# Edward Anthony Ellis v. James A. Lynaugh, Director, Texas Department of Corrections

> Court of Appeals for the Fifth Circuit · May 30, 1989 · 873 F.2d 830

URL: https://www.frixlaw.com/law-library/cases/9478960

## Case

- **Full name:** Edward Anthony ELLIS, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 30, 1989
- **Citations:** 873 F.2d 830; 1989 U.S. App. LEXIS 7459; 1989 WL 48526
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** Reavley, Johnson, Davis
- **Cited by:** 86 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JOHNSON, Circuit Judge,
dissenting:
The majority today concludes that the trial court properly excused venireman Bradshaw for cause. This conclusion, in this writer's mind, is erroneously based on the assumption that the trial court “clearly could have been ‘left with the definite impression that [Bradshaw] would be unable to faithfully and impartially apply the law.’ ” Wainwright v. Witt, 469 U.S. 412, 426 , 105 S.Ct. 844, 853 , 83 L.Ed.2d 841 (1985). The above rule of law which was first enunciated by the Supreme Court in Witt does not disturb the essence of the earlier holdings of the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980) to the effect that a juror shall not be challenged for cause unless his “views [on capital punishment] would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Witt, 469 U.S. at 420 , 105 S.Ct. at 850 (quoting Adams v. Texas, 448 U.S. 38 at 45 , 100 S.Ct. at 2526 ). Against the backdrop of the above standards, the record in this case compels the conclusion that venireman Bradshaw, had he been sworn to take the oath as a juror, would *841 have performed his duties as a juror in accordance with his instructions and his oath. I therefore respectfully dissent from the conclusion of the majority that venireman Bradshaw was properly excused for cause.
During voir dire, in response to questions posed by the prosecutor, Bradshaw indicated that he harbored strong feelings disfavoring the death penalty. Responding further to prosecutorial probing, Bradshaw stated “I believe so” when asked whether he would answer “no” to a special issue so as to prevent the imposition of the death penalty. During rehabilitative questioning by defense counsel, however, Bradshaw categorically asserted that if he were sworn as a juror he would “tell the truth” when answering special issues even if the result would be the imposition of the death penalty on the defendant. As I view the record, the prosecutor’s questions were designed to elicit Bradshaw’s scruples against the death penalty. In contrast, questions from defense counsel sought to establish whether Bradshaw was willing to abide by the law concerning the death penalty if he were sworn as a juror regardless of any personal attitude that he might have regarding capital punishment. After reviewing the record on what must be the essential inquiry of whether Bradshaw could and would have faithfully and impartially applied the law concerning the death penalty, I am convinced that Bradshaw, had he been sworn as a juror, would have done so. When questioned repeatedly about adhering to the juror’s oath, Bradshaw pledged that if sworn as a juror he was “going to follow it [the oath],” that he “would have to answer honestly,” and that he was “not going to lie.” Significantly, even after the trial court reminded Bradshaw of his previously articulated scruples concerning the death penalty, Bradshaw persisted in his assertion that “[i]f I took the oath, yes, sir, I would have to answer honestly.”
On the basis of the above testimony of Bradshaw, I am unable to join in the conclusion of the majority that Bradshaw could have given the trial court the “definite impression that he would be unable to faithfully and impartially apply the law.” Witt, 469 U.S. at 426 , 105 S.Ct. at 853 . (emphasis supplied). To the contrary, Bradshaw’s responses concerning his ability to faithfully and impartially apply the law if selected and sworn as a juror, indicate a remarkable objectivity, honesty and respect for the law particularly when viewed in the light of his admitted reservations regarding capital punishment.
In sum, the guarantees afforded a capital defendant by the sixth amendment must not be eroded in the guise of what is characterized as a line of questioning designed to “flush out [a potential juror’s] true views.” The recognition by the Supreme Court that the “voir dire practice of 'death qualification’ — the exclusion for cause, in capital cases, of jurors opposed to capital punishment — can dangerously erode this ‘inestimate safeguard [against the overzealous prosecutor and the biased judge]’ by creating unrepresentative juries 'uncommonly willing to condemn a man to die’,” Wainwright v. Witt, 469 U.S. 412, 439 , 105 S.Ct. 844, 860 (Brennan, J., dissenting), is as vital today as it was during Wither-spoon’s trial. Witherspoon, 391 U.S. 510, 521 , 88 S.Ct. 1770, 1776 . So long as a potential juror expresses a willingness to abide by the law regardless of his personal views on capital punishment, that juror should not be challenged for cause. Indeed, in the instant case, juror Bradshaw evinced not only a willingness, had he been sworn as a juror, to adhere to the law, but a categorial and resolute determination to do so. It is for this reason that I must respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478960. Public record. Not legal advice.