# Swindler v. State > Supreme Court of Arkansas · July 17, 1978 · 264 Ark. 107 URL: https://www.frixlaw.com/law-library/cases/9775547 ## Case - **Full name:** John Edward SWINDLER v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** July 17, 1978 - **Citations:** 264 Ark. 107; 569 S.W.2d 120; 1978 Ark. LEXIS 2254 - **Precedential status:** Published - **Opinion:** Concurrence by Howard - **Judges:** Byrd, Harris, Howard, Fogleman - **Cited by:** 31 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/9775547 ## Opinion text George Howard, Jr., Justice, concurring. The United States Supreme Court in reversing the death sentence imposed in the case of Witherspoon v. Illinois, 391 U.S. 510 , made the following observation: . . [A] State may not entrust the determination of whether a man is innocent or guilty to a tribunal ‘organized to convict.’ ... It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected. “Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.” In Witherspoon, thirty-nine veniremen, including four of the six who indicated that they did not believe in capital punishment, had acknowledged having conscientious or religious scruples against the infliction of the death penalty or against its infliction in a proper case and were excluded without any effort being made to find out whether their scruples would invariably compel them to vote against capital punishment. One venireman who admitted to a religious scruple against the death penalty when asked: “You don’t believe in the death penalty?” She replied: “No.” But later she stated she had no religious scruples against capital punishment and further stated that she would not “like to be responsible for . . . deciding somebody should be put to death.” She was excused. In Maxwell v. Bishop, Penitentiary Superintendent, 398 U.S. 262 , the United States Supreme Court, in reversing this Court’s affirmance of Maxwell’s death sentence, 1 stated: “As was made clear in Witherspoon, ‘a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. ’... As we there observed, it cannot be supposed that once such people take their oaths as jurors they will be unable ‘to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.’ . . . ‘Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.' . . . See also: Boulden v. Holman, 394 U.S. 478 , 89 S.Ct. 1138 (1969). In Maxwell, one prospective juror was successfully challenged for cause solely on the basis of the following exchange: “Q. If you were convinced beyond a reasonable doubt at the end of this trial that the defendant was guilty and that his actions had been so shocking that they would merit the death penalty do you have any conscientious scruples about capital punishment that might prevent you from returning such a verdict? “A. I think I do.” (Emphasis supplied) Still another member of the panel was dismissed after the following dialogue: “Q. Mr. Adams, do you have any feeling concerning capital punishment that would prevent you or make you have any feelings about returning a death sentence if you felt beyond a reasonable doubt that the defendant was guilty and that his crime was so bad as to merit the death sentence? “A. No, 1 don't believe m capital punishment.' (Emphasis supplied) In the instant case, veniremen were excused from serving on appellant's jury for reasons essentially similar to the ones quoted above in Maxwell. For example, one prospective juror was asked: “Q. Would you vote lo impose the death penalty if that were called for under the law of Arkansas? “A. I doubt it.” (Emphasis added) The prospective juror further testified: “Q. It wouldn’t matter how bad the fact situation was, you would vote against the death penalty? “A. Yes. 1 believe 1 have verified that.” (Emphasis supplied) Another prospective juror was excused following this exchange: “Q. In other words, you would vote against it? You know right now no matter what the fact situation develops here, you know right now you would vote against the death penalty? “A. I believe so.” (Emphasis added) Another prospective juror testified as follows: “Q. . . . [Cjould you and would you vote for the death penalty? “A. I don’t think so.” (Emphasis added) There were other instances where prospective jurors were excused when they voiced general and ambiguous objections to imposing the death sentence. In my judgment, the trial court committed reversible error in excusing those prospective jurors who were not unequivocally committed to the death sentence. In substance, appellant’s jury in the words of the Supreme Court in Witherspoon, was stacked against the appellant and this cannot be squared with the Sixth and Fourteenth Amendments to the Constitution of the United States. In the recent case of Davis v. Georgia, 429 U.S. 122 , 97 S. Ct. 399 (1976), the United States Supreme Court made the following comment in reversing a death sentence: “. . . Unless a venireman is ‘irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings’ ... he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.” In Davis, only one prospective juror had been excluded in violation of the Witherspoon standard. See: Maxwell v. State, 236 Ark. 694 , 370 S.W. 2d 113 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775547. Public record. Not legal advice.