Opposition Brief — Gray v. Mississippi

RECEIVED

DEC 23 1985

OFFICE OF THE CUFaN

SUPREME COUT, US. |

a

OCTOBER 1985 TERM Table of Contents i

Table of Authorities ii

DAVID RANDOLPH GRAY

Petitioner I. Introduction 1

Il. Opinions Below 1

VERSUS .

IIt. Jurisdiction :-

STATE OF MISSISSIPPI

Respondent IV. Constitutional Provisions and

Statutes Involved 1

Vv. Statement of the Case 1 ig

ON PETITION POR WRIT OF CERTIORARI TO THE |

MISSTSSIPPI SUPREME COURT VI. Reasons for Denying the Writ 2

A. Certiorari Should be Denied

Since the Opinion of the

RESPONDENT'S BRIEF IN OPPOSITION

Mississippi Supreme Court Merely

Corrected an frror of the Trial

Judge 2

Conclusion

MARVIN L. WHITE

SPECIAL ASSISTANT ATTORNEY GENERAL.

COUNSEL OF RECORD

AMY D. WHITTEN

SPECIAL ASSISTANT ATTORNEY GENERAL

Office of the Attorney General

Post Office Box 220

Jackson, Mississ 39205

Telephone: (601) 3680

Attorneys for Respondents

|

Mane Sp Tense 448 0.8. 38,

. t. 2521, 65 Le ed.

24 581 CIPS ccceccecesscccececesevoeosscessoesees

whee tae 472 So. 24 409

TTYTTTITITITITITITITITITITITITiititt ttt

mietsen a Rey’ 386 U.S. 547,

; + Ct. 1213, 1217,

18 L. a4. 2a 288 CIOS Dcccecccooccevceseescecooes

See ee 380 .S. 202,

‘ . + 24 759, 772,

85 s. ce. 824 CBDSS dccccccecceccoveccevseseseceseoss®

maori ght v. mt U.S. ;

i . ce. , al . eA. 24

84) Bl. PP PrrrrTTrTTrTerTrersrrrrrreri1rsrerriritiiitt

; - @t. + 20 tL. Od. 24

776 C19SSP cccccccescccscccsesccecesesesesscseceed

Sixth Amendment to the Constitution :

of the tinited SESCSGc cccecececcoeccsecesossecesel

Pourteenth Amendment to the Constitution

of the United err TT TTT TTT TTrTeTrTriTrirriririy

28 U.S.C. § BAST (Dbeccccescceceocescceeseosececcesocel

Miss. Code Ann. (1972, as amended):

€ BVP Bc cceccsecseceecesessesseccesoccosscecsoocel

€ BOan IG IO co cccceceeseesesesoeveegececoeseseoooel

2

This matter is before the Court on petition for ‘ .

certiorari to the Mississippi Supreme Court seeking rev!

of that Court's afficmance of the Petitioner's ct

and sentence of death. The Petitioner is proceeding |

forma pauperis with the aid and assistance of counsel. 7

TI. Opinions seLop

The opinion of the Mississippi Supreme Court affireing

the conviction and death sentence is reported as Gray v¥.

State, 472 So. 24 409 (1985).

it.

Petitioner invokes the jurisdiction of this Court

pursuant to 28 0.S.C. © 1257(3), asserting denial of rights

secured by the United States Constitution.

Petitioner relies on the provisions of the Sixth

Amendment and the Fourteenth Amendment to the United States

Constitution. Petitioner was indicted and found guilty of

capital murder pursuant to Miss. Code Ann. € 97-3-19 (1972,

as amended) and sentenced to death by the jury efter «

separate hearing on the punishment pursuant to Miss. Code

Ann. © 99-19-1001 (1972, as amended). :

V. STATEMENT OF THE CASE

Respondents accept the statement of the case set forth .

by the petitioner herein with the exception thet the

complete voir dire of juror Bounds is sttached hereto as «4

portion of the appendix. The voir dire of juror Bounds is

found est pages 529-555 of the record filed in the

Sississippi Supreme Court.

The situation which leeds to the filing of this

petition for certiorari was brought shout by the failure of

the trial judge to properly exclude jurors for cause at the

request of the prosecution when such jurors clearly failed

to meet the standards set forth in Witherspoon v. Illinois,

391 U.S. 510, @8 S. Ce. 1770, 20 L. Of. 24 776 (1968); Adems

v. Texas, 6468 U.S. 8, 100 S. Ct. 2521, 65 LL. 84. 24° 581

(1980); and Wainwright v. Witt, U.S. , 105 S. Ct. 8446,

83 L. O4. 24 O41 (1985).

Tt is rather obviows from the record that the trial

judge was attempting to preclude any problems arising fro=

challenges of jurors for cause by requiring the state to use

peremptory chellenges to remove jwrors who were clearly sot

qualified to serve on the petit jury. While it is adsiradie

for the trial judge to atteapt to avoid reversible error,

his efforts here led to the present confused state of

affairs.

Ry the time juror Bounds was voir dire? the State had

been forced to wee all of its peremptory challenges ant,

therefore, had none left with which to remove juror Sounts.

This sitwvation arose from the failure of the trial court to

excuse jurors, Sr. Quiz, S@rs. Coker, @rs. Bush, Mrs. Price,

and Mrs. Walker.! Of course, hed the trial court properly

excuse¢d these five jurors the state would have hed «a

peremptory challenge with which to remove “rs. Sounds and

; The voir @ire of these individuals is attached

hereto as part of the appendix. The woir dire is

set forth es follows: Sr. Quiz (Record 67-370);

“rs. Coker (Record 381-383); @rs. Bush (Recorded

985-393): Sree. Price (Record 394-400); “re. Salter

(Record 601-403).

Supreme Court in its opinion wherein the Court stated:

this petition would not be necessary.

trial court did not follow this path, and even a

judge attempted to correct his error, he created more

confusion. Instead of simply reversing his ruling as to on a

of the five jurors previously excused by the state on eit

peremptory challenges, he excused juror Bounds for cause. . i ;

~y

aM 5.

Respondents respectfully suggest that there is no doubt ~~

that the five jurors which the state was required to | .

exercise peremptory challenges to remove should have been :.

removed for cause. This was recognized by the Mississippi

Although the route taken to Mrs.

Bounds' dismissal was a circuitous

one indeed, and most highly

disfavored, it should be obvious to

all that no prejudice occurred to

att ,

na¢ unequivocally stated that th

puid not vote to impose thi

ainly s s :

a jury that can follow the

instructions and jurors oath.

? ’ . That

eoins ene case eer al court was

correct when it recognized the

error in its prior rulings and took .

affirmative action to correct that ‘

error. [472 So. 2d at 422-423, %

emphasis added)

Of course, errors of a trial judge may be corrected on -

appeal. Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213,

1217, 18 Lb. 84. 24 2868 (1967). The ruling by the

Mississippi Supreme Court simply recognized that the trial

court should properly have reversed itself on its earlier

rulings as to the five jurors and excused them for cause

which would then have allowed the state to reclaim its

previously expired peremptory challenges. Thus, the ruling

of the Mississippi Supreme Court simply corrected error of

the trial judge. As the Mississippi Supreme Court went on

to state:

There is no logical reason not to

allow the trial court in this

situation to correct its erroneous

ruling prior to the empanelling of

the jury in termination of trial.

Notions of judicial economy make it

clear that the trial court should

be allowed to recognize and correct

its error early in the proceedings,

especially where as here, there

could have been no possible

prejudice to the defendant. [472

So. 24 at 423).

Respondents would respectfully suggest that the words

of the trial judge in rectifying the problem which had

occurred are not some “magical incantation" which cannot be

cured. What should be examined is the effect of the ruling,

and not simply the words which led to it. The defendant is

merely entitled to an impartial jury, and it is doubtful

whether this issue would have been raised at all had this

not been a capital case. Respondents would respectfully

suggest that the ruling in this case should not be different

simply because it is a capital case than it would be in any

other case. As stated by this Court in Wainwright v. Witt,

supra:

- « ethere is nothing talismanic

about juror exclusion under ;

Withers n merely because it -

Involves capital sentencing

juries. Withers n is not

grounded in t ghth Amendment's

prohibition against cruel and

unusual punishment, but in the

Sixth Amendment. Here, as

elsewhere, the quest is for jurors

who will conscientiously apply the

law and find the facts. That is

what an “impartial” jury consists

of, and we do not think, simply

because a defendant is being tried

for a capital crime, that he is

entitled to a legal presumption or

standard that allows jurors to be

seated who will quite likely be

biased in his favor. [83 L. 8d. 2d

at 851).

i _ ee Se — CS ee ee Se ry

case as it is the one claiming foul for

exhaust its peremptory challenges on persons who shoul

been excused for cause. It is beyond peradventure :

the roles been reversed, that the defendant would , cha

reversible error. The State, however, does not wish to '‘ wir

the battle and lose the war". If the State simply says that .—

it was required to exhaust its peremptory challenges on

persons who should have been excused for cause and the Court a

then determines that that was, in fact, reversible error, it =

is placed in the position of asking the Court to order a

retrial, which it does not want, after obtaining a

conviction and death sentence. Whereas this would be the

proper route for the defendant, it would be ludicrous for

the State. Therefore, the State's position is simply that

by correcting the lower court's error, the Mississippi

Supreme Court has “set the record straight" without

prejudice to the State or defendant. Respondents would

respectfully suggest that this as at least part of the role

which it is expected that appellate courts will play.

The exercise of peremptory challenges is clearly a4

matter of state law. *“[t)here is nothing in the

Constitution of the United States which requires the

Congress for the States) grant peremptory challenges" Swain

vs. Alabama, 380 U.S. 202, 219, 13 L. Ed. 24 759, 772, 85 S.

Ct. 824 (1965) quoting stilson v. United States, 250 U.S.

583, 586, 63 L. Ed. 1154, 1156, 40 S. Ct. 28. It is, of

course, a very important part of our jurisprudence and “The

denial or impairment of the right is reversible error

without a showing of prejudice", Swain, supra, 380 U.S. at

219. Here the State is the one impaired, and the defendant

cannot complain since his rights were not denied or

impaired. The State is simply asking this Court to

— oa

>. +" a)

recognize its rights in peremptory challenges as well as

those of the defendant. The defendant received a fair trial

by an impartial jury, and that is all the Constitution

requires.

Since the defendant was not prejudiced, and since the

Mississippi Supreme Court has corrected the error of the

trial judge, certiorari is simply not warranted in this

case. The State as well as the defendant is entitled to a

fair and impartial jury, which is what was empanelled for

the trial of the defendant. In fact, even here, the

Petitioner does rot contend that the jury which actually

tried, convicted, and sentenced him to death was not fair

and impartial. Instead, he relied solely on an error of the

trial judge which was corrected by the Mississippi Supreme

Court.

Por the above and foregoing reasons, the Petition for

Writ of Certiorari should be denied. P

Respectfully submitted,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

STATE OF MISSISSIPPI

MARVIN L. WHITE

SPECIAL ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

AMY D. WHITTEN

SPECIAL ASSISTANT ATTORNEY GENERAL

DONALD G. BARLOW

SPECIAL ASSISTANT ATTORNEY GENFRAL

Office of the Attorney Genera!

Post Office Box 220

Jackson, Mississippi 39205

Telephone: (601) 359-3680

ee ae se ee

NECAISE:

BY MR.

NECAIS=:

Then, I take it, Mr. Ladner, that

iz you feel that this is a case,

after you have heard all of the

evidence in this case, Mr. Ladner,

if you feel that, based on the

evidence that you heard and the

law that Mis Honor gives you, if

you feel that this is a case, if

you feel that the evidence warran<s

the imposition of the Death Penalty,

and the Court tells you that the

Death Penalty is allowed in this

type of case, are you telling me

that you could vote for the Death

Penalty?

Yes, sir.

You're telling me that you could do

that?

Yes, sir.

Mr. Ruiz, do you have any con-

scientious scruples against Capital

Punishment when imposed dy the law?

J67

BY ™R.

RUIZ:

BY MR.

NSCAIS=:

BY MR.

RUIZ:

NBCAIS=:

You do. Now, is that in this

particular type case, Mr. Ruiz, or

in any case?

Are you telling se, Mr. Ruiz, that

no matter what law, what instruc-

tion His Honor would give you all

on that, if he told you that this

is a case that, uh, where you could

bring in the Death Penalty, are you

telling we that yu could not, that

you could, nonetheless, not under

any circumstances bring in a

penalty and impose the Deeth

Penalty, regardless of what the law

is?

No. I couldn't.

You could not.

232.

2 we

ase of

-

.

~~ @CA

on and

2 .

1se

»* -

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it t : 1 “S8e whereby you

iz > the voath Penalty,

ould ov the law,

Par ~ - ath

; tai

—

BY MRS.

BY TH

COURT:

BY MR.

NSCAISE:

BY THE

COURT:

245.

Be, in any case or just this type

Case?

In any case. I would never vow for

it in any cese.

You would never vote for the Death

Penalty.

Now, if Your Honor pleese, we would

Sove eat this tise for the Court to

excuse Mrs. Coker for the same

reason.

I'll require you to use one of your

challenges.

All right, sir.

You call back tosorrow afternoon,

efter five o'clock.

Mrs. Bush, you take her place.

mie Mee Bush. You take her

piace, the one that just left.

JSS

SY MAR.

NSCAISS:

You want to question her, first?

You can ask her the qeestions.

Sir?

You can just ask her the questions.

Which ones did you want se to ask

her?

Well, let's see, there's two ladies

up there, too, Mrs. Berthelot end

“rs. Ware.

“rs. Berthelot and Mrs. Ware. any

of the three of you, Mrs. Berthelot,

Mrs. Ware and Mrs. Bush, any of you

know any of the parties thet the

Court insuired sebout?

Any of the lawyers ever represented

you or any sember of your fasily?

jst

247.

Any of your mus73532, uncles,

brothers, cousins o- wybecy senbers

of any lew enforcesent acencies?

Anydvoey know eny of the vicoesses

that the Court called?

Any of you three Enow enything

about the case, reed anything in

the newspapers about the case, when

it happened?

I'we heard about it.

Whatever you‘ve heard about it,

Mrs. Ware, could you put that out

of your ging and try this case on

the law and the evidence and

nething elise?

Yes, sir.

Now. Mires. Bush, do you heave any

conscientious scruples @@ainst

Capital Punishment when itpoced by

the law?

Jso

BY MRS.

SH:

BY MR.

NECAISS:

I don't know, I don't know if I

or not.

Now, if the Court, you'rs geins ts

first be called upon to deci4: she

guilt or innocence.

Yes, sir.

And after that, if you find his

guilty, then the Court is, you are

going to hear some additional evi-

dence. And then you are going to

go back and decide whether he

suffers the Death Penalty or

whether he gets a life sentence.

Now, are you telling we that you

have any conscientious scruples,

do ygu believe in Capital Punish-

ment?

(Inaudible. )

Ma‘ am?

250.

‘ot? not guilty

om, uh, about

iether he should

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that you could not, you could

vote, when they brought the

individual in, who hed been

adjudged guilty, you could never

vote to give he or she the xtreme

penalty of death, regardless of net

the evidence showed?

that you couldn't vote for the

Death Penalty in hi “ype of case

oF any type of case?

D se oes De RICo: fell, it would depend upon the type

, of case and dependin: upon the

‘eo Ore perfectly entitled to that

facts.

@@i.cr ' wT anG ; | 4 |" » vr

view, you are certain) entitied ¢

+ -

&> ertaini) >. trving ¢

feCAI SE Mat type of case would i¢ take?

?Sosarras you

sive me @ set of fects where you

wusc Vote to impose the Death

tut what am 7 r is tw

rma.

pe é alr e | , 7 ar

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~ sy te p oe @#Vidce > war}

rs . " j > ® s _) J that .

’ f it please ¢ court, i object

da tact, i 75@ the Deat

to that

ennai ty if t ey ; 4 : ° twe

th awa _e' wh a 1 - le e

7a ar

~ i Dut ; oF are

4 ' : 4 '

sive e " st of fects. ars. rice.

. * | . if . ’

"ers it you were seseted on the

" y ype 7 ase - >

“rv, Ona the person Sad been

a? "\ + pe 4 . ,Ae ry -

; vugszec gzuiity,. wo “u Sad eard

a? eer ’ : - :

264,

ar © aes

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395.

1anSt the imposition of the Death

maity without regard to any evi-

e! “nat might be developed in the

— " » ¢ -oe

“ 3: -+-5tOn tO the case.

*

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& a weia — 44UO vaVlic

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>» ware 4estion ane “uestion

“-*+ “©, SHOULC De answered yes or

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sive NOW, & #4 4008@Uu iF again.

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‘ “iat Ol ‘- we MOveszopec in

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. ' "UMA YOU reac that ove again

y ’

we sthes

. anv% ~~ Tex % | > “4 in

OURT: Ait Tight, I'll read it again.

a] : it ti ~* ve

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Suffer the Death Penalty,

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‘ty Of death, could

403.

Wy +4 ‘ ’ ale a is NECAI fell, I'm sorry that they did that,

IC ZS «

S0URT: .4i richt. All richt.

Lat ISK you the question again.

¥, answer me y2s or no and search

ae we . 2s a” conscience on it because you,

. : : 4, I Know you're an honest and

-iCere verson.

- s t' _ ; t | 4

Clie tate j a I riou Lt ;

~~ - . : = — BOUNI 4 think I an.

: aes 1 =" And anybody that,uh, born and

ene maisea up in Scott County and zoes

‘Oo the Presbyterian Church is, uh,

mas got to be a good clean

a4 . “++, 4 think J individual.

r two t POOCbaavecee

ail I want you to do is just search

your Own conscience and tel) ne,

At UOT poss ~- SEree with you, positively, give me a yes or no, to

wucge. there's: two of them........ tals and don't equivocate. The

; juestion, once again, is:

ee eeseeseseeoee JUST USeEG that tc t " . he lily +

. WOUsd you automatically vote

one 02% She Jury. At least one per- against the imposition of the Death

On tnat I'ma positive ,

od ;

210

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COURT: Do you understand that wha 1

re line ?

are teiling we

7 on

Di IU «

NECatTe: T, he a | iy a ~

HOVLALOS Judge, the lady coes

rhe

not pEcers tand

r a

.

wYVUALS

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po) Gee Se &)

405.

your question.

wr. Necaise.

- ~ nines

tia a iment wees ‘

ing to odject *o the

- . a

Yistrict ATTOETICY occcccecccccce

(Interposing) I've already, I've

already set him down. T don’t need

any help from either one of you.

Do you realize that you've said,

i'n afraid that a while ago you

didn't understand ny question, Mrs.

Do you realize that you have now

told me that you could impose the

: , - or?

veath Penalty’

2S, Da'am. That is what you just

told me, if you understood the

3

} ]

-OURT: fou would not vote against it?

Bent “

Ww, Ce : IDS: (No response. )

ay TS

’ + +

I t)

’ , ” Ves, A ss ie

sOUENt you said can I vote aca: ‘ SOURT: :0u could vote for the Death

E RS.

' ™ > we ee

Ve Let fe I aq ito vie aid Ow .tas0 s + think + could.

T t + ae

t's the same question now, Mr

—— —

ee ee - + as

. T ay i-« Cc} ‘c ;

sOURT? adi Pignt. She says she can vote

fould you auto atically, would you for the Death Pen ity.

automatically vote against + e

impositic OL the LD ta renalt we Se

° é> . Tes - T « a *

regardless of any evi e that NeoCalSo; vudse, + want to make a Motion now.

Hignt be developed in the course

> ee ~

» © vs aes = = —_

. ‘= 7, any -

COURT: aii right. Come to the Bench and

J

. make your Motion.

*r .

\iv0 response.)

\At the Bench, with the Court, Counsel and Court

Reporter present, and outside the hearing of the

The question is in the first few Jurors in the Box and of the Courtroom, the

words = "Would you vote against". following proceedings were then had:

is your answer to that yes or no?

NECAISS;: The State ha exhausted their

at

409.

anc, uh, who were very unecuivocal,

uptory challenges, their twelve

that they would not, under any cire

r tor aiat AnC,. oF;

cumstances, uld not vote to

. impose the Death Penalty.

— = SOURT: Well, I think that's right, I made

. - . you use about five of them that

; didn't equivocate. Uh, I never had

7 ; i mo icea that we'd run into this

. ” “Fr > t

many.

“ - (BY MR.

ISCAISZ: I didn't elitner, Judze.

_ “eo ret e - t

‘

“ we wAwwUSS.on SOetween Court and Counsel.

> | i.

. c i< it tjaat 2 w ‘ar ,

TIGALL we re going to object to the grant-

‘ le e, wé wou! ise it P

ng O02 @ thirteenth Derenptory

t sacy because as t t ; - ™ ;

~adscence. The Court has already

e€ ei : weak and ind - ; ‘

ruiec on the State's, uh, uh, argue

i Sti ments in previous attempts at

Challenges for cause and the grant-

a 4 @SK the urt, ecause ¢ 7

ing of a thirteenth would, uh, be

~ t Ss ot -0.lowed t -~*2 \SGSe 7

’ one in exceSs of that provided by

try J ut the Case, that you let } j 4

aaW. anc the Defendant would

u swe another challencre in thi

ee et a

ase, i yarvicular, on this woman

aia we Can give you the ones on

“22, un, Cokeur, uh, Arlean walxer, “AA te v

. : MelAlISS: Judge, I'm not asking you to gcive

annie Mae Sush, uh, Lassabe, Price

217

olb

411.

410.

fr a5 -

wr THs

‘ . iske-

- : ” , ‘ bh T+ 7 ~ 7? = “ 1}

wWUIA S amter s5ian ' isnt. +4 +

> ? . 4 - > +

- ~? -

lsat. Let >.

s S « -

, ,

thay ‘ ‘

rs a rey - p Jive :

‘ twa i Ses ws. councs, do you feel 4ide@ tnis

‘

. . : AT 4 ' , iumile

-s a case, anc I don't, I certainly

a = T. > RK LY TT?

— a 6 . 20n't /ant you ee) think that 4°

os | asd sc Pt . ‘

pa©4inZ On you. But, uh, what we

are wrying to do here is that we are

trying to pick twelve people, uh,

wno we feel that, uh, would be fair

a tae ; . ‘ 7 ” val ’

‘ ‘ ; ang impartial persons, what we are

CAaM il fie wem myself. Sp al , ‘

- _ c r 7 a , 7

‘ ee : -UUn2NnE 20r 1S people who could be

aqani tna ‘ we “ ’

— : 12 the evidence warranted it, could

~apose tne Death Penalty because we

ame Oe , , see. that this is a case that war-

— , , " ‘ rants tne imposition of the Death

Penalty. “@ AnNOw that the law

ay e . 4 a

uil ind let

ie ; bells Ise, @itngar suilty or not

6eTF ~+ - 1 eC. “

> -

*44ey¥ in this case?

‘

ee

7 ~- itl eo

; 2

LS ish «

* - + a |

a SBUUNUS : aes « -2Ccn a verdict?

- * ae ; ‘ ae a a * =

STEGAL. : > ‘ ’ ’ * ’ w

‘ p + + .

ond, s e ar » SU ect “

"> oF here

na I i} Se Ceceeeessesssecece

219

vis

20

413.

Ft » -

a" > a - ec

wVMe™ CHua.l.enzce ner for ~euse,.

. + . > ’ \ IA |

> . 7 r - ] _

4s At Case the court, |! wOULC J.ixkxe

c ¢ a” . ~~, ateletal | ae

Mestion in the proper manner

eee eee eeeeeeees

er . a S| ne 7 An

mae -é > ae 4VU @id pproacn

+

t

€

‘

.

c

‘

le Sen fou all approach the

Sench.

yroceecings were then had:

vol

ee

~ - at > -

os i ’

4 - a

.

_ w >

= >

+ ‘

45 be

= . y .

Ns 4 2. :

a — ; e . t >

: + y

. = > - + € _ + - -_

" ‘ , .

“ca, Ww

+ " >

> € «~~ ~

i 24 : .

. + .

~ 4 = .

- : . +. yc ’ ‘ aa aes 42.

- > - 7 > ~

- S 4 ~ se we * Giaw ="

vw , , ne Uf - =F.

yeu, iff any -ase, and they Saic we

4 . n ar e o

~-VULG Ve, L271 “sy -ase, we ~'v440

nA + — " ——

“av. and ji ©2ic, co you [eal VY tells

No, we would not follow the law, if

4t Beant giving him the Death

Penalty. We would not, umcer any

von

yo om

(SY THS

.- nm.

eS

09

415,

Circumstances. Remember, I even

aSKe. one woman, well, wnat kind of

“ase would you vote for the Death

“enalty and she said I don't KNOW

O+ any case that I'd vote for the

veatn renalty. and I said give ne

an example, pick out the CASCecccces

(interposing) | should have ques-

tioned them on this, I SUCSS ec eccccce

(Unable to distinguish ifr. Necaise's

remarxs as the Court continued

ee lei

wMaltaln

8» at the same time.

teeeeeeeeesDUt I never had no idea

>

+t was g0lng Wevedecceetscos

\interposing) bisregarding the evi-

BONG snes vésécece

*seeceecoeesWind up in a mess like

this. I'd hate to get a conviction

and get it reversed because of this

one woman. She can't make up her

Zind.

41¢

“IO.

+ -~ +

> +b _ ar >

y

i ee e recora sno at ~vne

SI. + e as + » < that

ww Vee ~~ cm we - ~~~ _ ~~ . — _

+ _ . -

wiere was ©. 4208S 2.2vVe, even LAoucn

: = a reat - . Yo

- we eee se * * en ~

eo lencec moar - > ~~ }

Chaiien seS veen usec ody iS we s «

shaha far c si thor >

attor ey 20r Cause, eitner e < Ps

them that had said that they were

against Capital Punishment.

and i think there was, uh, five of

those that were unequivocally

Opposed to it and answered, in sub-

Stance, if not even stronger lang-

uage than the question set forth in

the Witherspoon case, uh, from the

United States Supreme Court, uh,

that I should, at this point, allow

him to challenge this lady

Cause. She is totally indecisive.

I think she is totally indecisive.

She says one thing one time and one

thing another.

The Court is of the opinion that it

Cheated the State by making him, uh,

use, uh, by making the District

Attorney use his peremptory challen-

ges in at least five instances. And

i'm going to allow it in this

particular case.

(BY MR.

c rvave?

STSGALL:

(BY TH

COURT:

(BY MR.

°c _“ av? .

“ TSGALL .

SY THz

COUR

J

uxcuse her for cause?

I'm going to excuse her.

Let me ask the Court this, is the

Court of the opinion that, uh, that

there has been a sufficient record

(Interposing) I'm not going to add

any to his challenges.

Okay. All right.

I'm not going to go back and give

him five more. I'm going to excuse

her for cause.

Okay. All right.)

You can go, Mrs. Bounds, and call

back tomorrow afternoon,

‘4 4

:

; CERTIFICATE OF SERVICE

"

: This is to certify that 1, Donald G. Barlow, a Special #4

: Assistant Attorney General for the State of Mississippi,

: have caused to be mailed this date, via United States Postal =

Service, first-class postage prepaid, a true and correct ;

, copy of the foregoing Respondent's Brief in Opposition to Z

a 3

the following: ¥

: ¢

; Honorable Andru H. Volinsky oe

Schapira & Green, P.A.-

108 Bay Street

Manchester, New Hampshire 03104

This, the aot day of December, 1985.

Pwr ee ee. eee)

i