Gray v. Mississippi

Justice Scalia,

with whom The Chief Justice, Justice White, and Justice O’Connor join, dissenting.

The Court holds that petitioner’s sentence must be vacated because Mrs. Bounds was improperly excluded for cause from the sentencing jury. I dissent because it is clear that she should in any event have been excluded on other *673 grounds. The trial judge’s error, if any, consisted of no more than giving the wrong reason for lawful action — which could not conceivably have affected the fairness of the sentence.

Before Mrs. Bounds’ voir dire, the State moved to exclude nine potential jurors for cause. The trial judge granted only one of those motions, and the State excluded the other eight potential jurors by peremptory challenge. Five of those eight had unambiguously stated that they would never vote to impose the death penalty. See Record 368-369 (Mr. Ruiz), 381-383 (Mrs. Coker), 392-393 (Mrs. Bush), 394-395 and 398-399 (Mrs. Price), 401-403 (Mrs. Walker). These statements undoubtedly rendered them excludable for cause. See, e. g., Adams v. Texas, 448 U. S. 38, 45 (1980) (a potential juror may be excluded for cause if his views about capital punishment “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath”). See also Darden v. Wainwright, 477 U. S. 168, 175 (1986); Wainwright v. Witt, 469 U. S. 412, 420 (1985). Cf. Witherspoon v. Illinois, 391 U. S. 510 (1968). The trial judge eventually realized that he had erred. See Record 554 (“[I] cheated the State by making . . . the District Attorney use his peremptory challenges in at least five instances”); ibid, (five potential jurors “were unequivocally opposed to [capital punishment] and answered, in substance, if not even stronger language than the question set forth in [Witherspoon]”); id., at 548 (“Of course, I admit that they were unequivocal, about five of them . . ,”). 1 The *674 Mississippi Supreme Court agreed. 472 So. 2d 409, 421-422 (1985) (several potential jurors’ “responses clearly indicated that they could properly be . . . dismissed both under With-erspoon and [under] Adams”); id., at 422-423 (the trial judge erred “in refusing to dismiss other [potential] jurors for cause after they had unequivocally stated that they could not vote to impose the death penalty in any circumstance”).

Despite the unequivocal responses of the potential jurors and the agreement of the state courts that they could have been excluded, the plurality — without even discussing the potential jurors’ responses — claims to be unable to determine whether any of them was excludable for cause. 2 Ante, at 662. According to the plurality,

“despite their initial responses, the venire members might have clarified their positions upon further questioning and revealed that their concerns about the death penalty were weaker than they originally stated. . . . The inadequate questioning regarding the venire members’ views in effect precludes an appellate court from determining whether the trial judge erred in refusing to remove them for cause.” Ante, at 662-663 (footnote omitted).

In this brief passage, the plurality invents — but unfortunately does not justify — a new constitutional doctrine, not rooted in any constitutional provision and contradicted by our prior cases. The plurality suggests that potential jurors can *675 not properly be excluded for cause if “further questioning” might reveal that they did not really mean it when they said they would never vote to impose a death sentence. The Court has never before even hinted at such a requirement (perhaps because of the obvious difficulty of saying how much further questioning is necessary to satisfy it — a point on which the plurality understandably provides no guidance) and in fact has implicitly rejected it. That rejection is made clear by a comparison of the voir dire the Court found sufficient to justify an exclusion for cause in Witt with the voir dire of the potential jurors in this case. The entirety of the voir dire at issue in Witt was as follows:

“[Prosecutor (P)]: Now, let me ask you a question, ma’am. Do you have any religious beliefs or personal beliefs against the death penalty?

“[Prospective Juror (J)]: I am afraid personally but not—

“[P]: Speak up, please.

“[J]: I am afraid of being a little personal, but definitely not religious.

“[P]: Now, would that interfere with you sitting as a juror in this case?

“[J]: I am afraid it would.

“[P]: You are afraid it would?

“[J]: Yes, sir.

“[P]: Would it interfere with judging the guilt or innocence of the Defendant in this case?

“[J]: I think so.

“[P]: You think it would.

“[J]: I think it would.” 469 U. S., at 415-416 .

The voir dire of each of the five potential jurors at issue in this case was at least as extensive, and the responses of the potential jurors far more categorical. For example, the voir dire of Mrs. Coker went as follows:

*676 “[P]: Mrs. Coker, do you have any conscientious scruples against Capital Punishment when imposed by the law?

“[Mrs. Coker]: I do not believe in it.

“[P]: You do not believe in Capital Punishment. Now, Mrs. Coker, do you tell me you don’t believe in Capital Punishment in this type of case or in any type of case?

“[Mrs. Coker]: In any type of case.

“[P]: You mean to tell me that if the Court instructed you that this is a case, gave you the law and told you that this is a case whereby [sic] you could impose the Death Penalty, that you would not follow the law, if it meant imposing the Death Penalty?

“[Mrs. Coker]: [Inaudible.]

“DP]: Ma’am?

“[Mrs. Coker]: I would not.

“[P]: You would not do it?

“[Mrs. Coker]: I would not do it.

“[P]: You just don’t believe in Capital Punishment. “[Mrs. Coker]: That’s right.

“[P]: And you would never vote for Capital Punishment, are you telling me, in any case or just this type case?

“[Mrs. Coker]: In any case. I would never vote for it in any case.” Record 381-383.

The plurality makes no effort to reconcile its conclusion that the voir dire of the five potential jurors at issue in this case was inadequate to justify their exclusion for cause with our decision in Witt . I think it beyond doubt that the trial judge erroneously denied at least five of the State’s motions to exclude potential jurors for cause.

The plurality also hints that these potential jurors may not have been properly excludable for cause because they were merely feigning objections to capital punishment in order to avoid jury service. Ante, at 652-653, 656, and n. 4. But the Constitution certainly permits the exclusion for cause of potential jurors who lie under oath about their views of capi *677 tal punishment. Moreover, although there is no doubt that the trial judge and the prosecutor were concerned that some potential jurors were dissembling, Record 410, 445, 540, they agreed that only one or two had acted in this fashion, id., at 540 . Thus, even if those were not properly excludable for cause, three others were.

I also conclude that there is no federal constitutional obstacle to the trial judge’s granting the State’s request that it be given back a peremptory challenge for use to remove Mrs. Bounds. 3 (It is clear from the Mississippi Supreme Court’s opinion that this would have been permissible under state law, see 472 So. 2d, at 423 .) It is true that doing so would have produced a jury different from that which would have been impaneled had the trial judge denied the request and left his error uncorrected — and might have produced a jury different from that which would have been impaneled had the error not been made in the first place. But we have never suggested, and it simply could not be, that the Constitution prevents trial judges from correcting errors in jury selection that favor defendants if doing so might affect the composition of the jury. The Court implicitly concedes as much when it states that the trial judge in this case could have remedied his erroneous rulings in petitioner’s favor by dismissing the ve-nire and starting anew. Ante, at 663-664, n. 13. That would have replaced all 12 members of the jury rather than merely Mrs. Bounds. The less drastic means of remedying the error must be permissible.

We come, then, to the last difficulty — which is that the trial judge in fact did not restore to the State the erroneously *678 denied peremptory challenge, but instead excluded Mrs. Bounds for cause. I assume for purposes of this opinion that she was not constitutionally excludable on those grounds. As the Court observes, we have said that “if a venireman is improperly excluded [for cause], any subsequently imposed death penalty cannot stand.” Davis v. Georgia, 429 U. S. 122, 123 (1976) (per curiam). We have not, however, extended this language so far as to vacate a sentence when it was certain that the jury that was impaneled was identical to the jury that would have been impaneled had the trial judge not erred. In fact, the Court itself indicates that such an extension would be misguided, stating that “the relevant inquiry is ‘whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.’” Ante, at 665 (quoting Moore v. Estelle, 670 F. 2d 56, 58 (CA5) (specially concurring opinion), cert. denied, 458 U. S. 1111 (1982)).

The standard that the Court endorses requires that petitioner’s sentence be upheld. As I have described, the trial judge could lawfully have granted the State’s request that it be given a peremptory challenge for use to remove Mrs. Bounds. It is certain that the trial judge’s decision to exclude Mrs. Bounds for cause rather than granting that request did not affect the composition of the jury in any way. In either event, Mrs. Bounds would have been excluded. The difference in the form of her exclusion — essentially the utterance of one set of words rather than another — could not possibly have affected the composition of the jury. There is thus no reason to vacate petitioner’s sentence. 4

*679 Finally, I cannot omit commenting upon the plurality’s dictum implying that it is unconstitutional for prosecutors to use peremptory challenges consistently to exclude potential jurors who express reservations about capital punishment. Ante, at 667-668. I disagree. Prosecutors can use peremptory challenges for many reasons, some of which might well be constitutionally insufficient to support a legislative exclusion. For example, I assume that a State could not legislate that those who are more sympathetic toward defendants than is the average person may not serve as jurors. But that surely does not mean that prosecutors violate the Constitution by using peremptory challenges to exclude such people. Since defendants presumably use their peremptory challenges in the opposite fashion, the State’s action simply does not result in juries “deliberately tipped toward” conviction. The same reasoning applies to the exercise of peremptory challenges to remove potential jurors on the basis of the perceived likelihood that they would vote to impose a death sen *680 tence. In this case, for example, it appears that the defendant used peremptory challenges to exclude at least two potential jurors whose remarks suggested that they were relatively likely to vote to impose a death sentence. See Record 522 and 579 (Mr. Cavode), 573-577 and 579 (Mr. Hester).

For the foregoing reasons, I respectfully dissent.

Despite these statements, the Court asserts that it is not clear that the trial judge believed himself to have erred. Ante, at 656, 662-663, and n. 12. It rests that assertion solely on the trial judge’s expressions of regret that he had not questioned the jurors himself and that the prosecutor had not used language precisely patterned after the holding in Witherspoon v. Illinois, 391 U. S. 510 (1968). Record 548, 552-553. But these expressions of regret are completely consistent with the trial judge’s unambiguous conclusion that at least five potential, jurors should have been but were not excluded for cause. Moreover, if the trial judge did not think he had *674 erred, it is hard to imagine why he excluded Mrs. Bounds for cause after making what the Court believes was an “unambiguous finding” that he “was not authorized under the Witherspoon-Witt standard” to do so, ante, at 661, n. 10. See 472 So. 2d 409, 423 (1985) (“the trial court . . . recognized the error in its prior rulings and took affirmative action to correct that error”).

Although Justice Powell has joined the section of the Court’s opinion containing this claim, he concludes that at least some of the potential jurors should have been excluded for cause. Ante, at 669. He thus necessarily rejects the plurality’s reasoning in support of the contrary conclusion.

Since the State’s request was for a peremptory challenge for use to exclude Mrs. Bounds, see Record 546, it is certain that Mrs. Bounds would have been excluded in this fashion had the trial judge not excluded her for cause. This ease is therefore quite different from those discussed by the Court, ante, at 664-665, in which the State argued that an improper exclusion for cause was rendered harmless by the fact that it had peremptory challenges remaining at the end of the voir dire which it might have used to exclude the potential juror.

I agree with Justice Powell that it cannot be assumed “that the prosecutor would have excluded Mrs. Bounds ‘but for’ ” the trial judge’s erroneous failure to exclude a number of potential jurors for cause. Ante, at 669-670. See supra, at 677. But the identity of outcome that is relevant to this case is an identity between what occurred and what would have occurred without the error that violated the defendant’s constitutional right's. Here, as Justice Powell concedes, ante, at 670-671, n. 2, that error was not the earlier failure to exclude other jurors for cause (which *679 aggrieved the State rather than the defendant), but rather the later decision to exclude Mrs. Bounds for cause instead of granting the State’s request for restoration of a peremptory challenge. That decision, as I have explained, is certain to have had no effect on the composition of the jury.

Justice Powell does not dispute that the jury that sentenced petitioner was identical to the one that would have sentenced him had the trial judge granted the State’s motion to exclude Mrs. Bounds by peremptory challenge. Nor does he dispute that the trial judge could, and indeed should, have granted that motion. Nevertheless, he believes that petitioner’s sentence must be vacated because, had Mrs. Bounds not been excluded for cause, the trial judge might have refused to grant the State’s motion, persisting in his mistaken failure to exclude earlier potential jurors. Ibid. But I cannot imagine why petitioner’s sentence should be vacated merely because it is possible that the exclusion of Mrs. Bounds for cause deprived petitioner of the undeserved benefit of the trial judge’s earlier errors. It seems to me that both in law and in logic the conclusion that petitioner’s sentence should be sustained follows inevitably from the fact that petitioner was sentenced by a jury identical to the one that would have been impaneled had the trial judge, instead of excluding Mrs. Bounds for cause, taken a different, lawful course.