# United States v. Harper > Court of Appeals for the Ninth Circuit · April 3, 1984 · 729 F.2d 1216 URL: https://www.frixlaw.com/law-library/cases/8919784 ## Case - **Full name:** United States v. James Durward HARPER, Defendant-Appellant James Durward HARPER v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, United States of America, Real Party in Interest - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** April 3, 1984 - **Citations:** 729 F.2d 1216 - **Precedential status:** Published - **Opinion:** Concurrence by Fletcher - **Judges:** Fletcher, Reinhardt - **Cited by:** 51 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8919784 ## How later opinions describe it (automated extraction) - stating that a writ of mandamus should issue only if the "district court's order is clearly erroneous as a matter of law," such that the court is "left with the definite and firm conviction that a mistake has been committed" - noting the 21 prosecutor may elect to seek the death penalty in particular cases and that this decision triggers 22 the procedural rights that govern the trial ## Opinion text FLETCHER, Circuit Judge, concurring: I concur fully in the majority opinion. I write separately simply to state that in addition to the reasons stated by the majority for granting the writ that I gave weight to the unnecessary problems that might attend jury selection were the order to stand. If Harper exercised his right to a jury trial, the district court’s order would materially affect the nature of the voir dire and might well materially affect the composition of the jury. Prior to the commencement of the jury selection process, the district judge would be required to resolve complex and difficult constitutional questions that should await resolution until a case necessitating their resolution arises. Specifically, the court would first have to determine whether in a trial in which the judge, rather than a jury, imposes the sentence, persons who would be unwilling, as a matter of conscience, to vote to impose the death penalty could be excluded for cause. See Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). If a prospective juror were to indicate such a conviction, the judge would then have to resolve the question whether a verdict returned by such a “death qualified” jury can withstand constitutional scrutiny and, if so, under what circumstances. 1 . In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), the Supreme Court rejected a challenge to a verdict returned by a jury from which anyone who “ ‘might hesitate to return a verdict inflicting [death]’ ” had *1227 been excluded. 391 U.S. at 513 n. 2, 88 S.Ct. at 1772 n. 2 (emphasis deleted). It said that [t]he data adduced by the petitioner ... are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. 391 U.S. at 517-18 , 88 S.Ct. at 1774-75 (footnote omitted). Since Witherspoon several courts have, on the basis of fuller records including numerous post-Witherspoon studies, concluded that at least certain types of "death-qualified” juries are more prone to convict. See Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984); Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983); Hovey v. Superior Court, 28 Cal.3d 1 , 168 Cal.Rptr. 128 , 616 P.2d 1301 (1980). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8919784. Public record. Not legal advice.