Petition — O'Bryan v. McKaskle

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83-5626

w. 83-5 OCT 21 163

OFFICE OF THE C: - ax

: SUPREME COURT, U.S.

In THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ROWALD CLARK O' BRYAN,

PETITIONER

VERSUS

DAN WV. McKASKLE, ACTING DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

Will Gray

Petitioner's Lawyer

2038 Lexington Street

Houston, Texas 77098

(713) 759-0585

MOTION TO SUBSTITUTE. PARTY

To the Honorable Court:

The Petitioner, Rorald Clark O'’Bryar, moves the Court to

substitute Dan V. McKaskle, Acting Director, Texas Department of

Corrections for W. J. Estelle, Jr., who hes resigned and is no

longer connected with the Texas Department of Corrections.

Respectfully subsitted

WAY Cina

Will Gray 1

Petitioner's lawyer

TABLE OF CONTERTS

Questions PRESERCEDc cc ccccccccccccccesccccescoccoccoces

Opinion BelOWececcccccesesesssesesesesesseseeesssseeeees

DUP SGI CCION. ccccercesessssseesesssseseeeereereeerereee

Constitutional and Statutory Provisions Inwolwed.....+2

History of the Rabe i esas ebeaebecoecercccocceed

Statement of the Piiidcdiseeneeedesecseresesccezeseed

Suamary of the APGQUMEAL. wc cece eeceeeeeeeeeeeeceeeveel

Ar Queent...cceccccccccccccccccccssccccccccccsccscsseel®

1. Whether the exclusion of prospective jurors

Wells, Pfeffer and Bowman violated the stan-

dards required by Witherspoon v. Lllinois, 391

u.S. 510 (1968).

Il. Whether the standards used ty the Courts

of Appeals in sustaining the State's exclusion

of prospective jurors Wells, Pfeffer and Bow-

man, violated the standards required by wither-

spoon v. illinois, 391 U.S. 510 (1968).

Ill. Whether witherspoon wv. Illinois, 391 u.S.

u.S. $10 (196 r urden of proof

upon the defendant to show that @ prospective

juror is not disqualified where the State

first esteblishes his or her automatic oppost-

tion to the death penalty and the defendant

then obtatns Rls or her equelly wnequivoce!

answers that he or she could truthfully answer

the punishment issues upon which the ultimate

penalty is based.

Jurors Wells and i A a ehSebeseoccesocoocel®

Juror Plellelecccccceccbecesesenscocosecoosocccccccccclds

Standards used by the Court of Appeals in

its de novo examination of the trial record.......+..28

Canc leslelcccccocecccccesescesoscccescosccccoscoescccd®

PrayereccccccccccccccccccescccccccssssccessseessesesssO

Certifications cccccccccccccccscccesccvccssccccccsccessO

IMDEX OF AUTHORITIES

Adams v. Texas, 448 U.S. 38 (1980). ceeeeceeeercne ee sPasste

Aitken vw. Washington, 403 U.S. 946 (197 L) eccccccecceccceeelB

Alderman wv. Austin, 663 F.2¢ (Sth Cir. 1981), 15,23

adhered to en Banc, 695 F.zZ¢ (Stn Cir. ee Ee

Autry v. Estelle, a coos Mo. A-242 (1983)....-++-28,29

Boulden v. Hol@an, 394 u.S. 478 (1969). .ceccceeecceee eh? 18,

20,26

Burns v. Estelle, $92 F.2¢ 1297 (Sth Cir. 1979),

adheres to en Banc, 626 F.2¢ 396 (Sth Cir. 1980).....-15,17

Davis vw. Georgia, 429 u.S. 122, 129 (1976). ceceeeeeeeed4,l?,

Darden vw. Wainwright, 699 F.2¢ 1031 (11th Cir.

» re r en banc grantec, F.2¢

T9ES) s Seye crtte tite Kertt ©, 3 sm. ATE oe

tite e vel ye test te _ + .2¢6 rT;

YT. 983) (en Banc); © on

es ranted,

vacated, pe rehearin en banc

September 1, 1983; ce tited on September 12,

eee eneeevevee eeeeeeeweeevereer eseeeeeeeenere “en rere “ene eof 15, 2?

Granviel wv. Estelle, 655 §.2¢6 673 (Sth Cir. 1981),

cert. dented, 455 U.S. 1007 (1982). ..eeeeeeeeeerere® ~ 35,17,

Gregg v- Georgis. 426 U.S. 153 (1976)...-- necdedeeascouugee

Hance v. Zant, 696 F.2¢ 940 (Lith Cir. 1983).---eeeeee 15,27

Lockett v« Onio, 438 ’.2¢6 $86 (19TB) ccccecccccccccccececee lB

Marion v. Beto, 434 F.26 29 (Sth Cir. B97IO) ccccccccccccccced!

Maxwell V« Bishop, 398 u.S. 262 (1970) .ccccccececceccsceceel®B

Balkcom, 705 F.2¢ 1853

: .2¢ 1043 (llth Cir. 1983).......15,26

Moore v. Estelle, 670 F. 24 $6 (Sth Cir. 1982),

cs t. dented, __—-U«S~ is 73 t.€6.2¢6 1375 (1982).....15,27

O'Bryan v. State, $91 $s. w.2¢ 464 (Ton-€s Bop.

cert. denied, O'Bryan v- Texas, 4 u.S.

988 REE, SSRite, Sere te ete: eeracneseceeeeesesseed

O'Bryan v. Estelle, 69! F.26 706 (Sth Cir. 1982)....---4,13

O'Bryan v. Estelle, 714 F.2¢ 365 (Sth Cir. 1983)......-passi@

mcCorquodale ¥.

Porter vw. Estelle, 709 F.2¢ 984 (Sth Cir. 1983)...--++e)?

Proffitt v« Fioritda, 428 u.S. 242 (1976) cccccccccccesedOo88

Pulley vw. Harris, 692 F.2¢ 1189 (9th Cir. 1982),

U.S.__, Mo. 82-1095 (March 21,

witt v. Matmwright, 707 F.2¢ 1196 (Lith Cir.

ca” cccccvecccccccnceccoccccosscocosoeel eel

Witherspoon v. Iilinots, 391 U.S. 510 (1978). .ceeeeee passion

Zant vw. Stephens, oe ee 103 $.Ct. 2733 (1983).....16,28

Amendment Six, Constitution of the United StateS.ccceeceeeed

Amendment Eight, Constitution of the United States...seeere2

Amendeent Fourteen, Constitution of the United States....--2

Rules 17.1(e) and (c), Supreme Court RaleSccccccsscoosccecss

28 U.S.C., Section 1257(3).-eeeeeeereees eeccces soecevccesoes

Article 3$.17(2), Vernon's Annotated Code of Criminal

POCEOULEs cccccccccccscccssssosesessssres® ORR SIE ey

Article 37.071(b)(1) ane (2), Vernon's Annotated Code

of Criminal Procedure...-ceeereerererrescrccrcccccee® ee

¥.7.C.A. Penal Code, Section 19.03(a)(3).cceee eeedee jonoewee

¥.7.C.A. Penal Code, Section LZ. 3) (BD) coc ccceceeesesessees 2,3

QUESTIONS PRESENTED

WHETHER THE EXCLUSION OF PROSPECTIVE JURORS WELLS, PFEFFER AND

BOWMAN VIOLATED THE STANDARDS REQUIRED BY WITHERSPOON V.

ILLINOIS, 391 U.S. 510 (1968).

WHETHER THE STANDARDS USED BY THE COURT OF APPEALS In SUSTAINING

THE STATE'S EXCLUSION OF PROSPECTIVE JURORS WELLS, PFEFFER AND

BOWMAN, VIOLATED THE STANDARDS REQUIRED BY WITHERSPOON V.

ILLINOIS, 391 U.S. 510 (1968).

Ill

WHETHER WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968) PLACES THE

BURDEN OF PROOF UPON THE DEFENDANT TO SHOW THAT A PROSPECTIVE

JUROR IS WOT DISQUALIFIED WHERE THE STATE FIRST ESTABLISHES HIS

OR HER AUTOMATIC OPPOSITION TO THE DEATH PEWALTY AND THE

DEFENDANT THEN OBTAINS HIS OR HER EQUALLY UNEQUIVOCAL ANSWERS

THAT HE OR SHE COULD TRUTHFULLY AWSWER THE PUNISHMENT ISSUES UPON

WHICH THE ULTIMATE PENALTY IS BASED.

WHETHER THE FAILURE OF THE COURT OF CRIMINAL APPEALS OF TEXAS TO

CONDUCT A PROPORTIONALITY REVIEW OF THE PETITIONER'S SENTENCE TO

INSURE THAT IT WAS NOT DISPROPORTIONATE TO SENTENCES IMPOSED IN

SIMILAR CASES, VIOLATED THE EIGHTH AD FOURTEENTH AMENDMENTS TO

THE CONSTITUTION OF THE UNITED STATES.

OPINION BELOW

The opinion of the United States Court of Appeals for the Fifth

Circuit has just been reported. O'Bryan v. Estelle, 714 F.2d

365 (Sth Cir. 1983). [Appendix *a*).

JURISDICTION

The ruling of the United States Court of Appeals for the Fifth

Circuit war entered on August 26, 1983. On September 18, 1983,

the Court of Appeals granted the petitioner's motion to stay the

Bandate of affirmance and entered an order Staying his execution

until October 28, 19f3, pending the filing of his petition for

writ of certiorari in this Court.

The jurisdiction of the Court is based upon 28 U.S.C., Section

1257(3), and Rules 17.1(a) and (c), Supreme Court Rules.

COMSTITUTIOWAL AND STATUTORY PROVISIONS INVOLVED

This cese involves the following constitutional and statutory

provisions:

+. Amendment Siz, Constitution of the United States: "In ell

criginal proceedings the accused shall enjoy the right ® ® ® to

have the Assistance of Counsel for his defense.*

2. Amendment Eight, Constitution of the United States: “ee 8

(NJor cruel and unusual punishments inflicted.*

3. Amendment Fourteen, Constitution of the United States: ** ® ®

(Nlor shall any State deprive any person of life, liberty, or

property, without due process of lew ® ® ®,*

S. V.T.C.A. Penal Code, Section 19.03(a)(3): "A person commits

an offense if he commits murder as defined under Section

19.02(a)(1) of this code and: ® ® ® the person commits the surder

for remuneration or the promise of remuneration ® # #.*

5. V.T.C.A. Pemal Code, Section 12.31(b): "Prospective jurors

shall be informed that a sentence of life imprisonment or death

is mandatory on conviction of a capital felony. A prospective

juror shall be disqualified from serving #5 = jutro: vniese. 4s

states under oath thet the smandstory penalty of death or

imprisonment for life will not effect his deliberations on any

issue of fact."

6. Article 35.17(2), Vernon's Ann. Code of Criginel Procedure:

"In a capitel felony case, the court shell propound to the entire

panel of prospective jurors questions concerning the principles,

as applicable to the case on trial, of reasonable doubt, burden

of proof, return of indictment by grand jury, presumption of

innocence, anc opinion. Then, on demand of the State or

defendant, either is entitled to examine each juror on voir dire

individually and apart from the entire panel, and may further

question the juror on the principles propounded by the court.*®

HISTORY OF THE CASE

Petitioner was convicted of capital murder under ¥.T.C.A. Penal

Code, Section 19.03(a}(3), the jury finding that on October 31,

197%, he intentionally caused the death of his eight-year-old son

by poisoning his with cyanide in order to collect the proceeds

from insurence policies that he nad placed on the boy's life.

At the punishment stage of the trial the jury found that (1)

petitioner's conduct thet caused the death of the child was

committed deliberately and with the reasonable expectation that

the death of the deceased or another would occur; and (2) there

was @ probsebility that petitioner would commit criminal acts of

violence that would constitute & continuing threat to society.

Article 37.071(b)(1) and (2), Vernon's Annoteted Code of Criminal

Procedure. These affirmative answers resulted in a sentence of

death.

The conviction and sentence were affirxned by the Court of

Criminal Appeals of Texas. O'Bryan v State, 591 S.W.2¢ 464,

(Tex.Cr.App. 1979 ), cert. denied, C'Bryan v Texas, 546 U.S. 968

(1980).

Following petitioner's exhaustion of state habeas corpus

remedies, he filed # petition for writ of habeas corpus in the

United States District Court for the Southern District of Texas,

Houston Division, Cause Wo. H-80-1723.

Later the District Court granted petitioner's motion to dismiss

H-80-1723 without prejudice so that he could exhaust State

remedies made available by intervening decisions from this Court.

Petitioner filed a second application for writ of habeas corpus

in the State trial court on May 17, 19862, which was denied

without evidentiary hearing on June 2, 1982. The Court of

Criminal Appeals of Texas denied the application without written

Opinion.

A second petition for writ of habeas corpus was filed in the

United States District Court for the Southern District of Texas,

Houston Division, H-82-2873, on September 29, 1982. The District

Court denied the petition without a plenary hearing and refused

to either stay petitioner's execution, scheduled for October 31,

1962, or to grant ea certificate of probable cause.

On October 27, 1982, the Court of Appeals granted a certificate

of probable cause and entered an order staying petitioner's

execution. O'Bryan v Estelle, 691 F.2¢ 706 (Sth Cir. 1962),

Gissenting opinion by Judge Gee.

The judgment of the District Court, denying habeas relief, was

affirmed by the Court of Appeals on August 26, 1983.

Petitioner's motions to stay the mandate and his execution

pending timely filing of @ petition for writ of certiorari in

this Court were granted on September 19, 1983. The stays were

granted to and including October 24%, 1983. They are to continue

in effect until the final disposition of the case by this Court,

provided the Clerk of the Supreme Court files with the clerk of

the Court of Appeals a certificate thet the certiorari petition

has been filed. [Appendix "B").

STATEMENT OF THE CASE

The selection of the jury took place in the following sanner:

twelve veniremen were called and given general instructions by

the trisl court ses #8 group. Then they were interrogeted

individually, outside the presence of the other veniremen, first

by the judge, second by the prosecutor and finally, by defense

counsel. At the conclusion of the questioning, unless the

prospective juror had been excused for cause, the prosecutor

could either sccept his or exclude him by a peremptory

challenge. If the prospective juror was accepted by the

prosecution, the defense could exercise the same options. Those

accepted by both sides became jurors. The prosecution and the

Gefense each had fifteen peremptory challenges by statute.

Prospective jurors Wells, Pfeffer and Bowman were among the

first twelve of the sixty-seven panelists to be exemined.

In his address to the first panel of twelve, the trial judge

introduced the defendant and opposing counsel. He explained that

the indictment was mo indication of guilt; the Stete had to prove

the defendant's guilt beyond # reasonable doubt; the defendant

meec not prove anything and need not testify; and the defendant

was presumed to be innocent until his guilt was established by

legal evidence. (R. V. Il, 751-755; Appendix *C*).

Wells was the second venireman to be examined. (R. V.II,

763-771, Appendix "D"). The trial judge told Wells of the

necessity for any defendant to be judged by a fair and impartial

jury and that the jury's verdict must be based on evidence fros

the witness stand. (R. II, 762-763). Wells assured the Court

thet he had an open sind. :

The prosecutor informed Wells that the State was seeking the

death penalty for the defendant. Welis nad “"goral scruples"

against imposition of the death penalty, saying, "I don't think

that I am capable of issuing a penalty of death to any man." (R.

II, 764).

Wells could imagine @ case where the death penalty was

sppropriate or where he could give the death penalty, only he

could "hardly see himself doing it." Because of his religious

and gorsal principles and feelings he could not imagine a case

where he would vote for the isposition of death in the electric

chair. (R. Il, 765).

The prosecutor immediately “submit(ted) that the juror (was)

mot qualified © © ® .*

Wells was examined by the Court:

"Q. Mr. Wells, let me ask you a question before they

[defense counsel) have the right to ask you questions.

Because of your moral or religious scruples, would you,

if you were «se member of the jury, woulé you

Sutomatically vote against the imposition of capital

punishment not matter what the trial revealed?"

"A. As far as the electric chair is concerned?"

*Q. Would you personally, if you were s member of a

jury, would you automatically vote against the

imposition of the death penalty no matter what the

trial revealed?”

"A. Yes, I would.®

"2. All right."

"A. I would vote against it." (R. II, 766).

Weither the judge nor the prosecutor ever explained the Texas

Capitel punishment scheme to Wells. He was never informed that

the jury does not vote "life" or "death". He had no inkling at

this point that the punishsent was fixed by the jury's answers to

the special issues prescribed in Article 37.071, Vernon's Ann.

Code of Criminal Procedure.

Wells repeated to defense counsel that whiie he could isagine a

case where he thought the death penalty would be proper he

couldn't see himself doing it, giving it. (R. II, 768).

He gave the following answers to defense counsel, again without

the benefit of es detailed explanation of the Texas capitel

punishment procedure:

"9. © © @© and then, after a finding of guilt, if

there is one, certain questions will be subgsitted to

you as a juror. Wow, are you saying at this tise that

under no circumstances, regerdless of what the

testimony would be, under no circumstances could you

vote for the death penalty?”

"A. I don't think there are any that I pessidly could

vote for the death penalty.”

"9. © © ® (I)f you were selected as a juror, even

though the State has asked for the death enalty, could

you consider these two issues -- and ae ask you the

issues that you would perhaps be asked to consider.

All right?"

"A. All right.*

"9. © © 6 The first issue would be whether the

conduct of the defendant thet caused the death of tne

deceased was committed deliberately and with the

reasonable expectation that the death of the deceased

or another would result. Covld you answer that

question, sir, after you had gotten all the facts?"

"A. Yes, yes.”

"2. You could answer that all right?"

"4. Yes.*

"Q. And that wouldn't have any trouble with your

conscience, would it?"

PA. Ho.*

"Q. Then of course there would be another question,

and that would be whether there is @ probability that

the defendant would commit criminal acts of violence

that would constitute a continuing threat to society.

Now, could you possibly answer that question?"

"A. Yes, I possibly could answer that question.”

"Q. And would you have any quarrel cr any problem

with those questions?*

®A. I don't think so.”

"9. © © © and if you answered those questions, of

course, it wouldn't be up to you to do anything to this

defendant. Those are merely questions that you answer

to the Court. isn't that correct?”

"A. 1 would say yes.”

"Q. Could you do that, sir?”

"A. I could be es liberal answering the questions

as I could.*®

2. And you would answer those questions truthfully,

would you not?”

"A. Yes, as fer as my Opinions are concerned.”

"9. I know you're @ gpinister, are you not?"

"A. Yes, sir. That's correct.*

"Q. And you could answer those questions to the best

of your ebility and truthfully, could you not?*

a. Yes.*

"MR. HARRISON [defense counsel]. Your Honor, we

submit that this juror appears to be qualified.”

"THE COURT. Do you have a motion?"

“MR. HINTON (prosecutor). Yes, we renew our

challenge, Your Honor. He said there are n°

circumstances under which he could vote for the penalty

of death.”

*THE COURT. 1°11 sustain the sotion. eeee (RK. Il,

767-771).

Pfeffer wes the sixth prospective juror to be examined.

{Appendix “°E"}. The only preliginary questioning done by the

trial court was directed to the impact, if any, that the wide

publicity generated by the case had upon Pfeffer. (R. Ill,

869-871).

Pfeffer told the prosecutor that he had some reservations about

the death penalty. He could not sake @ good judgment to this

extent without some real physical evidence, oF some real

evidence. (R. I11, 872-873). He had "sized emotions" about it.

He was not necessarily opposes to the death penalty but it would

take an extreme set of circumstances for his to ever give it.

(@.. 12, 875).

At this poirt the trial judge took over the questioning.

Preffer egreed that while he was not necessarily oppored to

capitel punishment it would take en extreme set of circumstances

for him t> ever give it. (CR. Ill, 875). Voting for the deatn

penalty would be difficult Sor hie to do but there signt well be

some facts and circumstances that do exist whereby he could and

would, if ne felt it was justified, return 8 verdict of death.

He had mixed feelings and didn't really think that he could sake

a proper judgment, being @ border-line thinker on the subject.

It was # decision that he didn't know that he could make. He was

not saying that under no circumstances could he ever sake that

éecision. It would just take s very, very extreme set of

circumstences to do it. PF was not opposed to the death penalty

but in his own heart he just didn't know if he could sake the

decision, the proper decision. He knew the court would like @

direct answer, but that was the best he could do end it was 8

vague answer.

The court told Pfeffer: "the law requires that we have @

definite answer;" the law allowed people to be excused because of

certain beliefs that could be prejudicial or biased for one side

Or the other. Both sides just wanted to know if he could keep an

open mind, consider the entire range of punishment anc under the

proper set of circumstances, if they existed, return that

verdict.

"Indirectly", Pfeffer guessed he would have to say "no". He

would have to say "no* to give the court a “yes” or "no" answer.

The court followed up with these questions:

"9. Then, ag I to believe by virtue of that answer

that regerdliess of what the fects would reveal,

regardless of how horrible the circumstances may be,

that you would automatically vote against. the

imposition of the death penalty?”

"A. As 1 say, I don’t «now.”

"9. well, that's the question i have to have a yes or

"A. Right.*

“. And you're the only human being slive who knows,

Mr. Pfeffer."

"A. Right, I understand. If I have to make s choice

between yes and no, I would say that I couldn't make

the judgment.*

"9. You could not?"

"A. No, I don't think I could. Speaking in general,

I mean -- not speaking in general, but specifically,

emotionally, I have a mized feeling, but for the good

of everyone concerned, 1 would have to say I think in

any case of capital punishment I would have to say no

at the present tise."

- 106 e

*Q. You yourself could not do it?*

eA. W I think that is true. Yes, sir."

"Q. Whether somebody else say do it, we're not really

concerned about, but yourself could not do it?*

®A. Well, I believe this is true, yes."

"9. You yourself are in such 8 frame of swing that

regardless of how horrible the facts and circumstences

are, that you would automatically vote against the

imposition of the death penalty?”

A. well, if it seys @ yes or no, I would heave to say

yes, 1 would automatically vote against it, to give 8

correct answer." (R. I11, 883-885).

The trial court, obvioussy considering Witherspoon 3&8 an

exclusionary rule, pressed Pfeffer for an affirmative answer.

Finally, compelled to give & "yes" or "no" answer, Preffer

capitulated and defense counsel was summarily denied the right to

determine if he could answer the punishment questions without

regard to the effect of his answers. (R. Ill, 889-891)-

Veniremwan Bowman was the eighth person examined. [Appendix

"F"). He had no religious or moral scruples against the deatn

penalty. He had never liked it or been in favor of it. He did

not know if he could condemn a gan to death. If a gan was found

guilty, Bowsjan would certainly want hig to be punished. He

doubted seriously that he could assess the death penalty,

although he could give life or some othe punishment. He thought

thet in every case, no satter how serious it was, he would

automatically exclude consideration of the death penalty and

would in every case turn to some other form of punishment. He

thought he could only consider death if "it was closer to home"

and involved a member of his family. (R. Il, 913-918). The

State's challenge for cause was granted. (R. III, 919).

Judge Randell conceded that the Court did *not know whether, in

saying that he could and would answer the two statutory (penalty)

questions truthfully, Wells understood what the effect of those

answers could be.”

Judge Randall failed to note defense counsel's preface to the

question:

"9.8 © ® (I)f you were selected as #8 juror, even

though the State has asked for the death penalty, could

you consider these two issues -- and abt Sak you the

ssues that you would perhaps be asked to consicer.

All right?" (R. Il, 769

Altnough the entirety of the information conveyed to Wells fell

far short of a lucid explanation of the Texas death penalty

scheme, Wells did indicate that in spite of the fact that the

state had asked fer death, he could truthfully answer the

questions pesed by defense counsel. If wells did not understand

the effect of his answers as to the imposition of life

i@prisonment or the deatn penalty, then his feelings were not

unmistakably clear that he wouls automaticaily vote "no" to the

Special issues regardless of the evidence or that his feelings

would affect his deliberations on guilt.

Thus, because the reviewing court did not know from its reading

of the record whether Wells could put asice his opposition to the

death penalty, and obey the law, knowing the effect of his

answers they held his exclusion proper because. “we can only

speculate. If the requirement of ¥itherspoon and its prcgeny --

thet a venireman sust sake ‘unmistakably clear’ his or her

inability to follow the lew and abide by his or her oath, Adass,

supra, 448 U.S. at 88; accord, Boulden, (tv. Holman), 394 U.S. at

&83-8845 -- means that an appellate or federal habeas court that

cannot be certain from the face of the record about «@ verireman's

inability to follow the law sust, without further consideration,

grant the writ, then we would be compelles to do 30 here.*

(eapheasis added). (O'Bryan v. Estelle, 714 F.2¢ at 376).

Judge Randall esserted that, "(i)f we are forces to speculate

°- 12 -

in this case, it is defense counsel, not the State or the trial

judge, who failed to ask the necessary question." Id. at 377).

In his dissenting opinion Judge Buchweyer, said:

"We cannot assume thet Reverend Wells knew the effect

of his enswers to the death penalty questions, anyagore

than we can assume that he did not know. Mor can we

suppose, as Judge Higginbotham does, that Reverend

Wells did not know the effect of his answers (1)

because the defense attorney told hie these were

‘merely questions that you answer to the court,’ or

(44) because his statement thet he could ‘answer the

two statutory questions truthfully’ would make all his

other testigony virtual nonsense. PAT aa

rohibits such speculation -- and wakes it ciear

he critical question is not what exotic reasoning

might be applied to Reverend Wells’ answers by courts

or commentators, but what he meant by thes...Iindeed

‘only a tortured reading Sr this transcript’ will

Support any conclusion but the fact that Reverend Wells

first stated he would automatically vote against the

death penalty, but then said that he could truthfully

answer the death penalty questions.” [original

emphasis). (714 F.2¢6 at 812).

Judge Buchmeyer, admitting that it was not clear from the

record whether Juror Wells was, OF was not, isproperly excluded

unger Witherspoon, recommended that the case be reversed and

remanded for an evidentiary nearing. (714 F.26 at 13).

Earlier, a wajority of the separate Circuit Court panel, which

included Judge Randall, that grentec petitioner's motion for 8

stay of execution anc Certificate of Probable Cause, noted that,

contrary to the conclusion reached by the Court of Criginal

Appeals of Texas, venireman Preffer's true position wes that,

while he was uncertain about what he would do in any given case

involving the death penalty, there were some circumstences

("very, very extreme set of circumstances") under which he could

assess the death penelty, and that his exclusion from jury

service was, therefore, unconstitutional. O'Bryan v. Estelle,

691 F.26 706, (5th Cir. 1982).

- 13 -

SUMMARY OF THE ARGUMENT

Prospective jurors Wells, Pfeffer and Bowman were excluded by the

State triel court on # broader basis that that articulated in

Witherspoon v. IJiliinois, 391 U.S. 510 (1968), and Adams Vv.

Texas, 8468 U.S. 38 (1980). It is not apparent from the record

that they were irrevocably opposec to capital punishment or that

they would antomatically vote against the imposition of death as

the punishment in # proper case.

Neither the trial court nor the prosecutor demonstrated that,

even though these prospective jurors were apprehensive about the

task of imposing the death penalty, they could not set seside

these feelings and truthfully answer the punishment issues based

upon the evidence presented. Indeed, none of these veniresen

were ever given @ lucid, detailed and accurate explanation of the

applicable procedure. “A gan who opposes the death penalty, no

less than one who favors it, can Bake the discretionary judgment

entrusted to him by the State and can thus obey the oath he takes

as a juror." witherspoon v. Ililinois, 391 U.S. at 520.

And, "(unless a venireman is ‘irrevocably committed, before

the trial hes begun, to vote against the penalty of death,

regerdiess of the facts and circumstances that sight emerge in

the course of the proceedings’ (citation omitted], he cannot be

excluded; if # venireman is improperly excluded even though not

so committed, any subsequently imposed death penalty cannot

stand." Davis v. Georgis, 829 U.S. 122, 129 (1976).

The conclusion by two members of the panel below that it was

not clear from the record that prospective juror Wells was or was

mot disqualified under Witherspoon is hardly a finding of

unmistakable clarity previously required by this Court.

As the Court made clear in Adams, 448 U.S. at a7-488:

*s © © Witherspoon is not # ground for challenging

any prospective jurors. It is rather es limitation on

the State's power to exclude: if prospective jurors are

- We

berred from jury service because of their views sabdout

capitel punisheent on ‘any broader basis’ than

inability to follow the lew or abide by their osths,

the death sentence cannot be carried out.”

The fragmented opinion by tne Court of Appeals, addressed to the

State court's exclusion of prospective jurors Wells anc Pfeffer,

and the standards used by the majority, circumvent the rulings of

this Court in Witherspoon v Illinois, 391 U.S. 510 (1968), Davis

v. Georgia, 429 U.S. 122 (1976) and Adams v Texas, 848 U.S. 38

(1980) and overrule, sub silencio the en banc holdings by the

Court of Appeals for the Fifth Circuit in Burns v Estelle, 592

F.2¢ 1297 (Sth Cir. 1979), adhered to en banc, 626 F.2¢ 396 (5th

Cir. 1980) (en banc); and Alderman v Austin, 663 F.2¢ 558 (5th

Cir. 1981), adhered to en banc, 695 F.2d 124 (Stn Cir. 1983) (en

banc) and overrule other panel decisions, Granviel v Estelle, 655

F.26 673 (5th Cir. 1961), cert. denied, a55 U.S. 1007 (1982),

Moore v Estelle, 670 F.2¢ 56 (5th Cir. 1982), cert. denied,

U.S. , 73 L.Ed.26 1375 (1962).

The opinion below conflicts with the decisions from otner

Circuits. MoCorquodale v Baixcom, 705 F.2d 1553 (11th Cir. 1983);

699 F.2d 1043 (1983); Hance v Zant, 696 F.2¢ 980, (1ith Cir.

1963); Witt v Wainwrignt, 707 F.2¢ 1196 (11th Cir. 1983); But see

Darden v Wainwright, 699 F.2d 1031 (11th Cir. 1983), rehearing en

banc granted, --- F.2d <---, Wo. 61-5590 (11th Cir. April 6,

1983),aff'd by an equally divided court, ___ F.2d , (Tith Cir.

July 1, 1983) (en banc); opinion vacated, second rehearing en

banc granted, September 1, 1983; submitted on September 12,

1983).

The failure of the Court of Criminal Appeals of Texas to insure

that the Petitioner's sentence was not disproportionate to the

sentences imposed in similer cases denied hia of his rights under

the Eighth end Fourteenth Amendwents to the Constitution of the

United States. Pulley v. Harris, 692 F.2¢ 1389 (9th Cir. 1982),

cert. grantec, U.S. _, Mo. 82-1095 (March 21, 1983). Cf.,

Gregg v. Georgia, 828 U.S. 153 (1975), and Proffitt v. Fiorida,

&826 U.S. 282 (1976). See Zant v. Stephens, U.S. __, (103 S.Ct.

2733, 2782 and 27848, n.19 (1963).

ARGUMENT

POINT I

WHETHER THE EXCLUSION OF PROSPECTIVE JURORS WELLS, PFEFFER AND

BOWMAN VIOLATED THE STANDARDS REQUIRED BY WITHERSPOON WV.

ILLIWOIS, 391 U.S. 510 (1968).

POINT II

WHETHER THE STANDARDS USED BY THE COURT OF APPEALS IN SUSTAINING

THE STATE'S EXCLUSION OF PROSPECTIVE JURORS WELLS, PFEFFER AND

BOWMAN, WIOLATED THE STANDARDS REQUIRED BY WITHERSPOON V.

ILLIWOIS, 391 U.S. 510 (1968).

POINT III

WHETHER WITHERSPOON V. ILLIWOIS, 391 U.S. 510 (1968) PLACES THE

BURDEN OF PROOF UPON THE DEFENDANT TO SHOW THAT A PROSPECTIVE

JUROR IS WOT DISQUALIFIED WHERE THE STATE FIRST ESTABLISHES HIS

OR HER AUTOMATIC OPPOSITION TO THE DEATH PEWALTY AND THE

DEFENDANT THEN OBTAINS HIS OR HER EQUALLY UNEQUIVOCAL ANSWERS

THAT HE OR SHE COULD TRUTHFULLY ANSWER THE PUNISHMENT ISSUES UPON

WHICH THE ULTIMATE PEWALTY IS BASED.

This Court held in Witherspoon that «a state may not exclude

prospective capital jurors who do not sake it “unmistakably clear

(1) that they would automatically vote against the imposition of

Capital punishment without regerd to any evidence that sight be

developed at the trial of the case before them, or (2) that their

attitude toward the death penalty would prevent them from saking

an impertiel decision as to the defendant's guilt.” 391 U.S. at

522, nm. 21 (original emphesis).

"Only the most extreme and compelling prejudice against the

death penalty, perhaps only or very nearly a resolve to vote

against it blindly end in ell cirtumstances, is cause to exclude

a juror on Witherspoon grouncs." Burns v. Estelle, 592 F.2¢

1297, 1300 (Sth Cir. 1979), affirmed, 626 F.2¢ 396, 398 (5th Cir.

1980) (en banc).

In Porter v. Estelle, 709 F.26 984, 987 (5th Cir. 1983) the

Court said: "The triel court sust ascertain that the venireperson

who opposes capitel punishment can put aside his personal

convictions against the sanction and ‘do his duty’ as @ juror.

See Witherspoon, supra, 391 U.S. at 515 n. 7. Thus in Burns we

held that the trial court could not, witnout further questioning,

exclude a juror gerely because she admitted that the death

penelty would ‘affect’ her deliberations at the guilt/innocence

phase of triel ‘or any issue of fact,' 626 F.2¢ at 397-96 & n.2,

and we noted that even a ‘fixed opinion against’ the death

penalty was not per se disqualifying, 592 F.2d at 1299.

Similarly, in Granviel v. Estelle, 655 F.2d 673 (Sth Cir. 1981),

cert. denied, §55 U.S. 1003 (1982), 8 venireman's responses that

he did not ‘think’ he could vote for the death penalty, and did

not ‘feel like he could teke life in that manner’ was

insufficient to constitute « resolve to vote automatically

against the imposition of capital punishment. 655 F.26 677. When

there remains any ambiguity about the juror's unequivocal

rejection of the penalty, further questioning is necessary to

determine whether the juror could put aside his opposition.

Burns, 626 Fed at 398.°

A death penalty imposed after the improper exclusion of even

one juror on Witherspoon grounds “cannot stand.” Davis Vv.

Georgia, §29 U.S. 122, 123 (1976); Marion v. Beto, 434 F.2d 29

(5th Cir. 1970).

Most of the lengthy opinions by the pane) below were addressed

o 17 «

to the appellete habess corpus review standards applicable to the

Witherspoon issue.

According to Judge Randall, this Court "hes never expressly

steted what the standard of review of a Witherspoon challenge

should be. A review of Adams v. Texas, S88 U.S. 38, 49-5!

(1980); Lockett v. Ohio, 436 U.S. 586, 595-597 (1978); Maxwell

v. Bishop, 398 U.S. 262, 264-265 (1970); Boulden v- Holman, 394

U.S. 878, %84-888 (1969); and Witherspoon itself suggested to

Judge Randall that this Court was “engaging in an independent or

de novo review," deciding "for itself, based upon @ reading of

the transcript, whether s juror who was allegedly improperly

excluded under Witherspoon has made it unmistakably clear that he

or she would automatically vote against the imposition of the

death penalty, without regard to any evidence that might be

developed at trial, or that his or her attitude toward the death

penalty would prevent his or her from making an impartial

decision as to the defendant's guilt.” The judge alse properly

noted that this Court has given no deference to the triel court's

ability to observe the demeanor of the juror, "perhaps because

‘unambiguously’ or ‘unmistakably clear’ suggests there is no need

for such deference." (714 F.2d at 371).

Judge Randall recognized that this Court, in Aiken v.

Washington, 403 U.S. 946 (1971), summarily reversed a deatn

Sentence where the state court had found no Witherspoon violation

and had accorded some deference to the triel court. (714 F.2d at

373).

Despite these apparently settled principles, the Court of

Appeals by extensive dictum sought to distinguish appellate

review of Witherspoon challerges made in the context oc: @ direct

appeal from those raised on federal habeas corpus.

The panel majority then found it unnecessary to resolve “the

question whether and to what extent we should defer to the state

court's findings because we have concluded that even if we

« Be

proceed under the sore exacting standard resulting from de novo

review, the trial judge's exclusion of the three jurors in this

case was proper under witherspoon.”

JURORS WELLS AND BOWMAN

The rulings cited above, acknowledged Dut ignored by the Court of

Appeals, squarely support the petitioner's claim that, in the

cases of prospective jurors Wells and Bowman, it was the duty of

the trial court to demonstrate on the record that they could not

put asice their personal feelings and answer the punishment

issues based on the evidence presentec. This was not done. Even

after the ambiguity resulting fros Wells’ conflicting statements

arose, the trial court never explained the Texas punishment

procedure anc never sougnt to clarify tne ambiguity-

The ambiguity in the wells’ responses was noted by two sembers

of the panel below. Both the dissenter and the writer of the

majority opinion agrees that, ‘rom the trial recorc, they were

unable to determine whether wells could put aside nis opposition

to the death penalty anc obey the lew anc answer tne statutory

questions truthfully, knowing the possible effect of his answers

to those questions. Tne Court could "only speculate.”

Judge Randall conceded that "(4)f the requirement of

Witherspoon ® © ® that 8 venireman must make ‘unmistakably clear’

his or her inability to follow the law end abide by his or her

oath © © ® geans that an appellate or federal habeas court that

cannot be certain from the face of the record about a venireman's

inability to follow the law gust, without further consideration,

grant the writ, then we would be compelled to do 380 here.”

[emphasis added).

The panel's “speculation” led it to shift the burden of proving

unmistakable clarity from the trial judge end the state to the

defendant, a fundamental violation of Witherspoon and Adags.

Judge Randall asserted that "(i)f we are forced to speculate in

this case, it is defense counsel, not the State or the trial

o i<

judge, who failed to esk the necessary question.* (714 F.2¢6 set

377).

Judge Buchmeyer properly noted, (714 F.2d at 413):

"Finally, Judge Randall's ‘shifting burden’ of proof

-- which penalizes O'Bryan because his attorney failed

to clerify ‘whether Wells understood the possible

effect of his answers’ -- is novel, unsupported and

undefined. It is also erroneous: Witherspoon is &

‘limitation on the State's power to exciude,* and Judge

Randell's approach would persit prospective jurors to

be barred from jury service on ‘a broader basis" than

their inability to follow the laew.® {original

emphasis).

The constitutional imperatives inherent in Witherspoon,

reiterated in Adams, encompass neither an exclusionary rule nor @

requirement that the defendant “rehabilitate” a juror who has not

made it unmistakably clear that he would automatically enswer the

Texas punishment questions “no” to assure that the defendant

would not receive 2 death sentence or wouid automatically vote

*not guilty” at the first stage of the trial, no satter what the

evidence, so he would not be faced with the task of answering tne

punisnh@ent questions.

lt is incumbent upon tne prosecution and the trial judge to

show on the record that the excluded jurors failed the two-prong

ditherspoon test.

This Court recognized in Boulden v. Holman, 394 U.S. 476,

883-868 (1969) that "it is entirely possible that a person who

has @ fixed opinion egainst or who does not believe in capital

punishment might nevertheless be perfectly sable es a juror to

abide by existing law, to follow conscientiously the instructions

of a trial judge and to consider fairly the imposition of the

death sentence in a particular case.”

The Court specifically approved this statement in Adess v.-

Texas, 448 U.S. 38, 84-45 (1980).

The record in this cause shows that Wells had “a fixed opinion

against or [did] not believe in capitel punishment." It also

shows that he could answer ‘he punishment questions truthfully,

based upon the evidence, even in @ case where the State was

eo Be

seeking the death peralty-. (RR. Il, 767). A conclusion that Wells

di¢ not mean what he saic in answer to defense counsel's

questions, or did not understand the import of his answers is, #3

the court below frankly admitted, pure speculation.

All members of the panel overlooked or ignored the fect that

prospective jurors Wells, Preffer or Bowman were given no

explanation of the Texes lew and procedure appiicable to the

triel of a capital murder case, by either the trial court or the

prosecutor.

Article 37.071, Vernon's Ann. Code of Criminal Procedure,

provides that, if the eccuse¢d is found guilty of as capital

offense, the court shall conduct @ separate penaity proceeding to

determine whetner the defendant is to be sentenced to death or

life imprisonment. The penalty proceedings are conducted before

the same jury that determined guilt.

After the penalty evidence has been presentec, Article

37.071(b) requires tnat the following issues be submitted to tne

jury:

"(1) whether the conduct of the defendant that caused

the death of the deceased was committed deliberately

and with the reasonable expectation that the death of

the deceased or anotner would result; (2) whether there

is a probability that the defendart would commit

criminal acts of violence that would constitute &

continuing threat to society; and (3) if raised by the

evidence, whether the conduct of the defendant in

killing the deceased was unreasonable in response to

the provocation, if any, by the deceased.

a reasonable doutt, and the jury shell return @ special

vereses of ‘yes’ or ‘no’ on each issue submitted.

(e) If the jury returns an affirmative finding on

each issue sudmittec..., tne court shall sentence the

defendant to death...”

The prosecutor's questions were not directed to the ultimate

issue involved but were merely a threshhold inquiry into the

jurors’ ability to answer the special issues truthfully, knowing

that "yes' answers to all questions would result in imposition of

a death sentence.

No speculation is required to determine that it was the triel

judge and the prosecutor wno failed to ask the necessary

- 21 =

questions. The Texas procedcure requires that the two-prong

inquiry be addressed to, (1) ascertain that the prospective

juror, because of his opposition to the death penalty, would not

automatically answer one or sore of the punishsent questions *no*

to prevent igposition of the death penalty, regardless of the

evidence that might be developec at the trial of the case and,

(2) that his attitude toward the death penalty would not prevent

hie from saking arn impartial decision &s to the defendant's

guilt.

Where the prosecution elicits an unequivocal response frcoa a

prospective juror that he could not ispose the death penalty, and

would vote automatically against it -- without en explanation of

how *hat decision is reached -- and tne defense obtains equally

unequivocal responses that he could truthfully answer the

punishment questions based on the evidence-- without 32 detailes

explanation of the Texas law and procedure -- it is an affront to

the concept of fundamental fairness to charge the defendant, mot

the state or the trial judge, with tne duty of clarifying, o” the

record, the fact that tne juror’s exclusion violated the

witherspoon constitutiona) limitation on the State's power to

—~—_—

disqualify jurors who would not sutomatically reject the deatn

penalty, no matter what the evidence, or whose feelings against

the death penalty would not prevent thes fros making en impartial

decision om guilt. This is but another example of the Courts’

continued use of Witherspoon a3 an exclusionary rule and not as &

constitutional ligitetion on the State's right to exclude

qualified jurors.

It may well be that had wells, for example, been informed about

the Texas procedure, he would have been able to truthfully answer

the punishment questions. Many prospective jurors who assert

thet they cannot return @ verdict of death are able to answer the

punishment issues without regard to the result of their answers,

even though their responses say be “affected by" the fact that

death is a possible punishment. That is the intent of the Texas

- 22-

Statutory procedure in capital cases, ss ciarified by Adams.

Compare the excluded juror in Alderman ¥. Austin, supra, sho

could vote for s death sentence but could not sign a verdict of

Geatn as foreman of the jury.

@ells was ieft in the posture of the prospective juror sho

asserts that he has conscientious scruples against imposition of

the death penalty. Sitnherspoon, Adegs, and numerous other cases

teach that such responses are not enough. The problem cannot be

Solved by shifting the burden of proof [from the State to the

defendant. This cosmetic change will not do.

"As employed here [in the examination of wells and Bowman], the

touchstone of the inquiry © © © was not whether putative jurors

could and would follow their instructions and answer the posited

Questions ir the affirmative if they nonmestly believed the

evidence warranted it beyond reasonable doubt." Adamgs v. Texas,

46 U.S. at 49. Once Wells and Bowman disclosed their opposition

to the death penalty, withou” an understanding or explanation of

the Texas law, they were excluded without investigation into

their ability to answer the punishment questions based upon the

eviderce without regard to their feelings against capital

punisnh@ent. Their erclusion clearly violated Witherspoon.

JUROR PFEFFER

The examination of venireman Pfeffer demonstrated the classicgl

prospective juror who (1) is not opposed to the death penalty,

(2) has reservations and mized feelings on the subject, (3) is

seriously concerned about his ability to assess the death penalty

but who, nevertheless, could do so in a "very, very extreme set

of circumstances." It is clear from the totality of his

testimony that he was uncertain about what he would do in any

Given case involving the death penalty, but there were some

Circumstances under which he could assess it. He was ultimately

pushed into a corner by the trial jucge’s misstatement that the

law required him to give a "yes" or "no" answer. It was only

uncer this compulsion ("If I have to seke « holce Detweer yes

anc no, I would sey thet I couldn't sake the judgment") thet

Pfeffer was disqualifies The dissent below noted the impact of

this statement upon Pfeffer. "\Firom that point or every answer

Giver by Preffer was oOviousiy effected by the trial court's

@rcisec three critical responses given by Pfeffer after he was

compelled to give # “yes* or "no" answer. (1) "well, af it says

® yes or no, i would have to say yes, I would automatically vote

against (tne death penalty), to Give @ correct answer." (2) "I

think (sentencing) would [pose problems) because it would have a

Girect bearing on the outcome anyway, what we've been talking

adout with the judge a gwinute ago." (3) I think at the present

time that's correct [1 couldn't answer the penalty questions if

the death penalty resulted;, yes." (original emgpnasis). (714

F.2¢ at 415). Pfeffer fell into the category of prospective

Jurors who are "unable positively to state whether or not their

Gelibderations would in any way be ‘affected’ by the life or death

Gecision confronting then." But, as this Court clearly stated in

Acags, 44& U.S. at 50:

"(Nljeither nervousness, emotional involvement nor

Amadiiity to deny or confirm any effect whatsoever 13

equivalent to an unwillingness or an ‘inabIlTity on the

part of the jurors to follow the court's instructions

anc obey their oaths, regardless of their feelings

adout the death penalty. The grounds for excluding

(Mr. Pfeffer) were consequently insufficient under the

Sixtn and Fourteenth Amendments.* (714 F.2¢6 at 415)

The panel dissent recounts a second fundamental witherspoon

violation in Judge Randall's analysis of Pfeffer's exclusion in

he: assumption that a ge novo review "can Sigaply focus on one

response -- ‘the ultimate conclusion’ -- given by a juror during

voir Gire. In considering Witherspoon challenges, the voir dire

examination must be viewed in its entirety." (7148 F.2¢ at aOi,

m.7). "(TJo focus on two or three responses, and ignore the rest

of the voir dire is improper." (714 F.26 at 415).

Judge Buchmeyer's analysis of Pfeffer's entire voir dire led

hig to the following comclusion: “Accordingly, the ‘ingepentent

review’ of the state record reveals # confusing voir dire where

Juror Pfeffer seid that ne could igpose the deetn penalty in

extreme circumstances -- Dut lster said that, if forced to give a

definite answer, he would have to say ‘ac the present time’ that

he could fot vote to ispose the death penalty. It is not

"uP@istexe®iy clear’ whether Juror Pfeffer was or wes not

igeproperly excludes for cause." (714 F.2¢ et 415).

Preffer'’s exclusion was attenuated by the failure of the trial

jJucge, who conducted gost of tne examination of this juror, to

explain the Texas law and procedure applicable to capital cases.

Even under this handicap Pfeffer, at no time, Stated

umequivocally tnmat he could not vote for capital punishment

regarcless of the evidence. He never stated [and was never

askec) that he could rot answer tne punisnment questions based on

the evidence presentec, or that nis misgivings ebout Ais ability

to serve aS a capital juror would prevent him from ever returning

@ “yes” answer to the penaity issues knowing tne effect of such

answer.

Pleffer war excluded because he would be "affected" by the

Gravity of tne punishment and the awesome responsibility of a

juror in a capitel case. His exclusion, based upon the sistaken

theory that witherspoon ‘is an exclusionary rule violated the

Bancate of both that case anc the ruling in Adams.

it 13 apparent from a "fair reacing of the entire voir dire of

Juror Pfeffer, that he was excusei for cause either (i) because

he could mot say ‘in advance of irial whether he would in fact

vote for the extreme penalty in the case before hig,’ or (ii)

because he was unable to state positively whether ne could or

could not vote for the death penalty.* (718 F.2d at 415,

Gissenting opinion by Judge Buchmeyer).

STANDARDS USED BY THE COURT OF APPEALS IW ITS DE BOVO

EXAMINATION OF THE TRIAL RECOBO

Tne gsajority below conceded that it was not un@istaxadly clear

froe tne trial record, end could be established onmiy by

Speculation, that Bells could not foliow the lew end ebide by his

oath. The sajority furtner agreed that if witner spoon, Adcass,

anc Boulden sean what they say -- that if a federal nabdeas court

cannot be certain from the face of the record sbout @ veriresarn's

inability to follow the law <-- then petitioner say not be

executed by the state anc the court would be compelled to grent

habeas relief.

Tne panel majority overruled or distinguisnesc the suthorities

from this Court and those from its own Circuit and from the

Eleventh Circuit with the following reasoning:

"Tne State argues that we should not apply such @

rule in the circumstances of this case. It gaintains

that it clearly estadlisnec Wells’ automatic © osition

to tne death penaity uring its initial examinaticn of

him. Having done so, tne State argues that if tne

petitioner wisned to rehabilitate Wells as a juror

successfully, it was incumbent upon defense counsel to

taxe his inquiry into delis' ability to answer the

Statutory questions one step further Zs clarifyin on

tne record, whether Wells understood the possible

effect of his answers to those questions. The State

argues that, since tne defense failed to take that

step, the exclusion of Wells on the basis of his

ritial unequivocal statements of automatic oppositior

to the death penalty was proper. We agree.” (718 F.2d

at 376).

By adopting this new standard, the Court of Appeals shifted the

burden of proof to the defendant to sake it "unmistakably clear,

on the record, that @ juror can meet Witherspoon standards.

Tne fragmented opinion by the Court of Appeals, addressed to

the State court's exclusion of prospective jurors Wells and

Preffer, and the standards used by the pajority, circumvent the

rulings of this Court in Witherspoon v Illinois, 39° u.S. §10

(1968), Davis v. Georgia, 429 U.S. 122 (1976) and Adams v Texas,

458 U.S. 38 (1980) and overrule, sub silencio the en banc

holdings by the Court of Appeals for the Fifth Cirevit in Burns v

- 26 -

Estelle, 592 F.2¢ 1297 (Stm Cir. 1979), adheres to en banc, 626

F.26 396 (Stn Cir. 1980 ler banc); and Aldermar v Austir, 663

F.2¢ $58 (Sth Cir. 1981), e@nered to en banc, 695 F.2¢ 128 (5th

Cir. +963 er banc) end overrule otner panel decisions, Grenvie.

+ Estelie, 655 F.2¢ 673 (5th Cir. 1981), cert. denied, 855 U.S.

20 982), Moore vw Estelle, 670 F.2¢ 56 (5th Cir. 1962), cert.

denied, U.S. _, 73 L.£6.24 1375 (1962).

The opinior below confiicts with the decisions from other

Circuits. McCorquodele v Balk..@, 705 F.2¢ 1553 (11tn Cir. 1983);

699 F.2¢ 1083 (1983); Hance v Zant, 696 F.2d 9480, (Titm Cir.

1983); Witt v Wainwright, 707 F.2¢ 1196 (1?tnm Cir. 1983); But see

Darden v Wainwrignt, 699 F.2¢ 1031 (11tm Cir. 1983), rehearing en

banc granted, <--- F.2d <--, Mo. 81-5590 (1itm Cir. April 6,

1963),aff'd by an equally divided court, __ F.26 , (11th Cir.

July 1, 1983) (em banc); opinion vacated, second renearing en

banc grantec, September |, 1983; submittec on September 12,

1983

Each of the three opinions from the Court of Appeals in this

case is replete with suggestions for the gmodification of this

Court's @itherspoon constitutiona: limitations upon the states’

power to exclude prospective capita. surder jurors. They

unfairly deflect the sigple anc narrow issues involves in apn

-ffort to obtein this Court's amendment, modification or

abandonment of what was said in Witherspoon and reiterated in

Boulcen, Maxwell, Davis anc Adams. A desire on the part of the

courts to avoid setting aside the death penalty is certainly

farnec by the unspeakable facts of the case. This horror and

revulsion should not, however, affect the narrow constitutional

issue raised by the petitioner.

ARGUMENT

POIST IV

WHETHER THE FAILURE OF THE COURT OF CRIMINAL APPEALS OF TEXAS TO

CONDUCT A PROPORTIOWALITY REVIEW OF THE PETITIOWER'S SENTENCE TO

INSURE THAT IT WAS NOT DISPROPORTIONATE TO SENTENCES IMPOSED IN

SIMILAR CASES, VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS TO

THE CONSTITUTION OF THE UNITED STATES.

In Harris v. Pulley, 692 F.2é¢ 1189 (9tn Cir. 19862), cert.

grantec, et U.S. (March 21, 1983)., tne Court of Appeals

ordered the district court to set aside the petitioner's death

sentence "unless tne California Supreme Court undertakes * * *®

the determination of whether the penalty in this case is

proportionate to otner sentences imposed for similar crises.”

The Court based its ruling on Gregg v. Georgia, 828 U.S. 153,

167 (1976), end Proffitt v. Fiorida, 428 U.S. 282, 259 (1976).

Tne Circuit Court's analysis is bolstered by the subsequent

opinion in Zant v. Stephens, 9.8... We S.Ct. 2733, 2782

and 2788, 7.19 (1983), which stated that the Gregg pluralities’

approval of Georgia's capital sentencing procecure rested

prigarily on two features of the schegwje: (1) that the jury was

required to find at least one valid statutory aggravating factor

and to identify it im writing, anc (2) that the State Supreme

Court review tne recore of every death penalty proceeding to

detersinre whether tne sentence was arbditrary or

disproportionate.®

Tne Court of Criminel Appeals of Texas does not routinely make

a proportionality review in capital cases. This Court has

recently granted a Stay of Execution predicated upon the

proportionality issue arising in a Texas case. Autry Vv.

Estelle, __U.S. , Wo. A-282 (1983), epparently waiting the

—--

Court's disposition on certiorari of Harris v. Pulley, supra.

Since the petitioner in this case attacks his death sentence as

disproportionate, and since that issue is now pending before the

Court, he should not be executed while the identical issue is

pending in Harris v. Pulley, Supra.

CONCLUSION

A fair reading of the state trial record in this case amply

- 28 -

demonstrates that prospective jurors Wells, Bowman and Pfeffer

were excluded in violation of the Court's ruling in Witherspoon

v. Illinois, 391 U.S. 510 (1968). This renders immaterial tne

extensive dictum in each of tne three opinions from the panel

below regarding sodificatior, clarification or emendgwenrt to

either the Witherspoon standards cr the procecure applicable to a

determination of those issues by « federal habeas court. The

exclusion of tne nawed jurors violated Witherspoon and requires

that the sentence of death imposed against the petitioner be

vacated.

It seems epperent from all the recent Witherspoon decisions

rendered in the Fiftn and Eleventn Circuits that tne Starcarcs

required by that case have beer seriously erodes. Tne Courts

have used increasingly “exotic” reasoning (714 F.2d 412, dissent

by Judge Buchmeyer)] to affirm the exclusion of qualified capital

jurors. Thus a definitive ruling from this Court on the

Stardardés applicable to federal nabeas corpus review of

Witherspoor issues @ay be requires. Such definitive ruling,

however, is not required for the proper disposition of this

cause. A majority of tne panel below agreed that, unless the

burden of proof is shifted to the defendant, juror wells was

excluded in violation of Witnerspoon. Tne dissenting Judge also

properly concluded tmat, based upon his entire voir dire

examination, juror Pfeffer was improperly exciuded.

This cease can and should have been decided from a de novo

examination of the state record, without speculation or ®exotic®

reasoning.

Petitioner's claim that he was denied a proportionality review

of the sentence imposed in his case, should wait this Court's

Gisposition of Pulley and Autry.

eo 29 -

PRATER

For all the legal and factual reasons states above, the

Petitioner's sentence of death should be vacated. He prays for

that relief.

Respectfully submitted

2038 Lexington Street

Houston, Texas 77098

(713) 759-0565

CERTIFICATION

l certify that, om October <v, 19824, 1 watled a two copies of

this Petitior for writ of Certiorari, certified mail, postage

prepaic, to tne Honorab.e sates Mattox, Esq., Attorney Gereral of

- . . = - a7 ¢

Texzes, P.O. Bou 12588, Capitol Station, Austir, Texas 78711.

° 30 -

ee a

"a. eee

G¥3-S&2b

RFCE: VED

OCT 26 1983

v’ ‘ =.

SuPeiues a? $

the standard ced 7 the ure ‘ Appeals in

tete $s es 4% f pect ive yror ae R«

wmen. . o4 with those ert ated

, ‘ ohe 3 +” ~ onc Adgers v. "eeas,

witmerspoor v. i nots, ; 5S. D8 1968) ana

, a4e F " i De . plece the Burden of proof

Geferdart te show thet e prospective juror 1$ not

fer witherspoon end Adams:

the Texas Court of Criminal! Appeals’ failure to

srttionality review of Petitioner's Geatnh sentence

the sentence was not srtionate to sentences

ar cases violated Petitioner's rights under thre

srteenth amendments to the Constitution of the United

aoe ‘ a? - ‘ ‘auer - 6 faictnr, anc unless

- ees is ‘ rm pauperi< wil! he unabdie, solely

verty . gre ere ens ree . On.

eespe tty J sudmittecd,

ri AL

.- i wré

Counsel of Record for Petitioner

ZU36 Lexington itreet

houston, Texas 7/7098

1 3-759-uUSe5)

APPENDIX *"a*

OBRYAN +. ESTELZ

Che we T1478 ee (rE

werpon staled thet Une uefendant hed ap

pared “proper perma” bet m dd wot

eoctast th etditional words “without cour-

sei” The vermon alec stated that “after

said jury bad heard the evidence, argument

of couner! and th charge of the Cour...

they reurd lo conmder thew verfict” The

Seprem: (curt noted that 1 was pot clear

“ehether counsel war being used in the

saguler o plural, or [that] 1" Bm) event fo

explanation sas offered for the émcrepanr)

between the two ronda” id The Court

beid thal uneier (hem corrumstancrs, i¢.

here oo proffered versun of the comic

von afferiative'y showed “on 1s face” Ube

een .! coon a frewmpOn ee

roamed the. the peluoner hed beer demoed

bs nghl to counse! and therefore thet hea

woven ee vod id a li © SCt at

1 «The bekting @ 0 far cry from the

genera: presur=ptee of mvahdity urged by

comers course! In fact. we have heid

that 0 he) eas yetruoser has the burden of

proving tha! the comvortions vert by the

State te enhance bo seatence were encour

re ee

CBB ihe Cor 1974), cert domed, 42) US

9 SEO 8), @ LEAs (1975).

eee ako Howcyeutt + Ward, 612 F.2d 6.

4) (2d Cor 1979), cart demsed, 446 us

os. 00 SC. Bee 6+ L.Ed Od 86) (1980)

court her mci made any finding shout

whether the prae auviclons were in fact

thet the use of Unat conviction st petsUon-

eentuncing phase did not violate due

whether the convictions were uncounseied

and whether the use of Une convictions at

the peUloners sonlencing proceeding de

med him due process We underviand that

om the wmterval betecer our ieiephonre con

ference with counse! for both parucs and

the entry of Une opemon and omter counsel

for Une State may have obtauned evudence

that the prwor coeviclons were Cow parted

If eo thet evxdence may be introdvord ot

the hearnng. slong © th any other evidence

adduced by the partes Wher we have

obtained Une district courts rulong on those

penta, we will then conaxter the meuance of

« certuf cate of probable caus

Suay GRANTED

the Detnet Court

Instructions Govern to

Protect Appeiiant

WJ. ESTELLE. Jr. Director, Texas

Department of (orrectons.

Rrapondee Apecticr

Ne 82-7

United States Court of Appeals.

Fifth Cirewt

Aug 2B, 19

Dusenting Opinion Aug 193

Stale preoner, who was mcarcersied

on coeviction for the murder of bu son,

filed petition for habeas corpus The Unit-

ed States Dutrict Court for the Southern

ek! thet (1) exchumes of prospective jer

ors for couse was oct ender Wah

erwyoor (2) pettuceer's facbere wo object st

tne! te sbernce of instructor corer Thing

ercyumstances precloded such

cha'lenge on petuitor for habeas corpus. (3)

proreculor s commen durng chosing erry

om sentencing phase of ine! sbout

defendant's falure eo ask corte question

of defense ettnenses Gxt not deprive de

fendan! c’ fader atally few tral ond (4

comatit ution

mer \

rere oF yoroe = sot

mandated im caps caer

Al Orme!

Poinch E Higgetethem, Circe

J4ee. em 5 concurred and filed opemor

Rahmeyer Duwinet Judge, mung by

dew preteen dasreted and fied opener

1 Jen oe

if yuree decxdes thet be or she car

ss termne fects. it newer questions a

agg7st orcumetances as long o he of

she « not one who must actually pronounce

fata! words as to death penalty, juror can

aot be exciuded under Witherspror

714 FEDERAL RYPORTER, 24 SERIES

to emacs Gesth penelty prospective juror

was willing 2 Go wm 8 “very very «*

arcumstances” prospective

4 deny Oe

Nerther a dewp reivetance promeu ne

death penalty. stor of sheclute refase! \

do sO, Bee reeerveteor of death penalty for

only extreme &t of orcumselances w grown’

for exciuswon of prospective yuror for cou

wemiler WL aeryeonr

& Jory oie

Prospects puree s uneyuinvoca ste

ment that ™ © wei eulomaleal’y * ‘

against deaih ja ous suffaunt te jer

tly Ree e8Cve « for ave uade Witte’

agen, fote thalanding earier slalem™ ft

thal hk couwk) ooe™ death penalty '*

treme set of ciprumstances hu proiong

yacertanty and he cavests and queli{[«s

ons preceding urone vara! slates!

6 Jory ole

Prospect ve yuror's cavests ond quali!

cauom following ynequiveca! stalemer’

that he wook! automaucally vols agains

death pensity dxt not amount to kind of

effective rehabsitaioe of prospective juror

that would be aecessary to bold Unat excle

gon for couse ees error

trial judge may have thought thet prospes

arcemslances” wat * smoee

what was really an inabelity to assess deal?

penalty wader any circumstance

& Jory O 131118)

Tra! judge. harbonag suspicions tha!

prospective jurors profeseed wilhagness

qanees death penalty ms “very, very **

treme ert of circumstances” @ smoke strere

OBRYAN + ESTEUUZ

Cer oe 14 7 28 eS

for mabel'ty © aememe Gee"* penally ender

any corurwlunce hee tir rg ht, wither cer

tae hewistaons, to pursue bar of questoe

ing Genagret to Push out veeiremans (ur

% Jory oe

Preapective jurors respons that

coald umpcer Geath penal) if member of

ns farms!) hat been Billed! Gut not invendsle

excuse! Of opreapective juror ‘i auw

where of vicum had bees member of pro

spective jurors fasmly prospective juror

eoult have beet umabve lo eerve a juror

tecauer «/ inlerert ant prejudre im come

Verner» Ane Texas CCP art 35 16

1 Jeary 1?

Por purpose of eteigmon wader Wither

spoon, talemen! thal pruspective juror

cout om ome Goeth pera'ty eww om

amrt eof we ew ot be permed &

erve os ortually equrvaiert of shatem nt

thet jure woukl never vote 1 favor of

cage je

CCP a & 6

1) Hab as ( orpes @ 45.112)

Allboug? Sa cour ad

hime Vernon's Ane Texas

ot my

yor for habeas rehef

CCP aru Bi4 2615, bse int

tunity to rule of defendant's constitetons

dam Vernce’s Ana Texas CCP aru

M4 15

1h Habeas Carper 3%!)

Petitoner wes barred, by fadure to ob

ject ot trial to absence of jury metrectwr

ee miugsuag orcumsetances from cowris

charge. [rom remng clam about absence of

wmetrectce wm federa’ habeas proceed ag

@ USCA § 2H, Verne» Ane Texas

CCP ew Mi BS FT

14 Fabens Corpes © 301)

Court of Appeals was not barred from

revewing verator on hatwes peutuoner »

challenge lo consututonality of bu Geat>

sentence, i. thet he punmhment of death

based solely upon evetence wmiroduced a!

claum throughou! proceeding? of wasulficr

ency of evidence lo supper’ jery* finding

of probebsiity Unet he would commu crim

ne! acts of voters comststuling comunu ng

Unrest to socety and stale court reac hed

amen df dam BUSCA § ms Ver

aoe's Ann Texas CCP art 37 OT Wb?)

CA Const Amends | 10

368

sentencing phase of trial. on defense cown-

sels (adere lo question defense witnenees

coscerung defendant > reputsvon for beng

peacefc! and law-ebeding Glen, and

saggest thet counse! bad “mors! obligator

to ask such question of wilnessen was sot

error of constitu one! magmioce eautling

defendant to habeas rebef shere proseru

tor's ceemments were off the<uf! and a!

mot tangentially related to burden of

proof and trial court imetructad jury Unet

prosecutor bore burden of proving defend

eats future bryor! reasons

bie dwtt BUSCA § D4. Vernors

Ann Texas CCP art 3707)

1A Criminal Law 713

Prosecutor’: remaris dunnag chomng

argument af semteserng phase of caps

muvder trial on defense cownsc!’s [ature &

question defense wilnemers concerning de

fendams reputation for being peaceful and

taw-ebed.cg crusen. suggesting (ha! coor

hed “moral obligation” to ask such questior

of (he witnesses, did ect ampermermibty shi!

burden of proving special msves unde- Tex-

= capt artnle §=—- Verner 5

Aan Tere CCF art 37071

18 Criminal Law O 796

Constiivuon required no more. in sen-

\encing phase of capital murder prosecu-

ton, Unee that total court instruct pery Unal

promecutuon had burden of proving defen’

ants future dangerocusnem beyond -easons-

bie dow Vernon's Ann Texas CCP art

M7 S71.

2 Hemicide @- 104

Question of who should produce ev

dence of milgeung carcume.ances in capes

murder prosecution wes matter of state

law and siste court's decwson that defend-

ent bere such burden, entaded on consUto-

uers! <iolation Vernon» Ann Texas

CCP at TO

Zl. Criminal Lew @ 721%!)

Under Texes law, prosecutor may com-

ment on defendant's failure to cal! matena!

witness, and may draw an inference from

* Deere Judge of the Marthern Osstnct of | exas

1H FEDERAL REPORTER, 34 SERIES

thet failure Unal Leatimony would have beer

enfavorabie

Tl Criminal Law © 857(1)

Under Texas law. jory may not con

sider paamthiity of parole m its delheratior

on punwshrm rt

Tl Habeas (orpes Oo %

On habeas cocpus appeal, Court of Ar

peas reves of challenge to imetryctoons

gven in state criminal ie) @ narrow!)

hemted whether aslieged umpropmet) =

tafected esure imal Wal resulung conve

Won veolaies due proeee 2 USCA

4 ms

4 Criminal Law O79

Imstrucucs on parole @ Bot constitu

Uonally mandate’ in s capris! case = Ver

noe’s Ann Tesas CCP art S771. US

CA Comst Amend 4

Stanley G Schnexicr, Will Gray, Houston.

Tes for petitioner-<ppeiiant

Leslie A Benitez. Assi Atty Gen, Aus

tun. Tex, for respondent-appelice

Daved Crump. The Lega! Foundator of

Amercxa Sowth Texas College of Lae

Houston, Tex. amie: corse for Tetas Duc:

and County Attys Ass'n

Nicholas E Calo, Washington, DC. am»

6 ceurwe for Wastangion Legal Foundation

Appes! from the United States Dutric:

Court for Une Sowthern Dutriet of Texas

Before RANDALL and HIGGINBOT.-

HAM. Carcurt Judges. and BUCHMEYEX *.

Destreet Judge

RANDALL, Coreurt Jodge

Ronakd Clark O'Bryan was coovieted of

the murder of ha own chold mm a Texas stake

court im 1974 and sentenced to dee On

appeal from the federal dwtrict cosit's de-

eial of habeas corpus reef, B US‘

§ 2254 (1976), the defendant contends

(1) Uhat Une exchasion -{ three jurors

who e1premerd consmentlious objections U

the death penalty violated the rule of

tung by Grugnat re

OBRYAN + ESTELLE

Witherspooe + hon, 391 US $10, @

SC. 17, DL Ed de 776 (1988).

(2) Unal the Texas ueath penalty proce

gure @ urconstitwtona) because it Goes

en prov xtc for jury inetrectsons concere

ing MUgsung Circumstances.

(4) Unel the defendant's constituvona!

nghs were violated when the tral court

pertutied the prosecutor to comment or

éefens counsels failure ask Gefen

Silctms arian questions abou. the de

femiat’ s repulsven. anc

(4: that Ube tral court's refusal lo

stroct Ue jury of the law governing pe

role a it reistes lo perwons sentenced to

hfe mmprscnmest volsted the defend

ants due process nghu

Whe we are complied to recognar hel

O'Bryan has reamed « serous challenge \

the exchumoe of two of the Lnree juror

ender Witherspoon, we conclude Unni Une

@etrc: coort’s dena! of habeas corpus re

bef sbowld be affirmed

1 PACTUAL AND

BACKGROUND

O'Bryar was convaied of murdering LY)

exght-yrarcid soe. Timothy. for remuners

uor cr the promiare thereof namely, Une

procesds from s number of hfe meurance

pobcies on Timothy's hfe See Tex Pena!

Code Ann § 1908083) (Vernon 1974)"

The fects of Uther case as adduerd st inal are

ect forth wn detail om the Teves Court of

Criminal Appeals dapeertoe of O'Bryan

Groct apqenl O'Bryan + State 21S Wa

64 (Tea tr App 1979) (em Banc), cert de

aed WUS & 1 SO as. &

LEAD! 806 (1980) We have su nmarued

therm: orefly bere

Tre record reflects that O'Bryan, eho

works | a an optics ot Temas State Opt

ce) Compury. ned enous finasrm prot

lems «The ‘ame ly was delinquent on 8 SURY

PROCED( RAL

1 Th

ca) A pereem coments of cfiense ¢ cD

ans morte ot Grfeed ender Secume 19

Gye) of Om cot od

Tease Peas! Cod proves @ fewrver

‘ he pervan comwrets the murder fer rr

wuceretan or the prowess of reemanereten

and he wife was minoms!

In August, 1974, O'Bryan ined ensucees

fully to obtain cyanrte where be worker!

In September, he called s fread who

worked st Arco Chemica! Company, and Ue

two dacuseed Une warren aad evaslabslit)

(>) An fens: andr: thes eecusn & 8 capa

feteey «4 Tex Pomel Cade Amm § 19 Ghaxt xD:

Cioran 1974)

370

weata O'Bryan off wed w carry Un pry

styx for Une children Back ot the Bates

home, O'Bryan dwtrbeted the pury aty1

bas and Bates two chikdren. and gave 6

ff ack w 0 boy who ame & “Wk or

treet” at the door

Afver the Hallowces festivities had beer

compieted. O Bryer wok he children home

while he wife went to wm a fnend

O'Bryar informed tne chikdrer thst Ube)

could each have ome peece of candy before

goeng & bet Tirmothy chome the pary such

The ho bad trowble getting Ube candy out

of the tote, so O'Bryan rolled Ube rice in

hes han’ & home the candy ‘or bes sor

Wher Tim thy complauned thal whe cand)

had 6 betie> taste, O'Bryan gave him sore

hool- Ari to wash tt down

Time * mievhale ) totam vu and rar

to tSe bali ruom ehere he started wut

ing When Timothy became mecher and

went irtc convulmons, O' Bryer semmoned

ar smlulaxe |= Tum ay Good wither an

hewr afar he arrowed a! the borprtal Cys

mide was found » funds asperated frow. he

stomach and in bee bid §=The quantity of

cyanwe © ihe shove Ure

fate! b.man dow

blast was wel!

Thert was conficung tesiumony at tne!

concern. ng the cilent lo whech the defend-

ant sho«ed remorse ai Une bosprtal and at

bm som’) funeral Dunag the days foliow-

img Hawreeen, O'Bryan gave confhcung

planes as Lo Une ongne of Une pexy siya, bul

he eventually claimed Unat Uk peasy mys

came from the Melvin home Mr Meivin

was st work however, unt late im the

evening on Halloweer

O'Bryan was charged with and convicted

of capeia) murder Al Une sentencing pro

evading the Stste revntrodeced the evi

dence Lat (t Red presented at tna! and the

defendant presented mune lay wilnemes who

Stated tha’ they dod not bebleve that

O'Bryan «as likely to be a danger lo sorety

m the lutum The jury ansecred the two

special affirmatively? and O'Bryan

was veriina dtc du

2 A Texas inal jadge must semence a Griend

att to Ge of the pery returns affirmeuve an

wert ic (@0 SoeRetEES Unree, special ter

7M FEDERAL REPORTER, 34 SERIES

CBryas'’s conviction sad sentence were

affewmed by Ube Texas Court of Criminal

Appeals on September 1979 O'Bryan *

State, upra He applcaton for « writ of

ceruerer to the United States Supreme

Court was densed in 1980. O'Bryan». Teras

446 US ORF 100 SCi BTS. & LEA kt

(1980), as was bes first application for stat

habeas corpus rein /

In July, 1980. he filed a petition for fed

ers! habeas corpus rele! whch was de

mueeard withew! prejurere so thal he could!

return lo stale cowrt & present additions

ener neurtied claims) = second apphcallon

for state habeas corpus rele! eas demed on

September |. 1@C and hu execution dau

ect for October 31. 192 «(Un Septemter &

192. O'Bryan fied he second applicator

for feders! haleas rein f The dainet court

demoed he application for he wri and slay

of execution of Urtoter BD 1D We

granite! he apphcation for a stay and re

quest for a ceruficale of probable cause on

October 7 192 OBryan + Esiciie,

F.2d 706 (Sth Cor 1982)

I! THE ®T; HERSPOON ISSUE

Al least seventcen persons were excused

for cause from serving om the jury on the

bass of thew oppos:tson to the death pena!

ty O'Bryes challenges the exchumon of

Unree of them Jurors Wells, Pfeffer, anc

Bow man

In Witherspoon v [ihnow, 3%) US 510.

m@ SC. ITM, BD LEA Bi 776 (1968), the

Sepreme Court srt asxte a defendant's

death sentence where members of the ve-

eire had been excluded solely Gecausr they

had comsmentious scruples against capita!

punmhment The Court held that a poten-

ual juror could not be exeused for cause on

the bass of his opposition to the dealh

penalty unless he was “irrevocably comm!

ted, before the tra! hae begun, & vot

against the penalty of death rogardicss of

the fects and arcumslances thal migh!

emerge in the course of the proceceing. ~

rogatories «Ser Tex Code Crm ProAnmn art

37 07) (Vernan 1961) (set forth m relevant par

a nate 12)

OBRYAN + ESTELUZ 371

id at S22 21 BSA ait -2 Bi Sock

persons ma) be excluded only if they make

enamstakably clear (1) thet they would

eutomaucally vote aguast Une unpomtcs

of capes! pumwhment without regard

any evidence Unet might be developed at

Une Uva! of Use case before them, or (2)

Usal thew alutude toward tbe death pen

alty would prevent Unem from making an

umparia) Genmon as to the defendast’s

ren

ld (emphases @ orga!) The Suprome

Court masoned Usel 8 jery from etch al!

pervom «he had reserveleons agernet im.

peming he Geath penalty had been excluded

wes 8 fury “aerommoaly wilhag Ww cowr

éemrs mas & Cn ie ot S21 @ SC. at

Bots the Supreme Court and the -7cur'

have weaie!d open sinct edbirencor Ww Uk

manday of Witherspmon The courts have

requirec a death arntence to be or! aenk

ever of on! ome potentual puror he beer

exclude [or oppemng Ue death penalty on

Marce + Reto G4 Ft BD. 2 (ha Ce

1970), regardiess of whether the state hes

aay peremptory challenges remamng st

the cheer of vow Gore Alderman + Aart.

G68 F 2d S68, 564 a 7 (Sch Cir 10RD), a/Td

relevant part, @6 F 2d 14 (ub Cir 1955)

banc). Graaviel + Extelle, G56 F 2d 673.

T? a7

tae

PE Ske

a¥¥-

Witherapeos cases, Adams + Terres +4

US @ @41 most B21 aaa &

LEa 2d $4) (19D) Lerteti «+ Oho OF

US S86 96-97 @ SC BM D4

LEA 2d 973 (197%) Maree! + Bahop

US 2 mm @& W St) 15 18 B

L Ed Sf 221 (1970), Rowktes + Hotmar ™&

US Mma BS UB 10a 2

LE4Aat om (19) Witherspeor supra

sug wo a thal ot Uhowe canes Ube Cour’

war engaging (fF BF indepentent of de nov

revere By de Bowe revere oe mear (hat

Une Court appears to deede for art! based!

apor a reading of the transcript whether «

yer who was aliegetly improperly exciv

ed wader Witherspeme has made (« enme

tahably clear thal be of she would sutomat

wall vole agains! Use cmpemrloe of Ux

death penalty wiihew! regard & any evr

dence that maght be developed af tral, or

Unat be of ber aliiiede loward Ube deal

penalty would prevent bom of her [rom

making 2 wmparual Gecmmon as lo Ube de

fewdast's guili No deference appear to br

green te the ww! court's ability to oteerve

the Gemmeener of Ube yorer, portage bec

Witherqpees's reqerement thet «4 juror

west mabe be @ ber ews “enaminguows

ty” of “wemmetehably cheer” euggee Uhe'

Unere = ao aeed fer such deference Sages!

maeUy, however Une bagh Courts decuons

have geecrally bers made « the epee | of

0 Grect crwmenal appre!

WJ itherspoce challenges m the lower fei

eral courts are remed im the costert of

federal habeas proceedings § in the trad

teal joror bess case, federa) habeas review

of a state trial court's findings & more

narrowly crcumarnbed than = appetite re

wiew in 6 direct criminal appea! See Smith

qpeee ewe bed bees record @ the federe! oF

See cows below )§=—Accora@ngly) the Cour re

beth cases to the lower federal courts

Conesderstuen end ¢ secessery o*

ef mate reererers

372

+ Pager 65 US BB We SM 80 7)

LEd 3) 78 1982) Ie Seth, the peutoner

Manta pod Laat 0 jer # whe hed applied for

a law eaforcement pamice during ihe ina!

was preromplvety baneed against hem = The

Mele ina! coer! belt « poel-ire bearing

ond determ med (ha! Une juror he! pot teen

beaeed «=6T* + Supreme Court held thet mm 8

federal habeas ection lee Une one before «

the slate court: findoagy @rth reapert to

eciual <4) Ser “presempdéive!) correc! of

Ger BSC § Zed)” ant that “feters

courts * ser h proceedings must aot deter!

the fimlongs of slate cowrts eniews Une fed

ere) hele a Coort eruewlate(:! some Gein

for duarming such fimdungs of (me statutory

presumption thal Uney are correct :

102 SC. at M4 tng Semeer Mats 9

US 33 m1 SQ 14, @ LEAS 72

1981)) ae ate Regen + MeMulien 7

P2d 18S. 11M eo 10 (1ith Gr 19RD). ort

Gon ut Us 15 SC: Te 74

LE4 2! 96) (190) bet we Irv © Dowd

oes US 717 TH 8h SCR 1489. 1602 6

LEAD 7S! (196)) (habees came of whet

Seprem« Court bei’ Uta! juror bees

“mite fquestion of law amt fact” ond

therefore war duty of cowrt of apprak to

“vader ad -olly evaluate Ue ror dw lest

mony of the ompancied jurors”) (quoung

Reynotts + lated States @ 1 S 1465. 1%

DB LB: 244 (1978) Sence a Witherepmoe

challenge @ a form of a challenge for juror

teas Sot? would seem to imccate thal o

state cowrt’s fectea) fiedags evth reepect

\ 6 jerors wilhagnes Ww ampere the death

ponalt) shai! be entitled lo 8 presumpuor

of correctness under serton Tad) The

Court's requirement of strict edherence to

Witherwpows, however, ae. eg. Deve +

George 22 US 127 SC ww

L Ed 3! 30 (1976) (Geet) eemteoce must be

eet ame ewer of only ome prospective juror

@ excluded in veisiwe of Witberspace).

leaves us @rlh some doubts abowt whether

Une Court woukd apply Ux tradmonal yeror

bess standard of revew to s Witherapooe

challenge Purther, Ube Sepreme Court has

mot bern entirely) comsmtent in ts Lresiment

of the jeror bees casera §=Compare Smith.

supers (presumpuce ef corverinem scrorded

stale wort s fiecengs with reepert to actual

714 FEDERAL REPORTER. 24 SERIES

tees) rth Irvin supers (purer leet @ misext

question of law and fact lo te independent

ly rewrwed by sppelic& court)

The State marnLanns (hal « stale courts

fectual findings are entitled lo & presump

ton of correctness: ender sector Zaid) in

Witherspooe challenges as well Sew Abter

man + Austr GS F Bi 124. 1 (Suh Cor

1PAZ) fem banc) (Pay 2. deamenung) Dar

dens Bavergt: @ F di 10) 1 >

(1th Cir), pehearng cm bane great

F2d 1063 (Lith Co 198) (Pay J. saggest

ing Unat Sumner peeeumpine apples, be

spparcetiy engaging i uvtepeetent reves

of the propewt) of the lake inal court:

erchumoe of prowectres porees) Like Ue

Supreme Court however, the lower federa

cour cipreesly establahing «6

standard of mvew spyeer lo engage in 4

de nove ewes of BB theragewe challenge

on feters! habeas proceeings = MicCorgue

dae + Balkcom 6 F Bi 1553, 1554 ST 9

(1)th Co 10) Rell + Wathens @2 F Dt

7 Wee SM) Cor I Wiheams +

Magrw. 679 F Di TH) BAe AB th Cor 192

@ thew!

(en bane) cert Gere! Us m

Sc BAT Liao (19) Akk

man + Ausin GH) FP Bi be SO Ot (SP

Cor 19R2). aff'd w relevant part, @S F 2!

124 (Sh Cor 1983) fen bene) Creare! +

Extciie, 5 F dt 67) 677 TH (Sth Coe 198) )

Beres » Eeictle S22 Ft 127, 1300 0)

(hh Cr 197), aff d GS F2d 6 IT &

(Sth Car 198D) (em banc) Marcos + Beto

434 FP 2d B31 (Sth Cor 1970)

Some judges have suggested « Unrd poe

sitity according some deference Wo Une

tre! court's decumon in git of ts epporte

mily to obmerve Use purty s demeanor whik

he of she @ amewerng Une questions on ror

dre Judge Krevitch recently saggested

that where Uke questions asked of the pro

epectve jurors are precise and closely Lrack

Ube language ie Witherspooe, an appellate

court's deference Wo Une ial court's aaeeee

ment of Une clarity of the juror's aaewers «

appropna + + Mahon,

706 FOd 1563, 156) (1)ch Cir 1983) (Krav-

itch, J, Gementing). ave alo Mason + Balk

com, 7 FP Sepp S64 560 (MD Ga 1980)

(moung tral jedge's epportenity We observe

OBRYAN + ESTELLE

373

Cie ae 104 7 2 oe (ree)

aot iaier & jerer bel engaging = inde

pence! ana! seo! Witherspoon challenge)

rev lor other groweds G2) FP 2d SP (Sun

Co 0) cert deme Us ——, 2

SCt 1280 73 LEd2t of (1983) The

Mct orguedale majerty bowever, care! ally

“serv Ueded Une record os [its own! effort to

aacerla" Use correctaess of Une inal court +

fod cg woth regard te a vremreman’s wo

‘xin sabes! caprial punehment NX

P2d o| 1586 ST 8 9 oad noted thal

4a He engtor GUS $66 91 SO)

2 LB at 4 IST 1), Ube Supreme

em marily reversed a Gealh sentene

wher- (no slate cowrt hed fownd ao Wither

ye” Vrealor and Nec secorded some &/

Creme lo ie viel cowr

Lewr

As (@c—ew shen e

of th

hoecve’ Gur iwre

th coerrly Rass

etlalteohe" + standard for

appr 4le of collelere reves of Wither

‘a «6 Nabe ages Whee « sta tne

courts ‘actus! foedengs @ ah reepect & jer

o mw me, Sorres be oni lieed’ le a per

sumpuecs of cormctacas wt 6 feders! habeas

preeairg Smit swpre. o et least

some deference ip laght of the tna! court +

Opportun |) lo otmerve Une prospective paror

@uring vow Gore, Ube feders! cowry apprar

engage « « de nove rewee of Uke ta!

courts comclamons i cages where the de-

feadam compiam of a Witherspoce vols

wee FPortenswely, we do amt have & re

moive Une quesisce whether and we whei

exten we chowkd defer we the stale cow's

fading: beceuse we heave eoecieded the!

even \! we proceed esder Ux more exacting

Mandard resullung from de seve revere Une

tra! podge + exchumoe of Une Lhree juror in

the case was proper ender Witherspooe

“os we A wee ‘Ral

ne spec lca

B Jeror Wells

The first prospective juror excuard for

cause who has merited Ube defendant's at

tention in Unese habeas proceedings was the

Revervnd Charies D Wells While Wells

wes alte lo magne 8 case where 6 juror

wuld ow to umpose Une death penalty. be

was unr’ Wo me humarlf doing it, and on

furthe juestuonng stated that he would

setomalically vote against Une death pena)

Q Mr Wels Im Mike Hetoe ow Ue

Court wit you awhile ago for the

State. ond the @ omy cocownr! Mr

Vc Drecoll We come bere represent

mg Une Stale of Texas i the com in

wheh we an wewhing as Ube punch

ment for the defendant Une penalty of

death

Let m tegen Unen by seeking you

ehether of nel you Rave any conaren

bam mr. OF) 6PiQpess) | atrypie

agerns! Lhe ompnertor of Une penalty of

death in Une eleeine cha’

A Let me way [Aal mornily, | de

dont Uhera that [ am capaly

sn of death Wo any mar

YW All rg? Agar as Jwige Pree Wt

you 24 Meme? agu 80 off w hore

quarry! © > wour feeheg aad you ar

lam) sre enter! le your opmon: «

of of w ar i our good country. an!

Unat mciudes your fechags about ts

Geath pena’) Bul ender the ise

mest ask you tha further additions

question, Reverend. whch @ | take it

from your answer thal you cannot

wags 8 cas of murder where you

could, as one of twelve jurers, vote to

ered someone to Ube elect chew a 6

pemehment fer thew offemee ever

though wee euthertend by ststete’

A Weuld you repent yourself sow,

porene

Q Ye wr My question thet | must

ach you then, bee apes your former

anewer «| take & thet beonase of the

festag? nai you do have Unet you ary

& case where you, stling om 4 jury.

could vote lo send someone to death in

the electric char as & pumwhment for

thew crime even Unough Ube law autho

races such penalty’

A | can magne 1, but | can ace my.

self dung it

Q Al right Then! beheve we musi

[be) somewhere between cur bypothet:

cal case where you can immagine & jury

daag i"

- 2<«<-eeoee

374

A Ya

Q But you can't imagine yoursel! dung

it as ome of Uncer yerors, @ Unet correct,

ow’

A 1 can hardly oe myself dog 4, pee

Q Al night New | don) weet you &

grt angry with me and I'm pot trying

lo ergue with you, but | heave to ast

you for your anewer, because the lady

i taking down your testimony st the

tm for Une record

1 ake & then from your answer Unset

because of your religious aad mors!

por copes and feeling? Unel you are cer

tarrly eptitie!d w heave, you canact

wmagiee s case where you would vou

for the umpomtuoe of death m Une ciec

une chau = is Usa! correct, mr”

A So. 1 eos’

MR HINTON 1

submit that

Yur Honor

Uhank you. se = We

Use juror @ not qual!ed

EXAMINATION BY THE COURT

Q Mr Wetm wt me ast you 6 questor

Lelie ey have Une night lo ask you

Ow suena

Because of your moral or reiqnous

arupies, would vou. if you were

memter of (he jury, @ouk! you saute

matically vole ageinst Une imposrtucs of

cap a) punmhmen( so meatier whal Lhe

Uw) reveaied’

A As far as Une electre chew 2 we

carved”

Q Woukt you pereonaslly, if you were s

14 FEDERAL REPORTER, 34 SERIFS

exammation by course! for Une Stale and

by the court art forth above counsel for Ur

defendant dxectad Wells attention lo Uncee

ler queslors

Q Al right You understand of course

gobedy would ask you personally to pul

qomebady to death You endertian’

thet You personally do not have

pull Une wenich or someting”

A | emderstard (het

Q Surety And of course Unere's & int

of hepe to go lo between Lhe ime you

start tre! and Ue me you end the

\astumony and Ube defense puls of heir

testumony 20d of course there's « find

ing of guilt You undervtand thal

You do now of you haven! before Is

Uaat corre”

A Ye

Q Alinghi And ther after o finding

of guilt of Unere © one. corte ques

hx subeerited lo you a 6

juror are you s@yag st We

tome (hel ender & Orrumslences. re

gardiess of wha! Ute testimony woul!

be, ender no crrumstences coek! you

wote for Ue death penalty”

A 1 don't think there ore any that |

pommbiy coukt vote for Une death pena’

Noe

were selected ow 8 juror, even

FEE

OBRYAN + ESTELLE

Cle we 7047 28 ee (ree)

Q And that workin’! heve any troubéc

wit) your comemence. woukd 4’

A Ne

Q Tren of course there would be anctb-

er quewtoa, and Unat would be whether

Unere = (a) probabelity that ine defend

ant woul! comeut crimas! arts of vo

nee Une! would comstilete « comlee

ng Pree! © secretly Kew could you

jam bly anewer Unal question’

A Yeo | pommibly could amewer thei

yutsloa

Q And would you have any quarre! or

any probiem with Uncse questions”

A | doe) Ure’ ow

Q Al nmebt And of you enewered Une

queeccms of were « wouldn't be up

le you le do anything le Ube éGefendan:

Those are merely questions Unset you

arewer te Ue Court isnt that cor

met"

A | wowld aay yes

Q Cans you do that mr’

A | cowlt be as litera! is answernng Ux

’

quettiome wo | would

@ Am! you woukl anewer those ques

toms wthfully, would you ant”

A Yeu os lar a my opemons ar coo.

corte.

Q | know youre « minwter, are you

ni"

A Yes mr Thal s correct

Q And you could answer Uncee ques

toms te Ube best of your ability and

wvthlelly, could you at’

A Ye

& Thr -elewest peruee of Gee wor Gre co ont

forth oo ue Court of Crumenal Agpents apecson

ho you Reve cxprvesed an ofprciee to

the Goeth penalty Would you feet thet your

ore mt oferta to the Grek penee,

fie

375

2 Trial Trasecript ot 768-70 Ie apete of

Wells eamurance thal be cowld and wook

Unt if be and Ube other jurors anewered Use

Matetery questions im the affirmative, Ux

tre! pedge would be requred t sretencr

Une dGefeadani to death and our review of

Une record imdecatecs tas! af so poent im the

proceedings before Une vor dire of Wells

@xd Une court or cowner! render any such

explanation «We thus Go not know wheth

er. m= sayyng Unel be could cad would an

ewer Lhe (wo slatelory questions truthfully

Wells endersiced what the effect of thew

anewers cowk! be

The Texas Court of Crumenal Appeals was

PeeenUy prearnte! with s WB cherspone che!

lenge volving & prospective purer who

VIEWS Here in som resperls simkingly em,

lar e Unoer of Wells In Cuevas + Stale

64) SW3t SM (Tea Com App 1982) (er

banc), vemreman Ward mutually stated, in

Une words of Um cowrt of ermal appeals

“Unel ender no creumstance: coukl be par

Umpele as 8 juror mm retermng @ verdict

id at SOD After the “by

furcated system i Texas for aseeaming gwil'

and puemhment capetal murder cases”

A Mey! ost 6 queer” You any & 5 the

Cot end ao Ger pry (et eeecers Oe

pemehy «@ et ng’

Q Thats gt bet he Comet te cttageeed to

eseres Dore hore beer an Une aneer

ome 0 2 ae Wedd vow on.

i ond your eleectee te thet fore of

Percchomee eneviere wah the wey pom or

emereted apes ihe tects of Ue cone’

A Me © woudie)

376

While the court of crmina sppeals rebed

oe Adams ratixr than | )tberspooe, m et

ung smce Curves denim sentence,’ Une

court wes coevinerd thet Ward cowl? not

have bees exchuded consmtently with With

erepoo) ether becsusr “Th repentedly

stated Unset be qoukd follow Une lew an

convict epon proper evxience of guvt be

yond s reasonabie doutt. desyrie he oppem

uoe te Une death penalty ~ 641 SW 20 ot

{1] Cervas sharpens Ue sllumalr que

oe prearnied ty Weils eachusme just ow

a jure may be able te put eect bee om Ber

oppastis« to the death penalty and ote,

the las & ma be or she Goede (hat he or

she can decer@ ire Ue fects ie anewer Une

quesin ~ @ love OF oF ghe @ Mot ite om

who most actual! proncunmee Une fala

worts If the & Une porors anncieen

then % of she carnot be exciude! umier

Wuheryere Wart i Corm om jue

garth 8 puree. and the Texas Court oo’ Crm

aaj Arewah beld thet be escigmon Se

error

The \sresho.! question prearnied by

Wells’ vor dure @ shether Well nad U>

saree sows as had Ward The record wat)

coles thal be may hove held Whoee views

He slauwd Unat he could and would anewer

Ue staletory questions truthfully But im

view of Ube fect that Une record does not

conta:n ar explanation to Welle of the ef.

A Yo Se

714 FEDERAL REPORTER, 24 SERIES

hes or ber imabeliy to follow the law and

abede by bis or her cath, Adama, supra, 44

US ot & MOS wt BB. erred Bow

den mupra, US at a SCL ot

\141-43—eneare that an appeliete or feder

ai habeas court the! cannot be certa:m from

the face of the record shout « vemireman +

imability to follow the law must, without

any further conanteratioe. grant the en’.

then we woud be compelled to do a Bere

[2] The State argues that or ghowkd not

soply euch « rule on Ue orcumatancs of

the case «It maintains (Ast it clearly eatat>

eked Welle automat oppeetion to th

érath penalty during ( mia’ ereminatior

of em «= Maving Gore @ the Stal argue’

Unet if Une petitioner eae to rehatei tal:

Wells as a juror surcewfully | owas incum

bent upon Gefene coun® to uae beer

quiry ito Wells aivity lo ensecr the tla

ytlory questions ome burp further by clan's

ung. of the record ehether Welle under

slot Ube pemeete effect of bu easeer &

these questions «The State argves that

unce the defens [aled Ww lame inet ste}

the exchumor of Wels of Une base of he

(sual uRequivacal slatements of automa

opyasttsor, to Une Gea: h penally was proper

We agree wilh Ue Suk

mugh be ere! See Tew Penal Code Ano

sri 12 31D) (Vernon 1974)

G& We Reve bet for exampie thar 2 Uriel cour

cannes exchede & purer who says that be oF ahr

would be atte to serve as 2 puror Dut thet Be oF

she cowkd mot mage the werdct as Whe foreman

Alderman wpa GF ld wt BH

ab-lity & engage @ Wet (act-fimdung func

yon wit: knowlnige of Ube pomsibhe effect

af thanc findings oe the defeedaat’s fate

Thus the cofense [asled to do Accordingty.

we hoki thal Ur exchumor of Welle om Une

bases of hy mutal clear and enequivucal

gtatereols tral be woud sulomaucal'y

votes against the death penalty so meatier

what Ure inal reveskal Sas proper uncer

Wither.oor and ite progety

Tha holding = Bt inconedsten\ Salad

Burns wre, ir wth we hels that Une

excives* of jurce ikae wee wnproper be

couer +e Sere forced to spec ulale sho

ehethe shy could put asde ber daadeln f wn

the des'> penalty ead follow the law =

F 24 ot 130! Ie Burns Deas affirmed Una!

she “di &t beveve nm the death pena)

three Limes and stated “that the mecndalory

peralt, of deal? oF hfe mormon ment woul’

affect ber ‘Geiteratsons om OM) move of

fact = > com jd «The tne) cour!

questions because it could sot immagine what

else could have been asked Unfortanately.

that Ube death penalty might newt B-

ther ameect would toubUes have rehal»

al) questions meh! Mere teen The port

and responabic Olsen would not adm

as much, could truthfully swear the prop

osituon to be one of no concer? whatever”

possibality that he would sot have answered

the statutory questions on the base of the

evidence if he knew that an affirmative

378

anmewa & bol questions wouk’ mandate

the defendant's execwuorn The State

tablaied Welle enequrvecal opposer to

the Geuth penalty beryoed qpeculatoon

wes Ure incumbes( epoe the defendant’ if

he wished to rehabditele Ue juror. to ask

enough quesUons lo demonstrate thal Wells

could perform he fact-finding function in

aprte of bes oppamtuos is Une desth penalty ’

We were recent!) confroeted wrth « sem

lar fasure by defense counme! Ww renate!

tele 6 juror who bad expremen! ber opp

Won to Ube death peeaity im Porter +» E>

tale, TUS F 2d 944 (Su Cor 1983) In Porter

> reaponee to Une Stale s questions pro

epectiv: juror Herndon had repeatedly «x

Premed “longelanding convictions agains!

Ube dent” penalty Uel would (have) re

quireid her lo vole agunst (1) ae mailer

what the tna revenkcl” «6708 FP At ot Bee

She menuired het opperitee © mapone

leo ,;vwestiorm from defense owner! be’

when ssae! @hether sh could “put her

coevictees ashe anc do Ber duly ‘os 2

Juror i a Capea! Murcer cause’ ” she re

pued Wal ane cowid = id (emphases in ong

nal) Wher defense counsel objected to the

State's hal «nage for cause, Use Slale prent

ed out the! Ur general question asked

about Hermion’s ability to do her “duty as

jerer™ had not inehuded “Use w cond pred)

cle question in Burnes {that} if «

meant erictcim 8 mar lo éraih. could you

follow that duty" Id Defense counsel

Ged not ash an) more questions and the

jerer was cxcused for couse We held

Porter | hat

[ie vee of Heradoes repeated firm.

and wnecuiveca! statements of wrevoce-

bie [oppamuon te the) imposition of the

Gea) penalty ender any crcemstances,

we are unable Wo say ber limited reply

Una. “she cowk! do her duty as a juror ™

indxaied any vacilation ar equivecauon

im her previa statement of unalterable

7. Witherapeme hotds thet (he Gets eet ested

heh Ge’ @ purer + ewlomalx appoemtice to the

Gesth penalty © “wereeteketh) clear” While

& Geteraw who apeks to rehetetetr «2 pero

@ught not be held to ~xh an euectong Mandord

or CL Tes BO Wiew er to hom certam « ina

TM FEDERAL REPORTER, 24 SERIFS

oppamtuon lo imposition of Lhe Gealh pen

ality

708 F 2d ot 944-49 (empracn in orngina!)

Like the defense cowner! mm Pirter, defenae

qouneei bere dui not ask enough question:

we demonsirele Uhal Wells previously «7

premeed unequivocal oppum: Lion Lo Une death

penalty would not prevent bom from per

formung bu fenciior as a juror in 6 capila

cane

C Jderor Pleffer

Juror Plefler prem nls Ux opposite prot

lem from Wells Indeed. Ube vou dire of

Pfeffer may be the quittcasentsa! exampic

of o erteston it ehh would be appropr

ete fer an appeiiatlce cowrt lo grve al lea

some deference Ww Ue tra) judge whe hs

had Une opportunity Ww observe Une purer a

be or ae sirvggh> & £ an hones! ar

ewer to diffu! gucstom Regartics

whether euch defireme: «@ alvualle ovr

own wmdependent review of Une record unl

caves Uhal Ptellers eicriueeor em aot ,

violation of W there

As we oteerved in our Gecmon Wo gran

O'Bryan « sta, of executor. and a th

court of criminal appeals recognued. dunny

Une mutual two-dherds of Pieffers lengthy

vow dire examination (covering twenty four

pages m Une transcript), be was

equivocal in staling he powlor on capris!

penmhment He described bemerif a a

“borderime Uneker™ on Une meve of cap

tal penwshment, and expressed doubt thai

be could make the proper jedgment be

cause of bu “mized foehags” concerning

Une infliction of the death penalty

O'Bryan + Extclic, @) F.2d 706, 709 (5th

Cer 1982) Whee mformed by the tru!

court Unat he musi give a definitive answer.

Pfeffer stated thai he “would have to say”

that he cowld not rote to umpose the death

penalty, although be continued to add care

ats from time to lime, referring w th

necessity for giving Ube judge a “yes or no

judge chowld be before be oF she rejects the

Mates chadrnge for cause om the bess of the

Grtendem + rehatsin em of the juror Wer

bold only that the Gefener counsels sttemor a:

rehateitates eas wmullcent her-

OBRYAN +. ESTELLE 379

re he

anewer ~ “lo give 0 correct anewer.” of “for and ao, | would easy that | coukin'!

the goed of everyone concerned ~ make the podgment

THE COURT Well. the law requires 3 Trend Tremecrnpt of G84 Although

thot we have to hove 8 definite anewer Pleffer interspersed he answers from the

JUROR PFEFFER | cnderstand, rghit peret on in be vow dire with covets or

THE COURT Becaum the law docs al qualifeatioms such as Unewr referred to

iow pe to te excumed tne of above, there are a least (wo metances if

certase behets that cgid be preyed which if we focus on 0 specific question

cadirandehencn Bon eee

bor) snkes just want to knew if you can THE COURT You yourvwelf are in such a

bey 80 Ope 8 mend, comader Lhe emlire frame of mundi that regantions of how

hornide the farts ant corcumetlaners

ful rang: of punehmen, © hetever ,

th mes =. om! eneler Lhe proper ert are. that you wouk! sulomatically vots

of crrumulances, [ the) do expt and aguiast the wnpumtsen of the death

penalty” is thet correct’

JUROR PFEFFER Well of * says 6 yes

or no. | wouk! have We say yea, | woul!

eutomatcally vole agains. lo give «

correct anewer

THE COURT You would vote against”

JUROR PFEFFER Yeo

2 Tra! Tranerrpt ot 4 45 (emphase ot!

you feel Une) emet, that you could re

tec thal werdet Ami thats in @

a « Shal Ue) % asking

JUROR PREP FER Incwersl) | quem |

oe ult hew W @t r

THE CCA RT Youu anid ont*

JUROR PREPFER | ook! Pave & aay

tw en W five pow # Yes OF BO Baer ed)

TH (4 RU Teer am | wo beleve by Q (By Mr Harrace) Then, ender mo

vv of Ubat anewer thal regardke of

wi at (se fects wool reveal, -egardies

of tow hornible We coreurwlances may

tn (hal you would automatirally vote

carcemstances, Mr Pfeffer, could you

even Unet of voung of anewerng

theee questions if the result of those

questions: were Wo be to, in effet. mre

ie .& mujomton of the desth gometudy Ux death penalty is thai

catgut correct”

JUROR PFEFFER As | say. | dont A 1 think at the present me that’s

bnew correct, yes

THE COURT Well, that's the question |

havc to Reve @ ves of BO le

JUROR PFEFFER Right

THE COURT And you're the only he

man teung alive who knows, Mr Pief- seriously

fer amnees the death penalty, he was willing to

JUROR PFEFFER Roght, | understand

If | have \ make 6 chow: between yoo

& There & eee seppert mm the record of the

first (wrnty pages ¢ the woe Gre for tus

wiances for you to ever grve a”

JUROR PFLIVER That's correct

THE COURT Then, are you seying by

of thet enewer Det you fer! thet

ary °

rat

i i

iu itl

Het

wew, User Picfler's exchumon would tave

beer improper in Wicherspoon, one of the

verirewomen exctuded staied thal “she

would sot ‘bac we be remponmible for

Gecoding somebod, shovid be pul

death” BI US ot 518 BSA wa 17

In the fortnowe accompanying ner dear

ton of the jurors feelings the Supreme

Coert ated, apparenUy with approval s

Masa op caw Lhe! reverem! 6 Wael courts

etchumon of juror eho def not owh to

Gorxde whet: & perme> should de

The declarstion of Ur rected jurors io

the cae amounted ony & 8 tatement

that Ux» would sot har amar « le

bung Few mee woud Every mg

thonkom mar would wgart it at « paral sl

duty Uw peomownce 8 verde of Gasth

wpeot bi: fe ~-e-man

pene + hewn commered 0s putes ners for

r”~ “ the word ww epperenity a

mot Per any COREeet curt Ghyertar to the

Gat! perety co)”

JLRS PPT PLS ew wo gemere

THE C CORT A ng

A SOe PF EITER Bee eperile preett.

Tht «9 T And thee ff vow t& the forts

ad wc uensteoce patted ed wartarerd

re oe! preety bow i) vere cod

~~ oer oad wate we eleven athens to

here et cora@et ¢ pow tof & wes proper

& w ander the fects end corcwrnstances

os we beer (hem from the etaees aan”

AROS PPEFFTR As | ceed | Gow) kao

lee | wey Po oot atime irying to on

}

Sei

{

;

‘f

visas

[

fie

;

TH FEDERAL REPORTER M4 SERIES

id of $15 2 8 MSC. ot 177 on 8 (quoting

Seth + State, Sb Mem 410, 413 14 (1887)

accord Burm, supra, 342) Bt ot 1D 7

Witherapooe makes i clear thal serlher *

Geep reluctance lo prumownce Une death pon

alty, short of abeolute refusal to do mm. nor

the reservation of Une death penalty for

only an extreme ot of Orrumstances @ «

growsd for exciusor’ BUS at Se

ZT! @Sc at 17M a TD

A carcfel reves of the traneerpt ind

cates that during the intel two thirds of

Pleffer's wor dure. be dat indeed sugges!

that he wouk! be able in an erlreme art of

orceumetances, © assem the Gealh penalty

Al Unat port. however Preffers attutude

or at the very beast be snewers, change!

when he stated Uthat “if [he had) to make a

chowe between yes and oo” 3 Trial Tran

script at BB4 he wouk! have \ aay Unal be

THE COURT Are vow seyumg (het emer no

Grewnmence: could you ewer make that

Gece of thet « would poet Wer of oF

weer ot of Grewnaterces before you

FUROR PFEFPLE Wet lm aot eppeeed to

a bet @ my cen beer | Gon! Enoe of |

Could make the Geet the proper Gem)

eon @Hh realy by wengheng the evidere

bee | con @ eet « 6 vege eeewer

aa tm

nay

been

i: it

: +.

ili

OBRYAN +

ESTELLE 31

Cae we 147 Oe ee ree)

would eu! omalcal y vole agauns! umposrbor

of the Gath penalty We caoactude that

Une case @ comtrofied by oer es hase Ger)

mon in Bilhamse » Magpo 679 F 2d Bi!

(Sth Cir 1982) ten banc), cert denen,

Us msn Ba TLE —

(1983) Juree Brow wm Wilhams slated that

tere wer: “certeas cases where you read

ahoult them and they are so Reteous thal

you jurt think of the death penalty wouk!

be (he ot . goal owleorre ~ 679 F Oe ot BOS

& SlLotem™ 9! ommelar W Pleffers statemest

that be cos nemo Ue death penalty @ 6

very. ver cfem st of creumelaran ~

The prearwtor comiunued he proteng bow

ever. anc 0 reapenee Lo « leading queslier

suout 8. ame pertuc le case, Brow sisted

thal ame . + t she owk) OO) pmigeme Lor

Gea? pers

GY Sw ow [feel (Ral sou cowd fot reterr

thr Gat! penalty

A (M@ frre) Neo

emer . n maperty opmean ©

Vereuy Brow s ela unewrlaenly) 8 Gon

panetor th ber ollammate reapers lo Ue

prosecwle » question soow! her ately

return Uh death penalty, Ue majority of

thee court concteded m Willearss Wel “Ue

Grete dart be put Wo Gath by etectro” aon

Brow) | Gor | thew | coutd @ Det

aif

Test

“red on Jeqwary the Sh

my andervandang net you tee!

you could act retarn the Geet? pena!

record of [Brow s) aviomeale oppamition to

Une death penalty (was) cotadiabed™ = icf

The en bane majority) specifically rejected

Une comtentucr that ender userspace “er

chumor of @ venoreman oo impermambr ur

hems be states im response w& a/! question:

that he ehaniutely refuers We conenier the

death penalty ~ 679 F Bt at WE (emphas.»

added) It would wem that under W,

hema it w@ the juror: ullimale conclusion

about whether he of she « ivrevoradly op

posed to Ube death penal, Unel @ critical

Abeent effective rehateivtalioe of Une sort

that we fownd lacking * defense counse! »

questioning of Wells and the Texas Court

of Crna! Appeal found prement we Cur

ms & jurors elumate statement of un

equivoca! opposition Wo Une Geath penalty

wl! pastify be or her erciumon wader Une

Wihams court's interpretation of Wither

spwor

{6} Pteffers wnreqervoca! statemen'

nat be would sulomatica’'y vote agains’

Une death penalty 3 Tria! Transcript ot BAS

was suffiment to pusti!y bee exciemon unter

Wiithams, bes carter statement that be

could aseens the death penelly mm on ex

A (ie Brow) OR mts ore) fm ofred |

Cowl@n) | would peat be (henmong & terms

a why car! © person bbe thet be reheteh

tated réther then euterwensird

Q Se row feel et vow cowl act retere (he

eeequivorca.

amount to the hind of effect:ve rehabshts-

tor of Pfeffer that would be necessary for

ws to hold that bes exclusion was error

O'bryen suggests that Pfeffer's ultimate

statements do not aceursic'y reflect Pfef-

fers ~emuon O'Bryan coelends thal Ue

tral wedge metakealy weewed We herapoor

ae or “excivenmar) rule” and that Ue

ww unwil-ng wo scrept Pfeffer»

Geep, agente’ reluctance to promownce Ux

death peas) The defendant mantans

that the iris! court. in effect cuerced Pile!

fer wio Lahing & yomton Usal he would

Butomuls« ally vole against Uk umpusition of

the death penalty regardiee of Ue facts

@ttah whe at imal Our rewew of the en-

ure \ar dare, encompasung sever volumes

of th ine record, indwalcs Una! Ube Unie!

judg: did not generally view Witherapoon

as an exciumonary rule Instead, he pans

\aking!\ questioned. anc permitie! counsel

te questo, each and ever) juror who c1-

pore! dacomfort about umposing the

death -ena'ty excioding som for cause but

refus ng \o exclude others, thereby forcing

the Sisle \ cxercise its peremptory chal

lenge

[7.4] We camnot aay that the court's

protung of Pleffer's answer iv an atiempt

\o fim some bass on which lo evaluate hs

we [ceings was Gapreper Throughout

the var dire, Pleffer continued to express

concert about hw ability to pronounce the

Geath penalty. The trial jedge may have

willingness

Unoug &: that Pfeffer's professed

extre ne st of Grcwmstances™” was a smoke

sereen for what was really an inability to

assem Um death penalty under ary orcum-

slana. Under tha new, we would have to

say Vat o trie! judge, harboring those sus-

pacions about the person in front of him or

her, has the might, within certain hmita-

1. im Adams, supra the Sepreme Cow mated

that Witherspuce was not « ground for che!

leng-ng am) prospective puror but rather 2 brew

1M FEDERAL REPORTER, SERIES

toms, to pursue « line of questioning de-

gigned te flush out the veniremaan’s true

veews lederd. a0 appellate court confront.

ed with the question whether such an erciv

mon wes proper and with the appaeren'

necesmty of making an independent revie«

based on the cold record. wil! expect no lex

The tra! coort i Ube case sucreeded in

obtaimng an answer from Pfeffer that hi

could not impone the death penalty Under

these circumstances. wr cannot aay thal

Pleffer's exciumon was improper Wi

Sams, supre

D Juror Bowman

O'Bryan’s fina! complaint shout the vorr

dire involves the excluwon of juror Bow

man Lake Pfeffer, Bowman was orginal!)

unsure of he feciongs about the death per

ality. but om further questionmng he stale

Unat he could sot vote for 1 | Whon asked!

abou! a crime “closer to home.” however, hx

sard Unai he couk! consader Une death pena!

ty if Une victim “was one of [tus) family ~ 4

Tria! Transcript at 918

[9.10] We agree with the Texas Couri

of Crumna! Appeals that Bowman's re

sponse Uns: he could umpuse Ube death pen

alty of s member of he family had hecr

killed does not imvaluiate the trial court's

excusal of him for cause If the victim hac!

been a member of Bowman's family, be

would have been “unable to serve as 4 juror

because of his interest and prejudice in the

cose.” O'Bryan, supre, 1 8 Wd at 473

(eting Tex.Cede Crm ProAna art 3.16

(Vernon 1966 & Supp 1983)) The state-

ment that a person could impose the death

penalty only in a case in which be or she

would not be permitted to serve is virtaally

the equivalent of a statement that the juror

would never vote in favor of capital punish.

men’

il THE CONSTITUTIONALITY OF

THE CAPITAL SENTENCING PRO-

CEDURE.

O'Bryan contends that the Texas capital

sentencing procedure, Tex.Code Crim Pro

tatron on Uw sate 3 power to exchude jurors for

cause 448 US ot 4) 48 1005C. wo 2577 28

O'BRYAN +

ESTELLE 33

Cae oo 1147 28 ee (ree)

Ano art 37.07) (Verpor 1881), @ uaconst

tetion:! hecnwer it dors mot provide for

insire ons to Une pery comcermung mulugst-

ing Grcumstancea™ He argues thst in the

sbeence of such mstrucbons, ibe determina

toe of punishment o left to the unbridled

@ucretion of Une jury resulting im the impo

g@ioor of Ube death penalty m an artetrary

and capricious manner. in volatior of Ube

exghth anc fourteenth amendments Sev

Purmer » Georgpa, 8 US Ze #2 SC

27H, & L Ed 2d 346 (1972) Relying on Ux

Sepreme Courts holdings in Eddings +

Otishomsa GE US 104. 102 SCi 8, 71

L'a! 1 (1982). that « sentencer must

conser al of Une milagaling evudence be

fore @rniencing someone to de. and it

Lachet. +» Ohm, 4 US 586. 94 SC. Bie

S$” LEi2d S73 (1978) that the sentencer

caer te pceriet:( from comsdernng 4)

eugeiung factors, O Bryan marmteans tha!

BA Siro Comcerting Mlagaling ev)

Gence & comUt.tLonally mandaict

The Scate clanms that O'Bryan cannot &

beer Cummplia;n afoul Une inal oouris

fadurt og + & /Gr) Mmstirveer os miugst

mg corremelances because be did mol mace

& cone nporacewus objection to Lhe courts

12 «Tike coptal erreemcong procedure & ort forth

@ Tex Cade Crom Pro Ape att 3707! (Vernce

198 \) ehec® prowidrs @ reiewant pert

;

reer

®) -

charge on the ground or request such ar

instruction ai inal, as required by staic

lew 4 TezCede CrmProAnn ers B.-

14, 15 (Vernon 1981, superseded) it 2. of

course, ertiled law that “whee « procedural

éefech bars state ltagetion of 6 consiity-

tons! clarm, 8 slate presoner may fot obtar

federal habeas reic{ atecnt « showing of

cause and actual! prejuder” Engie +

lenae, 6 US 17 1B. We SC. ISS

1872, 7] LEd i 72 (1982), sccord War

wnght + Sytes CO US TZ SC. MH

$3 L EA 2d 94 (1977) «On the other hand

we are not “barred from reveewing 6 claim

by @ state procedure! rue when the stats

courts Ubemarives &o«« not followed Unc

rule” Rell » Watiins, 2 F 2d 99. 10m

(Sth Cor 1982). aceon! [ister Cowaty Court

v Allen, @2 US 10 1%. 86 SCr 213

2 OW CULL EAB! TT «((1979). Beery »

Wainarngh:, GE FSi 311, 13 (th Co

1982) The nroblem here ow that the slats

court dei noi say ehether was denpng

the petitioner Rebeas corpus reef on th«

basses of ha procedural default or on Ure

merits of he clarm. i semply dened he

petiloe without comment

3&4

{11} We were recently confronted with

the problem of mterproung s sist: court's

milence wrlh respect to Ube grounds for its

Genial of 2 state habeas petivone's claim in

Preston » Magygw, 76 F 2d 113 (> Cr

1983) We determined Unat the same con.

sderations should be applied to cases in

which the state court has denued rehef with

out offernng any reasons for tts denial os

are applied to cases where « state court has

been “lem than explicit” jd ot 116 We

included among Unase conmderatons

Whether the qourt has uaed procedural

defaslh im memilar cases We preclude re

ves of Use clams merits, whether the

hustory of Une case would suggest that the

stele court was sware of the procedural

defast, and whether the state court's

Op mons suggest reliance wpoe pronedura!

grounds or « determnation of Ue ments

id (etung Ulster County Court, supra. 42

US ot 147-4 9 SC wt BSD) Ap

plying the Prestoe criterta to O' Bryan's

case. we conclude thal the slaie court pre-

sumab; dened be Gam on Une base of he

proced ura! default

The Texas courts have beid that

8 tbe ataence of objectuoms to the charge

or a apeeis'ly requested charge. 0 error

Ubervrn can be conedered on appeal “un-

lers '! appears Ubat tne defendant has not

had » far and umpartial trial” Bote +

Stat %O SW Dt 774, Z7 (Tex Cr App

1840

White + State, 610 S W 2d 604, 906 (Tex Cr

App 18‘1) 1en bame) In Withems +. Stste,

€22 SW 2d 116 (Tex. Cr App 1981) (en banc),

7M FEDERAL REPORTER, 24 SERIES

71 L.Ed ad 876 (1982), the Texas Court of

Crvminal Appeais refused to hear « capita!

murder defendant's contention that he was

estitied to 8 mitigating arcumstances in-

Siructuoe during the sentencing phase of his

trial where be had faiked to object or re

quest such an instrucuen at tral = The

court beid “Absent such an objection or

requested metruction. the trial court's fa:)-

wre to charge Une jury a to the conmders

tee of mitgaling corcumslances was fot

reversible error” id at 1D Wilhams

position was the same as O' Bryan's Wi)!

hams contended (nal hes Geath sentence ha!

been wumpeeed unconstitutionally because

the jury had not been given a mulugating

arcumetsnces instruction, bu. he had never

requested such an instruction at tral LU n-

der these crcumstznces, the Tezas court

concluded that Wilhams procedura! defau!'

prectuded review of hes comstituuonal claim

O'Bryan has not offered us any indication

tUnal Une court wouk! mot have made the

same decom here“ Further. we know

that the Tezas Court of Criminal Appeals

had been made aware of O'Bryan’s proce

dural default. since the State reamed Une

matter im ils answer oppamag Ube petition

er's second application for habeas relic!

{12) O'Bryan argues that he fasiure to

obyect to the Una! court's charge shovid aot

bar he clasm because the Texas court's dec:

mons ic Wilhems, supra. and Quinones +

State, 2 SW2i 93 (Tex. Cr App) ten

banc), cert demed. 449 US #83, 10: S.C.

356, 6 L.Ed Dt 12) (1980), placed him in «

thet the Tezas courts have ot ames wurved the

O'BRYAN +. ESTELLE 385

Cie on 74 728 OS (EE

lo the seolenong imstrections where the circumstances imetvucuce if br or she 6

defendant had made no objection tc theme 38 dispoeed to grant the defendant's request

The purpose of « comtemporanqous objec

toe requirement & to give Ube tral jodgr

the opportunity to rule on the defendani's

constitetional claim. ace Engie + lena, 4%

charge was sccemary and overruled beet Ss 97 1-B WO? SCL ISSA IST 7!

epic LEA 2d TH (1982) the @ what O'Bryan

Appellant was entilied to pececni evr = fgilec! to do *

dence of soy muignting Greumsane §€§ (13) Accordingly, wc held that the ée

and did present such evidence, incisding a

broad ducusson of ba personal and famo-

ly background The question then o

whether the anguage of the specsal muc

is 80 comple: Unat an etplanatory charge

necessary to beep the jury from dare

gardeg UW ovitence property Sefore

In Kom + Stowe S53 S W 2d 165 (Ter Cr

App 1977), cert demed, 434 US 1088, 98

SCxc 12%. SS LES 2d 798 (1978), the

Cowrt teid Unat the questions mm Art 37

O71 ese! eres of commer understanding

shah required no qpecial definsuon = The

jury @r readdy grasp Une logical rele

vanee «/ melgplag evidence lo (he mur

of whe her there » a probetelty of fe

femdant @ barred [rom reang be claim

about Ube sbaen: of a milugaling arcum

stances instructor in Ubese federal habeas

proceedings See aim O Bryan + Esteix

@ F2d 76. TO (Sch Cor 1982) (Gee, J

dmeenting) We note furiner thet the Su

preme Cour.» recent decumon in Zant +

Stephens Us mw SC 7B

Wi44. TT L Edd ZS (193) (holding that

death sentence peed not be ort aende w here

om of Unree slatwlor) aggrevaling orcum

stances fownd by juror was subsequently

belt we be mvaled by Sale supreme cour’

but other (wo were specifically upheld. and

stalling Unat “the aheence of leguiaiure or

courlampeesd standards \ govern Une jury

im weghng Ube mgriicence of qriher or

Id at 947 Contrary to O'Bryan's assertion, both of thee aggrevating corcumstances

bese (wc decrmons Go not present hum with does not render |capria! sratencing statute)

a Catch-22 siwatioe, since they do not hold §=mvald” as apphed) makes the defendant's

thet 8 tral judgy may not give a milgsiag argument on the meri far more difficult

tate Greet whech robes om « Tene: case Geum

(The feadiey of preeemtg of copies fom 1919 show he aoceeety of Gey

he eer comrls come cheer comet (estruction comcerteng the puerpow af evudrnce

couse for « eure we pet a oe Of of Ge Setendant’s geet repetation. Giber +

Getradent percerr?s 8 Comet wisome Cheer mee % TCR 64 m8 w G8 &e

end Orteves & may find fewer m the federal (101% Gury Qruermeneccn of suagemied sem

corte be aay aot bypers Ge aete courts tence) demonstretes Unset the ground of error

emer be sue be aes ey wi be ameyTn erged bere wes ect “nove! and emknows ~

paths < to tne Cine (cenpers Bass supe (comtcenpererwone ob

Mo 10 SO om 1873 te Beas + Emeric. tan rate agyies where precer groaned of abr

@B8 F dc 1154 (Seb Cer, eiied TOF 2617) — xa owertrendth of Texas oath requiremen:

(eh Ce 1RED) the peemomer argued that he end Where Aad been epietd pre te

docudim to cacum 0 praehael Grfeak where Gch Cr), exptamed. chp op ot 6733. — F 20

0 értes of constautcnnl mugniude hes ect = tug G3-2Ed (Sh Cr Ang 22. 1983)

beer os sbiwhed «| the ume of trial.” quote + ws Gem mete

(weves Siete 41 54 26 SH BH Oe Gederal ¢ prom ’ ned ~

Ape 82) (em banc) We observed the some court's eilenre Sar Ap neh

hed beer made @ Curves and that the quoted \estemmeery where prtstconer + ine! wes commu: |

pasieg-

wher (he grounds

enires 5

ed before Supreme (ours Gecemon @ Emetir »

Seth 45) US 434 10150) 1088 @ L Edd

350 (181)

{34, 15)

O'Bryas ao conten that be posed s costinuing Unrest lo sorely

14 FEDERAL REPORTER, 24 SERIES

new

puawhment of death based eniely epee note lA

gon « Purmas +

SC. Ps, SB LEd2d 866) (1972)

Wooler + North Carolina, G8 Us @

(se SC. BT, @ \.EAdi O64) (1976)

Rober : Lowmana, US = (is

sc. mn eo Live 74) (1976)

The defendant sever explenms prewe

what he means by the statement. but

geems to refer lo the contention that be

made i hue direct cruminal appen! that Ube

endene eas euffioent to support Une

jary's finding thet there was 0 protadelty

that be would comm crvmna! acts of Ve

lence tha! would constitute 6 ewr unuing

threat w eocety OBryse State, supre

59) SW2i at GO™ We agree with the

Texas Court of Criminal Appeals that Ue

State's resntredectvor of the evidence

presemed Cerne "he gurl’ phase of Une ina

pervs nent sof fcoent evxdence of O'Bryan’

fulure Gargrrovenes swpport the jury '

findings" in partaculas, ee sole val

he ows sor bo thal he could collect hf

wpurarce process and Unet geve

pomoard pury sys wo f chaldres.

sachedhag he own daaghier, ie ae stiempt

IV. PROSECUTORIAL ARGUMENT

O'Bryas compiamns thai he comsttutons!

rights were violated when the prosecutor

wes permitied to comment, dunag chomng

et the sentencing phase of Ure

trial. ce defense counse!s fa:lure te quer

ness onto Une defendant. aad Una Une prose

cylor's comments deprived hom of a funda

mentally fer tral”

The trial court overruled (Bryan's objec

yen w the prosecutor's srgumest The

court stated thal s party = permetied nm

Texas. te comment on the failure & co

certain witnesers «The Teves Court of

Cremum. Appeal agreed noting nat it “ot

well setised that the presecutor. @ ergy

ment, may commen upon the defendant +

fasure Ve call certain witnesses” O'Bryar

its

pert

el:

{

O'BRYAN + ESTELLE

387

Che ow 704 2s OSS (ee)

wpon Ue caprial defendant” 8&8) S W 2d at

479 «=Neotome Uset cownne! for both the de

fense and Ue prqmecuter Bad commented

on tne failure to eal! ottnceses.” and Unst

Une tna court hed property charged Ue

yary wb regard w& the State's burden of

prof demng Us pummbment phase of the

uns, th Tiras Gourt of Crwmune Apprab

beid Une! Ube promerwlor's remarts hed sot

sh fied Ube curden of proof to Une defend

ent, anc Ubsl Ub taal court's ruling eas

st mercer id

{16.17] Our rewee of the proprety of

proveculora. commen mate dunag 6

stale tna! @ “the sarrow one of due proc

ems. and not the broad ererce of supervy

Ty power Unel. we) wouk! posers in ry

gard to jour! own tral court " Dennelly +

DeCarsofors 46 US 7 62 & SCL

eek 1) ww Le Od 631 (9974) Ue

sheeme of « Viole or of a epect’x guaran

we of the Bill of Rugrta™ we may overturn

& stale court cnewietion only if the oom

paaned-<! conduct has made Use tna! fue-

dament'y cnfer id si 665, M% SC. at

1872, acc alee Pammar vy Blecttern, 2

Pad We S67 (Sh Cor 1981) cert demed

46 US 102. 102 8(1 172 72 LEA a

736 (Sth or |. cert demoed 47 U S 907, 100

SCt 2 & LEd dt BS) (19%). Suet

mot Ube crite bere

{18) The prosecutor's remarks Gd not

mmpertmasbly shift the burden of proving

the specs! asues under Tex Code Crm Pro

Ann art 3707] (Vernon 1881) The prose

sc instructions by the trie! court shout who

bore the burden of proving certam meues,

wee. 0g. Sandstrom » Montane, 42 US

$10, 9 SC. 2680, 6) L Ed Bt 99 (1979), or

state statute establishing the same /n re

Vinmkp @ US BA WSC we DS

1% Defenee counsr! meeuoned the State's fad

we to call any wumeeses to testy show the

probetad (, of O Bryan » Neuwre Gangerowsness

L.Ed 2d 368 (1970) Here Une complaint

about 8 prosecutors of {-\he-cul! comments.

mot pechesa! imeirycUons

In Cupp + Neughien 414 US M1, &

S Cu SBS. L.Ed Dt SGP (1973), the habeas

petitener claimed thal « state tral judges

wmstrucuen that “lelycry witness @ pre

gummed to speak the wih” «fat 2 &

SCi ot S98, umpermasidly shifted Une bur

den of proof The Sworeme Court beit that

“lw Phatever Langenia umiercutung of (ine

presempuor of imsocence and tbe states

duly t prove guilt beyond « reasonabic

dowht) may, as 8 Uhcoretiral matter. havc

rescitad from the gving of Une matruction

on Une presumption of Lruth{uiness w not of

constitutional dimenson” id at 149. #4

prosecutors comments about the failure &

question defeme wrineners in Ube case and

Une burden of proof @ cven more atlenval

ed than was Ue connection i Naugticn

supra

{19,20} Purther. we have held that the

reasonable doubt The Constitution re

quire so more The question of who

should produce evidence of miugetng or-

cumstances was a maticr of state law, the

of Une Bel of Ragtes

state lew on the defendant's [allure Wo cal!

a mater! witnem, and be may draw an

inference {rom Unat failure that the tast>

mon) «ould have been enfavorabic, See

eg. Carrie, supra = Sumilariy, we hove

held Unal om federal court, “Uke failure of «

part) lo produce as « witness one pecular!)

within ibe power of such part) creates ar

inferem« (rat seach Leslmony would be un

favo-eive ott mia, be the subject of com

ment te ihe pery by Une other party” Lert

od Sines + Lehmann, 613 F Bt 190. 136

(Sth Cor 1980) (quotung McGansten + Lani

ed States, DO Pad 919 (Mh Cor), ort

Grand MOUS & TS B81 LEAm

howeve i{ (he “perso in question & equa)

ly avaatte Wo both partes. partcularly

where « & actusll) m court” Jd

O'Br. an dt call (hese wrtnemes, and be

points owl Unal Une proseculor could have

asked them about the defendants "epuls

tuon for peacefulness as easily as Ue de

fendant covki hawe The prosecutor's state

ment Unset defense counse! hed « “mora!

ebhgtice” Ww ast coriain quesuons of the

witnemees protab y hordered on the umprop

er «Viewing Uneee two comments ip the

eoatlert of Ube tral as 6 whole, however, see

Houston + Excile, 4 F % 372, ST) (Sd

Car 197%) we cannot say Unel they deprived

the defendant of a fundamentally few tna!

ln Howstoa, supra. where we ort amie «

stale qourt coeviction on the bass of im-

proper urase toma comments, Une prosecu

tor had repestedly made tbe remarks even

afver be was reprimanded by the wal

the integrity of defense counsel, continved

with « perwnal opimon shout the defend

ant's creditality on Use witness stand, and

suggested thal the jury give the defendant

a long sentence so tha’ tbe defendant wouk!

have af opportunity lo rehabustate hemeri!.

2). The cower meerected the perv

bere tong (he Grfepdunt ecadd be required to

oere the semtencr thet vow empoee) Such

71M FEDERAL REPORTER 24 SERIFS

8 suggestion thay war Improper ender stale

lew «54 PF 2d ot STR BO OM 12 Io

contrast, Uke Supreme Court refused to se!

amde a defendants convertor where Ux

prosecutor had exproass! hu persona! oper

we shout the defendants gvilt ant had

made an improper seggetbon about Une de

fendant’s motives for <anding tra! = Doe

nelly « DeChratofors 4154 US 6 42 &

SC Wee 1871, OO L BA Dt 431 (1974) In

O'Bryar’s cam, Ue States evetence ad

dueed at the guili phase of tral of Us

probatalit; of Uh s future dan

grrousness ea tuleiaria the com

menus potential for preyoee fas at bes!

gunimal) = Acrording!y. ec Pott thal Ue

prosecutors commen do fel enlith

O'Bryan to feciera! habeas rele!

fe mwtar

V PAROLE INSTRUCTIONS

[22] Under Texas law a jury may not

comander Une poe wtelity of parole m its deli

eration om punmhment. ae. eg. Moore +

State. SES SW Bt BST (Tes Cr App 1976).

matters come wither the euchveres pervade

OBRYAN +

ESTELLE 389

Cae ow 104 1 2s ee (ee)

criminal ina’ @ martes!) beta wo whet>

ot the aleged ampreere'y “ee mnfected the

entire tre! Unel Uke meelung ooevictor

velete Ju procem” Cupp + Neughten,

4 US Mo 10 ®& SCL me oO Om

LEAS! WW (197) arvornt, Ewur +s &

tele @ F ot TH TM (hh Cr 1D) Ne

pa: Barenget G4 F 2d i777 (Ma Co

1970 Mor=x mpre wer 6 feepomer to

Califormas carker musertty pasitior per

rertling | *« jury le commueder perote im Geter

mening pereehment Concheding Unel Lie

evuience concerning parcte wtraduced a

trek was confamng lo Une jurors, the Cal

forma Supreme Court deeded Unel @ jury

shoult & fermed show! Ue parok leew

and ther told fet \ comasdder parck i

mehing (+ G@termmeion of punshex*

The Cables. sowrt’s de asoe was based oF

super’ er’ power ower ihe Sa Vw

Cowra. @4t op Une Lneded State Consuls

Line Whatever Une reasome for & Stale

court +s é-cwer™ We regerre sock of metruc

(on wv « (se cow's |e CERRO of)

thal of o eirw lier oF pero @ consinulce

ally maniewd @ a capele case | Sow Cel

forma + Ramos Us es

SC. Sess. MS OT LESS 1171 (19)

(metructioe mmformeng jwrors m capris! case

that gowernor has power to commute “hfe

sectence withow! pamitelity of parole” but

not infer ming them of equivalent power to

commute death sentence sot eaconstite

onal

Since tne fadure We give such an metruc-

toe Gd not deprve OBryss of « funds

mentally far tral, be complaint sbowt tbe

qoert's msiructzcs & not coguiaable @ fed-

eral bebeas proceedings § See Easter, supra

Vi ONCLUSION

1 thet perors Welle. Pfeffer and Bow-

man were not exciuded = roialon of With

a@upoon « libnon, @) US 610. B SM

1770, @ LE 2d T76 (1968), becewee af some

2 net O'Bryar'’s fadere request an

metructoe coecerang selugelag aorcum

ences { tral prectudes bem from cha)

lengorg the courts fasure le give such ar

wstructuse @ Unese proreedags.

3) thal the promecutor + comments show!

Une defendant's facture Wo ask corte ques

tons of defenar wiinesers Gxt not deprin:

Une defendant of « fundamentally far ira!

and

4 that O'Bryae's complet about Ux

tre! pudgy s refuse! lo give an meirecler

concermung Tetas parc lee o aot cognae

bie om federal habeas proceedings

Accordong!) the federal detinet court's

FIRMED

PATRICK EB BIGGIN BOTHAM. Coreunt

Judge specu coneurrene

| yon Judge Randalls epemon except

@rlh peepext We Une slandard by whe? ox

ought le rewew the claumed Witherspoor

errors )«=6| ako |e seperalcly W expla

bos we Gifler m our reming of Ue wou

Those facts {othow

Tht

atl

ait gH

[

-_ -—_ -—<-—~

a mee =

wder buying 8 few hou, penne off hea

debts am! owen qurting hes p>

° . . . . .

A; ellant, 19 ort te execute Po phar

we morter te er and

wmeur oc: proreeds ant to eatape deter

tion 6 dong sas edhng to an’ at

temp et t mr. marder four more

torer Rhett wm ertoyaall,) ¢etrbdvied

Ure far etdr onal peee@el per) Styt Lo

tbe cher chuktrer Ube haety and prebet

abe excl! of hus & ts war We Cover new

deat! aco The brwes which appe'lent

was «vllong to sacri @ erder & carry

oul Une murder of te son wncluded (hone

chiktres of he grad frend

eves onc another child wh at

tend. sppeliant’s church and he own

deugricr. eho lfc eas alto heavy &

sure

4 collect the hfe

ef 1 (eo

dimen

Th jor abo had before i evidence of

apo lant s stiempt to mmplicate enother

for the pomoring Gesth. by & panttive

idenifcatoe of another man as Ue

source of the candy. when Ube evidence

thread that the couk! oot have been

Further the jury hed before 4 eve

deco of app tents slttede toward be

crom ‘There was testimony that be was

“ero” by wide spread sees coverage

of te son's death «There was ale vary

ous \estemon: concermeng Ube Gupariy

hetecen appetiant's publ dapiays of

gret over he sons death ond hs beharer

wrer th carr ametances were more pry

wate The jury siee heard testimony Ua!

14 FEDERAL REPORTER 34 SERIES

at approtimatcly POO am of Novem ber

1. the morning after be son's death tne

previous mgt called be life

insursace agent to find out how We collect

Une procends of Une pobry on hes son AL

approximately 9S am lhe ame more

ing after hu son's death. he mquired at

his bank showt collecting oF 8 pobry

there sino «Further. ower Une nent sever

a) days, appellant oper’) duwwaeed hos

he would war the proceeds of the life

insurance. Uneer plans inchucedt Laking ar

extended vacalor

Ry ba entire comtuct

fects thet apyetian!. such « dehterat

and calculated way tard the hfe of he

own child for money and propardand Ue

hwes of four others. the jury could have

concluded thal appellant hat 8 wantor

and callous duregart for puman life the

evidence @ uffwent for ihe jury lo have

found that there @ 8 probabelity (ha!

eppeitant woul! commit criminal! acts of

wolence tha! wouk! comsitule 6 comiinu

mg \areat lo eret)

O'Bryan + State, 91 SW Dt at 4, OO -#)

(Tex Crom App 1979) (en banc) (emphases ir

wectudonge Ue

seats

mile

ete

ital

445 US 998 100 SCL BTS, & L.Ed 2s 6

i Th

queried expediuce =e August 1981. pre

trial briefing schedules were oe The stats

requested as evidentary bearing. bet =

November p toners request reters

state court | exhaast eddruces! came wes

granted, over the objections of the state

On Septemter |. 1982, pruuoner’s sisie

ert applicator wae ceneed 6 second time,

and hes exec utoe was eet for Ortoter 3).

1982 Thert) days before the scheowled e1-

eeuton, peuuoner fied he arcond petition

for leders belew Os Octeter 2, 19, Une

Tnstnct Court bold « heanng denying Une

ent end nr fued et appecatloe for stay

and ceruficale of probable couse appeal

Oe October 27 1982. a panel of the court,

by divadet -ote granted « slay. pending

fell apgeiiat revew Thee decmme then @

at hast the (ourth Lime a cnect has deesded

the! the comiceted ouror etchu@ens orre

oreper ender B Laer aane

Whe sugce@iing (sel precedent may not

Peg oath oie @ et eet uncerlae Jadge

Rurdalls slic apemen emplcys & de novo

standard of reveew that accords ao defer.

ener lo tne Ure! yodge «= The stamiard by

etch a0 ap ocllale court rewews @ loo be

fects can it be «Ne Gecmson @ 8 Gectton

(een Yhabty ewebed by Une effort to deciaum

an) deference to the tre! judge §=The wor

of an evxdenuary dence of rehabilitate of

o witaee to fill a percerved ‘Vitherspoce

oke un Well vor dire lesumeon, » diustire

uve The supposition Ust suck « hole ex-

eu (mught have answrred ine death penal

\) Question deip:le oppatios lo the penal

ty) @ fueled at beast @ part, by Une decumon

that no weght @ & be accorded the ina!

jedge =| am perscede! that we are aot

required to proceed ar if Lbere were so rial

ywage and thal here we showld aot

Withersp oo held (hal & stale was com>

tutonsily barred from exchuding vemremen

nel expres ed reservetuons abou! the death

penalty, of hed comecentous scruples

against sts umposivon . Al the same lume.

391

the Court made clear thal 6 stale rvtained

the mght to exchude venuremes

°.

con as Wo Une defendants gur't

1 US SB Ba 2 we SCr 17 A 2

(emphases in organs)

There @ nothing inherent in B therspoor

which explairs failure Wo accord deference

fis]

Fici

rails

Flee:

its standard of review Alderman + Aus

tim, @86 F 2d 124 (11th Cir 1983) (en banc)

The Eleventh Cirewit sow has the question

before ite en banc court Darden + Wain

wright, 9 F.2d 108) (11th Cir), rehearing

on banc granted, 99 F 21 1043 (1983) The

silence is especially puzzling in light of the

Supreme Court's explicit requirement of

deference to decmmons of ina! courts in mat

ters of jury selection = Vor example, pont

ing im part to the inal judge's superor

oppertanity to cbeerve veniremen, Ue

332

actus) bas and a broad Gucreuon m mu

ruling on challenges tmerefor Denne *

United Stace 3) US 162, 1 7 SC

$19. 62). % LEA ™ (1960)!

Yet it Adame + Texan 42 US MB 100

SC. B21 6 L.E4B4 S81 (1980), the Court

prefaced 1s conchumon with Ube statement.

~Rased on cur own examination of the rer

ord. we Save comehuded that § 1271(b) was

apphed ir then case to cactede prospective

erspoor and related cars” id ot @. 100

SCt at D2 (emphases added) The sore

ing imeconeetenc) @ Bot compelied That

the Cowrt rteelf cxamened Ube record & a

consuter( with deferental reves as with

reviews thal qpores the existence of the

tne! peige Adame turned of the kegs

quesior of whether the Texas cowrts could

consutest with Witherspoon erchete ve

muremer who induspetadly hed opemone tha!

would only affect ther answers Tt dad not

preaent a review of @ Una! jedge's conciv

mon thal the sem of Re oberrvations of

venwerres and thew testimon) war Uat

they wrod sutemateally refusr to vote for

the dea h persity The fact = the Supreme

Cour. nae dad |..e Greet hgh on Us

standard of renee of clarmed 4 itherpoor

error The usual language of deference o

conrcsows in ta ateence Equally cor

SpRcVoe + however, & the lack of any dmeus

gon at al! of the appeiiete standard In

independen! bu! preeedent does sot bar an

atten’ te develop an appellate standard

for ita exereue

In the following | examine in functional

respons: < first. the sscogniuon of s ina!

1. See also irvn + Dowd BUS n7.81 60

p60, 6 L. E426 7S) (1061 Spee + Mie

123 US 131.8 SQ 2), 3) LES 0 (1887)

Reyrtds » Unned States 8 U S 143. BLE

Cw United States » Robbers.

Fd €50 (ch Cr 1974, ~Unted States +

Tt PEDERAL REPORTER 24 SERIES

court as an integra! eve! of a opersiing

yastce sysiem second, a an expremmon of

comity and federaim™ the deference owed

premecs i part & rrongrtler Ural Ue ne

court was more thar an entrance gate

Whee an appellate court Maru afresh. «

tna! court's function @ reduced to that of

ovlecting data and prowuting a opporten:

ty for an ertrajedess! resolyluon of Une

depute Even the functor would etper

ence 8 reduction i” valur as cipeetation of

a jude! deer of conenquence shifts

wholly away from the inal cour’ The py

ramedal shape of owr prearnt court siruc

ture rests on Ube inststateonal mtegrity of

Uke inal court as « dutinct part of the

pases system «As such revere @ etlended

upward, only the last “court in Une chain

retains ful! institutional mlegrty

afoot here than nostalgy of romantic rever

ence for tral courts = Fimality and af! val

wes bowed! up i thal precept are vrei a let

Review which igmeres the tra! court ale

travels against Lhe command of BUSS

US So. 01 SM 4 @ LEA TR

More i)

SRS rsas os?

OBEYAN + ESTELIZ

Came ee 74 1 28 OS (ED

federal baleas revew of aamerted juror

bes Set » Pholge 45 US Me, 2

SC. 960, 7. L.Ed de 78 (12)

facts are Cough! up eth 8 wines 's manner

of expresses As noted. we and the Se-

preme Cour. Rave 0: Uk least towched the

beer when revewrg Geceonm of ina

jedges regerting jury wriectoon save for

Witherspoee error, shen we all Rave pre

ceeded = Ph ar wheter

Nothing “aches (hat Unese Unrew sires

cave «The death canes mutt evotr » bgt

level of acrriimy

travels eet ret any of ibe three expres!

values To th contrary of we betewe thal

a the) hayes super epportumty ob

serve gves bes call » greater probatsit) of

being corre | (han thal of s person who war

pol there. then lo unclear wh, Se ough!

at ever, evel m he way

A trtal court's decmon to sustarn 8 chal

lenge for couse because the renireman

would sutomatically vote agammst (he death

penalty sometimes preacnts questions of

fact on the sense that the tna! court mus!

choose ‘rom permantiée inferences That

chee is often aaded by th oppertunrty &

obeervc and sometimes cannot te mack

without that opemrtunity If er really

mean thal Ue review oo wholly afresh. onc

can wonder if we are telling Use tral judge

not to make the chowe

It would seem to follow that jury sriec-

Appellate revere of mized question of

lew ani fact and qoesteons of wlumate fact

war decueed by Ue Sepreme Court

Sennt The Court ietimewd that the two

categor ~ may moive eapentually Ube same

type of dewermmation of whether the legs)

ly Geterminative comderation « “satisfied

iy guleatury fects edmeite! of found by

the tres of fact” WO SCe at 1729 0

* Cae emuar Witherapoee, iavol ong

exciuae ss «Mo womremen for bas resu lng

from pre-ina) peblot) trediteonally Aave

beer cureclerved a volving 8 mic?

querto of law ent fact lr Dowd

Me Tit. 7. 81 SC. Vem. 1442 6

LEADS 7 i «is8) Reynotts » United

Sater ® | S 165. 16 LEA Bea (tee

For (hel romsor om these came there @ on

apres’ a> indepemient evaluation of the

vor @re testimony Ire + Dowd MF

US ot 721 #1 SCi ot 16462, Unne! Ste

+ Wehan, SO FBt 13, 18 (Sd Co

197%), Wane: + Slayton, 447 P24 &

(40> Cor 1973), cort dened! 416 US 984%

wg inc + Dowd we hei im Undted States

» Robeens SD P Od 40 (Seb Cir 1974). that

“ruling? on suggesvoes of impartiality of

the jury @ withen Une discretion of the trie!

judge, and en abuse of that ducretice mest

be cheer” Jd ot G3 See alo Denne +

Umted Staten TS US 12 148, 7 SC.

519, S21. 94 L.Ed 734 (1960) Thee combine-

oe of mdependen review and deference tc

Ube Una. pudge was evident ia Unsted States

+. Taylor, S64 F 2d 200 (Sth Cir STI) We

moted there Uhet the trial jodge hed diecre-

on to éecule whether to excuse 8 juror bet

nonetheless reversed he decmon not to do

so «Though we ded not expreasly character

= wr renew as “independent.” we reer.

amine! Ube rolloquy between the judge and

jercr. soud thot “Tif was apparent to the

yodge that [the juror) was extremely rebo-

tas. & wi on the jury.” and concluded that

“[t\}he mght to ar imparual jury trial, free

of fea: dommmated ai! other consxiersiions ~

These cases establish thal reveewing cour

can engage if an independent review and

Gmeltancously give weigh: to tna! court

derimwns .

Tl4 FEDERAL REPORTER 4 SERIES

ladependent review of Witherspooe den

goes @ driven im part by ts mmilartty to

caame UWediuenally charectereed as mite!

questions of lew and fact. im which tbe

courts engage if de novo review withou!

mentionmg deference Of parucular rele

vance w Une Sernt Court's charactertzatior

of why the Rawmgartaer Cour\ bere a)

lowed de howe reve

The Court sax! thal Ue mgnifcance of

the clear and convincing proof standary'

“would te lest” if (he aererlLasnment of

Une lower courls ehether Unal enacting

standard of pro’ hed bees selafied oF

the whole recor’ Gromer! a

“fact” of Use samme ortier as al! other

“facts” mA open lo rowre here

102 SCi ot 1780 » 16) Lake the clear anc

convincing standard Use unmelabably char

standard pushes reviewing cours to inde

pendent review and as Judge Randal) ree

ords, with litte shown deference to Ube ina!

court Of course Ubal deference @ not ar

Uevleted wilh independent review dors not

mean either Ube 1 was sbecnt or Usa! |

was mappropral

The mdependent character of Wither

spoon review « also explamabie by 1 om.

err to tu

Justice Hughes for « enanemous Court ex.

pressed the seed not only to examine

whether « rule of lew bas been correctly

apphed to etablahed facts but also to e:.

amine 8 = historical §=—s fact —constitetions!

fects 9 certan imstaeces

The question is of the application of (a0)

qstabliehed [constitvuens!) pracple Wo

the fects ducioecd by the record = Tha’!

the quention w@ ome of fact does not rv-

lieve us of the duty to determine whether

im trvth a federal nght has been denier!

When « federal mgt has been specially

set up and claimed m a state court, it &

Our province Lo mquire sot merely wheth.

er it wes demed in express terms but ab

whether « was demed im substance an!

effect If the requires ap examinatior

of evudence, thst examination musi be

made Otherwee, review by the Court

would fasl of ts purpose in safeguarding

consutsLonal nghts

OBRYAN + ESTEUE 395

mo US ot OOO. SS Sk ot Sw OOF

qweree 0 decteon & exchode 4 vemremer

ender Wi herspooe can evolve more thar

the question of ethether estabimhed betory

ca! fects saliely Ue Wicberspooe standard

It can alo inctade remnlutwe of duputed

buwtorwal [acts

In addition Wo its mmilant) te ne cote

ree of cows of Shuck appetiate courts er

gage if iviependent reves 0 theryeo

review @ dimen by ts emque [ormulaten

of a rule (hal corres an miernal standard

of revue equally umague The & true be

parts that can for analver te erparsicd and

labeled 9. 2 standart for decmon and 6

required +} ci of pruof Although each part

quite 6 vewrng cours tk moe petdte nt)

peview voor dire testimony in orter Wo de

code wheter an erchumet was proper. each

par! Go ames ry vireing cwru w& gre

seght ts im tne! pedge + Geren

Wher > a 0 standard fer deem

offers thr ~ pommetelitees (1) (he wemrem.”

must te umsilleng to comenker the dGewth

penal” °) Us vemireman mutt sey Unat

he @ ome. ing to conswer ine deat) pena)

enwiling to coneder Ue death penalty '

AL Unrwe anv at Ubew com factual inquires,

but there an difference I! an appetlate

court's imuary @ @lo whal s vemremar

believed « sllempted to os), se will be

forced o udee demeanor from a Lranscript

If the question o what was eaad, cach court

can reed .s wcll as eather «The Court has

wmepostt tor of capelal purwhment ao matier

what the tris! ong reveal, « mmply ao

not be assumed the! thet i» be poston”

Witherspuoe, 91 US ot $160 9, SO

at 174 & 9 (emphases added) The rub =

thal what @ sad can be embagvous in the

decumon «f the tral jodge mest cuunt for

somethin,

2 | @ wa here @erwes Ue part of Ge Wicker

spear w andaré rristimg to the guilt Grcipon

Of course our obec « to mare the uth of

The “enmustakatly cheer” language

ger Une Witherspoon « not only s stan

dard for decor but aie « standard of

on 8 preponderance standard or 8 substan

tual evidence standard «See ['mted States

+ Jomes, 900 F Ot STS (Sth Cir 1979) (en

bene) Others ore baa! on @ cheer ant

convincing. of beyort « pram nabic dou!

standard = See Metormert on Ev ate ner

$4 340-4) (19727) The eametabadly chear

standard eu Wilk ryeor apart

Yet nothing internal lo Uke unmatacadiy

clear standard forbuis deference wo 8 Ue!

court If there w any such mierna! mgr it

ponte mm Une opposite direction le certair

metances Use only way for 8 reviewing

court to rehably comciude thal Une objective

fect of ebeolule teas was unmutakatiy

clear @ wo defer lo Ue inal courts judg

ment To never defer would be lo reves

according 0 lems than eceurate view of

the nature of many venue Gecmons The

could mevitably lead We maccursle dee»

monmaking in Ube ina) cowrls becager ie

jedges and counse| would aliempt to force

wenuremen to conform ther language and

thought pattern to the moki cart by Une

eudence of reviewing poiges = Thas, Une

accuracy of deemonmasing tha. Lic GRme

takably clear standard requires woul! bx

dum nenec

| recagnime Unal acrurecy in decumonmah

ing can be defined in different ways if

ence to the trial judge lollows for the rea-

sons | have stated But if the gual & only

to ehmunate any ponmbslty of error harm! u!

to defendants. without regard Lo the overall

accuracy of the proceedings, then giving

defendants two wholly fresh bites at the

Witherspooe apple may be more likely to

acheeve the end Some have subscribed at

least im the shetract to the view that appel-

late review of a death exntence mast be

cootrolied by this imperative | Gaagree

The imstitetionsl imtegrity of cur jedicia!

beet, eeeng Ge eesere of the lew, rether

then the semantically coqpuamte amasures of (ne

keropier

1M FEDERAL REPORTER, 24 SERIES

itt

int

mit

Lili

[cfs

FFE

An extreme standard of proof coupled

with « standard of decmon calling for an

extreme level of stated partulity requires

fevies ing courts to freshly make the war

erapors decmon = Al the same me both

the standard of proof and nature of Use

venir decmon itarif counsel agaim! a lots

ben of deference te such ‘nal court dec

stone «=A! conasdered, | am persuaded that

radeg aden! appellale review by 2 standard

of abuse of decree responds to Ube coo-

cerns vf Witherspooe while cupromsing the

value of comity and of respect for tra!

court miegrity wiih is someume superor

appor.um’) fur sccursie decumonmaking

Independent review @ an understandable

eipremor of appellaic cour reluctance lo

tie their hands ip advance when Une stakes

are « bigh Here an abuse of ducretos

standard «ill allow reviewing courts free

dom t correct ascerted Witherspoon error

without ¢duwtor ef its demanding standard

while grring web! to Lbe tna! court's dec>

shon as warranted by Ube circumstances of

the particular case

I tern now to the specifica of the error

cdaimed in the exclusion of veniremen

Wells, Bowman and Pfeffer Fully one

half of the sffort im the tral court was

devoud t the selection of a jury. Little of

Th trenscript relating to thew selection « oct

that effort was devoted to other than With-

erepoon qualification in other words, sev-

en of the fifteen votumes of transcript re

port efforts to meet the requirements of

Witherspoon, After devoting one half of

the trial to jury selection, only three of the

veniremen interrogetcd are sow claimed to

heave been crromcously excluded under

Witherspron’

Caaries D Wells » o muneter After

testifyrng that be he! an open mand as to

uill of innacr ace im Une case, he was asked

Q Let me begin then by ashing you

whether or not you have any conscen

tious, moral or religous scruples

against Une imposition of the penalt, of

death wm Ube clectr chair”

A Let me aay that morally, | do, end |

don’. Unenk Unat | am capebdie of mauing

a penalty of dealin lo any man

He was further asked by (the prosecutor

Q But you cant umagmne yoursel! doing

vt as one of Uhoee jurors. @ Unal correct.

ow’

A | ean hardly see myeel! Gomg it, yes

Q Alling Now, | don want you to

get angry with me and I'm not trying

te argue with you, but | have Ww ask

you for your answer, because Uns lady

is taking down your tesumony st thu

time for the record

1 take & then from your answer thai

imagine « case where you would vote

for Une imposstuon of death wt the elec-

trie chair Is that oorrect, ar?

A. Ne, 1 can't

He was then asked by the court

Q Would you permonaily, if you were

member of a jury. would you automat.

cally vote against (ne imposition of the

death penalty no matter what the trial

revealed”

A Yes, ! would

Q All mgmt

A. 1 would vote against 1

owt m the Append: to Judge Randall's epamon

OBRYAN +. ESTELLE

Cae oo 74 28 oS (1

At Une jeoctare, Welle was indieputably

both in reeponee to quastuons by Une prose

cuter and the court Thea, i response to

questzces >) defense counsel be mode pla”

Unet he earher answers were not made on

a2 assumpuce Unet be would personally pul

the switch “or sometheng ~ Otberwuer sist

ed, Wells had explamed that causing Ur

death penalty im an indirect manner wa

equally sishorrent He was then asked by

defense oanse

Q All nght Aad then, after « finding

of guilt. of there = one, cortam que:

tions will be submutted to you a 6s

juror Now, are you saying st the

lume Unal onder no crcumstences, re

gardi-ss of what the testimony would

be. uwier nc circumstasers could you

vote for the desth penalty”

A Tt con't theme there are any that |!

poss iy could vote for the desta penai-

Al the ontere. the rometer remained

unshaken in he statements Unal there were

no curcut vances under which he could vole

for Uc death penalty Defemse coume!

then asked the following questions and re

ceved th followwyg answers

Q Ali mght Let me ash you the av, if

was committed deliberately am! with

the remonab< expectation that the

deat) of the deceased or another would

Q And that wouldn'| have any trouble

wi your eonarsence. would (°

Q And woukt you have any quarre! or

any problem wrth Unowe questions”

A 1 don't Unek

Q Alingm And if you answered those

questions, of course. t wouldnt be up

to you to do anytaing lo the defendant

Those are merely questions Ua! you

anewer to the Court len that oor-

rect’ (Emphases supplied |

A 1 wowld say yes

Q Could you do that. mr”

A | could be as liberal! -» answering Ue

questions as | could

Q And you woul! asewer those ques

ens truthfully, would you aot”

A Yes, @ far as my opmions are cor-

cerned

Q | kmow you're s mmuter, are you

ead el

‘ltt

[aft 4

cht] ?

bus answers to these questions be

death sentence. ft = not unmustakably chear

Unat be was Guquahfied under Witherspoon

Not only does this argument proceed spor

1M FEDERAL REPORTER 34 SERIES

398

an seumpuce that Wells kaew the effect vecord = plain thet the tral judge pushed

et be could have o direct bearing on the outror™

questions «= Apart from beng on vn anyway, what we've been talking sbov'

ly incunsutent with hes testimony that be Q Well, my 4 csu08 woukt tc, could!

could not ore himself “doing it” a one of you or could you mot answer (hat ques

the pirom He was asked and answered a

ton, ar”

‘ : A Well! wouk! have to say | coukir |

Q Bet yew can't umagiae yoursel! dung | siready mack the statement 2 mm

it as one of Unose juror, @ Unat mrrect ment ago

aad . After a colloquy among counse! and the

A | can hardly se myself dowmg Yor defense counse! pul Une final question

Indeet the withess beenme angry "> wv Pfeffer as follows >

ever Je sugpesvor Unat be could a vot Q (By Mr Harraon) Then, ender no

There may le persons whe, although op cercumstances, Mr Pfeffer, could you

pose! Ws the desih penalty, cowk! answer even Unak of voung @ saewerny

questions Ube effect of which @ to impor (hese quesuens if the result of thom

the ponalty but only « tertered reading of questions were to be to, im effect, pve

the transcript supporu the finding that somebody the death penalty is that

Reverend Wells eas eaplaimng that he eae ——

one of Ubome persons A 1 Chink at the present time thats

LR Pfeffer is a paradigm of vemremen correct, yes

tare, Pleffer had progressed from an equiv: jedge, following Pfeffer's lead, put

eal position to s clear expression of opin question in yes or no terms The difficulty

on His response became certam, however. is that in philosophical \erms certainty that

only us be was pushed by the trial judge to one would sutomatically vote aguinst the

give an opinion one way or the other The death penalty in al) cases has an internal

O'BRYAN +. ESTELLE 39

for

conclude that Pfeffer's absolute paruality

was enmustakeniy clear & that Une fo an

ewer «xprwes a rang: of uncertamty tral

ercecs ibe level sereptable wader Wither

spron ‘Niherwne stated, the awgun7er

bat catrweing 2 lwurer's views through yes

ae pe channels dees oot resolve Une uncer:

tanty that Pfeffer cartier expressed Ac

cepting for new the premise thet 6 Juror

oho hw & nen of sho afler var dire

remait unerian cannot be ctchuded of

Wether wes ground | am pereuaded that

when PF cffer left the stand Be had sorted

bu wee: and made s Gerson

1 mou she! Pfeffer's reapers s were be

comirg quert ons themeclves # ner the inal

sedge t corected the iequiry > Pfeffer de

chang ffourly lo suggest 3 resporee It

wes thn that Pfeffer nemer!f, aot the

peda. reached jor the yes or Bo stramer

and an wered the qeeston Sagwficantly.

the recocd dows not stop eth the yes or ae

questo «= Tefense Gwne! probed Pfeffer

without soch « preface by inquiry mic

whether bk could ansewer the

questions The exchangr | have set ovt

lt conceded with the following questor

and anrerr

Q «By Mr Harreon) Then, under no

Grcumstances, Mr Pfeffer, could you

even think of voting cr snewering

th oe questions if the result of (nose

questions were to be wo, in effect, pve

somebody the death penalty is Unat

cones”

A i thnk at the present time that's

correct, yes

Thus sequence is important because it evr

dences the progressive character of Pfef-

fer's k vel of certainty and fixity of epemon

We ar not. contrary to petitioner's sugges

oe, forced to rely upon an answer forced

throu yes or no guises to decide Pieffer's

view Instead we have & venireman who

reached for that device and s court that

could condemn him to death The prosecu

tor asked the next question, with Bowmar

explained that he meant by that if s mem-

ber of his family were 2 vicum.

Witberspoon dom not require thet exchu-

sion be limited to veniremes whe would

automatically vote agaunst the death pena!

ty im every concervabie case Wihems +

Magy 679 F 26 BF), BS (Sth Cir 19RD) (ew

bane), cert demel,-— US -—-, WB BA

3653, 77 LEdad ——— (1963) Rother,

Witherspoon aloes Ur exebumon of those

venwemen who woukl sutometurally wou

agtins: Ube death penalty “without regard

le any cridence (ket might be developed at

the tra of the case before them” 391 US

at $22 3 TSS 177 a Zl The

state & emuUed lo « jury Unal will comeater

ymposn: Une death penalty beard on Ube

evdere on Une case before Lem See Wu

hams 679 F 2d ot 60) Bowman without

questo would have been almeivatly mcap

able of deang ao om Ube case «Thus he was

property excludes!

With cach of Unew jurors the tral judge

had « supenor vew of wheal war asked

answered and undervion’ than do we A!

ler ink pendent reves of Ue chaumed er-

rors am! greung weght to the presence of

the tre judge | om persuaded that be

decimot secre Trem aalte comstiryclion of

ihe taal mony alwee of duxreuee

has tae teen Sheer The dowlts suggest

ed by ‘be diamant end wormed over by

Judgy lertalls opemoe are largely spur

frum fe tua suppor Thal supposes

and *

proceet as of there was mo trial pocge

peorn a: se te appl) Withersnon But

were Be

BUCKMEVER Dwturet Judge dare

ing

My Gusn! & presemplecus

A dwt podge—one who has never be-

fore ccaudered a death penalty case, much

jens the {rusiraling problems under Wither

spoon + IThaesw, 391 US $10, 8 SCt 1770,

@ L.Ed 2d 776 (1968)—-@ erging the Court

w make «t “unmetabebly clear” just what

standard of rewww the Fifth Circort oil!

apply in the and future cases mvolving

Withers;o0n challenges

In the fifteen years since Witherspoon,

this has pot been dome And, the Fifth

ton by the tiewernch? Cwewt Derden +» Wan

engm G9 Fad OD! (1) Cr (983) veces’

TM FEDERAL REPORTER 24 SERIES

Careut demons the ares are becoming

coalescing and inconsstent The dumest.

Uherefore, argues that the Court sheokd ex-

premsty botd

() that « will apply the same standard

of review in Witherapece cases Uet «

doce = other habeas corpes matier>—

and. contrary to Judge Randal

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