Record and brief — Estelle v. Moore

Office - Supreme Court, vs.

81-2048 FILED

APR 29 1982

NO. 81-____

ALEXANDER L. STEVAS

CLERK

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1981

W.J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

Vv.

MARK MILTON MOORE,

Respondent

Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Fifth Circuit

MARK WHITE GILBERT J. PENA

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

JOHN W. FAINTER, JR.

First Assistant LESLIE A. BENITEZ

Attorney General Assistant Attorney General

RICHARD E. GRAY, III P.O. Box 12548, Capitol Station

Executive Assistant Austin, Texas 78711

Attorney General (512) 475-3281

Attorneys For Petitioner

II.

&

QUESTIONS PRESENTED

Does Davis v. Georgia foreclose the possibility

that Witherspoon v. Illinois error can be harmless

beyond a reasonable doubt?

Is the exclusion of a venireman in violation of the

doctrine of Witherspoon v. Illinois harmless

beyond a reasonable doubt where the state

demonstrates that it would have peremptorily ex-

cused the venireman had he not been excused for

cause?

-ii-

TABLE OF CONTENTS

Cases Page

QUESTIONS PRESENTED ..................... i

INDEX OF AUTORITIES ..................... iii

OPINIONS BELOW ............... ccc eee eceees l

EE Pe ae oak wa) ood a ind ba waned 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................... 2

STATEMENT OF THECASE .................. 3

REASONS FOR GRANTING THE WRIT......... 3

ARGUMENT

I. There are special and important reasons

for granting the writ .................... 4

II. Davis v. Georgia does not foreclose the

possibility that Witherspoon v. Illinois

error can be harmless beyond a

reasonable doubt .....................-. 4

III. The exclusion of a venireman in violation of

the doctrine of Witherspoon v. Illinois is

harmless beyond a reasonable doubt where

the state demonstrates that it would have

peremptorily excused the venireman had

he not been excused forcause ............. 5

-ili-

INDEX OF AUTHORITIES

Cases Page

Alderman v. Austin, 663 F.2d 558

ESE oi Nientorgsa a rR 5

Burns v. Estelle, 592 F.2d 1297

(5th Cir. 1979) adhered to en banc,

626 F.2d 396 (5th Cir. 1980) .................... 5

Chapman v. California, 386 U.S. 18(1967) .......... 6

Davis v. Georgia, 429 U.S. 122(1976) ............ 4,5

Grijalva v. State, 614 S.W. 2d 420

oe re 6

Moore v. Estelle, 670 F.2d 56

I ee a ot re oe ee ee a 2

Moore v. State, 542 S.W.2d 774

ee rare ne 3

Moore v. Texas, 431 U.S. 949 (1977) ............... 3

Schneble v. Florida, 405 U.S. 426 (1972) ............ 6

Witherspoon v. Illinois, 391 U.S. 510 (1968) ......... 4

OTHER AUTHORITIES

I ee od oes 2

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te eat, 5 ag aw 6 $4 oe ee Kwak 2

cg Fe 7

ee eg ls Sak a ws Wee ekwe ee ae 3

COE WEEMS 6c ova cic ba ncwevdeusdacrr 3

3

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1981

W.J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

MARK MILTON MOORE,

Respondent

Petition For Writ Of Certiorari Tec

The United States Court Of Appeals

For The Fifth Circuit

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

NOW COMES W.J. Estelle, Jr., Director, Texas

Department of Corrections, Petitioner herein, by and

through his attorney, the Attorney General of Texas,

and requests that the Court grant this his petition for

writ of certiorari, and as grounds therefor, would

respectfully show the Court the following:

OPINIONS BELOW

The United States District Court for the Northern

-2-

District of Texas, Dallas Division, on February 24, 1981,

entered a judgment and memorandum order adopting

the recommendation of the United States Magistrate

and granting Respondent Mark Milton Moore's applica-

tion for writ of habeas corpus under 28 U.S.C. §2254 and

vacating his death sentence. (Appendix B). On March

12, 1982, a panel of tre United States Court of Appeals

for the Fifth Circuit affirmed the district court’s judg-

ment in an opinion (Appendix A) published as Moore v.

Estelle, 670 F.2d 56 (5th Cir. 1982).

JURISDICTION

The Court has jurisdiction to review the judgment of

the Court of Appeals entered March 12, 1982, under 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, art. VI, in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed...

United States Constitution, art. XIV, in pertinent

part:

No State shall make or enforce any law which

shall abridge the privileges or immunites of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or pro-

perty, without due process of law; nor deny to

any person within its jurisdiction the equal pro-

tection of the laws.

-3-

STATEMENT OF THE CASE

Petitioner has custody of Respondent pursuant to a

judgment and sentence of the Criminal District Court of

Dallas County, Texas. Respondent was indicted on

April 8, 1974, in Cause No. C-74-3180PH, for the offense

of capital murder. After lengthy jury selection, trial on

the merits began on May 13, 1974. On May 14, 1974,

the jury found Respondent guilty of murdering Martha

Janette Williams while in the course of robbing her. A

sentence of death was imposed after the jury answered

affirmatively the special issues submitted pursuant to

Article 37.071, V.A.C.C.P.

Respondent’s conviction was affirmed by the Texas

Court of Criminal Appeals on October 6, 1976, in Moore

v. State, 542 S.W.2d 774 (Tex.Crim.App. 1976). Cer-

tiorari was denied by this Court on May 31, 1977 in

Moore v. Texas, 431 U.S. 949 (1977).

Thereafter, Respondent filed his petition for feder

habeas corpus pursuant to 28 U.S.C. §2254 in the Uniteu

States District Court for the Northern District of Texas,

Dallas Division. The recommendation of the United

States Magistrate was filed on February 24, 1981. The

findings and conclusion of the Magistrate were adopted

by the district court in a memorandum opinion entered

on April 27, 1981, which vacated the 1974 death

sentence imposed in this case. Thereafter, Petitioner fil-

ed notice of appeal to the United States Court of Ap-

peals.

On March 12, 1982, the Fifth Circuit Court of Appeals

affirmed the judgment of the district court. This peti-

tion for writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

I.

-4-

THERE ARE SPECIAL AND IMPORTANT

REASONS FOR GRANTING THE WRIT.

The Court of Appeals for the Fifth Circuit has decided

an important question of federal law which has not been,

but should be, settled by this Court. The court’s

holding that a violation of the doctrine of Witherspoon

v. Illinois, 391 U.S. 510 (1968), during jury selection per

se requires a vacation of the death sentence without

regard to the circumstances, represents an unwarranted

extension of this Court’s opinion in Davis v. Georgia,

429 U.S. 122 (1976). The voir dire examination and

selection of a jury constitutes the lengthiest and

perhaps most difficult aspect of the trial of any capital

case. The question whether such error can be harmless

under any circumstance is of great import to the various

states which attempt to carry out their lawful death

penalty statutes.

DAVIS V. GEORGIA, DOES NOT FORECLOSE THE

POSSIVILITY THAT WITHERSPOON V. ILLINOIS

ERROR CAN BE HARMLESS BEYOND A

REASONABLE DOUBT.

The court below held that:

... the Supreme Court has clearly held, in a case

where the state arguably retained a peremptory

challenge, that the exclusion of even one ven-

ireman on grounds broader than those of With-

erspoon precludes the imposition of the death

penalty. Davis v. Georgia, 429 U.S. 122, 97

S.Ct. 399, 50 L.Ed.2d 339 (1976). And though

the Court’s reasoning escapes us, its holding,

referred to by Justice Rehnquist in dissent as a

per se rule, is clear and must be followed.

670 F.2d at 57 (footnote omitted).

-5-

In Davis, this Court rejected the argument that the

exclusion of one juror in violation of Witherspoon does

not necessitate the vacation of the death sentence, since

it does not amount to ‘“‘systematic exclusion”’ of death-

qualified jurors. The dissenting opinion of Justice

Rehnquist in Davis first raised the question ‘“‘whether

the presence of unexercised peremptory challenges

might render harmless the improper exclusion of a

limited number of veniremen.”’ 429 U.S. at 124.

Whether there were remaining unexercised peremptory

challenges, however, was unclear on the record before

the Court. Also, in Davis, there was no indication

whether the prosecutor would have used a peremptory

challenge to exclude the juror, had the challenge for

cause been denied.

In the instant case, the record affirmatively reflects

both that the state retained unused peremptory

challenges at the conclusion of the voir dire and that it

would have utilized these to exclude the veniremen in

question, had the state’s challenges for cause not been

sustained. Cf. Alderman v. Austin, 663 F.2d 558 (5th

Cir. 1981)(rehearing en banc granted); Burns v. Estelle,

592 F.2d 1297 (5th Cir. 1979) adhered to en banc, 626

F.2d 396 (5th Cir. 1980). Because this case contains a

record which is markedly different from that in Davis,

the court below erred in holding that Davis establishes a

per se rule applicable in all capital cases without regard

to individual circumstances presented. The holding of

the court below represents an overly broad interpreta-

tion of the language in Davis, which should not foreclose

consideration of the state’s ‘‘harmless error’’ argument.

III.

THE EXCLUSION OF A VENIREMAN IN VIOLA-

TION OF THE DOCTRINE OF WITHERSPOON V.

ILLINOIS IS HARMLESS BEYOND A

REASONABLE DOUBT WHERE THE STATE

-6-

DEMONSTRATES THAT IT WOULD HAVE

PEREMPTORILY EXCUSED THE VENIREMAN

HAD HE NOT BEEN EXCUSED FOR CAUSE.

In the district court, the state offered evidence which

showed that, had the challenges for cause to two

veniremen been overruled, then the prosecutor, as a mat-

ter of trial tactics, would have exercised peremptory

challenges to each. This assertion as to the prosecutor's

trial tactics is borne out by his conduct as reflected in

the record. The court below refused to find that the er-

roneous exclusion of venireman Katherine C. Kearby

was rendered harmless, even though the state offered

substantial proof that, had the erroneous challenges for

cause not been sustained, the venireman would have

been excluded anyway from the panel, by the prosecu-

tion’s use of a peremptory challenge.

Once a constitutional violation has been found, the

state’s burden to show harmless error is clear; it must

prove beyond a reasonable doubt that the error was

rendered harmless by some other factor. E.g. Schneble

v. Florida, 405 U.S. 426 (1972); Chapman v. California,

386 U.S. 18 (1967). This, Petitioner has done, by proof

that venireman Kearby would have been excluded from

the panel in any event.

The court below based its rejection of Petitioner's

“harmless error’’ argument on the fact that a similar

argument had been rejected by the Court of Criminal

Appeals of Texas in Grijalva v. State, 614 S.W.2d 420

(Tex.Crim.App. 1981)(on rehearing). The decision of the

state court, however, was premised upon state pro-

cedural law, and not on matters of fundamental fairness

or federal or state constitutional law. Also, the state ap-

pellate court was not confronted with a record such as

presented here, which contains proof beyond merely

that the state retained unexhausted peremptory

challenges at the conch.sion of he voir dire. Still fur-

-7-

ther, it is axiomatic that in federal habeas corpus to

review state convictions, only questions of federal con-

stitutional law are cognizable. 28 U.S.C. §2241. Thus,

that state procedural law is unclear as to whether the

retroactive exercise of peremptory challenges would be

permissible on the instant record is not dispositive of

Petitioner's contention that he has proven federal con-

stitutional error harmless. For these reason, the state

has met its burden of proving constitutional error

harmless beyond a reasonable doubt.

CONCLUSION

For these reasons, Petitioner respectfully prays that

the petition for writ of certiorari be granted and the

judgment of the Court of Appeals be reversed.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assitant

Attorney General

GILBERT J. PENA

Assistant Attorney General

Chief, Enforcement Division

LESLIE A. BENITEZ

Assitant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Atiorneys For Petitioner

A \

A-l

APPENDIX A

Mark Milton MOORE,

Petitioner-Appellee,

V.

W.J. ESTELLE, Jr.,

Respondent-Appellant.

No. 81-1241.

United States Court of Appeals,

Fifth Circuit.

March 12, 1982.

Appeal from the United States District Court for the

Northern District of Texas.

Before BROWN, GOLDBERG and GEE, Circuit

Judges.

GEE, Circuit Judge:

Again, as we did in Burns v. Estelle,' we confront a

hideous and unprovoked murder; again, as in Burns,

Witherspoon v. Illinois’ and its progeny are in play; and

again, as in Burns, we are forced to hold invalid a capital

sentence which, given the limits of our merely human

understanding, this brutal shotgun slaying of a helpless

victim seems clearly to merit.

1. 592 F.2d 1297 (5th Cir. 1979), adhered to en banc, 626 F.2d 396

(5th Cir. 1980).

2. 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

A-2

In response to Moore’s habeas petition, the trial court

held that three jurors were erroneously excluded under

the Witherspoon tests. We need go no further than to

examine the testimony of Katherine C. Kearby, one of

these three, to conclude that at least one was wrongly

excluded. As the court below correctly found, Ms. Kear-

by did not wish to serve in such a case. She maintained,

however, that while she was reluctant to be a part of the

proceeding and her feelings would ‘‘affect’’ her delibera-

tions, still she ‘‘would answer the questions truthfully

but I don’t know that I would ever feel good about it.”’

Near the end of her lengthy questioning, she summed up

her position as ‘‘[i]f you make me do it, I'll do it

right.”’ Her exclusion was improper. Burns v. Estelle,

supra.

The state argues, however, that the exclusions, if im-

proper, should be viewed as harmless error, since the

state went to trial with unexercised peremtory

challenges sufficient to have covered any improperly ex-

cused jurors. That these would have been used had the

jurors in question not been excluded for cause was at-

tested to the court below by affidavit of the attorney

who had prosecuted Moore’s case some seven years

earlier.

Tempted as we are to embrace the state's contentions,

we find ourselves unable to do so. In the first place, the

Supreme Court has clearly held, in a case where the state

arguably retained a peremptory challenge, that the ex-

clusion of even one veniremen on grounds broader than

those of Witherspoon precludes the imposition of the

death penalty. Davis v. Georgia, 429 U.S. 122, 97 S.Ct.

399, 50 L.Ed.2d 339 (1976). And though the Court’s

reasoning escapes us,’ its holding, referred to by Justice

3. That supplied by Judge Goldberg's eloquent special concur-

rence goes far, however, to sur ply this.

A-3

Rehnquist in dissent as a per se rule, is clear and must

be followed. In the second, and without in the least call-

ing in question the sincerity of the former prosecutor's

affidavit assertions, we cannot countenance what

amounts to an attempt to exercise—retroactively and

by affidavit in defense of a collateral attack—peremp-

tory challenges reserved at the time. The Court of

Criminal Appeals of Texas has expressly rejected the

state’s attempt to exercise leftover peremptions on

direct appeal. Grijalva v. State, 614 S.W.2d 420, 424-5

(Tex.Crim.App.1980)(en banc). It would be anomalous

for us to countenance it in this far more attenuated

situation; indeed, considerations of fundamental

fairness night be implicated. What would have hap-

pended is seldom a subject of satisfactory proof; and we

conclude that if in a capital case Texas is in doubt as to

whether the trial court has properly excused a juror for

cause, the time to balance adding a peremptory

challenge to that juror against the unkown exigencies

that may arise from the serial file of veniremen yet to be

questioned has likely arrived.

AFFIRMED.

GOLDBERG, Circuit Judge, specially concurring:

I concur fully in Judge Gee’s impeccable and unexcep-

tionable analysis of the Witherspoon problem and his

disposition of this case. However, I would like to offer a

few thoughts in support of his conclusion regarding the

‘harmless error’’ issue.

The State of Texas virtually concedes that at least one

of the veniremen in this capital case was erroneously ex-

cluded from the jury panel in violation of the guidelines

set forth in Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 L.Ed.2d 776 (1968). However, the State

argues that since the prosecutor stood ready to use

A-4

available peremptory challenges to exclude this same

juror, the error was harmless beyond a reasonable

doubt.

I concur with Judge Gee’s finding that the State’s

argument is foreclosed by the Supreme Court’s opinion

in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50

L.Ed.2d 339 (1976) and our court’s decision in Burns v.

Estelle, 592 F.2d 1297 (5th Cir. 1979) adhered to en banc,

626 F.2d 396 (5th Cir. 1980). I agree that ‘‘the exclusion

of even one venireman on grounds broader than

Witherspoon precludes the imposition of the death

penalty.”’ ante, Slip op. at 1402, at

As I would expect, Judge Gee has dutifully adhered to

the rule set forth in Davis v. Georgia, supra, and Burns

v. Estelle, supra. However, I note that he has done so

with an expression of regret. I, on the other hand, have

no such reservations, for I believe that even if we were

not bound by principies of stare decisis, there would be

sound reasons for rejecting the State’s ‘‘harmless error”

argument.

Texas contends that the erroneous exclusion of a par-

ticular venireman ‘‘for cause’’ was harmless beyond a

reasonable doubt because the State stood ready to use

an available peremptory challenge. In essence, the

State argues that even if the trial court had acted pro-

perly and refused to excuse the venireman for cause, the

prosecutor would have used a peremptory challenge to

keep that prospective juror off the panel. Thus, the

State maintains that the trial court’s error could not

have had any substantive effect, since the venireman in

question would have been excluded from the panel even

if he had not been erroneously excused by the trial court.

In their “harmless error’’ argument, the State has

assumed that the crucie! question is whether a par-

ticular veniremen was excluded from the jury panel as

AS

the result of the trial court’s erroneous ruling. How-

ever, I believe that the State’s syllogism is !ogically

flawed. The proper focus of our inquiry is whether the

composition of the jury panel as a whole could possibly

have been affected by the trial court’s error. While it

may be true that the exclusion of a particular venireman

was not affected by the trial court’s erroneous ruling, it

does not necessarily follow that the composition of the

entire jury panel was unaffected by the error.

In Texas capital cases, venireman are examined

seriatum by the defense and prosecution. *‘|P|rospec-

tive jurors ... are examined individually and must be

challenged and passed upon separately.”’ Pierson v.

State, 614 S.W.2d 102, 107 (1981). Thus, as a prospec-

tive juror comes before the court, the prosecutor must

then and there decide whether she will accept the juror,

challenge for cause, or exhaust one of her limited

number of peremptories. Clearly, the prosecutor's

strategic calculus is affected by the number of peremp-

tory challenges left to her and by the number of jury

panelists still awaiting selection. As the prosecutor

depletes her limited number of peremptory challenges,

she may be willing to accept certain jurors she might

have otherwise rejected given a larger reserve of

peremptories.

The import of this observation should be clear. Texas

claims that it would have used three of its peremptory

challenges to exclude the three jurors found to have

been improperly excused for cause. However, even if we

assume that the prosectuor in this case would have used

those three additional peremptory challenges,' how can

1. Ll agree with Judge Gee that ‘*...without in the least calling into

question the sincerity of the former prosecutor's affidavit asser-

tions, we cannot countenance what amounts to an attempt to exer-

cise —retroactivity and by affidavit—peremptory challenges reserv-

ed at the time.”’ ante, slip op. at 140:, at __._—_.

A-6

we know beyond a reasonable doubt that the selection of

the remainder of the jury panel would have been unaf-

fected? If the trial court had ruled properly and the pro-

secution had been forced to use these three additional

peremptory challenges, it is entirely possible that the

State would have chosen to acquiesce in the impaneling

of other prospective jurors it actually challenged given

the luxury of a pocketful of ‘‘peremptories.’”

Thus, when a trial court erroneously excludes

venireman ‘‘for cause,” it allows the prosecutor to save

peremptory challenges it would otherwise have had to

use to exclude those prospective jurors. Armed with

more peremptory challenges than she would have had if

the trial court had ruled correctly, a prosecutor may feel

that she is in a position to exclude jurors she might

otherwise have accepted. We can thus imagine a situa-

tion in which the composition of the jury panel as a

whole could indeed have been affected by the erroneous

ruling of the trial court. Therefore, we cannot say that

such error can be characterized as harmless beyond a

reasonable doubt.

I would also note that acceptance of the State's

“harmless error’ argument would be tantamount to in-

sulating all jury selection error from any meaningful ap-

pellate review. Texas has asked us to adopt a rule which

would in effect make all jury selection error ‘‘harmless’’

so long as the prosecutor can demonstrate that she was

prepared to use an available peremptory challenge.

2. A simple example will suffice to illustrate the point: Imagine

that a prosecutor holds four remaining peremptory challenges. She

can easily choose to use one of them to excuse a given prospective

juror; however, if the prosecutor has already been forced to exhaust

three of those ‘‘peremptories,’’ she might think it prudent to ac-

quiesce in the impaneling of a particular venireman, holding her re-

maining peremptory in reserve igainst the possibility of being con-

fronted with an even more objectionable candidate.

A-7

However, if we were to accept this argument, we would

be saying that a prosecutor could effectively insulate all

jury selection error from any habeas or appellate review

merely by asserting that she was ready to use an

available peremptory challenge. One can readily predict

what might happen if we were to adopt this position:

prosecutors could routinely follow their challenges for

cause with a note for the record asserting that the State

would stand ready to use a peremptory in the event its

‘for cause’’ challenge was unsuccessful. The use of this

strategem would result in our being unable to review

any jury selection error, for all such error would be

harmless. Habeas and appellate courts would be left

with no means to enforce the jury selection guidelines

set down by the Supreme Court and Witherspoon would

surely wither.

Having offered these thoughts in support of Judge

Gee’s analysis of the Witherspoon problem, I would also

add one final note. “I join the Court’s opinion without

... departing from my view that the death penalty is in

all circumstances cruel and unusual punishment pro-

hibited by the Eighth and Fourteenth Amendments.”’

Eddings v. Oklahoma, U.S. , 102 S.Ct. 869,

877, 70 L.Ed.2d____(1982)(Brennan, J., concurring).

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Mark Milton Moore, §

Petitioner §

§

We § Civil Action No.

§ CA-3-77-1105-D

W.J. Estelle, Director, §

TDC, Respondent §

JUDGMENT

This action came on for consideration by the Court

and the issues having been duly considered and a deci-

sion duly rendered,

IT IS ORDERED, ADJUDGED AND DECREED

that the Petitioner's application be granted to the ex-

tent that the imposition of the sentence of death is

hereby vacated.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Petitioner's application is granted

and the Petitioner is ordered discharged upon the ex-

piration of one hundred and twenty (120) days from the

date of this judgment, unless within such period the

Petitioner's death sentence is commuted to a life

sentence as may be provided by applicable State law or

the Petitioner is granted a new trial.

IT IS FURTHER ORDERED that in the event this

judgment is appealed from the effect of this judgment

shall be stayed pending the determination of such ap-

peal.

IT IS FURTHER ORDERED that the Clerk shall

transmit a true copy of this judgment together with a

true copy of the order adopting the findings, conclusions

and recommendation of the United States Magistrate to

the Petitioner, Respondent, all counsel and to the

presiding judge of the State Criminal District Court in

which the Petitioner was prosecuted.

SIGNED AND ENTERED this 27th day of April,

1981.

is) Robert M. Hill

Uni sed States District Judge

B-3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Mark Milton Moore, §

Petitioner §

§

V. § Civil Action No.

§ CA-3-77-1105-D

W.J. Estelle, Director, §

TDC, Respondent §

ORDER

After making an independent review of the pleadings,

files and record in this case, and the findings, conclu-

sions and recommendation of the United States

Magistrate together with the objections filed by the

Respondent, I am of the opinion that the findings and

conslucions of the Magistrate are correct and they

should be adopted as the findings and conclusions of the

Court with the following additional conclusions.

The Respondent, W.J. Estelle, Jr., argues at

paragraph III in its objections to the findings, conclu-

sions and recommendation of the Magistrate that the

improper exclusion of veniremen Reeb and Kearby could

be shown to have been harmless because the State had

remaining peremptory challenges which it would have

excercised in excluding these two veniremen from the

jury.' Respondent’s c. antion, however, is foreclosed

1. Although Respondent objects to the Magistrate's finding that

venireman Reeb was improperly disqualified, the Respondent

makes no objection to the Magistrate's finding that venireman

Kearby was improperly excused under Witherspoon v. Illinois, 391

U.S. 510 (1968).

B-4

by the holding of the Court of Appeals for the Fifth Cir-

cuit in Burns v. Estelle, 592 F.2d 1297 (1979), that

[njo jury from which even one person has been

excused on broader Witherspoon-type grounds

than these may impose a death penalty or sit in

a case where it may be imposed, regardless of

whether an available peremptory challenge

might have reached him.

592 F.2d at 1300. Thus, whether the State had remain-

ing three peremptory challenges and could demonstrate

that it would have exercised two of them on Reeb and

Kearby could not cure the harm to Petitioner that ex-

isted when he was tried before the jury which was

selected in his case.

It is so ORDERED.

SIGNED AND ENTERED this 27th day of April, 1981.

‘s/ Robert M. Hill

United States District Judge

B-5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Mark Milton Moore, §

Petitioner §

§

J § Civil Action No.

§ CA-3-77-1105-D

W.J. Estelle, Director, §

TDC, Respondent §

FINDINGS, CONCLUSIONS AND

RECOMMENDATION OF THE

UNITED STATES MAGISTRATE

Pursuant to the provisions of 28 U.S.C. 636(b), and an

Order of the Court in implementation thereof, the sub-

ject cause has previously been referred to the United

States Magistrate. The findings, conclusions and

recommendation of the Magistrate, as evidenced by his

signature thereto, ure as follows:

FINDINGS AND CONCLUSIONS:

Type Case: This is a petition for Writ of Habeas Cor-

pus relief filed by a State inmate pursuant to 28 U.S.C.

§2254.

Parties: Petitioner is an inmate at the Ellis Unit of

the Texas Department of Corrections at Huntsville,

Texas, awaiting execution of a sentence of death impos-

ed by the Criminal District Court of Dallas County,

Texas, in Cause No. C-74-3180-PH.

The Respondent is the Director of the Texas Depart-

ment of Corrections.

B-6

Statement of the Case: Upon a plea of not guilty Peti-

tioner was tried by a jury for the offense of capital

murder as charged in the indictment filed in Cause No.

C-74-3180-PH. The jury found the defendant guilty as

charged. The issue of punishment was submitted to the

jury pursuant to Article 37.071, Texas Code of Criminal

Procedure, and the jury answered each question pur-

suant to subdivision (b)(1)-(3) in the affirmative. Upon

the unanimous affirmative answers of the jury, the

District Court sentenced the Petitioner to death (Id.,

subdivision (e)).

The Petitioner effected a direct appeal from his convic-

tion, and the Texas Court of Criminal Appeals affirmed

in Moore v. State, 542 S.W.2d 664 (Tx.Crim.App. 1976).

The Petitioner filed an application for Writ of Certiorari

in the United States Supreme Court, and certiorari was

denied at 431 U.S. 949 (1977). Thereafter the Petitioner

filed his present application in this Court.

In support of his claim for habeas corpus relief the

Petitioner asserts the following grounds:

1. Petitioner’s conviction and sentence are void

because of discriminatory application of law against him

based upon race in violation of his rights of ‘‘due pro-

cess” and ‘“‘equal protection”’.

2. Petitioner’s conviction is void because of the use of

an alleged illegally obtained confession.

3. The Texas Capital Punishment Statute violates the

Eight Amendment prohibition against cruel and

unusual punishment.

4. Petitioner’s conviction is void because the jury was

selected in a manner violating the Witherspoon stan-

dard.

B-7

5. Unconstitutional psychological evidence was in-

troduced agianst Petitioner in the punishment phase of

trial.

6. Fingerprints were taken from the Petitioner in

violation of the Fourth and Fourteenth Amendments.

7. The Court of Criminal Appeals violated the Peti-

tioner’s right of equal protection in failing to apply

established precedents to the Petitioner’s case.

8. The Petitioner was deprived of a fair and impartial

jury.

9. The second question submitted to the jury in the

punishment phase of trial (Article 37.071 (b)(2), supra)

violates the Petitioner's ‘‘due process”’ rights.

Findings and Conclusions: The filing of findings and

the recommendation in the instant application have

been deferred pending resolution of jury selection issues

pursuant to Witherspoon v. Illinois, 391 U.S. 510 (1968),

by the Supreme Court in Adams v. Texas, US.

, 100 S.Ct. 2521 (1980); and by the Fifth Circuit

in its en banc decision in Burns v. Estelle, 626 F.2d 396

(5th Cir. 1980), which are similar to those raised in

ground 4 in Petitioner’s application. Both cases have

now been decided by the appellate courts, and in light of

such holdings I am of the opinion that relief must be

granted on Petitioner’s fourth ground, and therefore it is

unnecessary to consider the remaining issues raised in

the Petiticner’s application.

At the time of Petitioner’s trial in April and May 1974

the grounds which existed for challenges for ‘‘cause’’ to

a jury veniremen’s participation as a petit juror consis-

tent with the constitutional requirements of ‘‘due pro-

cess’’, were contained in the Supreme Court's decision in

Witherspoon v. Illinois, supra, to wit: veniremen could

B-8

be excluded for cause whenever such persons made it un-

mistakably clear (1) that they would automatically vote

against the 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 attitudes

toward the death penalty would prevent them from

making an impartial decision as to the defendant's guilt.

In the intervening period between the Witherspoon

decision and Petitioner’s trial the State of Texas revised

its capital punishment scheme in response to the

Supreme Court’s decision in Branch v. Texas, 408 U.S.

238 (1972), [see Texas Penal Code §19.03; Texas Code of

Criminal Procedure, Article 37.071 (effective July 14,

1973)] to provided for a bifurcated trial requiring the

jury to first determine whether the defendant is guilty

of a capital offense, and if they so find, then the jury is

required to answer three statutory penalty questions in

the affirmative before the death penalty can be imposed.

Although the Supreme Court dealt with the unitary

trial procedure in Witherspoon v. Illinois, supra, its

holding is equally applicable to the bifurcated pro-

ceeding applied in the Petitioner’s criminal trial.

Adams v. Texas, supra, at pages 2525-2525.

In the present application Petitioner claims nine nam-

ed prospective jurors were improperly excluded for

‘cause’ by the trial judge. The improper exclusion of

even one venireman on grounds at variance with the

Witherspoon standard is fatal to the imposition of a

death sentence. Davis v. Georgia, 429 U.S. 122 (1976).

Implicit in the Supreme Court’s decision in Adams v.

Texas, supra, and in the Fifth Circuit’s opinion in Burns

uv. Estelle are two unique factors. As distinguished from

the provisions of §2254(d), the fact that a trial court’s

decision is based upon credibility choices made in light

of the fact that the judge was able to observe the man-

B-9

ner in which the prospective venireman responded to

counsels’ questions and the demeanor of veniremen at

the time he or she made reply to the questions, is not

dispositive. To the contrary, it appears that in review-

ing the trial court’s decision in the context of a Withers-

poon issue, Federal habeas courts are limited to a review

of the written transcription of the questions and

answers. Second, the exclusionary grounds recognized

by the Supreme Court ir \Vitherspoon have a talismanic

character, see Burns v. Estelle, supra, at page 398, and

the State’s failure to pose the questions in the precise

language of the Witherspoon exclusion may well fatally

infect the jury selection process; but see also the ques-

tion posed in Lockett v. Ohio, 438 U.S. 586, 595-596

(1978) cited in Adams v. Texas, supra, at page 2526.

These factors cast a serious doubt on whether any but

the most unequivocally outspoken opponents to capital

punishment may ever properly be excluded from a panel

of veniremen in a death penalty case. Notwithstanding

the Supreme Court majority’s recognition that ‘‘The

State may insist ... that jurors will consider and consider

the facts impartially and conscientiously apply the law

as charged by the court’’ (See Adams v. Texas, supra, at

page 2526), a trial court is faced with a formidable

burden of upholding this standard while at the same

time avoiding an infringement of the accused’s constitu-

tional rights.

Although the question of exclusion of a prospective

juror is at bottom a question of law, his suitability to sit

is predicted upon his answers to factual inquiries

presented by counsel for the adversaries. Absent some

showing that a venireman knows the parties, counsel, a

prospective witness at trial or has personal knowledge

of the case, ordinarily it may be concluded that such an

individual is devoid of any bias toward the case, as

distinguished from a fact witness who frequently, even

if not a party, harbors soine favoritism which may

adversely reflect on his credibility.

B-10

The fact that a juror has no inherent bias generally

does not obviate all questions concering his credibility

or suitability as a juror. Equivocation in answers,

refusal or hesitancy in answering, and a venireman’s

overall demeanor are factors which may bear on his

qualifications. Although not an inclusive list of factors,

of the three noted, only evidence of the first can be

gleaned from a ‘“‘cold’’ record consisting of the

transcript. Because a transcript is incapable of reflect-

ing such subtle nuances bearing on credibility, appellate

courts have historically deferred to the judgment of the

fact finder, except when evidentiary support for the con-

clusions reached is lacking. However, the factors con-

sidezed and the dispostions made by the Supreme Court

and the Fifth Circuit in Adams v. Texas, supra, and

Burns v. Estelle, supra, respectively, strongly suggests

that application of this judicial convention is inap-

propriate in death penalty cases.

The second circumstance is likewise problematic.

Absent submission of the exclusionary questions in haec

verba, the trial court is placed in the difficult posture of

extrapolating the answers to these questions from the

actual responses of each panel member. Even when the

questions are squarely presented, it does not necessarily

follow that the question is susceptible to an unequivocal

answer from the prospective juror’s standpoint. This is

amply demonstrated by many of the responses elicited

from the named individuals excluded for cause in the

Petitioner’s case. The reliability of verbal responses

also tends to be undermined by the fact that, at least in

Texas, a prospective juror is called upon to respond to

the questions in the abstract without the benefit of any

assertions of what the evidence will tend to establish at

either the guilt-innocence stage of the trial or during the

punishment phase.

Another factor, though not articulated by the ap-

pellate courts, which undoubtably played a role in the

B-11

questioning of prospective jurors in the Petitioner's case

was the adverszrial postures of counsel for the parties.

Based upon this court’s former experience both as a pro-

secutor and as defense counsel in criminal trials, it is ap-

parent that the attorneys for both the State and for the

Petitioner were attempting to elicit answers sufficient

to either exclude jurors for cause under the Witherspoon

standard or to remove grounds for excluding jurors for

cause. Counsel for neither side can be faulted for its ef-

forts. Both sides had a right to a fair and impartial jury

and their questions attempt to probe the opinions of the

prospective jurors. Additionally counsel for the Peti-

tioner unquestionably was obligated to attempt to limit

to the extent possible prospective jurors subject to

challenge for cause. Indeed had the trial court trun-

ceted Petitioner’s counsel’s examination of the jury

venireman, such action may well be sufficient to con-

stitute error. See Burns v. Estelle, supra, 397-398, foot-

note 2. Unfortunately as a side effect to counsel’s in-

quiries it appears that not a few of the venire were reduc-

ed to a state of total confusion.

In spite of the practical difficulties presented by the

selection process mandated by the appellate courts in

death penalty cases, it is clear that both the Supreme

Court and the Fifth Circuit have enunciated unequivocal

statements of law which pertain to the selection process.

As noted by the Supreme Court in Adams v. Texas,

supra, ‘‘...Witherspoon is not a ground for challenging

any prospective juror. It is rather a limitation on the

State’s power to exclude: if prospective jurors are bar-

red from jury service because of their views about

capital punishment on ‘any broader basis’ than ability

to follow the law or abide by their oaths, the death

sentence cannot be carried out’’ (at page 2527). Further

persons who stated that they would be ‘‘affected”’ by the

possibility of the death penal:y, but “‘who apparently

meant only that the potentially lethal consequences of

B-12

their decision would invest their deliberations with

greater seriousness and gravity or would involve them

emotionally’’ (at page 2528) and those who “were

unable positively to state whether or not their delibera-

tions would in any way be affected’’’ (at page 2528) can-

not be excluded for cause consistent with the due pro-

cess requirements of the Sixth and Fourteenth Amend-

ments. It is likewise clear in Burns v. Estelle that

nothing but unmistakably clear answers of venireman

establishing that he could or would not set aside his per-

sonal views and therefore would not follow the court’s

instruction is sufficient to permit his exclusion for

cause.

The discharge of this court’s duty in determining

whether the exclusion of the nine named veniremen con-

forms with constitutional standards is not without peril.

The sole benchmarks available to it are the language of

the appellate court’s opinions and port:ons of voir dire

passages footnoted in the opinions. See Adams uv.

Texas, supra, footnote 7 at page 2528; Burns v. Estelle,

supra, footnote 2 at page 397-398. Of additional benefit

are voir dire passages appended to the panel opinion in

Burns v. Estelle, 592 F.2d 1297, 1302-1305 (5th Cir.

1979). In Petitioner's cause the voir dire examination

which this court must scrutinize varies in length from

one to forty pages.

In considering the voir dire examination of the nine

veniremen identified in Petitioner's fourth ground it is

appropriate to review them in chronological order as

they appear in the record.’

At the outset it is to be obse ved that in affirming

Petitioner’s conviction, the Court of Criminal Appeals

1. The pagination referred to in this recommendation is that

which appears in the lower rigtt hand corner of the transcript.

B-13

held that the provisions of §12.31(b), V.T.C.A., Penal

Code, provided a separate and distinctive basis for ex-

clusion for cause from those enunciated in Witherspoon

v. Illinois. Moore v. State, 543 S.W.2d 664

(Tx.Crim.App. 1976) at page 672. The Supreme Court in

Adams v. Texas expressly held that “*...the use of

§12.31(b) to exclude jurors on broader grounds [than

those provided in Witherspoon] based on their opinions

concerning the death penalty is impermissible’ (at page

2528, see also footnote 5, page 2527).

The venireman, Mrs. Delphia Sanders (R. 578-579)

was excused. While she was not queried in the exact

language of Witherspoon, her unequivocal responses in

opposition to the death penalty under any facts or cir-

cumstances satifies the first prong of the Witherspoon

standard, and thus it was not constitutional error to ex-

clude her. Louis C. Ritter (R. 579-580) by his answers

falls within the same category, and was also properly ex-

cluded.

The circumstances presented in the case of the

venireman Vickie Costley (R. 1013-1052) aptly il-

lustarate the difficulties presented to the trial court as

well as to a reviewing court in the context of a habeas

corpus petition. The colloquys between Miss Costley,

the prosecutor, the defense counsel and the trial court as

recorded in the transcript reflect that she answered the

questions in such a manner as to establish both that she

was qualified as well as being unqualified under Withers-

poon. This court is unaware of any cases which have

considered the qualifications of jurors whose une-

quivecal answers given at different stages of the voir

dire are wholly contradictory.

Miss Costley initially answered that she could answer

the questions presented truthfully (R. 1018, line 11-24),

and that she would take an oath to follow the court's in-

structions (R. 1023, line 21-10%:4, line 13). However, she

B-1i4

then stated that she would not follow the Texas law of

“‘principals’’ (R. 1032-1034), and further she could not

follow the law of the second statutory questions under

Art. 37.071 (Texas Code of Criminal Procedure (R. 1041,

line 15-1042, line 17) but again indicated that she might

be able to answer the question (R. 1043, line 1-24). At

the end of the voir dire, the venireman said she did not

think she could follow the law (R. 1045, line 18-25). At

the conclusion of defense counsel’s questioning, Miss

Costly stated she could not participate as a juror in a

death penalty case (R. 1049, line 2-1050-1052, line 2).

If certain of Miss Costley’s answers are considered in

isolation, it is apparent that she could not be excluded

for cause. However, her final remarks are wholly

analogous to the situation presented in Lockett v. Ohio,

supra, at 595-596, in which the Supreme Court held that

exclusion under such circumstances was not improper.

If the Supreme Court’s statement that ‘‘The State may

insist ... that jurors will consider and decide the facts im-

partially and conscientiously apply the law as charged

by the court (Adams v. Texas, at page 2526, emphasis

added)”’ is to be construed at face value, exclusion of

Miss Costley cannot constitute constitutional error.

The testimony of Martha L. Bradford (R. 1168-1185) is

not unlike that of Miss Costley. She testified she could

not make fact findings if the answers may result in the

imposition of a death penalty (R. 1170, line

2-19). However, in the course of examination she also

stated she could sit as a juror on a death penalty case, if

the facts were bad enough (R. 1176, line 8-15; line

23-25). Thereafter she stated unequivocally that she

could not participate as a juror in a case where a

sentence of death might result (R. 1179, line 14 to 1181,

line 1); (R. 1181, line 10 - R. 1182, line 3) (R. 1183, line 10

- 1184, line 21). Exclusion of Ms. Bradford as a juror

was not violative of Petitioner’s constitutional

rights. Lockett v. Ohio, supra.

B-15

The next venireman excluded for cause was Sandra N.

Wheeler (R. 1580-1609). Although the questions posed

by the prosecutor were not very artfully phrased, it ap-

pears from her answers that she would not have been in-

fluenced in her deliberations by the fact that the death

penalty might be imposed (R. 1583, line 6-10). There-

after the questions of the prosecution were framed in

terms of §12.3l(b). V.T.C.A., Penal Code, to

wit: Whether possible imposition of the death penalty

would affect her deliberations. To these inquiries, Ms.

Wheeler responded in the affirmative (R. 1594, line 21 to

R. 1595, line 6) but she also indicated it would not affect

her deliberations (R. 1597, line 2-9; line 18-25); but see

also R. 1502, line 11-19. After her interrogation the trial

court excluded her on the ground that she would be

“concerned about the effect’’ the results in her delibera-

tion (R. 1606, line 16-20).

At the time of his ruling the trial court was acting en-

tirely consistent with Texas State law and indeed his ac-

tion was upheld by the Texas Court of Criminal Appeals,

Moore v. State, supra, at page 672, on the basis that

§12.31(b) provided a ground for exclusion independent of

Witherspoon v. Illinois, supra. The actions of both the

trial court and the Texas appellate court were taken

without benefit of the Supreme Court’s subsequent deci-

sion in Adams v. Texas, supra.

In substance Ms. Wheeler’s answers indicate no more

than that the severity of the possible punishment of

death would cause her to carefully consider her deci-

sions. c.f. Answer of Forrest Jenson, footnote 7,

Adams v. Texas, supra, at page 2528. Such an ex-

pressed attitude falls far short of the unequivocal objec-

tion to the death penalty under the Witherspoon stan-

dard and therefore it was error of constitutional

magnitude to exclude Mrs. Wheeler as a member of the

panel.

B-16

The voir dire examination of Katherine C. Kearby (R.

1609-1646) illustrates the practical problems which arise

when lay persons are called upon to articulate deep-

seated feelings and opinions in response to questions of

attorneys predicted on abstract propositions of criminal

law. The reliability of a venireman’s conscientious

response may well be undermined by the layman's in-

ability to accurately perceive the legal theories involved.

In a manner similar to that of Miss Costley, supra, Ms.

Kearby gave contrary responses to the same question.

E.g. Ms. Kearby stated she could not follow the law of

principals (R. 1617, line 18 - R. 1619, line 16).

However, she also stated that she could follow the law of

principals (R. 1622 line 22 - R. 1624, line 14; R. 1629, line

5-13).

In reviewing the voir dire of Ms. Kearby it appears

that she clearly did not wish to participate as a juror ina

case where a sentence of death might result (R. 1613,

line 24 to R. 1613, line 21; R. 1628, line 11-25) but it is

also clear that if impaneled as a juror she would have

followed the law and answered the questions in light of

the evidence (R. 1642, line 15 - R. 1642, line 1; R. 1644,

line 16 - R. 1645, line 22). Although reluctant to serve as

a juror it does not appear that Ms. Kearby’s answers

were such as to disqualify her from jury service under

either prong of the Witherspoon standard. Had the trial

court permitted further probing of her opinions it is

possible that her answers would establish a basis for dis-

qualification. Instead the judge posed the question in

terms of §12.31(b), supra, and being informed that the

seeking of a death penalty would ‘‘affect’’ her delibera-

tions, the court excused her (R. 1645, page 17 to R. 1646,

line 8). Adams v. Texas, supra, compels a finding that

exclusion on such grounds was improper.

Mrs. Freda H. Reeb (R. 2430-2446) was excluded by

the trial court as a juror (R. 2446). The Court of

Criminal Appeals did not reach the Witherspoon issue in

B-17

considering the propriety of the judge’s act. See Moore

v. State, supra, at page 472. In light of Adams v. Texas,

supra, only the Witherspoon standards are sufficient to

warrant exclusion. Although participation as a juror

would bother her (R. 2433, line 13-21) and she was oppos-

ed to the death penalty (Id, line 4-12) she also stated that

if impaneled she would follow the court's instructions

(R. 2441, line 15 - R. 2442, line 8; R. 2442). Her answers

are insufficient to satisfy either basis for exclusion

under Witherspoon. C.f. Answers of Mrs. Doss, foot-

note 2, Burns v. Estelle, supra, at page 397-398, and

thus it was improper to exclude her.

Mrs. Frank Clark (R. 2485-2495) testified that she was

unalterably opposed to the death penalty in any case (R.

2485, line 21-24) and that she could not sit on a jury

where the sentence might be death (R. 2486, line 9 - R.

2487, line 2, 11-20). Based upon her opinion she could

not listen to the evidence in ‘‘right conscience’ (R. 2489,

line 5-12) and that no set of facts or circumstances would

justify capital punishment (R. 2492, line 3-9). Such

answers demonstrate that Mrs. Clark’s attitude toward

the death penalty would prevent her from an impartial

consideration of the fact issues presented to the jury.

Exclusion of Mrs. Clark was not constitutionally infirm.

Miss Louise M. Laird (R. 2496-2502) stated that she

was not opposed to the death penalty (R. 2497, line 3-4)

but that she would not take the juror’s oath and par-

ticipate in a case in which the death penalty was sought

(R. 2498, line 19 - R. 2499, line 9; line 12 - R. 2500, line 16;

R. 2601, line 16 - R. 2502, line 21). Her statements are

similar in substance and effect to those described in

Lockett v. Ohio, supra, at 595-596. It was not error to

exclude Miss Laird from the jury panel.

CONCLUSION:

Because of the “‘due process’ violations which occur-

B-18

red in the jury selection at Petitioner's trial in Cause No.

C-74-3180-PH, the death sentence imposed cannot be ex-

ecuted. To reiterate, of the nine jury veniremen who

were excluded for cause of which the Petitioner com-

plains in his present application, I am of the opinion that

no constitutional error is demonstrated as to veniremen

Delphia Sanders, Louis Ritter, Vickie Costley, Martha

L. Bradford, Frances Clark and Louise M.

Laird. However, I am further of the opinion that San-

dra N. Wheeler, Katherine C. Kearby, and Freda H.

Reeb were not subject to exclusion under the standards

of Witherspvon, and that it was therefore error of con-

stitutional dimension to have removed them for cause

from the jury panel.

Consideration of the facts adduced at Petitioner's trial

is not relevant to this court’s decision. Nonetheless I

feel obligated to observe that the evidence presented

demonstrates that the Petitioner committed a vicious

and senseless crime. It appears beyond any doubt that

if imposition of the death penalty can be imposed under

the Constitution, the Petitioner’s conduct in killing the

deceased warranted such a severe penalty. In con-

cluding that the death penatly cannot be constitutional-

ly imposed against the Petitioner, this court feels the

same personal frustration and dissatisfaction as that

voiced by Judge Gee in the panel opinion issued in

Burns v. Estelle, 592 F.2d 1297, at page 1302 (1979).

Likewise, however, this court aided by the subsequent

authority of Adams v. Texas and Burns v. Estelle (en

banc) supra, must also conclude that decisions of the

Supreme Court and the Fifth Circuit compel the result

reached herein.

RECOMMENDATION:

For the foregoing reasons it is recommended that the

Petitioner’s application be granted conditionally to the

extent that the Petitioner’s punishment has been set as

B-19

the imposition of death, unless within 120 days the Peti-

tioner’s death sentence is set aside as provided under

Texas State law, or the Petitioner is retried for the of-

fense charged in Cause No. C-74-3180-PH.

/s/_ William F. Sanderson, Jr.

United States Magistrate

a ‘Lentil Dida ee ——

ll gee ef a Ec,

ORIGINAL j MAY 27 1982

NO. 81-2048 OFFICE OF THE CLERK

SUPHEIME COURT, US. |

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1981

W. J. ESTELLE, JR., DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

Vv.

MARK MILTON MOORE,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES P. FINSTROM

COUNSEL FOR RESPONDENT

2620 Cedar Springs

Dallas, Texas 75202

214-747-9603

Texas Bar #07038000

i) ‘

NO, 81-2048

IN THE

UNITED STATE SUPREME COURT

OCTOBER TERM, 1981

W. J. ESTELLE, JR., DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Petiticner

Vv.

MARK MILTON MOORE,

Respondent

ee

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

NOW COMES Mark Milton Moore, Respondent herein, by and

through his attorney, James P. Finstrom, and requests that the

Court deny the Petition For Writ of Certiorari To The United

States Court of Appeals For the Fifth Circuit, and as grounds

therefor, would respectfully show the Court the following:

QUESTIONS PRESENTED FOR REVIEW

I. Does Davis v. Georgia foreclose the possibility that

Witherspoon v. Illinois error can be harmless beyond a reason-

able doubt?

II. Is the exclusion of a venireman in violation of the doc-

trine of Witherspoon v. Illinois harmless beyond a reasonable

doubt where the state demonstrates that it would have per-

Cad

emptorily excused the venireman had he not been excused for

cause?

PARTIES TO THE PROCEEDING

The caption to this case contains the names of all che

parties to this cause.

TABLE OF AUTHORITIES

Page

Burns v. Estelle, 592 F.2¢ 1297 (Sth Cir. 1979),

adhered to en banc 626 F.2d 396 (Sth Cir. 1980)

Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 3

50 L.Fd.2d 339 (1976)

Grijalva v. State, 614 SW2a 420 (Tex. Crim. App- 4

1980) (en banc)

witherspoon v. Illinois, 391 US 510, 88 S.Ct. 1770, 3

20 L.Ed.2d 776 (1968)

OPINIONS BELOW

The United States District Court for the Northern District

of Texas, Dallas Division, on February 24, 1981, entered a

judgment and memorandum order adopting the recormendcation of

the United States Magistrate and granting respondent's applic-

ation for writ of habeas corpus under 28 U.S.C. Sec. 2254 and

vacating his death sentence. On March 12, 1982, a panel of

the United States Court of Appeals for the Fifth Circuit

affirmed the district court's judgment in an opinion published

as Moore v. Estelle, 670 F.2d 56 (Sth Cir. 1962).

JURISDICTION

The Court has jurisdiction to review the judgment of

the Court of Appeals under 28 U.S.C. Sec. 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Art. VI, in part provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district where-

in the crime shall have been cormitted...

United States Constitution, Art. XIV, in part provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

C) -3- (

the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Respondent adopts the statement of the case presented

.

in Petitioner's Application in this cause.

SUMMARY OF ARGUMENT

Any violation of the Witherspoon doctrine violates the

rights of an accused charged with a capital offense to a

fair and impartial trial as guaranteed by the Constitution

to the United States. Such error cannot be made harmless

or corrected post-trial by affidavits demonstrating an intent

by the state how it would have utilized its peremptory chal-

lenges had the error not been committed.

ARGUMENT

The state in this cause urges that Witherspoon error

should be rendered harmless where the state demonstrates that

it would have peremptorily excused the venireman in question

had he not been excused for cause. This argument clearly

contravenes the holding of this Court, in a case where the

state arguably retained a peremptory challenge, that the ex-

clusion of even one venireman on grounds broader than those

of Witherspoon precludes the imposition of the death penalty.

Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed 2d 339

(1976) The possibility of capital punishment in a criminal

trial demands this high standard for jury selection. It is

not argued that the state cannot comply with the mandates of

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed

2a 776 (1968). Nor should such argument be entertained.

Further, this Court should not consider seriously any

attempt of the state to exercise peremptory challenges reserved

at the time of jury selection retroactively. Fundamental

fairness prohibits any consideration of such an attempt.

) aa al

The Texas Court of Criminal Appeals has rejected such an attempt

in Grijalva v. State, 614 SW2d 420, 424-5 (1980). The doctrine

announced in Witherspoon should not be eroded, certainly not in

the manner argued by the petitioner in this cause.

CONCLUSION

For the reasons stated, Respondent respectfully prays

that the petition for writ of certiorari be denied and that

the judgment of the Court of Appeals be upheld.

Respectfully submitted,

s P. Finsyrom

ounsel for Respondent

2620 Cedar Springs

Dallas, Texas 75202

214-747-9603

Texas Sar #07038000

CERTIFICATE OF SFFVICE

I certify that I served petitioner in this cause with

a copy of this brief and the application to proceed in forma

pauperis with supporting affidavit by placing same in the

United States Mail, postage prepaid, on the Ys a day of May,

1982, through its attorney, Leslie A. Benitez, Assistant

Attorney General, P.O. Box 12548, Capital Station, Austin,

Texas 78711, and upon the Solicitor General of the United

States.

o—P.

Coe AL

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— Way 2 i 1982

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IN THE

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forma pauperis in this cause, according to the Rules of this

ther relief to which he may be entitled.

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ames P. strom

ounsel for Respondent

, 2620 Cedar Springs

Dallas, Texas 75202

214-747-9603

Texas Bar #07038000

Court, and for such o

NO. 81-2048

IN THE

UNITED STATES SUPREME COURT

. OCTOBER TERM, 1981

W. J. ESTELLE, J2., DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

Vv.

MARK MILTON MOORE,

Respondent

AFFIDAVIT IN SUPPORT OF APPLICATION

TO PROCEED IN FORMA PAUPERIS

I, Mark Milton Moore, being first duly sworn, depose and

say that I am the Pespondent in the above-entitled cause; that

in support of my Application to Froceed in Forma Pauperis 1!

am unable to pay the costs of said proceeding or to give se-

curity therefor or to pay printing costs or attorney's fees;

that I believe I am entitled to redress.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability to

pay the costs in this cause are true.

1. Are you presently employed? No, I! last was employed as a

janitor in 1974 for approximately $500.00 per month.

2. Have you received wgthin the past twelve nonths any income

from a business, profession or other form of self-enployment,

or in the form of rent payments, interest, dividends, or other

source? No.

3. Do you own any cash or checking or savings account? No.

4. Do you own any real estate, stocks, bonds, notes, auto-

mobiles, or other valvaple property (excluding ordinary house-

hold furnishings and clothing? No.

5. List the persons who are dependent upon you for support

and state your relationship to those persons. None.

I understand that a false statement or answer to any

question in this affidavit will subject me to penalties for

perjury.

DPQak Titten ise

Mark Milton Moore

STATE OF TEXAS

COUNTY OF WALKER

SUBSCRIBED AND SWORN TO before me this RS day of May,

1982. f ‘

<4 ¢-$2 S_

Notary Public in and for

Walker County, Texas

3.8. ESTES

‘TARY PUBLIC, WALKER COUNTY

My commission expires: gy COMMISSION EXPIABS 2027-65