Brown v. Lambert

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAL COBURN BROWN,  No. 04-35998

Petitioner-Appellant, D.C. No.

v.

 CV-01-00715-JCC

JOHN LAMBERT, Superintendent of ORDER AND

Washington State Penitentiary, AMENDED

Respondent-Appellee.

 OPINION

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

Amended June 19, 2006

Before: Stephen Reinhardt, Alex Kozinski and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Kozinski;

Dissent from Denial of Rehearing En Banc by

Judge Tallman

6735

6738 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.

ORDER

The opinion filed December 8, 2005, and reported at 431

F.3d 661, is withdrawn, and is replaced by the Amended

Opinion, 04-35998, filed concurrently herewith. The petition

for rehearing is otherwise denied.

A judge requested a vote on whether to rehear this case en

banc, but a majority of the non-recused active judges did not

BROWN v. LAMBERT 6739

vote in favor of en banc consideration. The petition for

rehearing en banc is therefore DENIED. See Fed. R. App. P.

35. No further petitions for rehearing or rehearing en banc

will be accepted.

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

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.

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).

6740 BROWN v. LAMBERT

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

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.

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, 543 U.S. 1007 (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).

BROWN v. LAMBERT 6741

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).

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

6742 BROWN v. LAMBERT

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.”

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

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).

BROWN v. LAMBERT 6743

. . . [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.5

5

In fact, during the course of his voir dire, juror Z stated six times that

he could follow the law and impose the death penalty, while not once stat-

ing that he might not be able to:

Q. Do you think that you could consider [the death penalty]?

A. Yes, I could.

....

Q. [D]oes that mean what I’m hearing you say is that you could

consider [the death penalty]?

A. I believe so, yes.

....

Q. You would be willing to follow the law?

A. Yes.

....

Q. [D]o you think . . . you could impose [the death penalty]?

A. Yes, sir.

....

Q. [D]o you think you could also consider and vote for the

death penalty under those circumstances?

A. I could consider it, yes.

Q. Then could you impose it?

A. I could if I was convinced that was the appropriate measure.

6744 BROWN v. LAMBERT

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

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.)).

BROWN v. LAMBERT 6745

[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).

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

6746 BROWN v. LAMBERT

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 653.6 Had there been a finding that Z was

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

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

(e)(1).7

[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.8 And the fact that Z misstated the law means nothing:

6

The dissent from denial of rehearing en banc agrees that the juror in

Gray was improperly struck because she “stated unequivocally that she

could impose the death penalty without demurrer.” Dissent at 6757. In

fact, juror Z’s commitment to following instructions was far stronger than

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

the death penalty, he responded with an unequivocal, “Yes, sir.” 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.

7

The dissent from denial also makes much of juror Z’s indecisiveness,

a term it uses repeatedly. According to the dissent, this indecisiveness con-

noted an “inability to properly follow the court’s instructions and apply

the law.” Dissent at 6761. The state has never suggested this novel theory

and we do not find it persuasive. If the juror in Gray was fit to serve

despite her moral scruples against the death penalty, we see no basis for

finding juror Z impaired because of his alleged “indecisiveness.” Indeed,

keeping an open mind as to whether the death penalty is appropriate,

before any evidence has even been presented, strikes us as a virtue in a

juror, not a basis for disqualification.

8

Even after learning that life without parole was an alternative to the

death penalty, Z unequivocally stated that he would be able to consider

BROWN v. LAMBERT 6747

If all prospective jurors who did not fully understand the law

before the trial began were struck, only lawyers would be

and impose the death penalty. The dissent from denial makes the follow-

ing incorrect statement: “Although both defense counsel and the prosecu-

tor explained to him more than once during their voir dire questioning to

qualify Juror Z that, if found guilty, Brown would never be released from

prison, Juror Z’s answers concerning his willingness to impose death in

conformance with Washington law were nonetheless confused.” Dissent at

6759. Putting aside the fact that being “confused” is hardly the same as

being unwilling to follow the court’s instructions, juror Z in fact stated

unequivocally and repeatedly that he could impose the death penalty.

Rather than “[q]uoting selective portions of [the] voir dire transcript,” id.

at 6762, as the dissent does, see id. at 6759-60 n.2, we provide the entire

relevant transcript of the defense’s voir dire:

Q. Were you aware before that Washington has got this kind of

sentence where it’s life without parole where you are not ever eli-

gible for parole?

A. I did not until this afternoon.

Q. That is the two options that the jury has if they found the

person guilty of premeditated murder beyond a reasonable doubt

plus aggravating circumstances beyond a reasonable doubt. Do

you think that you could consider both options?

A. Yes, I could.

Q. Could you give me an idea sort of [how] you thought about

sort of the underlying reason why you think the death penalty is

appropriate, what purpose it serves, that kind of thing?

A. I think if a person is, would be incorrigible and would revio-

late if released, I think that’s the type of situation that would be

appropriate.

Q. Okay. Now, knowing that you didn’t know before when you

were coming to those opinions about the two options that we

have here obviously somebody who is not going to get out of jail

no matter which sentence you give them if you got to that point

of making a decision about the sentence, does that mean what I’m

hearing you say is that you could consider either alternative?

A. I believe so, yes.

And here is the prosecutor’s voir dire on this subject:

6748 BROWN v. LAMBERT

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

that).

[Q.] I guess the reverse side of what you’re saying is, if you

could be convinced that he wouldn’t kill again, would you find

it difficult to vote for the death penalty given a situation where

he couldn’t kill again?

A. I think I made that statement more under [the] assumption

that a person could be paroled. And it wasn’t until today that I

became aware that we had a life without parole in the state of

Washington.

Q. And now that you know there is such a thing and they do

mean what they say, can you think of a time when you would be

willing to impose a death penalty since the person would be

locked up for the rest of his life?

A. I would have to give that some thought. I really, like I said,

up until an hour ago did not realize that there was an option of

life without parole.

Q. And I realize this is put on you rather suddenly, but you also

recognize as someone who is representing the State in this case,

we have made the election to ask that the jury if he is found

guilty, ask that the jury vote for the death penalty.

And I’m asking you a very important thing and to everyone in

here, whether you, knowing that the person would never get out

for the rest of his life, two things. And they’re slightly different.

One, whether you could consider the death penalty and the sec-

ond thing I would ask you is whether you could impose the death

penalty. I’m not asking a promise or anything.

But I’m asking you, first, could you consider it, and if you could

consider it, do you think under the conditions where the man

would never get out again you could impose it?

A. Yes, sir.

Q. So, this idea of him having to kill again to deserve the death

penalty is something that you are not firm on, you don’t feel that

now?

A. I do feel that way if parole is an option, without parole as

an option. I believe in the death penalty. Like I said, I’m not sure

that there should be a waiting line of people happening every day

BROWN v. LAMBERT 6749

[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.

or every week even, but I think in severe situations it’s an appro-

priate measure.

Q. But in the situation where a person is locked up for the rest

of his life and there is no chance of him ever getting out again,

which would be the situation in this case, do you think you could

also consider and vote for the death penalty under those circum-

stances?

A. I could consider it, yes.

Q. Then could you impose it?

A. I could if I was convinced that was the appropriate measure.

It is true, as the dissent suggests, that we owe the trial judge deference

because of his ability to observe demeanor, but demeanor can only shed

light on ambiguous language; it cannot contradict the witness’s clear

words. Here, juror Z’s clear words were that he could impose the death

penalty and would follow the court’s instructions; he never said anything

to the contrary. If appellate courts must defer to trial court findings on a

transcript such as this because a witness may somehow have contradicted

his spoken words through some unknown facial expression or body lan-

guage, not only is Witherspoon a dead letter, but all substantial evidence

review of trial court factual findings is obsolete.

6750 BROWN v. LAMBERT

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

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.9

9

The dissent from denial makes much of defense counsel’s failure to

object during voir dire to juror Z’s dismissal. See dissent at 6755, 6756,

6762, 6767. According to the dissent, defendant’s lawyer could not ethi-

cally object because even he must have recognized “that Juror Z was prop-

erly dismissed for cause.” Id. at 6762. We find it hard to believe that our

colleagues take such an ingenuous view of the realities of the courtroom.

As the dissenters must surely understand, defense counsel declined to

object because he was glad to get rid of juror Z. After all, Z had described

himself as pro-death penalty, and reiterated numerous times, under oath,

that he would be willing and able to impose the death penalty. Defense

counsel must have thanked his lucky stars when the prosecutor bumped Z.

We know for a fact that the dissent’s “scrupulous defense counsel” the-

ory has no basis in reality. As the dissent recognizes, defense counsel did

object vigorously to juror Y’s dismissal for cause. See dissent at 6761-62.

Juror Y, of course, was the one who had described the death penalty as

“barbaric” and as “mak[ing] . . . brutes of us all,” and had crossed her

arms and held her hand up when asked by the court whether she could sen-

tence anyone to death. See p. 6742 & n.4 supra. Y was a far better juror

for the defense than Z, which is why defense counsel fought so hard to

BROWN v. LAMBERT 6751

[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).10

(Text continued on page 6753)

keep her on the jury and then to have her reinstated. But Y had also dis-

qualified herself under Witherspoon. See p. 6742 supra. Under the dis-

sent’s contrived hypothesis, Brown’s lawyer would have felt morally

compelled to acquiesce in Y’s dismissal.

Of course, the fact that Brown’s attorney was glad to see juror Z go

would seem to make the trial judge’s error in this case harmless. But, as

we explain below, Witherspoon error is structural. See section 3 infra.

10

The dissent from denial intones the mantra of Rice v. Collins, 126

S. Ct. 969 (2006), but forgets that in Collins, the state trial court made a

factual finding that the juror had been dismissed for race-neutral reasons,

and the California Court of Appeal upheld the dismissal based on that

finding. See id. at 973. The Supreme Court reversed us because we “im-

properly substituted [our] evaluation of the record for that of the state trial

court.” Id. That is not what happened here. The Washington Supreme

Court in this case applied the wrong standard with respect to juror Z; it

nowhere found that juror Z could not follow his oath.

To compensate for the lack of a proper Witherspoon finding, the dissent

would impute to the state trial court a finding it never made—one that it,

indeed, could not have made on this record—by suggesting that the trial

judge must have incorporated the prosecutor’s objection: “Excusing Juror

Z was based upon the prosecutor’s sole reason underlying the objection—

a finding that Juror Z could not follow his oath and faithfully apply Wash-

ington’s capital sentencing law . . . .” Dissent at 6758. But the prosecutor’s

objection said nothing at all about juror Z’s ability or willingness to follow

the juror’s oath. Here is exactly what the prosecutor said:

THE COURT: . . . Counsel, any challenge to this particular juror?

[PROSECUTOR]: I would, your Honor, not on the term beyond

a shadow of a doubt, I think he would certainly stick with the rea-

sonable doubt standard. But I think he is very confused about the

statements where he said that if a person can’t kill again, in other

words, he’s locked up for the rest of his life, he said, basically,

he could vote for the death penalty if it was proved beyond a

shadow of. And I am certainly going to concede that he means

beyond a reasonable doubt. And if a person kills and will kill

again. And I think he has some real problems with that. He said

6752 BROWN v. LAMBERT

he hadn’t really thought about it. And I don’t think at this period

of time he’s had an opportunity to think about it, and I don’t think

he said anything that overcame this idea of he must kill again

before he imposed the death penalty or be in a position to kill

again. So, that is my only challenge.

As can readily be seen, the prosecutor says nothing about the juror’s oath

or whether juror Z will follow it. Rather, the prosecutor concentrates (like

the dissent) on the question of whether juror Z would be willing to impose

the death penalty if the alternative were life without parole. And (like the

dissent) he gets it wrong. See n. 8 supra. The prosecutor’s reason for strik-

ing juror Z comes only two pages after juror Z’s statement, yet stands

juror Z’s words entirely on their head. If the trial judge uncritically incor-

porated the prosecutor’s statement into his ruling, as the dissent suggests,

the trial judge simply nodded.

The undisputable fact is there is nothing whatsoever in juror Z’s voir

dire that lends the least support for the finding—explicit or implicit—that

he would not follow his oath. This is a juror who listed himself as pro-

death penalty in his juror questionnaire and stated repeatedly under oath

that he believes in the death penalty. He did not perhaps show the kind of

bloodthirsty eagerness for its imposition that the prosecutor may have

preferred—juror Z did say he “would have to give [the matter] some

thought” and reserved the right to impose the death penalty only when he

“was convinced [it] was the appropriate measure”—but there is nothing in

his testimony that could remotely support the view that he would not faith-

fully follow the court’s instructions. No degree of deference, nor allow-

ance for facial expressions and demeanor, can possibly fill in what isn’t

there: the least indication that juror Z could not or would not follow the

law. If it were there, we are confident the dissent would have quoted it.

Curiously, our dissenting colleagues themselves seem to be confused

about Washington’s death penalty jury instructions. The dissent states:

“There is no question that the aggravated circumstances of this case—

kidnapping, torture, and the sadistic murder of the victim—would clearly

warrant application of the death penalty under Washington law.” Dissent

at 6763 (emphasis added). Despite the law’s insistence that juries consider

only mitigating circumstances in deciding whether a defendant should be

sentenced to death, see Wash. Rev. Code. § 10.95.060(4); see also p.

6740-41 supra, the dissenters are transfixed by the unquestioned heinous-

ness of Brown’s crime. See dissent at 6763; see also id. at 6755 (“The

facts are sickening.”). The dissent even states that “[t]he trial judge obvi-

ously had [the aggravated circumstances of this case] in mind when dis-

BROWN v. LAMBERT 6753

[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.

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

Thus, Brown’s death sentence cannot stand.11

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

missing Juror Z . . . .” Id. at 6763. Were this true, of course, there would

have been even more blatant Witherspoon error; nothing in Witherspoon

allows a judge to take the atrociousness of the defendant’s crime into

account when deciding whether to dismiss a juror for cause.

11

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)).

6754 BROWN v. LAMBERT

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.

TALLMAN, Circuit Judge, with whom O’SCANNLAIN,

KLEINFELD, CALLAHAN, and BEA, Circuit Judges, join,

dissenting from denial of rehearing en banc:

Contrary to the provisions of the Antiterrorism and Effec-

tive Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214 (codified as amended at 28 U.S.C. § 2241, et seq.),

our court overturns a fitting punishment for a just aggravated

murder conviction. To do it, our panel impermissibly substi-

tutes its own evaluation of the trial judge’s discretionary rul-

ing to dismiss a prospective juror for cause during jury

selection in this capital case, notwithstanding the inherent

BROWN v. LAMBERT 6755

limitations of a written transcript and the fact that defense

counsel stated immediately before the court excused the pro-

spective juror, “We have no objection.” The opinion fails to

give appropriate AEDPA deference to the determination of

the Washington Supreme Court which approved the trial

judge’s reasonable and more informed approach to jury selec-

tion in qualifying the venire. I respectfully dissent from the

denial of rehearing en banc.

Rice v. Collins, 126 S. Ct. 969 (2006), reiterates our limited

role and authority under AEDPA by recognizing the need for

highly deferential review of a trial court’s decisions in jury

selection because of the constraints of a printed record, which

may not adequately portray what happened in the courtroom

during voir dire. Even under the standard developed in Gray

v. Mississippi, 481 U.S. 648 (1987), for reviewing jury selec-

tion in death penalty cases, we still must afford deference to

the trial court’s determination that a potential juror would be

“substantially impair[ed in] the performance of his duties as

a juror in accordance with his instructions and his oath.” Id.

at 658 (quoting Wainwright v. Witt, 469 U.S. 412, 424

(1985)). The defense expressly declared that it had no objec-

tion when the prosecutor moved to dismiss the venireman for

cause. Nor did the defense later ask the court to reconsider his

dismissal as it did for another prospective juror, who was also

excused from jury service for cause. Overturning the appro-

priate sentence in this heinous case is legally unwarranted and

nonsensical.

I

The facts are sickening. Brown kidnaped at random a

woman who had just finished her shift as a hotel desk clerk

near the Seattle-Tacoma International Airport. He stripped,

bound, and gagged her, then proceeded to rape, sodomize, and

slowly torture her over a two-day period before killing her in

a manner which was anything but quick and painless. He was

captured in Palm Springs, California, where he had continued

6756 BROWN v. LAMBERT

his sadistic crime spree by taking captive yet another victim.

The Palm Springs victim escaped her bonds to summon police

and lived to testify against Brown.

During jury selection in Washington’s King County Supe-

rior Court an experienced trial judge dismissed a prospective

juror, Juror Z, for cause after he equivocated on whether he

could impose the death penalty in conformance with Wash-

ington law by suggesting that he thought the punishment

should be limited to those cases where the defendant was

likely to re-offend. Juror Z was examined about that view.

After both sides took the opportunity to lead the venireman

through the questioning of his views, and after the judge had

also asked questions of him, the prosecutor challenged Juror

Z’s qualification to serve based on his erroneous beliefs about

the death penalty under Washington law. The defense

answered, “We have no objection.” The trial judge then

excused Juror Z for cause. On appeal, the Washington

Supreme Court rejected the argument that Juror Z should not

have been excused and affirmed the ruling of the trial court.

Our court’s opinion labels the Washington Supreme

Court’s reasons for affirming the dismissal “misplaced and

insufficient.” Opinion at 6746. But the panel determined

solely by reading the transcript, and contrary to the findings

of both state courts, that Juror Z was in fact able to follow the

law and could impose the death penalty in proper situations.

Id. at 6746, 6749-51. In doing so, our opinion erroneously

holds that the Washington Supreme Court made a decision

that was both contrary to clearly established federal law, as

determined by the Supreme Court in Gray, and was based on

an unreasonable determination of the facts in light of the

record. Id.; see 28 U.S.C. § 2254(d). Yet to reach this result

under AEDPA, the dismissal must have been both objectively

unreasonable in that “the state court was not merely wrong,

but actually unreasonable,” Taylor v. Maddox, 366 F.3d 992,

999 (9th Cir. 2004), and the “state court [must have] confron-

t[ed] a set of facts that are materially indistinguishable from

BROWN v. LAMBERT 6757

a decision of [the Supreme Court] and nevertheless arrive[d]

at a result different from [Supreme Court] precedent,” Wil-

liams v. Taylor, 529 U.S. 362, 406 (2000). Neither is the case.

II

In Gray, the Supreme Court reversed a Mississippi

Supreme Court decision which held that it was harmless error

for a state court to dismiss a potential juror for cause after the

juror said she could impose the death penalty notwithstanding

her views in opposition to it. 481 U.S. at 667-68. The Court

concluded that, unless “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[,]” the trial

court may not dismiss a potential juror in a death penalty case

for cause. Id. at 658 (internal quotation marks and citation

omitted). This determination is not subject to harmless error

review. Id. at 660.

Unlike here, the trial judge in Gray explicitly found that the

potential juror, Mrs. H. C. Bounds, was capable of voting to

impose the death penalty, but granted the dismissal anyway.

Id. at 653-55. Bounds stated unequivocally that she could

impose the death penalty without demurrer. See id. at 653 n.5.

Nevertheless, even if Bounds had expressed hesitation, the

Supreme Court held that a death penalty verdict must be

vacated when “a potential juror, who has conscientious scru-

ples against the death penalty but who nevertheless . . . is eli-

gible to serve, has been erroneously excluded for cause.” Id.

at 659.

Still, under Gray, it is permissible to remove from the

venire “those jurors who would frustrate the State’s legitimate

interest in administering constitutional capital sentencing

schemes by not following their oaths.” Id. at 658 (quoting

Wainwright, 469 U.S. at 423) (internal quotation marks omit-

ted). Since judges of the Washington Superior and Supreme

Courts and a United States District Judge all found that Juror

6758 BROWN v. LAMBERT

Z articulated an erroneous standard for imposing a sentence

of death under state law, how can three federal judges on

appeal now say, on this record, that it was objectively unrea-

sonable for those courts to conclude that he could not follow

the juror’s oath? Excusing Juror Z was based upon the prose-

cutor’s sole reason underlying the objection—a finding that

Juror Z could not follow his oath and faithfully apply Wash-

ington’s capital sentencing law, primarily because of his con-

fusion and uncertainty, as reflected throughout the entire voir

dire, about when he should appropriately consider the death

penalty.1

While our opinion cites to the guidelines set forth in Gray,

it fails to accord those guidelines the AEDPA deference due

to a state court’s determination as to which jurors are “sub-

stantially impaired.” On the record before our panel, the trial

judge’s dismissal of Juror Z could not be interpreted as “ob-

jectively unreasonable,” nor is the factual situation in Gray

sufficiently similar to conclude that the trial court’s dismissal

was contrary to the rule announced in Gray. The dismissal

was simply a reasonable judgment call made by the only

judge who actually saw and heard Juror Z during voir dire.

There is no showing on the record that the trial judge or the

Washington Supreme Court misapplied United States

Supreme Court precedent. As the United States district judge

so aptly observed in denying habeas relief on this ground,

“Even if this Court would not have dismissed the jurors for

cause, it cannot substitute its judgment for that of the state

courts.” Yet our panel does just that. The real question then

is whether the Washington Superior and Supreme Courts

made an objectively unreasonable determination of the facts

in light of the record. They did not.

1

What the prosecutor said to support the motion to excuse Juror Z was,

in relevant part:

I don’t think he said anything that overcame this idea of he must

kill again before he imposed the death penalty or be in a position

to kill again. So, that is my only challenge.

BROWN v. LAMBERT 6759

Juror Z stated several times that his ability to impose the

death penalty was dependent on whether the defendant was

likely to re-offend, which is not the standard for imposition of

the death penalty in an aggravated murder case under Wash-

ington law. See WASH. REV. CODE § 10.95.060(4). Although

both defense counsel and the prosecutor explained to him

more than once during their voir dire questioning to qualify

Juror Z that, if found guilty, Brown would never be released

from prison, Juror Z’s answers concerning his willingness to

impose death in conformance with Washington law were

nonetheless confused.2 The trial judge explained twice to

2

Defense counsel explained to Juror Z that the jury would consider two

sentencing options should Brown be found guilty—life without parole and

the death penalty. At this point, Juror Z stated that he could consider both

options. However, Juror Z then explained that he believed the death sen-

tence would be appropriate if a person “would be incorrigible and would

reviolate if released.” Defense counsel once again explained the idea of

life without parole, and Juror Z again said he could consider both options.

Shortly thereafter, this exchange occurred between defense counsel and

Juror Z:

Q. Understanding that the two options there are life without

parole or the death penalty, there is not a lot of likelihood that

people are going to spend a lot of time talking about whether or

not they’re going to kill again in the sentencing phase of this

case. Is that going to make you frustrated? Are you going to want

to hear about things like that, about people’s opinions in the pen-

alty phase?

A. I’m not sure.

Even after defense counsel explained that Brown would receive either

life without parole or the death penalty if found guilty, and after Juror Z

claimed he could consider both options, he still misstated Washington law.

While the prosecutor was questioning Juror Z about his incorrect percep-

tion of the standard of review (“beyond a shadow of a doubt” instead of

“beyond a reasonable doubt”), the following exchange occurred:

Q. So, I want to ask you, the thing that bothers me, is the idea

beyond a shadow of a doubt. The law says beyond a reasonable

doubt, and it will be explained to you what it actually means. But

I want to assure you it doesn’t mean, I don’t believe the Court

6760 BROWN v. LAMBERT

potential jurors, prior to Juror Z’s voir dire, that life without

parole was an option that the jury could consider.3 However,

would instruct you it means beyond all doubt or beyond any

shadow of a doubt. Knowing that, would you still require the

State to prove beyond a shadow of a doubt that the crime

occurred knowing that the law doesn’t require that much of us?

A. I would have to know the, I’m at a loss for the words here.

Q. You can ask me any questions, too, if you need some clarifi-

cation.

A. I guess it would have to be in my mind very obvious that the

person would reoffend.

A little while later, the prosecutor once again explained that life without

parole was a sentencing option should Brown be found guilty. The prose-

cutor asked, “[C]an you think of a time when you would be willing to

impose a death penalty since the person would be locked up for the rest

of his life?” Juror Z responded:

“I would have to give that some thought. I really, like I said, up

until an hour ago did not realize that there was an option of life

without parole.”

Contrary to the panel’s assertion that Juror Z “unequivocally stated that

he would be able to consider and impose the death penalty,” Juror Z in

fact exhibited quite a bit of confusion and equivocation through his uncer-

tain answers as to when he would be willing to impose the death penalty.

Juror Z saying in one breath that he could follow the law, and then in the

next breath misstating the law, is not an unequivocal declaration that “he

would be able to consider and impose the death penalty” as required under

Washington law.

3

On October 25, 1993, the trial judge instructed half the potential jury

pool, including Juror Z, on Washington death penalty law. Specifically,

the judge explained that the jury “would . . . retire to determine whether

the death penalty should be imposed or whether the punishment should be

life imprisonment without the possibility of parole.” He further stated that,

“[i]n making that determination, [each juror] would be asked the following

question: Having in mind the crime of which the defendant has been found

guilty, are you convinced beyond a reasonable doubt that there are not suf-

ficient mitigating circumstances to merit leniency?”

Furthermore, on November 3, 1993, when Juror Z was brought back for

individual questioning, the trial judge informed all potential jurors that

BROWN v. LAMBERT 6761

even after multiple explanations by the judge, prosecutor and

defense counsel, Juror Z did not grasp, nor could he be certain

about, the appropriate circumstances in which as a juror he

would consider imposing the death penalty. The prosecutor

correctly summarized his answers, saying, “I think he is very

confused about the statements . . . .” Juror Z stated at times

that he could follow the law, but also stated he would “have

to give it some thought” once he knew that Brown would not

be paroled if found guilty. It was not unreasonable for the trial

judge to conclude that, unlike juror Bounds in Gray, Juror Z

was unfit to serve because of his indecisiveness, suggesting

his inability to properly follow the court’s instructions and

apply the law.

Washington law does not ask the jury during the sentencing

phase of a death penalty case to consider whether the defen-

dant would re-offend. Instead, it asks the jury whether it is

convinced “beyond a reasonable doubt that there are not suffi-

cient mitigating circumstances to merit leniency[.]” WASH.

REV. CODE § 10.95.060(4). This standard says nothing about

proclivity to reoffend. It was not error for the judge to decide

that Juror Z could not honestly abide by his oath to follow the

law as instructed. The panel ignores the deferential AEDPA

standard of review it must accord the Washington courts

when it declares that any finding that Juror Z was impaired

would be unreasonable.

III

Conspicuous by its absence is any motion by the defense

during voir dire to challenge or reconsider the determination

“[i]t is the State’s burden to prove to [the jury] beyond a reasonable doubt

the appropriate penalty, since there are only two penalties a jury could

return, one is prison without the possibility of release or parole.” He reiter-

ated, “that literally means exactly that, a true life in prison without release

or parole, or the penalty of death.”

6762 BROWN v. LAMBERT

to remove Juror Z. Defense counsel did move in writing for

reconsideration of the trial court’s dismissal for cause of Juror

Y, an attorney who had expressed strong reservations about

the death penalty, although stating that she thought she could

consider it if required. Brown filed his mid-voir dire motion

to recall Juror Y or declare a mistrial and qualify a new jury

panel because Brown felt that Juror Y was erroneously dis-

missed for cause. A few days later, Brown also filed a motion

to reconsider the trial court’s denial of challenges for cause

regarding two other venireman who favored imposition of the

death penalty. But there was no motion regarding Juror Z. Nor

has Brown ever claimed defense counsel’s actions during voir

dire in letting Juror Z be excused from service constituted

ineffective assistance of counsel.

Quite clearly those who had the opportunity to watch Juror

Z’s testimony, including the trial judge, the prosecution, and

defense counsel, both during and after questioning him on

voir dire, felt that Juror Z was properly dismissed for cause.

Our panel nonetheless has held, after reviewing only the writ-

ten record of Juror Z’s oral voir dire, that such a determina-

tion is or would be objectively unreasonable. Given the

substance of the entire record, and the constraints of our lim-

ited role as a federal habeas court, the panel has overstepped

its authority under AEDPA. Congress surely intended through

enacting AEDPA to end the practice by some federal judges

of granting habeas relief to overturn state capital cases on rul-

ings that even the parties did not urge to be erroneous when

trying their case.

IV

Quoting selective portions of a voir dire transcript to sup-

port a particular view of the trial court’s performance ignores

the reality of jury selection. The voir dire process is far more

complex than a simple reading of a transcript. In some cases,

it will be crystal clear that a particular venireman is eligible

to serve on a jury, but this is not one of those cases. Experi-

BROWN v. LAMBERT 6763

enced trial lawyers know that there are intangible factors that

influence the decision to accept or reject prospective jurors

which cannot be reduced to written text in a cold record.

There is no question that the aggravated circumstances of this

case—kidnaping, torture, and the sadistic murder of the

victim—would clearly warrant application of the death pen-

alty under Washington law. The trial judge obviously had this

in mind when dismissing Juror Z after his repeated statements

that he would impose the death penalty only if convinced that

Brown would likely re-offend, a condition Washington law

does not require to impose a sentence of death.

Juror Z wavered back and forth between claiming to under-

stand what he was being told about when the Washington cap-

ital sentencing law applied, yet he reiterated his erroneous

belief that death was applicable only for recidivists. The tran-

script reflects that he seemed easily led by both the prosecu-

tion and defense counsel into declaring an understanding that

everyone in the courtroom recognized he simply did not have.

This is why deference to the trial court and the fact that nei-

ther party wanted this juror are important considerations in

applying AEDPA’s “objectively unreasonable” standard of

review. A trial judge will note pauses, hesitations, and non-

verbal expressions (body language) that will factor into his

decision to dismiss a potential juror:

The way they use their hands, their eyes, their facial

expression, their frankness or hesitation in answer-

ing, are all matters that do not appear in the tran-

scribed record of the questions and answers. They

are available to the trial court in forming its opinion

of the impartiality and fitness of the person to be a

juror.

State v. Noltie, 116 Wn. 2d 831, 839, 809 P.2d 190 (1991),

quoting 14 L. Orland & K. Tegland, WASH. PRAC., Trial Prac-

tice § 202, at p. 332 (4th ed. 1986). In denying Brown’s

motion to reconsider dismissing for cause Juror Y, the trial

6764 BROWN v. LAMBERT

judge explained how he analyzed potential jurors to determine

whether they are substantially impaired:

[T]here is not any one particular response from any

one of these jurors I think that is definitive for the

most part. It’s more of a total overall impression

from everything that they have said. With [Juror Y]

I guess what was most convincing was her body pos-

ture, the things that were unsaid because of the fact

of the way she crossed her arms, sat back and what

she was telling us at that point in time.

The “determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in the man-

ner of a catechism,” Wainwright, 469 U.S. at 424, yet our

Brown panel does just that. Rather than respecting the trial

judge’s more informed interpretation of Juror Z’s demeanor,

tone, and words, our panel substitutes its view, based solely

on the written record, to form its own interpretation. There is

a reason AEDPA requires that appellate courts give appropri-

ate deference to trial courts during voir dire:

Despite [the] lack of clarity in the printed record . . .

there will be situations where the trial judge is left

with the definite impression that a prospective juror

would be unable to faithfully and impartially apply

the law. . . . [T]his is why deference must be paid to

the trial judge who sees and hears the juror.

Id. at 425-26. This case trenchantly illustrates the need for

such deference.

Rice v. Collins reiterates that such deference is required

when a trial court finds cause for juror bias. In Collins, the

petitioner brought a Batson challenge to a peremptory strike

of a young African-American woman, Juror 16, who the pros-

ecutor believed did not have sufficient ties to the community

because of her youth, and who may have been too tolerant of

BROWN v. LAMBERT 6765

the crime with which the respondent was charged. 126 S. Ct.

at 973. The California Court of Appeal upheld the trial court’s

ruling on the peremptory challenge to credit the prosecutor’s

race-neutral explanations for striking Juror 16. Id. The district

court dismissed Collins’s habeas petition with prejudice. Id.

We reversed, concluding that the state appellate court made

an unreasonable factual determination in crediting the prose-

cutor’s race-neutral reasons for striking Juror 16. Id.

In a unanimous decision, the Supreme Court reversed us. It

held that, although we recited the proper standard of review

under 28 U.S.C. § 2254(d)(2), “the panel majority improperly

substituted its evaluation of the record for that of the state trial

court.” Id. “State-court factual findings . . . are presumed cor-

rect [and] the petitioner has the burden of rebutting the pre-

sumption by ‘clear and convincing evidence.’ ” Id. at 974

(quoting 28 U.S.C. § 2254(e)(1)). Juror 16 replied affirma-

tively when asked whether she believed that the crime with

which the respondent had been charged should be illegal, and

disclaimed any other reason she could not be impartial. Id. at

975. However, the Court determined that even if “the prose-

cutor [still] claimed to hold [race-neutral] concerns despite

Juror 16’s voir dire averments[, this] does not establish that

she offered a pretext.” Id. In other words, the prosecutor did

not have to accept the voir dire statements of Juror 16 when

there were other race-neutral grounds for the peremptory chal-

lenge.

Here, the Brown panel seizes upon Juror Z’s statement that

he would be able to consider the option of the death penalty

as a basis for its determination that the prosecutor’s reason for

striking Juror Z, and the trial court’s willingness to credit that

reason, was objectively unreasonable. But Juror Z’s willing-

ness to impose the death penalty was accompanied by his

indecisiveness and an expressed viewpoint which, if followed,

would result in the misapplication of Washington law. Rather

than examining piecemeal the individual statements of Juror

Z, the trial judge could appropriately consider Juror Z’s

6766 BROWN v. LAMBERT

inconsistent statements and his uncertainty as reflected

throughout the entire voir dire process as a reasonable basis

for his exclusion. Under Collins, the trial judge did not have

to accept Juror Z’s isolated declarations that he could follow

the law if the totality of Juror Z’s voir dire examination

reflected his general confusion and indecisiveness about the

proper application of the death penalty.

“Reasonable minds reviewing the record might disagree

about the prosecutor’s credibility, but on habeas review that

does not suffice to supersede the trial court’s credibility deter-

mination.” Id. at 976. Although some might find that Juror Z

had eschewed and rejected his prior improper basis for appli-

cation of the death penalty, a reasonable mind could just as

easily find that he had not eschewed and rejected that basis.

The trial judge, as trier of fact on challenges during voir dire,

is entitled to the same latitude as a jury determining the credi-

bility of trial witnesses when judging whether a potential juror

is able to serve. The superior court judge had the responsibil-

ity of weighing Juror Z’s various inconsistent statements to

determine Juror Z’s true ability to faithfully perform his

duties as a juror by applying Washington law. He had the

opportunity to watch the prospective juror testify; we did not.

V

Finally, the Washington Supreme Court need not explicitly

declare that Juror Z was “substantially impaired” for its affir-

mance to count under AEDPA. True, the appellate court did

not incant the words “substantially impaired.” But based upon

the rulings of both the trial and appellate courts, and the

record in this case, we can certainly conclude that the Wash-

ington courts found appropriate the decision to excuse Juror

Z on the only ground proffered by the prosecutor—that he

could not discharge his oath as a juror to follow state death

penalty law. While the record may be susceptible to different

interpretations by reasonable jurists, AEDPA demands that

we must be able to conclude that the decision was “objec-

BROWN v. LAMBERT 6767

tively unreasonable” to grant relief. That standard is simply

not met here.

By listening to the voir dire statements of Juror Z, watching

how he answered specific questions during voir dire, consid-

ering the prosecutor’s reason for wanting to dismiss Juror Z

for cause, and hearing the defense state that it had no objec-

tion to the motion, the trial judge implicitly found that Juror

Z was “substantially impaired” by excusing him for cause.

Nothing more is required. See Wainwright, 469 U.S. at 430.

The Supreme Court in Wainwright said that in making rulings

on voir dire objections, the judge is not “required to announce

for the record his conclusion that [the potential juror] was

biased, or his reasoning,” when “[t]he finding is evident from

the record.” Id. It is especially telling when the defendant

does not object to the dismissal, as was the case when

Brown’s lawyer rose before the court and expressly stated that

she had no objection to excusing Juror Z.

We must afford the same presumption of correctness to the

Washington Supreme Court in reviewing the trial court’s fac-

tual determination of juror bias. See Tinsley v. Borg, 895 F.2d

520, 526 (9th Cir. 1990) (“Even though the state appellate

court is, in a sense, in no better position than we are to evalu-

ate the state trial court record, [the habeas statute] requires us

to accord the same presumption of correctness to its factual

findings.”). Specifically, the Washington Supreme Court con-

cluded in reference to Juror Z’s voir dire:

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

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

was properly excused. On voir dire he indicated he

would impose the death penalty where the defendant

“would reviolate 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 under-

stood it to be “beyond a shadow of a doubt,”

although he was corrected later. The trial court did

6768 BROWN v. LAMBERT

not abuse its discretion in excusing [Juror Z] for

cause.

Washington v. Brown, 940 P.2d 546, 585 (Wash. 1997).

Whether or not the Washington Supreme Court intoned the

magic words, “substantially impaired,” it affirmed the trial

court because of Juror Z’s erroneous belief about when the

death penalty should be applied under Washington law. By

doing so, it impliedly determined Juror Z would be substan-

tially impaired in his duties as a juror to follow the law by

holding that he was properly dismissed for cause.

VI

This opinion unfairly rids the trial court of the discretion it

must necessarily possess in determining juror bias in death

penalty cases. Ostensibly, Brown stands for the proposition

that if the written record is not absolutely and explicitly clear

as to whether a dismissed juror could not correctly deliberate

on imposition of the death penalty, we must vacate the death

sentence if that juror was nonetheless dismissed by the judge

who watched him respond to the questions on voir dire with-

out defense objection. That is simply not the way the Supreme

Court has directed us to review jury selection under AEDPA,

even after Gray. See Collins, 126 S. Ct. at 973-75; supra,

§ IV. Indeed, Wainwright declared prior to Collins that decid-

ing to dismiss a potential juror “does not require that a juror’s

bias be proved with unmistakable clarity.” 469 U.S. at 424

(internal quotation marks omitted). While we do not and will

not rubber stamp on habeas review juror dismissals in death

penalty cases, AEDPA surely requires more deference to the

Washington courts than that paid by our court in this one.

Finally, this opinion impermissibly lowers the level of def-

erence which comity demands that we as a federal habeas

court afford state courts in reviewing their decisions and find-

ings of fact. Brown’s lower standard of “reasonableness

BROWN v. LAMBERT 6769

review” severely handicaps a trial judge’s ability to go

beyond the scope of mere words and phrases taken piecemeal

from the entire voir dire process. This new standard ignores

the need for litigants and the trial judge to interpret the pro-

spective venireman’s answers, considering them along with

body language and demeanor. Because AEDPA, as reinforced

by the Supreme Court, commands greater comity when fed-

eral courts review these kinds of practical decisions by experi-

enced state judges in capital cases, I respectfully dissent from

our court’s unwillingness to rehear this case en banc.