# Appendix — Uttecht v. Brown

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0297%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 1

## Text

‘a
A Q6-413 SEP 18 2006

NO. —— og ICE OF THE CLERK
IN THE SUPREME COURT OF
THE UNITED STATES

JEFFREY A. UTTECHT,

Petitioner, |

V.

CAL COBURN BROWN,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
To THE UNITED STATES CouRT OF APPEALS
For THE NINTH CIRCUIT

APPENDIX TO THE PETITION FORA
WRIT OF CERTIORARI

Rob McKenna
Attorney General

William B. Collins

Deputy Solicitor General
Paul D. Weisser

Senior Counsel
John J. Samson*

Assistant Attorney General
*Counsel of Record :
PO Box 40116
Olympia, WA 98504-0116
360-586-1445

ia

APPENDIX
Description Page

Order and Amended Opinion, Brown v.
Lambert, 451 F.3d 946 (9th Cir. 2006)..................... la

Judgment In A Civil Case, Brown v.
Lambert, U.S.D.C. Western District of
Washington Cause No. C01-715C................cccce eee 42a

Order, Brown v. Lambert, U.S.D.C.
Western District of Washington Cause
Bi IIT sicsiessaioensscniaiteiantinliipdiinieaitaiidinicibintddeetaiaguiniiad 43a

Opinion, State of Washington v. Brown,
Washington State Supreme Court Cause
Sc NUNIT UT crcstiaoeiaciabstihitaineleallacebdinnneinadiniadiimaniitale 92a

Excerpts of Verbatim Report of

Proceedings, November 3, 1993, State of

Washington v. Brown, King County

Superior Court Cause No. 91-1-03233-1.............. 222a

la

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

——- ee

Cal Coburn Brown, No. 04-35998
Petitioner-Appellant, | D.C. No.
v. CV-01-00715-JCC
JOHN LAMBERT, ORDER AND
Superintendent of Washington | AMENDED
State Penitentiary, OPINION
Respondent-Appellee.

Appeal from the United States District Court for the
Western District of Washington, John C.
Coughenour, Chief Judge, Presiding

Argued and Submitted

July 14, 2005 — Pasadena, California
Filed December 8, 2005
Amended June 19, 2006

“Before Stephen Reinhardt, Alex Kozinski and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Kozinski; Dissent from Denial of
Rehearing En Banc by Judge Tallman

SUMMARY

Criminal Law and Procedure/Habeas Corpus

The court of appeals reversed a judgment of
the district court in part and remanded. The court

2a

held that excusing for cause in a capital case a juror
who stated unequivocally that he could consider the
death penalty as an opinion if told to do so was
directly contrary to Supreme Court precedent, as was
the Washington Supreme Court’s decision to uphold
the juror strike on direct appeal.

Appellant Cal Brown confessed to both the
rape and attempted murder of a woman in
California, and the rape and murder of another
woman in Washington. After pleading guilty in
California and receiving a_ sentence of life
imprisonment, Brown was tried in Washington in
1993. The trial judge excused juror X for cause
based on her statement that she did not think that

she could impose the death penalty. The judge also
excused juror Y for cause, based on her strong
opposition to the death penalty. Finally, the judge
excused juror Z for cause, although he said that he
believed in the death penalty and_= stated
unequivocally that he could consider the death
penalty as an option if told to do so. The jury
convicted Brown of aggravated first-degree murder,
and sentenced him to death. Brown exhausted his
direct appeals, and state habeas proceedings. The
Washington Supreme Court, in upholding the trial
judge’s decision to excuse jurors X, Y, and Z for
cause, noted that Brown did not object at trial to the
state’s challenge of juror Z for cause; and that juror Z
had made an incorrect statement of the law and
misunderstood the state’s burden of proof to be
beyond a shadow of a doubt, although he was
corrected later. Brown petitioned for a writ of
habeas corpus in federal district court, raising an
umber of constitutional claims regarding his trial
and sentencing. The district court denied his

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petition after an evidentiary hearing.

Brown appealed, challenging the
constitutionality of the Washington death penalty
statute on its face, arguing that it gives the jury no
guidance on how to consider evidence of collateral
crimes. Brown also argued that the three
prospective jurors were erroneously dismissed for
cause.

[1] The Washington death penalty statute
requires the jury to deliberate on one question only:
Having in mind the crime of which the defendant has
been found guilty, are you convinced beyond a
reasonable doubt that there are not sufficient
mitigating circumstances to merit leniency? The
Ninth Circuit has previously upheld the facial
validity of the identical Washington statute against a
challenge that it failed to adequately channel and
guide jury sentencing discretion. [2] This holding
necessarily precluded Brown’s claim.

[3] Based on her response, the trial judge
properly excused X for cause. [4] The trial judge
properly excused juror Y for cause as well.

[5] The Supreme Court has explained that
the standard for determining whether prospective
jurors may be excluded for cause based on their
views on capital punishment is whether the juror’s
views would prevent or substantially impair the
performance of his duties as a juror in accordance
with his instructions and his oath. [6] It is-and was
at the time of Brown’s trial in 1993-clearly
established that excusing a juror for cause in a
capital case is unconstitutional, absent evidence that
the juror would not follow the law. [7] Nowhere did
the Washington Supreme Court find that juror Z

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would be unable to follow instructions. Nor could the
court have found this. Juror Z ultimately stated that
he could consider the death penalty in an
appropriate case. Had there been a finding that
juror Z was substantially impaired in his ability to
follow the law, it would have been unreasonable. [8]
The reasons that the court did give for upholding Z’s
exclusion was misplaced and insufficient. [9] Juror
Z’s temporary misunderstanding of the prosecution’s
burden of proof was also irrelevant; it would have
been easily corrected by the jury instructions, which
juror Z gave every indication he would follow. [10]
Finally, Brown’s failure to object to juror Z’s removal
at trial did not alter the error analysis. Brown
raised the juror Z claim on direct appeal, and the
Washington Supreme Court did not find the claim to
be waived or procedurally barred. Nor did the state
allege that the claim was waived or barred, or that it
was not exhausted in state court. [11] In sum,
excusing juror Z for cause was directly contrary to
Supreme Court precedent, as was the Washington
Supreme Court’s decision to uphold the juror strike
on direct appeal.

[12] Having found that juror Z was
erroneously excluded, it was unnecessary for Brown
to demonstrate he was prejudiced by Z’s exclusion.
Prejudice is presumed. Thus, Brown's death
sentence could not stand. The judgment of the
district court had to be reversed.

COUNSEL

Suzanne Elliott and Gilbert H. Levy, Seattle,
Washington, for the petitioner-appellant.

Rob McKenna, Attorney General, and John J.

Sa

Samson, Assistant Attorney General, Criminal
Justice Division, Olympia, Washington, for the
respondent-appellee.

ORDER

The opinion filed December 8, 2005, and
reported at 431 F.3d 661, is withdrawn, and is
replaced by the Amended Opinion, 04-35998, filed
concurrently herewith. The petition for rehearing is
otherwise denied.

A judge requested a vote on whether to rehear
this case en banc, but a majority of the non-recused
active judges did not vote in favor of en banc
consideration. The petition for rehearing en banc is
therefore DENIED. See Fed. R. App. P. 35. No
further petitions for rehearing or rehearing en banc
will be accepted.

OPINION
KOZINSKI, Circuit Judge:

We consider the exclusion of jurors for cause in
a death penalty case. \

Facts!

Cal Brown is not a nice man. In May 1991, he
carjyacked Holly Washa and drove her to a motel near
the Seattle-Tacoma airport. Brown robbed, raped
and tortured Washa while holding her hostage for
two days. He bound and gagged her, penetrated her

! For a more detailed discussion of the facts, see the
Washington Supreme Court's opinion in Brown’s direct appeal,
State v. Brown, 940 P.2d 546, 555-59 (Wash. 1997) (en banc).

6a

with foreign objects, whipped her and shocked her
with an electrical cord. Eventually, Brown put
Washa in the trunk of her car, slit her throat,
stabbed her and left her to bleed to death in a
parking lot.

Brown then flew to Palm Springs, California,
to rendezvous with his next victim, Susan Schnell,
whom he had met on an airplane a few days earlier.
While inside their hotel room, Brown similarly
robbed and raped Schnell, bound and gagged her,
tortured and penetrated her. After handcuffing
Schnell to the bed, Brown slit her throat and left her
to die. Amazingly, Schnell was able to call the front
desk and summon the police, who arrived and
arrested Brown in the hotel parking lot.

Brown quickly confessed to both the rape and
attempted murder of Schnell in California, and the
rape and murder of Washa in Washington. After
pleading guilty in California and receiving a
sentence of life imprisonment, Brown was tried in
Washington. A jury convicted Brown of aggravated
first-degree murder, and sentenced him to death.-
Brown exhausted his direct appeals and state habeas
proceedings. He then petitioned for a writ of habeas
corpus in federal court, raising a number of —
constitutional claims regarding his trial and
sentencing.2 The district court denied his petition
after an evidentiary hearing, and Brown appeals

2 Because Brown filed his habeas petition after April 23,
1996, we apply the “substantive review standards of the
Antiterrorism and Effective Death Penalty Act of 1996. Pub. L.
No. 104-132, 110 Stat. 1214 (1996) (AEDPA’).” Webster v.
Woodford, 369 F.3d 1062, 1066 (9th Cir.), cert. denied, 543 U.S.
1007 (2004); see also Lindh v. Murphy, 521 U.S. 320, 327
(1997).

7a
three issues relating to his death sentence.’

Facial Validity of Washington’s Death Penalty
Statute

Brown challenges the constitutionality of the
Washington death penalty statute on its face,
arguing that it gives the jury no guidance on how to
consider evidence of collateral crimes.

[1] The Washington death penalty statute
requires the jury to deliberate on one question only:
“Having in mind the crime of which the defendant
has been found guilty, are you convinced beyond a
reasonable doubt that there are not sufficient
mitigating circumstances to merit leniency?” Wash.
Rev. Code § 10.95.060(4); see also id. § 10.95.070
(setting forth a non-exhaustive list of factors the jury
may consider). We have previously upheld the facial
validity of the identical Washington statute against a
challenge that it “fails to adequately channel and
guide jury sentencing discretion.” Campbell v.
Kincheloe, 829 F.2d 1453, 1464 (9th Cir. 1987)
(“Campbell I’). In Campbell I, we viewed the statute
in light of the construction given to it by the
Washington Supreme Court, see State v.,
Bartholomew, 683 P.2d 1079, 1086-87 (Wash. 1984)
(en banc), and held that the defendant's facial

3 In his “Statement of Issues,” Brown also asks whether
his “conviction [was] obtained in violation of the Due Process
Clause of the Fourteenth Amendment... .” (Emphasis added.)
But the claims Brown raises in the remainder of his brief relate
only to his death sentence, not his conviction. Thus, we will
consider only whether Brown is entitled to habeas relief with
respect to his death sentence. See Am. Intl Enters. V. FDIC, 3
F.3d 1263, 1266 n.5 (9th Cir. 1993) (holding that an issue
mentioned in a statement of issues, but not addressed in the
argument section of the brief, may be considered abandoned).

8a

challenge was “meritless.” See Campbell I, 829 F.2d
at 1464; see also Campbell v. Blodgett, 978 F.2d
1502, 1513-14 (9th Cir. 1992) (per curiam)
(“Campbell II’).

[2] Brown’s argument in this case is merely a
subset of Campbell's facial challenge; he claims that
the statute fails to adequately channel and guide
jury sentencing discretion with respect to evidence of
collateral convictions. Thus, our broader holding in
Campbell I-that the Washington statute does not fail
to adequately guide jury discretion with respect to
anything-necessarily precludes Brown’s claim. We
have no occasion to reevaluate our earlier
assessment of the statute. See Barapind v. Enomoto,
400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per
curiam) (noting that rulings by three-judge panels
are “law of the circuit,” and are binding on
subsequent three-judge panels).

Jury Selection

Brown next argues that three prospective
jurors were erroneously dismissed for cause, and that
he was therefore sentenced by a “tribunal organized
to return a verdict of death.” Witherspoon v. Illinois,
391 U.S. 510, 521 (1968).

[3] 1. Juror X was uncertain whether she
would be able to impose the death penalty. Though
she initially professed a willingness to follow the
court's instructions, she later expressed serious
reservations: “Oh, yeah, I could follow’ the
instructions. I think that-actually making that
decision, no.” When the court asked her about her
ability to vote for death, she responded, “I don't think
I could. It would have to be so crystal clear. 1 would

- have to be-.” Based on these responses, the trial

9a

judge properly excused X for cause, finding that her
views on the death penalty would “substantially
impair the performance of [her] duties as a juror in
accordance with fher] instructions and oath.”
Wainwright v. Witt, 469 U.S. 412, 424 (1985)
(quoting Adams v. Texas, 448 U.S. 38, 45 (1980))
(internal quotation mark omitted).

[4] Juror Y's voir dire exposed even stronger
antipathy toward the death penalty, bordering on
moral outrage. She described the death penalty as
“barbaric” and suggested that it “makes .. . brutes of
us all.” She expressed resentment toward the state
of Washington for putting her in the position of
choosing between life and death. Finally, when
asked by the court if she would be able to consider
sentencing anyone to death, Y “crossed her arms,
held her hand up ... and sat back.”* The trial judge
properly excused juror Y for cause as well, noting
that her impairment was “obvious.”

The voir dire examinations of jurors X and Y
contrast sharply with the examination of juror Z. Z
expressed no antipathy toward the death penaliy; to
the contrary, he stated that he “believe[d] in the
death penalty.” In explaining his views, Z outlined a

‘It is unclear from the record how Y “held her hand up.”
Presumably, she was holding her hand up with her palm out, in
a motion often associated with the exclamation, “Talk to the
hand (because the ears ain't listening),” phrase later
popularized by Fran Drescher in the mover Beautician and the
Beast. See Terms of the 90s, Slange of the Nineties,
http://www.inthe90s.com/generated/terms.shtm] (defining “Talk
to the Hand” as “[a]nother way of saying ‘I don’t want to hear
what you are saying.”); see also Lynn Truss, Talk to the Hand:
The Utter Bloody Rudeness of the World Today or Six Good
Reasons to Stay Home and Bolt the Door (2005).

10a

balanced and thoughtful position. For example, Z
was discomfited by an earlier era in which “fit
seemed like ... [the death penalty] wasn't used at
all,” because he believed “there [a]re times when it
would be appropriate [to impose the death penalty].”
But he expressed caution that the death penalty be
reserved for “severe situations”: “I don't think it
should never happen, and I don't think it should
happen 10 times a week either.” Z felt most
comfortable imposing the death penalty where the
defendant is “incorrigible and would reviolate if
released,” and less comfortable where the defendant
is found to have been “temporarily insane.” But he
stated unequivocally that he could consider the death
penalty as an option if told to do so.5

5 In fact, during the course of his voir dire, juror Z
stated six times that he could follow the law and impose the
death penalty, while not once stating that he might not be able
to:

Q. Do you think that you could consider [the death
penalty]?

A. Yes, I could.

Q. [D]Joes that mean what I’m hearing you say is that
you could consider [the death penalty}?

A. I believe so, yes.

Q. You would be willing to follow the law?

A. Yes.
Q. [D]o you thin .. . you could impose [the death
penalty]?

A. Yes, sir.

lla

In essence, Z's views on whether to impose the
death penalty mirrored Washington's death penalty
statute itself: He believed a defendant should be put
to death where his crime was appropriately severe
but not otherwise, and was willing to take into
account mitigating factors (mental health issues, for
example), aggravating factors (likelihood of
recidivism, for example) and the particular
circumstances of the instant murder. See Wash. Rev.
Code §§ 10.95.060, 10.95.070. Additionally, he was
open to considering other types of mitigating
circumstances, such as “somebody's childhood” or
“emotional development,” was welcoming of his
fellow jurors’ views, and was accepting of the heavy
responsibility assigned to jurors by the state. Most
importantly, he promised he would “follow the law”
without reservation.

Despite these assurances, the prosecutor
protested that Z was too reluctant to impose the
death penalty, and that he would only vote for death
if convinced that the defendant would “kill again.”
The prosecutor thus moved to excuse juror Z for
cause, and the trial judge granted the motion
without further inquiry.

[5] 2. In 1985, and again in 1987, the
Supreme Court explained that the “standard for

Q. [D]o you think you could also consider and vote for
the death penalty under those circumstances?

A. I could consider it, yes.
Q. Then could you impose it?

A. I could if | was convinced that was the appropriate
measure.

12a

determining whether prospective jurors may be
excluded for cause based on their views on capital
punishment ... is ‘whether the juror's views would
“prevent or substantially impair the performance of
his duties as a juror in accordance with his
instructions and his oath.”” Gray v. Mississippi, 481
U.S. 648, 658 (1987) (quoting Witt, 469 U.S. at 424,
(quoting “Adams, 448 U.S. at 45)). The Supreme
Court insisted that capital jurors not be struck for
cause unless they are unable to follow the court’s
instructions. Even jurors “who firmly believe that
the death penalty is unjust may nevertheless serve
as jurors in capital cases so long as they state clearly
that they are willing to temporarily set aside their
own beliefs in deference to the rule of law.” IZd.
(quoting Lockhart v. McCree, 476 U.S. 162, 176
(1986) (Rehnquist, J.)).

{6] Further, the Supreme Court significantly
circumscribed the state courts’ role in excusing jurors
for cause in capital cases: It held that

[t]he State’s power to exclude for cause jurors
from capital juries does not extend beyond its
interest in removing those jurors who would
“frustrate the State's legitimate interest in
administering constitutional capital
sentencing schemes by not following their
oaths.” To permit the exclusion for cause of
other prospective jurors based on their views
of the death penalty unnecessarily narrows
the cross section of venire members. It
“stack[s] the deck against the petitioner. To
execute [such a] death sentence would deprive
him of his life without due process of law.”

Id. at 658-59 (alterations in original) (citation

l3a

omitted) (quoting Witt, 469 U.S. at 423, and
Witherspoon, 391 U.S. at 523). Thus, it is-and was at
the time of Brown's trial in 1993-clearly established
that excusing a juror for cause in a capital case is
unconstitutional, absent evidence that the juror
would not follow the law.

[7] When the Washington Supreme Court
upheld the trial judge's decision to excuse jurors X, Y
and Z for cause, it found that both X and Y were
“substantially impaired” in their ability to perform
their duties as jurors. Brown, 940 P.2d at 585.
Those findings are adequately supported by the
record. But a similar finding is missing from the
state court's discussion of juror Z. The court's entire
review of Z’s exclusion from the jury is as follows:

Appellant did not object at trial to the State’s
challenge of [Z] for cause. At any rate, [Z] was
properly excused. On voir dire he indicated he
would impose the death penalty where the
defendant “would reviolate if released,” which
is not a correct statement of the law. He also
misunderstood the State’s burden of proof in a
criminal case and understood it to be “beyond
a shadow of a doubt,” although he was
corrected later. The trial court did not abuse
its discretion in excusing [Z] for cause.

Id. Nowhere did the court find that Z would be
unable to follow instructions. Nor could the court
have found this: Just like the juror at issue in Gray,
juror Z “ultimately stated that [he] could consider
the death penalty in an appropriate case.” Gray, 481
U.S. at 653.6 Had there been a finding that Z was

6° The dissent from denial of rehearing en banc agrees
that the juror in Gray was improperly struck because she

l4a

“substantially impaired” in his ability to follow the
law, it would have been unreasonable. See 28 U.S.C.
§§ 2254(d)(2), (e)(1).7

[8] The reasons that the court did give for
upholding Z's exclusion are misplaced and
insufficient. Z's statement that he would impose the
death penalty where the defendant would be likely to
kill again did not exclude the possibility that Z would
vote to impose the death penalty in other
circumstances as well. And the fact that Z

“stated unequivocally that she could impose the death penalty
without demurrer.” Dissent at 6757. In fact, juror Z’s
commitment to following instructions was far stronger than the
juror improperly struck in Gray. When Z was asked if he could
impose the death penalty, he responded with an unequivocal,
“Yes, sir.” When the juror in Gray was asked if she could vote
for the death penalty, she responded only, “I think I could.”
Gray, 481 U.S. at 653 n.5.

7 The dissent from denial also makes much of juror Z’s
indecisiveness, a term it uses repeatedly. According to the
dissent, this indecisiveness connoted an “inability to properly
follow the court’s instructions and apply the law.” Dissent at
6761. The state has never suggested this novel theory and we
do not find it persuasive. If the juror in Gray was fit to serve
despite her moral scruples against the death penalty, we see no
basis for finding juror Z impaired because of his alleged
“indecisiveness.” Indeed, keeping an open mind as to whether
the death penalty is appropriate, before any evidence has even
been presented, strikes us as a virtue in a juror, not a basis for
disqualification.

_ 8 Even after learning that life without parole was an
alternative to the death penalty, Z unequivocally stated that he
would be able to consider and impose the death penalty. The
dissent from denial makes the following incorrect statement:
“Although both defense and the prosecutor explained to him
more than once during their voir dire questioning to qualify
Juror Z that, if found guilty, Brown would never be released
from prison, Juror Z’s answers concerning his willingness to

15a

impose death in conformance with Washington law were
nonetheless confused.” Dissent at 6759. Putting aside the fact
that being “confused” is hardly the same as being unwilling to
follow the court's instructions, juror Z in fact stated
unequivocally and repeatedly that he could impose the death
penalty. Rather than “[qJoting selective portions of [the] voir
dire transcript,” id. at 6762, as the dissent does, see id. at 6759-
60 n.2, we provide the entire relevant transcript of the defense’s
voir dire:

Q. Were you aware before that Washington has got this
kind of sentence where it’s life without parole where you are not
ever eligible for parole?

A. I did not until this afternoon.

Q. That is the two options that the jury has if they
found the person guilty of premeditated murder beyond a
reasonable doubt plus aggravating circumstances beyond a
reasonable doubt. Do you think that you could consider both
options?

A. Yes, I could.

Q. Could you give me an idea sort of [how] you thought
about sort of the underlying reason why you think the death
penalty is appropriate, what purpose it serves, that kind of
thing?

A. I think if a person is, would be incorrigible and
would reviolate if released, I think that’s the type of situation
that would be appropriate.

Q. Okay. Now, knowing that you didn’t know before
when you were coming to those opinions about the two options
that we have here obviously somebody who is not going to get
out of jail no matter which sentence you give them if you got to
that point of making a decision about the sentence, does that
mean what I’m hearing you say is that you could consider either
alternative?

A. I believe so, yes.
And here is the prosecutor’s voir dire on this subject:

{Q.] I guess the reverse side of what yeu’re saying is, if
you could be convinced that he wouldn’t kill again, would you

l6a

find it difficult to vote for the death penalty given a situation
where he couldn’t kill again?

A. I think I made that statement more under [the]
assumption that a person could be paroled. And it wasn’t until
today that I became aware that we had a life without parole in
the state of Washington.

Q. And now that you know there is such a thing and
they do mean what they say, can you think of a time when you
would be willing impose a death penalty since the person would
be locked up for the rest of his life?

A. I would have to give that some thought. I really,
like I said, up until an hour ago did not realize that there was
an option of life without parole.

Q. And I realize this is put on you rather suddenly, but
you also recognize as someone who is representing the State in
this case, we have made the election to ask that the jury if he is
found guilty, ask that the jury vote for the death penalty.

And I’m asking you a very important thing and to
everyone in here, whether you, knowing that the person would
never get out for the rest of his life, two things. And they’re
slightly different. One, whether you could consider the death
penalty and the second thing I would ask you is whether you
could impose the death penalty. I’m not asking a promise or
anything.

But I’m asking you, first, could you consider it, and if
you could consider it, do you think under the conditions where
the man would never get out again you could impose it?

A. Yes, sir.

Q. So this idea of him having to kill again to deserve
the death penalty is someone that you are not firm on, you don’t
feel that now”?

A. I do feel that way if parole is an option, without
parole as an option. I believe in the death penalty. Like | said,
I’m not sure that there should be a waiting line of people
happening every day or every week even, but J think in severe
situations it’s an appropriate measure.

17a

misstated the law means nothing: If all prospective
jurors who did not fully understand the law before
the trial began were struck, only lawyers would be
allowed to serve on juries (and only a handful of
lawyers at that).

[9] Z's temporary misunderstanding of the
prosecution's burden of proof-he initially thought the
prosecution needed to prove guilt “beyond a shadow
of a doubt”-was also irrelevant; it would have been
easily corrected by the jury instructions, which Z
gave every indication he would follow. In fact, the
prosecutor himself conceded he was unconcerned
with Z’s confusion on this point:

THE COURT: Counsel, any challenge to this

Q. But in the situation where a person is locked up for
the rest of his life and there is no chance of him ever getting out
again, which would be the situation in this case, do you think
you could also consider and vote for the death penalty under
those circumstances?

A. I could consider it, yes.
Q. Then could you impose it?

A. I could if I was convinced that was the appropriate
measure.

It is true, as the dissent suggests, that we owe the trial
judge deference because of his ability to observe demeanor, but
demeanor can only shed light on ambiguous language; it cannot
contradict the witness's clear words. Here, juror Z's clear words
were that he could impose the death penalty and would follow
the court’s instructions; he never said anything to the contrary.
If appellate courts must defer to trial court findings on a
transcript such as this because a witness may somehow have
contradicted his spoken words through some unknown facial
expression or body language, not only is Witherspoon a dead
letter; but all substantial evidence review of trial court factual
findings is obsolete.

18a
particular juror?

[PROSECUTOR]: I would, your Honor, not on
the term beyond a shadow of a doubt, I think
he would certainly stick with the reasonable
doubt standard.

And when another juror expressed that she, too,
thought the burden of proof was “to a point of a
shadow of a doubt,” the trial judge dismissed her
confusion as unilluminating:

She doesn’t know technically what the
definition of beyond a reasonable doubt is. I
doubt that anybody in this room knows
technically what beyond a reasonable doubt
really means and even in your own mind... . I
was not so concerned with her responses of
beyond a shadow of a doubt or crystal clear. I
think that definitely could fit within the
definition of a reasonable doubt.

[10] Finally, Brown’s failure to object to juror
Z's removal at trial does not alter the Witherspoon
error analysis in this case. Brown raised the juror Z
claim on direct appeal, and the Washington Supreme
Court did not find the claim to- be waived or
procedurally barred. Nor does appellee allege that
the claim is waived or barred, or that it was not
exhausted in state court.

-*

9 The dissent from denial makes much of a defense
counsel's failure to object during voir dire to juror Z’s dismissal.
See dissent at 6755, 6756, 6762, 6767. According to the dissent,
defendant's lawyer could not ethically object because even he
must have recognized “that Juror Z was properly dismissed for
cause.” Jd. at 6762. We find it hard to believe that our
colleagues take such an ingenuous view of the realities of the
courtroom. As the dissenters must surely understand, defense

19a

11] In sum, excusing juror Z for cause was
directly contrary to Supreme Court precedent, as was
the Washington Supreme Court’s decision to uphold
the juror strike on direct appeal. See 28 U.S.C. §
2254(d)(1).!°

counsel declined to object because he was glad to get rid of juror
Z. After all, Z had described himself as pro-death penalty, and
reiterated numerous times, under oath, that he would be
willing and able to impose the death penalty. Defense counsel
must have thanked his lucky starts when the prosecutor
bumped Z.

We know for a fact that the dissent’s “scrupulous
defense counsel” theory has no basis in reality. As the dissent
recognizes, defense counsel did object vigorously to juror Y’s
dismissal for cause. See dissent at 6761-62. Juror Y, of course,
was the one who had described the death penalty as “barbaric”
and as “mak{ing] . .-. brutes of us all,” and had crossed her arms
and held her hand up when asked by the court whether she
could sentence anyone to death. See p. 6742 and no.4 supra. Y
was a far better juror for the defense than Z, which is why
defense counsel fought so hard to keep her on the jury and then
to have her reinstated. But Y had also disqualified herself
under Witherspoon. See p. 6742 supra. Under the dissent’s
contrived hypothesis, Brown’s lawyer would have felt morally
compelled to acquiesce in Y’s dismissal.

Of course, the fact that Brown’s attorney was glad to
see juror Z go would seem to make the trial judge’s error in this
case harmless. But, as we explain below, Witherspoon error is
structural. See section 3 infra.

1 The dissent from denial intones the mantra of Rice v.
Collins, 126 S. Ct. 969 (2006), but forgets that in Collins, the
state trial court made a factual finding that the juror had been
dismissed for race-neutral reasons, and the California Court of
Appeal upheld the dismissal based on that finding. See id. at
973. The Supreme Court reversed us because we “improperly
substituted [our] evaluation of the record for that of the state
trial court.” Jd. That is not what happened here. The
Washington Supreme Court in this case applied the wrong

20a

standard with respect to juror Z; it nowhere found that juror Z
could not follow his oath.

To compensate for the lack of a proper Witherspoon
finding, the dissent would impute to the state trial court a
finding it never made-one that it, indeed, could not have made
on this record-by suggesting that the trial judge must have
incorporated the prosecutor's objection: “Excusing Juror Z was
based upon the prosecutor's sole reason underlying the
objection-a finding that Juror Z could not follow his oath and
faithfully apply Washington's capital sentencing law. . . .”
Dissent at 6758. But the prosecutor's objection said nothing at
all about juror Z's ability or willingness to follow the juror's
oath. Here is exactly what the prosecutor said:

THE COURT: .. . .Counsel, any challenge to this
particular juror?

[PROSECUTOR]: I would, your Honor, not on the term
beyond a shadow of a doubt, I think he would certainly stick
with the reasonable doubt standard. But I think he is very
confused about the statements where he said that if a person
can't kill again, in other words, he’s locked up for the rest of his
life, he said, basically, he could vote for the death penalty if it
was proved beyond a shadow of. And | am certainly going to
concede that he means beyond a reasonable doubt. And if a
person kills and will kill again. And I think he has some real
problems with that. He said he hadn't really thought about it.
And I don't think at this period of time he's had an opportunity
to think about it, and I don't think he said anything that
overcame this idea of he must kill again before he imposed the
death penalty or be in a position to kill again. So, that is my
only challenge.

As can readily be seen, the prosecutor says nothing
about the juror's oath or whether juror Z will follow it. Rather,
the prosecutor concentrates (like the dissent) on the question of
whether juror Z would be willing to impose the death penalty if
the alternative were life without parole. And (like the dissent)
he gets it wrong. See n.8 supra. The prosecutor's reason for
striking juror Z comes only two pages after juror Z's statement,
yet stands juror Z's words entirely on their head. If the trial
judge uncritically incorporated the prosecutor's statement into

2la

{12} 3. Having found that juror Z was
erroneously excluded, it is unnecessary for Brown to

his ruling, as the dissent suggests, the trial judge simply
nodded.

The undisputable fact is there is nothing whatsoever in
juror Z's voir dire that lends the least support for the finding-
explicit or implicit-that he would not follow his oath. This is a
juror who listed himself as pro-death penalty in his juror
questionnaire and stated repeatedly under oath that he believes
in the death penalty. He did not perhaps show the kind of
bloodthirsty eagerness for its imposition that the prosecutor
may have preferred-juror Z did say he “would have to give [the
matter] some thought” and reserved the right to impose the
death penalty only when he “was convinced [it] was the
appropriate measure’-but there is nothing in his testimony that
could remotely support the view that he would not faithfully
follow the court's instructions. No degree of deference, nor
allowance for facial expressions and demeanor, can possibly fill
in what isn't there: the least indication that juror Z could not or
would not follow the law. If it were there, we are confident the
dissent would have quoted it.

Curiously, our dissenting colleagues themselves seem to
be confused about Washington’s death penalty jury
instructions. The dissent states: “There is no question that the
aggravated circumstances of this case-kidnapping, torture, and
the sadistic murder of the victim-would clearly warrant
application of the death penalty under Washington law.”
Dissent at 960 (emphasis added). Despite the law's insistence
that juries consider only mitigating circumstances in deciding
whether a defendant should be sentenced to death, see Wash.
Rev. Code. § 10.95.060(4); see also p. 6740-41 supra, the
dissenters are transfixed by the unquestioned heinousness of
Brown's crime. See dissent at 6763; see also id. at 6755 (“The
facts are sickening.”). The dissent even states that “[t}he trial
judge obviously had [the aggravated circumstances of this case}
in mind when dismissing Juror Z....” Jd. at 6763. Were this
true, of course, there would have been even more blatant
Witherspoon error; nothing in Witherspoon allows a judge to
take the atrociousness of the defendant's crime into account
when deciding whether to dismiss a juror for cause.

22a

demonstrate he was prejudiced by Z’s exclusion.
Prejudice is presumed. The Supreme Court has been
equally clear on this point:

[T]his Court in Davis surely established a per
se rule requiring the vacation of a death
sentence imposed by a jury from which a
potential juror, who has conscientious scruples
against the death penalty but who
nevertheless under Witherspoon is eligible to
serve, has been erroneously excluded for
cause....

. . . The instant case presents yet another
opportunity for this Court to adopt a
harmless-error analysis and once again we
decline to do so.

Gray, 481 U.S. at 659-60 (citing Davis v. Georgia,
429 U.S. 122, 123-24 (per curiam) (Rehnquist, J.,
dissenting)). Thus, Brown’s death sentence cannot
stand.!!

Ineffective Assistance of Counsel

Brown's final claim is that his attorney
provided ineffective assistance in various ways
during the sentencing phase of his trial. Were we
not granting habeas relief with respect to Brown’s
sentence for the reasons set forth above, this claim

'! We find no constitutional infirmity with Brown's
conviction. See Bumper v. North Carolina, 391 U.S. 543, 545
(1968) (holding that Witherspoon error requires setting aside a
death sentence, but is insufficient to require setting aside a
conviction); see also Gray, 481 U.S. at 668 (finding that a juror
was erroncously excluded from the jury in violation of
Witherspoon and Witt, and holding that “[t}he judgment of the
Supreme Court of Mississippi, insofar as it imposes the death
sentence, is reversed” (emphasis added))

23a

would merit significant attention. Should the state
choose to seek the death penalty again on remand,
however, Brown will have a new opportunity to
receive effective assistance of counsel. We therefore
need not reach this claim.

We also do not reach the newly certified issue
subsumed within Brown’s ineffective assistance of
counsel claim-whether the district court erred by
refusing to consider certain reports in its habeas
evidentiary hearing. We are reversing the district
court's decision regardless of whether it should have
admitted the evidence.

kkk

We reverse the district court’s judgment
denying the writ of habeas corpus and remand for
issuance of a writ with respect to Brown’s sentence,
unless within a reasonable time set by the district
court the state conducts a new penalty phase trial or
vacates Brown's death sentence and imposes a lesser
sentence consistent with law.

REVERSED IN PART; REMANDED.

TALLMAN, Circuit Judge, with whom
O'SCANNLAIN, KLEINFELD, CALLAHAN, and
BEA, Circuit Judges, join, dissenting from denial of
rehearing en banc:

Contrary to the _ provisions of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(codified as amended at 28 U.S.C. § 2241, et seq.), our
court overturns a fitting punishment for a just
aggravated murder conviction. To do it, our panel
impermissibly substitutes its own evaluation of the
trial judge’s discretionary ruling to dismiss a

24a

prospective juror for cause during jury selection in
this capital case, notwithstanding the inherent
limitations of a written transcript and the fact that
defense counsel stated immediately before the court
excised the prospective juror, “We have no
objection.” The opinion fails to give appropriate
AEDPA deference to the determination of the
Washington Supreme Court which approved the trial
judge's reasonable and more informed approach to
jury selection in qualifying the venire. I respectfully
dissent from the denial of rehearing en banc.

Rice v. Collins, 126 S. Ct. 969 (2006),
reiterates our limited role and authority under
AEDPA by recognizing the need for highly
deferential review of a trial court's decisions in jury
selection because of the constraints of a printed
record, which may not adequately portray what
happened in the courtroom during voir dire. Even
under the standard developed in Gray v. Mississippi,
481 U.S. 648 (1987), for reviewing jury selection in
death penalty cases, we still must afford deference to
the trial court's determination that a potential juror
would be “substantially impairfed in] the
performance of his duties as a juror in accordance
with his instructions and his oath.” Jd. at 658
(quoting Wainwright v. Witt, 469 U.S. 412, 424
(1985)). The defense expressly declared that it had
no objection when the prosecutor moved to dismiss
the venireman for cause. Nor did the defense later
ask the court to reconsider his dismissal as it did for
another prospective juror, who was also excused from
jury service for cause. Overturning the appropriate
sentence in this heinous case is legally unwarranted
and nonsensical.

25a
I

The facts are sickening. Brown kidnaped at
random a woman who had just finished her shift as a
hotel desk clerk near the Seattle-Tacoma
International Airport. He stripped, bound, and
gagged her, then proceeded to rape, sodomize, and
slowly torture her over a two-day period before
killing her in a manner which was anything but
quick and painless. He was captured in Palm
Springs, California, where he had continued his
sadistic crime spree by taking captive yet another
victim. The Palm Springs victim escaped her bonds
to summon police and lived to testify against Brown.

During jury selection in Washington’s King
County Superior Court an experienced trial judge
dismissed a prospective juror, Juror Z, for cause after
he equivocated on whether he could impose the death
penalty in conformance with Washington law by
suggesting that he thought the punishment should
be limited to those cases where the defendant was
likely to re-offend. Juror Z was examined about that
view. After both sides took the opportunity to lead
the venireman through the questioning of his views,
and after the judge had also asked questions of him,
the prosecutor challenged Juror Z’s qualification to
serve based on his erroneous beliefs about the death
penalty under Washington law. The defense
answered, “We have no objection.” The trial judge
then excused Juror Z for cause. On appeal, the
Washington Supreme Court rejected the argument
that Juror Z should not have been excused and
affirmed the ruling of the trial court.

Our court’s opinion labels the Washington
Supreme Court’s reasons for affirming the dismissal

26a

“misplaced and insufficient.” Opinion at 6746. But
the panel determined solely by reading the
transcript, and contrary to the findings of both state
courts, that Juror Z was in fact able to follow the law
and could impose the death penalty in proper
situations. Jd. at 6746, 6749-51. In doing so, our
opinion erroneously holds that the Washington
Supreme Court made a decision that was both
contrary to clearly established federal law, as
determined by the Supreme Court in Gray, and was
based on an unreasonable determination of the facts
in light of the record. Id.; see 28 U.S.C. § 2254(d).
Yet to reach this result under AEDPA, the dismissal
must have been both objectively unreasonable in that
“the state court was not merely wrong, but actually
unreasonable,” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004), and the “state court [must have]
confront[ed] a set of facts that are materially
indistinguishable from a decision of [the Supreme
Court] and nevertheless arrive{[d] at a_ result
different from [Supreme Court] precedent,” Williams
v. Taylor, 529 U.S. 362, 406 (2000). Neither is the
case.

II

In Gray, the Supreme Court reversed a
Mississippi Supreme Court decision which held that
it was harmless error for a state court to dismiss a
potential juror for cause after the juror said she
could impose the death penalty notwithstanding her
views in opposition to it. 481 U.S. at 667-68. The
Court concluded that, unless “the juror's views would
prevent or substantially impair the performance of
his duties as a juror in accordance with his
instructions and his oath[,]” the trial court may not
dismiss a potential juror in a death penalty case for

27a

cause. Jd. at 658 (internal quotation marks and
citation omitted). This determination is not subject
to harmless error review. Id. at 660.

Unlike here, the trial judge in Gray explicitly
found that the potential juror, Mrs. H.C. Bounds,
was capable of voting to impose the death penalty,
but granted the dismissal anyway. Jd. at 653-55.
Bounds stated unequivocally that she could impose
the death penalty without demurrer. See id. at 653
n.5. Nevertheless, even if Bounds had expressed
hesitation, the Supreme Court held that a death
penalty verdict must be vacated when “a potential
juror, who has conscientious scruples against the
death penalty but who nevertheless ... is eligible to
serve, has been erroneously excluded for cause.” Id.
at 659.

Still, under Gray, it is permissible to remove
from the venire “those jurors who would frustrate the
State's legitimate interest in administering
constitutional capital sentencing schemes by not
following their oaths.” Id. at 658 (quoting
Wainwright, 469 U.S. at 423)(internal quotation
marks omitted). Since judges of the Washington
Superior and Supreme Courts and a United States
District Judge all found that Juror Z articulated an
erroneous standard for imposing a sentence of death
under state law, how can three federal judges on
appeal now say, on this record, that it was objectively
unreasonable for those courts to conclude that he
could not follow the juror's oath? Excusing Juror Z
was based upon the prosecutor's sole reason
underlying the objection-a finding that Juror Z could
not follow his oath and faithfully apply Washington’s
capital sentencing law. primarily because of his
confusion and uncertainty, as reflected throughout

28a

the entire voir dire, about when he should
appropriately consider the death penalty.!

While our opinion cites to the guidelines set
forth in Gray, it fails to accord those guidelines the
AEDPA deference due to a_ state court’s
determination as to which jurors are “substantially
impaired.” On the record before our panel, the trial
judge’s dismissal of Juror Z could not be interpreted
as “objectively unreasonable,” nor is the factual
situation in Gray sufficiently similar to conclude that
the trial. court’s dismissal was contrary to the rule
announced in Gray. The dismissal was simply a
reasonable judgment call made by the only judge
who actually saw and heard Juror Z during voir dire.
There is no showing on the record that the trial judge
or the Washington Supreme Court misapplied
United States Supreme Court precedent. As the
United States district judge so aptly observed in
denying habeas relief on this ground, “Even if this
Court would not have dismissed the jurors for cause,
it cannot substitute its judgment for that of the state
courts.” Yet our panel does just that. The real
question then is whether the Washington Superior
and Supreme Courts made an_ objectively
unreasonable determination of the facts in light of
the record. They did not.

Juror Z stated several times that his ability to
impose the death penalty was dependent on whether

1 What the prosecutor said to support the motion to
excuse Juror Z was, in relevant part:

I don't think he said anything that overcame this idea of
he must kill again before he imposed the death penalty
or be in a position to kill again. So, that is my only
challenge.

29a

the defendant was likely to re-offend, which is not
the standard for imposition of the death penalty in
an aggravated murder case under Washington law.
See WASH. REV. CODE § 10.95.060(4). Although
both defense counsel and the prosecutor explained to
him more than once during their voir dire
questioning to qualify Juror Z that, if found guilty,
Brown would never be released from prison, Juror
Z's answers concerning his willingness to impose
death in conformance with Washington law were
nonetheless confused.2 The trial judge explained

2 Defense counsel explained to Juror Z that the jury
vould consider two sentencing options should Brown be found
guilty-life without parole and the death penalty. At this point,
Juror Z stated that he could consider both options. However,
Juror Z then explained that he believed the death sentence
would be appropriate if a person “would be incorrigible and
would reviolate if released.” Defense counsel once again
explained the idea of life without parole, and Juror Z again said
he could consider both options.

Shortly thereafter, this exchange occurred between
defense counsel and Juror Z:

Q. Understanding that the two options there are life
without parole or the death penalty, there is not a lot of
likelihood that people are going to spend a lot of time
talking about whether or not they're going to kill again
in the sentencing phase of this case. Is that going to
make you frustrated? Are you going to want to hear
about things like that, about people's opinions in the
penalty phase?

A. I'm not sure.

Even after defense counsel explained that Brown would
receive either life without parole or the death penalty if found
guilty, and after Juror Z claimed he could consider both options,
he still misstated Washington law. While the prosecutor was
questioning Juror Z about his incorrect perception of the
standard of review (“beyond a shadow of a doubt” instead of
“beyond a reasonable doubt’), the following exchange occurred:

30a

twice to potential jurors, prior to Juror Z's voir dire,
that life without parole was an option that the jury

Q. So, I want to ask you, the thing that bothers me, is
the idea beyond a shadow of a doubt. The law says
beyond a reasonable doubt and it will be explained to ~
you what it actually means. But I want to assure you it
doesn't mean, I don't believe the Court would instruct
you it means beyond all doubt or beyond any shadow of
a doubt. Knowing that, would you still require the State
to prove beyond a shadow of a doubt that the crime
occurred knowing that the law doesn't require that
much of us?

A. I would have to know the, I'm at a loss for the words
here.

Q. You can ask me any questions, too, if you need some
clarification.

A. I guess it would have to be in my mind very obvious
that the person would reoffend.

A little while later, the prosecutor once again explained
that life without parole was a sentencing option should Brown
be found guilty. The prosecutor asked, “[C]an you think of a
time when you would be willing to impose a death penalty
since the person would be locked up for the rest of his life?”
Juror Z responded:

“I would have to give that some thought. | really, like |
said, up until an hour ago did not realize that there was
an option of life without parole.”

Contrary to the panel's assertion that Juror Z
“unequivocally stated that he would be able to consider and
impose the death penalty,” Juror Z in fact exhibited quite a bit
of confusion and equivocation through his uncertain answers as
to when he would be willing to impose the death penalty. Juror
Z saying in one breath that he could follow the law, and then in
the next breath misstating the law, is not an unequivocal
declaration that “he would be able to consider and impose the
death penalty” as required under Washington law.

3la

could consider. However, even after multiple
explanations by the judge, prosecutor and defense
counsel, Juror Z did not grasp, nor could he be
certain about, the appropriate circumstances in
which as a juror he would consider imposing the
death penalty. The prosecutor correctly summarized
his answers, saying, “I think he is very confused
about the statements... .” Juror Z stated at times
that he could follow the law, but also stated he would
“have to give it some thought” once he knew that
Brown would not be paroled if found guilty. It was
not unreasonable for the trial judge to conclude that,
unlike juror Bounds in Gray, Juror Z was unfit to
serve because of his indecisiveness, suggesting his
inability to properly follow the court’s instructions
and apply the law. ;

Washington law does not ask the jury during
the sentencing phase of a death penalty case to

3 On October 25, 1993, the trial judge instructed half
the potential jury pool, including Juror Z, on Washington death
penalty law. Specifically, the judge explained that the jury
“would ... retire to determine whether the death penalty should
be imposed or whether the punishment should be life
imprisonment without the possibility of parole.” He further
stated that, “[iJn making that determination, [each juror] would
be asked the following question: Having in mind the crime of
which the defendant has been found guilty, are you convinced
beyond a reasonable doubt that there are not sufficient
mitigating circumstances to merit leniency?”

Furthermore, on November 3, 1993, when Juror Z was
brought back for individual questioning, the trial judge
informed all potential jurors that “[i]t is the State's burden to
prove to [the jury] beyond a reasonable doubt the appropriate
penaity, since there are only two penalties a jury could return,
one is prison without the possibility of release or parole.” He
reiterated, “that literally means exactly that, a true life in
prison without release or parole, or the penalty of death.”

32a

consider whether the defendant would re-offend.
Instead, it asks the jury whether it is convinced
“beyond a reasonable doubt that there are not
sufficient mitigating circumstances to merit
leniency[.}!” WASH. REV. CODE § 10.95.060(4).
This standard says nothing about proclivity to
reoffend. It was not error for the judge to decide that
Juror Z could not honestly abide by his oath to follow
the law as imstructed. The panel ignores the
deferential AEDPA standard of review it must accord
the Washington courts when it declares that any
finding that Juror Z was impaired would be
unreasonable.

Il

Conspicuous by its absence is any motion by
the defense during voir dire to challenge or
reconsider the determination to remove Juror Z.
Defense counsel did move in_ writing for
reconsideration of the trial court's dismissal] for cause
of Juror Y, an attorney who had expressed strong
reservations about the death penalty, although
stating that she thought she could consider it if
required. Brown filed his mid-voir dire motion to
recall Juror Y or declare a mistrial and qualify a new
jury panel because Brown felt that Juror Y was
erroneously dismissed for cause. A few days later,
Brown also filed a motion to reconsider the trial
court's denial of challenges for cause regarding two
other venireman who favored-imposition of the death
penalty. But there was no motion regarding Juror Z.
Nor has Brown ever claimed defense counsel's
actions during voir dire in letting Juror Z be excused
from service constituted ineffective assistance of
counsel.

33a

Quite clearly those who had the opportunity to
watch Juror Z’s testimony, including the trial judge,
the prosecution, and defense counsel, both during
and after questioning him on voir dire, felt that
Juror Z was properly dismissed for cause. Our panel
nonetheless has held, after reviewing only the
written record of Juror Zs oral voir dire, that such a
determination is or would be _ objectively
unreasonable. Given the substance of the entire
record, and the constraints of our limited role as a
federal habeas court, the panel has overstepped its
authority under AEDPA. Congress surely intended
through enacting AEDPA to end the practice by some
federal judges of granting habeas relief to overturn
state capital cases on rulings that even the parties
did not urge to be erroneous when trying their case.

IV

Quoting selective portions of a voir dire
transcript to support a particular view of the trial
court's performance ignores the reality of jury
selection. The voir dire process is far more complex
than a simple reading of a transcript. In some cases,
it will be crystal clear that a particular venireman is
eligible to serve on a jury, but this is not one of those
cases. Experienced trial lawyers know that there are
intangible factors that influence the decision to
accept or reject prospective jurors which cannot be
reduced to written text in a cold record. There is no
question that the aggravated circumstances of this
case-kidnaping, torture, and the sadistic murder of
the victim-would clearly warrant application of the
death penalty under Washington law. The trial
judge obviousiy had this in mind when dismissing
Juror Z after his repeated statements that he would
impose the death penalty only if convinced that

34a

Brown would likely’ re-offend, a condition
Washington law does not require to impose a
sentence of death.

Juror Z wavered back and forth between
claiming to understand what he was being told about
when the Washington capital sentencing law applied,
yet he reiterated his erroneous belief that death was |
applicable only for recidivists. The transcript
reflects that he seemed easily led by both the
prosecution and defense counsel into declaring an
understanding that everyone in the courtroom
recognized he simply did not have. This is why
deference to the trial court and the fact that neither
party wanted this juror are important considerations
in applying AEDPA’s “objectively unreasonable”
standard of review. A trial judge will note pauses,
hesitations, and non-verbal expressions (body
language) that will factor into his decision to dismiss
a potential juror:

The way they use their hands, their eyes, their
facial expression, their frankness or hesitation
in answering, are all matters that do not
appear in the transcribed record of the
questions and answers. They are available to
the trial court in forming its opinion of the
impartiality and fitness of the person to be a
juror.

State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190
(1991), quoting 14 L. Orland & K. Tegland, WASH.
PRAC.. Trial Practice § 202, at p. 332 (4th ed. 1986).
In denying Brown's motion to reconsider dismissing
for cause Juror Y, the trial judge explained how he
analyzed potential jurors to determine whether they
are substantially impaired:

35a

[T]here is not any one particular response
from any one of these jurors | think that is
definitive for the most part. It’s more of a
total overall impression from everything that
they have said. With [Juror Y] I guess what
was most convincing was her body posture, the
things that were unsaid because of the fact of
the way she crossed her arms, sat back and
what she was telling us at that point in time.

The “determinations of juror bias cannot be
reduced to question-and-answer sessions which
obtain results in the manner of a catechism,”
Wainwright, 469 U.S. at 424, yet our Brown panel
does just that. Rather than respecting the trial
judge’s more informed interpretation of Juror Z’s
demeanor, tone, and words, our panel substitutes its
view, based solely on the written record, to form its
own interpretation. There is a reason AEDPA
requires that appellate courts give appropriate
deference to trial courts during voir dire:

Despite [the] lack of clarity in the printed
record - there will be situations where the
trial judge is left with the definite impression
that a prospective juror would be unable to
faithfully and impartially apply the law... .
[T]his is why deference must be paid to the
trial judge who sees and hears the juror.

Id. at 425-26. This case trenchantly illustrates the
need for such deference.

Rice v. Collins reiterates that such deference
is required when a trial court finds cause for juror
bias. In Collins, the petitioner brought a Batson
challenge to a peremptory strike of a young African-
American woman, Juror 16, who the prosecutor

36a

believed did not have sufficient ties to the
community because of her youth, and who may have
been too tolerant of the crime with which the
respondent was charged. 16 S. Ct. at 973. The
California Court of Appeal upheld the trial court's
ruling on the peremptory challenge to credit the
prosecutor's race-neutral explanations for striking
Juror 16. Id. The district court dismissed Collins's
habeas petition with prejudice. Jd. We reversed,
concluding that the state appellate court made an
unreasonable factual determination in crediting the

prosecutor's race-neutral reasons for striking Juror
16. Id.

In a unanimous decision, the Supreme Court
reversed us. It held that, although we recited the
proper standard of review under 28 U.S.C. §
2254(d)(2), “the panel majority § improperly
substituted its evaluation of the record for that of the
state trial court.” Jd. “State-court factual findings . .
. are presumed correct [and] the petitioner has the
burden of rebutting the presumption by ‘clear and
convincing evidence.” Id. at 974 (quoting 28 U.S.C. §
2254(e)(1)). Juror 16 replied affirmatively when
asked whether she believed that the crime with
which the respondent had been charged should be
illegal, and disclaimed any other reason she could
not be impartial. Jd. at 975. However, the Court
determined that even if “the prosecutor [still]
claimed to hold [race-neutral] concerns despite Juror
16's voir dire averments[, this] does not establish
that she offered a pretext.” Jd. In other words, the
prosecutor did not have to accept the voir dire
statements of Juror 16 when there were other race-
neutral grounds for the peremptory challenge.

Here, the Brown panel seizes upon Juror Z’s

37a

statement that he would be able to consider the
option of the death penalty as a basis for its
determination that the prosecutor's reason for
striking Juror Z, and the trial court’s willingness to
credit that reason, was objectively unreasonable. But
Juror Z’s willingness to impose the death penalt:
was accompanied by his indecisiveness and aii
expressed viewpoint which, if followed, would result
in the misapplication of Washington law. Rather
than examining piecemeal the individual statements
of Juror Z, the trial judge could appropriately
consider Juror Z’s inconsistent statements and his
uncertainty as reflected throughout the entire voir
dire process as a reasonable basis for his exclusion.
Under Collins, the trial judge did not have to accept
Juror Z's isolated declarations that he could follow
the law if the totality of Juror Z's voir dire
examination reflected his general confusion and
indecisiveness about the proper application of the
death penalty.

“Reasonable minds reviewing the record might
disagree about the prosecutor's credibility, but on
habeas review that does not suffice to supersede the
trial court's credibility determination.” Jd. at 976.
Although some might find that Juror Z had eschewed
and rejected his prior improper basis for application
of the death penalty, a reasonable mind could just as
easily find that he had not eschewed and rejected
that basis. The trial judge, as trier of fact on
challenges during voir dire, is ercitled to the same
latitude as a jury determining the credibility of trial
witnesses when judging whether a potential juror is
able to serve. The superior court judge had the
responsibility of weighing Juror Z’s_ various
inconsistent statements to determine Juror Z's true

38a

ability to faithfully perform his duties as a juror by
applying Washington law. He had the opportunity to
watch the prospective juror testify; we did not.

V

Finally, the Washington Supreme Court need
not explicitly declare that Juror Z was “substantially
impaired” for its affirmance to count under AEDPA.
True, the appellate court did not incant the words
“substantially impaired.” But based upon the rulings
of both the trial and appellate courts, and the record
in this case, we can certainly conclude that the
Washington courts found appropriate the decision to
excuse Juror Z on the only ground proffered by the
prosecutor-that he could not discharge his oath as a
juror to follow state death penalty law. While the
record may be susceptible to different interpretations
by reasonable jurists, AEDPA demands that we must
be able to conclude that the decision was “objectively
unreasonable” to grant relief. That standard is
simply not met here.

By listening to the voir dire statements of
Juror Z, watching how he answered specific
questions during voir dire, considering’ the
prosecutor's reason for wanting to dismiss Juror Z for
cause, and hearing the defense state that it had no
objection to the motion, the trial judge implicitly
found that Juror Z was “substantially impaired” by
excusing him for cause. Nothing more is required.
See Wainwright, 469 U.S. at 430. The Supreme
Court in Wainwright said that in making rulings on
voir dire objections, the judge is not “required to
announce for the record his conclusion that [the
potential juror] was biased, or his reasoning,” when
“tlhe finding is evident from the record.” Jd. It is

39a

especially telling when the defendant does not object
to the dismissal, as was the case when Brown’s
lawyer rose before the court and expressly stated
that she had no objection to excusing Juror Z.

We must afford the same presumption of
correctness to the Washington Supreme Court in
reviewing the trial court's factual determination of
juror bias. See Tinsley v. Borg, 895 F.2d 520, 526
(9th Cir. 1990) (“Even though the state appellate
court is, in a sense, in no better position than we are
to evaluate the state trial court record, [the habeas
statute] requires us to accord the same presumption
of correctness to its factual findings.”). Specifically,
the Washington Supreme Court concluded in
reference to Juror Z's voir dire:

Appellant did not object at trial to the State's
challenge of [Juror Z] for cause. At any
rate,[Juror Z] was properly excused. On voir
dire he indicated he would impose the death
penalty where the defendant “would reviolate
if released,” which is not a correct statement of
the law. He also misunderstood the State's
burden of proof in a criminal case and
understood it to be “beyond a shadow of a
doubt,” although he was corrected later. The
trial court did not abuse its discretion in
excusing [Juror Z] for cause.

Washington v. Brown, 940 P.2d 546, 585 (Wash.
1997).

Whether or not the Washington Supreme
Court intoned the magic words, “substantially
impaired,” it affirmed the trial court because of Juror
Z's erroneous belief about when the death penalty
should be applied under Washington law. By doing

40a

so, it impliedly determined Juror Z would be
substantially impaired in his duties as a juror to
follow the law by holding that he was properly

dismissed for cause.
VI

This opinion unfairly rids the trial court of the
discretion it must necessarily possess in determining
juror bias in death penalty cases. Ostensibly, Brown
stands for the proposition that if the written record
is not absolutely and explicitly clear as to whether a
dismissed juror could not correctly deliberate on
imposition of the death penalty, we must vacate the
death sentence if that juror was _ nonetheless
dismissed by the judge who watched him respond to
the questions on voir dire without defense objection.
That is simply not the way the Supreme Court has
directed us to review jury selection under AEDPA,
even after Gray. See Collins, 126 S. Ct. at 973-75;
supra, § IV. Indeed, Wainwright declared prior to
Collins that deciding.to dismiss a potential juror
“does not require that a juror’s bias be proved with
unmistakable clarity.” 469 U.S. at 424 (internal
quotation marks omitted). While we do not and will
not rubber stamp on habeas review juror dismissals
in death penalty cases, AEDPA surely requires more
deference to the Washington courts than that paid by
our court in this one.

Finally, this opinion impermissibly lowers the
level of deference which comity demands that we as a
federal habeas court afford state courts in reviewing
their decisions and findings of fact. Brown’s lower
standard of “reasonableness review” severely
handicaps a trial judge's ability to go beyond the
scope of mere words and phrases taken piecemeal

4la

from the entire voir dire process. This new standard
ignores the need for litigants and the trial judge to
interpret the prospective venireman's answers,
considering them along with body language and
demeanor. Because AEDPA, as reinforced by the
Supreme Court, commands greater comity when
federal courts review these kinds of practical
decisions by experienced state judges in capital
cases, I respectfully dissent from our court's
unwillingness to rehear this case en banc.

42a
United States District Court
WESTERN DISTRICT OF WASHINGTON

CAL COBURN BROWN
v. JUDGMENT INA
CIVIL CASE
JOHN LAMBERT
CASE NUMBER:
C01-715C

__ Jury Verdict. This action came before the Court
for a trial by jury. The issues have been tried and
the jury has rendered its verdict.

X Decision by Court. This action came to trial or
hearing before the Court. The issues have been tried
or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED THAT
Petitioner's Amended Petition for Writ of Habeas
Corpus is DENIED in its entirely.

September 16, 2004 BRUCE RIFKIN
Clerk
s/L. Simle

By, Deputy Clerk

43a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON |
AT SEATTLE

CAL COBURN BROWN
Petitioner, Case No. C01-715C

v. ORDER
JOHN LAMBERT,

Respondent.

INTRODUCTION

This matter comes before the Court on
Petitioner's Amended Petition for Writ of Habeas
Corpus (Dkt. No. 56). The Court has considered the
Petition and Answer (Dkt. No. 60), in addition to
Petitioner's and Respondent's Closing Arguments
and Reply Briefs (Dkt. Nos. 148-49, 152, 154), and
the balance of the record. For the following reasons,
Cal Coburn Brown’s Petition for Writ of Habeas
Corpus is hereby DENIED in its entirety.

BACKGROUND

Petitioner is currently in the custody of the
Washington Department of Corrections pursuant to
his December 10, 1993 conviction and January 28,
1994 sentence of death for the aggravated first
degree murder of Holly Washa. The events giving
rise to Petitioner’s conviction are lengthy and involve
incidents involving two women in both Washington
and California.! The facts, as in all death penalty

1 In addition to Ms. Washa, the facts also refer to Ms.
Susan Schnell, whom Petitioner assaulted in California. It was

44a

cases, are gut-wrenching and gruesome. On one
hand a repetition of these details seems unnecessary,
and indeed inflammatory, since a more thorough
recitation of the facts can be found in State v. Brown,
940 P.2d 546 (1997), cert. denied, 523 U.S. 1007
(1998), and since this Court’s analysis focuses more
on the state court’s application of the law than on
any factual issue. However, the Court finds that it is
necessary to relate the details of Petitioner’s crimes
here as they provide the necessary backdrop for
several of Petitioner's claims, particularly his
ineffective assistance of counsel claim. The Court
thus includes the following description of Petitioner’s
crimes, as recounted by the Washington Supreme
Court:

On May 27, 1991, Memorial Day, King County
police, following a telephone call from police
detectives in Palm Springs, California,
discovered the body of a twenty-one-year-old
woman, Ms. Holly C. Washa, in the trunk of
her 1985 blue Oldsmobile automobile parked
in space 266 of a Budget Park and Ride lot
near the Seattle-Tacoma Airport. She was
wearing a leather jacket covered with blood,
and the strap of her purse was tied and
knotted tightly around her neck. The strap
was sunken into the cavity of a deep slash
wound across her neck.

[...]

Ms. Schnell’s call to the Palm Springs police that was
instrumental in Brown’s arrest and subsequent confession as it
relates to Ms. Washa. The facts, as they relate to Petitioner's
connection to Ms. Schnell, are omitted from this Court's
discussion.

45a
[Appellant Brown’s] Statement to Police

On May 27 and 28, 1991, Appellant made
statements to police detectives in Palm
Springs, California in three interviews which
were recorded without his knowledge. In his
statements he related in calm, deliberate,
clear, graphic and specific detail a narrative of
his activities, with few questions from the
detectives, who courteously allowed him to
relate his story. [Footnote omitted.] His
statements may fairly be characterized as
admissions or confessions. [Footnote omitted. ]

On the morning of May 23, 1991, Ms. Holly C.
Washa was at the Wyndham Garden Hotel
near the Seattle-Tacoma Airport where she
had just quit her part-time job. As she was
driving out of the parking lot in her 1985
Oldsmobile, Appellant pointed to one of the
tires on her automobile suggesting something
was wrong. She stopped. Appellant then
forced then forced his way into her automobile,
stuck a knife [footnote omitted] in her face,
and grabbed her by the hair. He demanded
that she “drive or die,” and began rummaging
through her purse for money. Finding only a
small amount of change, he looked at her
checkbook. He then forced her to write a
check for $350.00, the entire balance in her
checking account. They went through the
drive-up window at a Seafirst Bank in Federal
Way and cashed the check. Then they went to
the Seattle waterfront area where Appellant
tied Ms. Washa’s hands behind her back with
her purse strap and forced her into the
passenger seat of her automobile. He asked

46a

her several questions concerning her schedule
on a typical day, who her roommates were and
what they did. [Ex. 89, tape 1, side 2.] He
then purchased some handcuffs at a gun shop
while leaving Ms. Washa tied up in the
automobile. [Ex. 89, tape 2, side 1.]

After purchasing the handcuffs, Appellant
took Ms. Washa back to his room at the
Shadow Motel where he paid for an extra
night. He demanded that she remove all her
clothing, after which he tied her to the bed
with his neckties and her purse strap. He cut
up her shirt and stuffed it into her mouth for a
gag. He then ordered her to get dressed again
and took her to get something to eat. While at
a Burger King drive-through, he held the knife
in a threatening position where she could see
he might use it. Upon their return to the
motel room, he ordered her to remove her
clothing and lie face down on the bed. He also
told her not to scream or do anything.
Appellant said Ms. Washa began fellating him,
which he took as her consent for sexual
activity. [Ex. 89, tape 1, side 2.]

Appellant then engaged in sexual intercourse
with Ms. Washa for about two hours, during
which time he noticed she was looking at the
door and possibly thinking of escape.
Appellant decided it was time “to have a little
control, . . . make her a little more scared of
me, basically.” He then tied her in a face up,
spread eagle position, with her hands behind
her back and her mouth gagged, and whipped
her “maybe half a dozen times... .” [Ex. 89,
tape 2, side 1.]

47a

Appellant allowed Ms. Washa to get dressed
again, tied her hands behind her back, and
drove her to Federal Way for pizza. When
they returned to the motel, Appellant again
forced her to undress and tied her to the bed in
a face down, spread eagle position with her
hands tied behind her back. He then had
sexual intercourse with her again. At about
11:00 p.m. that evening, he telephoned Ms.
Susan J. Schnell in California to reconfirm
their weekend plans in Palm Springs. After
that, he crawled into bed with Ms. Washa,
who was still bound and gagged, and they
“dozed.” [Ex. 89, tape 2, side 1.]

The next day, Friday, May 24, 1991, Appellant
forced Ms. Washa to drive him to her
apartment where he hoped to find checks
belonging to her roommates that he could
forge. He found some checks and attempted to
cash them in $500.00 amounts, but was
thwarted when the banks wanted to compare
signatures with signature cards on file.
Appellant became irritated with Ms. Washa
when the check-cashing plan did not go as he
had hoped. She began to drive somewhat
erratically, making him even angrier. [Ex. 89,
tape 2, side 1.]

When they returned to the motel, Appellant
again tied Ms. Washa to the bed face down in
a spread eagle position with her hands
handcuffed behind her back and her mouth
gagged with a washcloth. He penetrated her
vaginally and anally with an aftershave lotion
bottle. [Ex. 89, tape 2, side 2.| He shaved her
pubic hair and held a hot hair dryer close to

48a

her vagina, breasts and stomach. He also
shocked her by using an electric extension cord
with the end cut off. He described these acts
as “torture” and acknowledged that the
electric shock was particularly painful. [Ex.
89, tape 1, side 2.]

At 8:45 on the evening of May 24, 1991,
Appellant left for the Seattle-Tacoma Airport
to embark on his trip to California. He forced
Ms. Washa into the trunk of her blue 1985
Oldsmobile automobile with her hands
handcuffed behind her back and drove to the
Doug Fox Travel Agency parking lot where he
momentarily parked the automobile. Because
shuttle buses were driving around the lot,
Appellant was concerned that someone might

: discovery Ms. Washa since “she could just
bang and clang and crunch and scream and be
out very quickly.” [Ex. 89, tape 2, side 1.] He
then went to the trunk and cut her throat with
“three swipes” and stabbed her several times
in the chest and abdominal areas. [Ex. 89,
tape 3, side 1.] Because Ms. Washa’s blood
began leaking -from the trunk of the
automobile, Appellant moved from the Doug
Fox lot to the Budget Park and Ride lot near
Shumsky’s Restaurant in the airport area. He
told detectives:

I was going to do her at one place and
leave here there and the blood started
coming out from underneath the car....
So I panicked and left that place and
drove around to a different place...
with all the rain and stuff it would just
wash away and it wouldn't show.

49a
[Ex. 89, tape 1, side 2.]

Appellant told detectives he killed Ms. Washa
because he did not want to leave any
witnesses alive. He also told them he
kidnapped her because he needed money to
get to California and “didn’t like the idea of
waltzing into a bank with my face, you know,
all over the place.” He also stated he was
“going to rob somebody and let ‘em go but then
I just realized .. . after I did it that it would
just be the same as waltzing into a bank and
have my picture taken.” [Ex. 89, tape 1, side
2.]

Appellant also told his Oregon parole officer,
Larry Wibbenmeyer, in a _ telephone
conversation on May 28, 1991 that he took Ms.
Washa’s life at the last minute. He described
his actions as resulting from “panic.”

Events in California

[...]

After being processed by the Palm Springs
police, Appellant was interviewed by Detective
-Mark Harvey and his partner, Detective Al
Franz. Three interviews took place between
May 27 and May 28, 1991, with the first two
initiated by the detectives and the third
initiated by Appellant. Before each interview,
Appellant was read his Miranda rights, stated
he understood them, and agreed to talk with
the detectives. Each interview was tape
recorded without Appellant’s knowledge or
consent. During the first interview, Appellant
in specific detail admitted his attack upon Ms.
Schnell. Later in that interview, he admitted

50a

killing Ms. Washa before coming to Palm
Springs. He told the detectives where the
killing took place in Washington and where
Ms. Washa’s automobile could be found. The
Palm Springs police immediately contacted
King County police who dispatched local
officers to the Budget parking lot near the
Seattle-Tacoma Airport where they located the
1985 blue Oldsmobile in space 266 with Ms.
Washa’s body in the trunk. Appellant still had
the keys to Ms. Washa’s automobile in his
possession. [...]

Corroborating Evidence

King County Medical Examiner Donald T.
Reay, M.D. performed an autopsy on Ms. Holly
C. Washa. He concluded her death was caused
by an extensive incised wound to her neck and
strangulation by a ligature with a very rigid
knot. He also noted that both stabbing and
slicing occurred in the throat, requiring at
least two motions to inflict the incised wound.
It was his opinion that the hemorrhages in her
eyes indicated the strangulation occurred first.

In addition to the lethal injuries, Dr. Reay
described other trauma to Ms. Washa’s body.
Her pubic hair had been shaved. Her face was
severely bruised. Both the insider and outside
of her vaginal area were bruised. There was
also bruising around her anus. The vaginal
and anal injuries’ indicated forcible
penetration with a hard object consistent with
an aftershave bottle belonging to Appellant
found in his Palm Springs hotel room. Her
nipples showed abrasions and a linear pattern

Sla

of bruising consistent with being whipped by a
belt or cord. Similar bruising was found on
her inner thigh, which also indicated
whipping. Her feet and ankles were covered
with bruises consistent with having been
restrained. Her chest and abdomen had
multiple stab and slicing wounds. An
“irregular blemish-like area of red drying” on
her inner thigh indicated burning. The stab
wounds were consistent with the knife blade of
the Leatherman tool Appellant had in his
pocket when he was arrested. [FN 17]

FN 17. The State also presented
corroborating witness testimony and
physical evidence. See Br. Of Resp’t at
24-27.

Appellant was charged by information on June
11, 1991 in the King County Superior Court
with aggravated murder in the first degree.
He was arraigned on February 26, 1992. A
notice to determine whether the death penalty
should be imposed was filed on March 24,
1992. He was tried by jury before the
Honorable Ricardo S. Martinez. The trial
began with jury selection on October 25, 1993.
Guilt phase testimony began on November 30,
1993. On December 10, 1993, the jury
returned a verdict of “guilty” of premeditated
murder in the first degree, finding that
Appellant committed the murder to conceal
commission of a crime or to protect or conceal
his identity; and found aggravating
circumstances of robbery in the first or second
degree, rape in the first or second degree and
kidnapping in the first degree. The penalty

52a

phase of the trial began on December 15, 1993,
and on December 27, 1993, the jury returned a
verdict finding there were not sufficient
mitigating circumstances to merit leniency.
The trial court on January 28, 1994 imposed
upon Appellant a sentence of death.

State v. Brown, 940 P.2d 546, 555-59 (Wash. 1997).

The Washington Supreme Court denied both
Petitioner's post-conviction appeal and_ personal
restraint petition (“PRP”). See Id.; In re the PRP of
Brown, 21 P.3d 687 (Wash. 2001). Turning to federal
court, Petitioner filed his original petition for writ of
habeas corpus under 28 U.S.C. § 2254 on June 13,
2001 (Dkt. No. 8) and filed an amended petition on
July 15, 2002 (Dkt. No. 56). The Court held an
evidentiary hearing on November 3 and 4, 2003, on
Petitioner's claim of ineffective assistance of counsel
at the sentencing phase of the trial. Briefing is now
complete and Petitioner’s habeas petition is ready for
review.

GROUNDS FOR RELIEF

Brown sets forth eight grounds for relief in his
amended habeas petition. He formulates his claims
as follows:

(1) The Washington death penalty statute,
Wash. Rev. Code § 10.95.010 (2000), et seq., on
its face and as authoritatively construed by
the Washington Supreme Court in this case
violates the Eighth and _ Fourteenth
Amendments to the United States
Constitution.

(2) The Washington death penalty statute is
vague on its face and violates the Eighth

53a

Amendment and the Due Process Clause of
the Fourteenth Amendment.

(3) As construed by the Washington Supreme
Court in this case, the Washington death
penalty statute violates the Eighth
Amendment and the Ex Post Facto Clause of
the United States Constitution.

(4) Petitioner was denied due process under
the Fourteenth Amendment when a critical
- portion of the trial transcript was lost before
Petitioner's direct appeal.

(5) Petitioner's confession was obtained in
violation of the Fifth, Sixth and Fourteenth
Amendments to the United States
Constitution.

(6) Petitioner’s jury was selected in violation
of the due process clause of the Fourteenth
Amendment.

(7) Withdrawn by Petitioner.

(8) Petitioner was deprived of his Sixth
Amendment right to the effective assistance of
counsel at the sentencing phase.

(9) Withdrawn by Petitioner.

(10) The Washington procedures for seeking
post-conviction relief, as they were
administered by the Washington Supreme
Court in this case, failed to comport with the
minimum requirements of due process of law.

(Am. Pet. At Dkt. No. 56)
DISCUSSION

Exhaustion of State Remedies

54a

In order to present-a claim to a federal court
for review in a habeas corpus petition, a petitioner
must first have presented that claim to the state
court. See 28 U.S.C. § 2254(b)(1). The parties do not
dispute that Brown properly exhausted his available
state remedies by fairly presenting the eight claims
to the Washington Supreme Court as federal claims.
(See Answer at 16) The Court will thus examine all
of Petitioner's alleged grounds for relief.?

Standard of Review

“Principles of comity and federalism counsel
against substituting our judgment for that of the
state courts.” Taylor v. Maddox, 366 F.3d 992, 999
(9% Cir. 2004). The deference referenced in this
statement is embodied in the requirements of the
federal habeas statute, as amended by the Anti-
Terrorism and Effective Death Penalty Act
(““AEDPA”). Id. Accordingly, under AEDPA, a
habeas corpus petition may be granted with respect
to any claim adjudicated on the merits in state court
only if the state court’s adjudication is contrary to, or
involved in unreasonable application of, clearly
established federal law, as determined by the
Supreme Court. 28 U.S.C. § 2254(d) (emphasis
added). Under the “contrary to” clause, a federal
habeas court may grant the writ only if the state
court arrives at a conclusion opposite to that reached
by the Supreme Court on a question of law, or if the
state court decides a case differently than the
Supreme Court has on a_ set of materially
indistinguishable facts. See Williams v. Taylor, 529

2 The Court also notes that the parties have stipulated
that Petitioner timely filed his habeas petition within AEDPA’s
one-year statute of limitations. (See Stipulation at Dkt. No. 26.)

5Sa

U.S. 362, 403-05 (2000). Under the “reasonable
application” clause, a federal habeas court may grant
the writ only if the state court identifies the correct
governing legal principle from the Supreme Court’s
decisions but unreasonably applies that principle to
the facts of the prisoner’s case. Jd. The opinions of
this Court regarding the death penalty are irrelevant
to the analysis of Petitioner’s claims.

The Supreme Court recently refined the Ninth
Circuit Court of Appeals’ interpretation of the phrase
“unreasonable application.” In Lockyer v. Andrade,
538 U.S. 63 (2003), the Supreme Court held that the
Ninth Circuit has interpreted the phrase too broadly,
as being synonymous with “clear error.” The Court
reasoned:

These two standards, however, are not the
same. The gloss of clear error fails to give
proper deference to state courts by conflating
error (even clear error) with
unreasonableness. It is not enough that a
federal habeas court, in its “independent
review of the legal question” is left with a firm
conviction” that the state court was
“erroneous.” [...] [A] federal habeas court may
not issue the writ simply because that court
concludes in its independent judgment that
the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly. Rather, that application must be
objectively unreasonable.

Id. at 68-69 (emphasis added; internal citations
omitted). Thus, the Supreme Court has clarified that
federal courts should be even more deferential to
state courts than the Ninth Circuit had previously

S6a

determined. See Hall v. Dir. Of Corrs., 343 F.3d 976,
986 (9th Cir. 2003) (Tallman, J., dissenting). A state
court decision may be overturned only if the decision
is “objectively unreasonable,” which means
something more than merely “incorrect or
erroneous.” Riley v. Payne, 352 F.3d 1313 (9th Cir.
2003).

In addition, a habeas corpus petition may be
granted if the state court decision was based on an
unreasonable determination of the facts in light of
the evidence presented. 28 U.S.C. § 2254(d). The
“unreasonable determination” clause usually applied
to situations where petitioner challenged the state
court’s findings based entirely on the state court
record. Taylor, 366 F.3d at 999 (internal citations
omitted). “Such a challenge may be based on the
claim that the finding is unsupported by sufficient
evidence, that the process employed by the state
court is defective, or that no finding was made by the
state court at all.” Jd. Once the state court’s fact-
finding process survives this intrinsic review, the
state court’s findings are “dressed in a presumption
of correctness, which then helps steel them against
any challenge based on extrinsic evidence, Le.,
evidence presented for the first time in federal
court.” Jd. The burden is on the petitioner to rebut
the presumption of correctness by clear and
convincing evidence. Sumner v. Mata, 455 U.S. 591
(1982); 28 U.S.C. § 2254(e)(1).

Finally, relief may be granted on a federal
habeas corpus petition only if the state court error
caused “actual prejudice” or had a “substantial and
injurious effect or influence” in determining the
jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619,
637 (1993). In other words, relief may not be granted

57a

if petitioner merely shows that there is a reasonable
possibility that the error contributed to the verdict.
Id.

Petitioner’s First Three Grounds for Relief:
Constitutionality Issues

Petitioner's first three claims all allege that
the Washington Death Penalty Statute, Wash. Rev.
Code § 10.95.010, et seq., violates various
constitutional rights. In understanding these claims,
an introduction to Eighth j#Amendment?
Jurisprudence is useful.

At a minimum, states must properly establish
a threshold below which the death penalty cannot be
imposed. Romano v. Oklahoma, 512 U.S. 1, 6-7
(2004) (citing McCleskey v. Kemp, 481 U.S. 279, 305
(1987)). First, “[t]lo pass constitutional muster, a
capital sentencing scheme must ‘genuinely narrow
the class of persons eligible for the death penalty and
must reasonably justify the imposition of a more
severe sentence on the defendant compared to others
found guilty of murder.” Lowenfield v. Phelps, 484
U.S. 231, 244 (1988) (quoting Zant v. Stephens, 462
U.S. 862, 877 (1983)). The intent is to “minimize the
risk of wholly arbitrary and capricious action.” Zant,
462 U.S. at 874 (quoting Gregg v. Georgia, 428 U.S.
153, 189 (1976)). Second, “[s]tates must ensure that
capital sentencing decisions rest on _ fan]
individualized inquiry, under which the character
and record of the individual offender and the
circumstances of the particular offense are

3 The Eighth Amendment prohibits “cruel and unusual
punishments” and is applied to the states through the Due
Process Clause of the Fourteenth Amendment. See U.S.-Const.
amend. VIII; Robinson v. California, 370 U.S. 660, 667 (1962).

58a

considered. Romano, 512 U.S. at 7 (citing
McCleskey, 481 U.S. at 303). The sentencer must be
allowed to consider any relevant information offered
by the defendant. Jd. Within these limits, however,
states “enjoy their traditional latitude to prescribe
the method by which those who commit murder shall
be punished.” Blystone v. Pennsylvania, 494 U.S.
299, 300 (1990). This latitude extends to evidentiary
rules at sentencing proceedings. Romano, supra, at
7. Finally, “[o]nce the jury finds that the defendant
falls within the legislatively defined category of
persons eligible for the death penalty .. . the jury
then is free to consider a myriad of factors to
determine whether death is the appropriate
punishment.” Jd. at 8 (citing California v. Ramos,
463 U.S. 992, 1008 (1983)).

The United States Supreme Court classifies
state death penalty statutes as either “non-weighing”
or “weighing” depending on the process by which the
sentencer considers or weighs a variety of factors in
deciding whether to impose the death penalty. See
Williams v. Calderon, 52 F.3d 1465, 1478 nn.11-13
(9 Cir. 1995), cert. denied, 516 U.S. 1124 (1996). In
State v. Brown the Washington Supreme Court held
that Washington is a non-weighing state. 940 P.2d
at 591-92. In the penalty phase of a capital murder
trial in Washington, the jury is asked a single
question which is, “Having in mind the crime of
which the defendant has been found guilty, are you
convinced beyond a reasonable doubt that there are
not sufficient circumstances to merit leniency?” See
Wash. Rev. Code § 10.95.060(4). All manner of
collateral crimes evidence is admissible during the
penalty phase. See State v. Brown, 940 P.2d at 592
(citing Wash. Rev. Code § 1095.060; Wash. Rev. Code

59a

§ 10.95.070; State v. Jeffries, 717 P.2d 722 (Wash.
1986); State v. Mak, 718 P.2d 407 (Wash. 1986)).

In his first ground for relief, Petitioner argues
that the Washington Death Penalty Statute on its
face and as authoritatively construed by the
Washington Supreme Court in this case violates the
Eighth and Fourteenth Amendments because it is
“devoid of meaningful guidelines and standards for
the sentencer to apply in determining whether the
sentence should be life imprisonment or death.”
(Am. Pet. At 4 1.1.) Petitioner makes this argument
on the basis that the jury is given no guidance as to
how the collateral evidence factors into their
deliberations. No such guidance is required by law.

A statute identifying aggravating
circumstances need not also provide standards to
govern the jury in weighing the significance of those
circumstances. Zant, 462 U.S. at 880. “A capital
sentencer need not be instructed how to weigh any
particular fact in the capital sentencing decision.”
Tuilaepa v. California, 512 U.S. 967, 979 (1994).
There is simply no support for Petitioner’s argument
that “meaningful guidelines and _ standards”
instructing jurors how to weigh collateral evidence
are required to pass constitutional muster.
Accordingly, Petitioner’s first ground for relief is
hereby denied.

Petitioner's second ground for relief states
that the Washington Death Penalty Statute is vague
on its face and violates the Eighth and Fourteenth
Amendments because Wash. Rev. Code §&
10.95.060(3) allows evidence of defendant’s previous
criminal activity without defining the word
“previous.” To wit, Petitioner argues “previous”

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could mean either crimes occurring before the crime
of conviction or it could mean crimes occurring before
the penalty phase of the capital trial. Petitioner’s
argument is based on the fact that in the penalty
phase of the Petitioner's trial, the jury was told that
it could consider evidence of an attempted murder in
California in deciding whether or not to impose the
death sentence. The California attempted murder
occurred after the crime that Petitioner was
convicted of in this case.

The Washington Supreme Court held that the
statute was not unconstitutionally vague. In re PRP
of Brown, 21 P.2d page, 701-03 (2001). In his PRP,
however, Petitioner took issue with the word
“relevant” in Wash. Rev. Code. § 10.95.070(1).4 The
Court held that the statute was not vague because it
lists eight factors for a sentencing jury to consider in
deciding whether leniency is merited. Jn re PRP of
Brown, 21 P.2d at 702. Petitioner’s formulation of
his claim is slightly different in his federal habeas
petition. Instead of the word “relevant” he identifies
the word “previous” as vague. This change in
argument is likewise unavailing.

Petitioner's criminal record is admissible
during the penalty phase of a capital trial. See
Tuilaepa v. California, 512 U.S. 967, 978 (1994)
(stating “[nJothing in the United States Constitution
prohibits a trial judge from instructing a jury that it
would be appropriate to take account of a defendant's

4 Wash. Rev. Code § 10.95.070(1) states in pertinent
part “[{iJn deciding the question posed by [Wash. Rev. Code] §
10.95.060(4), the jury . . . may consider any relevant factors,
including but not limited to the following: (1) Whether the
defendant has or does not have a significant history, either as a
juvenile or an adult, of prior criminal activity.”

6la

prior criminal record in making its sentencing
determination.”). In fact, even unadjudicated
criminal conduct may be introduced to support an
aggravator factor such as probably future violence.
Campbell v. Kincheloe, 829 F.2d 1453, 1461 (9th Cir.
1987), cert. denied, 488 U.S. 948 (1988). The
evidence of the attempted murder in California,
therefore, was admissible evidence, whether it
occurred before the crime of conviction or before the
penalty phase of the capital trial. Petitioner's
argument that “previous” should specify which of
these time periods is the relevant time period for
considering the admissibility of a defendant's prior
criminal -record is simply splitting hairs. Since
Washington’s Death Penalty Statute complies with
Supreme Court precedent, Petitioner’s second ground
for relief is also denied.

In his third ground for relief, Petitioner argues
that, as construed by the Washington Supreme Court
in this case, the Washington Death Penalty Statute
violates the Eighth Amendment and Ex Post Facto
clause of the United States Constitution. Petitioner
argues that following his conviction and sentence,
the Washington Supreme Court construed the word
“previous” in Wash. Rev. Code § 10.95.060(3) to mean
prior to the date of the penalty phase of Petitioner’s
capital trial.

In Rogers v. Tennessee, the Supreme Court
affirmed that the Ex Post Facto Clause “is a
limitation upon the powers of the Legislature, and
does not of its own force apply to the Judicial Branch
of the government.” 532 U.S. 451, 456 (2001)
(quoting Marks v. United States, 430 U.S. 188, 191
(1977)). As Respondent correctly points out,
petitioner's ex post facto claim fails as a matter of

62a

law. In the same opinion, the Supreme Court also
observed that “limitations on ex post facto judicial
decisionmaking are inherent in the notion of due
process,” however, due process does not incorporate
the specific prohibitions contained in the Ex Post
Facto Clause. Id. at 456, 458-59. Instead the focus
of a due process analysis is on “the right to fair
warning as _ those concepts bear on _ the
constitutionally of attaching criminal penalties to
what previously had been innocent conduct.” Jd. at
459. Accordingly, the Supreme Court has held that
retroactive judicial expansion of a criminal statute
violates due process only when the state court’s prior
opinions had not given the “slightest indication” that
the person’s conduct violated the law. Id.

In response to this claim for relief, the
Washington Supreme Court held:

[Brown] claims a _ sentencing jury cannot
consider his California convictions of August
30, 1991 as “prior criminal activity” under
(Wash. Rev. Code] § 10.95.070(1) because
those convictions occurred after the crime for
which he was convicted in King County was
committed on- May 24, 1991. Nothing in
[Wash. Rev. Code § 10.95.070(1) indicates a
sentencing jury may only consider convictions
occurring prior to the date of the crime for

- which defendant is being tried. It is sufficient
that the prior conviction be established prior
to conclusion of the case before the court.

In re PRP of Brown, 21 P.3d at 698. There was
plenty of indication that the state court would
interpret the statute in this manner. Indeed,
construed in conjunction with Wash. Rev. Code §

63a

10.95.070(8),5 Petitioner had fair warning the
evidence of the attempted murder in California
would be deemed admissible. The Court finds that
the state court decision was neither contrary to, nor
an unreasonable application of, clearly established
federal law. Petitioner’s third ground for federal
habeas relief is hereby denied.

Petitioner’s Fourth Ground for Relief: Lost
Trial Transcript

Petitioner asserts that he was denied due
process under the Fourteenth Amendment when an
allegedly critical portion of the trial transcript was
lost before Petitioner’s direct appeal. His argument
is supported by the following facts. The trial court
held a series of pre-trial hearings under CrR 3.5 and
the Washington Right of Privacy statute, Wash. Rev.
Code § 9.73, et seq., to determine the admissibility of
the secretly tape recorded interviews. (SR 5572-73.)
The first hearing took place in July 10, 1992. (/d.)
Palm Springs Detective Mark Harvey testified at
that hearing. (/d.) There is no verbatim report of
proceedings of the July 10 testimony, due to the
failure of the court reporter to find his notes of that
hearing. (/d.) Upon order of the Washington State
Supreme Court, the trial court presided over the
preparation of a supplemental report of proceedings.

Petitioner objects that the supplemental
report of proceedings provided an inadequate record

5 Wash. Rev. Code § 10.95.070(8) states in pertinent
part “[ijJn deciding the question posed by [Wash. Rev. Code] §
10.95.060(4), the jury . . . may consider any relevant factors,
including but not limited to the following: (8) Whether there is
a likelihood that the defendant will pose a danger to others in
the future.

64a

for appeal.® Specifically, Petitioner asserts that the
supplemental report of proceedings did not specify
what, if any, Miranda warnings the Palm Springs
police gave to Mr. Brown in May 1991, including
whether he was advised that he had the right to
consult with counsel before making any statements,
and whether he waived those rights. Respondent
argues that given the existing transcripts, the
supplemental report of proceedings, and _ the
remaining documents in the record relating to the
issue of the Miranda warnings, the Washington
Supreme Court reasonably determined that there
was a sufficient record for appellate review, and the
state court reasonably rejected Petitioner’s claim.
Respondent also argues that Brown’s claim fails
because he fails to present any proof of prejudice.

In responding to the Petitioner's argument
that a record of sufficient completeness was not
provided for -appellate review, the Washington
Supreme Court held:

The trial court’s Supplementation of Report of
proceedings, based upon contemporaneous
notes taken by the court on July 10, 1992,
constitutes a narrative report of proceedings
for that portion of the hearing sufficient to
make the record complete. Appellant’s
assertion that the trial court’s narrative report
is “conclusory at best” on this issue of Miranda
warnings is rebutted by the fact that, along
with the trial court’s narrative report, the
record on review also contains the tape

6 The report simply stated that “(t]he Defendant was
advised of his Miranda rights on tape and the tape was allowed
to run for the length of the interview.” (SR 5578, 5583.)

65a

recordings of Appellant’s statements to the
Palm Springs Police which included Miranda
warnings, [footnote omitted] as well as the
trial court’s oral ruling on the issue of
Miranda warnings and [Wash. Rev. Code §
9.73]. [footnote omitted]. Additionally, there
are verbatim repots of all other proceedings,
including the testimony of Ms. Schnell, Ms.
West and Ms. Gray. We reject Appellant’s
claim that the record is not sufficiently
complete for review of the issues in this case.

State v. Brown, 940 P.2d at 579-80. For the following
reasons, this Court agrees with Respondent that the
Washington Supreme Court reasonably rejected
Petitioner’s claim.

The procedures used in deciding appeals must
comport with the demands of the Due Process and
Equal Protection Clauses of the U.S. Constitution.
Evitts v. Lucey, 469 U.S. 387, 393 (1985). An
appellate process that provides a _ criminal
defendants appellant the minimum safeguards
necessary to make the appeal “adequate and
effective” satisfies both due process and equal
protection concerns. Smith v. Robbins, 528 US.
259, 276-77 (2000). The Supreme Court has held
that “[iJn terms of a trial record, this means that the
State must afford the indigent a ‘record of sufficient
completeness’ to permit proper consideration of his
claims.” Mayer v. Chicago, 404 U.S. 189, 194 (1971)
(quoting Draper v. Washington, 372 U.S. 487, 499
(1963) (internal citations omitted)). This does not
mean that a state must- provide a verbatim
transcript of the entire proceedings. Jd.

Rather, what is constitutionally impermissible

66a

is the total denial of a transcript based on indigency.
Griffin v. Illinois, 351 U.S. 12, 18 (1956) (plurality
opinion) (holding a court cannot make available a

al transcript to those who can afford it, but deny
the transcripts to those who are indigent). In Norvell
v. Illinois, 373 U.S. 420 (1963) the Supreme Court
declined to extent Griffin to cases where the
transcript was unavailable due to the death of the
court reporter. Instead the Court held that “some
practical accommodation must be made.” Id. at 424.
This means that “[a]lternative methods of reporting
trial proceedings are permissible if they place before
the appellate court an equivalent report of the events
at trial from which the appellant’s contentions arise.”
Mayer, 404 U.S. at 194; See also Draper v.
Washington, 372 U.S. 487 (1963) (speculating that
narrative statement based on the trial judge’s
minutes taken during trial, a court reporter's
untranscribed notes, or a_bystander’s bill of
exceptions may all be equally as good as a transcript.

Several courts have also added to this a
required showing of prejudice. Bransford v. Brown,
806 F.2d 83 (6th Cir. 1986) (holding the
unavailability of transcripts of jury instructions is
not a per se violation of a criminal defendant's due
process rights, and requiring the petitioner to also
show prejudice resulting from the missing
transcript); White v. State of Fla. Dept. of
Corrections, 939 F.2d 912, 914 (11th Cir. 1991)
(finding the absence of a perfect trial transcript does
not violate due process absent a showing of specific
prejudice). See also Scott v. Elo, F.3d __, 2002 WL
2030715 (6th Cir. August 8, 2002) (stating that
speculation that a transcript might aid the
petitioner’s claim is not sufficient to show a violation

67a
of due process).

In the case at bar, Petition was only lacking
the transcript for a_ single pre-trial hearing.
Although the Supplementation of Report Proceedings
did not specify what, if any, Miranda warnings the
Palm Springs police gave to Mr. Brown in May 1991,
any uncertainty could have been dispelled by the
admission of the taped confession into evidence. In
light of the Supreme Court concession that, absent
verbatim transcripts of proceedings, “alternative
methods of report trial proceedings are permissible”
this Court must find that the Washington Supreme
Court’s finding that the narrative report, the tape
recordings, and the trial court’s oral ruling on the
issue of Miranda warnings, in addition to the
verbatim reports of all other proceedings, provided a
sufficient record for appellate review was neither
contrary to, nor an unreasonable application of
clearly established federal law. Petitioner’s fourth
ground for relief is hereby denied.

Petitioner’s Fifth Ground for Relief: Alleged
Violation of Petitioner’s Miranda Rights

Petitioner claims that his confession was
obtained in violation of the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution. Specifically, Petitioner argues that the
warnings given to him by the Palm Springs police
were deficient under the Constitution and under
Miranda v. Arizona, 384 U.S. 436 (1966), because the
warnings failed to specifically advise him that he had
a right to counsel before being questioned. The
Washington Supreme Court held that, although the
warnings did not apprise Brown that he had a right
to counsel before questioning, other verbiage in the

68a

warnings made that concept clear. State v. Brown,
940 P.2d at 575 (“[a]lthough the actual words ‘before
questioning’ were not included in the first part of the
statement, the second part which read ‘and to have
him present when you're being questioned’ made
that point sufficiently clear.”). Petitioner asserts
that the decision of the Washington Supreme Court
was contrary to, or an unreasonable application of,
clearly established federal law as stated by the
Supreme Court and was based upon an unreasonable
determination of the facts as presented in the state
court proceedings.

Respondent argues that the Miranda
warnings, when read as a whole, adequately advised
Brown that he had the right to consult with counsel
before questioning. Respondenf further argues that
Brown had extensive previous experience with police
and prosecutors. He had a lengthy criminal history,
including 1979 convictions for assault, NSF checks,
possessing a syringe needle, a 1981 grand theft
conviction, and 1984 assault convictions. (SR 6959.)
Respondent suggests that the Washington Supreme
Court reasonably determined that Brown was
adequately advised of his Miranda rights, and that
decision is not contrary to or an unreasonably
application of clearly established federal law,
therefore Brown is not entitled to relief.

The Miranda rule is a “prophylactic” measure
that is meant to protect against violations of the Self-
Incrimination Clause of the Fifth Amendment, which
prohibits compelling a criminal defendant to testify
against himself at trial. See e.g., Chavez v. Martinez,
538 U.S. 760, 764-68 (1994). The rule presumes that
interrogation settings are coercive when a defendant
is held in custody and pressured to confess without

69a

specific warnings of his right to remain silent.
Miranda warnings are, therefore, required before
defendant's statement may be admitted as evidence.
Although the Supreme Court has debated some
aspects of Miranda warnings, one basic rule still
applies. A person arrested or held in custody must
be clearly informed of four things before any of his
testimony may be admitted into evidence: 91) the
defendant has the right to remain silent; (2)
anything he says may be used against him in court;
(3) he has the right to consult with an attorney and
to have an attorney present during interrogation;
and (4) if he is indigent, a lawyer will be appointed to
represent him. United States v. Patane, 124 S. Ct.
2620 (2004); Dickerson v. United States, 530 U.S.
428, 435 (2000); Miranda v. Arizona, 384 U.S. 436,
467-73 (1966). Although the right to the presence of
an attorney includes the right to consultation with
counsel both before and during questioning, see
Ducksworth v. Eagan, 492 U.S. 195, 203 (1989)
citations omitted), the warnings need not be given in
the exact language provided in Miranda. See Id. at
202-04. The question is whether the warnings
reasonably and effectively conveyed to a suspect his
rights as required by Miranda. Id.

A suspect, however, may waive his right to
remain silent. Moran v. Burbine, 475 U.S. 412, 421
(1986). A waiver is voluntary if it is “the product of
free and deliberate choice rather than intimidation,
coercion or deception.” Jd. A waiver is knowing and
intelligent if it is “made with a full awareness of both
the nature and the right being abandoned and the
consequences of the decision to abandon it.” Id.
When considering whether the right to an attorney
has been waived, a court must consider the facts and

70a

circumstances of the case, and “the background,
experience and conduct of the accused.” North
Carolina v. Butler, 441 U.S. 369, 375-76 (1979).
Although, the voluntariness of a _ defendant’s
confession, plea, or waiver is a legal question, the
Ninth Circuit has held that a_ state court’s
determination of whether a waiver was knowing and
intelligent is a factual question entitled to a
presumption of correctness. Collazo v. Estelle, 940
F.2d 411 (9th Cir. 1991) (en banc).

The conversations with Palm Springs police
being challenged by Petitioner are the following. The
Palm Springs police interviewed Brown on May 27,
1991. _At the beginning of the interview, Detective
Harvey informed Brown of his Miranda rights:

Harvey: .. . basically, what I'll do is I'll tell
you what your rights are and uh .. . I'd like to
hear your side of this thing too. Basically you
have the right to remain silent. Anything you
say can and may be used against you in court.
You have the right to an attorney and have
him present while you're being questioned,
and if you can’t afford one, one will be
appointed for you by the curt.

Brown: Al) right.

Harvey: Okay. Having those rights, all of
those rights.

Brown: Okay.

Harvey: Are you will to talk?

Brown: I’m willing to talk.

Harvey: Are you willing to talk with us, Cal?
Brown: Okay.

Tla
(SR 8609-8610)

The detectives conducted a second interview
on May 27, 1991, and advised Brown of his Miranda
rights again at the beginning of the interview:

Harvey: I want to make sure you understand
that I’ve advised you of your rights on their
case too. You have the right to remain silent.
Anything you cay can and may be used against
you in court.

Brown: Uhm hmmmm.

Harvey: You have the right to an attorney
and to have him present when you're being
questioned. If you cannot afford one, one will
be appointed for you.

Brown: Uhm hmmm.
Harvey: Do you understand those rights?
Brown: [| understand the rights.

Harvey: Having those rights in mind, you're
willing to talk to us.

Brown: Yeah, at this time.
(SR 8661.)

A third interview was coneucted the following
day, May 28, 1991, and the police again advised
Brown of his Miranda rights:

Harvey: Okay. Cai we’re here because you
asked us to come in and before we talk to you,
I go over your rights every time.

Brown: Okay.

Harvey: Okay. I know you know them and |
know that I’ve told them to you before but I

72a
just like — I like to do that.

Brown: Play it safe.

Harvey: Yeah, play it safe, so that everybody
know what — you know, the court knows
what’s happening and no one says that we
were in here trying to trick you or anything
like that. Okay? Uhm... the jailer, Mr.
Smith, the young guy came to use and said
that you wanted to talk to us.

Brown: Right.

Harvey: Okay. Let me tell you what your
rights are one more time then.

Brown: Go ahead.

Harvey: You have the right to remain silent.
Anything you say can and may be used
against you in court. You have the right to an
attorney and to have him present when you're
being questioned. If you cannot afford an
attorney, one will be appointed for you if you
desire.

Brown: Yeah.
Harvey: Do you understand your rights?
Brown: Right.
Harvey: Do you care to speak with us?
Brown: Right.

(SR 8690-8691)

Clearly Brown had a right to an attorney
before questioning. In apprising Brown of his
Miranda rights Detective Harvey did not explicitly
inform him of this right. However, there is no

73a

Supreme Court precedent requiring that police use
the words “before being questioned” in advising a
suspect of his right to an attorney. In fact the
Supreme Court has stated that such an exact
incantation is unnecessary, and indeed would be
unworkable. See Duckworth, 492 U.S. at 202-04;
California v. Prysock, 453 U.S. 355, 355-56 (1981).
The Washington Supreme Court’s determination
that, based upon the totality of the warning, the
warning was sufficient under Miranda, was not an
unreasonable application of clearly established
federal law, nor was it based upon an unreasonable
determination of the facts as presented in the state
court proceedings. Petitioner’s fifth claim for relief
must be denied.

Petitioner’s Sixth Ground for Relief: Jury
Selection

Petitioner argues in his sixth claim for relief
that the jury was selected in violation of the Due
Process Clause of the Fourteenth Amendment.
Petitioner argued on appeal that the trial court's
rulings permitted the exclusion of prospective jurors
on a broader basis than that allowed under
Witherspoon v. Illinois, 391 U.S. 510 (1968), and its
progeny. The Washington Supreme Court found that
the trial judge “did not abuse his discretion” in
excluding jurors Denis, Henderson and Deal. State
v. Brown, 940 P.2d at 601-04. Petitioner argues that
this decision was contrary to, and an unreasonable
application of, clearly established Federal law as
estabiished by the Supreme Court and was based on
an unreasonable determination of the facts as
presented in the state court proceedings.

Upon habeas review, determination as to

74a

individual juror bias in both trial and capital
sentencing juries, are factual questions entitled to
the presumption of correctness. Wainwright v. Witt,
469 U.S. 412 (1985). See also Darden v. Wainwright,
477 U.S. 168, 175 (1986); Patton v. Yount, 467 U.S.
1025 (1984) (finding that impartiality of individual
jurors is a question of fact). A petitioner must rebut
such a finding by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).

The Sixth Amendment to the Constitution
guarantees criminal defendants a trial by impartial,
indifferent jurors. U.S. Const. amend. VI. A trial
judge must exclude potential jurors who are unable
to set aside their preconceptions and decide the case
on the evidence presented in court. Irwin v. Dawd,
366 U.S. 717, 722-23 (1961). The standard for
determining when the court may exclude a
prospective juror because of his or her views on
capital punishment “is whether the jurors views
would ‘prevent or substantially impair the
performance of his duties as a juror in accordance
with his instructions and his oath.” Wainwright v.
Witt, 469 U.S. 412, 424 (1985) (quoting Adams uv.
Texas, 448 U.S. 38, 45 (1980)). A juror’s bias need
not be proved with “unmistakable clarity.” Jd. This
standard is in contract to the one set forth in
Witherspoon v. Illinois, 391 U.S. 510 (1968). The
Witherspoo» Court ruled that a judge could not
exclude every potential juror with reservations about
the death penalty. Jd. at 521-23. Instead, the Court
stated that a court may exclude only those extreme
opponents who would vote against the capital
punishment in all cases regardless of the evidence
presented. Jd. In Adams v. Texas, the Court
provided a new formulation of the rule and stated

75a

that a capital punishment opponent may not be
challenged for cause unless his views would “prevent
or substantially impair” his ability to carry out his
duties as a juror. 448 U.S. 38, 45 (1980). In
Wainwright, the Supreme Court confirmed the
Adams formulation as the proper rule and clarified
that the stricter standard set forth in Witherspoon is
not the proper basis for excluding death-scrupled
jurors. 469 U.S. at 424.

The facts related to Petitioner's sixth claim for
relief are as follows. Jury selection began on October
27, 1993. (SR 2013.) At the beginning of the jury
selection, each potential juror was asked to complete
a-written questionnaire. Jurors were questioned
individually regarding their ability to follow the law
in a possible second phase of the trial (death-
qualification). (SR 2018.) The State challenged
jurors Denis, Henderson, and Deal for cause based
upon answers made to questions c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0297%3A03. Public record. Not legal advice.