Amicus Curiae Brief — Uttecht v. Brown

Supreme Court, US.

ae. | 06-413 SLED

MAR 2 © 206?

IN THE :

QFFICE OF THE CLERK.

Supreme Court of the 3 United States |

—_——_—_——"_ Poa

JEFFREY UTTECHT, SUPERINTENDENT,

WASHINGTON STATE PENITENTIARY,

Petitioner,

CAL COBURN BROWN,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU OF WASHINGTON

AS AMICUS CURIAE SUPPORTING RESPONDENT

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

LARRY YACKLE

BOSTON UNIVERSITY

SCHOOL OF LAW

765 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-2826

JOHN HOLDRIDGE

BRIAN W. STULL

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

201 W. Main Street, Suite 402

Durham, North Carolina 27701

(919) 682-5659

SARAH A. DUNNE

NANCY L. TALNER

ACLU OF WASHINGTON

FOUNDATION

705 2nd Avenue, Suite 300

Seattle, Washington 98104

(206) 624-2180

TABLE OF CONTENTS

SES CHEE CII tiscitendntintreneiicnteneemstinadinensdaneinteineietin l

SEAT EINGINE OR FERS CAGES .ncccoccccecccasecesenensscnssoscnrecnsoese l

SUMMARY OF ARGUMENT ....0000...ceecceeseeeeeteesteeeeeeee 10

TE snctrsincsccinnnviininiecniasiientinintnmmnianennanaiiingsivediaite 11

1. The Decision By The State Courts To Exclude

Mr. Deal For Cause “Involved An

Unreasonable Application of Clearly

Established” Supreme Court Precedent................. 1]

A. Even If Mr. Deal Would Have Been

Less Inclined To Return A Death

Verdict For A Parole-Ineligible

Defendant, He Was Qualified To

Serve Under This Court’s Precedents........ 12

B. Washington Courts Unreasonably

Applied This Court’s Precedents By

Determining Whether Mr. Deal Was

Qualified To Serve Based Upon His

Views Regarding The Death Penalty

Rather Than His Ability To Follow

Il. Respondent Showed By Clear and Convincing

Evidence That The Siate Courts’ Factual

Finding of Juror Bias Was Erroneous And, In

Turn, That the State Courts’ Finding Was An

Unreasonable Determination Of The Facts. .......... 23

LTTE srcicsiesihitesiinnitiigtiitiianinsiheipiniiendtibiinbipieonneniaiaiinies 27

TABLE OF AUTHORITIES

Cases

Adams v. Texas, 448 U.S. 38 (1980) .0......cccccceeeeeeeeeeeeee 12,19

Barefoot v. Estelle, 463 U.S. 880 (1983)........cecccceeeeeeeeees 14

Clark v. State, 929 S.W.2d 5 (Tex. Crim. App. 1996)......... 21

Conde v. State, 860 So. 2d 930 (Fla. 2003) .0.......:ccceeeeeeeeee 22

Darden v. Wainwright, 477 U.S. 168 (1986).................. 18, 19

Durrough v. State, 620 S.W.2d 134

A Ss HEIL. SUIT ccrnsinenptnnnisiccsinnssninntimindnnninsiinntinmetia 21

Eddings v. Oklahoma, 455 U.S. 104 (1982)......ccccecceeeeeees 17

Farina v. State, 680 So. 2d 392 (Fla. 1996) ........ccccceeceeees 21

Franklin v. Lynaugh, 487 U.S. 164 (1988)........ cc cecceeeeeeees 16

Gall v. Parker, 231 F.3d 265 (6th Cir. 2000) ........0...ccceeeee 20

Gray v. Mississippi, 481 U.S. 648 (1987) ........cccceeeeeee 9,24

Jarrell v. State, 413 S.E.2d 710 (Ga. 1992).......ceceeeeeceeeeees 21

Johnson v. State, 820 So. 2d 842 (Ala. Crim. App. 2000) ...21

Jurek v. Texas, 428 U.S. 262 (1976) ...........ceceeseeeceessseseeeeees 14

Kelly v. South Carolina, 534 U.S. 246 (2002).........cccccceceee 15

Lockett v. Ohio, 438 U.S. 586 (1978)... eececeeeseeeeteeeees 16

Lockhart v. Fretwell, 506 U.S. 364 (1993)........cccccssseeeeeeeeee 16

Miller-El v. Dretke, 545 U.S. 231 (2005) .......cccecceseceseeeeeees 26

Mills v. Maryland, 486 U.S. 367 (1988)...........::cccecceeeeeeeeees 17

Morgan v. Illinois, 504 U.S. 719 (1992) ......:.cceeee 12, 18, 19

People v. Heard, 75 P.3d 53 (Cal. 2003).........c:cccsesceseeseeees 20

People v. Ledesma, 140 P.3d 657 (Cal. 2006)....................4- 21

ii

Sallie v. State, 578 S.E.2d 444 (Ga. 2003) .........cccceseseeeeeees 22

Shafer v. South Carolina, 532 U.S. 36 (2001)...........00ccceees 15

Simmons vy. South Carolina, 512 U.S. 154 (1994).........00..... 15

Skipper v. South Carolina, 476 U.S. 1 (1986)..............2.00060- 14

Soto v. Commonwealth, 139 $.W.3d 827 (Ky. 2004).....20, 22

State v. Bartholomew, 654 P.2d 1170 (Wash. 1982)............ 14

State v. Finch, 975 P.2d 967 (Wash. 1999) .........ccceseseseeesees 14

State v. Gregory, 147 P.3d 1201 (Wash. 2006).............. 14, 16

State v. Juniors, 915 So. 2d 291 (La. 2005) ..0..........eee eee 22

State v. Juniors, 915 So. 2d 291 (La. 2005),

cert. denied, 126 S.Ct. 1940 (2006)..............cccccccceceeeeeeeees 22

Strickland v. Washington, 466 U.S. 668 (1984) .......00..00.. 15

Szuchon v. Lehman, 273 F.3d 299 (3d Cir. 2001) ................ 20

Threadgill v. State, 146 S.W.3d 654, 66-69

(Tex. Cota. Ag. 2004) .....ccccscccsoscccsccsecsseces seialaibcaiabiinain 22

United States. v. Chanthadara, 230 F.3d 1237 (10th Cir.

STITT cs heiniessinntenicialiileaisiadinieheaiedebatindinaditeisdaaesanniiianmnsiedidsddiiition 20

Wainwright v. Witt, 469 U.S. 412 (1985)... eee passim

Washington v. Bartholomew, 463 U.S. 1203 (1983)............ 14

Wiggins v. Smith, 539 U.S. 510 (2003) ...........cceeee 15, 17, 22

Williams v. Taylor, 529 U.S. 362 (2000).................. 15, 17, 23

Statutes

yt ae DF | | oe nee Nene 10, 15, 17, 23

Be ie Oe I iiceiccinsnctecininninaincscieesiniats 9, 11, 23, 26

ys | | Tene 9, 11,23 24, 25, 26

Wash Rev. Code § 10.95.070 (8) cccccccccssscsssesseesessesseseseseeee 16

iil

Wash. Rev. Code § 10.95.060(4).............c:ccccseeseceeseeseeeeeees 15

Wash. Rev. Code Ann. § 10.95.070 .0.......cccccceeeeceeeeeeeeeeeeees 17

Wash. Rev. Code Ann. § 10.95.070 (8) (West 2007)........... i4

Other Authorities

Mitzi Dorland and Daniel Krauss, The Danger of

Dangerousness in Capital Sentencing: Exacerbating the

Problem of Arbitrary and Capricious Decision-Making,

29 Law & Psychol. Rev. 63 (Spring 2005) ........0....0...004. 13

iV

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more

than 550,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. ~The ACLU of

Washington is one of its statewide affiliates. Amici

respectfully submit this brief to assist the Court in resolving a

serious question regarding the constitutional right of capital ~

defendants to a fair and impartial jury under the Sixth and

Fourteenth Amendments to the United States Constitution:

may states exclude for cause prospective jurors based on their

views regarding capital punishment without determining

whether the jurors can follow the pertinent sentencing law?

Given its longstanding interest in the constitutional nght to a

fair and impartial jury, the proper resolution of that question

is a matter of substantial importance to the ACLU and its

members.

STATEMENT OF THE CASE

Cal Coburn Brown was convicted of aggravated first-

degree murder and sentenced to death by a Washington State

jury on December 15, 1993. Pet. App. 10Sa.

Richard Deal was summoned as a prospective juror

for the trial. Prior to learning about Washington’s capital

punishment scheme, Mr. Deal stated in his jury

questionnaire, inter alia, that he was in favor of the death

penalty if it was proved beyond a shadow of a doubt that the

defendant had killed and would kill again. J.A. 62-63.

' Pursuant to Rule 37.3, letters of consent to the filing of this brief have

been lodged with the Clerk of the Court. Pursuant to Rule 37.6, counsel

for amici curiae state that no counsel for a party authored this brief in

whole or in part and no person other than amici curiae, their members or

their counsel made a monetary contribution to this brief.

l

During voir dire, defense counsel asked Mr. Deal for

“an idea” of his “general feelings about the death penalty,”

and Mr. Deal responded: “I do believe in the death penalty in

severe situations.” J.A. 58. Mr. Deal continued:

A good example might be the young man

from, | believe he was from Renton that killed

a couple of boys down in the Vancouver area

and was sentenced to the death penalty, and

wanted the death penalty. And | think it is

appropriate in severe cases.

J.A. 58-59.

Upon further questioning, Mr. Deal reiterated: “It

would have to be a severe case. | guess I can’t put a real line —

where that might be ....” J.A. 59. Defense counsel then

asked: “I’m assuming that there would not be any case other

than murder that you would think the death penalty would be

appropriate[?]” J.A. 59. Mr. Deal replied: “1 think that is

correct.” J.A. 59. Defense counsel continued:

. . . [I}n Washington even premeditated

murders are not eligible for a potential death

penalty unless the State also proves

aggravating circumstances. In this case the

State is alleging or is going to try and prove a

number of aggravating circumstances, four of

them. Okay. And the ones that they are going

to try and prove are that the murder was

committed, a premeditated murder was

committed during a rape, a robbery, a

kidnapping and that it was done in order to

conceal a witness or eliminate a witness.

Does that fall within the class of cases

that you think the death penalty is

appropriate?

J.A. 60. Mr. Deal replied: “I think that would be.” J.A. 60.

Defense counsel then asked him, “how about other

sentencing options in a case like that, do you think that

something other than the death penalty might be an

appropriate sentence?” J.A. 60. Mr. Deal replied: “I think

that if a person is temporarily insane or things of tha) ‘hat

[sic] lead a person to do things that they would not noiually

do, | think that would enter into it.” J.A. 61.

Defense counsel proceeded to ask Mr. Deal whether

he had previously been aware that a life sentence in

Washington is without parole, and Mr. Deal responded: “I

did not [know that fact] until this afternoon.” J.A. 61.

Defense counsel asked Mr. Deal if he could consider

both a death sentence and a life sentence without parole. J.A.

61-62. Mr. Deal responded, “Yes, I could.” /d.

Defense counsel then asked Mr. Deal to explain “why

you think-the death penalty is appropriate, what purpose it

serves, that kind of thing?” J.A. 62. Mr. Deal explained the

basis for his personal belief in the death penalty: “I think if a

person is, would be incorrigible and would reviolate if

released, | think that’s the type of situation that would be

appropriate.” J.A. 62. Defense counsel responded to this

statement of personal belief by asking Mr. Deal whether he

“could consider either alterative” knowing what “you didn’t

know before... [that a defendant convicted of capital

murder] is not going to get out of jail no matter which

sentence you give” him. J.A. 62. Mr. Deal replied, “I

believe so, yes.” /d.

When defense counsel asked whether Mr. Deal would

be “frustrated” if the parties at the penalty phase did not

“spend a lot of time talking about whether or not” the

defendant is “going to kill again,” Mr. Deal camel “Pm

not sure.” J.A. 62-63.

Defense counsel then asked Mr. Deal whether he

thought the death penalty was used to too frequently or not

enough in ihe United States. J.A. 63. He replied:

It seemed like there were several years when it

wasn’t-used at all and just recently it has

become more prevalent in the news anyway. |

don’t think it should never happen, and I don’t

think it should happen 10 times a week either.

. . . | think in severe situations, it is

appropriate.

J.A. 63. Defense counsel responded to this statement as

follows: “It sounds like you’re a little more comfortable that

it is being used some of the time?” J.A. 63. Mr. Deal said,

“Yes.” Jd Defense counsel asked whether Mr. Deal had

been unhappy when the death penalty was used less

frequently, and Mr. Deal stated, “I can’t say | was happy or

unhappy, | just felt that there were times when it would be

appropriate.” /d.

Defense counsel then sought to determine whether

Mr. Deal could consider a life sentence in light of the state’s

aggravating factors. J.A. 64. Mr. Deal explained that he

“could consider” a life sentence given the state’s aggravating

factors, but categorically refused to commit to returning a life

sentence, explaining, “I don’t know if | really have enough

information to make a determination.” J.A. 64.

Defense counsel asked Mr. Deal whether he could

consider mental status evidence as mitigation even if the

evidence did not show that the defendant was insane. J.A.

67. Mr. Deal responded, “Yes, I could.” J.A. 67. Defense

counsel asked Mr. Deal whether he could consider

“somebody’s childhood or their emotional development” as

mitigating circumstances, and Mr. Deal replied: “I could

consider it. I don’t have strong feelings one way or the

other.” J.A. 67.

Mr. Deal then stated that he was willing to “accept the

responsibility” of making the “important decision” whether

the defendant should be sentenced to death or life

imprisonment. J.A. 68.

Responding to the prosecutor’s questioning, Mr. Deal

confirmed that he had stated on his questionnaire that he

favored the death penalty if it was proven beyond a shadow

of a doubt that the defendant had killed and would kill again.

J.A. 69. The prosecutor asked whether he had made this

statement before reading his juror’s handbook, and Mr. Deal

responded affirmatively. Jd The prosecutor explained to

Mr. Deal that he was “bother|ed]” by the phrase “beyond a

shadow of a doubt,” and that the state’s burden was “beyond

a reasonable doubt.” /d Mr. Deal initially expressed

confusion when confronted with this distinction, responding,

“I would have to know the, I’m at a loss for the words here.”

J.A. 70. He then stated, “I guess it would have to be in my

mind very obvious that the person would reoffend.” J.A. 70.

The prosecutor responded that “we’re not talking about that,

sir,” and then Mr. Deal corrected himself by stating, “Or was

guilty, yes.” J.A. 70. The prosecutor sought to ensure that

Mr. Deal was referring to the defendant’s guilt by stating,

“So, we’re talking about that?” /d Mr. Deal said, “Yes.” Jd.

When the prosecutor asked Mr. Deal whether he “would be

satisfied with a reasonable doubt standard” and “would be

willing to follow the law,” Mr. Deal declared, “Yes.” Jd.

When the prosecutor explained that “there is [sic] very few

things in life absolutely certain,” Mr. Deal replied, “I

understand.” /d.

The prosecutor turned to Mr. Deal’s belief in capital

punishment to ensure that murderers do not murder again.

He asked Mr. Deal, “if you could be convinced that he

wouldn’t kill again, would you find it difficult to vote for the

death penalty given a situation where he couldn't kill again?”

J.A. 71. Mr. Deal reiterated: “I made that statement more

under assumption [sic] that a person could be paroled. And it

wasn’t until today that 1 became aware that we had a life

without parole in the state of Washington.” J.A. 71. The

prosecutor asked, “can 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?” J.A. 71-72. Confronted

just an hour before with correct information about

Washington’s capital sentencing scheme, Mr. Deal

understandably responded, “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.” J.A.

72. The prosecutor immediately acknowledged: “I realize this

is put on you rather suddenly ....” /d. The prosecutor

posed the following question:

... l’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?

Id. Mr. Deal answered: “Yes, sir.” Jd.

The prosecutor then asked Mr. Deal the following

confusing and double-negative question: “So this idea of him

having to kill again to deserve the death penalty is something

that you are not firm on, you don’t feel that now?” Jd. Mr.

Deal responded: “I do feel that way if parole is an option,

without parole as an option. I believe in the death penalty.

Like I said, I’m not sure that there should be a waiting line of

people happening every day or every week even, but I think

in severe situations it’s an appropriate measure.” J.A. 72-73.

The prosecutor then once again sought and obtained a

pledge by Mr. Deal that he could consider and vote for the

death penalty even if the defendant would never be paroled.

The prosecutor asked, “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?” J.A. 73. Mr.

Deal responded, “I could consider it, yes.” /d The

prosecutor responded, “Then could you impose it?” Mr. Deal

stated: “I could if I was convinced that was the appropriate

measure.” /d. }

The court proceeded to question Mr. Deal. The court

did not inquire as to Mr. Deal’s willingness to consider and

impose a death sentence even if the defendant would never

be released. Rather, the court asked Mr. Deal whether he

now understood the difference between shadow of a doubt

and beyond a reasonable doubt, and Mr. Deal explained,

“The terminology beyond a shadow of a doubt, when | wrote

that | wasn’t even sure whether, I mean, it’s just terminology

that | have heard probably watching Perry Mason or

something over the years.” J.A. 73-74. Mr. Deal added: “I

guess the point | was making that it has to be —-~.” The court

finished his sentence: “You would have to be positive?” Mr.

Deal answered: “I would have to be positive, that’s correct.”

J.A. 74. The court inquired, “The State has to convince

~ you?” Mr. Deal responded, “Yes.” Jd. The court asked, “As

they would have to convince any reasonable person?” Mr.

Deal responded, “Yes.” /d.

In moving to exclude Mr. Deal for cause, the

prosecutor stated that he was not challenging him based upon

his confusion about the television phrase, “shadow of a

7

doubt,” because “I think he would certainly stick with the

reasonable doubt standard. J.A. 75. The prosecutor moved

to challenge Mr. Deal for cause because

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 [sic]. And I am certainly going to

concede that he means beyond a reasonable

doubt. And if a person kills and will kill

again. And | 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 | 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.

J.A. 75. Defense counsel did not object and the trial court

granted the prosecutor’s cause challenge without providing

its reasons. J.A. 75.

On appeal, respondent challenged the exclusion of

Mr. Deal under Wainwright v. Witt, 469 U.S. 412 (1985), and

the Washington Supreme Court denied the claim as follows:

Mr. Deal 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 Mr. Deal for cause.

State v. Brown, 940 P.2d 546, 604 (Wash. 1997).

Subsequently, respondent petitioned for a writ of

habeas corpus in federal court, claiming, inter alia, that

Richard Deal had been unconstitutionally excluded from the

jury due to his views regarding the death penalty. The

district court denied the petition, ruling that there was

“sufficient evidence to establish that each juror’s views

would ‘prevent or substantially impair’ his or her ability to

carry out the duties imposed on jurors.” Pet. 79a.

On appeal, the United States Court of Appeals for the

Ninth Circuit reversed. Brown v. Lambert, 451 F.3d 946, 955

(9h Cir. 2006).? The Court of Appeals stated that the

Washington Supreme Court had not found that Mr. Deal was

“unable to follow instructions” and that the state court could -

not have done so because Mr. Deal “ultimately stated that

[he] could consider the death penalty in an appropriate case.”

Brown, 451 F.3d at 950-51 (citing Gray v. Mississippi, 481

U.S. 648, 653 (1987). The Court of Appeals determined that,

had “there been a finding that [Mr. Deal] was ‘substantially

impaired’ in his ability to follow the law, it would have been

unreasonable.” Brown, 451 F.3d at 951 (citing 28 U.S.C. §§

2254(d)(2), (e)(1) (footnote omitted)). Further, the court held

that the Washington Supreme Court’s stated reasons for

upholding Mr. Deal’s exclusion were “misplaced and

insufficient.” Brown, 451 F.3d at 953.

* The cited opinion replaced an earlier decision reported at 431 F.3d 661,

which also reversed the district court’s decision. A majority of the non-

recused active judges of the Court of Appeals declined to rehear the case

en banc. Brown, 451 F.3d at 947.

SUMMARY OF ARGUMENT

The Washington courts determined that Mr. Deal was

“properly excused” because “[o]n 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.” State v. Brown, 940 P.2d 546, 604 (Wash. 1997). The

courts’ decision “involved an unreasonable application of

clearly established Federal law” for purposes of 28 U. S. j ¢

2254(d)(1) for two reasons:

1. Even if the record reasonably could be read to

indicate that Mr. Deal would have been more inclined to vote

death for a parole-eligible capital defendant and less inclined

to vote death for a parole-ineligible defendant, the

Washington courts unreasonably applied this Court’s

precedents in finding that he was challengeable for cause.

Such inclinations would not have prevented or substantially

impaired the performance of Mr. Deal’s duties in accordance

with his instructions and oath Capital defendants’ future

dangerousness or probable lack of future dangerousness is a

statutorily-prescribed capital sentencing factor under

Washington law. No state law limits capital jurors’

consideration of this factor when deciding a defendant’s fate.

Additionally, such a limitation would not withstand

constitutional scrutiny under this Court’s precedents.

2. The Washington courts unreasonably applied this

Court’s precedents by determining whether Mr. Deal was

biased based upon his views regarding capital punishment

and not upon whether the record as a whole showed that “the

jurors views would prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.” Witt, 469 U.S. at 424 (internal

quotation marks and footnote omitted). A fair, complete and

contextual reading of his voir dire demonstrates that Mr. Deal

10

would have been able to perform his duties in accordance

with his instructions and oath, and would have been able to

consider and impose a death sentence even when the

defendant would never be released from prison.”

For these same reasons, respondent showed by clear

and convincing evidence (provided by the record itself) that

the state courts’ factual finding of juror bias was erroneous

for purposes of 28 U.S.C. §.2254(e)(1), and that the state's

erroneous factual determination, in turn, “resulted in a

decision based on an unreasonable determination of the facts

in light of the evidence presented in the State court

proceeding” within the meaning of 28 U.S.C. § 2254(d)(2).

ARGUMENT

I. THE DECISION BY THE STATE COURTS TO

EXCLUDE MR. DEAL FOR CAUSE

“INVOLVED AN UNREASONBLE APPLICA-

TION OF CLEARLY ESTABLISHED”

SUPREME COURT PRECEDENT.

As recognized by both the Washington state courts

and the Court of Appeals for the Ninth Circuit, this Court's

decision in Wainright v. Witt, 469 U.S. 412 (1985), and its

progeny governed the state courts’ ruling on_ the

prosecution’s challenge for cause of Mr. Deal. As shown

below, the Washington courts’ decisions were an

unreasonable application of United States Supreme Court

precedent for two reasons. — —_

> As shown in the Statement of the Facts, supra, during voir dire, Mr.

Deal repeated four times that he believed in the death penalty in severe

cases. J.A. 58, 58-59, 59, 63. He also repeated four times that he could

impose the death penalty even if the defendant would never be released

from prison. J.A. 61-62, 62, 72, 73.

11

A. EVEN IF Mr. DEAL WOULD HAVE BEEN LESS INCLINED

TO RETURN A DEATH VERDICT FOR A PAROLE-INELIGIBLE

DEFENDANT, HE WAS QUALIFIED TO SERVE UNDER THIS

{COURT’S PRECEDENTS.

Neither Mr. Deal's strong personal support for the

death penalty to prevent recidivist murders nor his alleged

inclination to consider a defendant’s lack of future

dangerousness when determining whether a death sentence is

appropriate justified his excusal under Wainwright v. Witt,

469 U.S. 412, 424 (1985), and its progeny.

In Witt, 469 U.S. at 424, this Court held that the

standard for juror exclusion for cause 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.’” See also Adams v. Texas, 448 U.S. 38, 45 (1980)

(constitutional test for cause exclusion is whether juror’s

views “would prevent or _ substantially impair the

performance of his [or her] duties as a juror in accordance

with [the] instructions and [the] oath”). Thus, the question

under Witt is the prospective juror's “ability to follow the

[pertinent state’s capital punishment] law.” Morgan v.

Illinois, 504 U.S. 719, 734 n.8 (1992). Although it is the

prerogative of the states to enact and interpret their own

capital sentencing laws, Witt clearly establishes that the Sixth

and Fourteenth Amendments prohibit states from excusing

prospective jurors for cause without determining that they are

unable to follow the relevant state law. Witt, 469 U.S. at

423-24.

The Washington courts failed to address Mr. Deal’s

ability to follow Washington’s capital punishment law, see

Brown, 940 P.2d at 604,* and, thus, unreasonably applied

* The Washington Supreme Court confined its cursory analysis to

whether Mr. Deal could correctly state the law, and failed to analyze

whether he could follow the law.

12

Adams, Witt and Morgan. Had the Washington courts

considered the question dictated by these precedents, they

would have analyzed Mr. Deal’s statements during voir dire

in the context of Washington’s capital punishment scheme,

including the central importance in the scheme of future

dangerousness and lack of probable future dangerousness,

and would have concluded that Mr. Deal was fully able to

follow Washington law. ;

Certainly, Mr. Deal's expressions of strong personal

support for the death penalty to prevent recidivist murders

did not render him unable to follow Washington's capital law

and, thus, constitutionally unqualified to serve under Adams,

Witt and Morgan. See also Point I (B), infra (demonstrating

that Washington courts unreasonably applied this Court's

precedents by considering only Mr. Deal's views on the death

penalty instead of his ability to follow the law). In addition,

as demonstrated below, Mr. Deal was qualified under this

Court’s precedents even if the record supported the

contention that he “indicated on several occasions that he

would view the likelihood that a defendant would be released

and commit murder again as a central consideration when

assessing whether imposition of a capital sentence would be

warranted.””> Amicus Br. for United States at 14-15: see also

id. at 23.°

Like numerous other states’ and as permitted by this

’ By “a central consideration,” we understand the government to mean

one highly significant consideration, among others.

®* In fact, as demonstrated in the Statement of the Facts, supra, a fair,

complete and contextual reading of his voir dire demonstrates that Mr.

Deal could consider and impose a death sentence even if the defendant

would never be released from prison.

” See Mitzi Dorland and Daniel Krauss, The Danger of Dangerousness in

Capital Sentencing: Exacerbating the Problem of Arbitrary and

Capricious Decision-Making, 29 Law & Psychol. Rev. 63, 64 (Spring

2005) ("Of the thirty-eight states with death penalty statutes, at least

twenty-one now include a defendant's potential for future violence among

13

Court’s precedents,® the State of Washington recognizes

future dangerousness as a legitimate sentencing consideration

in capital cases. One of the state statutory provisions

governing capital trials states that “[iJn deciding [whether to

impose a sentence of death] the jury, or the court if a jury is

waived, may consider any relevant factors, including but not

limited to . . . [w]hether there is a likelihood that the

defendant will pose a danger to others in the future.” Wash.

Rev. Code Ann. § 10.95.070 (8) (West 2007).? The

Washington Supreme Court has construed this statute to

mean that “future dangerousness or the probable lack of

future dangerousness of the defendant is a relevant factor for

a jury's consideration in deciding whether to impose a death

sentence. In the penalty phase of a capital trial, the jury

knows the defendant is a convicted felon. But the extent to

which he continues to be dangerous is a central issue the jury

must decide in determining his sentence.” State v. Finch, 975

P.2d 967, 1008 (Wash. 1999) (internal quotation marks and

citation omitted) (emphasis added). See also State v.

Gregory, 147 P.3d 1201, 1257 n.46 (Wash. 2006) (“future

dangerousness or the probable lack of future dangerousness

of the defendant is a relevant factor for a jury's consideration

at the penalty phase”) (internal quotation marks and citations

omitted).'° No state law limits capital jurors’ consideration

the aggravating factors to be considered in death sentencing.") (footnotes

omitted).

* See, e.g., Jurek v. Texas, 428 U.S. 262, 274-76 (1976) (rejecting claim

that future dangerousness was an invalid consideration in imposing the

death penalty); Barefoot v. Estelle, 463 U.S. 880, 896-97 (1983)

("likelihood of a defendant committing further crimes is a constitutionally

acceptable criterion for imposing the death penalty").

* This statutory provision was enacted in 1981. It first appeared in the

court’s jurisprudence in 1982. See State v. Bartholomew, 654 P.2d 1170,

1181 n.1 (Wash. 1982), vacated on other grounds sub nom., Washington

v. Bartholomew, 463 U.S. 1203 (1983).

'° See also Skipper v. South Carolina, 476 U.S. |, 5 (1986) (under Eighth

Amendment, “evidence that the defendant would not pose a danger if

14

of this factor when deciding a defendant’s fate.

Petitioner contends that the “only . . . statutory

question” for capital jurors is whether they are ‘““convinced

beyond a reasonable doubt that there are not sufficient

mitigating circumstances to merit leniency[.]’” Pet. Br. at 38

(quoting Wash. Rev. Code § 10.95.060(4) (emphasis added)).

However, Washington law permits capital jurors to make the

determination of whether there are. “sufficient mitigating

circumstances to merit leniency” by considering future

dangerousness and the probable lack of future dangerousness.

Wash. Rev. Code § 10.95.070 (8). It is thus entirely

appropriate for a capital juror in Washington to consider

future dangerousness or the probable lack of future

dangerousness in deciding a capital defendant’s fate. And no

Washington law limits capital jurors’ consideration of this

factor. Like all capital jurors in the State of Washington, Mr.

Deal was entitled to consider the likelihood that the

defendant would commit further crimes when determining

the appropriate sentence.

Because the Washington courts failed to determine

that Mr. Deal could not follow Washington law, the state

courts’ decisions “involved an unreasonable application of

clearly established Federal law” for purposes of 28 U.S.C. §

2254(d)(1). Cf Wiggins v. Smith, 539 U.S. 510, 527 (2003)

(finding state court decision rejecting ineffective assistance

of counsel claim an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984), where state court deferred

to tral counsel’s “strategic” decisions based on inadequate

investigation); Williams v. Taylor, 529 U.S. 362, 397-98

spared (but incarcerated) must be considered potentially mitigating”). Cf

Simmons v. South Carolina, 512 U.S. 154, 161-62 (1994) (plurality

opinion) (parole ineligibility is relevant to the issue of a capital

defendant’s future dangerousness); Kelly v. South Carolina, 534 U\S.

246, 257 (2002) (same); Shafer v. South Carolina, 532 U.S. 36, 49 (2001)

(same).

15

(2000) (finding unreasonable application of Strickland, 466

U.S. at 684, where state court failed to consider mitigation

evidence in determining Strickland’s prejudice prong, and

where its analysis turned on the narrow exception set forth in

Lockhart v. Fretwell, 506 U.S. 364 (1993), rather than

Strickland’s reasonable probability test).

Furthermore, the Washington Supreme Court’s

holding in this case cannot plausibly be read to effect a

radical, one-time reversal of the state’s long-standing rule

that future dangerousness and a probable lack of future

dangerousness are proper considerations for capital jurors in

that state and that jurors may give these statutory sentencing

factors the weight they deem appropriate. Cf Amicus Br. for

United States at 14-15, 23 (arguing that the Washington

courts excluded Mr. Deal because he would have wrongfully

accorded lack of future dangerousness too much mitigating

weight). For one thing, nothing in the court's opinion evinces

an intent to effect such a monumental change. Moreover, as

explained above, Wash. Rev. Code Ann. § 10.95.070 was

enacted in 1981, the court first cited it in 1982 and, as

recently as 2006, the court reiterated that “future

dangerousness or the probable lack of future dangerousness

of the defendant is a relevant factor for a jury’s consideration

at the penalty phase.” Gregory, 147 P.3d at 1257 n.46.

In any event, under this Court’s precedents, the

Eighth Amendment would prohibit Washington from limiting

capital jurors’ authority to consider and determine the weight

of a defendant’s mitigating factors, including a probable lack

of future dangerousness. The Eighth Amendment

“guarantees a defendant facing a possible death sentence . . .

the right to consideration of” his mitigating factors “by the

sentencing authority.” Franklin v. Lynaugh, 487 U.S. 164,

184 (1988) (O’Connor, J., concurring) (citing Lockett v.

Ohio, 438 U.S. 586 (1978)). Lockett established that a State

may not prevent the capital sentencer “from giving

16

independent mitigating weight" to a defendant’s mitigating

factors. 438 U.S. at 605. Under Lockett and its progeny, the

“sentencer determine[s] the weight to be given relevant

mitigating evidence.” Eddings v. Oklahoma, 455 U.S. 104,

114-15 (1982); see also id. at 115 n.10; Mills v. Maryland,

486 U.S. 367, 376 n.8 (1988) (under Eighth Amendment, it is

in “jury’s discretion [to] attach[] significance to the presence

of mitigating circumstances”).

Thus, if the Washington Supreme Court’s decision in

this case is somehow construed to effect a radical, one-time

reversal of the state’s long-standing rule that future

dangerousness and a probable lack of future dangerousness

are proper considerations for capital jurors in that state and

that jurors may give these statutory sentencing factors the

weight they deem appropriate, the decision unreasonably

applied Lockett and its progeny. Cf Wiggins, 539 U.S. at

527; Williams, 529 U.S. at 397-98. So construed, the court’s

decision would “involve[] an unreasonable application of

clearly established Federal law” for purposes of 28 U.S.C. §

2254(d)(1).

B. WASHINGTON COURTS UNREASONABLY APPLIED THIS

COURT’S PRECEDENTS BY DETERMINING WHETHER MR.

DEAL WAS QUALIFIED TO SERVE BASED UPON HIS VIEWS

REGARDING THE DEATH PENALTY RATHER THAN HIS

ABILITY TO FOLLOW THE LAW.

The Washington Supreme Court’s decision also was

an unreasonable application of this Court’s precedents

because the court determined Mr. Deal was biased based

upon his views regarding the death penalty and ignored his

repeatedly-expressed willingness to follow the law and

impose a death sentence in appropriate circumstances, even if

the defendant would never be released. See Brown, 940 P.2d

at 604 (listing beliefs about death penalty stated by Mr. Deal

during voir dire and ignoring his repeatedly-stated ability to

17

follow the law)."" Under this Court’s case law, the

appropriate inquiry is not focused on prospective jurors’

views about the death penalty, but rather their ability to

perform their duties in accordance with the law, judicial

instructions, and their oath. See Witt, 469 U.S. at 424 (“Thfe}]

standard 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.””). The state

courts unreasonably failed to employ that standard in this

case.

The distinction between a juror’s views regarding the

death penalty and his or her ability to follow the law is

clearly established by Adams v. Texas, 448 U.S. 38 (1980),

Witt, 469 U.S. at 424, Darden v. Wainwright, 477 U.S. 168,

178 (1986), and Morgan vy. Illinois, 504 U.S. 719 (1992). In

Adams, this Court reversed petitioner’s death sentence

because prospective jurors at his trial were improperly

excused for cause based upon their views against capital

punishment. The Court stated that the constitutional test for

cause exclusion is not whether jurors opposed capital

punishment but whether their views “would prevent or

substantially impair the performance of [their] duties as a

juror in accordance with [their] instructions] and [their]

oath.” 448 U.S. at 45. The Court also stated that an

“inability to deny or confirm any effect whatsoever [of the

prospective juror’s views of capital punishment] is [not]

equivalent to an unwillingness or an inability on the part of

'! The Washington Supreme Court also noted Mr. Deal’s statement in his

jury questionnaire referencing proof “beyond a shadow of a doubt.’”

Brown, 940 P.2d at 604. Neither the prosecutor at trial nor Petitioner in

this Court assert that this misstatement of law -- made before Deal had

been instructed that the burden is beyond a reasonable doubt and agreed

to apply the correct standard ~ rendered Mr. Deal excludable for cause.

See, e.g., J.A. 75 (prosecutor moving to challenge Mr. Deal for cause “not

on the term beyond a shadow of a doubt, I think he would certainly stick

with the reasonable doubt standard”).

18

the jurors to follow the court’s instructions and obey their

oaths,” and that Texas had improperly excluded for cause

jurors “whose only fault was . . . to acknowledge honestly

that they might or might not be affected” by the prospeci of

imposing a death sentence. /d. at 50-51.

In Witt, the Court explicitly adopted the Adams test,

holding that the standard for juror exclusion 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.” 469 U.S. at 424. The Court

made clear that the appropriate inquiry cannot be limited to a

mechanical recitation of a single question and answer. /d. at

424-26. In Darden, the Court reiterated this- test and

explained that the determination of whether a trial court

improperly granted a prosecution cause challenge under Witt

must involve an examination of “the context surrounding”

the juror’s exclusion. 477 U.S. at 176. In Morgan, the Court

applied this test to defense challenges for cause of

prospective jurors based on their views regarding capital

punishment. 504 US. at 728.

Under Adams, Witt, Darden and Morgan, a court

must not simply inquire whether jurors’ feelings and: beliefs

regarding capital punishment conform to the law, but also

must determine whether those feelings and beliefs would

prevent or substantially impair the juror from following the

law. Here, the only inquiry made by the Washington

Supreme Court was whether Mr. Deal’s beliefs regarding

capital punishment correctly stated the law. See Brown, 940

P.2d at 604. Under this Court’s precedents, beliefs stated

during voir dire by prospective jurors about capital

punishment do not determine their qualifications to serve.

Intuitively knowing and agreeing personally with capital

sentencing law is not a prerequisite for jury service. When

s/he sits down in the jury box, a prospective capital juror

need not be able to articulate when imposing a death sentence

19

would be legally authorized. Moreover, the parties and the

courts rightfully expect prospective jurors to speak with

candor concerning their feelings about the death penalty (and

any other pertinent issue) during the jury selection process.

As one state court has noted,

Voir dire examination occurs when a

prospective juror quite properly has little or no

information about the facts of the case and

only the most vague idea as to the applicable

law.

Soto v. Commonwealth, 139 S.W.3d 827, 848-49 (Ky. 2004).

Numerous courts recognize that under this Court’s

precedent the relevant inquiry is not whether prospective

jurors’ beliefs regarding capital punishment conform to ihe

law, but whether they can put aside those beliefs and fairly

apply the law. See, e.g., Szuchon v. Lehman, 273 F.3d 299,

329 (3d Cir. 2001) (reversing when a juror was “barred from

jury service because of [his] views about capital punishment .

... [, not because of his] inability to follow the law or abide

by [his] oath[{]”); Gall v. Parker, 231 F.3d 265, 330-31 (6th

Cir. 2000) (reversing where prospective juror’s “discomfort

with the death penalty did not appear to ‘prevent or

substantially impair the performance of his duties as a juror

in accordance with his instructions and his oath’”); United

States. v. Chanthadara, 230 F.3d 1237, 1272 (10th Cir. 2000)

(vacating sentence where the trial court “failed to clarify prior

to excusing [prospective juror] for cause that she opposed the

death penalty to a degree which would have made it

impossible for [her] to follow the law”) (internal citations and

quotation marks omitted); People v. Heard, 75 P.3d 53, 64

(Cal. 2003) (“In view of [prospective juror’s] clarification of

his views during voir dire, we conclude that his earlier juror

questionnaire response, given without the benefit of the trial

court’s explanation of the governing legal principles, does

not provide an adequate basis to support [his] excusal for

20

cause.”); Farina v. State, 680 So. 2d 392, 398 (Fla. 1996)

(reversing death sentence where, although prospective juror

“may have equivocated about her support for the death

penalty, her views on the death penalty did not prevent or

substantially impair her from performing her duties as a juror

in accordance with her instructions and oath”); Jarrell v.

State, 413 S.E.2d 710, 712 (Ga. 1992) (reversing where the

evidence showed that prospective juror had “qualms” about

imposing the death penalty, not that she was unable to follow

the law); Clark v. State, 929 S.W.2d 5, 10 (Tex. Crim. App.

1996) (reversing where prospective juror with religious

scruples against the death penalty was struck for cause

without sufficient “inquiry whether” she could follow Texas

law “and answer the special issues without conscious

distortion or bias”); Durrough v. State, 620 S.W.2d 134, 142

(Tex. Crim. App. 1981) (reversing where prospective juror

who had conscientious scruples against capital punishment

repeatedly stated that she could answer the questions put to

her based on the evidence presented at punishment phase of

trial).

Indeed, courts virtually always deny defense cause

challenges to prospective jurors who personally favor the

death penalty in all murder cases, but who, like Mr. Deal,

make clear that they can follow the law once the law is

explained to them. See, e.g., Johnson v. State, 820 So. 2d

842, 853-55 (Ala. Crm. App. 2000) (rejecting defendant’s

argument that trial court erred by denying his cause

challenges to prospective juror who favored an “eye for an

eye” and to similar prospective jurors, and noting that “jurors

who give responses that would support a challenge for cause

may be rehabilitated by subsequent questioning by the

prosecutor or the court”); People v. Ledesma, 140 P.3d 657,

672-75 (Cal. 2006) (affirming denial of challenges to several

prospective jurors who were strongly in favor of the death

penalty, including one who said that “anyone who

intentionally kills another person automatically should

21

receive the death penalty and that he would not be willing to

give weight to the defendant’s background”); Conde v. State,

860 So. 2d 930, 939, 941 (Fla. 2003) (affirming denial of

cause challenge to prospective juror who initially said she

“would automatically be in favor of the death penalty” and to

one who initially said “he felt the death penalty should be

mandatory in some circumstances”); Sallie v. State, 578

S.E.2d 444, 508 (Ga. 2003) (affirming denial of cause

challenge to juror who initially said that “if someone

committed murder he should get the death penalty and that he

believed in an eye for an eye”); Soto, 139 S.W.3d at 849

(affirming denial of challenge to prospective juror who

initially said she was in favor of an eye for an eye); State v.

Juniors, 915 So. 2d 291, 310 (La. 2005) (affirming denial of —

cause challenge to prospective juror who initially said he

believed in an eye for an eye and that “if you kill somebody,

you don’t deserve to live”), cert. denied, 126 S.Ct. 1940

(2006); Threadgill v. State, 146 S.W.3d 654, 66-69 (Tex.

Crim. App. 2004) (affirming denial of challenge to

prospective juror who initially said that “no one should be

allowed to live for killing someone _ else”).

The Washington Supreme Court’s decision was an

unreasonable application of Adams, Witt, Darden and

Morgan because the court determined that Mr. Deal was

biased based upon his views regarding the death penalty and

ignored his repeatedly-expressed willingness to follow the

law and impose a death sentence in appropriate

circumstances, even if the defendant would never be

released. See Brown, 940 P.2d at 604. Like the prospective

jurors in the above-cited cases, Mr. Deal explained his

personal views regarding the death penalty, but repeatedly

made clear that he could consider and impose a death

sentence under the law as instructed, including when the

defendant would never be released. J.A. 60, 61-62, 62, 72,

73.

22

By making their determination solely on the basis of

Mr. Deal’s stated views about capital punishment, the

Washington courts utilized a standard contrary to this Court’s

precedents and, thus, their decisions “involved an

unreasonable application of clearly established Federal law”

for purposes of 28 U.S.C. § 2254(d)(1). See Wiggins, 539

U.S. at 527; Williams, 529 U.S. at 397-98 (finding

unreasonable application of clearly-established federal law

where state courts’ analysis turned on wrong standard of

review for ineffective assistance of counsel claim).

Il. RESPONDENT SHOWED BY CLEAR AND

CONVINCING EVIDENCE THAT THE STATE

COURTS’ FACTUAL FINDING OF JUROR

BIAS WAS ERRONEOUS AND, IN TURN,

THAT THE STATE COURTS’ FINDING WAS

AN UNREASONABLE DETERMINATION OF

THE FACTS.

Respondent Brown showed by clear and convincing

evidence (provided by the record itself) that the state courts’

tinding of juror bias was erroneous for purposes of 28 U.S.C.

§ 2254(e)(1). In turn, the state's erroneous determination

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding” within the meaning of 28

U.S.C. § 2254(d)(2).

The record in this case contains no evidence that Mr.

Deal was biased against the prosecution as this Court has

construed the meaning of bias in the capital context. See

Point I, supra. The state courts’ finding of juror bias was

unreasonable under 28 U.S.C. § 2254(d)(2) and erroneous for

purposes of 28 U.S.C. § 2254(e)(1) for the same reasons that

the state court unreasonably applied this Court’s precedents

for purposes of 28 U.S.C. § 2254(d)(1). See Point I, supra.

Most specifically, the state courts’ factual finding of juror

bias was erroneous because Mr. Deal’s views regarding

23

capital punishment did not prevent or substantially impair

him from following Washington’s capital punishment

scheme.

That the state courts’ finding of bias was erroneous

under 2254(e)(1) is readily apparent when Mr. Deal’s voir

dire is compared with the voir dire of the juror who this

Court found biased in Wainwright v. Witt, supra, and the voir

dire of the juror who this Court found sufficiently impartial

in Gray v. Mississippi, 481 U.S. 648 (1987).

Here is the pertinent voir dire of the unqualified

prospective juror in Witt:

“(Q. Prosecutor:}] Now, let me ask you a

question, ma'am. Do you have any religious

beliefs or personal beliefs against the death

penalty?

“[A. Colby:] I am afraid personally but not-

“[Q]: Speak up, please.

“[A]: I am afraid of being a little personal, but

definitely not religious.

“[Q]: Now, would that interfere with you

sitting as a juror in this case?

“[A]: | am afraid it would.

“[Q]: You are afraid it would?

“[A]: Yes, Sir.

“[Q]: Would it interfere with judging the guilt

or innocence of the Defendant in this case?

“[A]: | think so.

“{Q]: You think it would.

“[A]: I think it would.

24

“(Q]: Your honor, | would move for cause at

this point.

“THE COURT: All right. Step down.”

Witt, 469 U.S. at 415-16. The difference between the views

of this juror in Witt and the views of Mr. Deal could not be

starker. The above exchange, short though it was, obviously

established a sound predicate for a finding that the

prospective juror was substantially impaired in her ability to

follow the law. Here, in sharp contrast to Witt, the record

plainly and unambiguously establishes that Mr. Deal was

more than willing to convict and impose a death sentence -

so long as the State met its burden of demonstrating to him

that it “was the appropriate measure.” J.A. 73.

The voir dire in Gray also demonstrates that the state

court’s finding of bias in this case was erroneous under 28

U.S.C. § 2254(e)(1). In Gray, this Court agreed with the

Mississippi Supreme Court that the trial court had erred by

granting the prosecution’s challenge for cause of a

prospective juror. 481 U.S. at 659. As this Court explained,

“Although the voir dire of member Bounds was somewhat

confused, she ultimately stated that she could consider the

death penalty in an appropriate case .. .” /d at 653.

Similarly, Mr. Deal stated that he could consider — and

indeed that he could impose — the death penalty in an

appropriate case. J.A. 60, 62, 72, 73. Thus, both Witt and

Gray serve to establish that the state courts’ finding of juror

bias was erroneous for purpose of 28 U.S.C. § 2254(e)(1).

The Washington courts’ error is also amply

demonstrated by comparisons with the lower court decisions

addressing trial court’s findings of bias set forth in Point I.B,

supra. These cases, particularly those upholding trial court

decisions denying defense cause challenges under Morgan,

underscore the unreasonableness of the trial court's factual

determination that Mr. Deal was not qualified to serve.

25

Courts routinely deny defense cause challenges when jurors

initially insist on “an eye for an eye” in all murder cases, and

then, after the law is explained to them, assert that they can

follow the law. Why did the Washington courts fail to

employ this same standard in this case? The record provides

no answer. Rather, clear and convincing evidence — Mr.

Deal's repeated and uncontradicted assurances that he could

follow the law — rebuts the state court finding that he was

unqualified to serve by clear and convincing evidence and

shows that finding to be unreasonable. 28 U.S.C. § §

2254(d)(2), 2254(e)(1). See Miller-El v. Dretke, 545 US.

231, 265 (2005) (discrediting under these statutory habeas

standards prosecutor’s denial that he struck jurors because of

their race based on “‘how reasonable, or how improbable, the

[prosecutor’s] explanations’” were in light of the contrary

facts in the record).

26

CONCLUSION

For the reasons stated herein, the judgment below

should be affirmed.

Respectfully submitted,

John Holdridge

Brian W. Stull

(Counsel of Record)

American Civil Liberties Union

Foundation

201 W. Main Street, Suite 402

Durham, NC 27701

(919) 682-5659

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

Sarah A. Dunne

Nancy L. Talner

ACLU of Washington

Foundation

705 2™ Avenue, 3d Floor

Seattle, WA 98104

_ (206) 624-2180

Larry Yackle

: Boston University School

of Law

765 Commonwealth Avenue

Boston, MA 02214

(617) 353-2826

Dated: March 28, 2007

28