# Respondents Brief — Morgan v. Illinois

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0288%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 719

## Text

:
:
’

7

ra No. 91-5118 an Cae

: In THE
Supreme Cowt of the United States

OcTOBER TERM, 1991

DERRICK MORGAN,

Petitioner,
vs.
PEOPLE OF THE STATE OF ILLINOIS,
Respondent.
On Writ Of Certiorari To
The Supreme Court Of Illinois
BRIEF FOR RESPONDENT
JACK O’MALLEY ROLAND W. BURRIS
State’s Attorney Attorney General
Cook County, Illinois State of Illinois
KENNETH L. GILLIS TERENCE M. MADSEN
First Assistant State’s Attorney Assistant Attorney General
309 Richard J. Daley Center 100 West Randolph Street
Chicago, Illinois 60602 Suite 1200
(312) 443-5496 Chicago, Illinois 60601
RENEE G. GOLDFARB (312) 814-2235
Counsel of Record Attorneys for Respondent

RANDALL E. ROBERTS

SALLY L. DILGART

WILLIAM D. CARROLL

Assistant State’s Attorneys

MARIE QUINLIVAN CZECH

Special Assistant State’s Attorney
Of Counsel

———

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

BEST AVAILABLE COPYT

i

QUESTION PRESENTED FOR REVIEW

Do the Fourteenth and Sixth Amendment rights to a
fair and impartial jury require voir dire questioning con-
cerning potential bias in favor of the death penalty in
every state court prosecution for a capital offense.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ....
TABLE OF AUTHORITIES ...........-esee:
OPINION BELAIW ..c.ccseceseses neuen ene
STATEMENT OF THE CASE .............--
SUMMARY OF ARGUMENT ................
ARGUMENT:

I.

THE SIXTH AND FOURTEENTH AMEND.-
MENTS SHOULD NOT INCLUDE A SPECIFIC
REQUIREMENT THAT STATE COURT
JUDGES QUESTION JURORS ON WHETHER
THEY WOULD ALWAYS RETURN A DEATH
PENALTY VERDICT UPON FINDING A DE.
FENDANT GUILTY OF MURDER .........

A. The danger of persons automatically for
the death penalty remaining undetected
throughout voir dire is not sufficiently
real to require the automatically for the
death penalty question as a matter of con-
atitutional law .....0cescssebe eee

B. Petitioner’s studies are not part of the
record, and should be stricken. Even if
permitted, such studies are seriously
Mawed ....00sccc0sse0n ee ee eee

C. There can be no presumption that pro-
spective jurors are automatically for the
death penalty ....scessscesusneeeeeee

PAGE

10

12

iil

D. Persons automatically for the death penal-
ty will be detected by general fairness
SESE PP TY PT PTTETTE TILE Te

VOIR DIRE, NOT EASILY THE SUBJECT OF
APPELLATE REVIEW, SHOULD BE LEFT
TO THE DISCRETION OF TRIAL JUDGES ..

PETITIONER'S SUGGESTION THAT HE IS
ENTITLED TO ASK VENIRE MEMBERS THE
INVERSE OF THE WITHERSPOON QUES.
TION IS ERRONEOUS IN LIGHT OF THE
WITHERSPOON AND WITT HOLDINGS, AND
IN LIGHT OF MODERN DEATH PENALTY
BRUM EEIUS cc cccccccccceccccccescccees

Ee nanebsaberesésesveccccccecs

21

iv

TABLE OF AUTHORITIES

CASEs: PAGE
Adams v. Texas, 448 U.S. 38 (1980) ....... 19, J, 26, 27

Aldridge v. United States, 283 U.S. 308 (1931) .. 10, 11, 25
Bracewell v. State, 506 So. 2d 354 (Ala. Crim. App.

SED Gkseis0d stub bsccbodnenckbesudesctsede 24
Brown v. Board of Education, 347 U.S. 483 (1954) .. 12
Ciucei v. Illinois, 356 U.S. 571 (1958) ......... 12
Commonwealth v. Haynes, 577 A.2d 564 (Pa.

DUO, GR, TD cescvccsescescnosscens coe: 2
Commonwealth v. White, 531 A.2d 806 (Pa. Super.

Gs SED hévidsbadedetanstavedesewnneaiens 24

Connors v. United States, 158 U.S. 408 (1895)... 10, 21
Cumbo v. State, 760 5.W.2d 251 (Tex. Crim. App.

SD natn cnsekdnceresdebiarnsdones iscupens 24
Cupp v. Naughten, 414 U.S. 141 (1973) ....... 22
Daley v. Hett, 495 N.E.2d 513 (Ill. 1986) ...... 23
Dennis v. United States, 339 U.S. 162 (1950) .... 19, 20
Gaskins v. McKellar, 916 F.2d 941 (4th Cir. 1990) .. 24
Gregg v. Georgia, 428 U.S. 153 (1976) ......... §

Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark.
1983), aff'd, 758 F.2d 226 (8th Cir. 1985), rev'd
sub nom. Lockhart v. McCree, 476 U.S. 162

GE Se cdcecccncecusncceasesdenaeusanccins passim
Ham v. South Carolina, 409 U.S. 524 (1973) .... passim
Hamling v. United States, 418 U.S. 87 (1974) .... 20

Vv

Henderson v. State, 583 So. 2d 276 (Ala. Crim.
App. 1990), aff'd sub nom. Ex Parte Hender-

son, 583 So. 2d 305 (Ala. 1991) ............ 23, 25
Hovey v. Superior Court, 616 P.2d 1301 (Cal.

ED ccadsccdaxceenudasesssadecetecsseeues 13, 14
Irvin v. Dowd, 366 U.S. 717 (1961) ........... 21
Irving v. State, 498 So. 2d 305 (Miss. 1986)... 23
McCleskey v. Kemp, 481 U.S. 279 (1987) ...... 14
McNabb v. United States, 318 U.S. 332 (1943) ... 22
Mu'Min v. Virginia, 111 8. Ct. 1899 (1991) ..... passim
Murphy v. Florida, 421 U.S. 794 (1975) ....... 19
Patterson v. Commonwealth, 283 S5.E.2d 212 (Va.

RD vdcneccdvéscdcdardncccencsucssdeeesces 24
Patton v. Yount, 467 U.S. 1025 (1984) ......... 25
People v. Coleman, 759 P.2d 1260 (Cal. 1988) .... 24
People v. Jackson, No, 68012 (Ill. Sup. Ct. Septem:

ber 26, 1991) (LEXIS, States library, Ill. file) .. 23
People v. Morgan, 568 N.E.2d 755 (Ill. 1991)... l
Pickens v. State, 730 S.W.2d 230 (Ark. 1987) .... 24
Riley v. State, 585 A.2d 719 (Del. 1990) ....... 23
Ristaino v. Ross, 424 U.S. 589 (1976) ........ passim
Rosales-Lopez v. United States, 451 U.S. 182 |

GD 6 6.06bb606nnsd06ueeenseesstesncceset passim
Ross v. Oklahoma, 487 U.S. 81 (1988) ......... 9
Smith v. Phillips, 455 U.S. 209 (1982) ......... 19
State v. Atkins, 399 S.E.2d 760 (S.C. 1990) .... 24

State v. McMillin, 783 S.W.2d 82 (Mo. 1990) .. 24

vi
State v. Norton, 675 P.2d 577 (Utah 1983) ..... 24
State v. Rogers, 341 S.E.2d 713 (N.C. 1986) ... 23
State v. Williams, 550 A.2d 1172 (N.J. 1988) .. 24
Turner v. Murray, 476 U.S. 28 (1986)....... 9, 10, 20
United States v. Wood, 299 U.S. 123 (1936) .... 19
Wainwright v. Witt, 469 U.S. 412 (1985) ....... 15, 25

Witherspoon v. Illinois, 391 U.S. 510 (1968) .... 8, 14, 26

CONSTITUTIONAL PROVISIONS AND STATUTES:

In THE

Supreme Court of the United States

OcTOBER TERM, 1991

Ns

DERRICK MORGAN,
Petitioner,
Vs.

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

On Writ Of Certiorari To
The Supreme Court Of Illinois

BRIEF FOR RESPONDENT

OPINION BELOW

Certiorari was granted to review the decision of the Illi-
nois Supreme Court in People v. Morgan, 142 Ill. 2d 410,
568 N.E.2d 755 (Ill. 1991). A copy of that opinion may be
found within the parties’ joint appendix at pages 125-185.

STATEMENT OF THE CASE

em

Petitioner, Derrick Morgan, was indicted along with two
others (Lockridge and Evans) by the Cook County Grand
Jury for murder: the shooting death of David “Swift”

safes

Smith. The Petitioner was found guilty of the charge by
a jury (Tr. 1217), and a jury found him eligible for the
death penalty (Ill. Rev. Stat. ch. 38, §9-1(b\5)), and then
sentenced Petitioner to death. (Tr. 1477) Judgment was
entered on the verdict. (Tr. 1736)

Briefly, the evidence showed Petitioner admitted to hav-
ing been paid by a “big dope dealer’ $2,000 before, and
$2,000 after, he and two other E!] Rukns (gang members)
murdered a man called “Swift.” Petitioner admitted to
a witness (Stephen Benjamin) that he placed a bag of flour
in an abandoned apartment on Calumet Avenue, and then
lured “Swift” to that apartment, telling “Swift’’ that he
had cocaine for them to pick up. (Tr. 717)

Once there, with Lockridge and Evans nearby, Petitioner
allowed “Swift” to taste the flour, and as “Swift” was
tasting it, shot him in the head five or six times. (Tr. 718)

Benjamin also testified that Petitioner told him he was
planning to break out of the LaPorte County (Indiana)
jail on a trip to the dentist's office, by killing the guards
and then go back to Chicago and “take care of all of the
witnesses.”’ (Tr. 719)

On December 17, 1985, police officers found David “Swift”
Smith lying in a pool of blood, a clear plastic bag contain-
ing a white powder near his body. Police officers noticed
several gunshot wounds to “Swift's” head. Lashone Joy-
ner, the live-in girlfriend of David “Swift” Smith, de-
scribed “Swift” as being “good friends” with the Peti-
tioner. (Tr. 663) Both Petitiéner and the victim appear
to be of the same race. (Tr. 301)

The jury was selected on July 6 and July 7, 1988. (Tr.
183, 432) Three separate venires were brought to the
courtroom before the jury was chosen. The trial judge ad-
vised each venire that, if chosen as jurors, each juror

=

“must follow” the law. (J.A. 23, Tr. 207, 448, 522-23) The
first of such instructions was:

(YRIAL JUDGE}: ... After you have heard the evi-
dence in court and testimony of the witnesses, then
I will present to you propositions of law that you
must follow in reaching your verdict in this case.

Now, the fact the defendant was indicted is only
a means by which he is brought to trial. Under the
law the defendant is presumed to be innocent of the
charge inst him, and this remains throughout the
trial of the case and is only overcome after you have
heard all the evidence, and closing arguments of the
counsel, and been advised on the law by the Court,
and you have been retired to the jury room, and
after you have all unamiously [sic] agreed, then your
decision will make a determination.

The Judge is the judge of the law, which means
I will decide what law is to be presented in this case.

. . + W@J.A. 23)
The trial judge also advised « nire that, if chosen
as jurors, each venire person w first deliberate on

guilt or innocence, and if a guilty finding, then on eligibil-
ity for the death penalty, and finally on the death penal.
ty. (J.A. 23, Tr. 207, 437, 523) The trial judge emphasized

' The trial judge then told the second venire: “. . . [Ajfter you
have heard all of the evidence and the witnesses, and you have
heard the Court admonishing you with reference to the law that
you must use in reaching your verdict, these instructions on the
low wil! be instructed to you as jurors to be taken into the jury
room, when you have an absolute duty and obligation to follow
the instructions that the Court gives you.” (Tr. 44%)

The trial judge told the third venire: “. . . | would like to go
into some of the basic principles of law that will be involved in
this case, .. . that will be given to the jury ultimately when the
case has been completed. . . . they will be given to the jury and
must be used in their deliberation in reaching a verdict in this
case.” (Tr. 522, 523)

ae

that further “final instructions are given after a comple-
tion of the proceedings.” (J.A. 23, Tr. 522-23)

The jurors who decided the case were: Alfred Kleoss
(J.A. 29), Mary Morrow (J.A. 35), Helen Zeber (J.A. 39),
Ethelinda Thomas (J.A. 45), Rosanne Wurster (J.A. 50),
Betty Ritchie (J.A. 57), Yolanda Farinella (J.A. 61), Robert
Hinchley (J.A. 66), Wanda Davis (J.A. 73), Mark Armgardt
(J.A. 83), Stuart Ship (J.A. 94), and Ronald Zubkoff (J.A.
102).

Nine of the twelve were directly asked, “Would you
follow my instructions on the law, even though you may
not agree with them?” (J.A. 30, 38, 43, 49, 56, 60, 64, 69,
107) All nine agreed that they would. Juror Mark Arm-
gardt (J.A. 83) said he could be “fair and impartial,”’ and
that his answers would be “substantially the same” as
other jurors. (J.A. 84, 88) Juror Wanda Davis (J.A. 73)
was not asked about following the law though the ques-
tion was repeated by the trial judge throughout the day.
(Tr. 222, 235-36, 256, 269-70, 271, 282, 292, 294, 313, 318,
333, 343, 347, 363, 369, 374, 385, 391, 396, 399, 417) Juror
Stuart Ship (J.A. 94) was also not asked about following
the law. However, he was questioned almost immediate-
ly after the trial judge informed the third venire panel
that they must use the instructions on the law in their
deliberations. (Tr. 522-23)

After seven venire members had been questioned, in-
cluding three who eventually became jurors—Kleoss (J.A.
29); Morrow (J.A. 35); Zeber (J.A. 39)—Petitioner’s counsel
first requested the trial judge to ask prospective jurors:
“If you found Derrick Morgan guilty, would you auto-
matically vote to impose the death penalty no matter what
the facts are?” (J.A. 44) Petitioner did not raise the issue
earlier, even though there were two opportunities for
Petitioner’s counsel to suggest questions for use on voir
dire. (Tr. 190, 219-27)

wife

The trial judge’s voir dire process uncovered several
venire members with bias (Tr. 423, 350, 377, 382—bias
against handguns); (Tr. 339—bias against “lawlessness’’);
(Tr. 359—persons who could “not give the defendant a fair
trial.’’) Venire member Benjamin Dexter was asked if he
could give the defendant a fair trial. He answered:

I would have no problem during the trial. If it came
... 1 had a friend’s parents murdered twelve years
ago before capital punishment. I would give a fair
trial. If he is found guilty, | would want him hung.
[sic]

Mr. Dexter was excused for cause. (J.A. 72-73)

When venire member Stuart Ship was asked if he would
automatically vote against the death penalty no matter
what the facts of the case were, he answered: “I would
not. vote against it.” (J.A. 97-98) Although Petitioner’s
counsel challenged Mr. Ship for cause, the basis for the
challenge was not that Mr. Ship was automatically for the
death penalty. Rather, counsel challenged Mr. Ship be-
cause Mr. Ship initially stated that, if Petitioner did not
testify, Mr. Ship would wonder “why.” (J.A. 98, 100-101)
The trial court judge denied Petitioner’s challenge for
cause. (J.A. 101) Since the trial judge and Petitioner’s
counsel believed that Petitioner had exhausted his per-
emptory challenges, Mr. Ship was seated as a juror. (J.A.
102, Tr. 430, 505-506)?

After the jury found Petitioner guilty of murder, and
just before hearing the evidence of eligibility, the trial
judge again advised the jurors that their task was to

2 Petitioner may have only exhausted nine peremptory a
(Lynch: Tr. 258; Wells, Disabato, Petersen: Tr. 310; Grzesiak, Mek-
hitarian: Tr. 330; Jambor, Bamberg: Tr. 428; Farina: Tr. 505) Thus,
Petitioner actually may have had one more peremptory challenge
available.

=

determine whether Petitioner was eligible for the death
penalty. (Tr. 1216, 1238, 1658) At the conclusion of the
eligibility evidence, the trial judge instructed the jurors
that they could only find Petitioner death eligible if they

found unanimously and beyond a reasonable doubt the ex-.

istence of a statutory aggravating factor. (J.A. 112) At
the conclusion of the evidence in aggravation and mitiga-
tion, the trial judge instructed the jurors that, while
deliberating on the sentence, they should consider all the
aggravating and mitigating factors supported by the evi-
dence. (J.A. 122)

The jury sentenced Petitioner to death. (Tr. 1477, 1682)

The Illinois Supreme Court affirmed the conviction and
the death penalty. About the issue before this Court, the
Illinois Supreme Court said:

The defendant also contends that he was denied an
impartial jury when the trial court refused to ask
potential jurors if they would automatically impose
the death penalty if they found the defendant guilty.
During jury selection, the defendant requested that
the trial court ask prospective jurors: “If you found
Derrick Morgan guilty, would you automatically vote
to impose the death penalty no matter what the facts
are?”’ The trial court denied this request.

This Court has already held that “there is no ‘re-
verse-Witherspoon’ rule that requires the trial court
to ‘life qualify’ a jury to exclude all jurors who be-
lieve that the death penalty should be imposed in
every murder case.” (Brisbon, 106 Ill. 2d at 359). Fur-
ther, the defendant has not demonstrated, or even
suggested, that any of the actual jurors on his jury
were biased towards the death penalty. People v.

~ Caballero (1984), 102 Ill. 2d 23, 46.

* * *

(J.A. 172-73): Petitioner now asks this Court to rule that
the trial judge committed constitutional error when he

= =

refused to ask whether prospective jurors would auto-
matically vote to impose the death penalty no matter what
the facts of the case were.

SUMMARY OF ARGUMENT

Although the Fourteenth and Sixth Amendments to the
United States Constitution provide rights to a fair and
impartial jury, criminal defendants in state court prosecu-
tions do not have a constitutional right in every case to
interrogate potential jurors about a bias in favor of the
death penalty. General fairness questions, questions con-
cerning the venireman’s ability to find the facts and to
follow the law, Witherspoon questioning, and the juror’s
oath will usually be sufficient to detect bias. If a particular
juror’s responses to those questions suggest an area of
actual bias, or if there is a substantial indication of the
likelihood of prejudice in the individual case, then addi-
tional questioning or even a challenge for cause may be
appropriate. However, the Constitution does not impose
a code of trial procedure on the state courts. This Court
should reaffirm the right of the sovereign states and their
trial judges to devise their own voir dire procedures and
to control voir dire proceedings in state courtrooms.

Petitioner has not identified any special circumstance
to justify a new rule of law in his case. Petitioner’s case
does not involve an interracial murder. Nor should this
Court indulge Petitioner’s belief that there is a signifi-
cant number of persons automatically for the death penal-
ty. Petitioner’s studies were not introduced in the trial
court, and are not properly part of the record before this
Court. These studies are not matters of “general knowl-
edge” and should be stricken.

x =

This Court should conclude that after Gregg v. Georgia,
428 U.S. 153 (1976), the discretion of the capital sentencer
has been confined to constitutionally acceptable limits, and
now there is little opportunity for the sentencer to give
vent to personal prejudices in a capital case.

Because this Court’s decision in Witherspoon v. Illinois,
391 U.S. 510 (1968) did not confer a “benefit” on the
State, Petitioner is not entitled on equitable grounds to
a “reverse- Witherspoon” procedure. The Witherspoon deci-
sion only implemented the constitutional rights to a fair
and impartial jury, and Petitioner has received the full
measure of every right afforded him by the Constitution.

ARGUMENT

THE SIXTH AND FOURTEENTH AMENDMENTS
SHOULD NOT INCLUDE A SPECIFIC REQUIREMENT
THAT STATE COURT JUDGES QUESTION JURORS ON
WHETHER THEY WOULD ALWAYS RETURN A DEATH
PENALTY VERDICT UPON FINDING A DEFENDANT
GUILTY OF MURDER.

The Fourteenth Amendment’s guarantee of due process
of law, and the Sixth Amendment’s guarantee of a fair
and impartial jury, should not be interpreted as including
a specific obligation on the part of the state trial judges
to question prospective jurors on whether they would
automatically vote for the death penalty upon finding a
defendant guilty of murder.

Relying on Witherspoon v. Illinois, 391 U.S. 510 (1968),
Petitioner urges this Court to require specific voir dire
questions, directed at each prospective juror in state death

alli

penalty proceedings, to determine whether the juror auto-
matically would vote to impose the death penalty upon
a finding of guilt. Respondent argues that the subject of
voir dire is best left within the discretion of the trial
judge, and that specific voir dire responsibilities are not,
and should not be, required by the Constitution. Such a
requirement would be an awkward intrusion into the role
of state trial judges.

Obviously, no biased person should ever sit upon a jury,
and any sign of bias should be followed by questions from
the trial judge to detect and remove any juror who is
prejudiced or who could not follow the law. Ross v.
Oklahoma, 487 U.S. 81, 85 (1988). But that is not our
situation here. Rather, Petitioner asks this Court to con-
stitutionally mandate the automatically for the death
penalty question for every prospective juror regardless
of the circumstances of the case or the personal circum-
stances of the prospective juror.

This Court has been reluctant to engraft a particular
voir dire formula on the Sixth and Fourteenth Amend-
ments. Rosales-Lopez v. United States, 451 U.S. 182 (1981)
(plurality opinion); Ristaino v. Ross, 424 U.S. 589 (1976);
Ham v. South Carolina, 410 U.S. 524 (1973). In Turner
v. Murray, 476 U.S. 28 (1986) and Mu’Min v. Virginia,
111 S. Ct. 1899 (1991), this Court did not consider death
penalty litigation to be a sufficiently compelling circum-
stance to justify imposing a code of voir dire procedure
on the states. The Fourteenth Amendment requires due
process of law in state court jury selection procedures.
Ham, 409 U.S. at 526. To be constitutionally compelled,
however, it is not enough that specific voir dire questions
might be helpful. Rather, the trial court’s failure to ask
these questions must render the defendant’s trial funda-
mentally unfair. Mu’Min, 111 S. Ct. at 1905.

nisi

A. The danger of persons automatically for the death penal-
ty remaining undetected throughout voir dire is not suf-
ficiently real to require the automatically for the death
penalty question as a matter of constitutional law.

This Court’s voir dire cases state that specific inquiry
upon a subject must be made, as part of the Sixth and
Fourteenth Amendment guarantees, only if there is a
“sufficiently real’’ presence of an attitude or feeling which
would keep the prospective juror from being fair. As stated
in Mu'Min:

[T]wo parallel themes emerge from both sets of
cases: first, the possibility of racial prejudice against
a black defendant charged with a violent crime against
a white person is sufficiently real that the Four-
teenth Amendment requires that inquiry be made in-
to racial prejudice; second, the trial court retains
great latitude in deciding what questions should be
asked on voir dire.

111 S. Ct. at 1904 [emphasis added].

The only “sufficiently real” possibility of juror bias recog-
nized by this Court is racial prejudice in the context of
an interracial capital case. In Turner, 476 U.S. at 37, this
Court held that a question concerning racial prejudice
would be constitutionally required only when there was
the conjunction of three factors: the crime charged in-
volved interracial violence, broad discretion was given the
jury at the death penalty hearing, and the special serious-
ness of the risk of improper sentencing in a capital case.

3 The Court was comparing its supervisory authority over voir
dire in cases tried in federal courts, Connors v. United States,
158 U.S. 408 (1895), Aldridge v. United States, 283 U.S. 308 (1931),
and Rosales-Lopez v. United States, 451 U.S. 182 (1981), with its
authority over voir dire in cases tried in state courts where the
Court’s authority is limited to enforcing the Constitution. Ham
v. South Carolina, 409 U.S. 524 (1973); Ristaino v. Ross, 424 U.S.
589 (1976); Turner v. Murray, 476 U.S. 28 (1986).

aie

Cf. Aldridge v. United States, 283 U.S. 308 (1931) (where,
in the exercise of its supervisory authority over federal
prosecutions, this Court also approved voir dire concern-
ing racial prejudice for an African American defendant
accused of an interracial, capital murder); Ristaino, 424
U.S. at 597 (construing Ham where petitioner Ham should
have been allowed to ask questions concerning prejudice
because “{rjacial issues . . . were inextricably bound up
with the conduct of the trial’’).

Petitioner asserts that there is a sufficiently real danger
that a juror automatically for the death penalty will re-
main undetected throughout voir dire and will be put on
a jury. Petitioner persists in his position even though a
venire member, Benjamin Dexter, who said that he would
want to see a guilty defendant* “hung,” [sic] was detected
with a general fairness question, (J.A. 72) and excused
from jury service. There was also a venire member au-
tomatically for the death penalty in Mu’Min who was
screened out by a general fairness question. 111 S.Ct. at
1903. Petitioner erroneously insists that Stuart Ship, one
of the jurors in this case, was automatically for the death
penalty. When asked if he automatically would vote against
the death penalty no matter what the facts of the case,
Mr. Ship answered: “I would not vote against it.”’ (J.A.
98) Although Petitioner now insists that Mr. Ship’s re-
sponse is clear evidence that he was automatically for the
death penalty, Petitioner's objection to Mr. Ship at trial
was based exclusively on Mr. Ship’s statement that he
would consider Petitioner's failure to testify. (J.A. 101)

* Dexter's words are ambiguous. Dexter may have been saying
that he would want to see the person who murdered a friend’s
parents hanged. (J.A. 72)

— }2...

B. Petitioner's studies are not part of the record, and
should be stricken. Even if permitted, such studies are
seriously flawed.

Petitioner and Amicus National Association of Criminal
Defense Lawyers [hereinafter “NACDL"] now seek to
employ four studies’ which were not before the trial court,
not considered by the Illinois Supreme Court, and are not
properly part of the record before this Court. These studies
should not be considered. Ciueci v. Illinois, 356 U.S. 571,
572-73 (1958). Respondent was unable to investigate the
studies, cross-examine the authors, or bring forth other
contrary studies in rebuttal. To consider these studies
would be unfair to Respondent. These studies are not mat-
ters of “general knowledge”, Brown v. Board of Educa-
tion, 347 U.S. 483, 493 (1954), and should be stricken from
the record.

Even if the studies are considered, the studies are seri-
ously flawed, and have no persuasiveness. None of the

* Michael Nietzel, Ronald Vie 6 ee ee

of Voir Dire Variations in Capi Er.
tension, 5 BEHAV. SCIENCE AND THE yr “or. i 173 (1987 (1987) [herein-
after “Nietzel”’] (25.8% of those jurors studied were categorized
as automatically for the death penalty jurors).

Michael Neises and Ronald Dillehay, Death Qualification and
Conviction Proneness: Witt and Wi Compared, 5 BEHAV.
SCIENCE AND THE LAW 479, 485 (1 (hereinafter “Neises”’|
(24.1% of registered voters interviewed were automatically for the
death penalty jurors).

Marla Sandys and Ronald Dillehay, Juror Qualification Under
The New wy oy Ae Witt Standard: A Test of Jurors’ Ability
to Anticipate Their p. 7 (April, 1987) (
reproduced in the Exhibits ot Aataes NACDL) thereinafter "Sane
dys") (28.6% of those surveyed were automatically i ae dou
penalty jurors).

Lp and —_ Middendorf, Ly hat ag
a urors’ Responses to vating a itigating Circum-
stances in Capital Trials, 12 LAW aND Hum. BeHavior 263, 274,
276 (1988) (hereinafter “Luginbuh!"’] (1% of those surveyed were
automatically for the death penalty jurors).

—13—

studies directly addresses the primary issue of this case.
Three of the studies do not appear to be objective given
the bias and possible conflict of interest by their common
author.* There are serious problems in the methodology
of these studies, and the results are markedly inconsis-
tent with other studies.’

814002 ( , 1981) (unpublished study for the NAACP
Defense and Education Fund, Inc.) (hereinafter “Harris $ "
(1% of those surveyed were automatically for the death y

Joseph Kadane, a ae A Note on Taking Account of the
Automatic Death Jurors, 8 L. & Hum. Ben. 115, 116
sons Kodenet (9% of adudh Ammartoun pepuie
ety Me od my af ge te
Hovey v. Superior Court, 616 P.2d 1301, 1344 n.111 (Cal. 1980)
(in the opinion of seven expert witnesses who testified at a hear.
ing in the trial court, the percentage of automatically for the death
ge tapgh ee py tg ey

vad F . 1273, 1297 (E.D. Ark. 1983),
affd F'2d 296, 94-35 (ath ir. 1985), rev'd sub nom. Lockhart

v. MeCree, 476 U.S. +. 3980), George Jurow, New Data
peng ho many 4 Bay ified” om the Guilt Determina-
tron Process HARV. nee oa 567 (1971) (2% of those surveyed

were automatically for the death penalty jurors).

, 758 F.2d at 234-35, citing Andrea Young, Arkansas Ar-
chiv Study (1981) (unpublished study) (study of 41 41 transcripts of
voir dire in Arkansas cases between 1973 and 1981) (.5%
were automatically for the death penalty jurors).

alii

Two recent cases display the type of evidentiary hear-
ings which should have been held, if these studies were
introduced in the trial court. In the proceedings reviewed
in Lockhart v. McCree, 476 U.S. 162 (1986), and McCleskey
v. Kemp, 481 U.S. 279 (1987), experts testified in contested
were given close judicial scrutiny.*

Here, by way of contrast, one of Petitioner’s studies
(the Sandys Study) was not even published. This Court
has refused to rely on unpublished studies. Witherspoon
v. Illinois, 391 U.S. at 517.

Petitioner's cited studies lend little validity to Peti-
tioner’s argument because none of the studies was de-
signed to directly measure responses to the central issue
in this case: how many, if any, would automatically vote
for the death penalty upon conviction in contravention of
their oath and the law. There is no evidence that poten-
tial jurors—no matter what their inclination or leaning—
would not obey their oaths and follow the law once in
a courtroom, before a judge, faced with the serious re-
sponsibilities at hand.

The Luginbuh!l and Neises Studies briefly discuss per-
sons automatically for the death penalty, but do not focus
on that issue. Luginbuhl, supra at 274-75, Neises, supra

* Another e is Hovey v. Superior Court, 616 P.2d 1301
(Cal. oo Regen Ay es et eee & extensive eviden-
tiary on issue of w 7 i é +——
ing Guing col Goo gestae 0 ane, prone » hear.
i 17 days and produced a 1,200 ipt. Id. at
1302 Seven e witnesses testified, five for the and
two for the prosecution. /d. In excess of 1,000 of exhibits—
primarily sociological studies and graphs were ad-

mitted into evidence, as were several videotapes. /d. Unlike the
, McCleskey and Hovey cases, the record here is com-
pletely barren of any adversarial testing of the validity of the
studies relied on by Petitioner and Amicus.

—15—

at 492-93. The focus of the cited studies is clearly differ-
ent: the Nietzel Study focused on the effects of different
types of voir dire (individualized, sequestered vs. open
court, en masse) on the success of defense challenges for
cause and on the percentage of death verdicts; the Neises
Study involved the question of whether the Wainwright
v. Witt, 469 U.S. 412 (1985) standard would exclude more
jurors based on their views of the death penalty than the
Witherspoon standard and thereby make such “death
qualified” juries even more conviction prone; the Sandys
Study examines the Witt standard and its reliability for
classifying jurors based on their views on the death penal-
ty; and the Luginbuhl Study explored the relationship be-
tween attitudes toward the death penalty and support for
or rejection of aggravating and mitigating circumstances
in a capital trial. Thus, since none of the cited studies
dealt with the central issue of this case, these studies are
at best only “marginally relevant” to the constitutionality
of Petitioner’s conviction. McCree, 476 U.S. at 169.

The methodology of these studies is flawed. This Court
in McCree questioned the value of studies not involving
jurors who were under oath in a capital case and who
actually deliberated. This Court stated, “We have serious
doubts about the value of these studies in predicting the
behavior of actual jurors.”” McCree, 476 U.S. at 171. One
commentator called this concept “felt responsibility.”

The term “felt responsibility” is aptly used to de-
scribe the state of mind of actual jurors whose deci-
sions carry real consequences. Mock jurors may or
may not share this feeling of responsibility. “Felt
responsibility” is particularly important in a capital
case where the consequences may be life imprison-
ment or death. Unfortunately, no matter how realistic
are the experimental conditions—and there was an
effort in this study to intensely involve the subjects—
no experiment can completely simulate a real life
situation.

—i—

George Jurow, New Data on the Effect of a “Death Quali-
fied” Jury on the Guilt Determination Process, 84 Harv.
L. Rev. 567, 596 (1971).

The Neises, Sandys and Luginbuhl Studies, which are
heavily relied on by Petitioner and Amicus NACDL, have
this very flaw. The Neises Study was based on 135 regis-
tered voters (not jurors as stated in Petitioner’s opening
brief, p. 15, n. 2) in Fayette County, Kentucky who were
interviewed by telephone. The Sandys Study involved 148
individuals who had previously served on non-capital,
felony juries. The Sandys Study also employed telephone
interviews. The Luginbuhl Study (Study 2, which meas-
ured jurors automatically for the death penalty) questioned
317 individuals called for jury duty in Wake County,
North Carolina. None of the subjects in these three
studies had been under oath and deliberated in an actual
capital trial.

It is highly unlikely that those surveyed in these three
studies would share the “felt responsibility” of a juror
in a death penalty case. A person who is asked questions
on the telephone will not give the same thoughtful re-
sponses to questions about the death penalty that he or
she would give if presented with the same question sit-
ting as a real juror, with a real defendant before them.*

* As noted in Grigsby, 758 F.2d at 248 n.7 (dissenting opinion):

such
ve a solemn impact upon them. In this situa
tion y is felt keenly.
Thus, in accordance with this Court's view in Lockhart, the Neises,
Sandys and Luginbuhl Studies have little value.

:

=~ =

The one remaining study, the Nietzel Study, did ex-
amine individuals who had actually been sworn and had
deliberated in 18 capital cases. However, there is another
significant methodological concern with this study. The
authors of this study categorized the 242 successful de-
fense challenges for cause into five categories: automatical-
ly for the death penalty jurors, pre-formed opinion, affili-
ation with victim, legal principles, and other reasons.
Nietzel, supra at 470. The authors participated in 12 of
the trials as jury consultants for the defendants and re-
viewed transcripts of the other six trials. The authors
then, based on the responses of the voir dired juror, made
personal judgments and classified the defense challenges
for cause to be based on automatic death penalty beliefs.
Id. at 472.

All four ciied studies contain another significant
methodological limitation. None of these studies is based
on representative samples. Instead, these studies derived
their results from extremely smail groups in a limited geo-
graphic area.

In stark contrast to the samplings in these studies, the
1981 Harris Poll interviewed 1,499 people in 100 areas

” This study does not specify what criteria were employed by the
authors in order to place a juror’s response in the automatically
for the death penalty category as opposed to one of the other four
categories. This study also does not indicate what types of ques-
tions these jurors were asked by the respective trial judges at
the time they gave their automatically for the death nalty
response. Such subjective interpretation by researchers F ny have
actively worked as jury consultants for the defense in capital cases
should be given little weight by this Court. It should be noted
that the 25.8% in the Nietzel Study is directly refuted by
the Arkansas ival Study cited in Grigsby, 758 F.2d at 234-25
The Arkansas Archival Study consisted of a review of forty-one
transcripts of voir dires in capital cases from 1973 to 1981 which
were on file at the Arkansas Supreme Court. The Arkansas Ar.
chival Study found one-half of one percent (5%) were automatically
for the death penalty jurors. /d.

aii

of the country. The Harris Poll also took into considera-
tion variables such as region, area (rural/urban), age, sex,
type of work and union membership. Joseph Kadane, Juries
Hearing Death Penalty Cases: Statistical Analysis of a
Legal Procedure, 78 J. Am. Stat. Ass’N 544, 549 (1983)
(discussing Harris Poll).

The federal district court in Grigsby rejected a study
prepared by Dr. Gerald Shure on automatically for the
death penalty jurors similar to the four studies cited in
this case. The Grigsby court determined that Dr. Shure’s
findings were not accurate since they were not based on
a nationwide, representative sample:

Dr. Shure did not maintain that his sample was
representative. The West Los Angeles area included
Bel Air, Beverly Hills, Venice, Brentwood and West-
wood. And Dr. Shure acknowledged that area had re-
cently had some highly publicized crimes; had few
minorities; and was wealthy and conservative. The
Harris study, on the ouner hana, did involve a care-
fully chosen representative national sample. The
Court, while having the highest regard for Dr.
Shure’s sincerity, is convinced that he is “off the
map” on his estimate of ADPs. [automatically for the
death penalty]

Grigsby, 569 F. Supp. at 1307-1308.
This Court should similarly reject Petitioner's assess-
ments of the four studies cited in the instant case because

of their small size and their extremely limited geographic
sampling."

1! In a footnote, Amicus NACDL cites the Luginbuhl Study for
its finding that 10% of the sampled group would always vote for
the death penalty for convicted first —_ murderers. (Br. at 11
n.6). NACDL’s brief appears to implicit uate this finding with
the percentage of automatically for the death penalty jurors found
in the other cited studies. That brief fails to mention that the 10%

(Footnote continued on following page)

= =

C. There can be no presumption that prospective jurors are
automatically for the death penalty.

As an alternative to the statistics, Amicus NACDL has
urged this Court to presume bias in favor of the death
penalty as a matter of law. In all but the most extreme
situations, however, this Court has refused to infer dis-
qualifying juror prejudice. See, e.g., United States v. Wood,
299 U.S. 123 (1936) and Dennis v. United States, 339 U.S.
162 (1950) (refusing to presume bias of government em-
ployees summoned for jury duty); Murphy v. Florida, 421
U.S. 794 (1975) (persons exposed to pre-trial publicity);
Smith v. Phillips, 455 U.S. 209 (1982) Gurer who sought
employment in the district attorney’s office); and Mu’Min,
111 S. Ct. at 1917 (Kennedy, J., dissenting) (analyzing the
very few cases tried in a “carnival atmosphere created
by press coverage” where proof of individual bias was un-
necessary). In fact, despite the fact that racial prejudice
was the principal reason for creating the Fourteenth
Amendment, Ham, 409 U.S. at 526-27, this Court has
refused to indulge in a constitutional presumption of juror
bias for or against members of any particular racial or
ethnic groups. Rosales-Lopez, 451 U.S. at 190.

To the contrary, as this Court has stated, in a some-
what different context, that such jurors “will be few in-
deed as compared with those excluded because of scruples
against capital punishment.”” Adams v. Texas, 448 U.S.
38, 49 (1980). “Despite the hypothetical exietence of a

1! continued

figure was derived from Study 1 in the Luginbuhl Study which
did not even attempt to identify automatically for the death penal-
ty jurors - by correct legal standard. Luginbuhl, supra note 5
at 271-72. brief also fails to report the results from Study 2 in
the Luginbuhl Study which the authors designed to identify auto-
matically for the death penalty jurors. /d. at 272. The authors
found that automatically for the death penalty jurors comprised
only 1% of the total sample in their study. /d. at 274, 276.

—20—

juror who believes literally in the Biblical admonition ‘an
eye for an eye’, (cites omitted), it is undeniable, . . . ,
that such jurors will be few indeed... .” /d.

Considering Petitioner’s meager and inconclusive statis-
tics, this Court should refuse to presume a bias for the
death penalty.

1). Persons automatically for the death penalty will be de-
tected by general fairness questions.

The trial court’s explanation of the trial processes, gen-
eral fairness questions, questions concerning the venire-
man’s willingness and ability to find the facts and to follow
the law, and the juror’s oath are constitutionally adequate
to uncover potential prejudice, including any bias in favor
of the death penalty. Turner, 476 U.S. at 49 n.6 (Rehn-
quist, C.J., dissenting) (observing that general fairness
questions can prompt a potential juror to admit bias);
Mu’Min, 111 S. Ct. at 1919 (Kennedy, J., dissenting)
(agreeing that an adequate number of fairness questions
to which the venireman is required to respond cafi be ade-
quate). Moreover, as this Court observed in Dennis, 339
U.S. at 171, an honest man trying to live up to the sanc-
tity of his oath is well qualified to say whether he has
an unbiased mind. Indeed, the fairness question was ade-
quate in the instant case to facilitate a cause challenge.
After venireman Benjamin Dexter was asked “Do you
know any reason why you cannot give this defendant a
fair trial?”, Mr. Dexter expressed his feelings and was
excused for cause. (Tr. 374)

A trial judge cannot be constitutionally required to voir
dire potential jurors about every conceivable bias feared
by the defendant. Ristaino, 424 U.S. at 595, 596 n.8. See
also Hamling v. United States, 418 U.S. 87, 140 (1974)
(no error to refuse questions concerning educational, politi-

—21— _—

cal, and religious biases); Connors v. L’nited States, 158
U.S. 408, 414-15 (1895) (political opinions and associations);
Ham, 409 U.S. at 527-28 (prejudice against beards); Rosales-
Lopez, 451 U.S. at 192-94 (ethnic bias against Mexicans
or aliens); and Mu’Min, 111 S. Ct. at 1905 (content of
news reports and pre-trial publicity). The facts of Ham
are a particularly compelling example of why this Court
should not encumber the Constitution by mandating vir
dire questions concerning an issue that is in the limelight
of current public opinion. The propriety of beards was a
controversial issue in 1973 when Ham was decided.
However, that issue has long since blown over. But if this
Court had granted Ham’s request of voir dire about beards,
the Constitution would now require that venire members
in 1992 be questioned concerning any bias they felt towards
people with beards.

Thus, the Sixth and Fourteenth Amendments should not
include a specific requirement that state court judges ask
prospective jurors if they would be automatically for the
death penalty, since there is no sufficiently real danger
of persons with such a bias remaining undetected through-
out the voir dire.

Il. J

VOIR DIRE, NOT EASILY THE SUBJECT OF APPEL-
LATE REVIEW, SHOULD BE LEFT TO THE DISCRE-
TION OF TRIAL JUDGES.

“Of necessity”, the voir dire examination of potential
jurors must be left to the sound discretion of trial judges.
Connors v. United States, 158 U.S. 408 (1895); Ham v.
South Carolina, 409 U.S. 524 (1973). There is no single,
correct way to assure the impartiality of petit jurors. The
Constitution lays down no particular test and there is no
procedure “chained to any ancient and artificial formula.”
Irvin v. Dowd, 366 U.S. 717, 724-25 (1961).

—~22—

Yet, as Justice White well stated in Rosales-Lopez,
“Voir dire plays a critical function in assuring the criminal
defendant that his Sixth Amendment right to an impartial
jury will be honored. Without an adequate voir dire, the
trial judge’s responsibility to remove prospective jurors
who will not be able impartially to follow the court’s in-
structions and evaluate the evidence cannot be fulfilled.”
451 U.S. at 188.

As stated in Mu’Min, 111 S. Ct. at 1903, this Court
enjoys more latitude in setting standards for voir dire in
federal court under its supervisory power than it has in
interpreting the provision of the Fourteenth Amendment
with respect to voir dire in state courts. Appropriate
respect must be given -he sovereign states in the formula-
tion of their own rules of criminal procedure. McNabb v.
United States, 318 U.S. 332, 340 (1943). The states remain
free to impose a higher standard, mandate specific jury
selection procedures, or prescribe voir dire questioning
about specific biases as a matter of state law. Ristaino,
424 US. at 597 n.9. See also Cupp v. Naughten, 414 U.S.
141, 146 (1973) and Mu’Min, 111 S. Ct. at 1905, 1908, in
which this Court noted that practices which are “helpful”
or “desirable”, or which represent the “wiser course” or
“better view”, may not be constitutionally required.

In both the state and federal courts, regulation of voir
dire traditionally has been committed to the sound discre-
tion of the trial judge. Rosales-Lopez, 451 U.S. at 188-89.

Citing a number of decisions, Petitioner and Amicus
ACLU assert that there exists a consensus among the
state jurisdictions that a defendant has the right to ask
the venire whether they would automatically impose the
death penalty.'? However, this perceived consensus Cani-

12 The Illinois Supreme Court has definitively held that a trial
court is not required to conduct an inquiry concerning whether
(Footnote continued on following page)

=~ =

not withstand scrutiny. Most of the 36 states that have
a death penalty have not considered this issue at all.
Eight courts (not two as claimed by Petitioner and
Amicus) have held or suggested that this matter is best
committed to the discretion of the trial judge, and that
voir dire examination need not be conducted to detect
venire persons automatically for the death penalty. Hen-
derson v. State, 583 So. 2d 276, 283-84 (Ala. Crim. App.
1990), affd, Ex Parte Henderson, 583 So. 2d 305 (Ala.
1991); Riley v. State, 585 A.2d 719, 725-26 (Del. 1990);
Commonwealth v. Haynes, 281 S.E.2d 209, 211-12 (S.C.
1981). See also Irving v. State, 498 So. 2d 305 (Miss. 1986)
(strongly indicating such examination is within the trial
judge’s discretion); State v. Rogers, 341 S.E.2d 713, 722
(N.C. 1986); overruled on other grounds, State v. Vandiver,
364 S.E.2d 373 (N.C. 1988) (the trial court “is vested with
broad discretion in controlling the extent and manner” of
inquiry into this matter); Timothy E. Morris v. Tennessee
(Tenn. Crim. App. September 11, 1985) (Lexis, States li-
brary, Tenn. file) (requiring that deference to the trial
judge is appropriate when defense counsel seeks to “re-
verse-Witherspoon” a jury); and King v. Strickland, 714
F.2d 1481, 1495 (11th Cir. 1983) (denying habeas corpus
relief although counsel was unable to ask whether pro-
spective jurors would favor ‘‘a mandatory death penalty
for certain crimes’’).*

12 continued

the venire members are automatically for the death penalty, but
that such a decision is within the discretion of the trial « court. Peo-
ple v. Jackson, No. 68012 (Ill. Sup. Ct. September 26, 1991) (LEXIS,
States library, Ill. file). Petitioner’s contention, based on a reading
of Daley v. Hett, 495 N.E.2d 513 (Ill. 1986), that the Illinois Su-
preme Court views a Witherspoon examination as a right vested
solely with the prosecution, is based on an erroneous reading of
Illinois Supreme Court's dicta. Hett, 495 N.E.2d at 516-17.

13 Most of Petitioner's “consensus” cases are not on point. Most
involve potential jurors who disclose a bias; all would agree these
(Footnote continued on following page)

fins

Furthermore, five state cases relied upon by Petitioner
do not in any way support his position. In South Carolina,
contrary to Petitioner’s contention, neither Gaskins v.
McKellar, 916 F.2d 941 (4th Cir. 1990), nor State v.
Atkins, 399 S.E.2d 760 (S.C. 1990) hold that a defendant
is allowed to examine the venire for potential automatical-
ly for the death penalty jurors. In Commonwealth v.
White, 531 A.2d 806 (Pa. 1987), a non-death penalty case,
the issue was whether the trial court improperly permit-
ted the prosecution to inform the venire about the penalty
for first degree murder by asking the venire whether they
had any scruples which would automatically prevent them
from finding the defendant guilty, regardless of the evi-
dence, where such a verdict would result in the maximum
sentence of life imprisonment. White, 531 A.2d at 809. The
Pennsylvania Superior Court held that the above was not
error. Id. at 809. In State v. McMillin, 783 S.W.2d 82
(Mo. 1990), although the trial court refused to allow de-
fense counsel to ask a venire member whether she would
automatically vote for the death penalty, the court per-
mitted counsel to inquire whether the venire member
“could conceive of any serious case in which the death
penalty might be appropriate. . . .” Id. at 94. The Missouri
Supreme Court held that, based on the above, because
the trial court permitted wide latitude for voir dire exam-
ination, the trial court’s denial of the ‘automatically for

13 continued

persons should be excused, and should not serve on a jury. See
P. v. Coleman, 759 P.2d 1260 (Cal. 1988), Cumbe v. State, THO
S.W.2d 251 (Tex. Cr. App. 1988); Patterson v. Commonaeealth, 2885
S.E.2d 212 (Va. 1981); State v. Williams, 550 A2d 1172 (N.J.

1988—“. .. , (w)e conclude that the trial court erred in failing to
excuse this prospective juror for cause’’).
State v. Norton, 675 P.2d 577 (Utah 1988) does to be a

case favoring Petitioner’s point of view. (See also Pickens v. State,
730 S.W.2d 230 (Ark. 1

—~25—

the death penalty question” was not an abuse of discre-
tion. Jd. And Bracewell v. State, 506 So. 2d 354 (Ala.
1986), cited by both Petitioner and Amicus ACLU, has
been effectively overruled by Henderson v. State, 583 So.
2d 276 (Ala. Crim. App. 1990), aff'd, Ex Parte Hender-
son, 583 So. 2d 305 (Ala. 1991).

From the foregoing, it is eminently plain that Peti-
tioner’s and Amicus ACLU's “consensus” of support among
the states is found to be wanting. This case is unlike A/d-
midge, 283 U.S. at 311-13, where this Court relied on a
unanimous consensus among the states. Even a weight
of authority favoring Petitioner's position does not exist.

The abuse of discretion standard is particularly appro-
priate because a trial judge will know the community from
which the venire members have come. Thus, the trial
judge will be aware of any prevailing attitudes or experi-
ences that may make the members of his community like-
ly to be automatically for the death penalty. To assist in
making this determination, the trial judge assesses a
venire member's responses, inflection and demeanor to
determine his impartiality. Patton v. Yount, 467 U.S.
1025, 1088 & n.14 (1984); Ristaino, 424 U.S. at 595.
Because this credibility determination is peculiarly within
the trial judge’s province, Witt, 469 U.S. at 428 and Pat.
ton, 467 U.S. at 1089, the conduct of voir dire should
always be committed to the trial judge’s discretion.

Petitioner fails to offer this Court a compelling reason
to remove voir dire practice from the province of the trial
judge’s discretion. Even the Petitioner has not suggested
that a state trial judge, sworn to uphold the Constitu-
tion of his or her State as well as the Constitution of the
United States, would refuse to ask any question if there
were any particular reason to believe that a given venire
or venire member was not inclined to follow the law.

Petitioner’s argument rests on a fundamental misreading
of Witherspoon v. Illinois, 391 U.S. 510 (1968). The Wither-
spoon decision did not confer a right upon the State in
jury selection in capital cases. Properly read, the Wither-
spoon decision only limited the State’s ability to excuse
for cause those jurors with “scruples” against the death
penalty who could never set aside their personal views
to decide a case impartially. Witherspoon, 391 U.S. at 522
n.21 (construed in Adams, 448 U.S. at 47-48).

The voir dire questioning discussed in Witherspoon was
designed to protect both parties’ right to an impartial jury
by excusing those persons who could not judge the case

tions. Witherspoon, 391 U.S. at 512. To the extent that
there is a Witherspoon parallel, it would only come after
a person said “yes” to an automatic death penalty ques-
tion, and would then be asked if he or she could “follow
the law.” “Following the law” is the antidote to any mis-
directed attitudes.

There is also a quantitative difference between the
Witherspoon question and the automatically for the death

~27—

penalty question. Illinois requires a unanimous verdict in
favor of imposing death. Ill. Rev. Stat. ch. 38, §9-1(g)
(1985). Thus, one person unable to impose the death penal-
ty can act to nullify the state’s law authorizing the death
penalty. Persons automatically for the death penalty would
not carry the same weight, however, because persons auto-
matically for the death penalty would still need to per-
suade the remaining eleven jurors to vote for the death
penalty.

Moreover, there is scant room for bias to operate dur-
ing a post-Gregg capital sentencing hearing. Unlike the
statutory scheme reviewed in Witherspoon which con-
ferred unfettered discretion on the factfinder, the Illinois
Death Penalty Act, extensively revised in 1977, minimizes
sentencing discretion to a constitutionally acceptable level.
The Illinois statute narrows the class of persons eligible
for the death penalty by requiring the sentencer to find
one or more statutory aggravating factors. The State may
then provide additional evidence in aggravation, but the
sentencer must consider al! relevant mitigating evidence
presented by the defendant. If a jury sits to determine
sentence, that jury must unanimously conclude there are
no mitigating factors sufficient to preclude imposition of
the death penalty. Ill. Rev. Stat. ch. 38, §9-1 (1977), Tl.
Const. Art. VI, sec. 4(b). The conditions which necessi-
tated the Witherspoon decision no longer exist. Adams,
448 U.S. at 583 (Rehnquist, J., dissenting).

Thus, neither the Constitution, nor equity, requires that
venire members in capital cases be asked “the reverse”
of the Witherspoon question.

—238—

CONCLUSION

For all the foregoing reasons, the Respondent respect-
fully prays that this Honorable Court affirm the decision
and sentence of the Illinois Supreme Court.

Respectfully submitted,
ROLAND W. a

—— hors

Chicago, Illinois 60601
(312) 814-2235
Attorneys for Respondent

Counsel of Record
RANDALL E. ROBERTS
SALLY L. DILGART
WILLIAM D. CARROLL

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0288%3A06. Public record. Not legal advice.