Brown v. Lambert

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAL COBURN BROWN, 

Petitioner-Appellant, No. 04-35998

v.

 D.C. No.

CV-01-00715-JCC

JOHN LAMBERT, Superintendent of

Washington State Penitentiary, OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, Chief Judge, Presiding

Argued and Submitted

July 14, 2005—Pasadena, California

Filed December 8, 2005

Before: Stephen Reinhardt, Alex Kozinski and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Kozinski

16083

16086 BROWN v. LAMBERT

COUNSEL

Suzanne Elliott and Gilbert H. Levy, Seattle, Washington, for

the petitioner-appellant.

Rob McKenna, Attorney General, and John J. Samson, Assis-

tant Attorney General, Criminal Justice Division, Olympia,

Washington, for the respondent-appellee.

OPINION

KOZINSKI, Circuit Judge:

We consider the exclusion of jurors for cause in a death

penalty case.

Facts1

Cal Brown is not a nice man. In May 1991, he carjacked

Holly Washa and drove her to a motel near the Seattle-

Tacoma airport. Brown robbed, raped and tortured Washa

while holding her hostage for two days. He bound and gagged

1

For a more detailed discussion of the facts, see the Washington

Supreme Court’s opinion in Brown’s direct appeal, State v. Brown, 940

P.2d 546, 555-59 (Wash. 1997) (en banc).

BROWN v. LAMBERT 16087

her, penetrated her with foreign objects, whipped her and

shocked her with an electrical cord. Eventually, Brown put

Washa in the trunk of her car, slit her throat, stabbed her and

left her to bleed to death in a parking lot.

Brown then flew to Palm Springs, California, to rendezvous

with his next victim, Susan Schnell, whom he had met on an

airplane a few days earlier. While inside their hotel room,

Brown similarly robbed and raped Schnell, bound and gagged

her, tortured and penetrated her. After handcuffing Schnell to

the bed, Brown slit her throat and left her to die. Amazingly,

Schnell was able to call the front desk and summon the police,

who arrived and arrested Brown in the hotel parking lot.

Brown quickly confessed to both the rape and attempted

murder of Schnell in California, and the rape and murder of

Washa in Washington. After pleading guilty in California and

receiving a sentence of life imprisonment, Brown was tried in

Washington. A jury convicted Brown of aggravated first-

degree murder, and sentenced him to death. Brown exhausted

his direct appeals and state habeas proceedings. He then peti-

tioned for a writ of habeas corpus in federal court, raising a

number of constitutional claims regarding his trial and sentenc-

ing.2 The district court denied his petition after an evidentiary

hearing, and Brown appeals three issues relating to his death

sentence.3

2

Because Brown filed his habeas petition after April 23, 1996, we apply

the “substantive review standards of the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(‘AEDPA’).” Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir.), cert.

denied, 125 S. Ct. 626 (2004); see also Lindh v. Murphy, 521 U.S. 320,

327 (1997).

3

In his “Statement of Issues,” Brown also asks whether his “conviction

[was] obtained in violation of the Due Process Clause of the Fourteenth

Amendment . . . .” (Emphasis added.) But the claims Brown raises in the

remainder of his brief relate only to his death sentence, not his conviction.

Thus, we will consider only whether Brown is entitled to habeas relief

with respect to his death sentence. See Am. Int’l Enters. v. FDIC, 3 F.3d

1263, 1266 n.5 (9th Cir. 1993) (holding that an issue mentioned in a state-

ment of issues, but not addressed in the argument section of the brief, may

be considered abandoned).

16088 BROWN v. LAMBERT

Facial Validity of Washington’s Death Penalty Statute

Brown challenges the constitutionality of the Washington

death penalty statute on its face, arguing that it gives the jury

no guidance on how to consider evidence of collateral crimes.

[1] The Washington death penalty statute requires the jury

to deliberate on one question only: “Having in mind the crime

of which the defendant has been found guilty, are you con-

vinced beyond a reasonable doubt that there are not sufficient

mitigating circumstances to merit leniency?” Wash. Rev.

Code § 10.95.060(4); see also id. § 10.95.070 (setting forth a

non-exhaustive list of factors the jury may consider). We have

previously upheld the facial validity of the identical Washing-

ton statute against a challenge that it “fails to adequately

channel and guide jury sentencing discretion.” Campbell v.

Kincheloe, 829 F.2d 1453, 1464 (9th Cir. 1987) (“Campbell

I”). In Campbell I, we viewed the statute in light of the con-

struction given to it by the Washington Supreme Court, see

State v. Bartholomew, 683 P.2d 1079, 1086-87 (Wash. 1984)

(en banc), and held that the defendant’s facial challenge was

“meritless.” See Campbell I, 829 F.2d at 1464; see also

Campbell v. Blodgett, 978 F.2d 1502, 1513-14 (9th Cir. 1992)

(per curiam) (“Campbell II”).

[2] Brown’s argument in this case is merely a subset of

Campbell’s facial challenge; he claims that the statute fails to

adequately channel and guide jury sentencing discretion with

respect to evidence of collateral convictions. Thus, our

broader holding in Campbell I—that the Washington statute

does not fail to adequately guide jury discretion with respect

to anything—necessarily precludes Brown’s claim. We have

no occasion to reevaluate our earlier assessment of the statute.

See Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir.

2005) (en banc) (per curiam) (noting that rulings by three-

judge panels are “law of the circuit,” and are binding on sub-

sequent three-judge panels).

BROWN v. LAMBERT 16089

Jury Selection

Brown next argues that three prospective jurors were erro-

neously dismissed for cause, and that he was therefore sen-

tenced by a “tribunal organized to return a verdict of death.”

Witherspoon v. Illinois, 391 U.S. 510, 521 (1968).

[3] 1. Juror X was uncertain whether she would be able to

impose the death penalty. Though she initially professed a

willingness to follow the court’s instructions, she later

expressed serious reservations: “Oh, yeah, I could follow the

instructions. I think that—actually making that decision, no.”

When the court asked her about her ability to vote for death,

she responded, “I don’t think I could. It would have to be so

crystal clear. I would have to be—.” Based on these

responses, the trial judge properly excused X for cause, find-

ing that her views on the death penalty would “substantially

impair the performance of [her] duties as a juror in accor-

dance with [her] instructions and oath.” Wainwright v. Witt,

469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S.

38, 45 (1980)) (internal quotation mark omitted).

[4] Juror Y’s voir dire exposed even stronger antipathy

toward the death penalty, bordering on moral outrage. She

described the death penalty as “barbaric” and suggested that

it “makes . . . brutes of us all.” She expressed resentment

toward the state of Washington for putting her in the position

of choosing between life and death. Finally, when asked by

the court if she would be able to consider sentencing anyone

to death, Y “crossed her arms, held her hand up . . . and sat

back.”4 The trial judge properly excused juror Y for cause as

well, noting that her impairment was “obvious.”

4

It is unclear from the record how Y “held her hand up.” Presumably,

she was holding her hand up with her palm out, in a motion often associ-

ated with the exclamation, “Talk to the hand (because the ears ain’t listen-

ing),” a phrase later popularized by Fran Drescher in the movie Beautician

and the Beast. See Terms of the 90s, Slang of the Nineties, http://

www.inthe90s.com/generated/terms.shtml (defining “Talk to the Hand” as

“[a]nother way of saying ‘I don’t want to hear what you are saying.’ ”);

see also Lynne Truss, Talk to the Hand: The Utter Bloody Rudeness of the

World Today, or Six Good Reasons to Stay Home and Bolt the Door

(2005).

16090 BROWN v. LAMBERT

The voir dire examinations of jurors X and Y contrast

sharply with the examination of juror Z. Z expressed no antip-

athy toward the death penalty; to the contrary, he stated that

he “believe[d] in the death penalty.” In explaining his views,

Z outlined a balanced and thoughtful position. For example,

Z was discomfited by an earlier era in which “[i]t seemed like

. . . [the death penalty] wasn’t used at all,” because he

believed “there [a]re times when it would be appropriate [to

impose the death penalty].” But he expressed caution that the

death penalty be reserved for “severe situations”: “I don’t

think it should never happen, and I don’t think it should hap-

pen 10 times a week either.” Z felt most comfortable impos-

ing the death penalty where the defendant is “incorrigible and

would reviolate if released,” and less comfortable where the

defendant is found to have been “temporarily insane.” But he

stated unequivocally that he could consider the death penalty

as an option if told to do so.

In essence, Z’s views on whether to impose the death pen-

alty mirrored Washington’s death penalty statute itself: He

believed a defendant should be put to death where his crime

was appropriately severe but not otherwise, and was willing

to take into account mitigating factors (mental health issues,

for example), aggravating factors (likelihood of recidivism,

for example) and the particular circumstances of the instant

murder. See Wash. Rev. Code §§ 10.95.060, 10.95.070. Addi-

tionally, he was open to considering other types of mitigating

circumstances, such as “somebody’s childhood” or “emo-

tional development,” was welcoming of his fellow jurors’

views, and was accepting of the heavy responsibility assigned

to jurors by the state. Most importantly, he promised he would

“follow the law” without reservation.

Despite these assurances, the prosecutor protested that Z

was too reluctant to impose the death penalty, and that he

would only vote for death if convinced that the defendant

would “kill again.” The prosecutor thus moved to excuse juror

BROWN v. LAMBERT 16091

Z for cause, and the trial judge granted the motion without

further inquiry.

[5] 2. In 1985, and again in 1987, the Supreme Court

explained that the “standard for determining whether prospec-

tive jurors may be excluded for cause based on their 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.” ’ ”

Gray v. Mississippi, 481 U.S. 648, 658 (1987) (quoting Witt,

469 U.S. at 424 (quoting Adams, 448 U.S. at 45)). The

Supreme Court insisted that capital jurors not be struck for

cause unless they are unable to follow the court’s instructions.

Even jurors “who firmly believe that the death penalty is

unjust may nevertheless serve as jurors in capital cases so

long as they state clearly that they are willing to temporarily

set aside their own beliefs in deference to the rule of law.” Id.

(quoting Lockhart v. McCree, 476 U.S. 162, 176 (1986)

(Rehnquist, J.)).

[6] Further, the Supreme Court significantly circumscribed

the state courts’ role in excusing jurors for cause in capital

cases: It held that

[t]he State’s power to exclude for cause jurors from

capital juries does not extend beyond its interest in

removing those jurors who would “frustrate the

State’s legitimate interest in administering constitu-

tional capital sentencing schemes by not following

their oaths.” To permit the exclusion for cause of

other prospective jurors based on their views of the

death penalty unnecessarily narrows the cross sec-

tion of venire members. It “stack[s] the deck against

the petitioner. To execute [such a] death sentence

would deprive him of his life without due process of

law.”

Id. at 658-59 (alterations in original) (citation omitted) (quot-

ing Witt, 469 U.S. at 423, and Witherspoon, 391 U.S. at 523).

16092 BROWN v. LAMBERT

Thus, it is—and was at the time of Brown’s trial in 1993—

clearly established that excusing a juror for cause in a capital

case is unconstitutional, absent evidence that the juror would

not follow the law.

[7] When the Washington Supreme Court upheld the trial

judge’s decision to excuse jurors X, Y and Z for cause, it

found that both X and Y were “substantially impaired” in

their ability to perform their duties as jurors. Brown, 940 P.2d

at 585. Those findings are adequately supported by the record.

But a similar finding is missing from the state court’s discus-

sion of juror Z. The court’s entire review of Z’s exclusion

from the jury is as follows:

Appellant did not object at trial to the State’s chal-

lenge of [Z] for cause. At any rate, [Z] was properly

excused. On voir dire he indicated he would impose

the death penalty where the defendant “would revio-

late if released,” which is not a correct statement of

the law. He also misunderstood the State’s burden of

proof in a criminal case and understood it to be “be-

yond a shadow of a doubt,” although he was cor-

rected later. The trial court did not abuse its

discretion in excusing [Z] for cause.

Id. Nowhere did the court find that Z would be unable to fol-

low instructions. Nor could the court have found this: Just like

the juror at issue in Gray, juror Z “ultimately stated that [he]

could consider the death penalty in an appropriate case.”

Gray, 481 U.S. at 653.5 Had there been a finding that Z was

“substantially impaired” in his ability to follow the law, it

5

Indeed, juror Z’s commitment to following instructions was stronger

than the juror improperly struck in Gray. When Z was asked if he could

consider voting for the death penalty, he responded with an unequivocal,

“Yes, I could.” When the juror in Gray was asked if she could vote for

the death penalty, she responded only, “I think I could.” Gray, 481 U.S.

at 653 n.5.

BROWN v. LAMBERT 16093

would have been unreasonable. See 28 U.S.C. §§ 2254(d)(2),

(e)(1).

[8] The reasons that the court did give for upholding Z’s

exclusion are misplaced and insufficient. Z’s statement that he

would impose the death penalty where the defendant would

be likely to kill again did not exclude the possibility that Z

would vote to impose the death penalty in other circumstances

as well. And the fact that Z misstated the law means nothing:

If all prospective jurors who did not fully understand the law

before the trial began were struck, only lawyers would be

allowed to serve on juries (and only a handful of lawyers at

that).

[9] Z’s temporary misunderstanding of the prosecution’s

burden of proof—he initially thought the prosecution needed

to prove guilt “beyond a shadow of a doubt”—was also irrele-

vant; it would have been easily corrected by the jury instruc-

tions, which Z gave every indication he would follow. In fact,

the prosecutor himself conceded he was unconcerned with Z’s

confusion on this point:

THE COURT: Counsel, any challenge to this par-

ticular juror?

[PROSECUTOR]: I would, your Honor, not on

the term beyond a shadow of a doubt, I think he

would certainly stick with the reasonable doubt stan-

dard.

And when another juror expressed that she, too, thought the

burden of proof was “to a point of a shadow of a doubt,” the

trial judge dismissed her confusion as unilluminating:

She doesn’t know technically what the definition of

beyond a reasonable doubt is. I doubt that anybody

in this room knows technically what beyond a rea-

sonable doubt really means and even in your own

16094 BROWN v. LAMBERT

mind. . . . I was not so concerned with her responses

of beyond a shadow of a doubt or crystal clear. I

think that definitely could fit within the definition of

a reasonable doubt.

[10] Finally, Brown’s failure to object to juror Z’s removal

at trial does not alter the Witherspoon error analysis in this

case. Brown raised the juror Z claim on direct appeal, and the

Washington Supreme Court did not find the claim to be

waived or procedurally barred. Nor does appellee allege that

the claim is waived or barred, or that it was not exhausted in

state court.

[11] In sum, excusing juror Z for cause was directly con-

trary to Supreme Court precedent, as was the Washington

Supreme Court’s decision to uphold the juror strike on direct

appeal. See 28 U.S.C. § 2254(d)(1).

[12] 3. Having found that juror Z was erroneously

excluded, it is unnecessary for Brown to demonstrate he was

prejudiced by Z’s exclusion. Prejudice is presumed. The

Supreme Court has been equally clear on this point:

[T]his Court in Davis surely established a per se rule

requiring the vacation of a death sentence imposed

by a jury from which a potential juror, who has con-

scientious scruples against the death penalty but who

nevertheless under Witherspoon is eligible to serve,

has been erroneously excluded for cause. . . .

. . . The instant case presents yet another opportu-

nity for this Court to adopt a harmless-error analysis

and once again we decline to do so.

Gray, 481 U.S. at 659-60 (citing Davis v. Georgia, 429 U.S.

BROWN v. LAMBERT 16095

122, 123-24 (1976) (per curiam) (Rehnquist, J., dissenting)).

Thus, Brown’s death sentence cannot stand.6

Ineffective Assistance of Counsel

Brown’s final claim is that his attorney provided ineffective

assistance in various ways during the sentencing phase of his

trial. Were we not granting habeas relief with respect to

Brown’s sentence for the reasons set forth above, this claim

would merit significant attention. Should the state choose to

seek the death penalty again on remand, however, Brown will

have a new opportunity to receive effective assistance of

counsel. We therefore need not reach this claim.

We also do not reach the newly certified issue subsumed

within Brown’s ineffective assistance of counsel claim—

whether the district court erred by refusing to consider certain

reports in its habeas evidentiary hearing. We are reversing the

district court’s decision regardless of whether it should have

admitted the evidence.

* * *

We reverse the district court’s judgment denying the writ

of habeas corpus and remand for issuance of a writ with

respect to Brown’s sentence, unless within a reasonable time

set by the district court the state conducts a new penalty phase

trial or vacates Brown’s death sentence and imposes a lesser

sentence consistent with law.

REVERSED IN PART; REMANDED.

6

We find no constitutional infirmity with Brown’s conviction. See

Bumper v. North Carolina, 391 U.S. 543, 545 (1968) (holding that Wither-

spoon error requires setting aside a death sentence, but is insufficient to

require setting aside a conviction); see also Gray, 481 U.S. at 668 (finding

that a juror was erroneously excluded from the jury in violation of Wither-

spoon and Witt, and holding that “[t]he judgment of the Supreme Court of

Mississippi, insofar as it imposes the death sentence, is reversed” (empha-

sis added)).