Respondent was tried by a jury in a Florida state court and
convicted of first-degree murder. In accordance with the jury's
recommendation, he was sentenced to death. On appeal, respondent
claimed that several prospective jurors had been improperly
excluded for cause because of their opposition to capital
punishment, in violation of the decision in
Witherspoon v.
Illinois, 391 U. S. 510, but
the Florida Supreme Court affirmed the conviction and sentence.
After unsuccessfully seeking postconviction review in the state
courts, respondent filed a petition for a writ of habeas corpus in
Federal District Court under 28 U.S.C. § 2254. That court denied
the petition. The Court of Appeals reversed and granted the writ,
holding that, on the basis of the
voir dire questioning by
the prosecutor, one of the prospective jurors was improperly
excused for cause under
Witherspoon. The court drew the
standard for determining when a juror may properly be excluded from
Witherspoon, supra, at
391 U. S. 522,
n. 21, which states that jurors may be excluded for cause if they
make it "unmistakably clear" that they would "automatically" vote
against capital punishment without regard to the evidence or that
their attitude toward the death penalty would prevent them from
making an impartial decision as to the defendant's "guilt."
Held:
1. The proper standard for determining when a prospective juror
may be excluded for cause because of his views on capital
punishment 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."
Adams v.
Texas, 448 U. S. 38,
448 U. S. 45. In
addition to dispensing with
Witherspoon's reference to
"automatic" decisionmaking, this standard does not require that a
juror's bias be proved with "unmistakable clarity." Here, given
this standard, the Court of Appeals at a minimum erred in focusing
unduly on the lack of clarity of the questioning of the prospective
juror, and in focusing on whether her answers indicated that she
would "automatically" vote against the death penalty. Pp.
469 U. S.
418-426.
2. On a petition for habeas corpus under 28 U.S.C. § 2254, the
question of challenge of a prospective juror for bias is a "factual
issue"
Page 469 U. S. 413
subject to § 2254(d), which requires a federal reviewing court
to accord any findings of the state courts on "factual issues" a
"presumption of correctness."
Patton v. Yount,
467 U. S. 1025.
This rule applies to a trial court's determination, such as the one
made in this case, that a prospective capital sentencing juror was
properly excluded for cause. Pp.
469 U. S.
426-430.
3. Under the facts of this case, the prospective juror in
question was properly excused for cause. There were adequate
"written indicia" of the trial judge's factual finding to satisfy §
2254(d). The transcript of
voir dire shows that the
prospective juror was questioned in the presence of both counsel
and the trial judge, that at the end of the colloquy between the
prosecutor and the juror the prosecutor challenged for cause, and
that the challenge was sustained. Nothing more was required. The
judge was not required to write a specific finding or announce for
the record his conclusion that, or his reasons why, the prospective
juror was biased. The judge's finding is therefore "presumed
correct" absent anything in the record showing one of the reasons
enumerated in the statute for avoiding the presumption. The
question under the statute is whether the trial court's findings
are fairly supported by the record, and here there is ample support
for the trial judge's finding that the prospective juror's views
would have prevented or substantially impaired the performance of
her duties as a juror. Pp.
469 U. S. 430-435.
714 F.2d 1069 and 723 F.2d 769, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. STEVENS, J., filed an opinion concurring in the judgment,
post, p.
469 U. S. 436.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
469 U. S.
439.
Page 469 U. S. 414
JUSTICE REHNQUIST delivered the opinion of the Court.
This case requires us to examine once again the procedures for
selection of jurors in criminal trials involving the possible
imposition of capital punishment,
see Witherspoon v.
Illinois, 391 U. S. 510
(1968), and to consider standards for federal courts reviewing
those procedures upon petition for a writ of habeas corpus.
I
Respondent Johnny Paul Witt was convicted of first-degree murder
in Florida and sentenced to death. The murder was committed while
respondent and a friend were bow-and-arrow hunting. The evidence at
trial showed that the two had spoken together on other occasions
about killing a human, and had even stalked persons as they would
stalk animal prey. On the day in question, respondent, then aged
30, and his younger accomplice were hunting in a wooded area near a
trail often used by children. When the victim, an 11-year-old boy,
rode by on his bicycle, respondent's accomplice hit the child on
the head with a star bit from a drill. Respondent and his
accomplice then gagged the stunned victim, placed him in the trunk
of respondent's car, and drove to a deserted grove. Upon opening
the trunk, the conspirators discovered that the victim had died by
suffocating from the gag. The two committed various sexual and
violent acts on the body, then dug a grave and buried it.
Page 469 U. S. 415
Respondent was tried by a jury and convicted of first-degree
murder. In accordance with the recommendation of the jury, the
trial judge sentenced him to death. On appeal to the Florida
Supreme Court respondent raised a number of claims, one of which
was that several prospective jurors had been improperly excluded
for cause because of their opposition to capital punishment, in
violation of this Court's decision in
Witherspoon v. Illinois,
supra. The Florida Supreme Court affirmed the conviction and
sentence, and this Court denied certiorari.
Witt v.
State, 342 So. 2d
497,
cert. denied, 434 U.S. 935 (1977). After
unsuccessfully petitioning for postconviction review in the state
courts,
see Witt v. State, 387 So. 2d
922 (Fla.),
cert. denied, 449 U.S. 1067 (1980),
respondent filed this petition for a writ of habeas corpus in the
United States District Court for the Middle District of Florida,
raising numerous constitutional claims. That court denied the
petition. On appeal, the Court of Appeals for the Eleventh Circuit
reversed and granted the writ. 714 F.2d 1069 (1983), modified, 723
F.2d 769 (1984).
The only claim the Eleventh Circuit found meritorious was
respondent's
Witherspoon claim. The court found the
following exchange during
voir dire, between the
prosecutor and venireman Colby, to be insufficient to justify
Colby's excusal for cause: [
Footnote 1]
"[Q. Prosecutor:] Now, let me ask you a question, ma'am. Do you
have any religious beliefs or personal beliefs against the death
penalty?"
"[A. Colby:] I am afraid personally but not --"
"[Q]: Speak up, please. "
Page 469 U. S. 416
"[A]: I am afraid of being a little personal, but definitely not
religious."
"[Q]: Now, would that interfere with you sitting as a juror in
this case?"
"[A]: I am afraid it would."
"[Q]: You are afraid it would?"
"[A]: Yes, Sir."
"[Q]: Would it interfere with judging the guilt or innocence of
the Defendant in this case?"
"[A]: I think so."
"[Q]: You think it would."
"[A]: I think it would."
"[Q]: Your honor, I would move for cause at this point."
"THE COURT: All right. Step down."
Tr. 266-267. Defense counsel did not object or attempt
rehabilitation.
In
Witherspoon, this Court held that the State
infringes a capital defendant's right under the Sixth and
Fourteenth Amendments to trial by an impartial jury when it excuses
for cause all those members of the venire who express conscientious
objections to capital punishment. As the Court of Appeals in this
case noted, however, the
Witherspoon Court also recognized
the State's legitimate interest in excluding those jurors whose
opposition to capital punishment would not allow them to view the
proceedings impartially, and who therefore might frustrate
administration of a State's death penalty scheme. The Court of
Appeals drew the standard for determining when a juror may properly
be excluded from
Witherspoon's footnote 21; jurors may be
excluded for cause if they make it
"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."
391 U.S. at
391 U. S. 522,
n. 21 (emphasis in original).
Page 469 U. S. 417
The Court of Appeals construed our decisions to require that
jurors expressing objections to the death penalty be given "great
leeway" before their expressions justify dismissal for cause.
"A prospective juror may even concede that his or her feelings
about the death penalty would possibly color an objective
determination of the facts of a case without admitting of the
necessary partiality to justify excusal."
714 F.2d at 1076-1080. The court concluded that the colloquy
with venireman Colby reprinted above did not satisfy the
Witherspoon standard. Colby's limited expressions of
"feelings and thoughts" failed to "unequivocally state that she
would automatically be unable to apply the death penalty. . . ."
Id. at 1082. In part, the court found the ambiguity in the
record was caused by the lack of clarity of the prosecutor's
questions. The prosecutor's question whether Colby's feelings about
the death penalty would "interfere" with her sitting was ambiguous,
because the fact of such "interference" failed to satisfy
Witherspoon's requirement that she be unable to apply the
death sentence under any circumstances. The court found its holding
consistent with Circuit precedent applying the
Witherspoon
standard.
See Granviel v. Estelle, 655 F.2d 673 (CA5
1981);
Burns v. Estelle, 626 F.2d 396 (CA5 1980).
In a footnote, the Court of Appeals noted its uncertainty over
whether a state trial court's finding of bias should be accorded a
presumption of correctness under the federal statute governing
habeas corpus proceedings, 28 U.S.C. § 2254(d). The court stated,
however, that under the circumstances it would reach the same
result regardless of the standard of review. 714 F.2d at 1083, n.
10. Because this case raises questions on which there is
considerable confusion in the lower courts, concerning the degree
of deference that a federal habeas court should pay to a state
trial judge's determination that a juror may be excused for cause
under
Witherspoon, see Darden v. Wainwright, 725 F.2d
1526, 1528-1530 (CA11 1984);
O'Bryan v. Estelle, 714 F.2d
365
Page 469 U. S. 418
(CA5 1983),
cert. denied, 465 U.S. 1013 (1984);
Texas v. Mead, 465 U. S. 1041,
1043 (1984) (REHNQUIST, J., dissenting from denial of certiorari),
and because of what seemed to us as more general confusion
surrounding the application of
Witherspoon, we granted
certiorari. 466 U.S. 957. We reverse.
II
Witherspoon is best understood in the context of its
facts. The case involved the capital sentencing procedures for the
State of Illinois. Under the Illinois death sentencing statute, the
jury was asked to decide only whether death was "the proper
penalty" in a given case. Another Illinois statute provided:
"In trials for murder it shall be a cause for challenge of any
juror who shall, on being examined, state that he has conscientious
scruples against capital punishment, or that he is opposed to the
same."
Witherspoon, 391 U.S. at
391 U. S. 512.
Pursuant to this statute, nearly half the veniremen at
Witherspoon's trial were excused for cause because they
"expressed qualms about capital punishment."
Id. at
391 U. S. 513.
This Court held that under this procedure the jury obtained would
not be the impartial jury required by the Sixth Amendment, but
rather a jury "uncommonly willing to condemn a man to die."
Id. at
391 U. S. 521.
It concluded that
"a sentence of death cannot be carried out if the jury that
imposed or recommended it was chosen by excluding veniremen for
cause simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against
its infliction."
Id. at
391 U. S.
522.
Despite
Witherspoon's limited holding, later opinions
in this Court and the lower courts have referred to the language in
footnote 21, or similar language in
Witherspoon's footnote
9, as setting the standard for judging the proper exclusion of a
juror opposed to capital punishment.
See, e.g., Maxwell v.
Bishop, 398 U. S. 262,
398 U. S. 265
(1970);
Boulden v.
Holman, 394
Page 469 U. S. 419
U.S. 478,
394 U. S. 482
(1969); [
Footnote 2]
Hackathorn v. Decker, 438 F.2d 1363, 1366 (CA5 1971);
People v. Washington, 71 Cal. 2d
1061, 1091-1092, 458 P.2d 479, 496-497 (1969). Later cases in
the lower courts state that a venireman may be excluded only if he
or she would "automatically" vote against the death penalty, and
even then this state of mind must be "unambiguous," or
"unmistakably clear."
See, e.g., Burns v. Estelle, supra,
at 398.
But more recent opinions of this Court demonstrate no
ritualistic adherence to a requirement that a prospective juror
make it "unmistakably clear . . . that [she] would automatically
vote against the imposition of capital punishment. . . ." In
Lockett v. Ohio, 438 U. S. 586,
438 U. S.
595-596 (1978), prospective capital jurors were
asked:
"'[D]o you feel that you could take an oath to well and truely
[
sic] try this case . . . and follow the law, or is your
conviction so strong that you cannot take an oath, knowing that a
possibility exists in regard to capital punishment?'"
We held that the veniremen who answered that they could not
"take the oath" were properly excluded. Although the
Lockett opinion alluded to the second half of the footnote
21 standard, dealing with a juror's inability to decide impartially
a defendant's guilt, the Court did not refer to the "automatically"
language. Instead, it simply determined that each of the excluded
veniremen had made it "
unmistakably clear' that they could not
be trusted to `abide by existing law' and `to follow
conscientiously the instructions' of the trial judge." Id.
at 438 U. S.
596.
This Court again examined the
Witherspoon standard in
Adams v. Texas, 448 U. S. 38
(1980).
Adams involved the
Page 469 U. S. 420
Texas capital sentencing scheme, wherein jurors were asked to
answer three specific questions put by the trial judge. The court
was required to impose the death sentence if each question was
answered affirmatively. A Texas statute provided that a prospective
capital juror "
shall be disqualified . . . unless he states
under oath that the mandatory penalty of death or imprisonment for
life will not affect his deliberations on any issue of fact.'"
Id. at 448 U. S. 42.
Before deciding whether certain jurors had been properly excluded
pursuant to this statute, this Court attempted to discern the
proper standard for making such a determination. The Court
discussed its prior opinions, noting the Witherspoon
Court's recognition, in footnote 21, that States retained a
"legitimate interest in obtaining jurors who could follow their
instructions and obey their oaths." 448 U.S. at 448 U. S. 44.
The Court concluded:
"This line of cases establishes the general proposition that a
juror may not be challenged for cause based on his views about
capital punishment
unless those views would prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath. The State may
insist, however, that jurors will consider and decide the facts
impartially and conscientiously apply the law as charged by the
court."
Id. at
448 U. S. 45
(emphasis added). The Court went on to hold that
as applied in
that case certain veniremen had been improperly excluded under
the Texas statute, because their acknowledgment that the possible
imposition of the death penalty would or might "affect" their
deliberations was meant only to indicate that they would be more
emotionally involved or would view their task "with greater
seriousness and gravity."
Id. at
448 U. S. 49.
[
Footnote 3] The Court
Page 469 U. S. 421
reasoned that such an "effect" did not demonstrate that the
prospective jurors were unwilling or unable to follow the law or
obey their oaths.
The state of this case law leaves trial courts with the
difficult task of distinguishing between prospective jurors whose
opposition to capital punishment will not allow them to apply the
law or view the facts impartially and jurors who, though opposed to
capital punishment, will nevertheless conscientiously apply the law
to the facts adduced at trial. Although this task may be difficult
in any event, it is obviously made more difficult by the fact that
the standard applied in
Adams differs markedly from the
language of footnote 21. The tests with respect to sentencing and
guilt, originally in two prongs, have been merged; the requirement
that a juror may be excluded only if he would never vote for the
death penalty is now missing; gone too is the extremely high burden
of proof. In general, the standard has been simplified.
There is good reason why the
Adams test is preferable
for determining juror exclusion. First, although given
Witherspoon's facts a court applying the general
principles of
Adams could have arrived at the
"automatically" language of
Witherspoon's footnote 21, we
do not believe that language can be squared with the duties of
present-day capital sentencing juries. In
Witherspoon the
jury was vested with unlimited discretion in choice of sentence.
Given this discretion, a juror willing to consider the death
penalty arguably was able to "follow the law and abide by his oath"
in choosing the "proper" sentence. Nothing more was required. Under
this understanding the only veniremen who could be deemed
excludable were those who would
Page 469 U. S. 422
never vote for the death sentence or who could not impartially
judge guilt.
After our decisions in
Furman v. Georgia, 408 U.
S. 238 (1972), and
Gregg v. Georgia,
428 U. S. 153
(1976), however, sentencing juries could no longer be invested with
such discretion. As in the State of Texas, many capital sentencing
juries are now asked specific questions, often factual, the answers
to which will determine whether death is the appropriate penalty.
In such circumstances it does not make sense to require simply that
a juror not "automatically" vote against the death penalty; whether
or not a venireman
might vote for death under certain
personal standards, the State still may properly challenge
that venireman if he refuses to follow the statutory scheme and
truthfully answer the questions put by the trial judge. To hold
that
Witherspoon requires anything more would be to hold,
in the name of the Sixth Amendment right to an impartial jury, that
a State must allow a venireman to sit despite the fact that he will
be unable to view the case impartially. [
Footnote 4]
Second, the statements in the
Witherspoon footnotes are
in any event dicta. The Court's holding focused only on
circumstances under which prospective jurors could
not be
excluded; under
Witherspoon's facts it was unnecessary to
decide when they
could be. This Court has on other
occasions similarly rejected language from a footnote as "not
controlling."
See McDaniel v. Sanchez, 452 U.
S. 130,
452 U. S. 141
(1981).
Page 469 U. S. 423
Finally, the
Adams standard is proper because it is in
accord with traditional reasons for excluding jurors and with the
circumstances under which such determinations are made. We begin by
reiterating
Adams' acknowledgment that
"
Witherspoon is not a ground for challenging any
prospective juror. It is rather a limitation on the State's power
to exclude. . . ."
Adams v. Texas, 448 U.S. at
448 U. S. 47-48.
Exclusion of jurors opposed to capital punishment began with a
recognition that certain of those jurors might frustrate the
State's legitimate interest in administering constitutional capital
sentencing schemes by not following their oaths.
Witherspoon simply held that the State's power to exclude
did not extend beyond its interest in removing those particular
jurors. But there is nothing talismanic about juror exclusion under
Witherspoon merely because it involves capital sentencing
juries.
Witherspoon is not grounded in the Eighth
Amendment's prohibition against cruel and unusual punishment, but
in the Sixth Amendment. Here, as elsewhere, the quest is for jurors
who will conscientiously apply the law and find the facts. That is
what an "impartial" jury consists of, and we do not think, simply
because a defendant is being tried for a capital crime, that he is
entitled to a legal presumption or standard that allows jurors to
be seated who quite likely will be biased in his favor.
As with any other trial situation where an adversary wishes to
exclude a juror because of bias, then, it is the adversary seeking
exclusion who must demonstrate, through questioning, that the
potential juror lacks impartiality.
See Reynolds v. United
States, 98 U. S. 145,
98 U. S. 157
(1879). It is then the trial judge's duty to determine whether the
challenge is proper. This is, of course, the standard and procedure
outlined in
Adams, but it is equally true of any situation
where a party seeks to exclude a biased juror.
See, e.g.,
Patton v. Yount, 467 U. S. 1025,
467 U. S.
1036 (1984) (where a criminal defendant sought to excuse
a juror for cause and the trial judge refused, the question was
simply "did [the] juror swear
Page 469 U. S. 424
that he could set aside any opinion he might hold and decide the
case on the evidence, and should the juror's protestations of
impartiality have been believed").
We therefore take this opportunity to clarify our decision in
Witherspoon, and to reaffirm the above-quoted standard
from
Adams as the proper standard for determining when a
prospective juror may be excluded for cause because of his or her
views on capital punishment. That standard 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." [
Footnote 5] We note
that, in addition to dispensing with
Witherspoon's
reference to "automatic" decisionmaking, this standard likewise
does not require that a juror's bias be proved with "unmistakable
clarity." This is because determinations of juror bias cannot be
reduced to question-and-answer sessions which obtain results in the
manner of a catechism. What common sense should have realized
experience has proved: many veniremen simply cannot
Page 469 U. S. 425
be asked enough questions to reach the point where their bias
has been made "unmistakably clear"; these veniremen may not know
how they will react when faced with imposing the death sentence, or
may be unable to articulate, or may wish to hide their true
feelings. [
Footnote 6] Despite
this lack of clarity in the printed record, however, there will be
situations where
Page 469 U. S. 426
the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially
apply the law. For reasons that will be developed more fully
infra, this is why deference must be paid to the trial
judge who sees and hears the juror.
Given this standard, it is clear that the Court of Appeals below
erred at least in part; the court focused unduly on the lack of
clarity of the questioning of venireman Colby, and on whether her
answers indicated that she would "automatically" vote against the
death penalty. Since there are portions of the Court of Appeals'
opinion that suggest that its result could be squared with
Adams, however, we proceed to discuss another very
important question in the administration of
Witherspoon
challenges -- the degree of deference that a federal habeas court
must pay to a state trial judge's determination of bias.
III
This case arises from respondent's petition for habeas corpus
under 28 U.S.C. § 2254, and therefore a federal reviewing court is
required to accord any findings of the state courts on "factual
issues" a "presumption of correctness" under 28 U.S.C. § 2254(d).
[
Footnote 7] Although the
District Court relied on
Page 469 U. S. 427
this section and accorded deference to the state trial judge's
finding of bias,
Witt v. Wainwright, No. 80-545-CIV-T-GC
(MD Fla., May 14, 1981), the Court of Appeals did not decide
whether this finding was subject to the presumption because in its
opinion the facts of the case required reversal of the sentence
"under even the least rigorous standard of appellate review." 714
F.2d at 1083, n. 10. The court did note confusion over whether §
2254(d) applies to a
Witherspoon finding, however, and
subsequently the Eleventh Circuit adopted the position that such a
finding was a "mixed question of law and fact" not subject to the
section.
See Darden v. Wainwright, 725 F.2d at
1528-1530.
This Court has recently decided several cases dealing with the
scope of the § 2254(d) presumption.
See, e.g., Patton v.
Yount, 467 U. S. 1025
(1984);
Rushen v. Spain, 464 U. S. 114
Page 469 U. S. 428
(1983);
Marshall v. Lonberger, 459 U.
S. 422 (1983);
Sumner v. Mata, 455 U.
S. 591 (1982) (
Sumner II);
Sumner v.
Mata, 449 U. S. 539
(1981) (
Sumner I). These cases have emphasized that state
court findings of fact are to be accorded the presumption of
correctness.
See Sumner II, supra, at
455 U. S. 597,
n. 10;
Cuyler v. Sullivan, 446 U.
S. 335,
446 U. S. 342
(1980). [
Footnote 8] Last Term,
in
Patton, supra, we held that a trial judge's finding
that a particular venireman was not biased and therefore was
properly seated was a finding of fact subject to § 2254(d). We
noted that the question whether a venireman is biased has
traditionally been determined through voire dire culminating in a
finding by the trial judge concerning the venireman's state of
mind. We also noted that such a finding is based upon
determinations of demeanor and credibility that are peculiarly
within a trial judge's province. [
Footnote 9] Such determinations were entitled to deference
even on direct review; "[t]he respect paid such findings in a
habeas proceeding certainly should be no less."
Id. at
467 U. S.
1038. [
Footnote
10]
Page 469 U. S. 429
Patton's holding applies equally well to a trial
court's determination that a prospective capital sentencing juror
was properly excluded for cause. In
Darden v. Wainwright,
supra, at 1529, the Court of Appeals for the Eleventh Circuit
reached a contrary conclusion because it viewed the exclusion of
jurors under
Witherspoon as a "mixed question of law and
fact." But the
Darden court reached its conclusion because
it labored under the misapprehension that the standard for
determining exclusion was that found in
Witherspoon's
footnote 21 -- which imposed "a strict legal standard" and "a very
high standard of proof." 725 F.2d at 1528. Given this rather
complex law, the court reasoned, a prospective juror's answers
would not alone decide the issues; the trial judge must still
interpret them in light of the legal standard. Since the trial
court's function was application of law to fact, the determination
was subject to independent review.
It will not always be easy to separate questions of "fact" from
"mixed questions of law and fact" for § 2254(d) purposes,
cf.
Patton, supra, at 1037, n. 12. But it is nevertheless clear,
based on the foregoing discussion concerning the standard for
exclusion, that reasoning such as that found in
Darden is
destined for the same end as the footnote upon which it is based.
Once it is recognized that excluding prospective capital sentencing
jurors because of their opposition to capital punishment is no
different from excluding jurors for innumerable other reasons which
result in bias,
Patton must control. The trial judge is of
course applying some kind of legal standard to what he sees and
hears, but his predominant function in determining juror bias
involves credibility findings whose basis cannot be easily
discerned from an appellate record. These are the "factual issues"
that are subject to § 2254(d).
In so holding, we in no way denigrate the importance of an
impartial jury. We reiterate what this Court stressed in
Dennis
v. United States, 339 U. S. 162,
339 U. S. 168
(1950):
"[T]he trial court has a serious duty to determine the question
of actual bias, and a broad discretion in its rulings on
challenges
Page 469 U. S. 430
therefor. . . . In exercising its discretion, the trial court
must be zealous to protect the rights of an accused."
IV
Turning to the facts, we conclude that juror Colby was properly
excused for cause. Applying the analysis required by § 2254(d), we
have already determined that the question of challenge for bias is
a "factual issue" covered by the section. Nor does respondent
seriously urge that the trial court's decision to excuse juror
Colby for bias was not a "determination after a hearing on the
merits." Respondent does argue, however, that this conclusion was
not "evidenced by a written finding, written opinion, or other
reliable and adequate written indicia. . . ." We disagree.
The transcript of the
voir dire reprinted above shows
that juror Colby was questioned in the presence of both counsel and
the judge; at the end of the colloquy the prosecution challenged
for cause; and the challenge was sustained when the judge asked
juror Colby to "step down." Nothing more was required under the
circumstances to satisfy the statute. Anyone familiar with trial
court practice knows that the court reporter is relied upon to
furnish an accurate account of what is said in the courtroom. The
trial judge regularly relies upon this transcript as written
indicia of various findings and rulings; it is not uncommon for a
trial judge to merely make extemporaneous statements of findings
from the bench.
Our conclusion is strengthened by a review of available
alternatives. We decline to require the judge to write out in a
separate memorandum his specific findings on each juror excuse. A
trial judge's job is difficult enough without senseless make-work.
Nor do we think under the circumstances that the judge was required
to announce for the record his conclusion that juror Colby was
biased, or his reasoning. The finding is evident from the record.
See Marshall v. Lonberger, 459 U.S. at
459 U. S. 433.
In this regard it is noteworthy that in this case the court was
given no reason to think that elaboration was necessary; defense
counsel did
Page 469 U. S. 431
not see fit to object to juror Colby's recusal, or to attempt
rehabilitation. [
Footnote
11]
The finding of the trial judge is therefore "presumed correct"
unless one of the enumerated reasons for avoiding the presumption
is present here. Respondent does not suggest that paragraphs 1
through 7 are applicable; he must therefore rest his case on the
exception in paragraph that the finding of bias is "not fairly
supported" by the record viewed "as a whole." Respondent attacks
the record in two ways. First, he notes that venireman Colby was
the first juror questioned, and claims that from the record there
is no way to determine whether the trial judge applied the correct
standard. As we have stated on other occasions, however, where the
record does not indicate the standard applied by a state trial
judge, he is presumed to have applied the correct one.
See
Marshall v. Lonberger, supra, at
459 U. S. 433;
LaVallee v. Delle Rose, 410 U. S. 690,
410 U. S.
694-695 (1973);
Townsend v. Sain, 372 U.
S. 293,
372 U. S.
314-315 (1963). Here, in addition, there is every
indication that the judge indeed applied the correct standard.
Although the judge did not participate in questioning venireman
Colby, the record shows that on several subsequent occasions during
voir dire he did participate in questioning. On each of
those occasions the judge asked
Page 469 U. S. 432
questions entirely consistent with the
Adams standard.
[
Footnote 12] There is no
reason to believe, as respondent seems to suggest, that the judge's
understanding of the standard changed between the time of the
questioning of Colby and the questioning of the later
veniremen.
Respondent's second contention is that the colloquy between the
prosecutor and Colby is simply too ambiguous to support the trial
court's decision to excuse her. Respondent claims that the
ambiguity he sees is due to the prosecutor's use of the word
"interfere" in his questioning of Colby; merely because juror Colby
affirmed that her views would
Page 469 U. S. 433
"interfere" with her sitting does not necessarily indicate
whether she could in any event have applied the law impartially.
Respondent agrees that some jurors might interpret "interfere" to
mean "prevent" (the word which is used in the key passage in our
Adams opinion), but claims that other equally reasonable
jurors could understand it to mean "make difficult," "create
emotional turmoil," or "impair, but not substantially." As a
corollary, respondent suggests that, because the posited ambiguity
was caused by the question, rather than the answer, there is no
reason to defer to the trial judge's finding, since a finding based
upon Colby's demeanor would be worthless without a finding that she
had a particular understanding of the question. The Court of
Appeals agreed with respondent that "[t]he word
interfere'
admits of a great variety of interpretations," and that the
colloquy between the prosecutor and Colby did not indicate the
extent of the "interference." 714 F.2d at 1082.
If we were so brash as to undertake a treatise on synonyms and
antonyms, we would agree that the dictionary definitions of
"interfere" are not identical with the dictionary definitions of
"prevent." But that, of course, is not the question. The fact that
a particular verb is used in a key passage of an appellate opinion
stating the standard for excusing jurors for cause does not mean
that that word, and no other, must be used in all the thousands of
subsequent proceedings in which the prosecution challenges jurors
for cause. The law is stated in an opinion such as
Adams;
but the question in subsequent cases is whether a trial court
finding that the standard was met is "fairly supported" by the
"record . . . considered as a whole. . . ." The standard in this
case is the easily understood one enunciated in
Adams;
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." 448 U.S. at
448 U. S. 45.
Relevant
voir dire questions addressed to this issue need
not be framed exclusively
Page 469 U. S. 434
in the language of the controlling appellate opinion; the
opinion is, after all, an opinion and not an intricate devise in a
will.
As we emphasized in
Marshall v. Lonberger, 459 U.S. at
459 U. S. 432,
the question is not whether a reviewing court might disagree with
the trial court's findings, but whether those findings are fairly
supported by the record. Here we think there is ample support for
the trial court's finding that Colby's views would have prevented
or substantially impaired the performance of her duties as a juror.
On four separate occasions she affirmed that her beliefs would
interfere with her sitting as a juror. One common meaning of
"interfere" is to "create an obstacle." Respondent argues that in
Colby's case, the obstacle was not insurmountable; but the trial
court found to the contrary. As we stated in
Marshall v.
Lonberger, supra, at
459 U. S.
434:
"As was aptly stated by the New York Court of Appeals, although
in a case of rather different substantive nature:"
"Face to face with living witnesses the original trier of the
facts holds a position of advantage from which appellate judges are
excluded. In doubtful cases the exercise of his power of
observation often proves the most accurate method of ascertaining
the truth. . . . How can we say the judge is wrong? We never saw
the witnesses. . . . To the sophistication and sagacity of the
trial judge the law confides the duty of appraisal."
"
Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632,
634."
Thus, whatever ambiguity respondent may find in this record, we
think that the trial court, aided as it undoubtedly was by its
assessment of Colby's demeanor, was entitled to resolve it in favor
of the State. We note in addition that respondent's counsel chose
not to question Colby himself, or to object to the trial court's
excusing her for cause. This
Page 469 U. S. 435
questioning might have resolved any perceived ambiguities in the
questions; its absence is all the more conspicuous because counsel
did object to the trial court's excusing other veniremen later on
during the
voir dire. Indeed, from what appears on the
record it seems that at the time Colby was excused no one in the
courtroom questioned the fact that her beliefs prevented her from
sitting. The reasons for this, although not crystal clear from the
printed record, may well have been readily apparent to those
viewing Colby as she answered the questions.
Respondent's attempt to separate the answers from the questions
misses the mark; the trial court, hopefully imbued with a fair
amount of common sense as well as an understanding of the
applicable law, views the questioning as a whole. It is free to
interrupt questioning to clarify any particular statement. There is
nothing in this record which indicates that anybody had trouble
understanding the meaning of the questions and answers with respect
to Colby. One of the purposes of § 2254(d) was to prevent precisely
this kind of parsing of trial court transcripts to create problems
on collateral review where none were seen at trial.
The trial court's finding of bias was made under the proper
standard, was subject to § 2254(d), and was fairly supported by the
record. Since respondent has not adduced "clear and convincing
evidence that the factual determination by the State court was
erroneous," we reverse the judgment of the Court of Appeals.
[
Footnote 13]
It is so ordered.
Page 469 U. S. 436
[
Footnote 1]
Respondent argued in the Court of Appeals that 3 of the 11
prospective jurors excused for cause -- veniremen Colby, Gehm, and
Miller -- were improperly excused. The court considered Mrs.
Colby's colloquy the "
least certain statement of inability
to follow the law as instructed," and limited its discussion to her
questioning.
See 714 F.2d at 1081 (emphasis in original).
We agree that Mrs. Colby provided the least clear example of a
biased venireman, and we therefore need not discuss the
voir
dire of veniremen Gehm and Miller.
[
Footnote 2]
Maxwell and
Boulden cited the following
language from footnote 9:
"Unless a venireman states
unambiguously that he would
automatically vote against the imposition of capital
punishment no matter what the trial might reveal, it simply cannot
be assumed that that is his position."
Maxwell, 398 U.S. at
398 U. S. 265;
Boulden, 394 U.S. at
394 U. S. 482
(emphasis added).
[
Footnote 3]
The Court cited the following answer of venireman Jenson, whom
the Court found was improperly excluded: "
Well, I think it
probably would [affect my deliberations] because after all
[sic], you're talking about a man's life here. You
definitely don't want to take it lightly.'" 448 U.S. at
448 U. S. 50, n.
7. The Court also found other veniremen improperly excluded who had
been unable to state whether their views would or would not
"affect" their deliberations. Id. at 448 U. S.
50.
[
Footnote 4]
For similar reasons the references to "automatic" decisionmaking
in both
Maxwell v. Bishop, 398 U.
S. 262 (1970), and
Boulden v. Holman,
394 U. S. 478
(1969), also can be discounted. At the time those cases were
decided the death sentencing statutes in Arkansas and Alabama,
respectively, apparently allowed juries unlimited discretion in
imposing the death sentence. In addition, both cases involved
jurors who were excused merely because they had "conscientious"
objections to, or did not "believe in," the death penalty.
Maxwell, supra, at
398 U. S.
264-265;
Boulden, supra, at
394 U. S.
483-484.
[
Footnote 5]
The dissent chides us for our failure to discuss in greater
detail the
Witherspoon case, and apparently seeks to
remedy this defect by devoting page after page to its own exegesis
of that decision. Much of this exegesis, however, is a latter-day
version of a "fair cross-section" theme barely adumbrated by that
opinion. But even accepting the dissent's latter-day underpinnings
for
Witherspoon, that case represented a necessary
balancing of the accused defendant's right to a jury panel drawn
from a "fair cross-section of the community" -- which if carried to
its logical conclusion would require that a juror be seated who
frankly avowed that he could not and would not follow the judge's
instructions on the law -- against the traditional right of a party
to challenge a juror for bias -- which if carried to its logical
extreme would permit exclusion from jury panels of groups of people
whose general philosophical views might have no bearing on their
ability to follow a judge's instructions. We adhere to the
essential balance struck by the
Witherspoon decision
rendered in 1968, if not to the version of it presented by today's
dissent; we simply modify the test stated in
Witherspoon's
footnote 21 to hold that the State may exclude from capital
sentencing juries that "class" of veniremen whose views would
prevent or substantially impair the performance of their duties in
accordance with their instructions or their oaths.
[
Footnote 6]
See, for example, the excerpts of the
voir dire of
venireman Pfeffer set out in
O'Bryan v. Estelle, 714 F.2d
365, 379 (CA5 1983),
cert. denied, 465 U.S. 1013
(1984):
"THE COURT: Well, the law requires that we have to have a
definite answer."
"[A]: I understand, right."
"THE COURT: Because the law does allow people to be excused
because of certain beliefs that could be prejudicial or biased for
one side or the other, and both sides just want to know if you can
keep an open mind, consider the entire full range of punishment,
whatever that may be, and under the proper set of circumstances, if
they do exist and you feel they exist, that you could return that
verdict. And that's in essence what they're asking."
"[A]: Indirectly, I guess I would have to say no."
"THE COURT: You could not?"
"[A]: I would have to say no then, to give you a yes or no
answer."
"THE COURT: Then, am I to believe by virtue of that answer that
regardless of what the facts would reveal, regardless of how
horrible the circumstances may be, that you would automatically
vote against the imposition of the death penalty?"
"[A]: As I say, I don't know."
"THE COURT: Well, that's the question I have to have a yes or no
to."
"[A]: Right."
"THE COURT: And you're the only human being alive who knows, Mr.
Pfeffer."
"[A]: Right, I understand. If I have to make a choice between
yes and no, I would say I couldn't make the judgment."
"Some period later, juror Pfeffer gave the following
answer:"
"THE COURT: You yourself are in such a frame of mind that
regardless of how horrible the facts and circumstances are, that
you would automatically vote against the imposition of the death
penalty? Is that correct?"
"[A]: Well, if it says a yes or no, I would have to say yes, I
would automatically vote against, to give a correct answer."
[
Footnote 7]
Section 2254(d) provides:
"In any proceeding instituted in a Federal court by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination after a
hearing on the merits of a factual issue, made by a State court of
competent jurisdiction in a proceeding to which the applicant for
the writ and the State or an officer or agent thereof were parties,
evidenced by a written finding, written opinion, or other reliable
and adequate written indicia, shall be presumed to be correct,
unless the applicant shall establish or it shall otherwise appear,
or the respondent shall admit --"
"(1) that the merits of the factual dispute were not resolved in
the State court hearing;"
"(2) that the factfinding procedure employed by the State court
was not adequate to afford a full and fair hearing;"
"(3) that the material facts were not adequately developed at
the State court hearing;"
"(4) that the State court lacked jurisdiction of the subject
matter or over the person of the applicant in the State court
proceeding;"
"(5) that the applicant was an indigent and the State court, in
deprivation of his constitutional right, failed to appoint counsel
to represent him in the State court proceeding;"
"(6) that the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding; or"
"(7) that the applicant was otherwise denied due process of law
in the State court proceeding;"
"(8) or unless that part of the record of the State court
proceeding in which the determination of such factual issue was
made, pertinent to a determination of the sufficiency of the
evidence to support such factual determination, is produced as
provided for hereinafter, and the Federal court on a consideration
of such part of the record as a whole concludes that such factual
determination is not fairly supported by the record:"
"And in an evidentiary hearing in the proceeding in the Federal
court, when due proof of such factual determination has been made,
unless the existence of one or more of the circumstances
respectively set forth in paragraphs numbered (1) to (7),
inclusive, is shown by the applicant, otherwise appears, or is
admitted by the respondent, or unless the court concludes pursuant
to the provisions of paragraph numbered (8) that the record in the
State court proceeding, considered as a whole, does not fairly
support such factual determination, the burden shall rest upon the
applicant to establish by convincing evidence that the factual
determination by the State court was erroneous."
[
Footnote 8]
In
Cuyler, 446 U.S. at
446 U. S. 342,
this Court held that "mixed determination[s] of law and fact" are
not subject to the § 2254(d) presumption.
[
Footnote 9]
In
Reynolds v. United States, 98 U. S.
145,
98 U. S.
156-157 (1879), this Court stated:
"[T]he manner of the juror while testifying is oftentimes more
indicative of the real character of his opinion than his words.
That is seen below, but cannot always be spread upon the record.
Care should, therefore, be taken in the reviewing court not to
reverse the ruling below upon such a question of fact, except in a
clear case."
[
Footnote 10]
In
O'Bryan v. Estelle, 714 F.2d at 392 (Higginbotham,
J., concurring specially), Judge Higginbotham artfully discusses
those factors, in addition to the trial court's advantage of having
seen and heard the juror, which dictate deference to the trial
judge's decision under these circumstances. He suggests deference
is mandated in general in the interest of finality -- to preserve a
trial court's integrity as a court of law, instead of as an
"entrance gate" for fact collecting subject to appellate review. In
addition, he points out that on habeas review, comity and
federalism indicate the need to defer to the independent mechanisms
of state government that already have reached one decision on the
same facts.
See also Darden v. Wainwright, 725 F.2d 1526,
1551 (CA11 1984) (Fay, J., concurring in part and dissenting in
part).
[
Footnote 11]
In so stating, we do not mean to suggest that respondent
"waived" his
Witherspoon claim under
Wainwright v.
Sykes, 433 U. S. 72
(1977), by failing to contemporaneously object. There is no doubt
that in spite of respondent's failure to object, the Florida courts
reached the merits of his
Witherspoon claim.
See Witt
v. State, 342 So. 2d 497
(Fla.),
cert. denied, 434 U.S. 935 (1977). Under
circumstances where the state courts do not rely on independent
state grounds for disposing of a claim and instead reach the merits
of a federal question, the federal question is properly before us.
See Ulster County Court v. Allen, 442 U.
S. 140,
442 U. S. 154
(1979). Nevertheless, counsel's failure to speak in a situation
later claimed to be so rife with ambiguity as to constitute
constitutional error is a circumstance we feel justified in
considering when assessing respondent's claims. We note that since
Witt was decided by the Florida Supreme Court that court
has enforced a contemporaneous-objection rule when dealing with
Witherspoon challenges.
See Brown v.
State, 381 So. 2d
690, 693-694 (1980).
[
Footnote 12]
See, e.g., the questioning of Ms. Kazmierczak:
"THE COURT: Wait a minute, ma'am. I haven't made up my mind yet.
Just have a seat. Let me ask you these things. Do you have any
prefixed ideas about this case at all?"
"[A]: Not at all."
"THE COURT: Will you follow the law that I give you?"
"[A]: I could do that."
"THE COURT: What I am concerned about is that you indicated that
you have a state of mind that might make you be unable to follow
the law of this State."
"[A]: I could not bring back a death penalty."
"THE COURT: Step down."
Tr. 341. . . . and the questioning of Mrs. Hill:
"THE COURT: Well, ma'am, what I am concerned about is whether or
not you will render a fair and impartial verdict, whether you have
any prefixed ideas about this case, and whether you will follow the
law. That's the whole shebang right there."
"[A]: I would give a true verdict. I mean, I wouldn't -- I can
do that."
"THE COURT: Well, from what you are saying, I have some concern.
Will you follow the law in this case?"
"[A]: Pardon?"
"THE COURT: Will you follow the law in this case?"
"[A]: Yes, unless it was that I had to give a death sentence. I
couldn't do that."
Id. at 372. Since it is clear that the trial judge
applied a standard in accord with our decision today, there is no
need to address respondent's contention that the Florida Supreme
Court applied the incorrect standard on direct review.
[
Footnote 13]
Respondent seeks affirmance of the judgment of the Court of
Appeals on the alternative ground that the Supreme Court of Florida
at the time of his appeal of his conviction was engaged in
soliciting and receiving psychiatric, psychological, and other
reports concerning the mental condition and backgrounds of
individuals sentenced to death which had not been introduced in the
trial proceedings. In
Ford v. Strickland, 696 F.2d 804,
811 (CA11),
cert. denied, 464 U.S. 865 (1983), a majority
of the Court of Appeals accepted the Supreme Court of Florida's
determination that it did not in fact make use of the material in
question in its review of capital cases. We see no reason to
disturb this essentially factual determination by the Court of
Appeals.
JUSTICE STEVENS, concurring in the judgment.
Because the Court's opinion contains so much discussion that is
unnecessary to the resolution of this case, I am unable to join it.
[
Footnote 2/1] Much of that
discussion is inconsistent with the standard announced in
Adams
v. Texas, 448 U. S. 38
(1980), which the entire Court continues to endorse today.
[
Footnote 2/2] The majority,
however, does identify the facts that are critical to a proper
disposition of this case. [
Footnote
2/3]
Page 469 U. S. 437
Defense counsel did not object to the exclusion of venireman
Colby and made no attempt, either by cross-examination or in
colloquy with the court, to demonstrate that she could properly
serve as a juror, or that defendant wanted her to serve. The entire
examination of Colby, who was the first prospective juror to be
specifically questioned about her views on the death penalty,
consists of the few lines quoted by the Court.
Ante at
469 U. S.
415-416. The contrast between defense counsel's silence
when Colby was excused, and his reaction to the prosecutor's motion
to excuse venireman Kazmierczak is illuminating.
After answering several questions of the prosecutor, juror
Kazmierczak stated:
"I don't think [my views on the death penalty] would interfere
with the guilt or innocence of the person, but the decision of what
guilt and what the outcome would be for his destiny, I could not go
along with the death penalty."
Tr. 273. When the prosecutor later moved to excuse her for
cause, defense counsel objected, further questioning ensued, and
when the trial court expressed concern "that you have a state of
mind that might make you unable to follow the law of this State,"
Kazmierczak unequivocally responded: "I could not bring back a
death penalty."
Id. at 341. The record thus demonstrates
that defense counsel wanted Kazmierczak to serve as a juror, but
that she was properly excused.
Defense counsel's objection to the excusing of Kazmierczak,
notwithstanding her stronger testimony indicating bias, lends
credence to the hypothesis that competent trial counsel could well
have made a deliberate decision not to object to the exclusion of
Colby because he did not want her
Page 469 U. S. 438
to serve as a juror. [
Footnote
2/4] Given the gruesome facts of this case, see
ante
at
469 U. S. 414,
and Colby's somewhat timorous responses, it is entirely possible
that her appearance and demeanor persuaded trial counsel that he
would prefer a more vigorous or less reluctant juror. [
Footnote 2/5] In view of that possibility,
I am unable to conclude that the State's failure to make the kind
of record required by
Adams v. Texas constitutes an error
so fundamental that it infects the validity of the death sentence
in this case. [
Footnote 2/6]
Accordingly, I concur in the Court's judgment. [
Footnote 2/7]
Page 469 U. S. 439
[
Footnote 2/1]
I do agree with the Court's observation that dictum is not
binding in future cases.
See ante at
469 U. S.
422.
[
Footnote 2/2]
The Court,
ante at
469 U. S. 423,
expressly endorses the following statement in the
Adams
opinion:
"As an initial matter, it is clear beyond a peradventure that
Witherspoon is not a ground for challenging any
prospective juror. It is rather a limitation on the State's power
to exclude: if prospective jurors are barred from jury service
because of their views about capital punishment on 'any broader
basis' than inability to follow the law or abide by their oaths,
the death sentence cannot be carried out."
448 U.S. at
448 U. S. 47-48.
JUSTICE BRENNAN, in his dissent today, also endorses that standard.
See post at
469 U. S. 450
(BRENNAN, J., joined by MARSHALL, J., dissenting).
[
Footnote 2/3]
"Defense counsel did not object or attempt rehabilitation."
Ante at
469 U. S.
416.
"In this regard it is noteworthy that in this case the court was
given no reason to think that elaboration was necessary; defense
counsel did not see fit to object to juror Colby's recusal, or to
attempt rehabilitation."
Ante at
469 U. S.
430-431.
"Nevertheless, counsel's failure to speak in a situation later
claimed to be so rife with ambiguity as to constitute
constitutional error is a circumstance we feel justified in
considering when assessing respondent's claims. We note that since
Witt was decided by the Florida Supreme Court that court
has enforced a contemporaneous-objection rule when dealing with
Witherspoon [
v.
Illinois, 391 U. S. 510 (1968),]
challenges.
See Brown v. State, 381 So. 2d
690, 693-694 (Fla.1980)."
Ante at
469 U. S. 431,
n. 11.
"We note in addition that respondent's counsel chose not to
question Colby himself, or to object to the trial court's excusing
her for cause. This questioning might have resolved any perceived
ambiguities in the questions; its absence is all the more
conspicuous because counsel did object to the trial court's
excusing other veniremen later on during the
voir
dire."
Ante at
469 U. S.
434-435.
[
Footnote 2/4]
As I have previously suggested, the absence of an objection at
trial sheds important light on the significance of an alleged
constitutional error even when it does not create an absolute
procedural bar to review.
Engle v. Isaac, 456 U.
S. 107,
456 U. S. 136,
n. 1 (1982) (STEVENS, J., concurring in part and dissenting in
part) ("The failure to object generally indicates that defense
counsel felt that the trial error was not critical to his client's
case; presumably, therefore, the error did not render the trial
fundamentally unfair");
Wainwright v. Sykes, 433 U. S.
72,
433 U. S. 96
(1977) (STEVENS J., concurring) ("The record persuades me that
competent trial counsel could well have made a deliberate decision
not to object to the admission of the respondent's in-custody
statement").
[
Footnote 2/5]
Earlier in the
voir dire, Colby had been repeatedly
admonished to speak louder, Tr. 237-238, and her demeanor in
answering several of the prosecutor's questions may have indicated
to counsel that it would be inconvenient for her to serve on the
jury: "Well, it will cause me to lose my work. This is all. . . . I
have made plans -- of course, this is a [holiday] as far as the
post office is concerned -- so I was off today."
Id. at 238. She added that she could make arrangements to
serve on the jury, "if I have to."
Id. at 239.
[
Footnote 2/6]
See Rose v. Lundy, 455 U. S. 509,
455 U. S.
544-545 (1982) (STEVENS, J., dissenting).
[
Footnote 2/7]
I should note that the defense counsel also did not object to
the exclusion of either venireman Gehm or Miller. When Gehm was
asked whether he could keep an open mind as to whether to vote for
the death penalty or life, he responded: "No, I could not." Tr.
296. The most relevant portion of Miller's examination reads as
follows:
"[Q]: And you wouldn't be able to follow the law as instructed
by the Court?"
"[A]: When it comes down to a death penalty, I wouldn't."
"[Q]: You could not do it. Okay. Regardless of the law?"
"[A]: No, sir."
Id. at 356.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
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,
428 U. S. 227
(1976), I would affirm the judgment of the Court of Appeals for the
Eleventh Circuit to the extent it vacates respondent Johnny Paul
Witt's sentence of death. Even if I thought otherwise, however, I
would vote to affirm the decision below in this case. If the
presently prevailing view of the Constitution is to permit the
State to exact the awesome punishment of taking a life, then basic
justice demands that juries with the power to decide whether a
capital defendant lives or dies not be poisoned against the
defendant.
The Sixth Amendment jury guarantee
"reflect[s] a profound judgment about the way in which law
should be enforced and justice administered. . . . Providing an
accused with the right to be tried by a jury of his peers [gives]
him an inestimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccentric
judge."
Duncan v. Louisiana, 391 U. S. 145,
391 U. S.
155-156 (1968). In
Witherspoon v. Illinois,
391 U. S. 510,
391 U. S. 521
(1968), the Court recognized that the
voir dire practice
of "death qualification" -- the exclusion for cause, in capital
cases, of jurors opposed to capital punishment -- can dangerously
erode this "inestimable safeguard" by creating unrepresentative
juries "uncommonly willing to condemn a man to die."
See also
Adams v. Texas, 448 U. S. 38,
448 U. S. 44-45,
448 U. S. 48-50
(1980). To protect against this risk,
Witherspoon and its
progeny have required the State to make an exceptionally strong
showing that a prospective juror's views about the death penalty
will result in actual bias toward the defendant before permitting
exclusion of the juror for cause.
The Court of Appeals below correctly applied the stringent
Witherspoon standards to the
voir dire colloquy
between the prosecutor and prospective juror Colby. Reversing this
decision, the Court today abandons
Witherspoon's
strict
Page 469 U. S. 440
limits on death-qualification and holds instead that
death-qualification exclusions be evaluated under the same
standards as exclusions for any other cause. [
Footnote 3/1] Championing the right of the State to a
jury purged of all possibility of partiality toward a capital
defendant, the Court today has shown itself willing to ignore what
the Court in
Witherspoon and its progeny thought crucial:
the inevitable result of the quest for such purity in the jury room
in a capital case is not a neutral jury drawn from a fair
cross-section of the community but a jury biased against the
defendant, at least with respect to penalty, [
Footnote 3/2] and a jury from which an identifiable
segment of the community has been excluded. Until today it had been
constitutionally impermissible for the State to require a defendant
to place his life in the hands of such a jury; our fundamental
notions of criminal justice were thought to demand that the State,
not the defendant, bear the risk of a less than wholly neutral jury
when perfect neutrality cannot, as in this situation it most
assuredly cannot, [
Footnote 3/3] be
achieved. Today the State's right to ensure exclusion of any juror
who might fail
Page 469 U. S. 441
to vote the death penalty when the State's capital punishment
scheme permits such a verdict vanquishes the defendant's right to a
jury that assuredly will not impose the death penalty when that
penalty would be inappropriate.
I
A
Because the Court is not forthright about the extent to which
today's decision departs from
Witherspoon and its progeny,
and because the Court does not even acknowledge the constitutional
rights
Witherspoon is meant to protect, a detailed
exposition of
Witherspoon v. Illinois is in order.
In the typical case not involving the possibility of a death
penalty, the State is given significant leeway to exclude for cause
those jurors who indicate that various circumstances might affect
their impartiality. [
Footnote 3/4]
Broad exclusion is generally permitted even though some such
jurors, if pressed further on
voir dire, might be
discovered to possess the ability to lay aside their prejudices and
judge impartially. Although, as we held in
Witherspoon,
exclusion on "any broader basis" than a juror's unambiguously
expressed inability to follow instructions and abide by an oath
serves no legitimate state interest, 391 U.S. at
391 U. S. 522,
n. 21, such broader exclusion is typically permitted for the sake
of convenience because it disserves no interest of the
defendant.
The Court's crucial perception in
Witherspoon was that
such broad exclusion of prospective jurors on the basis of the
possible effect of their views about capital punishment infringes
the rights of a capital defendant in a way that broad exclusion for
indicia of other kinds of bias does not. No systemic skew in the
nature of jury composition results from exclusion of individuals
for random idiosyncratic traits likely
Page 469 U. S. 442
to lead to bias. Exclusion of those opposed to capital
punishment, by contrast, keeps an identifiable class of people off
the jury in capital cases and is likely systemically to bias
juries. Such juries are more likely to be hanging juries, tribunals
more disposed in any given case to impose a sentence of death.
Id. at
391 U. S. 523.
These juries will be unlikely to represent a fair cross-section of
the community, and their verdicts will thus be unlikely to reflect
fairly the community's judgment whether a particular defendant has
been shown beyond a reasonable doubt to be guilty and deserving of
death. For a community in which a significant segment opposes
capital punishment, "proof beyond a reasonable doubt" in a capital
case might be a stricter threshold than "proof beyond a reasonable
doubt" in a noncapital case. A jury unlikely to reflect such
community views is not a jury that comports with the Sixth
Amendment.
Adams v. Texas, supra, at
448 U. S. 50.
See Witherspoon, 391 U.S. at
391 U. S.
519-520.
Cf. Peters v. Kiff, 407 U.
S. 493,
407 U. S.
503-504 (1972) (opinion of MARSHALL, J.) ("It is not
necessary to conclude that the excluded group will consistently
vote as a class in order to conclude . . . that its exclusion
deprives the jury of a perspective on human events that may have
unsuspected importance");
Ballard v. United States,
329 U. S. 187,
329 U. S.
193-194 (1946) (discussing "subtle interplay of
influence one on the other" among jurors of varying
perspectives).
This perception did not, however, lead us to ban all inquiry
into a prospective juror's views about capital punishment. We also
acknowledged, as the Court today correctly points out, that the
State's legitimate interest in an impartial jury encompasses the
right to exclude jurors whose views about capital punishment would
so distort their judgment that they could not follow the law.
Witherspoon accommodated both the defendant's
constitutionally protected rights and the State's legitimate
interests by permitting the State to exclude jurors whose views
about capital punishment would
Page 469 U. S. 443
prevent them from being impartial but requiring strict standards
of proof for exclusion. In particular,
Witherspoon
precluded any speculative presumption that a juror opposed to
capital punishment would for that reason lack the ability to be
impartial in a particular case; "[a] man who opposes the death
penalty, no less than one who favors it, can make the discretionary
judgment entrusted to him by the State and can thus obey the oath
he takes as a juror."
Witherspoon, supra, at
391 U. S. 519.
Accord, Maxwell v. Bishop, 398 U.
S. 262,
398 U. S. 265
(1970);
Boulden v. Holman, 394 U.
S. 478,
394 U. S.
483-484 (1969). Beyond prohibiting any presumption of
bias,
Witherspoon imposed, as the Court today recognizes,
an "extremely high burden of proof" of actual bias.
Ante
at
469 U. S. 421.
The State may exclude only those jurors who make it "unambiguous"
or "unmistakably clear,"
Witherspoon, supra, at
391 U. S.
515-516, n. 9,
391 U. S. 522,
n. 21, that their views about capital punishment would prevent or
substantially impair them from following the law. [
Footnote 3/5]
Three important consequences flow from
Witherspoon's
stringent standard for exclusion. First, it permits exclusion only
of jurors whose views would prevent or substantially impair them
from following instructions or abiding by an oath, and not those
whose views would simply make these tasks more psychologically or
emotionally difficult, nor those whose views would in good faith
color their judgment of what a "reasonable doubt" is in a capital
case.
Adams v. Texas, 448 U.S. at
448 U. S. 48-51.
Second, it precludes exclusion of jurors
Page 469 U. S. 444
whose
voir dire responses to death-qualification
inquiries are ambiguous or vacillating.
Witherspoon,
supra, at
391 U. S.
515-516, n. 9,
391 U. S. 522,
n. 21. Third, it precludes exclusion of jurors who do not know at
voir dire whether their views about the death penalty will
prevent them abiding by their oaths at trial.
Adams,
supra, at
448 U. S. 50.
See generally Schnapper, Taking
Witherspoon Seriously: The
Search for Death-Qualified Jurors, 62 Texas L.Rev. 977, 981-993
(1984).
These restrictions not only trace narrowly the compass of
permissible exclusion but also allocate to the State the cost of
unavoidable uncertainty with respect to whether a prospective juror
with scruples about capital punishment should be excluded. They do
so in much the same way, and for much the same reason, that the
"proof beyond a reasonable doubt" standard of guilt allocates to
the State the cost of uncertainty with respect to whether a
particular defendant committed a crime.
See In re Winship,
397 U. S. 358,
397 U. S.
370-373 (1970) (Harlan, J. concurring). At
voir
dire some prospective jurors may make clear that their
opposition to capital punishment will color their judgment but may
not make clear whether the effect will rise to the level of
"conscious distortion or bias."
Adams v. Texas, supra, at
448 U. S. 46.
Many others will not bring to the
voir dire a considered
position about capital punishment and thus may respond with
uncertainty, ambiguity, evasion, or even self-contradiction during
the death-qualification process. When the time for decision arrives
such jurors might or might not turn out to be so affected by the
prospect of a death sentence in the case before them that they
render a biased judgment; typically neither eventuality can be
divined at the
voir dire stage.
If under our Constitution we viewed the disadvantage to the
defendant from exclusion of unbiased prospective jurors opposed to
the death penalty as equivalent to the disadvantage to the
prosecution from inclusion of a biased prospective juror, then the
law would impose no particular burden favoring or disfavoring
exclusion. Because -- at least until
Page 469 U. S. 445
today -- we viewed the risks to a defendant's Sixth Amendment
rights from a jury from which those who oppose capital punishment
have been excluded as far more serious than the risk to the State
from inclusion of particular jurors whose views about the death
penalty might turn out to predispose them toward the defendant, we
placed on the State an extremely high burden to justify exclusion.
Cf. In re Winship, supra, at
397 U. S.
370-373 (Harlan, J., concurring);
Speiser v.
Randall, 357 U. S. 513,
357 U. S.
525-526 (1958) ("There is always in litigation a margin
of error. . . . Where one party has at stake an interest of
transcending value as a criminal defendant his liberty -- this
margin of error is reduced as to him by the process of placing on
the other party the burden . . ."). To protect the rights of the
capital defendant
Witherspoon prohibits exclusion of the
ambiguous, evasive, or uncertain Juror.
Later cases came to see the essence of
Witherspoon as
being embedded in the language of footnote 21 of that case.
See
Adams v. Texas, supra; Boulden v. Holman, supra; Maxwell v. Bishop,
supra. The crucial portion of the footnote reads:
"[N]othing we say today bears upon the power of a State to
execute a defendant sentenced to death by a jury from which the
only veniremen who were in fact excluded for cause were those who
made 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."
Witherspoon, 391 U.S. at
391 U. S.
522-523, n. 21 (emphasis in original). This particular
two-part inquiry, as the Court today correctly notes,
ante
at
469 U.S. 419, carries no
talismanic significance. Its purpose is to expose the ability
vel non of a juror to follow
Page 469 U. S. 446
instructions and abide by an oath with respect to both
sentencing (the first prong) and determining guilt or innocence
(the second prong). [
Footnote 3/6]
We have held that different forms of inquiry passed muster under
Witherspoon so long as they were similarly directed at
ascertaining whether a juror could follow instructions and abide by
an oath.
E.g., Adams v. Texas, 448 U.S. at
448 U. S. 44-45;
Lockett v. Ohio, 438 U. S. 586,
438 U. S.
595-596 (1978).
That permissible
Witherspoon inquiries may depart from
the language of footnote 21 does not mean, however, that the State
may ignore
Witherspoon's strict standards of proof for
exclusion when a different form of inquiry is put to the
prospective juror. We have repeatedly stressed that the essence of
Witherspoon is its requirement that only jurors who make
it unmistakably clear that their views about capital punishment
would prevent or substantially impair them from following the law
may be excluded.
Maxwell v. Bishop, 398 U.
S. 262 (1970);
Boulden v. Holman, 394 U.
S. 478 (1969). Thus in summarily reversing several state
court decisions, this Court invalidated death sentences imposed by
juries from which jurors had been excluded because their
voir
dire responses indicated ambiguity or uncertainty as to
whether their views about capital punishment would affect their
ability to be impartial.
Pruett v. Ohio, 403 U.S. 946
(1971),
rev'g 18 Ohio St.2d 167, 248 N.E.2d 605 (1969);
Adams v. Washington, 403 U.S. 947 (1971),
rev'g 76 Wash. 2d
650,
458 P.2d
558 (1969);
Mathis v. New Jersey, 403 U.S. 946 (1971),
rev'g 52 N.J. 238,
245 A.2d
20 (1968). And in
Lockett v. Ohio, supra, we approved
exclusions because the excused prospective jurors had made it
"
unmistakably clear'" that
Page 469 U. S.
447
they could not take an oath to be impartial. 438 U.S. at
438 U. S. 596
(quoting Witherspoon, supra, at 391 U. S.
522-523, n. 21). Most recently, in Adams v.
Texas, this Court reaffirmed that exclusion absent a juror's
unambiguously stated inability to follow the law and abide by an
oath was constitutionally impermissible. 448 U.S. at 448 U. S.
50.
B
A comprehensive understanding of the principles of
Witherspoon makes clear that the decision of the Court of
Appeals below was correct. The court below faithfully sought to
implement
Witherspoon's accommodation of the interests of
the defendant in avoiding a jury "
uncommonly willing to condemn
a man to die,'" 714 F.2d 1069, 1076-1080 (1984) (quoting
Witherspoon, supra, at
391 U. S.
521), and of the State in
"the necessity of excusing for cause those prospective jurors
who, because of their lack of impartiality from holding unusually
strong views against the death penalty, would frustrate a state's
legitimate effort to administer an otherwise constitutionally valid
death penalty scheme."
714 F.2d at 1076-1080. Following
Adams v. Texas, supra,
the court below articulated an accurate understanding of the
stringent burdens of proof
Witherspoon places on the
State:
"[A] prospective juror must be permitted great leeway in
expressing opposition to the death penalty before he or she
qualifies for dismissal for cause. A prospective juror may even
concede that his or her feelings about the death penalty would
possibly color an objective determination of the facts of a case
without admitting of the necessary partiality to justify
excusal."
714 F.2d at 1076-1080.
See Adams v. Texas, supra, at
448 U. S.
49-50.
Applying this correct understanding of the law to the colloquy
between the prosecutor and prospective juror Colby, the court held
that Colby's "statements fall far short of the certainty
Page 469 U. S. 448
required by
Witherspoon to justify for cause excusal."
714 F.2d at 1082. The court traced this lack of certainty in part
to "the State's failure to frame its questions in an appropriately
unambiguous manner," given the standard of proof the State had to
meet to justify exclusion.
Ibid. Specifically, the court
criticized the State's use of the word "interfere" in its
examination:
"The word 'interfere' admits of a great variety of
interpretations, and we would find it quite unnatural for a person,
who has already expressed her concern about the death penalty, to
respond otherwise than that her feelings would 'interfere' with,
'color,' or 'affect' her determinations. Such a response does not
indicate an inability, in all cases, to apply the death sentence or
to find the defendant guilty where such a finding could lead to
capital punishment because it fails to reflect the profundity of
any such 'interference.'"
Ibid. Though critical of the prosecutor's decision to
fashion his questioning around the word "interfere," the court
below did not base its decision on this divergence from the precise
inquiry of
Witherspoon's footnote 21. 714 F.2d at 1083.
[
Footnote 3/7] Rather, the court
relied on
Witherspoon's stringent standards of proof in
deciding that the exclusion of Colby was improper. Colby's
statement that she thought her personal views about capital
punishment might interfere with "judging
Page 469 U. S. 449
[the] guilt or innocence [of the defendant]," 714 F.2d at 1083,
was, the court held, not a sufficiently unambiguous statement of
inability to follow instructions or abide by an oath to justify
exclusion under applicable principles. This decision is perfectly
congruent with our recent holding in
Adams. 448 U.S. at
448 U. S. 49-50.
The court therefore ordered resentencing -- not retrial -- for Witt
in accord with Sixth and Fourteenth Amendment requirements.
[
Footnote 3/8]
Page 469 U. S. 450
II
A
Adams v. Texas, supra, is, ironically, precisely the
authority the Court today invokes to reverse the Court of Appeals
below. In what must under the circumstances be taken as a tacit
admission that application of
Witherspoon's stringent
standards of proof would validate the decision of the Court of
Appeals, the Court casts
Adams as a substantial
retrenchment; "the standard applied in
Adams," claims the
Court, "differs markedly from the language of footnote 21 [of
Witherspoon]."
Ante at
469 U. S. 421.
To the extent the Court reads
Adams as eschewing
unthinking adherence to the particular two-part inquiry propounded
in footnote 21, I have no quarrel.
See supra at
469 U. S.
445-446. The Court, however, purports to find in
Adams a renunciation of
Witherspoon's stringent
standards of proof.
Ante at
469 U. S. 421
("[G]one too is the extremely high burden of proof "). In essence
the Court reads
Adams as saying that there is no
constitutional distinction between exclusion for death penalty bias
and exclusion for other types of bias.
See Patton v.
Yount, 467 U. S. 1025
(1984). Had the Court of Appeals understood that this more lenient
exclusion standard governed, today's opinion asserts, it would have
realized that the state trial court's
voir dire excusal of
Colby should not be disturbed.
Adams did not, however, desert the principles of
Witherspoon. It is the Court's brazenly revisionist
reading of
Adams today that leaves
Witherspoon
behind. JUSTICE REHNQUIST, dissenting from
Adams, thought
the opinion of the Court "expand[ed]" the scope of
Witherspoon's restrictions. 448 U.S. at
448 U. S. 52.
Virtually all federal and state
Page 469 U. S. 451
appellate courts considering
Witherspoon claims in
light of
Adams have read the case as a clear endorsement
of the
Witherspoon approach encapsulated in footnote 21.
See, e.g., Darden v. Wainwright, 725 F.2d 1526, 1528-1529
(CA11 1984) (en banc);
Davis v. Zant, 721 F.2d 1478, 1486
(CA11 1983);
Spencer v. Zant, 715 F.2d 1562, 1576 (CA11
1983);
Hance v. Zant, 696 F.2d 940, 954 (CA11 1983);
O'Bryan v. Estelle, 691 F.2d 706, 709 (CA5 1982);
Burns v. Estelle, 626 F.2d 396, 397-398 (CA5 1980);
Herring v. State, 446 So. 2d
1049, 1055 (Fla.1984);
People v.
Velasquez, 28 Cal. 3d
461, 622 P.2d 952 (1980);
People v.
Gaines, 88 Ill. 2d
342, 351-352,
430 N.E.2d
1046, 1051 (1981);
State v. Mercer, 618 S.W.2d 1,
6 (Mo.1981) (en banc).
One need look no further than the text of
Adams to
understand why it has been perceived until today as consistent with
Witherspoon. Adams quoted
Witherspoon's
footnote 21 with approval and stated that the test in that footnote
was "clearly designed" to accommodate both the State's interest and
the defendant's interest.
Adams, supra, at 44. Reaffirming
that
Witherspoon must be seen as "a limitation on the
State's power to exclude,"
Adams held that
"if prospective jurors are barred from jury service because of
their views about capital punishment on 'any broader basis' than
inability to follow the law or abide by their oaths, the death
sentence cannot be carried out.
Witherspoon v. Illinois,
391 U.S. at
391 U. S. 522, n. 21."
448 U.S. at
448 U. S. 48. In
holding that the State may exclude only those whose views about
capital punishment "would prevent or substantially impair" their
ability to follow instructions and abide by an oath,
id.
at
448 U. S. 45,
the Court made clear that the State may exclude only jurors whose
views would lead to "
conscious distortion or bias."
Id. at
448 U. S. 46
(emphasis added).
Nothing in
Adams suggests that the Court intended to
abandon
Witherspoon's strict standards of proof. The
Court's intent to reaffirm these standards is evident in its
approving quotation of the "unmistakably clear" language of
Page 469 U. S. 452
footnote 21,
Adams, supra, at
448 U. S. 44,
and, more importantly, in its delineation of the circumstances in
which exclusion is impermissible.
Adams explicitly
prohibited exclusion of jurors whose views about capital punishment
might invest their deliberations with greater seriousness, 448 U.S.
at
448 U. S. 49-50,
those whose views would make it emotionally more difficult for them
to follow their oaths,
ibid., and those who cannot
affirmatively say whether or not their views would distort their
determinations,
id. at
448 U. S. 50.
Even those "who frankly concede that the prospects of the death
penalty may affect what their honest judgment of the facts will be
or what they may deem to be a reasonable doubt" may not be excluded
if "they aver that they will honestly find the facts . . . if they
are convinced beyond [a] reasonable doubt."
Ibid.
Adams was true to
Witherspoon's recognition
that the Constitution prohibits imposition of a death sentence by a
jury from which a juror was excluded on
any broader basis
than an unambiguous affirmatively stated inability to follow
instructions and abide by an oath. The Court today establishes an
entirely new standard significantly more lenient than that of
Witherspoon. The difference does not lie in the freedom of
the State to depart from the precise inquiry of
Witherspoon's footnote 21; that freedom, as I have made
clear, has long been established.
See supra at
391 U. S.
445-446;
Lockett v. Ohio, 438 U.S. at
438 U. S.
595-596. The crucial departure is the decision to
discard
Witherspoon's stringent standards of proof. The
Court no longer prohibits exclusion of uncertain, vacillating, or
ambiguous prospective jurors. It no longer requires an unmistakably
clear showing that a prospective juror will be prevented or
substantially impaired from following instructions and abiding by
an oath. Instead the trial judge at
voir dire is
instructed to evaluate juror uncertainty, ambiguity, or vacillation
to decide whether the juror's views about capital punishment
"
might frustrate administration of a State's death penalty
scheme."
Ante
Page 469 U. S. 453
at
469 U. S. 416
(emphasis added). [
Footnote 3/9] If
so, that juror may be excluded. In essence, the Court has shifted
to the capital defendant the risk of a biased and unrepresentative
jury. This result debases the Sixth Amendment's jury
guarantees.
B
Rewriting
Adams to suit present purposes, the Court has
of course relieved itself of much of its burden of justification;
invoking precedent, the Court dodges the obligation to provide
support for its decision to deprive the capital defendant of
protections long recognized as fundamental. Nonetheless, perhaps in
tacit recognition that today's departure calls for an explanation,
the Court has offered three reasons for preferring what it
misleadingly calls the "
Adams test."
Ante at
469 U. S. 421.
Stripped of their false lustre of precedential force, these
justifications neither jointly nor severally support the Court's
abandonment of
Witherspoon.
The Court's first justification is linked to changes in the role
of juries in capital cases. Because jurors no longer have the
unfettered discretion to impose or withhold capital punishment that
they had in Illinois and other States at the time of
Witherspoon, the Court asserts, there is no longer any
reason to require empaneling of jurors who will merely consider a
sentence of death under some circumstances. The State
Page 469 U. S. 454
should be permitted to exclude all jurors unable to follow the
guided discretion procedures that, as a result of the Court's
Eighth Amendment decisions, now govern capital sentencing.
Ante at
469 U. S. 422.
In the interest of candor, the Court might have mentioned that
precisely this analysis prompted JUSTICE REHNQUIST's dissent in
Adams. 448 U.S. at
448 U. S. 52
("[A]t a time when this Court should be re-examining the doctrinal
underpinnings of
Witherspoon in light of our intervening
decisions in capital cases, it instead expands that precedent as if
those underpinnings had remained wholly static"). It is most
curious that the identical reasoning is now marshaled to justify a
"test" purportedly derived from the Court's holding in that
case.
More to the point, this reasoning does not in any way justify
abandonment of the restrictions
Witherspoon has placed on
the exclusion of prospective jurors. Without a doubt, a State may
inquire whether a particular juror will be able to follow his or
her oath to abide by the particulars of a guided discretion
sentencing approach, and upon receiving an unmistakably clear
negative response the State may properly move to exclude that
juror.
Lockett v. Ohio, supra, at
438 U. S.
595-596. But the existence of a guided discretion scheme
in no way diminishes the defendant's interest in a jury composed of
a fair cross-section of the community and a jury not "uncommonly
willing to condemn a man to die."
Witherspoon v. Illinois,
391 U.S. at
391 U. S. 521.
Even under a guided discretion proceeding a juror must have the
opportunity to consider all available mitigating evidence,
Eddings v. Oklahoma, 455 U. S. 104
(1982), and to decide against imposition of the death sentence in
any individual case,
Woodson v. North Carolina,
428 U. S. 280
(1976). Under our Constitution, the capital sentencer must
undertake a sensitive "
consideration of the character and
record of the individual offender and the circumstances of the
particular offense as a[n] . . . indispensable part of the process
of inflicting the penalty of death.'" Eddings, supra, at
455 U. S. 112
(quoting Woodson, supra, at 428 U. S.
304). As
Page 469 U. S. 455
Adams recognizes, making such judgments "is not an
exact science, and the jurors . . . unavoidably exercise a range of
judgment and discretion while remaining true to their instructions
and their oaths. " 448 U.S. at
448 U. S. 46.
That is why the State may not exclude jurors
"who frankly concede that the prospects of the death penalty may
affect what their honest judgment of the facts will be or what they
may deem to be a reasonable doubt. Such assessments and judgments
by jurors are inherent in the jury system, and to exclude all
jurors who would be in the slightest way affected . . . would be to
deprive the defendant of the impartial jury to which he or she is
entitled under the law."
Id. at
448 U. S. 50.
The risks that
Witherspoon sought to minimize through
defining high standards of proof for exclusions based on death
penalty scruples are, we correctly held in
Adams, equally
prevalent in the context of guided discretion sentencing
schemes.
As a second justification for the so-called "
Adams
test" the Court serves up the claim that
Witherspoon's
footnote 21 approach was dictum. That footnote 21 might have been
dictum is not, of course, an affirmative reason for adopting the
particular alternative the Court advances today. Were the claim
correct it would merely leave more leeway to depart from the
Witherspoon restrictions. More importantly, the label
"dictum" does not begin to convey the status that the restrictions
embodied in footnote 21 have achieved in this Court and state and
federal courts over the last decade and a half.
See supra
at
469 U. S. 445,
469 U. S.
450-451. From
Boulden v. Holman, 394 U.
S. 478 (1969), and
Maxwell v. Bishop,
398 U. S. 262
(1970), through
Adams, supra, this Court has applied the
strict burdens of proof of
Witherspoon's footnote 21 to
invalidate sentences imposed by juries from which scrupled jurors
had been too readily excluded. The Court concedes as much at
another point in its opinion when it
Page 469 U. S. 456
acknowledges that footnote 21 "se[t] the standard" for
subsequent cases.
Ante at
469 U. S.
418.
The Court's third proffered justification is that the so-called
"
Adams standard . . . is in accord with the traditional
reasons for excluding jurors and with the circumstances under which
such determinations are made."
Ante at
469 U. S. 423.
In essence, the Court argues that the so-called
Adams
standard should be followed because it excludes jurors for bias on
the same grounds and using the same standards as would be used for
exclusion based on any other type of bias: "exclu[sion of] jurors
because of their opposition to capital punishment is no different
from excluding jurors for innumerable other reasons which result in
bias. . . ."
Ante at
469 U. S. 429.
This position is at the core of the Court's holding in this case,
but between this position and the basic principles of
Witherspoon lies an unbridgeable chasm.
The crux of
Witherspoon was its recognition of a
constitutionally significant distinction between exclusion of
jurors opposed to capital punishment and exclusion of jurors for
the "innumerable other reasons which result in bias."
Ante
at
469 U. S. 429.
The very nature of a
Witherspoon challenge illuminates the
difference. In typical cases involving an allegation of juror bias
unrelated to death penalty scruples, the convicted defendant
challenges the
inclusion of particular jurors.
E.g.,
Patton v. Yount, 467 U. S. 1025
(1984);
Smith v. Phillips, 455 U.
S. 209 (1982). In a
Witherspoon case the
convicted defendant challenges the
exclusion of particular
jurors. If, as the Court suggests, the only interest at stake in a
Witherspoon case is the equivalent right of the defendant
and the State to impartial individual jurors,
ante at
469 U. S. 423,
then the entire thrust of the
Witherspoon inquiry makes no
sense. To be relevant to the right the Court claims is at stake,
the inquiry would have to focus on whether the individual jurors
who replaced the excluded prospective jurors were impartial; if so,
then no harm would result from the exclusion of particular
prospective jurors, whatever the reason for the exclusion.
Page 469 U. S. 457
Witherspoon, of course, focused on the very different
sort of injury that might result from systematic exclusion of those
opposed to capital punishment: the risk of hanging juries, 391 U.S.
at
391 U. S. 521,
n. 20, from which a distinct segment of the community has been
excluded.
Id. at
391 U. S. 520.
Witherspoon's prohibition against presuming bias and its
requirement of an unmistakably clear showing of actual bias
sufficient to prevent or substantially impair a juror's ability to
abide by an oath are the means by which the risk of constitutional
injury is minimized.
The Court today eliminates both protections. It rejects the rule
that stricter standards govern death-qualification, and as a
justification for doing so indulges precisely the presumption of
bias
Witherspoon prohibited:
"we do not think, simply because a defendant is being tried for
a capital crime, that he is entitled to a legal presumption or
standard that allows jurors to be seated
who quite likely will
be biased in his favor."
Ante at
469 U. S. 423
(emphasis added). The trick in the majority opinion should by now
be clear. The Court simply refuses to recognize the constitutional
rights
Witherspoon's stringent standards of proof were
designed to safeguard. The Court limits the Sixth Amendment to the
partiality
vel non of individual jurors; "[h]ere, as
elsewhere, the quest is for
jurors who will
conscientiously apply the law and find the facts."
Ante at
469 U. S. 423
(emphasis added). As today's opinion would have it, the Sixth
Amendment has nothing to say about the overall composition of the
jury, and in particular about the capital defendant's right to a
jury not predisposed toward the death sentence and
representative of a fair cross-section of the community. A
defendant's established right to a jury that reflects the
community's judgment about whether the evidence supporting
conviction and execution for a particular crime crosses the
"reasonable doubt" threshold has been made to disappear.
This bit of legerdemain permits the Court to offer an easy
analogy to exclusion for other types of bias and argue that
Page 469 U. S. 458
death-qualification should be evaluated under the same lenient
standards.
Ante at
469 U. S.
423-424. Because the Court never acknowledges the
constitutional rights
Witherspoon was meant to protect, it
need not explain why
Witherspoon's protections are no
longer needed. It is bad enough that the Court is so eager to
discard well-established Sixth Amendment rights of a capital
defendant for the sake of efficient capital punishment. But if the
Court is to take such a precipitate step, at the very least it
should acknowledge having done so and explain why these
consistently recognized rights should be recognized no longer.
III
Witherspoon, as the foregoing discussion makes clear,
is best understood in the context of our cases preserving the
integrity of the jury both as an impartial factfinder and as the
voice of the community. As such the protection of
Witherspoon's stringent standards of proof could not be
more important to the capital defendant:
"The guarantees of jury trial in the Federal and State
Constitutions reflect a profound judgment about the way in which
law should be enforced and justice administered. A right to jury
trial is granted to criminal defendants in order to prevent
oppression by the Government. . . . Providing an accused with the
right to be tried by a jury of his peers gave him an inestimable
safeguard against the corrupt or overzealous prosecutor and against
the compliant, biased, or eccentric judge. If the defendant
preferred the common-sense judgment of a jury to the more tutored
but perhaps less sympathetic reaction of the single judge, he was
to have it. Beyond this, the jury trial provisions in the Federal
and State Constitutions reflect a fundamental decision about the
exercise of official power -- a reluctance to entrust plenary
powers over the life and liberty of the citizen to one
Page 469 U. S. 459
judge or to a group of judges. Fear of unchecked power, so
typical of our State and Federal Governments in other respects,
found expression in the criminal law in this insistence upon
community participation in the determination of guilt or
innocence."
Duncan v. Louisiana, 391 U. S. 145,
391 U. S.
155-156 (1968) (footnote omitted).
Crucial to the jury right is the requirement that "the jury be a
body truly representative of the community."
Smith v.
Texas, 311 U. S. 128,
311 U. S. 130
(1940). As we said in
Taylor v. Louisiana, 419 U.
S. 522 (1975), "[t]his prophylactic vehicle is not
provided if the jury pool is made up of only special segments of
the populace or if large, distinctive groups are excluded from the
pool."
Id. at
419 U. S. 530.
The death-qualification process is fraught with threats to these
constitutional guarantees. [
Footnote
3/10]
The risk of the "overzealous prosecutor and . . . the compliant,
biased, or eccentric judge,"
Duncan v. Louisiana, supra,
at
391 U. S. 156,
is particularly acute in the context of a capital case. Passions,
as we all know, can run to the extreme when the State tries one
accused of a barbaric act against society, or one accused of a
crime that -- for whatever reason -- inflames the community.
Pressures on the government to secure a conviction, to "do
something," can overwhelm even those of good conscience.
See
Patton v. Yount, 467 U.S. at
467 U. S.
1053 (STEVENS, J., dissenting). When prosecutors and
judges are elected, or when they harbor political ambitions, such
pressures are particularly dangerous.
Cf. Spaziano v.
Florida, 468 U. S. 447,
468 U. S. 467
(1984) (STEVENS, J., concurring in part and dissenting in part).
With such pressures invariably being brought to bear, strict
controls on the death-qualification
Page 469 U. S. 460
process are imperative. Death-qualification works to the
advantage of only the prosecutor; if not carefully controlled, it
is tool with which the prosecutor can create a jury perhaps
predisposed to convict [
Footnote
3/11] and certainly predisposed to impose the ultimate
sanction.
Broad death-qualification threatens the requirement that juries
be drawn from a fair cross-section of the community and thus
undermines both the defendant's interest in a representative body
and society's interest in full community participation in capital
sentencing.
"One of the most important
Page 469 U. S. 461
functions any jury can perform in making such a selection [of
life or death] is to maintain a link between contemporary community
values and the penal system -- a link without which the
determination of punishment could hardly reflect 'the evolving
standards of decency that mark the progress of a maturing
society.'"
Witherspoon, 391 U.S. at
391 U. S. 519,
n. 15 (quoting
Trop v. Dulles, 356 U. S.
86,
356 U. S. 101
(1958) (opinion of WARREN, C.J.)). As JUSTICE STEVENS wrote last
Term,
"if the decision that capital punishment is the appropriate
sanction in extreme cases is justified because it expresses the
community's moral sensibility -- its demand that a given affront to
humanity requires retribution -- it follows . . . that a
representative cross-section of the community must be given the
responsibility for making that decision."
Spaziano v. Florida, supra, at
468 U. S. 481
(concurring in part and dissenting in part).
That the Court would be willing to place the life of this
capital defendant, and all others, in the hands of a skewed jury is
unpardonable. Of perhaps equal gravity are the implications of
today's opinion for the established right of every criminal
defendant to a jury drawn from a fair cross-section of the
community.
Taylor v. Louisiana, supra. If, as the Court
suggests, the Sixth Amendment jury right requires only a "quest . .
. for jurors who will conscientiously apply the law and find the
facts,"
ante at
469 U. S. 423
-- if, in other words, the only pertinent question is whether the
individual jurors are impartial,
see Duren v. Missouri,
439 U. S. 357,
439 U.S. 371, n. (1979)
(REHNQUIST, J., dissenting);
Taylor v. Louisiana, supra,
at
419 U. S. 538
(REHNQUIST, J., dissenting) -- then the right to a jury drawn from
a fair cross-section of the community is lost.
IV
Though the unexplained evisceration of
Witherspoon's
protections of a capital defendant's Sixth Amendment rights is the
most troubling accomplishment of the opinion for the Court, its
discussion of the proper standard of review of
Page 469 U. S. 462
state court
Witherspoon determinations cannot pass
without some comment. One evident purpose of the Court's
redefinition of the standards governing death-qualification is to
bring review of death-qualification questions within the scope of
the presumption of correctness of state court factual findings on
federal collateral review. 28 U.S.C. § 2254(d). In recent cases the
Court has held that the question whether a juror is biased is a
question of fact and therefore review of a trial court's
voir
dire decision to exclude or not exclude receives a presumption
of correctness under § 2254(d).
E.g., Patton v. Yount,
467 U. S. 1025
(1984).
Had the Court maintained
Witherspoon's strict standards
for death-qualification, there would be no question that trial
court decisions to exclude scrupled jurors would not be questions
of fact subject to the presumption of correctness. Whether a
prospective juror with qualms about the death penalty expressed an
inability to abide by an oath with sufficient strength and clarity
to justify exclusion is certainly a "mixed question" -- an
application of a legal standard to undisputed historical fact. Even
if one were to accept the Court's redefinition of the proper
standards for death-qualification, it would not follow that the
Court's holding with respect to the applicability of § 2254(d) is
correct. JUSTICE STEVENS, dissenting in
Patton v. Yount,
supra, has persuasively demonstrated that "the question
whether a juror has an opinion that disqualifies is a mixed one of
law and fact,"
id. at
467 U. S.
1052, because the question is "
whether the nature
and strength of the opinion formed are such as in law necessarily .
. . raise the presumption of partiality.'" Ibid., (quoting
Irvin v. Dowd, 366 U. S. 717,
366 U. S. 723
(1961)).
V
Today's opinion for the Court is the product of a saddening
confluence of three of the most disturbing trends in our
constitutional jurisprudence respecting the fundamental rights of
our people. The first is the Court's unseemly eagerness to
Page 469 U. S. 463
recognize the strength of the State's interest in efficient law
enforcement and to make expedient sacrifices of the constitutional
rights of the criminal defendant to such interests.
United
States v. Leon, 468 U. S. 897,
468 U. S.
929-930 (1984) (BRENNAN, J., dissenting). The second is
the Court's increasing disaffection with the previously
unquestioned principle, endorsed by every Member of this Court,
that "because of its severity and irrevocability, the death penalty
is qualitatively different from any other punishment, and hence
must be accompanied by unique safeguards. . . ."
Spaziano v.
Florida, 468 U.S. at
468 U. S. 468
(STEVENS, J., concurring in part and dissenting in part).
E.g.,
Pulley v. Harris, 465 U. S. 37
(1984);
Spaziano v. Florida, supra, at
468 U. S.
461-464 (opinion of the Court);
Barclay v.
Florida, 463 U. S. 939
(1983). The third is the Court's increasingly expansive definition
of "questions of fact" calling for application of the presumption
of correctness of 28 U.S.C. § 2254(d) to thwart vindication of
fundamental rights in the federal courts.
E.g., Patton v.
Yount, supra; Rushen v. Spain, 464 U.
S. 114 (1983);
Marshall v. Lonberger,
459 U. S. 422
(1983). These trends all reflect the same desolate truth: we have
lost our sense of the transcendent importance of the Bill of Rights
to our society.
See United States v. Leon, supra, at
468 U. S. 980
(STEVENS, J., dissenting) ("[I]t is the very purpose of a Bill of
Rights to identify values that may not be sacrificed to
expediency"). We have lost too our sense of our own role as
Madisonian "guardians" of these rights. See 1 Annals of Cong. 439
(1789) (remarks of James Madison). Like the death-qualified juries
that the prosecution can now mold to its will to enhance the
chances of victory, this Court increasingly acts as the adjunct of
the State and its prosecutors in facilitating efficient and
expedient conviction and execution irrespective of the
Constitution's fundamental guarantees. One can only hope that this
day too will soon pass.
[
Footnote 3/1]
The Court has depicted the lurid details of respondent Witt's
crime with the careful skill of a pointillist. Had the Court been
equally diligent in rendering the holding below, it might not have
neglected to mention that, as in every case of a violation of
Witherspoon v. Illinois, 391 U. S. 510
(1968), only the defendant's death sentence and not his conviction
was vacated. However heinous Witt's crime, the majority's vivid
portrait of its gruesome details has no bearing on the issue before
us. It is not for this Court to decide whether Witt deserves to
die. That decision must first be made by a jury of his peers, so
long as the jury is impartial and drawn from a fair cross-section
of the community in conformity with the requirements of the Sixth
and Fourteenth Amendments.
[
Footnote 3/2]
Witherspoon held that a sentence of death imposed by
such a jury violated the Sixth Amendment, but, because the evidence
was fragmentary at that time, declined to hold that an underlying
conviction by such a jury was also unconstitutionally infirm
because the jury would be conviction-prone.
Id. at
517-518.
See n. 11,
infra.
[
Footnote 3/3]
See Gross, Determining the Neutrality of Death-Qualified Juries,
8 Law and Human Behavior 7, 26-28 (1984).
[
Footnote 3/4]
See generally 2 W. Lafave & J. Israel, Criminal Procedure §
21.3 (1984).
[
Footnote 3/5]
In
Witherspoon the Court defined the excludable class
as those whose views would "prevent" impartiality. 391 U.S. at
391 U. S. 522,
n. 21.
Adams v. Texas, 448 U. S. 38
(1980), defined the excludable class as those whose views would
prevent or
substantially impair impartiality.
Id.
at
448 U. S. 45.
This variation is not significant; the primary focus of the
Witherspoon inquiry, as
Adams made clear, remains
on whether the prospective juror can follow instructions and abide
by an oath.
Adams, supra, at 45, 49-50.
[
Footnote 3/6]
At the time of
Witherspoon Illinois left to the
complete discretion of the jury the choice whether a convicted
capital defendant lived or died. Thus any juror who would consider
the death penalty under some circumstances -- who, in other words,
would not automatically vote against it -- could abide by the
instructions and oath in Illinois at the time.
Witherspoon, 391 U.S. at
391 U. S.
519-520.
[
Footnote 3/7]
The opinion of this Court suggests that the court below,
slavishly devoted to the precise wording of
Witherspoon's
footnote 21, invalidated the exclusion because the prosecutor used
the word "interfere" instead of footnote 21's language.
Ante at
469 U. S.
432-434. The most cursory reading of the court's opinion
belies this representation of the decision as turning on a semantic
quibble about "synonyms and antonyms."
Ante at
469 U. S. 433.
In rejecting precisely this argument below, the Court of Appeals
explicitly stated that it based its decision on an evaluation of
the "totality of the circumstances." 714 F.2d at 1083. Its
evaluation involved far more than the form of the question, and the
opinion criticized the form of the question only insofar as it
failed to elicit a degree of certainty sufficient to permit
exclusion under
Witherspoon.
[
Footnote 3/8]
Reversing the Court of Appeals below, this Court places some
weight on, and JUSTICE STEVENS concurring in the judgment gives
determinative weight to, the fact that Witt's counsel did not
object to the exclusion of prospective juror Colby.
See
ante at
469 U. S.
430-431, and n. 11,
469 U. S.
434-435;
ante at
469 U. S.
437-438 (STEVENS, J., concurring in judgment). Because
the state courts did not enforce a contemporaneous-objection bar
and thus ruled on Witt's claimed
Witherspoon violation,
the federal courts were of course free to consider the claim on a
petition for habeas corpus.
Ulster County Court v. Allen,
442 U. S. 140,
442 U. S. 154
(1979). Nonetheless the Court relies on the failure to object
either as evidence that Colby was not ambiguous in expressing her
views,
anteat
469 U. S. 431,
n. 11, or to suggest that defense counsel had some duty to attempt
rehabilitation in order to resolve any ambiguities in Colby's
testimony,
ante at
469 U. S.
434-435. JUSTICE STEVENS relies on the failure to object
as proof sufficient to rebut the argument that "the State's failure
to make the kind of record required by
Adams v. Texas
constitutes an error so fundamental that it infects the validity of
the death sentence in this case."
Ante at
469 U. S. 438
(concurring in judgment).
With respect to the Court's reliance on the failure to object,
counsel's failure could be evidence of no more than a lack of
competence or attentiveness. And I fail to see how any demeanor
evidence, the existence of which the Court infers from counsel's
silence, could turn Colby's statement that she thought her views
about capital punishment might interfere with her ability to judge
guilt or innocence into an unmistakably clear declaration that she
would be unable to follow instructions and abide by an oath. In any
event,
Witherspoon placed on defense counsel no burden to
rehabilitate an ambiguous venireperson. As the Court of Appeals
correctly held below, unless the
prosecution resolves
ambiguity to the extent of showing an unmistakably clear inability
to follow the law, the juror may not be excluded.
With respect to the form of "harmless error" analysis in JUSTICE
STEVENS' separate opinion, this Court has held on direct review
that the improper exclusion of
one prospective juror under
Witherspoon precludes imposition of the death penalty
irrespective of who replaces that prospective juror.
Davis v.
Georgia, 429 U. S. 122,
429 U. S. 123
(1976). Particularly when a defendant's right to continue living is
at issue, I fail to understand how an error held to be so
fundamental as to preclude any harmless error analysis on direct
review should be treated as any less fundamental on habeas corpus
review.
[
Footnote 3/9]
The Court recognizes that most juror responses to
death-qualifications will be ambiguous, in large part because
"veniremen may not know how they will react when faced with
imposing the death sentence. . . ."
Ante at
469 U. S. 425.
Nevertheless, the Court goes on to ascribe to the trial judge the
power to divine through demeanor alone which of such jurors "would
be unable to faithfully and impartially apply the law,"
ante, at
469 U. S. 426,
and requires deference to the trial court decisions to exclude for
this reason. Not surprisingly, the Court provides no support for
the rather remarkable assertion that a judge will, despite
ambiguity in a juror's response, be able to perceive a juror's
inability to follow the law and abide by an oath when the juror
himself or herself does not yet know how he or she will react to
the case at hand.
[
Footnote 3/10]
Though these cases involve systematic exclusion from the jury
pool and not from a particular jury, death-qualification is the
functional equivalent of exclusion from the pool. The prosecution
has unlimited ability to challenge prospective jurors for cause and
uses the challenges to remove all members of an identifiable
segment of the community from the pool.
[
Footnote 3/11]
As noted in n. 2,
supra, Witherspoon declined to hold
that broad exclusion of those opposed to capital punishment would
render juries conviction-prone. Since that time numerous studies
have all but confirmed that death-qualified juries are
conviction-prone.
E.g., Sequin & Horowitz, The Effects
of "Death Qualification" on Juror and Jury Decisioning: An Analysis
from Three Perspectives, 8 L. & Psychology Rev. 49 (1984);
Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death
Qualification and Jury Attitudes, 8 Law and Human Behavior 31
(1984); Cowan, Thompson, & Ellsworth, The Effects of Death
Qualification on Jurors' Predisposition to Convict and on the
Quality of Deliberation, 8 Law and Human Behavior 53 (1984);
Thompson, Cowan, Ellsworth, & Harrington, Death Penalty
Attitudes and Conviction Proneness: The Translation of Attitudes
into Verdicts, 8 Law and Human Behavior 95 (1984). Some studies
have even suggested that the
process of
death-qualification tends to bias remaining jurors toward the
prosecution. Haney, On the Selection of Capital Juries: The Biasing
Effects of the Death-Qualification Process, 8 Law and Human
Behavior 121 (1984).
At least one Federal District Court has held that even juries
death-qualified under the strict standards of
Witherspoon
are constitutionally infirm because they are, as a matter of
empirical fact, more likely to convict than a jury drawn from a
fair cross-section of the community.
Grigsby v.
Mabry, 569 F.
Supp. 1273 (ED Ark.1983) (appeal en banc pending in Eighth
Circuit). One other District Court held to the same effect,
Keeton v. Garrison, 578 F.
Supp. 1164 (WDNC 1984), but the Fourth Circuit recently
reversed this decision.
Keeton v. Garrison, 742 F.2d 129
(1984). Instead of recognizing that the process of
death-qualification creates serious risks, even within the contours
of
Witherspoon, this Court abandons any limits on the
process and thereby enhances the possibility of erroneous
convictions as well as erroneous sentences.