Petitioners Brief — Morgan v. Illinois

CipreMe UY WR |

FLiLeD

ViC 3S 79a)

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No. 91-5118 | OFFIC: OF THE CLERK |

In The

Supreme Court of the United States

October Term, 1991

r

DERRICK MORGAN,

Petitioner,

vs.

ILLINOIS,

Respondent.

o

On Writ Of Certiorari To The Supreme Court Of Illinois

¢

BRIEF FOR PETITIONER

4

CuHarves M. ScCHIEDEL

Deputy Defender

ALLEN H. ANpbrews, III*

Assistant Defender

Office of the State

Appellate Defender

Supreme Court Unit

P. O. Box 5720

400 South Ninth Street

Suite 101

Springfield, IL 62705-5720

(217) 782-1989

Counsel for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-4964

OR CALL COLLECT (402) 342-283)

QUESTION PRESENTED FOR REVIEW

Whether the trial court’s refusal to ask whether

potential jurors would automatically impose a death sen-

tence if they convicted petitioner of murder violated due

process and the Sixth Amendment guarantee of an impar-

tial jury?

as

ll eas

[ABLE OF CONTENTS TABLE OF CONTENTS - Continued

Page Page

ESTION PRESENTED FOR REVIEW ............ i C. PETITIONER WAS DENIED DUE PROCESS

BY A F@NDAMENTALLY UNFAIR VOIR

TABLE OF CONTENTS. ........:-+s9055s5s 0 i DIRE PROCEDURE IN WHICH THE TRIAL

COURT AT THE STATE’S BEHEST ASKED

TABLE OF AUTHORITIES cece tee 60068 6 ee eee iv POTENTIAL JURORS WHETHER THEY

OPINIONS AND JUDGMENTS BELOW ............ | | COULD NOT IMPOSE THE DEATH PENALTY

ata J AND EXCUSED FOR CAUSE THOSE WHO

JURISDICTION . ......000se00ce055 45s nneenenn 1 COULD NOT, BUT REFUSED TO ASK

POTENTIAL JURORS WHETHER THEY

CONSTITUTIONAL PROVISIONS INVOLVED...... 1 WOULD AUTOMATICALLY IMPOSE DEATH

STATEMENT OF THE CASE...........0.-0cecceee: 2 IF THEY CONVICTED THE PETITIONER OF

’ 14

S ARGUMENT. .. «0 .scccccueea 3

UNAS OY Sane D. PETITIONER'S DEATH SENTENCE MUST BE

ARGUMENT: rT 17

THE TRIAL COURT’S REFUSAL TO ASK er ncuece 18

WHETHER POTENTIAL JURORS WOULD AUTO-

MATICALLY IMPOSE A DEATH SENTENCE IF

THEY CONVICTED PETITIONER OF MURDER

VIOLATED DUE PROCESS AND THE SIXTH

AMENDMENT GUARANTEE OF AN IMPARTIAL

\9) 9 MM 5

A. INDIVIDUALS WHO WILL AUTOMAT-

ICALLY IMPOSE A DEATH SENTENCE

UPON A CONVICTED MURDERER ARE

PROHIBITED FROM SITTING ON CAPITAL

SENTENCING JURIED. ...+:ss0es0sseeneeeee 5

B. THE DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT AND THE SIXTH

AMENDMENT GUARANTEE A CAPITAL

DEFENDANT THE RIGHT TO ASK POTENTIAL

JURORS WHETHER THEY WILL AUTOMAT-

ICALLY IMPOSE DEATH IF THE DEFENDANT

IS CONVICTED OF MURDER................. 7

iv

TABLE OF AUTHORITIES

Page

Cases:

Adams v. Texas, 448 U.S. 38, 65 L.Ed.2d 581, 100

i, Se SK soa wacnteceveacceceensadsareeeruas 3

Aldridge v. United States, 283 U.S. 308, 75 L.Ed.

CU BS BG, GO Gee cc casccsicccerescccsccess 10

Bracewell v. State, 506 So.2d 354 (Ala.Cr.App. 1986). .5, 11

Caldwell v. Mississippi, 472 U.S. 320, 86 L.Ed.2d

Be, CED BGR Be Goeeee ccc vcccccccscessccecseces 8

California v. Ramos, 463 U.S. 992, 77 L.Ed.2d 1171,

CD DE DEED CUSSED ccc cccccccccstcccessevunsusans 9

Commonwealth v. White, 531 A.2d 806 (Pa. Super.

, MOTT reirr rrr rte ere eee eee 6, 11

Crawford v. Bounds, 395 F.2d 297 (4th Cir 1968) ...6, 16

Cumbo v. State, 670 S.W.2d 251 (Tex.Crim.App.

Sen « 6nécccueetsebnd wetsuits 6

Daley v. Hett, 113 IL.2d 75, 495 N.E.2d 513 (1986).... 15

Gaskins v. McKellar, 916 F.2d 941 (4th Cir. 1990)..... 11

Hunt v. State, 321 Md. 387, 583 A.2d 218 (1990)......6

Irvin v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 81 S.Ct.

BE GP cea ctach cewksctadisencsueuwensscdett sus 6

Lockhart v. McCree, 476 U.S. 162, 90 L.Ed.2d 137,

en ns «5 rach the ed a a y

Martin v. State, 780 S.W.2d 497 (Tex. App. -

COPD CINE) TOGO oc iccccccccsescscctccceccoses 1

TABLE OF AUTHORITIES - Continued

Page

Mu'‘Min v. Virginia, 500 U.S. __, 114 L.Ed.2d 493,

f° eR Tee eee 7, a oh oe

Patterson v. Commonwealth, 283 S.E.2d 212 (Va.

Pe ccecvadcesdbecncedidecestnadlsunasaeaciie 6, 11

Payne v. Tennessee, 501 U.S. __, 115 L.Ed.2d 720,

See er ~~ shed cegenuseaveebeGseaneeeebas 16

People v. Coleman, 46 Cal.3d 749, 759 P.2d 230

Dh vccdunccacswndecwsava duseeséncauweeundnbece 5, 6

People v. Gacy, 103 INl.2d 1, 468 N.E.2d 1171 (1984) .... 13

People v. Hobbs, 35 11.2d 263, 220 N.E.2d 469 (1966)... .. 6

Pickens v. State, 292 Ark. 362, 730 S.W.2d 230

SD ws vba cued uh0esbheebesesesevessibadkeneciseusar 5

Poole v. State, 194 So.2d 903 (Fla. 1967)............ 6, 11

Pope v. United States, 372 F.2d 710 (8th Cir. 1967) .10, 17

Riley v. State, 585 A.2d 719 (Del. 1990).............. 1

Ristaino v. Ross, 424 U.S. 589, 47 L.Ed.2d 258, 96

ie, Ce EN on os cudeudasuendstwed da censhesaes 7

Ross v. Oklahoma, 487 U.S. 81, 101 L.Ed.2d 80, 108

ED, SE bo oncthdevdbesscehvanexsnesen 3, 5, 6

Ross D State, 717 P.2d 117 (Okl.Cr. 1986)............. 6

Sanders v. State, 626 S.W.2d 366 (Ark. 1982) ......... 11

Sims v. United States, 405 F.2d 1381 (D.C. Cir. 1968). .6, 11

Skipper v. State, 257 Ga. 802, 364 S.E.2d 835 (1988). .6, 11

Stanford v. Commonwealth, 734 S.W.2d 781 (Ky.

Ps oo keaddvanecs sedessecacecevestvsudetennaced 6, 11

vi

TABLE OF AUTHORITIES - Continued

State v. Atkins, 399 S.E.2d 760 (S.C. 1990) ........... 1]

State v. Henry, 196 La. 217, 198 So. 910 (1940)..... 6, 11

State v. Hughes, 106 Wash.2d 176, 721 P.2d 902

PN Me GtoupSnceunneeusad<dccdkleedek ccc tiiwcdkces 6

State v. Hyman, 281 S.E.2d 209 (S.C. 1981)........... 1]

State v. Lawrence, 44 Ohio St. 3d 24, 541 N.E.2d 451

SERA STE RE > 2 Re A ba a a 6

State v. McFarland, 332 S.E.2d 217 (W.Va. 1985)...... 11

State v. McMillen, 783 S.W.2d 82 (Mo. banc 1990) . 6, 11

State v. Norton, 675 P.2d 577 (Ut. 1983).............. 1

State v. Rogers, 341 S.E.2d 713 (N.C. 1986)............ 6

State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988)..... 6

State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988) . 6, 11

Stroud v. United States, 251 U.S. 15, 64 L.Ed. 103

i ee A TNS EE BDI 5

Thompson v. State, 721 P.2d 1290 (Nev. 1986).......... 6

Turner v. Murray, 476 U.S. 28, 90 L.Ed.2d 27, 106

oie DEP na: a ie a

U.S. v. Puff, 211 F.2d 171 (2d Cir. 1954).............. 6

Wainwright v. Witt, 469 U.S. 412, 83 L.Ed.2d 841,

Se ED atc condbneswascdvasciekeckon 6, 14

Wardius v. Oregon, 412 U.S. 470, 37 L.Ed.2d 82, 93

Se Ie Siniis oi ceidcadindovectesee cee 4,14

Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d 776,

ee CPO MUU bvdapicnnecdevtccivsicese, passim

vii

TABLE OF AUTHORITIES - Continued

STATUTE:

Ill.Rev.Stat., 1989, Ch.

MiscELLANEOUS:

Page

oon iss cos cicerenes

The Gallup Poll Monthly, June, 1991, 40-45............

Neises, M. L. & Dillehay, R.C. (1987). Death Quali-

fication and Conviction Proneness: Witt and

Witherspoon Compared. Behavioral Sciences & The

Law, Vol. 5, 479-494

eeeeeseeeeeeeeeeeeeeeeeeeeeeeeees

OPINIONS AND JUDGMENTS BELOW

Certiorari was granted to review the decision of the

Illinois Supreme Court in People v. Morgan, 142 Ill.2d 410,

568 N.E.2d 755 (1991), reprinted at pages 125-185 of the

Joint Appendix. The order of the Illinois Supreme Court

denying rehearing is reprinted at page 186 of the Joint

Appendix.

JURISDICTION

The jurisdiction of this court is invoked under 28

U.S.C. § 1257(a).

S

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the

United States provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury... .

The Fourteenth Amendment to the Constitution of

the United States provides in pertinent part:

No State shall . . . deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

e

STATEMENT OF THE CASE

‘The defendant was charged with murder and armed

violence. (R. 1526-1533) The armed violence charge was

later dismissed by the state. (R. 173) A jury convicted the

defendant of murder and the same jury sentenced him to

death. (R. 1216, 1477)

The trial court, rather than the attorneys, conducted

voir dire. The state requested the court to “Witherspoon”

the jury. .A. 2) The petitioner filed a motion opposing

that request. (J.A. 2-8) That motion was denied. (R. 73)

Before questioning the potential jurors individually, the

court asked each of the three panels of potential jurors

whether they could not impose a death sentence “regard-

less of the facts.” (J.A. 9, 78, 90) Seventeen potential

jurors were excused when they expressed varying

degrees of doubt about their ability to impose death. (J.A.

10-22, 79-83, 90-94)

When first asked by the Court to exercise its peremp-

tory chailenges, the defense requested that the court ask

the potential jurors this question: “If you found Derrick

Morgan guilty, would you automatically vote to impose

the death penalty no matter what the facts are?” (J.A. 44)

The court denied the request. (J.A. 44-45)

After the court questioned the panels of potential

jurors, many of the potential jurors individually were

asked whether they would automatically vote against the

death penalty no matter what the facts were. Stuart Ship,

who served as a juror, responded, “I would not vote

against it.” (J.A. 97-98) Petitioner was subsequently con-

victed of murder and sentenced to death. (J.A. 125)

On appeal, the Illinois Supreme Court affirmed the

conviction and sentence. (J.A. 125-185) On this issue, that

court held that there is no “reverse-Witherspoon” rule

requiring the trial court to “life qualify” a jury. The court

also rejected the claim because petitioner could not show

that any of his jurors were biased towards the death

penalty. (J.A. 172-173)

SUMMARY OF ARGUMENT

A jury was impaneled to try petitioner for capital

murder. All potential jurors were asked whether they

ould not impose the death penalty under any circum-

stances. Those who could not were removed for cause.

The trial court refused to ask potential jurors whether

they would always impose death upon a convicted mur-

derer. The jury sentenced petitioner to death.

The Illinois Supreme Court held that the trial court

was not required to ask whether jurors automatically

would impose death. That ruling violated petitioner's

right to a fair and impartial sentencing jury, guaranteed

him by the Sixth Amendment and the Due Process Clause

of the Fourteenth Amendment. Turner v. Murray, 476 U.S.

28, 90 L.Ed.2d 27, 36, n.9, 106 S.Ct. 1683 (1986). Neither

jurors who will automatically impose the death penalty

nor those who will never impose death can serve on a

capital sentencing jury. Ross v. Oklahoma, 487 U.S. 81, 101

L.Ed.2d 80, 88, 108 S.Ct. 2273 (1989); Adams v. Texas, 448

U.S. 38, 65 L.Ed.2d 581, 100 S.Ct. 2521 (1980).

There exist people who believe that death automat-

ically should be imposed following a murder conviction.

The possibility that some of those people are summoned

for jury duty is sufficiently real that the Sixth and Four-

teenth Amendments require that inquiry be made into

individuals’ beliefs that the death penalty is mandatory.

An impartial jury cannot be one that is uncommonly

willing to condemn a man to die. Witherspoon v. Illinois,

391 U.S. 510, 20 L.Ed.2d 776, 784, 88 S.Ct. 1770 (1968).

Even were there few such individuals, the complete final-

ity of the death penalty requires inquiry into this subject.

Turner v. Murray, 476 U.S. 28, 90 L.Ed.2d 27, 106 S.Ct. 1683

(1986).

The Illinois Supreme Court also upheld the sentence

because every juror had said that he could be fair. Because a

belief that death automatically should be imposed reflects

upon an individual's inability to follow the law, rather than

upon his fairness, promises of fairness by individuals cannot

substitute for asking whether they believe death automat-

ically should be imposed. This requirement will be no great

burden upon trial courts. Jurors need not be questioned out

of the hearing of other jurors, nor in any greater detail than

when they are now routinely questioned about their opposi-

tion to the death penalty.

The trial court’s questioning allowed the state to

know which jurors never would impose death and to

have them removed for cause. The defendant could not

know who automatically would impose death and could

not challenge them. The state's advantage resulted from a

voir dire that was so partial to the state that it violated the

due process guarantee that trial procedures confer recip-

rocal benefits upon the state and the defendant. Wardius

v. Oregon, 412 US 470, $7 L Ed 2d 82, 93 S.Ct. 2208 (1973).

Se ae aa

4

ARGUMENT

THE TRIAL COURT’S REFUSAL TO ASK WHETHER

POTENTIAL JURORS WOULD AUTOMATICALLY

IMPOSE A DEATH SENTENCE IF THEY CONVICTED

PETITIONER OF MURDER VIOLATED DUE PROCESS

AND THE SIXTH AMENDMENT GUARANTEE OF AN

IMPARTIAL JURY.

The death penalty is a very emotional subject. As a

result, jurors are likely to hold very strong views on its

desirability. Most of the public favors the death penalty

and many of those individuals must think that death

should be imposed whenever a person is convicted of

murder. Yet, the trial court refused to ask potential jurors

whether, “If you found Derrick Morgan guilty, would you

automatically vote to impose the death penalty no matter

what the facts are?” (J.A. 44)

A.

INDIVIDUALS WHO WILL AUTOMATICALLY

IMPOSE A DEATH SENTENCE UPON A CONVICTED

MURDERER ARE PROHIBITED FROM SITTING ON

CAPITAL SENTENCING JURIES.

This Court has recognized that jurors who would

automatically impose the death penalty upon a convicted

murderer should not serve on a sentencing jury. Stroud v.

United States, 251 U.S. 15, 64 L.Ed. 103, 111 (1919); Ross v.

Oklahoma, 487 U.S. 81, 101 L.Ed.2d 80, 88, 108 S.Ct. 2273

(1988). Many other jurisdictions have reached the same

conclusion.'

1 Bracewell v. State, 506 So.2d 354 (Ala.Cr.App. 1986);

Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987); People v.

(Continued on following page)

Such individuals should be excluded from sentencing

juries. An individual with views of the death penalty that

would prevent or substantially impair the performance of

his duties as a juror may not be a member of a sentencing

jury. Wainwright v. Witt, 469 U.S. 412, 424, 83 L.Ed.2d 841,

105 S.Ct. 844 (1985). A juror is biased if he or she cannot

put aside his or her prior impression concerning an issue

and reach a verdict based on the evidence presented in

court. Irom v. Dowd, 366 U.S. 717, 6 L.Ed.2d 751, 755, 81

3.Ct. 1639 (1961). A juror who would automatically

impose death upon a convicted murderer has such a

view. Ross v. Oklahoma, 101 L.Ed.2d at 88; People v. Cole-

man, 759 P.2d at 1270. The Illinois Supreme Court once

recognized as much, albeit in dicta. People v. Hobbs, 35

[Il.2d 263, 220 N.E.2d 469, 473-474 (1966). A jury that

(Continued from previous page)

Coleman, 46 Cal.3d 749, 759 P.2d 230 (1987); Sims v. United

States, 405 F.2d 1381 (D.C. Cir. 1968); Poole v. State, 194 So.2d

903 (Fla. 1967); Skipper v. State, 257 Ga. 802, 364 S.E.2d §35

(1988); Stanford v. Commonwealth, 734 S.W.2d 781 (Ky. 1987);

State v. Henry, 196 La. 217, 198 So. 910 (1940); Hunt v. State, 321

Md. 387, 583 A.2d 218 (1990); State v. McMillen, 783 S.W.2d 82

(Mo. banc 1990); Thompson v. State, 721 P.2d 1290 (Nev. 1986);

State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988); State v.

Rogers, 341 S.E.2d 713 (N.C. 1986); State v. Lawrence, 44 Ohio St.

3d 24, 541 N.E.2d 451 (Ohio 1985); Ross v. State, 717 P.2d 117

(OkLCr. 1986); State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988);

Commonwealth v. White, 531 A.2d 806 (Pa. Super. 1987); Cumbo

v. State, 670 S.W.2d 251 (Tex.Crim.App. 1988); State v. Norton,

675 P.2d 577 (Ut. 1983); Patterson v. Commonwealth, 283 S.E.2d

212 (Va. 1981); State v. Hughes, 106 Wash.2d 176, 721 P.2d 902

(1986); U.S. v. Puff, 211 F.2d 171 (2d Cir. 1954); Crawford v.

Bounds, 395 F.2d 297 (4th Cir. 1968).

contains individuals who believe that death should auto-

matically follow a murder conviction is not impartial, but

is a jury “uncommonly willing to condemn a man to die.”

See, Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d 776,

784, 88 S.Ct. 1770 (1968).

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT AND THE SIXTH AMENDMENT

GUARANTEE A CAPITAL DEFENDANT THE RIGHT

TO ASK POTENTIAL JURORS WHETHER THEY WILL

AUTOMATICALLY IMPOSE DEATH IF THE DEFEN-

DANT IS CONVICTED OF MURDER.

The right to an impartial sentencing jury in a capital

case is guaranteed by both the Sixth Amendment, made

applicable to the states through the Fourteenth Amend-

ment, and by principles of due process. Turner v. Murray,

476 U.S. 28, 90 L.Ed.2d 27, 36, n.9, 106 S.Ct. 1683 (1986). A

specific subject must be covered by voir dire questioning if

the failure to do so would render a defendant's trial

fundamentally unfair. Mu’Min v. Virginia, 500 U.S. __,

114 L.Ed.2d 493, 506, 111 S.Ct. __ (1991). The question is

whether absent the questioning, the jurors would not be

“indifferent as [they stand] unsworne.” Ristaino v. Ross,

424 U.S. 589, 47 L.Ed.2d 258, 264, 96 S.Ct. 1017 (1976).

This Court has not held that the Constitution requires voir

dire questioning to cover any subject other than racial

bias, and racial bias must be inquired into only in certain

circumstances. Ristaino v. Ross, 47 L.Ed.2d at 264. This

Court should now require state trial courts, upon request

by the defendant, to ask each venireperson whether he or

she would automatically impose death upon a convicted

murderer. The defendant’s and the government's inter-

ests in obtaining an impartial jury to conduct the highly

subjective task of capital sentencing require as much.

The only reliable way to discovery whether a

venireperson will automatically impose death is to speci-

fically ask that question during voir dire. General fairness

questions cannot suffice. A juror who believes that death

should automatically be imposed believes that he is being

fair in imposing it. Fairness questions are inadequate

simply because the issue is not one of fairness, but the

ability of an individual to follow the law.

Nor can a juror’s promise to follow the law serve as a

substitute for this inquiry. To impose death in Illinois, a

jury must find only that the mitigating evidence does not

preclude the decoth penalty. (J.A. 123) An individual who

will always impose the death penalty will never find

enough mitigation to preclude imposing death. State law

will have been complied with, but the constitutional

requirement of an impartial jury will still have been vio-

lated.

Such questioning is especially necessary given the

nature of capital sentencing. In a capital sentencing pro-

ceeding, the jury is called upon to make a highly subjec-

tive, unique, individualized judgment regarding the

punishment that a particular person deserves. Caldwell v.

Mississippi, 472 U.S. 320, 340, n.7, 86 L.Ed.2d 231, 105S.Ct.

2633 (1985). The Eighth Amendment requires every capi-

tal sentencer to weigh relevant mitigating evidence before

deciding whether to impose the death penalty. Turner v.

Murray, 90 L.Ed.2d at 35. This Court has recognized that

the qualitative difference of death from all other punish.

ments requires a correspondingly greater degree of scru

tiny of the capital sentencing determination. California v

Ramos, 463 U.S. 992, 998-999, 77 L.Ed.2d 1171, 103 S.Ct

3446 (1983). A greater degree of scrutiny should be

applied to potential sentencing jurors. A juror who

believes that death should automatically be imposed

upon a convicted murderer cannot weigh mitigation

Excusing those individuals from jury duty will increase

the reliability of jury sentencing.

This Court allows states to Witherspoon jurors because

the state has an important interest in removing potential

jurors who cannot impose death or whose Opposition to

the death penalty will substantially interfere with their

ability to impose death. Witherspoon v. Illinois, 20 L.Ed.2d

at 784; Lockhart v. McCree, 476 U.S. 162, 90 L.Ed.2d 137,

152, 106 S.Ct. 1758 (1986). The defendant's interest in a

fair sentencing jury is greater than the state's because it is

his life the state is seeking to forfeit. That interest. is

especially great where, as in Illinois, any one juror can

preclude the imposition of death. Ill Rev Stat, 1989, Ch

38, § 9-1(g). That is an important right granted by the

Sto’ to every defendant, but one that loses meaning

unless every juror is capable of precluding a death sen-

tence. Those who would automatically impose death are

not.

Seventy-six percent of United States citizens favor

the death penalty. Of those who support the death pen-

alty, one-half supported it because they believed in the

concept of “a life for a life.” The Gallup Poll Monthly, June,

1991, 40-45. Given the oft repeated Biblical injunction of

an eye for an eye, it is unsurprising that a significant

10

number of those who favor the death penalty believe that

death should automatically be imposed upon every indi-

vidual convicted of murder? There are so many court

decisions dealing with such individuals that they must

constitute a significant portion of potential jurors. Such

individuals appear even in cases where their fitness to

serve is not an issue. One such person was excused for

cause in Mu’Min v. Virginia, 114 L.Ed.2d at 503. Three

were excused in Pope v. United States, 372 F2d 710,

724-725 (8th Cir. 1967). One such juror may have been on

petitioner's jury. Stuart Ship, when asked in voir dire if he

would automatically vote against the death penalty, rep-

lied, “I would not vote against it.” (J.A. 97-98)

When this Court required inquiry into racial preju-

dice in Aldridge v. United States, 283 U.S. 308, 75 L.Ed.

1054, 51 S.Ct. 470 (1931), it did so relying heavily on a

unanimous body of state court precedents holding that

such inquiry should be made. Mu’Min v. Virginia, 114

L.Ed.2d at 506. Of jurisdictions that have considered

whether jurors should be asked whether they would

always impose death, almost all have answered affirma-

tively, and no cases have held that such jurors should sit

on a capital sentencing jury. Many decisions have held

that they should not.

2? A survey of jurors in Kentucky revealed that 24.1%

would be excludable because they would always vote to

impose the death penalty for every case in which they were

sure beyond a reasonable doubt that the defendant was guilty

of capital murder.

Neises, M. L. & Dillehay, R.C. (1987). Death Qualification and

Conviction Proneness: Witt and Witherspoon Compared. Behav.

ioral Sciences & The Law, Vol. 5, 479-494, 485.

Only two states other than Illinois which have con-

sidered the question have held that inquiry into whether

a juror would automatically impose death is not neces-

sary. Riley v. State, 585 A.2d 719 (Del. 1990); State v.

Hyman, 281 S.E.2d 209 (S.C. 1981). Even in South Carolina

defendants are allowed to ask jurors whether they would

automatically impose death. Gaskins v. McKellar, 916 F.2d

941, 949 (4th Cir. 1990); State v. Atkins, 399 S.E.2d 760, 765

(S.C. 1990). Many jurisdictions have explicitly held that

defendants eligible for the death penalty have a right to

ask potential jurors whether they would automatically

impose death. Bracewell v. State, 506 So.2d 354

(Ala.Cr.App. 1986); Sims v. United States, 405 F.2d 1381

(D.C. Cir. 1968); Poole v. State, 194 So.2d 903 (Fla. 1967);

Skipper v. State, 257 Ga. 802, 364 S.E.2d 835 (1988); Stanford

v. Commonwealth, 734 S.W.2d 781 (Ky. 1987); State v. Henry,

196 La. 217, 198 So. 910 (1940); State v. McMillen, 783

S.W.2d 82 (Mo. banc 1990); State v. Williams, 113 NJ. 393,

550 A.2d 1172 (1988); Commonwealth v. White, 531 A.2d

806 (Pa. Super. 1987); State v. Norton, 675 P.2d 577 (Ut.

1983); Patterson v. Commonwealth, 283 S.E.2d 212 (Va.

1981). Some states allow the defense to ask jurors even in

non-capital cases whether they could impose the full

range of sentences. Sanders v. State, 626 S.W.2d 366 (Ark.

1982); Martin v. State, 780 S.W.2d 497 (Tex. App. - Corpus

Christi 1989); State v. McFarland, 332 S.E.2d 217 (W.Va.

1985). That consensus indicates that potential jurors

should be asked whether they automatically would

impose death.

This Court recently rejected the contention that the

Sixth Amendment required inquiry into the specifics of a

potential juror’s knowledge of pre-trial publicity. Mu’ Min

12

v. Virginia, 114 L.Ed.2d 493. The various concerns which

led to the rejection of Mu’Min’s claim are not present

here.

Mu’Min wanted more than what this Court had

required in racial bias cases. He wanted the subject of

pre-trial publicity to not only be covered in voir dire, but

wanted this Court to require precise inquiries into that

subject. Mu'Min v. Virginia, 114 L.Ed.2d at 505, 509-510.

Here, petitioner merely wants the subject of the auto-

matic imposition of the death penalty to be covered. More

detailed inquiry would be necessary only when a poten-

tial juror indicated that he or she would automatically

impose death. Jurors would not have to be questioned

individually because there is no risk of contaminating

impartial jurors with prejudicial information. Unlike the

procedure sought by Mu’Min, there will be no perceptible

impact on voir dire practices.

There is no substitute for this inquiry. In Mu’Min, the

state trial judge was well aware of the extent of the

publicity. His knowledge allowed him to accurately

assess the truthfulness of the jurors’ answers to his gen-

eral questions about the effect the publicity might have

upon their impartiality. Mu’Min v. Virginia, 114 L.Ed.2d at

510-511 (O’Connor, J., concurring). Here, Judge Cieslik

had no personal knowledge of the potential jurors’ views

on the propriety of the death penalty. There was no

ir }.rmed exercise of judicial discretion involved in his

decisions on impartiality, and those decisions do not

require the deference granted to the trial court in

Mu'Min. Mu’Min v. Virginia, 114 L.Ed.2d at 507.

13

Finally, in Mu’Min the voir dire concerning publicity

“was by no means perfunctory.” Mu’Min v. Virginia, 114

L.Ed.2d at 509. Here, the inquiry into automatic imposi-

tion of the death penalty was non-existent. Requiring trial

courts to make this inquiry is the only way to ensure fair

sentencing juries. In Illinois, the trial court has complete

control over voir dire. People v. Gacy, 103 I1l.2d 1, 468

N.E.2d 1171 (1984). By refusing to ask this question, the

trial court precluded inquiry into this subject.

The service of one juror who would automatically

impose death results in a jury that is biased and violates

the Sixth and Fourteenth Amendments’ guarantee of an

limpartial jury. An Illinois defendant cannot now discover

whether a venireperson would automatically impose

death unless the venireperson volunteers that informa-

tion. That is a capricious substitute for direct inquiry. To

guarantee a meaningful Constitutional right to an impar-

tial jury, this Court should make explicit what has previ-

ously been implied and hold that due process and the

Sixth Amendment require, at the defendant's request,

inquiry into whether a juror would automatically impose

death.

14

Cc.

PETITIONER WAS DENIED DUE PROCESS BY A

FUNDAMENTALLY UNFAIR VOIR DIRE PROCEDURE

IN WHICH THE TRIAL COURT AT THE STATE’S

BEHEST ASKED POTENTIAL JURORS WHETHER

THEY COULD NOT IMPOSE THE DEATH PENALTY

AND EXCUSED FOR CAUSE THOSE WHO COULD

NOT, BUT REFUSED TO ASK POTENTIAL JURORS

WHETHER THEY WOULD AUTOMATICALLY

IMPOSE DEATH IF THEY CONVICTED THE PETI-

TIONER OF MURDER.

The Due Process Clause entitles a criminal defendant

to more than an impartial jury. It also speaks “to the

balance of forces between the accused and his accuser.”

Wardius v. Oregon, 412 U.S. 470, 37 L.Ed.2d 82, 93 S.Ct.

2208 (1973). “This Court has therefore been particularly

suspicious of state trial rules which provide nonrecipro-

cal benefits to the State when the lack of reciprocity

interferes with the defendant's ability to secure a fair

trial.” Wardius v. Oregon, 37 L.Ed.2d at 87, n. 6.

Because the trial court asked veniremembers whether

they could not impose a death sentence, but refused to

ask whether they always would, the voir dire questioning

gave the state an unfair advantage in selecting the jury.

The balance required by the Due Process Clause was

absent in this case. Because the procedure may have

resulted in the seating of jurors who could not follow the

Constitution’s mandate to consider mitigating evidence,

the lack of reciprocity interfered with petitioner's right to

be sentenced fairly.

That imbalance is entrenched in Illinois. The ruling in

Witherspoon should have benefited criminal defendants

15

because it was a limitation on the state’s ability to excuse

jurors. Wainwright v. Witt, 83 L.Ed.2d at 851. But Wither-

spoon routinely has been construed by Illinois courts as

conferring a special right upon the state. The peculiar

view of Witherspoon extant in Illinois is exemplified by

the Illinois Supreme Court's decision in Daley v. Hett, 113

Il.2d 75, 495 N.E.2d 513 (1986).

There, several defendants chose to waive their right

to a sentencing jury before trial. The trial courts accepted

those waivers, leaving the jury to determine only guilt

while any sentence would be decided by the court. The

trial courts ruled that the state could not Witherspoon the

jurors. The Cook County State’s Attorney filed various

writs in the Illinois Supreme Court seeking to compel the

trial courts to death qualify the potential jurors. Daley v.

Hett, 495 N.E.2d at 514-515.

The Illinois Supreme Court upheld the right to waive

a sentencing jury prior to the start of trial. Daley v. Hett,

495 N.E.2d at 516. The court then considered the second

issue, whether the trial courts were nonetheless required

to Witherspoon the potential jurors. The court held:

However, plaintiff's right under Witherspoon

does not come into effect where, as here, the

juries that consider the issue of guilt will not

consider eligibility for the death penalty.

Because we have determined that trial judges

have the statutory authority to accept pretrial

waivers of sentencing juries, plaintiff's right

under Witherspoon is inapplicable to the instant

cases.

Daley v. Hett, 495 N.E.2d at 516-517.

16

The Illinois Supreme Court believes Witherspoon con-

ferred a right upon the state. The decisions in Daley v.

Hett and this case have created a rule where the state is

entitled to Witherspoon a sentencing jury but the defense

has no corresponding right to ask the reciprocal question.

This procedure has “unfairly weighted the scales in a

capital trial... .” Payne v. Tennessee, 501 U.S. __, 115

L.Ed.2d 720, 733, 111 S.Ct. __ (1991).

Whatever views Illinois courts may hold, the voir dire

in this case was unfair, and relief has been granted under

similar circumstances. In one case, a juror said that he felt

it would be his duty to sentence to death a defendant

found guilty of murder. No further questions were asked,

and the juror was seated. Crawford v. Bounds, 395 F.2d at

301-302, 303-304. Another venireman, who believed the

defendant to be guilty, was rehabilitated by the trial court

and seated. In contrast, any venireman with scruples

against the death penalty was excused without further

interrogation. Crawford v. Bounds, 395 F2d at 303. The

court held that:

To permit a juror whose mind is foreclosed on

one side of that issue to serve, while eliminating

those who think to the contrary, and to exert

special effort to qualify one whose mind may be

foreclosed on the issue of guilt while freely

excusing those who indicate a predisposition as

to punishment, were not the ways to achieve the

constitutional objective. Denial of equal treat-

ment in the manner of selection inevitably

resulted in a denial of due process.

Crawford v. Bounds, 395 F.2d at 304.

17

In another case, a due process challenge to the jury

selection was rejected. Pope v. United States, 372 F.2d 710

(8th Cir. 1967). In that case, in addition to questioning

jurors about their scruples against the death penalty, the

court inquired whether jurors believed in “an eye for an

eye and a tooth for a tooth” and whether “those who live

by the sword shall perish by the sword.” Pope v. United

States, 372 F.2d at 727. Asa result, ten jurors were excused

for scruples against the death penalty, and three because

they believed that they would automatically impose

death. Pope v. United States, 372 F.2d at 724-725. That

reciprocity was lacking in petitioner’s case.

If the Sixth and Fourteenth Amendments do not

require that a defendant be allowed in every case to ask

potential jurors whether they will always impose death,

principles of due process require such inquiry in those

cases where potential jurors are questioned about their

scruples against the death penalty. Any other ruling guar-

antees the state a nonreciprocal benefit in jury selection.

D.

PETITIONER’S DEATH SENTENCE MUST BE

VACATED.

Any individual who would automatically impose a

death sentence upon petitioner was not qualified to serve

on his jury. The voir dire in this case could not reveal

whether any jurors would impose a death sentence auto-

matically. Because the inadequacy of the voir dire may

have permitted such individuals to serve on petitioner's

jury, his death sentence must be vacated.

¢

18

CONCLUSION

Wherefore, petitioner prays that the judgment of the

Illinois Supreme Court be reversed and the cause be

remanded with directions that petitioner receive a new

sentencing hearing.

*Counsel of Record

Respectfully submitted,

CuHar.es M. SCHIEDEL

Deputy Defender

ALLEN H. Anprews, III*

Assistant Defender

Office of the State

Appellate Defender

Supreme Court Unit

P. O. Box 5720

400 South Ninth Street

Suite 101

Springfield, IL 62705-5720

(217) 782-1989

Counsel for Petitioner