
discussed
Cited as authority (rule)
Mollett v. Mullin
(2×)
Under Oklahoma law, “[a] life sentence may be given even if the jury finds aggravating circumstances outweigh mitigating circumstances.” Le v. State, 947 P.2d 535 , 554 n. 61 (Okla.Crim.App.1997); Bryan v. State, 935 P.2d 338, 364 (Okla.Crim.App.1997) (“As this Court has often held, a life sentence may be given notwithstanding a jury finding of aggravating circumstances which outweigh mitigating circumstances.”) (citing cases); see also LaFevers v. Gibson, 182 F.3d 705, 718 (10th Cir.1999) (“Under Oklahoma law, a jury is free to decline to impose the death penalty even if it finds th…
discussed
Cited as authority (rule)
Blue v. State
In support of this argument, Blue relies on the following: Pinkney v. State, 538 So.2d 329, 351 (Miss. 1988) ("a jury may not be instructed to disregard, in toto, sympathy"); Parks v. Brown, 860 F.2d 1545, 1552-59 (10 Cir.1988) ( en banc ), rev'd on other grounds sub. nom., Saffle v. Parks, 494 U.S. 484 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990) (Court held that the Eighth Amendment would be violated if the jury misunderstood the "anti-sympathy" instruction to mean that they were prohibited from exercising a moral or compassionate response to mitigation); Chenault v. Stynchcombe, 581 F.2d 444, …
discussed
Cited as authority (rule)
State v. Young
(2×)
The Tenth Circuit arrived at precisely this conclusion when it reached the merits of the claim in the Parks case, Parks v. Brown, 860 F.2d 1545, 1554-56 (10th Cir.1988), rev’d sub nom.
examined
Cited as authority (rule)
In Re the Personal Restraint of Rupe
(4×)
also: Cited "see"
Parks v. Brown, 860 F.2d 1545, 1548 (10th Cir.1988), cert. granted, 490 U.S. 1034 , 104 L.Ed.2d 402 , 109 S.Ct. 1930 (1989).
examined
Cited as authority (rule)
Mark A. Hopkinson v. Duane Shillinger, and the Attorney General of the State of Wyoming
(4×)
also: Cited "see"
That is, the court cannot agree whether or not the prosecutor’s statements were of the type which, when taken in context, “tend[ed] to shift the responsibility for the sentencing decision away from the jury.” Parks v. Brown, 860 F.2d 1545, 1549 (10th Cir.1988) (en banc), cert. granted, — U.S. -, 109 S.Ct. 1980 , 104 L.Ed.2d 402 (1989).
examined
Cited as authority (rule)
Mark A. Hopkinson v. Duane Shillinger, and the Attorney General of the State of Wyoming
(4×)
So don't let it bother your conscience, you know." 262 Parks v. Brown, 860 F.2d at 1549 (emphasis added).
discussed
Cited as authority (rule)
State v. Artis
(2×)
Parks v. Brown, 860 F.2d 1545, 1555 (10th Cir. 1988).
discussed
Cited as authority (rule)
Anthony Bertolotti v. Richard Dugger, Secretary, Florida Department of Corrections
(2×)
Parks v. Brown, 860 F.2d 1545, 1552 (10th Cir.1988) (in banc), cert, granted sub nom.
examined
Cited as authority (rule)
Fowler v. State
(4×)
also: Cited "see"
PARKS, Presiding Judge, concurring in part, dissenting in part: I concur in the affirmance of appellant's conviction; however, where, as here, the defendant has offered evidence of mitigating circumstances, it is unnecessary and confusing to the jury to give the so-called "anti-sympathy" instruction during the second stage as evidenced by the recent split of authority between the Tenth Circuit in Parks v. Brown, 860 F.2d 1545, 1552-59 (10th Cir.1988), and the Fifth Circuit in Byrne v. Butler, 847 F.2d 1135, 1139-40 (5th Cir.1988).
examined
Cited as authority (rule)
Fox v. State
(4×)
also: Cited "see"
Furthermore, where, as here, the defendant has offered evidence of mitigating circumstances, it is unnecessary and confusing to the jury to give the so-called "anti-sympathy" instruction during the second stage as evidenced by the recent split of authority between the Tenth Circuit in Parks v. Brown, 860 F.2d 1545, 1552-59 (10th Cir.1988), and the Fifth Circuit in Byrne v. Butler, 847 F.2d 1135, 1139-40 (5th Cir.1988).
discussed
Cited as authority (rule)
Charles William Davis v. Gary Maynard, Warden, Oklahoma State Penitentiary at McAlester Oklahoma
(2×)
The prosecutor merely underscored that the jury was part of the whole system of justice, and within that system it had a grave responsibility.” In that case, the prosecutor had told the jurors that they were “part of the process” and were “not functioning as individuals.” Similarly, in Parks v. Brown, 860 F.2d 1545, 1549-52 (1988) (en banc), we again rejected the notion that comments which emphasized the jury’s part in the criminal justice system transgress the Constitution.
cited
Cited "see"
Bland v. Sirmons
See Parks v. Brown, 860 F.2d 1545, 1549 (10th Cir.1988) (en banc) (finding that the prosecution’s statement that “[s]o all you are doing is you’re just following the law, and what the law says....
discussed
Cited "see"
Robedeaux v. Ward
See Parks v. Brown, 840 F.2d 1496 , 1500-01 (10th Cir. 1987) (considering all evidence, including inconsistent alibi defense, in determining whether Beck violation occurred), vacated on other grounds on reh’g en banc, 860 F.2d 1545 (10th Cir. 1988), rev’d sub nom.
discussed
Cited "see"
Steven Keith Hatch v. State of Oklahoma
(2×)
See Parks v. Brown, 840 F.2d 1496, 1500-01 (10th Cir.1987), rev'd on other grounds, 860 F.2d 1545 (1988) (10th Cir.) (en banc), rev'd on other grounds sub nom.
cited
Cited "see"
Benjamin Brewer v. Dan Reynolds
See Parks v. Brown, 860 F.2d 1545, 1554-55 (10th Cir.1988), rev’d sub nom.
discussed
Cited "see"
Banks v. State
See Cartwright v. State, 695 P.2d 548 (Okl.Cr. 1985) cert. denied 473 U.S. 911 , 105 S.Ct. 3538 , 87 L.Ed.2d 661 (1985). *1294 Petitioner next relies on Parks v. Brown, 860 F.2d 1545 (10th Cir.1988) cert. granted sub. nom.; Saffle v. Parks, 494 U.S. 484 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990) to challenge the jury instructions and claims the trial court violated the Eighth Amendment by instructing the jury that "it was not to allow sympathy to enter into its life and death deliberations".
cited
Cited "see"
Coleman v. Saffle
See Parks, 860 F.2d at 1553 . 67 Coleman's argument that the trial court's anti-sympathy instruction negated his counsel's plea for mercy or sympathy during his closing argument is troubling.
discussed
Cited "see, e.g."
Bryce Finley v. Dareld L. Kerby New Mexico Attorney General
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Lockhart v. Fretwell, 113 S.Ct. 838, 842 (1993). 5 We agree with the district court that counsel's decision not to call certain witnesses may have been a tactical decision, see, e.g., Parks v. Brown, 840 F.2d 1496, 1509 (10th Cir.1987), rev'd on reh'g on other grounds, 860 F.2d 1545 (10th Cir.1988), rev'd on other grounds, 494 U.S. 484 (1990), as a counsel's actions are usually based on strategic choices, see Strickland, 466 U.S. at 691 .
cited
Cited "see, e.g."
State ex rel. Ward v. Butler
Compare Parks v. Brown, 860 F.2d 1545 (10th Cir.1988), cert. granted sub nom.
discussed
Cited "see, e.g."
Britz v. Illinois
(2×)
Compare Byrne v. Butler, 847 F. 2d 1135 (CA5 1988), and State v. Clemmons, 753 S. W. 2d 901 (Mo.) (en banc), cert. denied, 488 U. S. 948 (1988), with People v. Hamilton, 46 Cal. 3d 123, 152 , and n. 7, 756 P. 2d 1348, 1364-1365 , and n. 7 (1988), cert. denied, ante, p. 1040, and Parks v. Brown, 860 F. 2d 1545, 1559 (CA10 1988).
Retrieving the full opinion text from the archive…
William E. Brock, Secretary of Labor, United States Department of Labor
v.
Joann Shirk, Individually and Doing Business as Oregon Meat Cutting School Frank B. Shirk, Individually and Doing Business as Oregon Meat Cutting School
v.
Joann Shirk, Individually and Doing Business as Oregon Meat Cutting School Frank B. Shirk, Individually and Doing Business as Oregon Meat Cutting School
86-4121.
Court of Appeals for the Ninth Circuit.
Nov 17, 1988.
Published
29 Wage & Hour Cas. (BN 34, 110 Lab.Cas. P 35,154
William E. BROCK, Secretary of Labor, United States
Department of Labor, Plaintiff-Appellant,
v.
Joann SHIRK, individually and doing business as Oregon Meat
Cutting School; Frank B. Shirk, individually and
doing business as Oregon Meat Cutting
School, Defendants-Appellees.
No. 86-4121.
United States Court of Appeals,
Ninth Circuit.
Nov. 17, 1988.
On Remand from the Supreme Court of the United States.
Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.
ORDER
[*~1545]1
The Supreme Court granted a petition for writ of certiorari, --- U.S. ----, 109 S.Ct. 38, 102 L.Ed.2d 18, it vacated our judgment of December 8, 1987, Brock v. Shirk, 833 F.2d 1326 (9th Cir.1987), and remanded the case to this court for further consideration in light of McLaughlin v. Richland Shoe Co., 486 U.S. ----, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988).
[*~1555]2
In Section II of our opinion, we followed the controlling precedent of this circuit in determining the meaning of the word "willful" in 29 U.S.C. Sec. 255. We relied upon Marshall v. Union Pac. Motor Freight Co., 650 F.2d 1085, 1092 (9th Cir.1981), and EEOC v. First Citizens Bank of Billings, 758 F.2d 397 (9th Cir.1985).
Our footnote 2 observed prophetically:
[*~1564]3
We recognize that other circuits have questioned that definition of willful, and that the Supreme Court will likely resolve the existing conflict among the circuits. See Brock v. Richland Shoe, 799 F.2d 80 (3d Cir.1986), cert. granted [--- U.S. ----, 108 S.Ct. 63, 98 L.Ed.2d 27] (1987). First Citizens is still the law of this circuit. It controls here.
[*~1570]4
The Court has indeed resolved the matter in McLaughlin v. Richland Shoe Co. We now remand the cause to the district court for appropriate reconsideration in light of that opinion.