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was harmless, because a properly instructed jury would beyond a reasonable doubt have found the existence of the torture special circumstance. Here, however, the California Supreme Court explicitly refused to make such a finding. The decision below can only be interpreted as concluding that the invalidation of a special circumstance—in this case, one out of only two—is harmless whenever the same mix of evidence would have been presented to the jury in the error’s absence. Because this conclusion cannot be squared with Clemons, I would vacate petitioner’s death sentence and direct the California Supreme Court to review that sentence under the appropriate standard. No. 91–5542. Lebbos v. State Bar of California. Sup. Ct. Cal. Motions for leave to file briefs as amici curiae filed by the following are granted: Roger Bartels, Barry Dale Ammon, Ronald Z. Berki, Raymond Dunn, Harold Rauch, John B. Gunn, Reginald Shinn, and John Rakus. Application for stay, addressed to The Chief Justice and referred to the Court, denied. Certiorari denied. Reported below: 53 Cal. 3d 37, 806 P. 2d 317. October 30, 1991 Miscellaneous Order No. A–267. American Newspaper Publishers Assn. et al. v. United States et al. Application for stay, presented to The Chief Justice, and by him referred to the Court, denied. Justice O’Connor took no part in the consideration or decision of this application. November 1, 1991 Miscellaneous Order. (For Court’s order making allotment of Justices, see ante, p. iv.) November 4, 1991 Vacated and Remanded on Appeal No. 91–337. Sheheen, Speaker of the House of Representatives of South Carolina v. Tisdale et al. Appeal from D. C. S. C. Judgment vacated and case remanded with instructions to dismiss the appeal as moot. United States v. Munsingwear, Inc., 340 U. S. 36 (1950). Reported below: 777 F. Supp. 1270.
