Under
Witherspoon v. Illinois, 391 U.
S. 510, and its progeny, the right to an impartial jury
under the Sixth and Fourteenth Amendments prohibits the exclusion
of venire members for cause in capital cases unless their stated
opposition to the death penalty would prevent or substantially
impair the performance of their duties as jurors.
Davis v.
Georgia, 429 U. S. 122, in
effect established a
per se rule requiring the vacation of
a death sentence imposed by a jury from which a potential juror,
who has conscientious scruples against the death penalty but who
nevertheless, under
Witherspoon, is eligible to serve, has
been erroneously excluded for cause. At
voir dire during
petitioner's capital murder trial, the trial judge in eight
instances denied the prosecutor's motions to dismiss for cause
venire members who expressed some degree of doubt about the death
penalty. The prosecutor used peremptory challenges to remove those
eight panel members. When venire member Bounds, although initially
somewhat confused in her response, stated that she could reach a
guilty verdict and vote to impose the death penalty, the trial
judge nevertheless excused her for cause on the motion of the
prosecutor, who by then had exercised all of his peremptory
challenges. The judge acknowledged that he had made the prosecutor
use peremptory challenges against venire members whose opposition
to the death penalty was unequivocal. Ultimately, the Mississippi
Supreme Court affirmed petitioner's conviction and death sentence.
Although acknowledging that Bounds was clearly qualified to be a
juror, the court concluded that her erroneous exclusion did not
prejudice petitioner, since that error simply corrected other
errors the trial judge committed in refusing to dismiss venire
members for cause after they unequivocally stated that they could
not vote to impose the death penalty.
Held: The judgment is reversed in part and the case is
remanded.
472 So. 2d
409, reversed in part and remanded.
JUSTICE BLACKMUN delivered the opinion of the Court as to Parts
I, II, III-A, III-B-l, and IV, concluding that:
1. Venire member Bounds was clearly qualified to be seated as a
juror under
Witherspoon and its progeny. Thus, the trial
court was not authorized to exclude her for cause. Pp.
481 U. S.
657-659.
Page 481 U. S. 649
2.
Davis is reaffirmed.
Witherspoon violations
constitute reversible constitutional error, and cannot be subjected
to harmless error review. Pp.
481 U. S.
659-667.
(a) The State Supreme Court's analysis is rejected if and to the
extent it is based on the reasoning that the trial judge restored
one of the State's peremptory challenges by determining that he had
erred in denying one of the
Witherspoon motions, and that
Bounds' erroneous removal for cause was therefore harmless, since
the State would have used its restored challenge to remove her in
any case. This "unexercised peremptory" argument wrongly assumes
that the crucial question is whether a particular prospective juror
is excluded due to the court's erroneous ruling. Rather, the
relevant inquiry is whether the composition of the
jury panel
as a whole could possibly have been affected by the error.
However, the jury selection process requires a series of
on-the-spot decisions weighing the relative objectionableness of a
particular venire member against the number of peremptory
challenges available at that time. Thus, the nature of the
selection process defies any attempt to establish that an erroneous
Witherspoon exclusion is harmless. Pp.
481 U. S.
661-666.
(b) The State's argument that Bounds' exclusion was a single
technical error that should be considered harmless because it did
not have any prejudicial effect is unavailing under
Davis.
Pp.
481 U. S.
666-667.
3. The State Supreme Court's judgment cannot stand insofar as it
imposes the death sentence. P.
481 U. S.
668.
JUSTICE BLACKMUN, joined by JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS, concluded in Part III-B-2 that, since it
appears that prosecutors often use peremptory challenges to remove
venire members who have expressed any degree of hesitation against
imposing the death penalty, and because courts generally do not
review the prosecution's reasons for exercising peremptory
challenges, it cannot be said that an erroneous exclusion for cause
of a scrupled, yet eligible, venire member is an isolated incident
having no prejudicial effect in any particular case. The
constitutional right to an impartial jury is so basic to a fair
trial that its infraction can never be treated as harmless error.
Pp.
481 U. S.
667-668.
JUSTICE POWELL, agreed that the trial court erred in removing
Bounds for cause, and that
Davis therefore requires
petitioner's resentencing. But the proper exclusion by means of
peremptory challenges of other jurors who might have shared Bounds'
views did not exacerbate the prejudice created by her removal, and
has no significance to the decision of this case.
Witherspoon and its progeny do not restrict the
traditional rights of prosecutors to remove peremptorily jurors
believed to be unwilling to impose lawful punishment. Pp.
481 U. S.
669-672.
Page 481 U. S. 650
BLACKMUN, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III-A,
III-B-l, and IV, in which BRENNAN, MARSHALL, POWELL, and STEVENS,
JJ., joined, and an opinion with respect to Part III-B-2, in which
BRENNAN, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed an
opinion concurring in part and concurring in the judgment,
post, 481 U. S. 669.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and WHITE and O'CONNOR, JJ., joined,
post, 481 U. S.
672.
JUSTICE BLACKMUN announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II,
III-A, III-B-l, and IV, and an opinion with respect to Part
III-B-2, in which JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE
STEVENS join.
More than 10 years ago, in
Davis v. Georgia,
429 U. S. 122
(1976) (per curiam), this Court on certiorari summarily reversed a
judgment of a state court and ruled that, when a trial court
misapplies
Witherspoon v. Illinois, 391 U.
S. 510 (1968), and excludes from a capital jury a
prospective juror who in fact is qualified to serve, a death
sentence imposed by
Page 481 U. S. 651
the jury cannot stand. [
Footnote
1] This case presents the question whether the Court now should
abandon that ruling and, instead, subject an impermissible
exclusion to harmless error renew.
I
In June 1982, petitioner David Randolph Gray was indicted in
Harrison County, Miss., on a capital charge for the stabbing death
of Ronald Wojcik while engaged in the commission of the felony of
kidnaping. [
Footnote 2] The
trial judge began the jury selection process by assembling the
entire venire in the courtroom. He then formed an initial panel for
voir dire by calling 12 persons to the jury box.
Tr.193-194. After preliminary questioning by the court regarding
prior knowledge of the case and of the parties involved, the
prosecutor commenced his examination of the panel. After a member
was removed for cause or by the prosecutor's use of a peremptory
challenge, another venire member was called to the box for
questioning by the prosecutor. When the prosecutor reached the
point where he acknowledged that he would accept the full panel as
it stood, the
voir dire shifted to the defense, and
petitioner's attorney followed the same procedure. The questioning
continued in this alternating fashion, with each side examining
those venire members who had been called to the box since its last
opportunity to inquire, until the final panel was selected.
The panel members were questioned individually for the most
part, but this took place in the presence of the others
Page 481 U. S. 652
in the box as well as in the presence of all prospective jurors
in the courtroom waiting to be called. As a result, venire members
were able to learn the consequences of different responses. In
particular, they learned what response would likely result in their
being excluded from the jury. This knowledge caused difficulty
during the prosecutor's questioning. He asked each panel member
whether he or she had any conscientious scruples against capital
punishment, and whether he or she could vote to impose a death
sentence. Whenever a prospective juror revealed any such scruples
or expressed any degree of uncertainty in the ability to cast such
a vote, the prosecutor moved to have the panel member excused for
cause. In one instance, the court granted that motion.
Id.
at 368. In eight instances, however, the court denied the motion.
The prosecutor then used peremptory challenges to remove those
eight panel members. App. 3, 5, 6, 9, 12, 13, 15, 16. [
Footnote 3] After his denials of these
for-cause motions, the judge observed that venire members perhaps
were not being forthright in their responses to the prosecutor. He
criticized them for expressing insincere hesitation about
Page 481 U. S. 653
the death penalty in order to be excluded from the jury. He
admonished them: "Now I don't want nobody telling me that, just to
get off the jury. Now, that's not being fair with me."
Id.
at 16. [
Footnote 4]
By the time venire member Mrs. H. C. Bounds was called to the
jury box, the prosecutor had exercised all 12 of the State's
peremptory challenges,
see Miss.Code Ann. § 99-17-3
(1972), 4 of which apparently were exercised for reasons unrelated
to the panel members' responses to
Witherspoon questions.
See Tr. 301-302, 381, 390-391. Although the
voir
dire of member Bounds was somewhat confused, she ultimately
stated that she could consider the death penalty in an appropriate
case, and the judge concluded that Bounds was capable of voting to
impose it. [
Footnote 5]
Evidently deciding
Page 481 U. S. 654
that he did not want Bounds on the jury and realizing that he
had no peremptory challenge left, the prosecutor asked the court to
allow the State another such challenge. [
Footnote 6] App. 22. He argued that the court had erred
in denying five or six of the State's for-cause challenges, and
thereby had compelled the State to use its peremptory challenges
against those venire members. The prosecutor asserted that, if he
had another challenge, he would use it to remove Bounds.
Ibid.
The judge initially observed,
"Well, I think that's right, I made you use about five of them
that didn't equivocate. Uh, I never had no idea that we'd run into
this many."
Id. at 23. After defense counsel objected to granting
the State a 13th peremptory challenge,
ibid., the
prosecutor urged the court to reverse one of its earlier denials of
his for-cause motions, which would restore a peremptory challenge
to the State. The trial court responded:
"Well, I didn't examine them myself. Of course, I admit that
they were unequivocal, about five of them, that answered you that
way."
"Go ask her [Bounds] if she'd vote guilty or not guilty, . . .
and let's see what she says to that."
"If she says, if she gets to equivocating on that, I'm going to
let her off as a person who can't make up her mind."
Ibid.
In response to the prosecutor's questioning, Bounds stated that
she could reach either a guilty or not guilty verdict, and that she
could vote to impose the death penalty if the verdict were guilty.
Id. at 24. Despite these answers, the prosecutor
Page 481 U. S. 655
renewed his motion that she be removed for cause. Defense
counsel pointed out that Bounds' answers to the questions did not
render her excludable. He further contended that the prosecutor had
not properly questioned the earlier jurors, who had not been
excused for cause, to determine whether they were excludable under
Witherspoon. The judge agreed that the prosecutor had not
used the appropriate language and noted, "I should have questioned
them on this, I guess. . . ."
Id. at 25.
After still further discussion, the judge excused Bounds for
cause, but expressly declined to reconsider his earlier refusals to
strike venire members for cause. [
Footnote 7] The
voir dire continued until both
sides accepted 12 venire members in the box
Page 481 U. S. 656
and two alternates. The trial began that afternoon, and
concluded three days later when the jury convicted petitioner of
capital murder and sentenced him to death.
In an otherwise unanimous opinion, the Supreme Court of
Mississippi divided on petitioner's claim that his death sentence
was invalid because the exclusion of Bounds violated his right to a
fair and impartial jury, and was inconsistent with
Witherspoon's dictates.
472 So. 2d
409 (1985). The majority stated at the outset that the jury
selection problem in the case was created in part by the trial
court's failure to follow the
voir dire guidelines for
capital cases set forth in
Armstrong v.
State, 214 So. 2d
589, 593 (Miss.1968),
cert. denied, 395 U.S. 965
(1969), which were aimed at ensuring compliance with
Witherspoon. 472 So. 2d at 421. Despite this violation of
state procedure, the court affirmed petitioner's sentence, as well
as the judgment of conviction.
The majority explained that reluctance on the part of some
venire members to serve complicated the jury selection.
Ibid. The majority did not discuss in any detail the
voir dire of the venire members whom the State removed by
peremptory challenges. It noted, however, that the trial court had
refused to excuse several jurors who had expressed conscientious
scruples against the death penalty and who had stated they could
not vote to inflict it. The majority offered the following
explanation for the trial judge's action:
"It is abundantly clear from the record that his reason for
doing so was because he believed that the jurors were simply
claiming to have conscientious scruples against the death penalty
so that they could be released from jury service. Confronted by
what he believed to be insincere attestations of personal moral
convictions, the trial court was unwilling to dismiss those jurors
for cause even though their responses clearly indicated that they
could properly be so dismissed both under
Witherspoon and
Adams
\[v. Texas, 448 U. S. 38 (1980)]."
Id. at 421-422 (footnote omitted).
Page 481 U. S. 657
After reviewing Bounds'
voir dire, the majority agreed
with petitioner that Bounds "was clearly qualified to be seated as
a juror under the
Adams and
[ 469 U.
S. ] Witt, [
469 U.S.
412 (1985)] criteria."
Id. at 422. It concluded,
however, that petitioner was not prejudiced by the trial court's
erroneous exclusion of this juror:
"The force and effect of the trial court's ruling was to correct
an error he had committed in refusing to dismiss other jurors for
cause after they had unequivocally stated that they could not vote
to impose the death penalty in any circumstance. . . . That being
the case, the trial court was correct when it recognized the error
in its prior rulings and took affirmative action to correct that
error."
Id. at 422-423.
Writing in dissent and joined by two other members of the court,
Justice Sullivan emphasized that, according to the record, the
trial judge excused Bounds for cause ("the majority . . .
contradicts the trial judge's very words"), not on the basis of a
peremptory challenge.
Id. at 424. In the dissent's view,
the majority's reasoning was invalid because, under
Davis v.
Georgia, courts could not treat erroneous
Witherspoon
dismissals as harmless error. 472 So. 2d at 425.
We granted certiorari, 475 U.S. 1010 (1986), to consider whether
to abandon the
Davis ruling and whether the improper
excusal of a juror for cause can be harmless.
II
In
Witherspoon, this Court held that a capital
defendant's right, under the Sixth and Fourteenth Amendments, to an
impartial jury prohibited the exclusion of venire members
"simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against
its infliction."
391 U.S. at
391 U. S. 522.
It reasoned that the exclusion of venire members must be limited to
those who were
"irrevocably committed . . . to vote against the penalty
Page 481 U. S. 658
of death regardless of the facts and circumstances that might
emerge in the course of the proceedings,"
and to those whose views would prevent them from making an
impartial decision on the question of guilt.
Id. at
391 U. S. 522,
n. 21. We have reexamined the
Witherspoon rule on several
occasions, one of them being
Wainwright v. Witt,
469 U. S. 412
(1985), where we clarified the standard for determining whether
prospective jurors may be excluded for cause based on their views
on capital punishment. We there held that the relevant inquiry
is
"whether the juror's views would 'prevent or substantially
impair the performance of his duties as a juror in accordance with
his instructions and his oath.'"
Id. at
469 U. S. 424,
quoting
Adams v. Texas, 448 U. S. 38,
448 U. S. 45
(1980).
There is no need to delve again into the intricacies of that
standard. It is necessary, however, to keep in mind the
significance of a capital defendant's right to a fair and impartial
jury under the Sixth and Fourteenth Amendments.
JUSTICE REHNQUIST, in writing for the Court, recently
explained:
"It is important to remember that not all who oppose the death
penalty are subject to removal for cause in capital cases; those
who firmly believe that the death penalty is unjust may
nevertheless serve as jurors in capital cases so long as they state
clearly that they are willing to temporarily set aside their own
beliefs in deference to the rule of law."
Lockhart v. McCree, 476 U. S. 162,
476 U. S. 176
(1986). The State's power to exclude for cause jurors from capital
juries does not extend beyond its interest in removing those jurors
who would
"frustrate the State's legitimate interest in administering
constitutional capital sentencing schemes by not following their
oaths."
Wainwright v. Witt, 469 U.S. at
469 U. S. 423.
To permit the exclusion for cause of other prospective jurors based
on their views of the death penalty unnecessarily narrows the
cross-section of venire members. It
"stack[s] the deck against the petitioner. To execute
Page 481 U. S. 659
[such a] death sentence would deprive him of his life without
due process of law."
Witherspoon v. Illinois, 391 U.S. at
391 U. S.
523.
Every Justice of the Mississippi Supreme Court expressly stated
that panel member Bounds "was clearly qualified to be seated as a
juror under the
Adams and
Witt criteria." 472 So.
2d at 422 and 424. We agree. Gray's death sentence therefore cannot
stand unless this Court chooses to abandon
Davis.
III
Although
Davis was not cited in the Mississippi Supreme
Court's majority opinion in the present case, this Court in
Davis surely established a
per se rule requiring
the vacation of a death sentence imposed by a jury from which a
potential juror, who has conscientious scruples against the death
penalty but who nevertheless, under
Witherspoon, is
eligible to serve, has been erroneously excluded for cause.
See
Davis, 429 U.S. at
429 U. S.
123-124 (dissenting opinion). The
Davis per
curiam opinion served to identify the Court's course after
Witherspoon. [
Footnote
8] Soon after
Witherspoon was decided, the Court was
presented with several situations in which state courts had
exhibited their confusion as to how to apply the standard
enunciated in that case. [
Footnote
9] In 1971, it had summarily �
14 and S. 660� reversed the judgments in 23 cases
imposing death sentences and had remanded the cases for further
proceedings in light of
Witherspoon and its progeny.
See 403 U.S. 946-948. Several of the state courts in those
cases had relied on harmless error analyses similar to those
Mississippi seeks to resurrect here.
See nn.
14 and |
14 and S. 648fn16|>16,
infra.
We did not have occasion to revisit the
Witherspoon
issue during the period between the decision in
Furman v.
Georgia, 408 U. S. 238
(1972), and
Branch v. Texas, decided with
Furman,
where Georgia and Texas death sentences were invalidated, and the
decisions in
Gregg v. Georgia, 428 U.
S. 153 (1976), and its companion cases, where we upheld
post-
Furman death penalty statutes against constitutional
challenge. But after
Gregg, the
Witherspoon issue
again appeared. In fact, our first post-
Gregg opinion in a
capital case was
Davis, which served to inform lower
courts that we would continue to treat
Witherspoon
violations as reversible constitutional error in the
post-
Gregg era. 429 U.S. at
429 U. S. 123.
The instant case presents yet another opportunity for this Court to
adopt a harmless error analysis, and once again we decline to do
so.
The efforts to apply a harmless error determination to
Witherspoon violations have suggested two analyses.
See Krauss, The
Witherspoon Doctrine at Witt's
End: Death-Qualification Reexamined, 24 Am.Crim.L.Rev. 1, 32, n.
111 (1987). The first is to consider the state's retention of
unexercised peremptory challenges at the end of jury selection as
an indication that the erroneous for-cause exclusion was harmless.
This approach relies on a representation by the state that it would
have removed the venire member by peremptory challenge if the court
had denied its for-cause
Page 481 U. S. 661
motion. The second is to treat the erroneous exclusion as an
isolated incident without prejudicial effect if it cannot be said
that the ultimate panel did not fairly represent the community
anyway. The Mississippi Supreme Court appears to have relied on a
variation of the first analysis; respondent urges the Court to
adopt the second. [
Footnote
10] We find each unpersuasive.
A
The seeming ambiguity of the Mississippi Supreme Court's opinion
complicates somewhat our examination of its harmless error
analysis. The opinion is susceptible to three possible
interpretations. The first is that, in the court's view, the trial
judge recognized that he had erred earlier in failing to dismiss
one of the jurors for cause, and therefore restored to the State a
peremptory challenge that the prosecutor then exercised to remove
Bounds. The second is that the court could be seen as concluding
that the trial court itself offset its earlier error in denying a
valid for-cause
Witherspoon motion by granting an invalid
for-cause
Witherspoon motion as to Bounds. The third is
that the court could be seen to have decided that the trial judge
restored a peremptory challenge to the State, by determining that
he had erred previously in denying one of the prosecutor's
Witherspoon motions, but still removed Bounds for cause.
Under this interpretation, the court would have reasoned that,
although the trial judge erred in removing Bounds for cause, the
error was harmless because the State had an unexercised peremptory
challenge
Page 481 U. S. 662
that the prosecutor would have used to remove Bounds if the
trial judge had refused to remove her for cause.
We disagree with the judgment if and to the extent it rests on
the first interpretation, because that reasoning is wholly
unsupported by the record. The trial judge was explicit in his
explanation that Bounds was removed for cause.
See
n 7,
supra. It is by
no means clear that, in his view, he erred in denying the
prosecutor's
Witherspoon motions. Whether he actually
erred in his earlier denials simply cannot be discerned from the
record. Although the trial judge acknowledged that some of the
venire members had responded to the prosecutor's questioning in
language at least suggesting that they would be excludable under
Witherspoon, the judge agreed with defense counsel that
the prosecutor had not properly questioned the earlier venire
members. App. 25. In order to avoid errors based on this type of
failure to establish an adequate foundation for juror exclusion,
Mississippi law, contrary to the implications in the dissent,
requires the trial judge himself to question the venire members.
[
Footnote 11] The trial
judge in this case, however, did not comply with the Mississippi
procedure. Had he done so, despite their initial
Page 481 U. S. 663
responses, the venire members might have clarified their
positions upon further questioning and revealed that their concerns
about the death penalty were weaker than they originally stated. It
might have become clear that they could set aside their scruples
and serve as jurors. The inadequate questioning regarding the
venire members' views in effect precludes an appellate court from
determining whether the trial judge erred in refusing to remove
them for cause. [
Footnote
12]
We also disagree with the judgment of the Mississippi Supreme
Court if and to the extent that it might be seen to approve a trial
court's remedying an erroneous denial of a
Witherspoon
motion by granting an invalid
Witherspoon motion. Our
reasons are embraced by that well-worn adage that "two wrongs do
not make a right." Although we prefer that a trial court remedy its
own mistakes if possible, we cannot condone the "correction" of one
error by the commitment of another.
Moreover, the fact that the State may have been deprived
improperly of peremptory challenges does not render the
Witherspoon error any less a violation of petitioner's
constitutional rights guaranteed by the Sixth and Fourteenth
Amendments. Peremptory challenges are not of constitutional origin.
See Batson v. Kentucky, 476 U. S. 79,
476 U. S. 91
(1986);
Swain v. Alabama, 380 U.
S. 202,
380 U. S. 219
(1965);
Stilson v. United States, 250 U.
S. 583,
250 U. S. 586
(1919). In a situation such as this, where a constitutional right
comes into conflict with a statutory right, the former prevails.
[
Footnote 13]
Page 481 U. S. 664
Finally, we disagree with the Mississippi Supreme Court's
judgment if and to the extent it holds that a
Witherspoon
violation constitutes harmless error when the prosecutor has an
unexercised peremptory challenge that he states he would have used
to excuse the juror. At least two of this Court's 1971 summary
reversals stand as prior rejections of this "unexercised
peremptories" argument. [
Footnote 14]
A fresh examination of this argument also leads us to conclude
that it must be rejected. [
Footnote 15] The unexercised peremptory
Page 481 U. S. 665
argument assumes that the crucial question in the harmless error
analysis is whether a particular prospective juror is excluded from
the jury due to the trial court's erroneous ruling. Rather, the
relevant inquiry is "whether the composition of the
jury panel
as a whole could possibly have been affected by the trial
court's error" (emphasis in original).
Moore v. Estelle,
670 F.2d 56, 58 (CA5) (specially concurring opinion),
cert.
denied, 458 U.S. 1111 (1982). Due to the nature of trial
counsel's on-the-spot decisionmaking during jury selection, the
number of peremptory challenges remaining for counsel's use clearly
affects his exercise of those challenges. A prosecutor with fewer
peremptory challenges in hand may be willing to accept certain
jurors whom he would not accept given a larger reserve of
peremptories. Even if one is to believe the prosecutor's statement
that, if his motion to remove Bounds for cause had been denied and
he had had a peremptory remaining, he would have used it to remove
her, we cannot know whether, in fact, he would have had this
peremptory challenge left to use. That is, if the court had granted
one or more of his earlier motions to remove for cause, the
prosecutor may have used his peremptory challenges on other jurors
whom he did not strike when he had fewer peremptory challenges to
exercise. The nature of the jury selection process defies any
attempt to establish that an erroneous
Witherspoon-Witt
exclusion of a juror is harmless.
The practical result of adoption of this unexercised peremptory
argument would be to insulate jury selection error from meaningful
appellate review. By simply stating during
voir dire that
the State is prepared to exercise a peremptory challenge if the
court denies its motion for cause, a prosecutor could ensure that a
reviewing court would consider any
Page 481 U. S. 666
erroneous exclusion harmless. A prosecutor, as a routine matter,
would likely append a statement to this effect to his motion for
cause.
B
1
The State's argument that the erroneous exclusion of Bounds was
a single technical error that should be considered harmless because
it did not have any prejudicial effect is equally unavailing. The
judgment of the Supreme Court of Georgia that was reversed in
Davis rested on a similar analysis.
See Davis v.
State, 236 Ga. 804,
225 S.E.2d 241
(1976). In this Court's
Davis opinion, it cited three of
its 1971 summary reversals which can be read as having rejected
this argument. [
Footnote 16]
429 U.S. at
429 U. S. 123.
The State nevertheless urges us to apply the constitutional
harmless error analysis formulated in
Chapman v.
California, 386 U. S. 18
(1967), and affirm petitioner's death sentence.
In
Davis v. State, the Georgia Supreme Court concluded
that, despite the erroneous exclusion of a venire member whose
scruples about the death penalty did not justify
Witherspoon exclusion, Davis death sentence could stand.
The Georgia court correctly read
Witherspoon to prohibit
the State from "
entrust[ing] the determination of whether a man
should live or die to a tribunal organized to return a verdict of
death,'" and from "`stack[ing] the deck against the petitioner.'"
236 Ga. at 809, 225 S.E.2d at 244, quoting Witherspoon v.
Illinois, 391 U.S. at 521, 391 U. S. 523.
It focused on Witherspoon's statement that
"'the decision whether a man deserves to live or die must be
made on scales that are
Page 481 U. S. 667
not deliberately tipped toward death.'"
236 Ga. at 809, 225 S.E.2d at 244, further quoting
Witherspoon, 391 U.S. at
391 U. S.
521-522, n. 20. The Georgia court, however, then
concluded:
"The rationale of
Witherspoon and its progeny is not
violated where merely
one of a qualified class or group is
excluded where it is shown, as here, that others of such group were
qualified to serve."
236 Ga. at 809, 225 S.E.2d at 244-245. The court observed
that
"other veniremen who initially expressed opposition to capital
punishment . . . were not excused when, upon further examination,
it was determined they were not unalterably opposed to the death
penalty under all circumstances."
Id. at 810, 225 S.E.2d at 245. Nevertheless, this Court
reversed the judgment and held that the subsequently imposed death
sentence could not stand.
2
We reaffirm that ruling today in a case that brings into focus
one of the real-world factors that render inappropriate the
application of the harmless error analysis to such erroneous
exclusions for cause. Unlike
Davis, in which the state
court found that the erroneous exclusion of the scrupled, yet
eligible, venire member was an isolated incident because the record
revealed that similar jurors were not excused, the record in the
instant case does not support such a finding. In fact, it suggests
the opposite -- that the State exercised its peremptory challenges
to remove all venire members who expressed any degree of hesitation
against the death penalty. [
Footnote 17] Because courts do not generally review the
prosecution's reasons for exercising peremptory challenges,
[
Footnote 18] and because
it
Page 481 U. S. 668
appears that prosecutors often use peremptory challenges in this
manner, [
Footnote 19] a
court cannot say with confidence that an erroneous exclusion for
cause of a scrupled, yet eligible, venire member is an isolated
incident in that particular case. Therefore, we cannot say that
courts may treat such an error as an isolated incident having no
prejudicial effect.
Because the
Witherspoon-Witt standard is rooted in the
constitutional right to an impartial jury,
Wainwright v.
Witt, 469 U.S. at
469 U. S. 416,
and because the impartiality of the adjudicator goes to the very
integrity of the legal system, the
Chapman harmless error
analysis cannot apply. We have recognized that "some constitutional
rights [are] so basic to a fair trial that their infraction can
never be treated as harmless error."
Chapman v.
California, 386 U.S. at
386 U. S. 23.
The right to an impartial adjudicator, be it judge or jury, is such
a right.
Id. at
386 U. S. 23, n.
8, citing, among other cases,
Tumey v. Ohio, 273 U.
S. 510 (1927) (impartial judge). As was stated in
Witherspoon, a capital defendant's constitutional right
not to be sentenced by a "tribunal organized to return a verdict of
death" surely equates with a criminal defendant's right not to have
his culpability determined by a "tribunal
organized to
convict.'" 391 U.S. at 391 U. S. 521,
quoting Fay v. New York, 332 U. S. 261,
332 U. S. 294
(1947).
IV
The judgment of the Supreme Court of Mississippi, insofar as it
imposes the death sentence, is reversed, and the case is remanded
to that court for further proceedings not inconsistent with this
opinion.
It is so ordered.
Page 481 U. S. 669
[
Footnote 1]
Three Members of the Court dissented from the summary
disposition of the
Davis case. They would have given it
plenary consideration.
See 429 U.S. at
429 U. S. 123.
The Court, of course, at times has said that summary action here
does not have the same precedential effect as does a case decided
upon full briefing and argument.
See, e.g., Edelman v.
Jordan, 415 U. S. 651,
415 U. S. 671
(1974).
[
Footnote 2]
The circumstances of the repulsive crime are set forth in the
opinion of the Supreme Court of Mississippi.
See 472 So. 2d
409, 412 (1985). Because the legal issue presented for this
Court's review concerns the procedures followed during jury
selection, we confine our recitation of facts to those relevant to
that process.
[
Footnote 3]
A motion to excuse a venire member for cause, of course, must be
supported by specified causes or reasons that demonstrate that, as
a matter of law, the venire member is not qualified to serve. J.
Van Dyke, Jury Selection Procedures 139-140 (1977). There is no
limitation on the number of venire members who may be challenged
for cause.
Ibid. In contrast, States traditionally have
limited the number of peremptory challenges allotted to litigants
because peremptory challenges ordinarily can be exercised without
articulating reasons,
id. at 145-147, subject to
constitutional limitations.
See Batson v. Kentucky,
476 U. S. 79
(1986). A Mississippi statute provides: "In capital cases the
defendant and the state shall each be allowed twelve peremptory
challenges." Miss.Code Ann. § 99-17-3 (1972).
Although the prosecutor at Gray's trial did not refer expressly
to this Court's decision in
Witherspoon v. Illinois,
391 U. S. 510
(1968), it is clear that he was attempting to convince the court
that these eight prospective jurors' scruples about the death
penalty were so strong that they would not merely heighten the
jurors' sense of responsibility, but rather would prevent them from
acting in accordance with their oaths, Tr. 408, and thus, under
Witherspoon, render them excludable for cause.
[
Footnote 4]
Our review of the transcript of the entire
voir dire
reveals that this problem had become apparent to the prosecutor
before the judge uttered his admonition. During his earlier
questioning of another venire member, who stated that he might have
conscientious scruples against capital punishment, the prosecutor
interrupted and said:
"Let me tell you this, let me say this to you before you answer
that. . . . I need to know whether you believe in that or whether
you want to get off the Jury. You'd just rather not serve."
App. 13. Another venire member's response to the prosecutor's
Witherspoon question is equally telling:
"I mean, the way the Jury is going now, what I'm saying is, I
would, I would vote not guilty. . . . I would, you know, I would
vote not guilty on the Death Penalty."
Id. at 7-8.
[
Footnote 5]
The court questioned Bounds in an effort to clarify her
position:
"BY THE COURT: In other words, you do not have any conscientious
scruples against the imposition of the Death Penalty, if it's
authorized by law. Is that right?"
"BY MRS. BOUNDS: No."
"BY THE COURT: No. Okay."
Id. at 18. After further questioning by the prosecutor
in an attempt to demonstrate that Bounds was excludable for cause,
the court again acknowledged Bounds' eligibility to serve:
"BY THE COURT: You could vote for the Death Penalty?"
"BY MRS. BOUNDS: I think I could."
"BY THE COURT: All right. She says she can vote for the Death
Penalty."
Id. at 22.
[
Footnote 6]
In response to questioning from this Court during oral argument
here, counsel for the State said that, in some Mississippi cases,
the trial judge has allowed additional peremptory challenges. He
went on to say, however, that he was unaware of any state court
decision on the issue. Tr. of Oral Arg. 35-37. He noted that, on
the occasions of which he was aware, when additional peremptory
challenges were granted, the opposing side also received an equal
number.
Id. at 36.
[
Footnote 7]
The court prefaced its conclusion with the following
explanation:
"I'd hate to get a conviction and get it reversed because of
this one woman. She can't make up her mind."
"Well, let the record show that the Court is of the firm opinion
that there was at least five, even though I think there's around
nine challenges been used by the District Attorney for cause,
either eight or nine, all right, there was eight of them that had
said that they were against capital punishment."
"And I think there was, uh, five of those that were
unequivocally opposed to it and answered, in substance, if not even
stronger language than the question set forth in the
Witherspoon case, uh, from the United States Supreme
Court, uh, that I should, at this point, allow him to challenge
this lady for cause. She is totally indecisive. I think she is
totally indecisive. She says one thing one time, and one thing
another."
"The Court is of the opinion that it cheated the State . . . by
making the District Attorney use his peremptory challenges in at
least five instances. And I'm going to allow it in this particular
case."
"BY MR. STEGALL [defense counsel]: Excuse her for cause?"
"BY THE COURT: I'm going to excuse her."
"BY MR. STEGALL: Let me ask the Court this, is the Court of the
opinion that, uh, that there has been a sufficient record. . .
."
"BY THE COURT: (Interposing) I'm not going to add any to his
challenges."
"BY MR. STEGALL: Okay. All right."
"BY THE COURT: I'm not going to go back and give him five more.
I'm going to excuse her for cause."
App. 26 (emphasis added).
[
Footnote 8]
During the two years following
Witherspoon, the Court
twice reaffirmed its holding in brief opinions demonstrating its
correct application.
See Boulden v. Holman, 394 U.
S. 478,
394 U. S.
481-484 (1969), and
Maxwell v. Bishop,
398 U. S. 262,
398 U. S.
264-266 (1970) (per curiam).
[
Footnote 9]
Some courts already had recognized, however, the full import of
the constitutional mandate expressed in
Witherspoon. In
Marion v. Beto, 434 F.2d 29 (1970),
cert. denied,
402 U.S. 906 (1971), the Court of Appeals for the Fifth Circuit
described the split among state and lower federal courts on the
effect of
Witherspoon violations. 434 F.2d at 31-32. It
concluded that the improper exclusion of even a single prospective
juror from a capital jury required reversal of a death sentence for
the reason that it prejudiced a defendant's right to an impartial
jury, a right of particular significance in capital cases because
of the magnitude of the decision and because jury unanimity was
required.
Id. at 32. The Supreme Court of California
refused to find an erroneous exclusion harmless even though it was
suggested that the prosecutor would have used his peremptory
challenges to exclude all prospective jurors opposed to the death
penalty.
In re Anderson, 69 Cal. 2d
613, 618-620, 447 P.2d 117, 121-122 (1968),
cert. denied
sub nom. Anderson v. California, 406 U.S. 971 (1972). It noted
that
Witherspoon held that exclusion of all such
prospective jurors did not yield an impartial jury. 69 Cal. 2d at
620, 447 P.2d at 122.
[
Footnote 10]
The State has devoted a significant portion of its brief to an
argument based on the deference this Court owes to findings of fact
made by a trial court. Such deference is inappropriate where, as
here, the trial court's findings are dependent on an apparent
misapplication of federal law,
Rogers v. Richmond,
365 U. S. 534,
365 U. S. 547
(1961), and are internally inconsistent. We rest our reasoning on
the one unambiguous finding made by the trial court and affirmed on
appeal -- that the court was not authorized under the
Witherspoon-Witt standard to exclude venire member Bounds
for cause.
See n 5,
supra.
[
Footnote 11]
The Mississippi Supreme Court, in the present case, explained
that, under state law in a capital case, the trial judge should ask
the venire members
"'if any member of the panel has any conscientious scruples
against the infliction of the death penalty, when the law
authorizes it, in proper cases, and where the testimony warrants
it. If there are those who say that they are opposed to the death
penalty, the trial judge should then go further and ask those
veniremen who have answered in the affirmative whether or not they
could, nevertheless, follow the testimony and the instructions of
the court and return a verdict of guilty although that verdict
could result in the death penalty, if they, being the judges of the
weight and worth of the evidence, were convinced of the guilt of
the defendant and the circumstances warranted such a verdict. Those
who say that they could follow the evidence and the instructions of
the court should be retained, and those who cannot follow the
instructions of the court should be released.'"
472 So. 2d at 421, quoting
Armstrong v.
State, 214 So. 2d
589, 593 (Miss.1968).
[
Footnote 12]
The trial judge himself belatedly realized that he should have
questioned the jurors more extensively, pursuant to state law,
about their views on the death penalty. App. 23, 26. Furthermore,
if he had intended to correct earlier errors, one would expect that
he would have identified specifically the earlier rulings he
considered erroneous, and restored to the prosecutor enough
peremptory challenges to compensate for the errors.
[
Footnote 13]
We do not suggest that, if the trial judge believed that he had
applied an erroneous standard during
voir dire, there was
no way to correct the error. The Mississippi Supreme Court said
that a trial court "should be afforded the opportunity to correct
any errors at trial by way of a motion for a new trial." 472 So. 2d
at 423. In the situation presented by this case, the equivalent
action would have been to dismiss the venire
sua sponte,
and start afresh. The parties agreed that a new special capital
venire could have been compiled in less than a month. Tr. of Oral
Arg. 34-35, 46. The time period might have been even shorter in
this case, because the parties waived any right to have a special
venire called. Tr. 52.
[
Footnote 14]
In
People v. Bernette, 45 Ill. 2d
227,
258 N.E.2d
793 (1970), for example, the Supreme Court of Illinois had
considered any
Witherspoon violation to be harmless error
because the State had 33 of its 40 peremptory challenges remaining
that it otherwise might have used against the improperly excluded
jurors.
Id. at 232, 258 N.E.2d at 796. This Court
summarily reversed the Illinois Supreme Court's judgment. 403 U.S.
947 (1971).
See also Wigglesworth v. Ohio, 403 U.S. 947
(1971),
rev'g 18 Ohio St.2d 171, 181, 248 N.E.2d 607, 614
(1969).
[
Footnote 15]
Other opinions expressly rejecting the unexercised peremptory
argument are numerous. In
Moore v. Estelle, 670 F.2d 56,
57 (CA5),
cert. denied, 458 U.S. 1111 (1982), the court
rejected the argument because it refused to "countenance what
amounts to an attempt to exercise -- retroactively and by affidavit
in defense of a collateral attack -- peremptory challenges reserved
at the time."
See also Hance v. Zant, 696 F.2d 940, 956
(CA11),
cert. denied, 463 U.S. 1210 (1983) (existence of
unexercised peremptory challenges does not render harmless
exclusion of prospective alternate juror in violation of
Witherspoon);
Blankenship v. State, 247 Ga. 590,
277 S.E.2d
505, 280 S.E.2d 623 (1981) (
see also specially
concurring opinion on motion for reconsideration,
id. at
597, 280 S.E.2d at 624, demonstrating that unexercised peremptory
harmless error approach is inappropriate because, in the jury
selection process, "there are too many variables which may give
rise to the non-use of a peremptory challenge");
Grijalva v.
State, 614
S.W.2d 420, 424-425 (Tex.Crim.App.1981) (rejecting argument as
matter of state law because allowing retrospective exercise of
peremptory challenges on appeal transforms "a peremptory strike
against a prospective juror" into "a peremptory strike against a
ground of error").
[
Footnote 16]
In
State v. Adams, 76 Wash. 2d
650,
458 P.2d
558 (1969), the Supreme Court of Washington reasoned that the
incorrect exclusion of one potential juror did not require reversal
of the death sentence because there was not an improper systematic
exclusion of venire members.
Id. at 680-681, 458 P.2d at
576. This Court summarily reversed. 403 U.S. 947 (1971).
See
also Wigglesworth v. Ohio, 403 U.S. 947 (1971),
rev'g
18 Ohio St.2d 171, 248 N.E.2d 607 (1969), and
Harris v.
Texas, 403 U.S. 947 (1971),
rev'g 457
S.W.2d 903 (Tex.Crim.App.1970).
[
Footnote 17]
The prosecutor made his goal very clear at one point:
"[W]hat I am trying to do is to find twelve people who tells
[
sic] me that they have no conscientious scruples against
capital punishment when imposed by the law."
App. 16.
[
Footnote 18]
Under our recent decision in
Batson v. Kentucky,
476 U. S. 79
(1986), however, a prosecutor's use of peremptory challenges is
subject to judicial review when a defendant establishes a
prima
facie case of purposeful discrimination based on evidence
concerning the prosecutor's exercise of peremptory challenges at
the defendant's trial.
[
Footnote 19]
See Winick, Prosecutorial Peremptory Challenge
Practices in Capital Cases: An Empirical Study and a Constitutional
Analysis, 81 Mich.L.Rev. 1 (1982); Lindsay, Prosecutorial Abuse of
Peremptory Challenges in Death Penalty Litigation: Some
Constitutional and Ethical Considerations, 8 Campbell L.Rev. 71
(1986).
JUSTICE POWELL, concurring in part and concurring in the
judgment.
In
Davis v. Georgia, 429 U. S. 122
(1976) (per curiam), we held that, if a single venire member is
erroneously excluded for cause because of his views on the death
penalty, a subsequently imposed capital sentence is invalid. The
facts of this case show that Mrs. Bounds, although at times
confused by the inartful
voir dire questioning, finally
stated explicitly that she would carry out her duty as a juror.
Cf. Wainwright v. Witt, 469 U. S. 412,
469 U. S. 424
(1985) (juror not excludable for cause unless his views would
"
prevent or substantially impair the performance of his duties
as a juror'" (quoting Adams v. Texas, 448 U. S.
38, 448 U. S. 45
(1980))). Given Mrs. Bounds' willingness to impose a capital
sentence in an appropriate case, I agree that the trial court erred
in removing her for cause. We therefore are presented with the
precise issue addressed in Davis.
I joined the per curiam opinion in
Davis, and continue
to believe that an improper exclusion of a juror in a capital case
on these grounds should not be subject to a harmless error
analysis. The facts before us illustrate why a harmless error
analysis is inappropriate. JUSTICE SCALIA's dissent concludes that
the exclusion of Mrs. Bounds had no effect on the composition of
the jury because the prosecutor should have been allowed to exclude
her peremptorily. The dissent points out that the prosecutor was
required to exhaust his peremptory challenges because the trial
judge erroneously refused to exclude other jurors for cause,
despite their unequivocal opposition to the death penalty.
Post at
481 U. S. 673.
I agree that a number of these earlier jurors should have been
excused. [
Footnote 2/1]
Nevertheless, I cannot assume that the prosecutor
Page 481 U. S. 670
would have excluded Mrs. Bounds "but for" these mistakes. As the
Court notes, it is difficult on appeal to reconstruct the
prosecutor's
voir dire strategy, and to predict who would
have been excluded had the facts been different. If the prosecutor
had not been compelled to use his challenges on other jurors, he
certainly
may have excluded Bounds. It also is possible,
however, that the prosecutor would have saved his challenges on the
chance that a more objectionable juror would come along, or perhaps
he would have excluded an earlier juror on other grounds. Given our
requirement of enhanced reliability in capital cases, I would
hesitate to conclude that the composition of the venire
"definitely" would have been the same, based solely on speculation
as to how the prosecutor might have acted. [
Footnote 2/2] I therefore join in the judgment, and
generally in the opinion except for Part III-B-2.
Page 481 U. S. 671
I disagree with the plurality to the extent that its decision
rests on "real-world factors" such as the prosecutor's use of
peremptory challenges. The plurality notes that
Davis
involved the exclusion of a single qualified venire member.
Ante at
481 U. S. 667.
The state court in
Davis found no error because the
exclusion was an isolated incident, a conclusion that this Court
expressly rejected.
See 429 U.S. at
429 U. S. 123.
In my view, our decision in
Davis is sufficient to resolve
the case, given that we cannot know what effect the excluded juror
would have had on the panel as a whole. For unexplained reasons,
however, the plurality seeks to distinguish
Davis by
pointing out that here, the State "exercised its peremptory
challenges to remove all venire members who expressed any degree of
hesitation against the death penalty."
Ante at
481 U. S. 667
(footnote omitted). I do not see the relevance of this observation.
The plurality surely is not suggesting that this case would have
come out differently if the prosecutor had not removed other jurors
because of their attitude about capital punishment. Such a
conclusion would restrict
Davis, rather than reaffirm it.
Presumably, then, the plurality simply is expressing disapproval of
the prosecutor's exclusion of jurors who could not be removed for
cause.
There can be no dispute that a prosecutor has the right, indeed
the duty, to use all legal and ethical means to obtain a
conviction, including the right to remove peremptorily jurors whom
he believes may not be willing to impose lawful punishment. Of
course, defense counsel has the same right and duty to remove
jurors he believes may be prosecution-oriented. This Court's
precedents do not suggest that the
Witherspoon line of
cases restricts the traditional rights of prosecutors and defense
counsel to exercise their peremptory
Page 481 U. S. 672
challenges in this manner. I therefore cannot agree that the
prejudice created by Mrs. Bounds' removal was exacerbated by the
proper exclusion of other jurors who may have shared her views.
The plurality acknowledges that judges normally may not inquire
into the prosecutor's use of these challenges.
Ante at
481 U. S. 667,
n. 18. This Court has recognized one exception to that rule, when
the defendant has established a
prima facie case of racial
bias in the selection of a particular venire.
See Batson v.
Kentucky, 476 U. S. 79
(1986). Our decision in
Batson, however, was justified by
the compelling need to remove all vestiges of invidious racial
discrimination in the selection of jurors, a concern that obviously
is not implicated on these facts. Nothing in
Batson
suggests that courts may examine the prosecutor's motives whenever
he has excluded peremptorily those whom the court may not remove
for cause.
See Brown v. North Carolina, 479 U.
S. 940 (1986) (O'CONNOR, J., concurring in denial of
certiorari). Because the improper exclusion of even a single juror
is sufficient to require resentencing in a capital case, [
Footnote 2/3] and because the prosecutor is
free to exclude panel members who express doubt as to whether they
could vote to impose capital punishment, I would attach no
significance to the peremptory exclusion of the other jurors.
I join in the Court's judgment and in the opinion except for
Part III-B-2.
[
Footnote 2/1]
As the dissent states, several of the potential jurors who were
challenged unsuccessfully for cause explicitly stated that they
would not impose the death sentence in any circumstance.
See,
e.g., App. 3 (juror Ruiz would not impose the death sentence
in "[a]ny type case");
id. at 6 (juror Coker "would never
vote for [capital punishment] in any case").
[
Footnote 2/2]
JUSTICE SCALIA's dissent takes a somewhat different approach in
arguing that the error in this case was harmless. He asserts that
the above analysis misses the point, because it improperly focuses
on the trial judge's failure to excuse the earlier jurors for
cause, rather than on the judge's failure to revise these earlier
rulings and permit the prosecutor to exercise another peremptory
challenge.
Post at
481 U. S.
678-679, n. 4. I agree with the dissent about which of
the trial judge's rulings caused the harm; I simply disagree as to
what inferences properly may be drawn in light of the error. There
is no dispute that the ruling that prejudiced petitioner was the
improper removal of Mrs. Bounds. Thus, the only question is whether
there is a reasonable doubt that the composition of the venire
would have been different as a result. The dissent is convinced
that the panel would not have changed, because, if the judge had
not excused Bounds for cause, he nevertheless would have reversed
his earlier rulings and "returned" at least one of the State's
peremptory challenges. I do not think the record supports such an
inference. The trial judge was aware that he may have erred in not
excusing the earlier panel members for cause, and was asked
specifically to change some of these decisions. Although this
procedure apparently is permitted under state law, and although the
judge was plainly aware that the excusal of Bounds created a
disputed question under the
Witherspoon line of cases, the
judge refused to change his rulings.
See App. 26. I
therefore am unpersuaded that, but for the
Witherspoon
error, the prosecutor both could and would have removed Mrs. Bounds
from the panel.
It is irrelevant, of course, that the trial judge had the
authority to remove Bounds for permissible reasons. In
order for the error to be harmless, it must be shown that, on the
facts of this case, she definitely
would have been
removed, and thus that the venire would have been the same in the
absence of the erroneous excusal for cause.
[
Footnote 2/3]
The decision today has no bearing on the validity of
petitioner's conviction, only on the sentence.
See Witherspoon
v. Illinois, 391 U. S. 510,
391 U. S. 523,
n. 21 (1968).
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE O'CONNOR join, dissenting.
The Court holds that petitioner's sentence must be vacated
because Mrs. Bounds was improperly excluded for cause from the
sentencing jury. I dissent because it is clear that she should, in
any event, have been excluded on other
Page 481 U. S. 673
grounds. The trial judge's error, if any, consisted of no more
than giving the wrong reason for lawful action -- which could not
conceivably have affected the fairness of the sentence.
Before Mrs. Bounds'
voir dire, the State moved to
exclude nine potential jurors for cause. The trial judge granted
only one of those motions, and the State excluded the other eight
potential jurors by peremptory challenge. Five of those eight had
unambiguously stated that they would never vote to impose the death
penalty.
See Record 368-369 (Mr. Ruiz), 381-383 (Mrs.
Coker), 392-393 (Mrs. Bush), 394-395 and 398-399 (Mrs. Price),
401-403 (Mrs. Walker). These statements undoubtedly rendered them
excludable for cause.
See, e.g., Adams v. Texas,
448 U. S. 38,
448 U. S. 45
(1980) (a potential juror may be excluded for cause if his views
about capital punishment "would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath").
See also Darden v.
Wainwright, 477 U. S. 168,
477 U. S. 175
(1986);
Wainwright v. Witt, 469 U.
S. 412,
469 U. S. 420
(1985).
Cf. Witherspoon v. Illinois, 391 U.
S. 510 (1968). The trial judge eventually realized that
he had erred.
See Record 554 ("[I] cheated the State by
making . . . the District Attorney use his peremptory challenges in
at least five instances");
ibid. (five potential jurors
"were unequivocally opposed to [capital punishment] and answered,
in substance, if not even stronger language than the question set
forth in [
Witherspoon]");
id. at 548 ("Of course,
I admit that they were unequivocal, about five of them. . . .").
[
Footnote 3/1] The
Page 481 U. S. 674
Mississippi Supreme Court agreed.
472 So. 2d
409, 421-422 (1985) (several potential jurors' "responses
clearly indicated that they could properly be . . . dismissed both
under
Witherspoon and [under]
Adams");
id. at 422-423 (the trial judge erred "in refusing to
dismiss other [potential] jurors for cause after they had
unequivocally stated that they could not vote to impose the death
penalty in any circumstance").
Despite the unequivocal responses of the potential jurors and
the agreement of the state courts that they could have been
excluded, the plurality -- without even discussing the potential
jurors' responses -- claims to be unable to determine whether any
of them was excludable for cause. [
Footnote 3/2]
Ante at
481 U. S. 662.
According to the plurality,
"despite their initial responses, the venire members might have
clarified their positions upon further questioning and revealed
that their concerns about the death penalty were weaker than they
originally stated. . . . The inadequate questioning regarding the
venire members' views in effect precludes an appellate court from
determining whether the trial judge erred in refusing to remove
them for cause."
Ante at
481 U. S.
662-663 (footnote omitted). In this brief passage, the
plurality invents -- but unfortunately does not justify -- a new
constitutional doctrine, not rooted in any constitutional provision
and contradicted by our prior cases. The plurality suggests that
potential jurors cannot
Page 481 U. S. 675
properly be excluded for cause if "further questioning"
might reveal that they did not really mean it when they
said they would never vote to impose a death sentence. The Court
has never before even hinted at such a requirement (perhaps because
of the obvious difficulty of saying how much further questioning is
necessary to satisfy it -- a point on which the plurality
understandably provides no guidance), and in fact has implicitly
rejected it. That rejection is made clear by a comparison of the
voir dire the Court found sufficient to justify an
exclusion for cause in
Witt with the
voir dire of
the potential jurors in this case. The entirety of the
voir
dire at issue in
Witt was as follows:
"[Prosecutor (P)]: Now, let me ask you a question, ma'am. Do you
have any religious beliefs or personal beliefs against the death
penalty?"
"[Prospective Juror (J)]: I am afraid personally but not --"
"[P]: Speak up, please."
"[J]: I am afraid of being a little personal, but definitely not
religious."
"[P]: Now, would that interfere with you sitting as a juror in
this case?"
"[J]: I am afraid it would."
"[P]: You are afraid it would?"
"[J]: Yes, sir."
"[P]: Would it interfere with judging the guilt or innocence of
the Defendant in this case?"
"[J]: I think so."
"[P]: You think it would."
"[J]: I think it would."
469 U.S. at
469 U. S.
415-416. The
voir dire of each of the five
potential jurors at issue in this case was at least as extensive,
and the responses of the potential jurors far more categorical. For
example, the
voir dire of Mrs. Coker went as follows:
Page 481 U. S. 676
"[P]: Mrs. Coker, do you have any conscientious scruples against
Capital Punishment when imposed by the law?"
"[Mrs. Coker]: I do not believe in it."
"[P]: You do not believe in Capital Punishment. Now, Mrs. Coker,
do you tell me you don't believe in Capital Punishment in this type
of case, or in any type of case?"
"[Mrs. Coker]: In any type of case."
"[P]: You mean to tell me that, if the Court instructed you that
this is a case, gave you the law and told you that this is a case
whereby [
sic] you could impose the Death Penalty, that you
would not follow the law, if it meant imposing the Death
Penalty?"
"[Mrs. Coker]: [Inaudible.]"
"[P]: Ma'am?"
"[Mrs. Coker]: I would not."
"[P]: You would not do it?"
"[Mrs. Coker]: I would not do it."
"[P]: You just don't believe in Capital Punishment."
"[Mrs. Coker]: That's right."
"[P]: And you would never vote for Capital Punishment, are you
telling me, in any case or just this type case?"
"[Mrs. Coker]: In any case. I would never vote for it in any
case."
Record 381-383. The plurality makes no effort to reconcile its
conclusion that the
voir dire of the five potential jurors
at issue in this case was inadequate to justify their exclusion for
cause with our decision in
Witt. I think it beyond doubt
that the trial judge erroneously denied at least five of the
State's motions to exclude potential jurors for cause.
The plurality also hints that these potential jurors may not
have been properly excludable for cause because they were merely
feigning objections to capital punishment in order to avoid jury
service.
Ante at
481 U. S.
652-653,
481 U. S. 656,
and n. 4. But the Constitution certainly permits the exclusion for
cause of potential jurors who lie under oath about their views of
capital
Page 481 U. S. 677
punishment. Moreover, although there is no doubt that the trial
judge and the prosecutor were concerned that some potential jurors
were dissembling, Record 410, 445, 540, they agreed that only one
or two had acted in this fashion,
id. at 540. Thus, even
if those were not properly excludable for cause, three others
were.
I also conclude that there is no federal constitutional obstacle
to the trial judge's granting the State's request that it be given
back a peremptory challenge for use to remove Mrs. Bounds.
[
Footnote 3/3] (It is clear from
the Mississippi Supreme Court's opinion that this would have been
permissible under state law,
see 472 So. 2d at 423.) It is
true that doing so would have produced a jury different from that
which would have been impaneled had the trial judge denied the
request and left his error uncorrected -- and might have produced a
jury different from that which would have been impaneled had the
error not been made in the first place. But we have never
suggested, and it simply could not be, that the Constitution
prevents trial judges from correcting errors in jury selection that
favor defendants if doing so might affect the composition of the
jury. The Court implicitly concedes as much when it states that the
trial judge in this case could have remedied his erroneous rulings
in petitioner's favor by dismissing the venire and starting anew.
Ante at
481 U. S.
663-664, n. 13. That would have replaced all 12 members
of the jury, rather than merely Mrs. Bounds. The less drastic means
of remedying the error must be permissible.
We come, then, to the last difficulty -- which is that the trial
judge in fact did not restore to the State the erroneously
Page 481 U. S. 678
denied peremptory challenge, but instead excluded Mrs. Bounds
for cause. I assume for purposes of this opinion that she was not
constitutionally excludable on those grounds. As the Court
observes, we have said that "if a venireman is improperly excluded
[for cause], any subsequently imposed death penalty cannot stand."
Davis v. Georgia, 429 U. S. 122,
429 U. S. 123
(1976) (per curiam). We have not, however, extended this language
so far as to vacate a sentence when it was certain that the jury
that was impaneled was identical to the jury that would have been
impaneled had the trial judge not erred. In fact, the Court itself
indicates that such an extension would be misguided, stating that
"the relevant inquiry is
whether the composition of the
jury panel as a whole could possibly have been affected by
the trial court's error.'" Ante at 481 U. S. 665
(quoting Moore v. Estelle, 670 F.2d 56, 58 (CA5)
(specially concurring opinion), cert. denied, 458 U.S.
1111 (1982)).
The standard that the Court endorses requires that petitioner's
sentence be upheld. As I have described, the trial judge could
lawfully have granted the State's request that it be given a
peremptory challenge for use to remove Mrs. Bounds. It is certain
that the trial judge's decision to exclude Mrs. Bounds for cause,
rather than granting that request, did not affect the composition
of the jury in any way. In either event, Mrs. Bounds would have
been excluded. The difference in the
form of her exclusion
-- essentially the utterance of one set of words rather than
another -- could not possibly have affected the composition of the
jury. There is thus no reason to vacate petitioner's sentence.
[
Footnote 3/4]
Page 481 U. S. 679
Finally, I cannot omit commenting upon the plurality's
dictum implying that it is unconstitutional for
prosecutors to use peremptory challenges consistently to exclude
potential jurors who express reservations about capital punishment.
Ante at
481 U. S.
667-668. I disagree. Prosecutors can use peremptory
challenges for many reasons, some of which might well be
constitutionally insufficient to support a legislative exclusion.
For example, I assume that a State could not legislate that those
who are more sympathetic toward defendants than is the average
person may not serve as jurors. But that surely does not mean that
prosecutors violate the Constitution by using peremptory challenges
to exclude such people. Since defendants presumably use their
peremptory challenges in the opposite fashion, the State's action
simply does not result in juries "deliberately tipped toward"
conviction. The same reasoning applies to the exercise of
peremptory challenges to remove potential jurors on the basis of
the perceived likelihood that they would vote to impose a death
sentence.
Page 481 U. S. 680
In this case, for example, it appears that the defendant used
peremptory challenges to exclude at least two potential jurors
whose remarks suggested that they were relatively likely to vote to
impose a death sentence.
See Record 522 and 579 (Mr.
Cavode), 573-577 and 579 (Mr. Hester).
For the foregoing reasons, I respectfully dissent.
[
Footnote 3/1]
Despite these statements, the Court asserts that it is not clear
that the trial judge believed himself to have erred.
Ante
at
481 U. S. 655,
481 U. S.
662-663, and n. 12. It rests that assertion solely on
the trial judge's expressions of regret that he had not questioned
the jurors himself, and that the prosecutor had not used language
precisely patterned after the holding in
Witherspoon v.
Illinois, 391 U. S. 510
(1968). Record 548, 552-553. But these expressions of regret are
completely consistent with the trial judge's unambiguous conclusion
that at least five potential jurors should have been, but were not,
excluded for cause. Moreover, if the trial judge did not think he
had erred, it is hard to imagine why he excluded Mrs. Bounds for
cause after making what the Court believes was an "unambiguous
finding" that he "was not authorized under the
Witherspoon-Witt standard" to do so,
ante at
481 U. S. 661,
n. 10.
See 472 So. 2d
409, 423 (1985) ("the trial court . . . recognized the error in
its prior rulings and took affirmative action to correct that
error").
[
Footnote 3/2]
Although JUSTICE POWELL has joined the section of the Court's
opinion containing this claim, he concludes that at least some of
the potential jurors should have been excluded for cause.
Ante at
481 U. S. 669.
He thus necessarily rejects the plurality's reasoning in support of
the contrary conclusion.
[
Footnote 3/3]
Since the State's request was for a peremptory challenge
for
use to exclude Mrs. Bounds, see Record 546, it is certain that
Mrs. Bounds would have been excluded in this fashion had the trial
judge not excluded her for cause. This case is therefore quite
different from those discussed by the Court,
ante at
481 U. S.
664-665, in which the State argued that an improper
exclusion for cause was rendered harmless by the fact that it had
peremptory challenges remaining at the end of the
voir
dire which it
might have used to exclude the
potential juror.
[
Footnote 3/4]
I agree with JUSTICE POWELL that it cannot be assumed "that the
prosecutor would have excluded Mrs. Bounds
but for'" the trial
judge's erroneous failure to exclude a number of potential jurors
for cause. Ante at 481 U. S.
669-670. See supra at 481 U. S. 677.
But the identity of outcome that is relevant to this case is an
identity between what occurred and what would have occurred
without the error that violated the defendant's constitutional
rights. Here, as JUSTICE POWELL concedes, ante at
481 U. S.
670-671, n. 2, that error was not the earlier failure to
exclude other jurors for cause (which aggrieved the State, rather
than the defendant), but rather the later decision to exclude Mrs.
Bounds for cause instead of granting the State's request for
restoration of a peremptory challenge. That decision, as I
have explained, is certain to have had no effect on the composition
of the jury.
JUSTICE POWELL does not dispute that the jury that sentenced
petitioner was
identical to the one that would have
sentenced him had the trial judge granted the State's motion to
exclude Mrs. Bounds by peremptory challenge. Nor does he dispute
that the trial judge could, and indeed should, have granted that
motion. Nevertheless, he believes that petitioner's sentence must
be vacated because, had Mrs. Bounds not been excluded for cause,
the trial judge might have refused to grant the State's motion,
persisting in his mistaken failure to exclude earlier potential
jurors.
Ibid. But I cannot imagine why petitioner's
sentence should be vacated merely because it is possible that the
exclusion of Mrs. Bounds for cause deprived petitioner of the
undeserved benefit of the trial judge's earlier errors. It seems to
me that, both in law and in logic, the conclusion that petitioner's
sentence should be sustained follows inevitably from the fact that
petitioner was sentenced by a jury identical to the one that would
have been impaneled had the trial judge, instead of excluding Mrs.
Bounds for cause, taken a different, lawful course.