BANKS v. TEXAS - 464 U.S. 904 (1983)
U.S. Supreme Court
BANKS v. TEXAS , 464 U.S. 904 (1983)
464 U.S. 904
Delma BANKS, Jr.
Supreme Court of the United States
October 11, 1983
On petition for writ of certiorari to the Court of Criminal Appeals of Texas.
The petition for writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 2950 (1976), I would vacate the death sentence in this case.
Justice MARSHALL, dissenting from denial of certiorari.
Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Texas Court of Criminal Appeals insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U.S. 153, 231, 2973d 859 (1976) (MARSHALL, J., dissenting). However, even if I believed that the death penalty could be imposed under certain circumstances, I would grant certiorari and vacate the death sentence imposed here because the holding below is inconsistent with this Court's decision in Witherspoon v. Illinois, 391 U.S. 510 (1968).
In Witherspoon v. Illinois, this Court held that in a case in which the state seeks the death penalty, members of the venire cannot be excluded for cause simply because they voice general objections to the death penalty or express moral or religious scruples against its infliction. The only members of the venire who can properly be excluded for cause based upon their attitude toward the death penalty are those who make "unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Id., at 522, n. 21, 88 S. Ct., at 1777 n. 21 (emphasis in original). This Court has noted that the logic of Witherspoon would invalidate the exclusion for cause of members of a venire who indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. Ibid. This Court has also noted that the logic of Witherspoon would invalidate the exclusion for cause of prospective jurors in the penalty phase of a capital trial simply because such jurors aver frankly that while they will honestly find facts and answer interrogatories based on their findings, the prospect of the death penalty may affect their honest judgment of the facts or what they may deem to be a reasonable doubt. Adams v. Texas, 448 U.S. 38, 50, 100 S. Ct. 2521, 2529 (1979).
At petitioner's trial, the judge excluded several members of the venire on the ground that their opposition to the death penalty [464 U.S. 904 , 906]