Amicus Curiae Brief — Uttecht v. Brown

FILED

24 S18 ; “ee

‘. :

} of) MAR 39 2007

No. 06-413 OFFICE OF THE SLERK |

IN THE

Supreme Court of the United States

Jeffrey A. Uttecht,

Petitioner,

v.

Cal Coburn Brown,

Respondent.

On a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

SUPPORTING RESPONDENT

Jeffrey L. Fisher Amy Howe

Co-Chair Kevin K. Russell

NACDL AMICUS COMMIT LEE Counsel of Record

559 Nathan Abbott Way HOWE & RUSSELL. P.C.

Stanford, CA 94305 4607 Asbury PI. NW

Washington, DC 20016

Pamela S. Karlan (202) 237-7543

STANFORD LAW SCHOOL

SUPREME COURT Thomas C. Goldstein

LITIGATION CLINIC AKIN, GUMP, STRAUSS,

559 Nathan Abbott Way HAUER & FeLp LLP

Stanford, CA 94305 1333 New Hampshire Ave.,

NW

Susan Rozelle Washington, DC 20036

CAPITAL UNIV. LAW SCHOOL

303 E. Broad Street

Columbus, OH 43215

March 30, 2007

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WiILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002

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i

TABLE OF CONTENTS

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INTEREST OF AMICUS CURTAB.........0.cccccerssrecsscocscosssecsosees ]

ng EE 2

FIED cenceniissiiscnminsnensininaninnmmninnnainingmmenaens +

I. Limitations On Striking Jurors For Cause Based On

Their Views About The Death Penalty Are

Necessary To Preserve The Integrity And

Representativeness Of Capital Juries. ..............:c:eeeeees 4

Il. The Dismissal Of Juror Deal Was Unconstitutional

And Warranted Habeas Rellief..................................00000 9

A. The State Courts’ Dismissal Of Juror Deal

Was Based Upon A __ Fundamental

Misconstruction Of This Court’s Decisions............ 9

l. Deal’s Misarticulation Of The Burden

Of Proof Was Not A Legitimate Basis

ge TE aR eee a G

2. Deal’s Indication That He Would Give

Substantial Weight To Whether The

Defendant Might Kill Again Was Not

A Legitimate Basis For Dismissal. ........... 10

B. ‘There Was No Reasonable Basis For The State

Courts To Conclude That Deal Was Unwilling

To Consider The Death Penalty. ................ccceee 15

a erniscsorssnnscncstitrennnsnnestiensciiiinnomeeéidiupeenisbiciaisieatiien 20

TABLE OF AUTHORITIES

Federal Cases

Adams v. Texas, 448 U.S. 38 (1980)...........ccccceeees 4,7, 13,14

Calderon v. Coleman, 525 US. 141 (1998) .......cccceeeeeeeeees 16

Duncan v. Louisiana, 391 U.S. 145 (1968) ...........cccceceeeeeees 5

Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952) .............. 18

Eddings v. Oklahoma, 455 U.S. 104 (1982) .........cccccceseeeeeeee 12

Gray v. Mississippi, 481 U.S. 648 (1987)............... 6,7, 11,14

Gregg v. Georgia, 428 U.S. 153 (1976) ........cccceceseeeeeeeeeeees 6

vin ¥. Dowd, F6B U.S. TUT (1961 )..0ccccccsececcccsccsosccceccesecccceess 4

Lockhart v. McCree, 476 U.S. 162 (1986)............ccccceeeeeee 7, 13

Miller-El v. Cockrell, 537 U.S. 322 (2003) .........:cccceeeseeeeees 18

Morgan v. Illinois, 504 U.S. 719 (1992).........cccccceeceseseeeceeeeees 8

Patton v. Yount, 467 U.S. 1025 (1984) 0.0... eceeseseeeeeees 14

Ring v. Arizona, 536 U.S. 584 (2002)..............:ccccceessserseeeeeeees 5

Skipper v. South Carolina, 476 U.S. 1 (1986)................ 12,14

Sweltte v. Temas, S43 U.S. 37 (ZOG4) ..0cccccocccccccscececcccccccsccccsees 12

Taylor v. Louisiana, 419 U.S. 522 (1975) .....ceccccceseeeeeeeees 6,7

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

Witherspoon v. Illinois, 391 U.S. 510 (1968)..............- passim

State Cases

State v. Finch, 137 Wash. 2d 792 (Wash. 1999) ................. 12

State v. Gentry, 125 Wash. 2d 570 (Wash. 1995)................. 12

Federal Statutes

Fs TE aiciniininisiesscrnhcistcipareniintitiaiinincciemenvadiniiiiiialiisad 9

ie te I Giciciiccnssduinncenniccnremnniniaiimatinenbansiniia 9,18

State Statutes

Se es ae CITI ii niviccinsiistcthiesicitinaninntcinindnnnntiintins 1]

Wann. Mev. Code © 16.995. QGGl4).......ccccccccsessosccsscescessosssvesecsses 2

Wash. Rev. Code § 10.95.070(8)..........:ccecessssseeeeeeees 2,11, 14

ill

Other Authorities

Joseph Carroll, Gallup Poll: Who Supports the Death

SN thy AI aicesncniensininnemnesensisensnttinionneineninisiestins

Samuel R. Gross & Phoebe C. Ellsworth, Second

Thoughts: Americans’ Views on the Death Penalty at

the Turn of the Century, in BEYOND REPAIR?

AMERICA’S DEATH PENALTY 7 (Stephen P. Garvey ed.,

ase istiessincaibceniehinasialainitdieaniinsunasnnctnseninetaiaidiaseniinaniaaaeniniiies

Joseph E. Jacoby & Raymond Paternoster, Sentencing

Disparity and Jury Packing: Further Challenges to the

Death Penalty, 73 J. Crim. L. & CRIMINOLOGY 379

Susan D. Rozelle, The Utility of Witt: Understanding the

Language of Death Qualification, 544 BAYLOR L. REv.

gg _______ SERENE EOE nN ON OTE On OT eT

Welsh S. White, The Constitutional Invalidity of

Convictions Imposed by Death-Qualified Juries, 58

I Ris es OO Be Ue ncrepsincsccintsinnienincctntdctntnnionainnisciins

76

<=

INTEREST OF AMICUS CURIAE

National Association of Criminal Defense Lawyers

(NACDL) is a District of Columbia nonprofit corporation

with a membership of more than 10,000 attorneys nationwide,

along with eighty state and local affiliate organizations

numbering 28,000 members in fifty states. NACDL was

founded in 1958 to promote study and research in the field of

criminal law and procedure, to disseminate and advance

knowledge of the law in the area of criminal justice and

practice, and to encourage the integrity, independence, and

expertise of defense lawyers in criminal cases in the state and

federal courts. Among NACDL’s objectives are to ensure

that appropriate measures are taken to safeguard the rights of

all persons involved in the criminal justice system and to

promote the proper administration of justice.’

' Pursuant to Rule 37.6, amicus curiae states that no counsel for a

party authored any part of this brief, and no person or entity, other

than the amicus curiae, its members, and its counsel made a

monetary contribution to the preparation or submission of this brief.

Counsel of record for both parties have consented to the filing of

this brief.

2

SUMMARY OF ARGUMENT

This Court has long recognized that the practice of death

qualification, excluding individuals from capital juries based

on their beliefs about the death penalty, must be strictly

circumscribed in order to ensure a fair trial for the accused

and to preserve the jury’s historic role as the community’s

representative in rendering the gravest decision the criminal

justice system is ever called upon to make. Both this Court’s

decisions and empirical studies reflect that the liberal

dismissal of jurors who express reservations about capital

punishment in general, or a reluctance to impose it except in

restricted circumstances,-skews capital juries toward death

and undermines the representative nature of the jury and,

thereby, public confidence in the capital sentencing process.

To balance these risks against the State’s legitimate

interest in removing jurors who are unwilling to follow the

law, this Court established in Wainwright v. Witt, 469 U.S.

412 (1985), that a juror may not be excused for cause based

on his views on capital punishment unless the prosecution

demonstrates that those views prevent or substantially impair

his ability to do his duty as a juror and follow his oath. In

Washington, as in many states, that duty entails the exercise

- of substantial judgment and discretion about when death is

appropriate or leniency warranted. In fact, by statute, a

Washington jury is simply asked whether “sufficient

mitigating circumstances merit leniency.” Wash. Rev. Code

§ 10.95.060(4). In making that determination, the jury may

consider any fact in mitigation, including “[w]hether there is a

likelihood that the defendant will pose a danger to others in

the future.” /d. § 10.95.070(8). Only if a juror is incapable of

exercising that broad discretion may he be dismissed for

cause under Witt.

In this case, the trial court dismissed juror Richard Deal

after the prosecution objected that Deal “never overcame [the]

idea that [the defendant] must kill again... or be in a

position to kill again” in order to warrant a death sentence.

Pet. App. 241la-242a. Although Deal repeatedly expressed his

3

willingness and ability to consider either life or death as a

possible sentence, the state supreme court upheld the

dismissal. It did so principally on the ground that Deal’s

reluctance to vote for death in the absence of a risk of re-

offense was, in that court’s view, inconsistent with state law,

which requires that those not sentenced to death be subject to

life imprisonment without possibility of parole. The Ninth

Circuit properly concluded that this decision constituted an

unreasonable application of this Court’s settled precedents.

Juror Deal’s statements reflected nothing more than his

belief that a lack of future dangerousness is an important

mitigating factor counseling against imposition of the death

penalty. Washington law expressly permits a juror to decline

to impose the death penalty in light of that consideration.

Moreover, Deal’s views did not preclude him from

considering death as a possible sentence, as he repeatedly and

directly affirmed. Even if there is no prospect that a

defendant charged with aggravated murder will ever be

released into the community, he may nonetheless pose a risk

to other inmates or prison officials while incarcerated. Deal

made quite clear that if such a risk were proven, he would

likely conclude that the death penalty was appropriate.

Nor can petitioner defend the trial court’s ruling based

solely on speculation that demeanor evidence, not apparent in

ths record, provided the court with substantial grounds to

doubt Deal’s ability to follow the law. Neither court below

indicated that it was basing its decision on anything other than

the plain import of Deal’s verbal answers as reflected in the

transcript. Those answers plainly provided no

constitutionally adequate ground for dismissal. To

nonetheless withhold habeas relief because of the

hypothetical possibility that the trial court could have found,

without mentioning, that Deal’s demeanor told a different

story than his words, would effectively eliminate the Great

Writ as a remedy for Sixth Amendment violations in the jury

selection process.

ARGUMENT

I. Limitations On Striking Jurors For Cause Based On

Their Views About The Death Penalty Are Necessary

To Preserve The Integrity And Representativeness Of

Capital Juries.

In Witherspoon y. Illinois, 391 U.S. 510 (1968), and

Wainwright v. Witt, 469 U.S. 412 (1985), this Court

established the constitutional balance between a state’s

legitimate interest in excluding jurors unable to perform their

duties in capital cases and defendants’ right to an impartial

jury capable of expressing the broader community’s judgment

concerning life and death. Lax enforcement of the resulting

constitutional standard threatens to undermine the fairness of

the capital sentencing process, while also reducing the

representative nature of capital juries and undermining public

confidence in the administration of the death penalty. See

generally, Susan D. Rozelle, The Utility of Witt:

Understanding the Language of Death Qualification, 54

BAYLOR L. REV. 677 (2002).

1. “In essence, the right to jury trial guarantees to the

criminally accused a fair trial by a panel of impartial,

‘indifferent’ jurors.” Jrvin v. Dowd, 366 U.S. 717, 722

(1961). This Court has long recognized that the

unconstrained dismissal of capital jurors based on their views

about the death penalty impairs the defendant’s right to an

impartial jury. To be sure, the State thus has a legitimate

interest in excusing potential jurors who are “wholly unable

even to consider imposing the death penalty, no matter what

the facts of a given case.” Adams v. Texas, 448 U.S. 38, 40

(1980). At the same time, however, permitting the liberal

dismissal of jurors who express disagreement with the death

penalty in general, or a reluctance to impose it, creates a

constitutionally unacceptable risk of producing “a jury

uncommonly willing to condemn a man to die.”

Witherspoon, 391 U.S. at 521. Removing jurors who have

5

qualms or hesitations about imposing the death penalty, but

are able to fulfill their oaths and follow the court’s

instructions, inevitably skews the jury toward a capital

sentence.” By removing those jurors who would think

carefully about the evidence before choosing death, capital

defendants are left with those jurors who will impose death

less thoughtfully, and more readily, than a more

representative jury would.

The constitutional limitation on the removal of jurors for

cause from capital juries is also necessary to preserve the role

of juries in representing the broader community’s views on

whether a defendant deserves death or leniency. See

Witherspoon, 391 U.S. at 520; Ring v. Arizona, 536 U.S. 584,

615-16 (2002) (Breyer, J., concurring in the judgment). The

Sixth Amendment “reflect[s] a fundamental decision about

the exercise of official power — a reluctance to entrust plenary

powers over the life and liberty of the citizen to one judge or

to a group of judges. Fear of unchecked power . . . found

expression in the criminal law in this insistence upon

community participation.” Duncan v. Louisiana, 391 U.S.

145, 156 (1968). In a capital case, that “community

participation” takes on special significance. “[O]ne of the

most important functions any jury can perform in making .. .

a selection (between life imprisonment and death for a

* One study attempted to quantify the effect of death

qualification on a jury’s willingness to impose the death penalty by

surveying registered voters regarding conclusions they had drawn

about actual, on-going capital trials in the interviewees’ county.

After aSking whether the subject would vote to impose the death

sentence in the local trial, the study then determined whether the

subject would be subject to disqualification based on his or her

views on the death penalty. The authors found that death

qualification would exclude 7.4% of those who favored the death

penalty in the local cases, and 50.5% of those who favored life

imprisonment. Joseph E. Jacoby & Raymond Paternoster,

Sentencing Disparity and Jury Packing: Further Challenges to the

Death Penalty, 73 J. CRIM. L. & CRIMINOLOGY 379, 387 (1982).

6

defendant convicted in a capital case) is to maintain a link

between between contemporary community values and the

penal system.” Gregg v. Georgia, 428 U.S. 153, 181 (1976)

(citation omitted).

Permitting courts broad authority to dismiss jurors who

express reservations about the death penalty in general, or

who show a reluctance to apply it to a particular set of

circumstances, undermines the jury’s ability to express the

moral judgment of the broader community it represents. The

unwarranted dismissal of “prospective jurors based on their

views of the death penalty unnecessarily narrows the cross

section of venire members.” Gray v. Mississippi, 481 U.S.

648, 658 (1987) (citation omitted).? Because reservations

about the death penalty are not evenly distributed throughout

the community, that narrowing of the jury pool also risks

undermining the jury’s ability to accurately reflect the

membership and views of the community. For example,

according to one poll, striking all death penalty opponents

from capital juries would remove 24% of whites, but 49% of

African Americans. Joseph Carroll, Gallup Poll: Who

Supports the Death Penalty? (Nov. 16, 2004). At the same

time, such exclusion would also eliminate 23% of men, but

32% of women. /d. Because “community participation in the

administration of the criminal law” is “critical to public

confidence in the fairness of the criminal justice system,”

Taylor v. Louisiana, 419 U.S. 522, 530 (1975), the systematic

exclusion of any segment of that community risks

—s

* Post-Witherspoon studies showed that excluding jurors who

opposed the death penalty would eliminate almost a quarter of

prospective jurors from the pool. Welsh S. White, The

Constitutional Invalidity of Convictions Imposed by Death-

Qualified Juries, 58 CORNELL L. REV. 1176, 1187 (1973). In 2000,

it would have eliminated almost 40% of the community from

serving on capital juries. Samuel R. Gross & Phoebe C. Ellsworth,

Second Thoughts: Americans’ Views on the Death Penalty at the

Turn of the Century, in BEYOND REPAIR? AMERICA’S DEATH

PENALTY 7, 10 (Stephen P. Garvey ed., 2003).

7

undermining public confidence in the fairness and integrity of

the capital sentencing system.’

2. In light of these dangers, this Court has clearly

established that the “State’s power to exclude 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.”” Gray, 481 U.S. at 658

(quoting Witt, 469 U.S. at 423). Accordingly, death penalty

jurors may not be excused for cause unless their views would

““prevent or substantially impair the performance of [their]

duties [as jurors] in accordance with [their] instructions and

[their] oath.”” Witt, 469 U.S. at 424 (quoting Adams y. Texas,

448 U.S. 38, 45 (1980)).

In order to satisfy this standard, the prosecution must

show more than that the juror is likely to be reluctant to

impose the death penalty. See, e.g., Lockhart, 476 U.S. at

176. Even “those 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.” /d.

The death qualification process therefore specifically does not

disqualify those who “expressed conscientious or religious

scruples against” the death penalty, Morgan v. Illinois, 504

* These concerns have led the Court to construe the Sixth

Amendment to require that the jury pool (although not each

particular jury panel) reflect a representative cross-section of the

community. See, e.g., Taylur, 419 U.S. at 530-31. The refusal to

require that juries themselves represent a cross-section of the

community is a “direct and inevitable consequence of the practic.il

impossibility of providing each criminal defendant with a truly

‘representative’ petit jury.” Lockhart v. McCree, 476 U.S. 162, 174

(1986). But permitting the state to go further than is necessary in

death-qualifying a jury would undermine the assumption that juries

in death penalty cases are as representative of their community as

juries in any other criminal case, sacrificing the legitimacy of and

public confidence in the jury system.

8

U.S. 719, 732 (1992) (citation omitted), so long as they are

also willing to perform “[{their] duties [as jurors],” Witt, 469

U.S. at 424.

Nor must a juror be completely open to sentencing a

defendant to death regardless of the mitigating circumstances

of the case. The jury’s function is to bring the community’s

moral sense to bear on the facts of each case. It is to be

expected that some jurors will hold views that will make it.

difficult to obtain a sentence of death in some circumstances

where the death penalty is nonetheless available. But the

prosecution in a marginal capital case is not entitled to a jury

composed only of those who would fail to recognize the

weakness of its case, any more than a defendant accused of

the most heinous crime is entitled to a jury composed only of

those indifferent to his conduct.

Accordingly, jurors “cannot be excluded for cause simply

because they indicate that there are some kinds of cases in

which they would refuse to recommend capital punishment.”

Witherspoon, 391 U.S. at 522 n.21. Their oaths only require

them to consider the facts of the case before them and to

exercise their moral judgment whether the mitigating facts of

the case warrant leniency. A juror able to perform that

function cannot be excluded even if there is substantial reason

to believe that his moral judgment will guide him under the

facts of the case to one result or another.

9

II. The Dismissal Of Juror Deal Was Unconstitutional

And Wavranted Habeas Relief.

In light of the foregoing principles, the state courts’

conclusion that Juror Deal was subject to removal for cause

from respondent’s capital jury was sufficiently erroneous as

to require the issuance of habeas relief.”

A. The State Courts’ Dismissal Of Juror Deal Was

Based Upon A Fundamental Misconstruction Of

This Court’s Decisions.

The state supreme court upheld Deal’s removal from the

jury on two grounds: (1) Deal “misunderstood the State’s

burden of proof in a criminal case and understood it to be

‘beyond a shadow of a doubt’” instead of beyond a reasonable

doubt; and (2) Deal “indicated he would impose the death

penalty where the defendant ‘would reviolate if released,’

which is not a correct statement of the law.” Pet. App. 173a.

Neither ground constitutes a constitutionally permissible basis

for dismissal under Witt.

1. Deal’s Misarticulation Of The Burden Of Proof

Was Not A Legitimate Basis For Dismissal.

In filling out his juror questionnaire at the outset of jury

selection - prior to reading his juror’s handbook and

obviously prior to receiving any instructions from the court —

Deal stated that he was generally in favor of the death penalty

“if it is proved beyond a shadow of a doubt” that the

defendant killed and would kill again. J.A. 69. When told

during voir dire that the standard of proof was “beyond

* The error in the state courts’ decision arises principally from

a clear misconstruction and unreasonable application of this Court’s

clearly established precedents. Whether the resulting error is

viewed as an unreasonable application of Witt, 28 U.S.C.

§ 2254(d)(1). or an unreasonable determination of the facts, id.

§ 2254(d)(2), makes no difference. In either case, the court of

appeals’ judgment should be affirmed.

10

reasonable doubt” rather than “beyond a shadow of a doubt,”

Deal quickly clarified that he “would be satisfied with a

reasonable doubt standard” and “would be willing to follow

the law.” Jd. 70. And when the judge questioned him

specifically about his mistake, he remarked that it was

probably terminology he heard while “watching Perry Mason

or something,” and he again confirmed that he understood and

- would apply the reasonable doubt standard. Jd. 74.

Deal’s inability to precisely articulate the standard of

proof at the outset of the case, prior to receiving any

instruction from the court, is a constitutionally impermissible

basis for dismissal. The standard under Witt is whether the

juror’s views on the death penalty would substantially impair

his ability to follow the court’s instructions, not whether the

juror requires instruction in the first place because he does not

come to the court immersed in the finer points and

distinctions of the law. See 469 U.S. at 424. As Judge

Kozinski explained, “If all prospective jurors who did not

fully understand the law before trial were struck, only lawyers

would be allowed to serve on juries (and only a handful of

lawyers at that).” Pet. App. 17a.

It is thus unsurprising that at trial the prosecution

specifically disavowed any reliance on UDeal’s

misunderstanding of the proper terminology to describe the

state’s burden of proof. J.A. 75. And it is notable that

petitioner does not attempt to defend the state court’s ruling

on this ground in this Court.

2. Deal’s Indication That He Would Give

Substantial Weight To Whether The Defendant

Might Kill Again Was Not A Legitimate Basis

For Dismissal.

The state supreme court’s second ground — that Deal

“indicated he would impose the death penalty where the

defendant ‘would reviolate if released,’ which is not a correct

statement of the law,” Pet. App. 173a - is both difficult to

understand and plainly insupportable. Deal never purported

1]

to be explaining his understanding of when state law would

permit imposition of the death penalty, much less his

understanding of the full set of circumstances under which a

capital sentence may be imposed. He simply said he viewed

death as an appropriate penalty when a defendant had killed

and might kill again. J.A. 62, 69, 70. Petitioner nonetheless

attempts to show that Deal’s purported inclination to reserve

the death penalty for cases in which a defendant poses a

future threat to others rendered him incapable of fulfilling his

duty as a capital juror. Pet. Br. 37-39. To the extent that

conclusion was the basis for the state courts’ decisions below,

it constitutes an unreasonable application of this Court’s

clearly established precedents.

Under Witt, the “relevant inquiry 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) (internal quotation marks

omitted). Accordingly, it is important to be clear on the

nature and scope of a juror’s duties under a particular state’s

sentencing regime. !n Washington, a defendant convicted of

aggravated murder and spared the death penalty is

automatically sentenced to life without parole. Wash. Rev.

Code § 10.95.039. The State leaves the choice between those

options entirely to ihe discretion of the jury, which is required

to answer a single sentencing 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?”

Wash. Rev. Code § 10.95.060. In answering that question,

the jury is permitted by statute “to consider any relevant

factors, including but not limited to . . . whether there is a

likelihood that the defendant will pose a danger to others in

the future.” Jd. § 10.95.070(8).° How much weight to give

° The Solicitor General’s assertion that “questions concerning

whether the defendant might be released and kill again play no role

under Washington law in the decision whether to impose a capital

12

that factor is left entirely to the judgment and discretion of

each juror. See id.; see also Smith v. Texas, 543 U.S. 37, 46

(2004) (federal constitution requires that juries be allowed to

give full consideration and effect to mitigating

circumstances). Accordingly, in determining whether a

defendant shall be put to death or sentenced to life without

parole, a juror like Deal is permitted by statute to consider

precisely the mitigating factor he indicated was important to

him — whether the defendant might kill again if not sentenced

to death. See State v. Gentry, 125 Wash. 2d 570, 641 (Wash.

1995); State v. Finch, 137 Wash. 2d 792, 864 (Wash. 1999).

Deal’s right to give substantial mitigating weight to

future dangerousness arises not simply from the relevant state

statute, but also from the federal constitution. By 1986, this

Court could say that it was “well established” that the

Constitution “requires that in capital cases ‘the sentencer .. .

not be precluded from considering, as a mitigating factor, . . .

any aspect of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death,”

Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (quoting

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)) (emphasis

in original). And, in particular, the Court has held for more

than twenty years that “evidence that the defendant would not

pose a danger if spared (but incarcerated) must be considered

potentially mitigating.” /d. at 5. Under this Court’s clearly

established precedents, “such evidence may not be excluded

from the sentencer’s consideration.” /d.

Given the wide discretion that death-penalty juries

necessarily possess, jurors “cannot be excluded for cause

simply because they indicate that there are some kinds of

cases in which they would refuse to recommend capital

punishment.” Witherspoon, 391 U.S. at 522 n.21. To the

sentence,” U.S. Br. 21, is thus quite inexplicable. As discussed

below, even a defendant sentenced to life without parole may kill

again while in prison, a circumstance juror Deal was entirely open

to considering. See infra at 15.

13

contrary, sentencing systems like Washington’s provide

jurors broad discretion to choose between life and death based

on any relevant factor precisely in order to ensure the jury’s

role in “express[ing}] the conscience of the community on the

ultimate question of life or death.” Lockhart v. McCree, 476

U.S. 162, 182 (1986) (citation omitted). It is both expected

and desirable that members of that community will be more

willing to impose the death penalty in some cases rather than

others and that they will bring those general views to bear in

particular cases.

Accordingly, Witt does not entitle the prosecution to a

jury made up of individuals willing to impose death in all

circumstances, or even a jury indifferent to the particular

mitigating and aggravating factors at issue in the case before

them. In fact, this Court has held that it is unconstitutional for

a state to exclude jurors who are unable to promise that their

general views about the death penalty will have no effect on

their deliberations. In Adams v. Texas, 448 U.S. 38 (1980),

the Court recognized that even in a system that provides

capital jurors substantially less discretion than Washington’s,

the rendering of a sentence “is not an exact science, and jurors

under the Texas bifurcated procedure unavoidably exercise a

range of judgment and discretion while remaining true to their

instructions and their oaths.” Jd. at 46. With that in mind,

the Court held that “it is apparent that a Texas juror’s views

about the death penalty might influence the manner in which

he performs his role but without exceeding the ‘guided jury

discretion,’ permitted him under Texas law. In such

circumstances, he could not be excluded consistently with

Witherspoon.” Id. at 46-47. If a juror may not be excused

when his deliberations will be affected by his general views

on the death penalty (a wholly irrelevant consideration in the

sentencing decision), it follows a fortiori that a juror may not

be excused simply because he indicates that his decision will

be influenced by his view of the importance of a particular

mitigating factor that he is entitled to rely upon under state

and federal law.

14

It makes no difference that the mitigating factor

important to Deal will be present in every case under the

Washington _ sentencing _ statute. Even if it were

constitutionally permissible for a state to prohibit a jury from

considering future dangerousness when there is no possibility

of parole, contra Skipper, 476 U.S. at 5, Washington has not

done so. In specifically providing that the jury may consider

whether “there is a likelihood that the defendant will pose a

danger to others in the future” as a fact mitigating against

death, Wash. Rev. Code § 10.95.070(8), the State plainly left

it to the jury to decide whether the unavailability of parole

and its effect on future dangerousness warranted leniency. In

indicating that he would consider future dangerousness an

important factor in assessing the death penalty, Deal did

nothing more than demonstrate an inclination to do what the

law plainly ailowed him to do.

Finally, the fact that Deal was sometimes confused by the

questions or gave uncertain responses about his views on the

death penalty provided no constitutionally permissible ground

to dismiss him from the jury. Contra U.S. Br. 19-21. This

Court has recognized that it is not uncommon or suspicious

that a juror’s testimony may be “ambiguous and at times

contradictory.” Patton v. Yount, 467 U.S. 1025, 1039 (1984).

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

held that a juror was “clearly qualified to be seated as a juror

under the Adams and Witt criteria,” id. at 658 (citation

omitted), even though she was “somewhat confused,” id. at

653, couldn’t “make up her mind,” id. at 654, and eventually

was able only to say “I think I could” when asked whether she

could vote for the death penalty, id. “It is well to remember

that the lay persons on the panel may never have been

subjected to the type of leading questions and cross-

examination tactics that frequently are employed,” and that

prospective jurors “represent a cross section of the

community, and their education and experience vary widely.”

Patton, 476 U.S. at 1039. Accordingly, “[n]Jeither

nervousness, emotional involvement, nor inability to deny or

confirm any effect whatsoever is equivalent to an

15

unwillingness or an inability on the part of the jurors to

follow the court’s instructions and obey their oaths, regardless

of their feelings about the death penalty.” Adams, 448 U.S. at

48. The law does not require a juror to have fully thought out

his views on the death penalty before being deemed capable

of serving on a capital jury. Nor is service limited to those

who can easily follow and respond to lawyers’ questioning.

As the court of appeals rightly concluded, if the juror in Gray

was unquestionably qualified to serve on a capital jury despite

her inability to say for sure whether she could ever vote for

the death penalty, there was no basis in this case to exclude

Deal, who was able to repeatedly and decisively affirm his

readiness to vote for death in an appropriate case. See Pet.

App. 13a-l4a & n.6.

B. There Was No Reasonable Basis For The State

Courts To Conclude That Deal Was Unwilling To

Consider The Death Penalty.

Although neither court below so found, petitioner implies

that Deal went beyond indicating an intent to give lack of

future dangerousness significant weight, and instead made

clear that he would never vote for death nor consider it as an

option in light of Washington’s prohibition against parole in

cases of aggravated murder. See Br. 38. That argument fails

for several reasons.

First, Deal never said that he would be unwilling — or

even reluctant — to impose the death penalty upon someone

who is ineligible for parole. To the contrary, his concern

focused not on whether “the defendant would be released,”

Pet. Br. 38, but on whether the defendant “would kill again.”

J.A. 69. He thus left entirely open that he might impose the

death penalty in light of the risk that respondent would kill

again while in prison. Indeed, prosecutors routinely argue that

this risk to other prisoners and to prison staff is a reason to

impose the death penalty rather than life without parole. See,

e.g., Calderon v. Coleman, 525 U.S. 141, 149 n.2 (1998);

16

Kelly v. South Carolina, 534 U.S. 246, 253-54 (2002).’

Moreover, even if Deal’s answers could be understood to

indicate that he would vote for the death penalty in more

limited circumstances than might others, that is no basis for

concluding that he was unable to fulfill his oath and exercise

the broad discretion afforded juries under the Washington

statute. See Witherspoon, 391 U.S. at 522 n.21.

Second, Deal never said that he would vote for death

only if he were convinced that the defendant would kill again.

The statements upon which petitioner relies were, for the

most part, in response to broad questions that did not require

Deal to describe the full set of circumstances in which he

would vote, or decline to vote, for the death penalty. For

example, in his juror questionnaire, Deal simply offered that

he was “in favor of the death penalty ... if a person has

killed and would kill again.” J.A. 69. He was not asked, and

he did not say, whether this was the only circumstance in

which he thought the death penalty would be appropriate.

Likewise, it was in response to a generalized question — “why

[do] you think the death penalty is appropriate, what purpose

[does] it serve|]?” /d. 62 — that Deal stated, “if a person is,

would be incorrigible and would reviolate if released, | think

that’s the type of situation that would be appropriate.” /d.

Again, Deal was not asked for, and did not offer, a

comprehensive catalogue of all-the circumstances in which he

would find the death penalty appropriate. He simply gave

one example of a circumstance in which he would view death

as a fitting punishment. When asked directly whether he

could consider the death penalty even in the absence of any

possibility of parole, Deal said on five separate occasions that

he could.

’ Neither the prosecution nor the trial court ever asked Deal

whether the unavailability of parole would prevent him from voting

for death in light of the danger respondent might pose while in

prison.

* 1. “Q... Do you think that you could consider both

options?

17

It is, of course, possible that Deal was lying or deluded.

And if there were any indication that the trial court so

concluded based on its observation of Deal’s demeanor,

respondent would have a difficult time overcoming the

statutory presumption of correctness that would attach to that

finding, for all the reasons petitioner and his amici explain at

great length. But neither court made any such finding, and

there is no reason to presume that they did so simply because

the trial court excluded Deal and the state supreme court

affirmed that decision. It is one thing to assume that the trial

court implicitly found Deal excludable under the proper legal

standard. See Witt, 469 U.S. at 430. It is quite another to

assume from its silence that the court made every conceivable

factual finding that might be helpful to the State in defending

that decision in a subsequent habeas proceeding. Indeed, to

do so would essentially eliminate habeas review of jury

selection errors, for it is always possible to say that the trial

A. Yes, I could.” J.A. 62.

2. “Q...[DJoes that mean what I’m hearing you say is

that you could consider either alternative?

A. I believe so, yes.” /d.

3. “Q... You would be willing to follow the law?

A. Yes.” J.A. 70.

4. “Q...Im asking you, first, could you consider [the

death penalty], 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.” J.A. 72.

5. “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 | was convinced that was the appropriate

measure.” J.A. 73.

18

court may have harbored some unspoken belief that an

excused juror’s demeanor indicated an unwillingness to

follow the law.’ Or, as Judge Learned Hand explained the

risk: “He, who has seen and heard the ‘demeanor’ evidence,

may have been right or wrong in thinking that it gave rational

support to a verdict; yet, since that evidence has disappeared,

it will be impossible for an appellate court to say which he

was. Thus, he would become the final arbiter in all cases

where the evidence of witnesses present in court might be

determinative.” Dyer v. MacDougall, 201 F.2d 265, 269 (2d

Cir. 1952). This is not deference, but abdication. Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003).

While Congress has plainly required federal habeas

courts to give deference to the trial court’s ability to gauge the

demeanor of jurors and witnesses, it is equally clear that

Congress did not intend to thereby render habeas relief

unavailable to remedy constitutional violations in jury

selection. A balance must therefore be struck. That balance

is most appropriately achieved by acknowledging that even

when the record evidence might otherwise support a federal

court’s conclusion that the trial court’s findings were

unreasonable under 28 U.S.C. § 2254(d)(2) and (e)(1), special

hesitation is warranted when the state court indicates on the

record that its findings are based in significant part on

* In this case, there is an affirmative basis to believe that the

trial court did not base its decision on demeanor evidence not

reflected in the record. The “body language” of another juror was

the topic of explicit discussion in the record. See J.A. 54

(prosecution noting that the juror “crossed her arms, held her hand

up, crossed her arms and sat back at that particular time”); id. 55

(defense counsel taking care to note that the juror’s “body language

was accurately reported” but contending that the attitude reflected

was not disqualifying); id. 56 (court finding the juror “substantially

impaired given her responses”). Despite the demonstrated

willingness of the trial court and trial counsel to make note of

significant demeanor evidence on the record, only Mr. Deal’s

words themselves bore mention. /d. 75.

19

demeanor evidence not apparent in the cold transcript.

Conversely, however, the Court should be equally clear that

the mere theoretical possibility that an otherwise

unreasonable factual finding could have been supported on

the basis of demeanor evidence will not preclude habeas

relief, lest the Great Writ be rendered ineffective.

In this case, as Judge CKozinski compellingly

demonstrated, the record clearly and _ convincingly

demonstrates that there was no reasonable basis to find that

Juror Deal was substantially impaired in his ability to perform

his duties as a juror. The decision to excuse him nonetheless

was based on a fundamental misconstruction of this Court’s

clearly established precedents regarding the proper basis for

dismissal of a capital juror.

20

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be affirmed.

Respectfully submitted,

Jeffrey L. Fisher Amy Howe

Co-Chair Kevin K. Russell

NACDL Amicus COMMITTEE Counsel of Record

559 Nathan Abbott Way HOwE & RUSSELL, P.C.

Stanford, CA 94305 4607 Asbury Pl., NW

Washington, DC 20016

Pamela S. Karlan (202) 237-7543

STANFORD LAW SCHOOL

SUPREME COURT Thomas C. Goldstein

LITIGATION CLINIC AKIN, GUMP, STRAUSS,

559 Nathan Abbott Way HAUER & FELD LLP

Stanford, CA 94305 1333 New Hampshire

Ave., NW

Susan Rozelle Washington, DC 20036

CaPITAL UNIV. LAW SCHOOL

303 E. Broad Street

Columbus, OH 43215

March 30, 2007