# Petition — O'Bryan v. McKaskle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1013

## Text

RECEIVED
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

2
2
Constitutional and Statutory Provisions Inwolwed.....+2
History of the Rabe i esas ebeaebecoecercccocceed
Statement of the Piiidcdiseeneeedesecseresesccezeseed

4

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
26

Davis vw. Georgia, 429 u.S. 122, 129 (1976). ceceeeeeeeed4,l?,
26

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,

26
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).

I!

%

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.

IV

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
sentence, i. thet he punmhment of death
based solely upon evetence wmiroduced a!
an

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) 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
ee

id at S22 21 BSA ait -2 Bi Sock
persons ma) be excluded only if they make
n
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

Hh
ff
He
a¥¥-

HE

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
(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)

y
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
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

+
|
i
i

f

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”

Id

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

fi

ary °
rat
i i
iu itl

Het

nt
t
if

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

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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

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been
ig
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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

5
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if
8
4.
af
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if

,
aif
ae
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H

t
Test

“red on Jeqwary the Sh

of
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

i

Unoug &: that Pfeffer's professed

© ames the death penalty in & “very, very
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

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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 *
of
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
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
47 (94) Comment © mot permamidic
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
You are sot © G@erwes among yoursrives
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
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
dema! of haleat reix{ t© O Bryan @ Ab
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
He
atl
ait gH

[
E
iF
t

-_ -—_ -—

° . . . . .

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
we

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

3

3

i
i
|

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

il

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
sx © be so oealy destepped nor on Lnese
fects can it be «Ne Gecmson @ 8 Gectton
bere beceuse Judge Raodalls anslyes ©
(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

i
x
j
5
:
*
g
i
°.

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

i
e
ji

T
Ht
fis]
it

Fici
rails
1
|
if
7
iz
Flee:

f
i!
f

|
i
|

!

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
yurem or grounds unpermamble © UP wu
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
summary. review in Witherspoee aes ©
independen! bu! preeedent does sot bar an
atten’ te develop an appellate standard
for ita exereue

In the following | examine in functional

policies to which « defereastial standard ©
respons: 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%
SCt 29* © L Ed Bi TTR (1974) Vet. ot
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
ee

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
cause 4 Withersprer he (oo wm lert © ned
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)
ty, (3) be must both sey Unal be @ and ©
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
the goal © to minimane all error, Uhe defer.
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
He
a
i
int

mit
Lili

[cfs

if

5

z

FFE

if

i

!

t

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

il
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-
ty

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

E
f
gt
it

was committed deliberately am! with
the remonab 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

ro

O'BRYAN +. ESTELLE 39
for

thet the exchange Goes sot silow one ©
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

1. Ths ew © pending for on bene Grtereene
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 Randalls eprmor.
will ect conduct 8 d@& seve reveew to
determine whether purom were mproper
ly excheded Secause of “consmestious
scruples” against (he death penalty.

(uw) that & will, therefore, gree defer

ence under B USC § Zaid) te genic

fundungs of fact and credibelity determr
aaluions made by stale courts concerning
the exchusoe of jurors under Wither
spoor '—but thal, contrary to Judge Ky
prntotham's opemon, no such deference
will be aeceederd if Une tral padge dd pot
make erprens factual or creditelrty deter
muinavons. and merely concluded withou'
explanation tat the jurer eas property
exchuded

(mm) that « eoll, of course. make an

“yndependent review” of Une stale court
record in Witherspeoe casee—-yest a
docs im other habeas corpes mation in
volving fundamental comstteuons) &
suee—to determune if it o “unmatakadly
chear™ thal juror were, or were not, um
property exciuded ender Witherspooe.

(re) bet that, if Une @ not “enmetak-

ably clear” from the “close scrutiny” of
the stale court record, then the case will
be remanded — jus! as i other habeas cor
pus matiers—to the faders! dwiret court
for an evidenuary bearing oe determine
whether or not jurors were improperly
erchuded endcr Witheryoon.

Indeed. the Fifth Circuit approved just
such o * Witheryeon evidentiary bearnng”
by a federsl duiret curt m Jeckas +
Beto, 428 F 2d 1054 (Sth Car 1970) (Udo stake
prosecutor, tk state ine! judge, aad the
excieded jurors tostifax! at thes bearing)?

peaang rrhcereg co tan ~~ Fla 104)
(is)

2 Recent Fitth Cirrus Gecomems Reve not ever
conesdered Une quettsun of whether evidenuar)

O'BRYAN +. ESTELLE
Che we 4 28 ae OEE

Similarty » Boulder + Holman ™ US
478, 4S, BW SCL IVA 14a 2 Lees
433 (1968, and Marwel! + Buhop, I LS
262. 9) SCL ISTH, BB L.Ed 2d 22) (1970), the
Supreme Court remanded cases to federal
é@utrict vwowrts for a “ferther hearing direct
ed Wo the | ¥ therspoos | asus” whch mah
“goneewibly modify m some fashvon the
conciumes s siroagly suggested by the

dutrict court for an evidentuary bearing
qwecerme g (he exchumoe of Juror Weil
Une mm ict whe would automaucally vote
agninst be death penalty but whe could
turvthfully answer Une two statutory éesth
penalty quesuons—{)) becaesr the ww
yedge made no spect fact fedags of
qoredilaiity Gelermuseloms concerning bes
exchusor ‘ and (\)) because, as Judge Rar
dal! alec bokds, ot @ not clear from Une stale
court record whether Wells “couk! and
would answer the two statutory questions
trvth{elly” uf someone had explasned to bem
“what the effect of those saewers eould
be” Por smilar reasons, the case should be
remanded for ap eveienuary bearing oP
earning Juror Pieffer* However, if the o

ites)
R See ato Grey’ Lecee €7) P26 ome lees
96 (Seb Cor 19RD) Ce ate proeecator and Oe
@etere: sicrery wceuted 6 9 Wkherspoor ew

aot doee, or if tne dwtriet court determines
that o meanmgful Witherspooe bearing
cannot be conducted,’ then Une case must be
reversed and remanded to the stale cours
for & new trial solely on the question of
pwaahkment Witherspoon, 391 US at 523
a2Z@sa aie 2

| The Witherspoor lnsue

Jedge Randal! = correct that the feders:
courts “have never expremly stated wha!

the case

i
ihe
HE
it

i
:
}

Note —
enatyus of the exchaman of dures Ptafter he
as Ge gore peers con empty feces oe oor

402 714 FEDERAL REPORTER 34 SERIES

deferesc Una’ most be acrorded to them sarretorn” Townsend + Sein, 372 US
ender B USC § Ted) (page ms 8K q
«3 ). quoung Brees + Alien, 44 US 443, 4.

(i) & standards for evudentary bear:
ings and fact findings wy federa! deturet

, bet Baicom, $81 F 24 717, TZ) 2 (Sah Cor 1976)
4) ‘i maiers (page 8 Thus. if 0 state court has made specific
findings of fect or credibrirty determine '

(in) the Apotieation of theer -tacdards tions, Unese are binding wpos 8 feders! court '
and the “oesumpucn of orrectaes oh in
der § E41) & renee of Whherspeee the
challeng + (ages 404-407) “potlerpiste” dismissal, but with “some rea

ww) Us yyo= of Bidengeer cams .
the! cor ot shewhi—be reacdved by ev the state court findings” — that Ube finding>
de miear) hearing. in uke feders! detuet or creditality determunations are clearly er

: roncous 4Sumecr © Mate 49 S at MY
$2 101 SCu at TIT), Smith + Phillipa
a5 US BB. 218 Str 9460, 904, 71
Led a ™ ie)

Of course, Uns dors fot mean that tol
deference must be acrorded to slale court

courts. and the cases supporting the corr
chugson hat such By cherspoor e enusry
hearing 4m proper (pages @07 412). and

is) Ue sooleau]es of these principles
in the preaent case to Jurors Well (pages

412-414 ant Pfeifer (pages 414 416) findings Exght excepuons to the “pre
sompucn of correctness” are lated in

Heres« Corpus Rewew “Practings” § TSE), the ones most relevant to the
by Sta Court case and other UW itherspene challenges are

In all bale a corpus proceedings msutul- (1) Ucat Ube merits of the factual Co

et by sau prumen under B® USC pute were not resolved in the Stale court
§ Za. th ‘edersl dstrnet and appellee hoary

courte arc beund by the proves of
§ Tad) -ehch provale, in subs lance
Unat Une fundongs of Une state court “shall be
presume to be correct,” * and Unet the pety
toner hes the burden of extablshing that
tbe factual determinations of the state
court are “clearly erroneous” * Sumner + adequately developed ot the State court
mo wu msame
LEA 2¢ 722 (1981) Aaper v. Batelle, 7
F.2d 356 (ch Cor 1983)

--—wne er —

O BRYAN +. ESTELLE

Cae oe 74 7 20 oe (ee

qourt dow not make any specific fact find
Ing oF erodibility Geterminatuons—or if Une
record = weomplete cause the maternal
facta were not fully and adequately devel-
oped ai Une state court bearing Mame +
Baicom, $3) F 2d ot 721-23. White + Fint-
beer, $70 F.2d 18, 2) (7 Co 1978)
Nor is an, Geference due lo conchumons of
law by a stale court Cuyler + Sullrwan
46 US OS M)-42 100 SCA 170, 174
1S. 64 Lid2d 3B2 (1980) And where ibe

§ Zaid) does apply te findings of “spenific
hetorxal fecu™ and w specif crediberly
determina uons made by 8 stale court—dui
it docs mt apply te the conclusions of lew
reached by the inal court on the mined
questwe of fect ant law §=Townsrad *
Sein. T72 US 20, WH 6 OSC 45. 7S
n 6 9 LEdat 7 (1988) Lee + Hopper
499 F 24 456. 642 (Sd Cor 1974)

Evidenuary Heanngs and Findings by
Peders! Dwtret “certs ©
Habess Matiers
la a! Rates cs pus proceedings metitut

pil
Hf
i!
i
al

tr
dr
Ht
ill
“hee
ebad

cde whether Une conciumors of law reached
by the stale court are erroneous Cayler +
Sullivan, 446 US ot %)-42 100 6CL at
1714-15. Masee + Baicom. 53) F 2d at TZ2
a 0

However, if the state court has sot con
éocted « fell and fair bearing. or if the
meteral focus were not adequately devel-
oped. or if Une state court dud not make any
fectesl findings of crediteity determine
ens. then an evidentiary bearing must be
eid by the feders! dwtnct court Mason »
Baicom, $3) F2t ot 721-0. Carroll
Beto, Cor 192)

“Hed Marue’s pevteor alleged facts
contradicted by Une record of the tra! or
a suterquent slate bearing an evidentia-
ry hearing @ the dustnet court would be
ennecessary Ser Mart » Sawth, 69
F 2d Dio BD (Sth Cor 1981) (6 25 care)
However when s habeas corpus peution-
er alleges fects not resolved m sate pro
ceedings that, of proved. would entitx
him to the ert, he = entitied to an
evidentiary bearing Ruemme! + Botelie.
900 F 2d 103, 106 (Sth Cor 1979), aff'd, 445
US @ Sa 15 CLs mm
(1980) ~ (4 F.2d ot 4)

- ee ——-—"-e- =

—— _—— »— own -

404

nally, of « hearing » required ce the pet
on for habeas rehef—bwt if 1 is not pos.
bie for « meaningful bearing to be heid—
then the ert of habess corpus must be
granted Cray + Locos 677 PF 2 ot 1087
( Witherspooe challenge and alleged meffec-
ve ammstance of counsel) Martin » E>
tile, SAD F 2d 1373. 1374 (Sth Co 1978)
(competency to stand tral), Hart v Ey-
man. 6+ F dt Ss (HP Cow 1972) (habeas
claum of corr confemon)

Hebew Corps Review of Withorspour
Ceauenges

There « no ~ Withergwor eiceptor™
2USC § Ded)

The standards coscernin; habeas corpus
reves and ev dentary bearings —etech ap
ply © ever) other type of aeue ramed by
petitions: for federal habeas rele filed by
sav preoters im death penalty asn—
should apply equally « habeas claum thai
jerors were umproperly excluded under
Witherspoce See Boviden + Holman, 14
US ot 4-45 MSC. ot 112 Jecksor +
Beto, 423 F 2d 054 «Specifically, o Wither.

must be gives deference ender § 254d)

7M FEDERAL REPORTER, 34 SERIES

“cunamentioes scruples
agninst the death penalty” Witherapooe +
limon, M1 US 510. BSC. ITM, Bw
LEA 2d 776, or merely because their delib-
erations maght be “affected” by thew [ee!-
img? shoul the deat> penalty, Adams +
Terese, 48 US BM 10) SCL B2i. &
L.Ed Bt S41 (1980) Im these situations no
evidentiary hearing « necessary. juror
were mmproperty exciode! under Wither.
spoon, end no deference «@ due under
§ D544) w& the stale court's incorrect lega
conc hasions

Semilarty, the “chose eerutiny™ of Une vou
Gere etamunauen may estabiah without
more. Uhal perors «cre sot umproperly cx
chuded under Withermeoon For example, i
may be “wnmelakably clear” hel Une chai
lenged jurors slaled unequivorally that
Uney could never vote for Une death penalty
wader any orcumstances§ Lecheti + Ohi,
4) US S86 506-96. 98 SC. Bs De 4
57 L.Ed 2d 973 (1978), Porter» Entelie, 106
F.2d 944 at 948-49 (Sth Cor 1983), Bell +

26 F 26 398 (Se Cer 198% (ee banc)

—ws-wesnr re

OBRYAN v. ESTELLE $05
Cee oe 704 F 28 8 (1D)

mere!) con 'uded wilhoul +2 ptanaoa, Una
the jurors = cre property exchuded

(n) Specix fimdiags or mere conciusons
As Us evel of Witberepoos frustrauos
has increased so heave arguments by differ-
ent Fifth Cirewst jodges that some defer-
ence mort be accords! to the stale courts
“findings” that jerorm were property et
chuded for couse under @ cherspoor “—but
pose of \bene argumenl have éutingushed
betwoer aperifc fectue! and credhburty de
termina ons and mere conchumons or gener:
al rulegs” Masoe + Bakom, 531 Pad
TIT The mesoletuos of a Witherspoon chal
lenge presen “a muted quesion of bw
and foc’ ~ not wnlike the mixed question of
law ond fact presented by « bebeas clam of
~yneflecowe ammertance of counsel” Masor
» Bake S21 F St ot 72) Merve + Stove
of Texas @4 Fld ot 42 2 3) Therefore,
under ocret standart of reves. o federal
court co afroeted enth « Witherspoon mauve
() @ met bound by purely lege! conche-
gore reached by Une slate court Cuyter
+ Sulbvan 46 US at 841-42, 100 SC
et 1714-15
(o) mest = ogtve|« deference = uber
§ Zea). w& any apr fn fimdings of fact

$492 101 SQ wt 770-71

(wi bet seed not apply easy “presump
en of correctnes” under § Z4id) if
Ube sale court dx! not make any speafic

end fey @ Gares + Emote, @6 F 2d 6 Ow
Car 1980) (em Banc) (Reeviry and Fey. concer
fing & 398) and pechage by Judge HE
Alterman « Aumtin, G3 t 24 Th. 63 a. 3 Cah
Cur 1991), firmed GS F 2d 124 138 Ge Cr
1983) (er banc) See atmo Dutge Krevas's Ge
ent mm MeCorquedaie + Batcam 5 F230
1553. 156) -64 (1 tem Cor 1083) Crews, 1. Ge
semung) But ove Judge Carts aagarty ape
ton @ McCorquedeie + Baloom 15 fF 2d ot
153408

terial fects concerming the juror's exciu-
gion were not adequately developed Mo-
gon » Bakcom, $3) F 3d at TH. White +
Piakbeiner, S70 F 2d at 2)

Teese principles are illustrated by Masor
+ Bakom, 83) F2t 717 (Sth Cr 1976)

state habeas cert (such a whe an atior
acy actually dud for bu chent —but dd
apply © Ue coaciumons to be

state habeas court in the case really det
not make any purely fectual findings
whoch the Destrict Court could presume to
be correct ™ [ft merely foend—or more

, Qatcem seo batts = “Wide Oe
mate betes paige Gd mats thet be Creed
atiarery Watts toetamcery rether ines Meese 1
Wwetts @d ame ectuai) remember Stas ant
temsfied anty os to tes genera cumem and
rece Oepreneming §=6Gourtappemeed
cheres fe amy cose the (emit Cost wes aor
pepe wo mre 10 Venstor™ (ee coveiie
chee te 2 ot of Gta of Got eg
ome” Gita Ro H eeptee

406 7M FEDERAL REPORTER 24 SERIES

ty own evidectiary bearing” (63) F 2d
at TZ) (emphases added)”

Siewiarty. @ the review of o Witherspoor
challenge. \he “presempton of correctnem”
ender § PZ54id) should apply © qpeaf«
findings of (act and creditaity determene
tees—but so deference showkd be sacorded
te & mere comchumor thet Ube juror war
propery excluded See Masor + Baicom
63) Fad ot 722. White + Pinkbener, 570
Fad ot Dl Per example, 2 Male re’
jodge covkd make specific factual and cred:
bility Getermunauons concerting Ue juror
who may ot be telling Ube Wulh oF Ube
jeror whe uses words hae “I don't Uwnk so”
thet may appear equivocal <> Ube vow Gre
transcript

the Ipiag juror

Jeror Drew first stated Unet ashe wa
morn!!y opposed lo capulal punuwhmen'
but ister sax’ she could vote lo convxt
Une defendant and senteace hum to death
However, from ber demeanor and from
Une tone of her woee whee she toed le be
convincing i saying she could pul asxte
her scruples aganr Use dealh penalty. 1

wpe se Une Geath pensity indeed, 1 ap

Juror Brow first sand she “Gc mot
Unk” she could returs = verdict Unei
caued the defendant's death, then aid
that she couldn’! “positively” any that she
couk! not impose the desth penalty in

17. Ser else Whee © PinkBemer, 570 F 2d
20) (ete cour merety “comcladed” Get com
fecax* wes volumtary tet made no speciix
feeegs «therefore. no “presumepuen of cor
recte-ss | wes proper wader § 2254) Aree +
Emvet> €2) F 2d ot S29 (abernce of any specific
fect txdhegs or creditiny Geirrwanecens by

some “hideous” case, and finally answer
ed that she did not “feel” she could re-
tern the death penalty From her fac!
exprenmons, from her Gemennor aad Ue
tone of ber vowe— indeed. she vadhgnant)
pet ou! the words “| don! Uuak / can do
thet” @when acted if she could ever return
eo death verdxt—end from her pamitive
and resounding “no” to the question of
whether she could retarn the death pena’
ty. & clear to me that she would sulo
matically vote against the death penally
im all cose”

It i obvious thal such specific fact find
ing and credstalsty dcicrmnatsons must |«
given deference wader § ZE4id) Net to do
so would be steurd Ue wl jodge har
made eprafc factual and credbabety find
ing? based upor observations of Ube jurors
demeanor, observations Uns! cannot be re-
produced im the cold appeliste record. the
typed Uenecnpt caneet accursiely reflect
Ube ali-teotypeca! veoiisung jerer’s true
feelings about the death penalty, aad the
words on the printed page may sot revea!
whether Une juror’s answers are patently
{elec §«o le edition, responses to Wither
spooe questions during vow dire “are often
(reeght with amingurty”. because of the
“vone of wore, the face! expremmon and Ux
demeance™ of Une juror, even a simple ‘yes

Balkcom, 705 F2i ot 1561 (Krevach, J.
dmaenung:
Accordingly. epecific findings of fact and
credhtality éeterminalions by stale courts in
Witherapoce cases must be accorded Une
presumpice of corrertacm wader § Tied
1 «These exesupée s. of course, based epee the

wrenswer ed quesicn © focumme Sm Aidrrmer
+ Amun, G6) F 26 564. SED oe 5S

of wece, exc. of the “1 Gon! Gant so” pover bad
beer Giteren Ser Grane! + Emeie. G5
F 26 673

OBRYAN + ESTELLE

oo

—just as in other areas of Sarde, wre!
jedge are sccorded breed Gaervtre
evslustitag juror mepertiality See Irvie +
Dowd M46 US 717 815 C. 1638.6 L Edd
7S) (2961) United States » Tayler, 4
FP 2d 2, Br (ch Cir 1977), United States
vy Rottens SOD F 24 GO. G53 (Sth Cir 1974)

However, th stale court record may not
cotter aey pes. « fact findings of ere)
bility determinatiors Instes¢d the tru!
jodge ma) have merely concluded thal the
jerer was property excluded. © thow! etpis
nation am with @ general ruling. such a
“The sere = eteuerd for caue” of “Tie
state's meter Ww erchude the juror for
cause oo granted” of “Ties jurer = not
qualified unéer Waberspron” The tra!
yedge ms) Yeve Geexted Uhal the compliant
jeror was hyong. or that Une “1 don't tient
a0” purer hed etprrane! unequrvaca’ oppem:
tor le Ue death penalty However there
= pamdy oo wey for ar appellate court lo
reve thew findings—to determine if they
are char!) crromeve: or if Ur inal court
abused 1 derreuor-—encr there Efe fe
specil!s and express findings im the recon!
le anaugows wiuslom, the Court has aot
hemtei -an evidentuary hear.
ing im the federal dwtrict court may be
required See Mason » Ba/com, 53) F 2: at
721-23, Carroll + Beto, @) Fd 106%

For example, the juror may heve been
excused immediatcly after making Ue
statement “! don't think | could ever vote

3). tedeed. @ Ge were not oo the FIR Creu
cowkd G@agose of every aherapuon Chafeng:
eungly by wring Grference to Whe sate court +
greera! conmciuwon thet Uus juror @ property
excused ~

40- TH FEDERAL REPORTER 24 SERIES

to onflrt the death penalty” Jf asted ade>
Gena! questions. Ube jumor may have teer
proper’. excluded because of unequrvrara:
oppasitiet w captlal punahmesnt—o# he
yeror may have ‘een hie We a. aeeke per
sonal fe-lings and wote for Une death penal
ty of warranted by the evederce = in comes
like the the ferters! dwtinct court showkd
hold an evddenuary hearing & determune
whether thy juror @a or was fo’. ImpProp
erly excluded under Witherywerr = The
Court het on fect. appeoved the howting of
evidentiury hearing? b) maonve appeprals
Withers wor challenges a: has the Unted
States Supreme Court

1) Senreome Court cas-

Witheayr ~~” evedentiary bearing? err
furected! bey the Saupeeme Court un Bowkden

Holmsn THUS 4% SCL MB
Lb le 0) (1She) ond Mareeil + Bashop,
™TS M2 WSC UM BLE Bi
1970), [nm Aogkten, the “undependent re-
ew” oof Une stale coert record revealed
hat thricer jurors Rad teen excluded for
afer stating they had “a

sum TO ele,

fined op cor agacnst” of “did not belewe
in” cap al purmehment In Marwel! +
Ratep 4 eas clear from Ube state court
reord \ bre jerome had heen excused

ymmedat 'y after stating that they “dxds't
televe capital penwshment™ o- that Uev
“thought or were “afrart” they had conse
enlou s tuples agamnst the death penalty
No addilena questions were ashe! to de
termine 1° these juror could, despite Uber
feelings about caprial punshment, “conar-
entiously follow the instructions of the tna!
judge an fariy conmder the imposition of
the death penalty” Instead of rverung
and remamting lo Lhe stale courts for aew
punahmest tnals—as the Court did im al
most idenuica! situations in Granviel v Es
tedie, GS © Bi O73, and Burns v Estelle, 626
5 2d 3946 the Supreme Court remanded to
22. But we the “alternative” order affemed wm

Mart + femen 4 F ld 3% (mh Ce 1972)

@ving (he state the options of conducung «
hearng (chee wg (h* prisoner or retrying fem

.

the faders! dairet cour for bearing? com
arn’ the 8 here ee age
t appears, therefore thet the ae
tence of dealh ompemedt pes Une peter
er cannel comsiiuleora’y stand unter
Witherapeer + liknon We do not, how
ever, finally deci thal question here. for
eevers! reasons Pine, he Witherspeer
meu was not race! of Ube Distret Cour!
mm the Court of Appeals, of om Une petitior
for ceruoran filed in the Court A fur
ther hearing dineted le Loe aeve mgt!
conceivably meatif) in some [ashron Uy
conciumon a strongly suggested by th
record sow before us = Purther, it @ not
clear whether the petiloner has erhaus'
ed hes state remedies with respect to Un
weve Finally, wm Ux event 4 arn oul,
as sow appear, that relief from the
death sentence must be ordered. a loca!
. feders! court will be far better equipped
Unan are we to frame an appropmate de
cree with due regard to available Ale
bama proceedures” «(3H US at OM
SCt at 1142) temphase added)
In other Witherepeer case which have
reached the Supreme Court, there has been
no remand for an evetentary hearing
However, none of Loeae involved petition:
for federal habeas rebef a!) were direct
appeals im state court cases and. of cours
federal courts have no suthomty to order
state courts to hold hearings m habeas mat
ters Townsend» San T2US at Blan
9, R39 SCt at 757» 9 Dizon v Beto, 472
F 2d SOS (Sth Cor 1973) ©

(i) Pifth Crreurt cases

Jackson » Reto, 4 FB! 1084 (Sth Cir
1970), was this Court's first “post-Wither-
spoon ™ decision ® There, the state prisoner
claimed that jurors had beer cacluded sok
ly because of their “conscentious serupies
against the death penalty No “indepen
dent review” could be conducted of the

—— nl

(YRRTAN «©

eSTeus 408

pelt aa =,

oo etamesler tet bees at”
tee fete Greet wert, egely
tg ti oder! prme pes of heleas rewee to
ihe thenpwe celeng comtuctd as
eveierlary heareg -appretometely§ ot
years afwr Ue Stal court ine) deter
mine «he (her urom hee or hed not, been
eur ete «6A! tSe Bearvng. the
metilnrer peeeentiet’ ewxtence that of tbe
tment thoes jurors ede Ral teen excluded
for ca. by the slate court

were tent

=o wer Bet avelabbe

eo (Pore and Porterfid) dd not

th *

Hee. tad

mprwer

. ven remer

rca) kong asked if they cowld comer:
fs ‘act. wigan oF crcumstance ic
whet they oak! -ote for the death pen
ale

ti venonemar sent be oes aeked’ m

que re at ai

time mecalerd fue pespense that >&
ow nerve of ary sttuator in
w* ‘“ Coukt vole 8 Gath prraity
reer lesutesd that the Quctber

°a_” aseecrl or Wey COuk! Ot mem
ter « teng ashe

“im two vemremen, Kelly and in
~ * fe! thal they genre asked about
. rrr scale commitment agpimst Une
Gea * pevusit) thal they eepled they Rad
hom bul sere newerthees enciuded for
cause «in the final soalyse, only two of

tweuly (free excluded veruremen st
fred lo clear non-compliance with Wither.
spun slamdanis” §=«6(428 F2i at 1066)

However both the prosecutor and the
Mate tral poder testified at the Wither-
span hearing Unal so juror had been e1-
cused merely tecagm of scruples against
Une death pena ty. Unat Ube prosecutor usu-
ally avtievi cach juror. in turn, “whether or
mot te, could, under any crcumstances.
any state of facts, ge the death penalty”.
and Unat, i! Une prosecutor failed to do so.
the tinal judge asked cach juror Une “second
question” “Can you coneewe of uny farts
or cirrumsanees so brutal that you couk/
vote for the death penalty in a proper
caxc™ In addition

24 The record @ len! as tc ef was respen
tite for muapleceqe a tet pettoner appetiont

“Sedge Kacee further testified Uhal be
hed preentet over a number of capital
cuers. Uhal bee comers was not to ercuw
& juror mmply becaaw be stated be had «
comamenticus wrupie Unal fo vemreman
was ercuerd uniess he state’ enamingy
ously Uhal he could not wote for the death
penalty under any wt of facts of orcum
stancea™ (42% F i ot 1066)

The federal dwtret court resolved Une con
fect wm the evxdence by crediting the test)
mony of Une stale tre! judge and prosecu-
tor, and by specifically finding Unat each
pruspective juror hed been astel U
“second question ~ The Court affirmed tx
death penalty, hokding that the distinc’
courts findings were not “clearly erron
ous” and that no juror het been rmprogeriy

ercuset ender Vith

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1688%3A1. Public record. Not legal advice.