# Petitioners Supplemental Brief — Maxwell v. Bishop > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1441%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Supplemental Brief - **Published:** January 1, 1970 - **Citation:** 398 U.S. 262 ## Text Office Supreme oO 1, In THE Supreme Court of the United "earn wu ye oe Court, U.S. me G : HN F. DAVIS, CLERK. Octoser TERM, 1969 waa No. 13 3 | : ¥ Wim L. MaxweEL., site Petitioner, ee i ee O. E. Bisnor, Superintendent of _ Arkansas State Penitentiary, | a er Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS f FOR THE EIGHTH CIRCUIT NOON-EOR“bEAME LO. FILE-SURREBMENT AE BRILE-AND-SUPPLEMENTAL BRIEF FOR PETITIONER JACK GREENBERG James M. Nasrit, IIT Norman C. AMAKER MicHaEL MELTSNER JacK HIMMELSTEIN EvizaBeTH DuBois 10 Columbus Circle _ New York, New York 10019 Grorce Howargp, Jr. 32914 Main Street ‘Pine Bluff, Arkansas 71601 8 AntTHony G. AMSTERDAM Stanford -University Law School Stanford, California 94305 Attorneys for Petitioner | a &y INDEX Motion for Leave to File Supplemental I desinancinbess Supplemental Brief for Petitioner I. Petitioner’ s Death Sentence Is Invalid Under Witherspoon A. Facts Relevant to the Witherspoon Issue ...... B. Application of the Witherspoon Rule to This Record ...... : IL. This Court Cannot Properly Affirm the Decision Below, Which Would Send Petitioner to His Death Pursuant to the Verdict of an ‘ Unconstitu- . tionally Selected Jury .. J. : ; 12 25 Ill. The Court Should Not, by Reason of. Wither- spoon’s Supervention, Refuse to Decide the Issues Upon Which It Has Granted Certiorari Here .... ConcLUsION APPENDIX A Voir Dire Examination of Seven Veniremen. Ex- cused for Opposition to the Death Penalty. -......:... ‘ \- : > . APPENDIX B _ Voir Diré Examination of Venireman Rephan ...... 27 34 5a wae ‘S Pack Aprenpix C. | Preatment of W itherspoon v. Minois by the Lower Courts , a Re A. Decisions setting ite death sentences cnlie Sa B.’ Decisions refusing to set asidp death sen. tences om eerorcaseseeeeseeseres deeecess fevercereees eececce GP oceeeseceees lla . Doctrines distinguishing or “construing” ee, I pciilesipieeiininttianplasitan 12a 2. Methods of interpreting a voir dire tran- seript so as to avoid Witherspoon ............ Ida 3. Methods of avoiding Withérspoon where _ jurors were unmistakably excluded in vio- lation of the rule of that decision ......... ba 4. Decisions, articulating relatively unim- peachable Witherspoon standards but manifestly misapplying them 0... lia | Re » 18a Tas.e or Aurionrrins Cases: Aaron vy. State, 283 Ala. 52, 214 So, 2d 827 (1968)... Ils Abram v vy. State, 216 So. 2d 498 (Fla. Dist. Ct. App. a 1a Adderly v. Wainwright, M.D. Fla, No. 67-298. Ciy-J a Aikens y. California, 0. 'T. 1969, No. 364 Mise. sisscitcocielaiiecpisptinpcanehcmepneneieoiannet ieenaei csadabsesaipied 15a, a tate vy. Williams, 50 Nev. 271, 257 Pac. 619 (1927) .. wain v. Alabama, 380 U.S. 202 (1965) -.....02222.2...222...20. eee olbert v. California, O.T. 1969, No. 596 Mise. ............ 30 amnum v. California, O.T. 1969, No. 332 Mise. ........... 30 eney v. State, 251 Md. 182, 246 A. 2d 568 (1968) °..14a, 17a ‘alker v. State, Nev. ——, 455 P. 2d -34 ICRA rea es AR ialehicidetaeptieteublidiczod 13a, 18a heat and Aiken v. Washington, O.T. 1969, No, 783 i ART OLD LAPT ED) Ct PARP OEE LORETO bed yhisman v. State, 224 Gia. 793, 164 S.E. od 719 (1968) .. illiams v. Dutton, 400 F. 2d 797 (5th Cir. 1968) ........ = ‘illiams v. Smith, 224 Ga. 800, 164 S$... 2d 798 (1968) .. lla illiams v. State, Fla. Sup. Ct. No. 37, 316, decided April iy | MIEIE ach tesuscuctainsdepicsedkcgteiaulissuameaencaaaiies 12a, 13a — rilson'v. State, 225 So. 2d 321 (Fla. 1969) ........ 31, 12a, 17a ‘itherspoon v. Illinois, 391 U.S. 510 (1968) ....3, 5, 6, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 31, 32, 33, 34, 8a, 9a, lla, 12a, 13a, 14a, 15a, 17a, 18a ‘ tatutes: - \ tk. Stat. Ann. 643-1921 (1964 Repl. vol.) cscs 7 rk. Stat. Ann. §43-1922 (1964 Repl. vol.) 0. 7 e 7 In SHE . | Supreme Court of the United States Ocroser TERM, 1969 - No. 13 a - Motion for Leave to File Supplemental Brief Pursuant to Rule 41 (5), (6) of this Court, petitioner Maxwell -respectfully asks special leave to file the ap- pended Supplemental Brief. | Certiorari was granted in this case on December 16, 1968, limited to two questions :? : - “2. Whether Arkansas’ practice of permitting the trial jury absolute diseretion, uncontrolled by stand- These were questions 2 and 3 of the Petition for a Writ of Certiorari. By a separate motion filed contemporaneously with the present one, petitioner is requesting that the Court enlarge the scope of its grant of certiorari to include consideration also of Question 1 of the Petition, relating to petitioner’s claim that Ar- kansas juries have discriminated on grounds of race in exercising ne to sentence men convicted of the crime of rape to 2 ards or directions of any kind, to impose the death ' penalty violates the Due Process Clause of the Four- teenth Amendment? ee : “3. Whether Arkansas’ single-verdict procedure, . which requires the jury to determine guilt and pun.’ ishment simultaneously and a defendant to choose be- tween presenting mitigating evidence on the punish- ' ment issue or, maintaining his privilege against -self- incrimination on the guilt issue, violates the Fifth and Fourteenth Amendments?” bine o The case was argued on March 3 and 4; 1969, by counsel for petitioner, for respondent, and for. the State of Cali- fornia as amicus curiae. California urged orally (as it had previously in its brief amicus curiae) that the issues on which certiorari had been granted ought not to be de- cided. Rather it contended that the case should be disposed of (if the facts warranted) upon the ground that the jury which: condemned petitioner to die had been selected in violation of the retroactive ruling in Witherspoon v.. Il- linois, 391 U.S. 510 (1968). The Court requested and re- ‘ceived, without objection of the parties, a transcript of peti- tioner’s trial that included the voir ‘dire examination of | prospective jurors. At the argument on March 4, ‘eeiisiiaaes took the posi- tion that this Court should not refuse to decide the issues ‘on which it had granted certiorari, and which remained squarely and properly presented by this case, simply be- cause petitioner’s death sentence might also be invalid un- der Witherspoon. Those issues remained vital to petitioner and to hundreds of other death-sentenced men across the Nation, he argued, even though petitioner’s present sen- d I ¢ 2 tence to death by electrocution should: be set aside by force | of the en rule. , ‘On May 26, 1969, this. Court ordered the case restored to the calendar for reargument on October 18, 1969. _ Events since the first argument of this case in March of 1969 seem to us relevant to this, Court’s appreciation of the proper place of the Witherspoon issue in the pres- ent litigation.. It is the purpose of petitioner’s Supple- mental Brief to discuss the in¥Yplications of those events, which include this Court’s decision of Boulden v: Holman, — 394 U.S. 478, on April 2, 1969, and numerous. opinions of state and lower federal courts rendered or reported . since. March of 1969, considering Witherspoon and the other issues —- by petitioner’s Petition for Cer- tiorari. * We have aici the sreparation of this Supplemental Brief until September in gggler to permit inclusion in it of references to as many relevant 1969 state and lower fed- eral decisions as could be found. We seek to file it at this” time'so that respondent and the amicus curiae may have > a month within which to reply prior to reargument. For these reasons, we now request leave of the.Court to file the appended Supplemental Brief. . ». ln THE Supreme Court of the United States Ocrosen Team, 1969 No. 13 i Witniam L. Maxweu, Petitioner, > —VvV — ©. K. Bisnor, Superintendent of Arkansas State l’rison, Respondent. 1S WRIT OF CERTIONARL TO THE UNITED STATES COURT OF APPEALS YOR THE HIGHTH CIRCUIT > SUPPLEMENTAL BRIEF FOR PETITIONER Petitioner contends herem -that his death sentence is mstitutionally: invalid under Witherspoon v. Illinois, 391 (. S. 510 (1968). (Part |, infra.) For this. reason, the wigment below, which denies him the last available judi- fal relief against the execution of that sentence by electro- ation, cannot properly be affirmed by this Court. (Part Il, infra.) However, the invalidity of petitioner's sentence wuler Witherspoon does not require the Court—and should not persuade the Court—to decline to consider peti- toners other challenges to the Arkansas capital sentenc- ing procedure which has authorized his imprisonment under an Unconstitutional sentence of death for more than seven years amd to which he will be subjected, again unconstitu- 6 , tionally, on any retrial oceasioned by a Witherspoon dis. position’ here. Those other challenges are not rendered moot by Witherspoon; and their determination by this Court is, if possible, more important to the proper and constitutional administration of justice in capital cases today than ‘it was when the Court first agreed to consider | petitioner’s claims on certiorari in December, 1968. (Part | III, infra.) L Petitioner’s Death Sentence Is Invalid Under Wither. spoon, | Ne A. Facts Relevant to the Witherspoon Issue Fifty-five veniremen were examined in the course of: ‘selecting the twelve jurors who sentenced petitioner to die.’ Of the 43 veniremen excused from service’ on the jury, 12 werd excused on peremptory challenge by the defense,’ 7 were challenged peremptorily by the prosecution,‘ 17 were * Two panels of veniremen were called: the regular panel, having 31 veniremen, and a special panel of 33 (18 of whom had previously been qualified and 15 of whom had not). Of, the 64 veniremen thus brought into the courtroom, 55 were interrogated and excused or passed on the voir dire before the process of selecting a jury was completed. Tr. 108-238; see particularly Tr. 108-109. [Tr: here and hereafter refers to the transcript of petitioner's trial in the Circuit Court of Garland County, Arkansas, March 19-April 5. 1962, which is included in and paginated as a part of the record on petitioner's direct appeal to the Arkansas Supreme Court, Crim nal No. 5057, handed up to this Court on the first argument of the case here, March 4, 1969.] * Veniremen Groom (Tr. 124), MeClard (Tr.. 153), Madden (Tr. 170), Johnson (Tr. 170), Maddox (Tr. 170), Thomas (Tr. 170), Bledsoe (Tr. 199), Rephan (Tr: 205), Raymond (Tr. 205), Lowres (Tr. 209), Miller (Tr. 220), Gibbs (Tr. 230). * Veniremen Graham (Tr. 136), Ross (Tr. 154), Cheatham (Tr rg Wesson (Tr. 195), King (Tr. 201), Thomas (Tr. 214), Quine (Tr. 226). 7 d for cause by the court on grounds other than op- m to capital punishment,’ and 7 were excused for by the court becausé of their opposition to capital ment.* (The defense thus exhausted all twelve of the ptory challenges allowed it under Arkansas proce- Ark Stat. Ann. §43-1922 (1964 Repl, vol.) ; see Tr. hile the prosecution failed to use only three of its ble ten peremptories, Ark. Stat. Ann. §43-1921 (1964 vol.).”) iry on the voir dire concerning the veniremen’s at- ; toward capital punishment was ordinarily made by osecntor. The questions he asked varied somewhat enireman to venireman. But, whenever any answer ting any sort or degree of opposition to the death vy was received, the prosecutor made his challenge use Which was thereupon granted by the Court with- rther inquiry. relevant portions of. the voir ‘dire examination of yen jurors excused for opposition to the death penalty t out in Appendix A to this brief. We summarize ere : liremen Wafford (Tr. 111), Rather (Tr. 113), Caleote (Tr. 1}, Elliott (Tr. 114-115), Lowrey (Tr. 115), Rhiddlehoover 15-116), Reed (Tr. 131), Buchannan (Tr. 132), Rainwater 4), Rowell (Tr. 155), Weston (Tr. 162), Dean (Tr. 162), ‘Tr. 164), Green (Tr. 179-180), Robertson (Tr. 205), Jackson 7), Douglas (Tr. 223). liremen McCleary (Tr. 117), Wade (Tr. 159), Hagy (Tr. troupe (Tr. 171), Breland (Tr. 178-179), Adams (Tr.181), - ms (Tr. 195-196). 3 » prosecutor's use of peremptories followed the common 1: of the seven veniremen lie excused (note 4, supra) six ‘egro (invariably after only cursory questioning, except pursuit of a possible ground of challenge for cause seemed lo save him use of a peremptoty) and one was a white man Tr. 154), whose half-brother appears to have had some sort in with the prosecutor. 8 (1) Venireman McCleary: After the court had ques. tioned the first box of twelve veniremen on subjects other than capital punishment and had excused several for cause, the prosecutor was invited to inquire. He asked the first remaining venireman, Mr. Kimball, “if the evidence con- vinced you beyond a reasonable doubt at the conclusion of this trial that the defendant was guilty, that you thought a death sentence was justified, do you have any conscien- tious scruples that prevent your imposing such a sen- tence?” Mr.. Kimball said no. The prosecutor then asked Mrs. Kanada “if you were convinced beyond a reasonable doubt at the conclusion of this trial that the defendant was guilty, that you thought a death sentence was justified, would you have any conscientious scruples about imposing the death sentence [emphasis acdded]?” Mrs. Kanada said no. The prosecutor pursued: “Q. Mr. Groom, you have heard the question I just asked, do you entertain any such conscientious scruples against the death sentence [emphasis added)?” “A. No. “Q. Mr. Martin, do you entertain any such scruples! “A. No. . _“Q. Mr. Beavers? “A. No, not at this point? “Q. Do you entertain any conscientious scruples about imposing 8 death penlaty [sic] [emphasis added)?” \ “A. No. “Q. Mr. Rima? “A. No. “Q. Mr. MeCleary? “A. Yes, I am afraid I do. “Q. I submit, your Honor, that Mr. McCleary should be excused. ‘ v 9 “THE COURT: Alright, [sic] Mr. McCleary. — “LET THE RECORD SHOW 1 EXCUSED, AGAINST DEATH SENTENCE.” (‘Tr. 116-117.) (2) Venireman Wade: The prosecutor inquired: “Q. Mrs. Wade, if you were convinced .beyond a reasonable doubt of the guilt of the defendant and you felt the crime he committed was proved beyond a rea- sonable doubt and was so abhorrent as to justify the death penalty would you have any conscientious scruples against the death penalty? “A. I] would not sentence the death penalty. . “MR. WHITTINGTON: I submit, your Honor, ‘that Mrs. Wade should be excused. “LET THE RECORD SHOW MRS. WADE EX- CUSED, DOES NOT BELIEVE IN THE DEATH PENALTY.” (Tr. 159.) (3) Venireman Hagy: The progecutor asked: “Q. Mrs. Hagy, if you were convinced beyond a rea- sonable doubt of the guilt of the defendant and you - thought that this crime was so abhorrent as to justify the death penalty would you entertain. any conscien- tious scruples about inflicting the death sentence?” “A. I don’t believe in capitol [sic] punishment. “Q. You do not believe you could return a verdict of eapitol [sic] punishment? “A. No sir, I don’t believe in capitol [sic] punish- ment. “THE COURT: You will be excused. ; “LET THE RECORD SHOW MRS. HAGEY [sic] EXCUSED, DOES NOT BELIEVE IN CAPTSOL [sic] PUNISHMENT.” (Tr. 160.) 10 (4) Venireman Stroupe: The prosecutor asked: “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 heen so shocking that _ they would merit the death penalty do you have any - conscientious scruples about capitol [sic] punishment ‘that might prevent you from returning such a verdict [emphasis added}? “A. I think I do [emphasis added}. “MR. WHITTINGTON: I submit, your Honor, that the juror should be excused. “THE COURT: You may be excused. “LET THE RECORD SHOW MRS. STROUPE EXCUSED, AGAINST THE DEATH PENALTY.” (Tr. 171.) (5) Venireman Breland: The prosecutor asked: “Q. Mrs. Breland, if you were convinced that the de- fendant was guilty beyond a reasonable doubt at the end of this trial and that his actions -had been so shocking and abhorent [sic] as to warrant the death penalty do you have any feelings about capitol [sic] | punishment to prevent your returning such a verdict [emphasis added]? “A. Yes, I think I do [emphasis added}. “MR. WHITTINGTON: I submit, your Honor, that Mrs. Breland be excused. “THE COURT: You may be excused. “LET THE RECORD SHOW MRS. BRELAND EXCUSED, DOES NOT BELIEVE IN CAPITOL [sic] PUNISHMENT.” (Tr. 178-179.) It is i, these sey Venirem: Rephan j would inj Stand, 7" and three the jury 11 enireman Adams: The prosecutor ‘asked: ). Mr. Adams, do [you] have any feeling concern- capitol [sic] punishment that would prevent you vake you have any feelings about returning a death ence it you felt beyond a reasonable doubt that the ndant was guilty and that his crime was so bad as ierit the death sentence [emphasis added]? A. No, I don’t believe in capitol [sic] punishment. “THE COURT: You will be excused Mr. Adams. “LET THE RECORD SHOW MR. ADAMS XCUSED, DOES NOT BELIEVE IN CAPITOL sic] PUNISHMENT.” (Tr. 181.) enireman McAdams: The prosecutor asked: ). Mr. McAdams, do you have any conscientious iples against capitol [sic] punishment? A. I don’t have scruples, I have convictions. Q. What are they? A. 1 am against capitol [sic] ishment. i “THE COURT: You will be exeused, Mr. Me- dams. : | “LET THE RECORD SHOW MR. McADAMS XCUSED, AGAINST CAPITOL [sic] PUNISH- LENT.” (Tr. 195-196.) instructive to compare the summary dismissal of ven prospective jurors with the interrogation of ian Rephan, set out in Appendix B, efra. Mr. indicated some uncertainty when asked whether he nfer guilt from the defendant’s failure to take the ‘hereafter ‘he was informed once by the prosecutor ee times by the court that the court would instruct y that it could not hold against the defendant his ‘ 12 failure to take the stand; and the court pressed the specific inquiry: “would you substitute your feelings and your opinion for the instruction of the Court or would you be guided by the Instructions of the Court?” (Tr 168.) “In other words, you would not substitute your opinion or feel- ings against what the Court told you the law was?” (Tr. 169.) Upon Venireman Rephan’s representation that he “would abide by the law” (ibid.), he was qualified as a juror.’ Yet not one of the veniremen who expressed uncer- tainty on the subject of the death penalty was instructed that Arkansas law required him to consider the imposition of that penalty upon one found guilty of the crime of rape; not one was asked—with or without the benefit of such an instruction—whether he could “subordinate his personal views to what he perceived to be his duty to abide by his oath and to obey the law of the State.” Witherspoon v. Illinois, 391 U.S. 510, 514-515 n. 7 (1968). . B. Application of the Witherspoon Rule to This Record We think the conclusion inescapable that the process of selecting the jury which condemned petitioner to die vio- - lated the rule announced in Witherspoon. The holding in the Witherspoon case—w hich this Court expressly. declaked to be “fully.vetroactive” (391 U.S., at 523, n. 22)—inyalidates all but a‘narrow form of death- qualification procedure,’ carefully and meticulously de- scribed in the Court’s opinion.*® That holding invalidates * The defense later struck him peremptorily (Tr. 205). ® The question of the constitutionality of that narrow form of death-qualification was expressly reserved in Witherspoon, a point which the lower courts have altogether ignored. See note 25 infra. % We are not unaware that the lower courts have generally re- fused to give this effect to Witherspoon, a matter with which we _ deal in Appendix C, infra. We, however, here take the Witherspoon 13 the systematic exclusion of prospective jurors scrupled against the death penalty “on any broader basis” (391 U.S., at 522, n. 21) than one which excuses “only veniremen who |” ... [make] unmistakably clear (1) that they would auto- matically vote against imposition of capital punishment without regard to any evidence that might be developed — at the trial of the case before them, or.(2) that their at- titude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” (391 U.S., at 522 n. 21, emphasis in original.) Thus, to _eseape the explicit prohibition of Witherspoon, a practice of excuses for cause on account of scruples against the death penalty must allow a juror to serve unless he “states unambiguously” (391 U.S., at 515-516, n. 9) 6n his voir dire that his attitudes fall within one or the other of two criteria: (1) that his opposition to the death penalty is such that he cannot sit as a fair and: impartial trier of the issue of the defendant’s guilt or innocence (391 U.S., at 622, n. 21), and, in this aspect, he cannot “subordinate his personal views to what he... [perceives] to be his duty. to abide by his oath as ‘a juror and to obey the law of the ~ State” (391 U.S., at 514-515, mn. 7; see also 391.U.S., at |. 515-516, n. 9); or (2) that he is irrevocably committed against and would not consider voting for the death penalty ~— in any case, regardless of the facts and circumstances that might appear at the trial (391 U.S.,, at 522, n. 21), and again, in this aspect, he cannot “subordinate his personal views to what he’. . . [perceives] to be his duty to abide. by his oath as a juror and to obey the law of the State” — (391 'U.S., at 514-515, n. 7). These %enstitutional hles were reaffirmed in similarly precise language in Boulden v. Holman, 394 U.S. 478, 482 (1969): Ques % opinion to mean exactly what it says—an approach that seems fully justified by the obvious care with which that opinion was written. 14 “ .. ‘The most that can be ‘demanded of a venire- man ‘inthis regard,’ we said [in. Witherspoon], ‘ig | that he be willing to consider all of the penalties pro. - vided by state law, and that he not be irrevocably com. mitted, before the trial has begun, to vote against the penalty of death regardless of the facts and cireun- - stances that might emerge in the cour%e of the pro. ceedings. If the voir dire testimony. in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be éarried - out....’ ... We made it clear that ‘{uJnless a venire- man 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.’... .” . : At petitioner Maxwell’s trial, no inquiry was made of any juror excluded because of his views toward capital punishment as to whether those views would affect in any manner or degree his ability to find the defendant guilty. Under Arkansas procedure, as under the Illinois procedure q, considered in Witherspodn, a guilty verdict would not in- “vitably entail the death penalty, and\for this reason (if for no other) “it simply cannot be assumed” that a juror conscientiously opposed to the death penalty would thereby be unfitted to deliberate fairly on the question of guilt or . innocence, Concern for qualifying the jury to decide the « guilt issue—one of the two grounds reserved in Wither- spoon as a possible’ exception to the strictures of that decision—-therefore must be put wholly out of account as a potential justification for what Arkansas has done here.” 11 See note 9 supra. *2,For this reason, we,do not explore .erein the questions of. the validity of this justification or of its limitations if valid. 15 As for the second Witherspoon reservation—exclusion of prospective jurors who “state unambiguously” and thus make “unmistakably clear” that they could never vote for the death penalty.in any case and would decline to follow-. the law, of the State obliging them to consider such a pen. alty—we think it evident that no venireman excused in | petitioner’s case expressed anything approaching such a categorical attitude: . : (1) Wenireman MeQleary was interrogated at the conclusion of the questioning of a series of prospee- tive jurors relative to scruples against the death pen- alty. The first juror in the series was asked whether, if he found the defendant guilty beyond a reasonable doubt and thought a death sentence justified, “he had “any conscientious scruples that prevent your impos- ing such a sentence?” (Tr. 116.) We think that an affirmative answer to this question could not validly support exclusion under Witherspoon, for several rea- , Fe sons. First, although the scruples inquired about are _ described as those that “prevent” a death verdict, it a is not made clear to the juror whether “prevent” means absolutely to preclude, or rather merely to hinder, to hamper, to impede or. to make difficult the return of a death verdict.’* Second, the question is very far from asking whether the juror is committed against a _ death verdict in any and every case, regardless of the ' evidence or circumstances. Third, no effort is made by the prosecutor or the court to explain to the juror that his duty as a juror under the law of Arkansas is to consider imposing the death penalty upon ‘con- “Cf. People vy. Williams, 71 A.C. 638, 654-656, —— Cal. 2d —, —— P. 2d —— (1969). 7 : = : } ‘16 vietion for the erime of rape, and then to inquire whether he could “subordinate his personal views [op capital punishment] to... [thie] duty,” 391 TUS, an $14-515.n. 7. Compare the inquiry pressed in the ease of Venireman Rephan, who indicated that he might holkLagainst the defendant his failure to take the stand, pp. 11-12 supra; Appendix Bs, rfra. But, in any event,-this was not the question ulti mately mked of Venireman MeCleary, Subsequent plirasings of the imjuiry put to jurors following th first and pree@iling MeCleary watered down the dein tion of sernples from those “that prevent sour unpes ing... la death) sentence” to “seéruples about ompe ing the’ death sentenée” [emphasiv added), to “oo conscientious scruples aqamat the death sentence” Un ferring to the previous questions) (emphasis Gdded When a venireman gave less than an unequivocal “ny to thix form of the question, he wae asked: “Do » emertain day conscientions seruples about rn poo the death penlaty [erc)" lemphasie aided). It te follawing this formulation which plainly asks ne mer than whether the venireman: has “general cohy jewrt ote ty the death penalty or... conscientious of reley scruples againet ite infliction” (Witherspoon, 20s at 522. he quoted in Boulden vo Holman, 14 US. 451)—that the prosecutor called out the names of » eral sutcessive Veniremen including MeCleary. Cleary responded “Yes, | am afranud that, 1 de” # was forthwith exeused for cause. (Tr' 1166-117.) (2) Venireman Wade was asked whether. vineed of guilt beyond a reasonable doubt and that’ erume was so abhorrent as to justifs a clenth verow fs “4 ‘M ath 17 the “would... have any con “clentious scruples against the death penalty f° She replionl: “Ll would not sen- tence the death penalty,” and was immediately excused, (Er, 15.) - Wade jx the only one o f the xo on Venire men excused for scruples v. hoxe exelision could argu. ; © Of the Withe, “poon reservation. But we submit that he ails ronwe within shooting ‘lintane r eSpression can- HOt support her exelision a> a juror who nade. ayy. Wistakabhy clear” she would not ¢ diet, First. like “onsider a death ver. thre Wiestion pout to the first Juror in the Viet I, aru series, pra, the vlestion asked of Wade— Pees puting dil hot ildrens the jam ibe b sepia hier conabel WndEd Nom cing “um ‘ fife amd, necessarily, her Sdnces in anu Me for death. This ix particularly wiernune Wade repliod met that «he the denth seni tenen, teperter thewoghe dis nlves ne : amd jet) 6 thonmer’s tine Hasew thee” cdestomet els emtiges 41) that thy , inntees of state law an! to vt henner TD rstormdeng 5 is Neewssars te a jrteapert formulation of “the teers cores tettet eral eptiers teeth Teveelvend beeve beeen Chereng! ‘= Sorth vs Velewm, COT 1 New COS Mow Bisctes & Califor’ “rT bene Mee. > Maw Maewy \, Caistor mew, « r ty V. are Mie Verna 6 Culeforwed. 094 fr) No “OR? Maw ed. me 0 OC lator mee, if r ty NC wl Miw Mubonson « Ua fermen, 08 T Bt New O80 Mew Aracdttoe « Funnn ttt i* Na OO; Vw 4i 4 is vous, 097 pare. Ne i aMw Sewell tml Rewctns ‘ W eek emeté “a oof ree Nee «6G Min Pr wae + terre, Of t Xe ob Wie Murs! 7 fi arenes af ' Xe? Ga ! beet © C'alefermod, @8 ae “et Xe '% re - Wi . * ae Aedva ss Pachineion «87 Dot No [33 Mew Mell Vv tae tice om. ) 1 Tet Nee sete VE ow Pawwcte © Avwlus iv ay tm, Ne T?2 Vo ve Uurntane ‘4 ae (VT feet Ne OD Mew ° i tid, tle © Warewrept? MIP Ble New él san J elaes detwe habeas « wipes prfewe Coline *pietregd -theee beets of te hast ef Ohee eeertyee Oheate G4) tteteetee of D leer ule » deatt ned >i, ‘*si * Vileon, N 1 cal Ne, 63 tha tees eelend acs Ue tate fee b 4 * a . Waeet of @ veterans er ted we ‘t al «. Cwleforee, 6 a wr tt Maw y sn t Tie . ; > Wave get af guages eh, ~~ ? oe? teens wt te by ‘! ye 4 het it « goeh last teeene tts Mowdenw 6 tlehemae THA IN gk tee the . the dhewth pevvelts t « Stwel aml anneal punmtanecut phe cbt © Dee hee Dewttth ated Peer teeth Vteetedeeente ' , . | . 31 Fe treated in the opinions below: (2) that this case has already teen fully briefed and argued, pod set to be reargued; and (3) that the Conyt has boon favored by briefing and argunent diepein on behalf of the State o Calfornia as well as the State of Arkansas, in de lense of thferr common” pragtions The tone revpurres| to bring another ense thus te the point of decision would only delay Peseltion of the iestion of the con stitutionalits ant they CoMmenly tsed enpetal trial prac trees whook petitioner ehallenpres, hiring Which peypiod MW delay further constitutionalla tssailable onpital trials Wohd baave been hind i4) thn the other hand. if the }Tesent onmse is ilis posed of solely Om the Wether spy groumd, the Court might deeude ty deelitee review im ‘the other from ding CASES | raising the eqite “lions om Whieh eors rar; Whe cranted here” Work All deterones, such a des sum could .» @ omy be shar fers val is ot teal leks bieveredleras af litsetesan ° life. Por, still mors than when the Court fared to hear these ytiations in 1 Yotnber of (OS. larate: teeny beets sof liye depoome mrwsbately amd totals tap ony thes 2 Pavwgeget nid MD ‘ore “eoltiticen bow thee Supreme Court anf \. Vateal Stas, Thise ts seen Doe paattwe, Withien the hast vemr, the ? whist, iets of 7 evernlnd the Stafes hwsange the a tates! death row he el MT the Nation hive ty Ny foul thy Pewee foulonnl vutiatity > “2 \ye : Tyetial contentions Cw “federal court of appeals . e e ~ . ss e Q ; Vid wuts Y Bre Xe . PT? Ma A at Dias vod > . Le + J s \in’’ Ny ae | Tits te hewt -¢ shel - chotuds P anal Seeit awaitooe ye vote F tpeeee Ps ; Aedes OP Cal NEGIMA TH Gat Ope ot tno A at IGS) by 's whee lersl. sent teent maar t alifurtiae Vie spel tt wewebnos ire bea eal wate ¥ " e* re | orb oe 4 “ee \, 4 ry ' le lh, YT how te st tteclarals carbelenet tue . Phiet ihe Puy rh tout : ons . ° *. . ad s st riaav ing ft (im socdhedit thy evatite Tae? . | i ; ' ‘? Thr? le Ti ' * ‘ i , i iti ; lern ile nt? | " ii ; ; ’ , { ‘ ttee? ‘? ‘ ’ ’ ; Ht ’ i nt ’ \\ ‘33 grounds, the Coupt ond OXwet to las te rest any substantial number of these death cases. But. the Witherspoon dewision has heen ‘so badly crippled and contorted by ungenerous ‘lower eourt Constructions, whi ly linve inmvokedl se tony ditt ring les joes te de feat its efleetive THplementation, that the restoration ot Witherspoon te constitutional viger could not eon eevably be worked by ams bevldinnge possible on the present reeord VW. desentbe in \pepremedin ta two how With, reper # has fered ov the lower courts, As we have pomted ont in Part 1. supra, several of the test sigeaeftesnd chen trities Voked te defont fare net mvelved In petitioner MaxQwell’s ease, mtd their prey TTT TEN ETO wes vated that thei correction by this (Court would Peepuite cutters reaticon cof He TOMS comes eMbiliting dierig com den pent terns “and puitterns at apyariinnte heneoning Meanwhile, ne UW therspoor is connintontts eometrictod by the state ayepe Hate egurts, Have of-exeeufion tased on thetspoon claves are Trereren tinny gage ttn Pesisinarls ditty alt fer mong ite VON onses Where, te os TPewptiemtls geet thee “ifiintion, there exjet. " trangeF iat of the # re eAaMINATION that oan he MAT tbe j noel trithele thie legeman ‘ssf u jruent eeoney tert benny j" t; heety perreee fae mw omy rat nt | + Verret heey sluts . Mingle. in 4 ; ‘ An? apepereerienbele Mistibey ff cleomth expen whe re atnes Af Ver iti hinwe breve nm oor ments al on thy lettaes of -the TSM Ihe “ hry eenteal t; thy: q seer? }, iw Til tontys ' Mins ue it. Mi Valle WW thewsy er CLM Ota dA . . , tte * t ot tvn foe ~>w no otf 6 weed ines 1 * P* ve wees ' Vow / oe iu Phen \ 1s Mow sheets 4 Siv \! >) wi. “1 080° low “— r overte ree they ' wert LT tate lertuhs ’ Chen tule et . ‘/ 74 ; oes 1 ; " «! ‘ope %. wheat ’ shee ert “af * . * * 4. CONCLUSION Petitioner Maxwell's death. sentence is aval under ae r, aa J ie. 117] () Mire Kanada, of you were corn imnced be. da reasonable doubt at the eonehusion ‘of this trial that defendant was guilty, that vou theught a death sen co Wie justifies, wold von have any ror secre ntiotis \ijles boot DU Ne thy slenth sentence? \ No SiT 4 ’ Mr (jroom, vou ohiave beard the Question 1 just: whole Ven entertain any such eonserentious seruples inst the death sentenes od \ No a: a e ’ Mr Martin. do von ents rtarm ane sneh seruple | fe 1. No ; Y Mr. Beavers? ; \ Nu, fined ot this proine vor eTtertornn: “pages COnSsSCHOnMELOUS seruple: talvovut ‘ s jOsine the cemth. pemalty 2a Q. Mr. Rima? A. No. Q. Mr. Met ‘leary? A. Yes. Tam afraid I do. : QT submit, your Honor, that) Mr: MeCleary should i. lie excused, | 2 TH COURT: Alright, Maro MeCleary LET THE RECORD SHOW L EXCUSED, \GALNS? DEATILSENTENCE. Pr LOO) MRO WHEEPTING TON: ©: Mir: Wace, iho vou Were conv ineed hevond il reason able doubt of the guilt of the defendant and vou Melt the erime he committed was proved beyond a reasonable dosh and Was so abhorent-as to justify the death penalty woul you havevany conseentious sernuples tivaiynst the deat! - | penalty ! Ao 1 would not sentenee the death penalty Vi WHEELING Pan | sulimit, your tbhorior, that Vives Wide should be exeused LIT THE RECORD SHOW MERS. WADE EXEL SED. DOES NOTSBBLIEVE IN THE DEATH PEN LY ’ Tr. 160) VERO WHILE RING TON “ ) ane 2 i) \ly Tlagry, if Vatll We re econvineed hevonel itorenes abl clovualit iit thy iruaytt i! thre slofencdant ane “ thay that this ermine wa Oo abhorrent ae te pasts the eal prenall vould von entertain ams eonserentiou eruy ‘about onfletine the cheath seontenes : \ | clevny't liolieve it) crpeitesl reer bine rif 3 ¢ je - 3a _—_—— . ~~ (. You do not. believe you could return a verdict of capitol pumshment ’ ; A. ‘No sir, | don't believe in capitol punishment. THE COURT: You will be excused. LET THE SRIECORD SHOW MRS. HAGERY- DN CUSED, DOES NOT. BELIEVE IN CAPITOL PI NISH MENT, oe . Tr 171) MR WHPTING TON: ji xd ‘Q. Mrs! Stroupe, Co | | 2s ee kt D EP von were convinced beyond a reasonable doubt ithe end of this trial that the defendant was guilty and that his actions had heen se shocking ‘that they would Wert the death penalty de Jou have any cOnSClentious Hiples about capitol Punishment that Might prevent you rom returning: sueh ae verdict? > \. TF think Tb de Hots Mh. \ HIT TINGTON: | submit, Vout Honor, that the hor should be excised. , Ree ee ee ei | oh THE COURT: You may he MNetised ' EET OTHE RECORD SHOW MRS. STROUPE. bey SOSED. AGAINST PILE DIEATIE PreN VLE) ‘ WS) MRO WHIPTINGTON . Mh Breland, if vou ws re eoumvineed that the defe n vay onilty hevene 4h Prensonmable doubt ag the. end . trig] ‘nel that bys ite Phan 1 ul breve Tt ty. hocking horent ws te warrant the “lenth Penalty, do von a «(itn beolin lvoe cripertaal pretnas Ninn nt fe pepe vent Turning wueh [Pr pay a Verdiet? A. Yes, I think I do. MR. WHITTINGTON: I submit, your Honor, that Mrs. Breland be excused. THE COURT: You may be excused. _ LET THE RECORD SHOW MRS. BRELAND EX. CUSED, DOES NOT BELIEVE IN CAPITOL PUNISH. MENT. [Tr. 181] MR. WHITTINGTON: ' Q. Mr. Adams, do have any feeling concerning capitol 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 . # arid that his crime was so bad as to merit the death sen. “ tence? | A. No, I don’t believe in capbiel ponichaitink THE COURT: You will be excused Mr. Adams. LET THE RECORD SHOW MR. ADAMS EXCUSED, DOES NOT BELIEVE IN CAPITOL PUNISHMENT. (Tr. 195] MR. WHITTINGTON: Q. Mr. McAdams, do you have any conscientious seru. ples against capitol punishment? A. I don’t have scruples, I have convictions. (Tr. 196] Q. What are they? A. I am against capitol punishment. THE COURT: You wil be excused, Mr. MeAdams. _ LET THE RECORD SHOW MR. McADAMS EX- CUSED, AGAINST CAPITOL PUNISHMENT. — im _ APPENDIX B ‘Voir Dire Examination of Venireman Rephan (Tr. 164) MR. WHITTINGTON: Q. Mr. Rephan, . . . Mr. Mercer (defense counsel}: . (Tr. 166) Q. The Court will so instruct you if you are selected as a juror that it is the defendant’s right not to take the witness stand if he so desires. Would the fact that. this defendant would not take the stand as he so — desires tend to cause you to believe that he might have something. to hide, and therefore might be guilty? _A. I don’t know how to answer that. ~ a Q. The Court will ‘instruct you that the defendant is presumed innocent until proven guilty beyond a reason- — able doubt and that this presumption follows him through- out the trial. Now, say that the defendant did not desire to take the witness stand on ‘his behalf, would this fact — ‘tend to cause you to give more credibility to the State’s testimony and evidence and raise a presumption in your — mind that the defendant might have something to hide! A. It might. I really don’t know, I can’t say. THE COURT: That is the first time- that point has (Tr. 167] been raised here, as to whether or not the defen- dant might take the stand. I will say this to all the jurors, each of you at all times at arriving at a verdict base that verdict solely upon the law and will you be governed by the law as given to you by the Court? Will each one of you do that? If there isn’t anyone who will do that I want to know it now. And using the law as given to you by the - 6a of - Court and the evidence from the witness stand, will you base your verdict upon those two things, the law and the evidence? In other words, Mr. Rephan, if it becomes neces. _ sary and the Court does instruct you on whether or not | . the defendant takes the witness stand, will you in arriy. ing at a verdict base your decision upon that law and not any opinion that you mares A. Yes sir. THE COURT: Proceed Mr. Mercer. Q. You are saying you would not hold this against him! A. There is a possibility that I might, that is hard to say. Q. There is a possibility that it might? A. That is hard to say. ~ Q. Pass the witness. MR. WHITTINGTON: . Q. Mr. Rephan, if you are instructed by the Court as to the law of this case and the Court told you that you could not maké anything from the fact that someone did not take the stand would you be able to follow that in- struction and would you be able to put out of your mind any personal [Tr. 168] feeling that you might have, or any conclusion that you might draw from that act, and abide .by that instruction given to you by the Court? A. Yes sir. Q. Do you feel you could give the defendant a fair trial! A. I do. ‘Q. You don’t have any prejudices that- ‘might affect your ability to give this defendant a fair trial? A. I don’t think Ido. | Q. You would do your utmost to give him a fair trial! A. Yes sir: 7a THE COURT: Mr. Rephan, you stated there that you hought you could do that. It it dev elops i in this case and ‘ he Court would give an instruction whether or not the de- endant does take the stand, which if the defendant does sot take the stand the Court will give an instruction, would vou substitute your feelings and your opinion for the in- traction of the Court ‘or would you be guided by the In- tructions of the Court? : A. L would follow the instructions of the Court. I want you to be sure of that, Mr. Rephan. This-is very important as to whether or not at this time you feel if the jefendant does not take the stand if you feel you might be just a little bias or prejudice against him because he lidn’t take the standt I want you to be sure about that. . - (Tr. 169] A. I can’t be sure about it. THE COURT: You would be the only one who would know, I wouldn't. Q. 1 would abide by the law I am sure. THE COURT: In other words, you would not substitute yout opinion or feelings against what the Court told you the law was? A No sir. ee ee ren a Soe eer 8a o APPENDIX C ~ Treatment of Witherspoon v. Illinois . by the Lower Courts — This appendix includes all of the cases we have found in which Witherspoon has been = by the lower courts.’ A. Decisions setting aside death sentences. The California and Georgia Supreme Courts have each set dside a pane Pe of death sentences under Witherspoon, and a few other state courts have set aside a few. In each case, the death sentence was not definitively ‘excluded by -the court’s decision; rather a new trial was ordered either -of the issue of penalty alone (as in California and Georgia) or of the issues of guilt and penalty (as in Louisiana and Texas). It is interesting to note that the Georgia Supreme ' Excepting only cases involving sentences less than death where a lower court has done no more than any to note that Wither- spoon does not affect non-death cases. 2.4 number of decisions are reported in which federal habeas corpus courts have remanded death cases to the state courts for ini- tial determination of a Witherspoon claim. Brent v. White, 39 F. 2d 503 (5th Cir. 1968) ; Powers v. Hauck, 399 F. 2d 322 (ith. Cir. 1968); Irving v. Breazeale, 402 F. 2d 23) (Sth Cir. 1968); Garrison v. Patterson, 405 F. 2d 696 (10th Cir. 1969). Cf. Shinall v. Breazeale, 404 F. 2d 785 (5th Cir. 1968) (remand to the dis trict court). In the only ‘one of those cases with which we are familiar, the State court thereafter rejected the Witherspoon ground. Brent v. White, 19th Judicial District Ct. of La., Crim Div., No. 47,265, decided. July 31, 1969. In three cases known to us, federal courts have actually vacated death sentences under Witherspoon. Spencer v. Beto, 398 F. 2 500 (5th Cir. 1968); Williams v. Dutton, 400 F. 2d 797 (Sth Cir 1968) ; Rideau v. White, E.D. La., _ _— Div., Mise. No. 970, decided May 12, 1969. _ = — = aD & 9a Court has remanded for retrials as to penalty alone—thus naugurating a system of separate trials of the. penalty- issue to avoid either definitive invalidation of a death sen- tence or an entirely new trial under Witherspoon—although that court has steadfastly maintained that separate pen- alty proceedings are impermissible under Georgia law whenever confronted with constitutional challenges to the single-verdict capital trial such as that made herein by petitioner Maxwell. See Miller v. State, 224 Ga. 627, 163 S.E. 2d 730 (1968). ne - In each decision vacating a death sentence and remand- ing for a new trial, the court has directed that jurors on retrial be death-qualified by the standards whose consti- tutionality was reserved in Witherspoon. Thus, Wither- spoon has invariably been. incorrectly. read as validating the forms of death-qualification practice which it did not expressly invalidate—or, at the least, the state courts have ~ proved absolutely unwilling to reconsider the validity of those forms in’ light of the logic and reasoning of the Witherspoon opinion.* See: .. | "2 ~ In re Anderson and Saterfield, 69 Cal. 2d 613, 73 Cal. Rptr. 21, 446 P. 2d 117 (1968) People v. Risenhoover, 70 Adv. Cal. 15, 73 Cal. Rptr. 553, 447 P. 2d 925 (1968) | People v. Bradford, 70 Adv. Cal. 347, 74 Cal. Rptr. 726, 450 P. 2d 46 (1969) : . *See Petition for a Writ of ‘Certiorari, Forcella and Funicello v. New Jersey, O.T. 1969, No. 18 Misc., pp. 69-74; Petition for a ~ Writ of Certiorari, Anderson et al. v. California, O.T: 1969, No. 60 Mise, pp. 52-57; and Mr. Justice Peters’ dissenting opinion in People v. Tolbert, 70 Adv. Cal. 844, 867, 76 Cal. Rptr. 445, 458, 452 P. 2d 661, 674 (1969). ) ; 10a People v. Sears; 70 Adv. Cal. 485,.74 Cal. Rptr. - 872, 450 P. 2d 248 (1969) rae In ve Mathis, 70 Adv. Cal. 501, 74 Cal. Rptr. 914, 450 P. 2d 296 (1969) _ People v. Teale,. 70 Ady. Cal. 582, 75 Cal. Rptr. ' -172,.450 P. 2d 564 (1969) . | People v. Fain, 70 Adv. Cal. 625, 75 Cal. Rptr. 633, 451 P. 2d 65 (1969) ~ People v. Morse, 70 Adv. Cal. 762, 76 Cal Rptr. 391, 452 P. 2d 607 (1969) People v. Osuna and Gorman, 70 Adv. Cal. 811, 76 Cal: Rptr. 462, 452 P. 2d 678 (1969) People ‘v. Goodridge, 70 Adv. Cal. 878, 76 Cal. — Rptr. 421, 452 P. 2d 637 (1969) In re Eli, 71 Adv. Cal. 227, 77 ‘Cal. Rptr. 608, 454 P. 2d 337 (1969) ) People v. O’Brien, 71 Adv. Cal. 415, 78 Cal. Rptr. 202, 455 P. 2d 138 (1969) © People v. Vaughn, 71 Adv. Cal. 423, 78 Cal. Rptr. » 186, 455 P. 2d 122 (1969) 7 People v. Quicke, 71 Adv. Cal. 521, 78 Cal. Rpt. 683, 455 P. 2d 787 (1969) . In re Seiterle, 71 Adv. Cal. 722, 18 Cal. 7. 857, 456 P. 2d 129 (1969) People v. Ketchel, 71 Adv. Cal. 659, 79 Cal. Rptr. 92, 456 P. 2d 660 (1969) People v. Williams, 71 Adv. Cal. 637; 79 Cal. Rptr. ° 65, 456 P. 2d 633 (1969) : People v. Schader, 71 Adv. Cal. 797, —— Cal. Rot. , . P. 2d —— (1969) | People v. Stanworth,.71 Adv. Cal. 858, — Cal _ Rptr. —, P. 2d —— (1969)>— ) People v. Gardner, 71 Adv. Cal. 882, Cal. Rptr. —, —— P. 2d — (1969) a lla. In Re Hillery, 71 Adv. Cal. 896, —— Cal. Rptr. - P. 24 —— (1969) Miller v. State, 224 Ga. 627, 163 S.E. 2d 730 (1968) Dixon v. State, 224 Ga. 636, 163 S.E. 2d 737 (1968) ‘Massey v. Smith, 224 Ga. 721, 164 S.E. 2d 78 (1968) ae | Arkwright v. Smith, 224 Ga. 764, 164°S.E. 2d 796 (1968) ) eae} - Williams v. Smith, 224 Ga. 800, 164 S.E. 2d 798 (1968) rah tee: ie Jones v. State, 224 Ga. 782, 164 S.E. 2d 831 (1968) Alexander y. State, —— Ga. ——, 168 S.E. 24 315 (1969) | ) : aris State v. Turner, 220 So. 2d 67 (La. 1969) State v. Benjamin, 222 So. 2d 853 (La. 1969) Rouse v. State, —— Miss. ——, 222 So. 2d 145 (1969) I State v. Spence, 274 N.C. 536, 164 S.E. 2d 593 - (1968) | Ellison y. State, 432 S.W. 2d 955 (Tex. Cr. App. 1968) 7 3 ‘J Ex parte Bryan, 434 S.W. 2d 123 (Tex. Cr. App. 1968)* | B. Decisions refusing to set aside death sentences In all cases found ‘other than those just cited, lower courts have discovered some means to avoid Witherspoon. Weattempt below to categorize the rules and doctrines in avoidance. hat | es ‘See also Evans v. State, 430 SAW. 2d 502 (Tex. Cr. App. 1968); reversing for failure of the trial court to have voir dire examina- hy transcribed on request; Aaron v. State, 283 Ala. 52, 214 So. -d 327 (1968), remanding for consideration of the Witherspoon sue by the trial court. - , & 12a 1. Doctrines distinguishing or “construing” Wither. spoon: . a. The “different atmosphere” doctrine. The With. erspoon decision is said to-rest entirely on the fact _ that the trial judge in that case rushed to sweep the . jury of. conscientious objectors. , Cases in which the presiding judge is more deliberate on the voir dire , albeit equally effective in excluding the same venire. men—present a “different atmosphere.” In cases with a “different atmosphere,” the precise, carefully artion: lated standards whose elaboration comprises the bulk - of the Witherspoon opinion. are said to be simply “not binding” on state ¢«ourts. People v. Speck, 41 Il 2d 177, 227, 242 NE. 2d 208 (1968). See also People v. : Mallett, —— Ill. 24 ——, 244, N.E. 2d 129 (1969); People v. Moore, 42 UW. 2d 73, 246 NK. 2d 299 (1969): Jaggers v. Commonwealth, 489 S.W.-2d 580 (Ky. 1968): State v. Mathis, 52 NuJ. 238, 245 A. 2d 20 (1968) ; Brent v. White; 19th Judicial District Ct. of La., Crim. Div, + No. 47,265, decided July 31, 1969. C/. Bell vy, Patterson, 402 F. 24 394 (10th Cir, 1968). b. The “different statute” doctrine. The highest courts of three States have purported to distinguish Witherspoon in whole or in part upon the ground that their state statutes differ from Illinois’ in that their statutes disqualify only jurors whose scruples would prevent them from. finding the defendant guilty. Wilson v. State, 225 So. 2d 321, (Fla. 1969); Williams v. State; Fla. Sup. Ct., No. 37,316, decided April 2 1969; Howard vy. State, Nev. ——, 446 P. 2d 16 (1968) (dictum); Koonce v. State, Okla. Ct. Crim App., No. A-14,826, decided May 21, 1969. These stat: 13a utes are, of course, of the sort which the : Wither- spoon opinion noted are sometimes not construed as meaning what they say (S91 U.S, at 513-514, n. 5,. citing Florida and Nevada decisions); and, in fact, ‘in all three States the statutes have been consistently ~ pead—both before and after the explanation that they squared with Witherspoon because directed to “guilt”- qualification—as allowing disqualification of jurors: whose ‘scruples would affect only their votes on pen- ~ alty, not guilt. Piccott ¥. State, 116 So, 2d 626 (Fla. 1959) ; Pitts v, State, 185 So, 2d 164 (Fla. 1966) ; Sims v. State, 184 So. 2d 217 (Fla. Dist. Ct. App. 1966) ;- and see the voir dire practice reflected in Abram vo ' State, 216 So, 2d 498 (Fla. Dist. Ct. App. 1968). State v. Williams, 5 Nev, 271, 257 Pac, G19 (1927) ; Spillers V. State, —— Nev. ——, 436 P. 2d 18 (1968) ; Walker coe Stafe, —— Nev. —, 455 P. 2d 34 (1969), And see _ the exclusions sustained in the Noonce case itself. & The doctrine that Witherspoon could not have been intended to deprive the prosecution of an™im- partial” jury on the question of penalty; that a juror’s “impartiality” must appear affirmatively; therefore, that exclusion of equivocal veniremen is proper. This | doctrine, which stands the “unmistakably clear” for- mulation of Witherspoon on its head, began with State _Y. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968). See also. ‘Williams v. State, Fla. Sup. Ct. No. 37,316, decided April 23, 1969; Campbell v. State, Fla, Sup. Ct, No. 35,022, desided June 11, 1969; State vy. Atkinson, —— N.C, ——, 167 S.E. 2d 241 (1968); Pittman v. State, $84 SW. 2d 352 (Tex. Cr. App. 1968); ef. Davis v. State, —— Ark: , 440 SW. 2d 244 (1969) ; Koonce V. State, Okla. Ct. Crim. App., No. A-14,826, decided ld4a . May 21, 1969. But see People v. Chacon, -— Cal. 24 anim, $3 Cal. Rptr. 10, 447 P. 2d 106 (1968) ; People v. Osuna and Gorman, supra. a The doctrine construing Witherspoon to permit disqualification of a-juror who would not vote for the death penalty in the particular case. being trigd, al. though he could vote for death in another sort of case, See Jaggers v: Commonwealth, 439 SW, 2d 580 (Ky, 1968); State v.. Forcella, 52 N.J, 263, 245 A, 2d 18! (1968); State v. Peele, 274 N.C. 106, 161 SL. 2d Ses (1968); Pittman v. State, 434 S.W..2d 352 (Tex. Cr. ‘App. 1968); Smith v. State, 437 SW. 2d 835 (Tex. Cr. App. 1968). But see 391 U.S., at 522 n, 21 We. And the Maryland Court of Special Appeals has suggested that Witherspoon may have no appli- -cation in that State, because a capital jury in Mary. land merely recommends and does not impose the death sentence, Veney vy. State, 251 Md. 182, 246 A, 2d (1968). But see 391 U.S,, at 51S, n. 12; éd., at 522. 2. Methods of interpreting a voir dire transcrip! so w to avoid Witherspoon: a. Distinguishing Witherspoon if the tiial judy conducted any sort of inquiry going beyond. gener opposition to capital punishment. The nature of the inquiry and of the ‘juror’s response are in this view ap arently immaterial. Segura v. Patterson, 4 402 Fb 249 (10th Cir. 1968); People v, Mallett, —— Ul. & ——, 244 N.E. 2d 129 (1969); State.v. Pructt, 18 Obe St. 2d- 167, 248 N.E. 2d 605 (1969) (semble). b. According deference to the trial court's interpre tation of a venireman's responses in ruling on che lia , lenges for cause, This constructional ‘eanon—proper enough in its place, of course—is consistently applied to the construction of voir dire proceedings conducted — prior to the date of Witherspoon, at a time when the trial judge would not in fact have been using proper W itherspoon standards. The court that applies the canon usually does so in an opinion that retroac tively rewrites the pre-Watherspoon law of the State as con- sistent with Witherspoon, State vy. Mathis, 52 N.J. * 938, 245 A. 2d 20 (1968); State v. Forcella, 52 NJ. 263, 245 A. 2d 181 (1968); Pittman vy. State, 434 S.W. 2d 352 (Tex. Cr. App. 1968); State vy. Aiken, Wash. 2d ——, 452 P. 2d 232 (1969). ¢. Observing that “ho particular form of words” is necessary to satisfy Witherspoon. In: practice, this “means that most any fori of words, however far from the mark, will ‘satisfy Witherspoon. People v. Speck, 41 Ll. 2d 177, 242 N.E. 2d 208 (1968); Koonce vy. State, . Okla, Ct. Crim, App, No. A-14,826, eons May 21,, 1969; Pittman vy. State, 434 B.W. 2d 352 (Tex. Cr. App. 1968); State vy. Aiken, —~ Wash. 2d ——, 452 P. 2d 232 (1969); ef. People v. Varnum, 70 Adv. Cal. 514, 75 Cal. Rptr. 16), 450 P. 2d 533 (1969). 3. Methods of avoiding W itherspoon whe ‘re jurors were vamistakably excluded in violation of the “rule of that decision: = a. The determination that headin only a few jurors | _ were unconstitutionally excluded, the requisite repre- sentative quality of the jury was not -destroyed, Bell v. Patterson, 402 F. 2d 394 (10th Cir. 1968); State v. Mathis, 52 N.J.* 238, 245 A. 2d 20 (1968); State v. Wigglesworth, 18 Ohio St; 2d 171, 248 N.E. 2d 607 16a (1969) (alternative ground, semble); Scott y. State, 434 S.W. 2d 678 (Tex. Cr. App. 1968). Contra: People v. Fain, 70 Ady. Cal. 625, 75 Cal. Rptr. 633, 451 P, 24 65°(1969) ; Miller v. State, 224 Ga. 627, 163 S.E. 24 739 (1968); pp. 22-24 supra, . wit b. The observation that unexhausted prosecutorial peremptorics outnumbered unconstitutionally excluded . veniremen, Announced as a “releVant makeweight” in State v. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968), this consideration frequently appears as an alternative ground of decision.. Campbell v. State, Fla. Sup. Ct, No. 35,622, decided June 11, 1969; People x, Speck, 41 Ill. 2d 177, 242 N.K, 2d 208 (1968) ; People vy. Mallett, — Ill. 2d —, 244 N.E. 2d 129 (1969); People v, Moore, 42 Ill. 2d 73, 246 N.E. 2d 299 (1969) ; State v, Wigglesworth, 18 Ohio St. 2d 171, 248 N.K. 2d 007 - (1969); Scott v. State, 434 S.W. 2d 678 (‘Tex. Cr. App. 1968). Exeept in the California Supreme Court, /s re Anderson, 69 Cal. 2d 613, 73 Cal. Rptr. 21, 446 P.M 117 (1968); People v. Sears, 70 Ady. Cal. 485, 74 Cal Rptr. 782, 450 P. 2d 248 (1969), no notice seems to be taken of the palpable unconstitutionality of a cov. clusive judicial presumption that the prosecutor will systematically employ his peremptories to exclude - from the jury a class of persons that this Court has held cannot be excluded. But see Swain vy. Alabama, 380 U.S. 202, 222-228 (1965). e. The observation that defense counsel did not o- ject, or did not inquire further regarding the excluded jurors’ attitudes,-or did not express his dissatisfaction with the jury by exhausting his own peremptorie. This, also, is usually an alternative ground of decision State vy. Peele, 274 N.C. 106, 161 S.K. 2d 568° (1968); 17a ‘State v. Wigglesworth, 18 Ohio St. 2d 171, 248 N.E. 2d 607 (1969); Pittman y. State, 434 S.W. 2d 352 (Tex. . Cr. App. 1968) ; Scott v. State, 434 S.W. 2d 678 (Tex. Cr. App. 1968). Contra: the Anderson and Sears cases . cited in the preceding paragraph. d. Miscellaneous procedural grounds: State v..- Crook, 221 So. 2d 475 (La. 1969); Duisen vy. State, 441 S.W. 2d 688 (Mo. 1968) ; Baker v. State, 225 So. 2d 327 (Fla. 1969) ; Lokos v. State, Ala. ——, 221 So. 2d . 689 (1969). eee 4. Decisions articulating relatively unimpeachable With- erspoon standards but manifestly misapplying them: Segura v. Patterson, 402 F, 2d 249 (10th Cir. 1968) ; State v. Atkinson, N.C. , 167 S.E. 2d 241 (1969). A common ground of misconstruction of the voir dire resides in taking literally a juror who says that his scruples will affect his ability to return a “guilty” verdict, although, in the context of the applicable state law, verdict forms and/or coir dire questioning, a “guilty” verdiet means an unquali- fed guilty verdict—that is, a vote for the death penalty. See Wilson v, State, 225 So. 2d 321 (Fla. 1969); Furman v: State, Ga. ——, 167 S.E. 2d 628 (1969); cf. State’ v. Forcella, 52 N.J. 263, 245 A. 2d°181 (1968); Veney v. State, 251 Md. 182, 246 A. 2d 568 (1968). It should be noted that even the California Supreme Court, which has given the most generous reception to Witherspoon of any fate court, permits disqualification of veniremen for «ruples without instructing them that state law requires them as jurors to consider the death penalty, and then inquiring whether they are able to subordinate their seru- ples to this duty. People v. Beivelman, 70 Adv. Cal. 37,. 3 Cal. Rptr. 521, 447 P. 2d 913 (1968); People v. Durham, 18a 70 Ady. Cal. 179,74 Cal. Rptr. 262, 449 P. 2d 198 (1969); People vy. Hill, 70 Ady. Cal. 723, 76 Cal. Rptr. 225, 452 P. 2d 329 (1969); People v. Varnum, 70 ‘Ady. Cal. 514, 75 Cal, Rptr. 161, 450 P. 2d 553 (1969) ; People v. MeGautha and Wilkinson, 70 Adv. Cal. 823, 76 Cal. Rpt r. 434, 452 P. 24 i 650 (1969) ;-People v. Tolbert, 70. Ady. Cal. S44, 76 Cal. Rptr. 445, 452 P. 2d 661 (1969); People v. Coogler, 71 Ady, Cal. 165, 77 Cal. Rptr. 790, 454 P. 2d G86 (1969); People v. Nye, 71 Ady. Cal. 376, 78 Cal. Rptr. 467, 455 P. 2d 395 (1969) (defense counsel’s interrogation, in addition, was unduly restricted); People v. Miller, 71 Ady. Cal. 477, 78 Cal. Rptr. 449, 455 P. 2d 377 (1969). _ 5. Opaque decisions: In. these cases refusing to vacate - death sentences it is impossible to evaluate the application made of Witherspoon, since not enough appears from the respective opinions to appraise the courts’ characterization of the voir dire (or relevant parts of it) as consistent with | Witherspoon standards. Sims v. Eyman, 405 F, 2d 489 (9th Cir. 1969) ; Pe ople v. Mabry, 71 Adv. Cal. 448, 78 Cal. Rptr. 655, 455 P. 2d 759 (1969); People v. Pike, 71 Adv. Cal. 64, 78 Cal. Rptr. 672, 455 P: 2d 776 (1969); Whisman v. ag 224 Ga. 793, 164 S.E. 2d 719 (1968); State v. Hudson, 221 So, 2d 484 (La. 1969); Walker v. State, —— Nev. —, 455 P. 2d 34 (1969) ; State v. Crampton, 18’Ohio St. 2d 182, 248 N.E. 2d 614 (1969) ; Quintana v. State, 441 S.W. 2d 191 | (Tex. Cr. App. 1969); State v. Smith, —~ Wash. 24 —, 446 P. 2d 571 (1968). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1441%3A11. Public record. Not legal advice.