# Opposition Brief — Gray v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0220%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 481 U.S. 648 ## Text 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 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 ct ’ ~~ ; i. » " . as — i« i. as ao rw 2 2S, 4 WOULC, > : : 252. ’ _ : i : ‘ ; fal f t ; ¢ 4 : ‘ S >) . @ a cS ‘2 TT) @ ‘ ; > + “ - : 43 : ; : 254. ie) *) " "y " | : : ; ? ’ : ") i) 9% ; : a) ; ; " : : : : 256. " > «3 ’ 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 > oo - - ~ 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 ‘ ia - _ ” r > + em hehe - 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. * ’ > e ~ > & a weia — 44UO vaVlic + > ¥ n + *4 >» ware 4estion ane “uestion “-*+ “©, SHOULC De answered yes or " ? T? re i+ ~~ 4 sive NOW, & #4 4008@Uu iF again. n ‘ ‘ . + ~G “w au pe) --G4ayY VOTe > > > _ . . iZzai 20 ID *~vewei OL LE Veathn , » > wt - > Ait Witnou z ara any @Vle ‘ . ve sed 7 ‘ “iat Ol ‘- we MOveszopec in > > . > ’ ~aa ré “iS Case > ; a it malin. 4 Ul . . re . > “4 in OURT: Ait Tight, I'll read it again. a] : it ti ~* ve v33 ‘ sJu vs . iy »\ Ty i~ Sing) Judge j@r > fey IT? I ne urt , i ‘ that r > a " wu - > aiid 4 wa ta : - - + **ee8o “ 2c + _- + > 7s. OF aU LU iy eri a, -t4—/ OP 1 VY . +) + - v ~+ : . na wee des , She was about que »Y 4 ie ne ee " - win Ol . - \wa Ww es) > ve . " » y - v ar.*y s WO] . 4 oJ ; « ive ase . - " _c°% “cc? aon) iS 4uvsa@ @etw & bes i n eatn 3: ad — » * > T > Ce M aM wid wy +OGwes -~— est ‘ +> o . her I » £ 4tiGS, - ee? -—- @ Case where ‘ » tho evwidaar +>, > oy as ~4 . ws 2 -¥4AUcnvre Tn L . "+ > .i + Sf thre wal’r’ayr) 41D} a aU! 0 sl 4 a wad i ae , . A te ¥ —- Aw r ere a . , = . ra the eat as vY ati VELL ase wi é , , ; > ~ : > ~* > *- } - a a eet JUGLe, - } Oil YY OUICC.L TO lou P : v > , . ~ ~~ -. + r >4 Ariul} . . Lne i nas e x Lained AUMsasaVoeseseseseses nHtor - woe , Vé : - im Lis ati i ; : + Ay Ine owe, JJ7 bb , we sitle ee mW Satad De "ser a . ale ieee 4 > ~+ y +4 Ae ew 4 Vue ~Wue me bs | a 4+ 2 wlavt J ~ +} mn 2 vs + _+ weak & t, a] 4-5 18S & na 4 m2iia, oO is aii Y¥ ~\ F-OUe trie , Vist Oo AAY 4 saul e m Cs ~-+ ’ Ar 4 “2 Weve an ssa Up saying is could yo ing mid tlG, 1) _ +5 a@ Case that this per- Suffer the Death Penalty, e i + 1 sur T4e eS UOWT) > >» » - 7 4a ie webesat i ; '+ a > “Vi, ee Sets > > 7 ‘ . we oe PS.' _ " “nme * Ww Wie sew & ~ssOwm ~~y vA 4 * asnlA ‘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 | { | 404, a re ee ~~ iS v vt m2 t e a Gc tra o thi Cr e?t" + wer - - OW, axe your Ane rt + , . ~ © a4 a ower i , iF JUNC ~~“ ale t ~ ws - ~ £ See . . + : w\ s vGli2a, GC J¥u“ uncerstand tha tT, un, re ty, iy ? ? yjvu se eC Lait) . \ L VU ~ + | - + aut JISC ws Ved £ 4 . ar 2 ~“* ~ i « DY Vaso 1400 0 ~alCci ole rest YVNSe. |} vy miro wi 4 " om > ' ast + 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 ‘4 R oi ive ame Ae @ YswuAmbi: aAtrr . DU Uaioe . 4 T: 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 ? . 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 + » ~~ } 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0220%3A3. Public record. Not legal advice.