# Respondents Brief — Moore v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0067%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1972 - **Citation:** 408 U.S. 786 ## Text Service of the within and- rece Lye of 4 thereof i$ hereby admitted this.-.. of September A.D..1971 | Supreme : Sa aed ee gitar am 4 “ oy > Mo. 6955001. - > “LYMAN A. MOORE, Be esa : 3 2 bs. ea PEOPLE OF THE STATE OF ILLINOIS, . ON WRIT. OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS ” BRIEF FOR RESPONDENT | WILLIAM J. SCOTT, Attorney General, ate et ee, JOEL M. ELAM, —* ° . ¢ . . . : . . ’ . os . , \ . . —_— * ’ . * - a be . " un J \» ¢ ‘ ae Oe SF nL Ea eM, NE TN a d spies hap ‘Rosh nk ates doe: we vi7i8 bit aigor Sint Pie Ts ° 1 a _ ~ . ~ * . “ “Gada: Fel 455 P, 2a 699 ctl Cr. “1969) 96 *, | Garto v. State, 454.S.W. 2d 522 (Mo. 1970)...... as . - Gilesty . Me ryland, 386 U.S. 66 (1967)... 4.2. y.sse de 16 ~-Gottsch 15 Sfate, £5 Wis. 2d, 285, 172 N. W. ad 688 | . ? 1969) i ey Barer ps ane Cv acuts ceeed' ceibeee 9. , Harris v: State; 450 P. ‘Bae857 (Okla. Cr. 7969) were 49" « -Inre suderson, 69 Cal. 2d 638, 447 P. 2d 117s ‘2 1 LMM soho Naghie ewtinua Bis nae es ar A ie Inre ‘Arguella, 71 Cal. 2d 13,452 P. 2d 921, (1969)... ‘or 2 An re sBrookiEstate, 8. mh. 2d 361, 205 ‘N. B. 2d 435 a 41965) (Sika seas » aK ite Ux dea ba’en'y woes ap 0848 = 27 In ré Hill, 71 Cal. 2d 997, 458 P- 2d 449 960). 1. 27 In re Hillery, 71 Cal. 2d 897, 457 P. 2a 369 (1969) .. - In re Seiterle, 71 Cal. 2d 698, 456, P: 2d 129 (1969)...- 27 ts ~ Johnson vy. Bennett, 386 F.2d. 67% (Sth Cir, 1968) 17 Jase ph v. - State, 442 SW?) 2d: 307° (Tex. Crim. 1969) -. 26. a ’ Lokos vi ‘State, 221 ‘So. 2d 689. (Ala. 1969). err so a 26. “Miller Vv. Pate; 386 U 8. 1 (1966) ates tate Eevee inasse oe Miller v. Pilates: 33 mi. 2d 514, 211 N.E. 2d 733) . (1967). pave ar ee ca k Ceca 4h aalan 4) Dee} eee ee a> 20 ~” People v. Aguirie, 158 Cal, App. 2d 304, 329 P. 2d’ 478. | SUES |. :\.) Darr eC Oe ees 21 ee People VY Reltarwski, 71. cae ren ‘2d 16, 162 P. 2d. 59 ke (| eee sehr ere et rere KS cactaeews rere aan Péoplev. Coogler, mae Cal. 2a. 153, 454 Pe 2d 686 oe .*. (1969)... ect ate Pet haa ok TS 2 | ‘People’ v. Gardne r,.71 Cal. 2d St8, 457 P. ad O75: 4 (1969) LS ek. bia nti, baeuhadih ox etedca tg akask oy ' People. Goodridge, 70 Cal. aa 824, 452°P. 2d 637 © | PhP (1969) eee eee tebe ee eee ens ere . People v. Hall, 19 Mich, App. 95, 172 N.W. 2d 473 oD eee ee jo unin: sey cing anes dag ele 19 ctv ot ° ¥.: iii. People \ v. Hill, 70 Cal. 2d 678, 452'P. 2d 329 (1969)" 33 _ People v. Hobbs; 35 Til. 2a 263, 220 N.E. 2d 469 (1966), a . cert. den. 386 U.S. 1024.12... Pl eimerceee banks 25° : ‘People v. Jackson, 9 TL 2d 484, 138 N.E. 2d 528 | WP MMIMEE cohqets 886 cena psédiesc's daca ace eee” 18 People v. Johnson, 35 I. 2d 316, 221 Piaal 2d 497 i: Seegercne aes hvb i Mieedsah bon ne a aad bidaa ko cae 19 "People v. Lane, 56 Cal. 2d. 773, 366°P. 2d 57 (1961) 19 People v. Lenhardt, 340 11.538, 173 N.E: 155 (1930)... 19: "People v. Lindsay, 227 se App. 2d & 38 Cal. Rte. 156 (1984) js e.2d' 799 wa oe (1969) «12... ae ikea gh ceeh vakx matin tiveel culos 3B G - People v. Magby, 37 Tl. 2a 197. 226 N. E. 2d 33 (i967)... 19 7 _People v. Moore, 35 Ml. 2d 399, 220 N.E. 2d 443 (1966), . 4 cert. den, 389 US. | ore nome Pent wll « cca 18, 21°; f "People ¥*. Nelson, 224 Cal. App. 2d, 288 36 Cal. Rptr, ‘SOG HORE) Bo ncn stente canae Min a oct. 2 19 People v. Nichols, sient Cal, pene 2d 320. 340, P. 2d: 727 ae * (9988) 2.3... eee eee antaaas ye eee 19 “Pe ople v. Ostrand, 35 Ml. 2d 5 220, 221 N.E. 2d 499. (IME) ini yeas tutte «, PTT en ee eee en 20. - People v. Osuna, 70 Cal. 2d 811, 452 P. 2d 678°(1969).. -. _ People v. Robles, 71 Cak 2d 924,-458 P. 2d 67 (1969). ; . .- People v. Sheets, 251 Cal. App. 2d 759, 99. Cal. | Rptr.. ae. whe 08 CEU ini gah oes Sees ea eter ie cot bec es kane 22 | Peoples Smith, 413 Tl. 218, 108 NE. 2d 596 (1952)... 18 “Reople v. Stanworth, 71 Cal. 2d 820, “457 P: 2d 889 9 ~{19G9) us... Seg UmU MEK AEN OKE dacs oes au eeeavk - a * People v. Trice, 127 Ill. yp = 310, 262 N.E. 2d 276 a . _ (1970) et axces wanes whee ane ks oes eigiacs oy 19.° - J we = e ¢e °* e = * ° . : . . x ad . - . . 7 ° . . ; i . : . - . ° ad . . °. . . . . * r , . : . . ee ¢ |) Dn no . 32 . People v. Witherspoon, 36 Ill. 2d 471, 224 NE. 2d: 259° | eee es ere eee apan cote isaaes yn enatensetasees 28} People v. W right, 30 Ill. 2d 519, 198 N.E. 2d 316 ( (1964) 18 Peoples v. "Hocker, 423 F. 2d 960 (9th Cir. 1970) . 9 -Pittmanv. State, 434 S.W. 2d 352 (Tex: Crim. 1968). 26, 27 Pryor v. State, 449 S.W. 2d 482 (Tex.-Crim. 1970)..... 19 Scott v. State, 434 S:W. 2d 678 (Tex. Crim. 1968)..0..5 27 |} ‘Shiflett v. State, 38 Ala. App. 662, 93 So. ‘2d 523 | | (1957) Lehlececcucecctecudeecatengestavseegess 19, 2 bps oncer v. Texas; 385 U.S. 554 (1961). ........8 0.668. 2 . State v. Be njamin, 234 La, 49, 222 So. 2d 853 (1969)... 96 | State v. Dillon, 161 N.W. 7 ei (Jowa 1968)}..0.¢.....°.19 State v. Forcella, 52 N.J. 263, 245 A.‘2d 181 (1968) . . 26 | | State v. Mays,7 Ariz. jem 90, 436 P. 2d 482 (1968). 21 | State v. Pace, 830 N.M. 364, 456 P. 2d-197 (1969)..... we OF, : State v. Peele, 7d Wash: 2d 28, 448 P. 2d 923 7 VIGO) acca no tse Kah eae bh ge heer ee ress s'ss mew seeee 1 State v. Ricks, 242. La. 823 , 138 So. 2d 589 (1962). 19 State v. Spence, 274 N.€. 536, 164 S.E. 2d 593 (1968) . 26 State v. Turner, 253 La. 763, 220 So, 2d 67 (1969). . . .26, 27 “ ¥ Strickland v. State, 226 Ga. 750, 177 S.B. 2d 238 | | © oF FEDCOY x ecas ope tan peyenpa ses cease ee eees : ccueana 19 | ~.° Stroud v. United States, 251 U:S. 380 (1920)....:... 2 HY Swain v. Alabama, 380 U.S. 202 (1965)...... = seen 33° Thomas Vv. Cagwin, 43 Ill. App. 2d 336, 193 N.E. 2d 233. ah: (1963) et Serres Pere er errr rT 20. | Turberville v. United States; 308. F..2d 411 (D:C, cir, f. 1962 ), cert. den. 870. US. WG: faves Fetus sQiness” @ Y United States ex rel. Fein v. Deegan, 410 F. 2d 13 (2d °V. |. Cir. 1969), cert, den. 395 U.S: 935, ...05.0.0..... 9,16 United States ex rel. Felton v. Rundle, 410 F. 2d 1300 { (8rd Cir, 1969) 0. cca eleee 9 . United States v. Keogh, 391 F. 2d 138 (2a Cir. 1968) 15 ff | United States v. Puff, 211 F. 24.171 (2d Cir. 1954) .. 25 b. / Witherspoon ¥., Illinois, 391 U.S. 510 (1968)...... ~ 7,92 Yates v. Breazdale, 402 F. 2d 113 (Sth Cir. 1968)... 26 2 : ae . Statures - a -} ‘Til. Rev. Stat. 1963, Ch. 38, Par. 115- A(e)..3 bce peus 34 | Pa. Stat. Ann. Tit. 18, §4701 re) er menses ~.. 26 | ; a : _ Miscetiangous 1 W harton, Criminal Ev idence, $ 366 (11th ed. 1935) -. 21 | ie SaaS on a . “ “4 -- - : - —_-—— — sn - . — ’ . ; ‘ . $ . ; . . . . . , Ss . ° . ® . . .? ° . . > ‘ . . . . ° . ° . . - - . - e bd ° * - : * ° . - . ; . } . ° . . . . “ ° . ° . . . . od . ; . . ‘ a . ° . oe . ° ° . el e . . : +, * ‘ . ’ - e a . . ¢ we e ' 7 « © x re / ® be ~”_ . . - ? ; ‘ * « . ‘ . . . ° . . Fe . . . Py eo. - ° - e “ - ; . . s , y 3 . 098 yen 8 to Se AON RPL te LIE: ES PALER PAM ENE TSS 2 : z ; : “ , oe ‘ ’ iii ca _ IN THE Supreme Court of the United States No. 69-5001 “ LYMAN A. MOORE, PEOPLE OF THE STATE OF ILLINOIS, aS) 4) ws. ON WRIT OF CERTIORARI TO THE — SUPREME COURT OF ILLINOIS BRIEF FOR RESPONDENT QUESTIONS PRESENTED FOR REVIEW Whether; during petitioner’s | trial for murder, any item of exonerating or material ev idence was kept F from petitioner. Whether the. entrodaction. ents evidence of a’ sixteen gauge shotgun deprived petitioner of a fair trial gauge’ shotgun killed the victim. Whether prospective Jurors were excused ‘for cause * in violation of Witherspoon v. Illinois, 391 U. S. 510. Whether, because. of ambiguities in the holding, . -Witherspoon vy. Illinois, 391 U.S. 510; should. be re- ‘considered or clarified. @. Petitioner, Respondent, _ where there was no conclusive evidence as to’: what. - |: 2 PORE Sh SE Co oe ‘ _ - ‘shoot you too.’” (R. 529). | | STATEMENT OF THE CASE On ‘April 25, 1962, at approximately. 10:00 P.M. nas Moore, ‘petitioner hictein, and a companion were drinkiae in a tavern owned by Bernie Zitek in the village of Lansing, Illinois. Moore began using profane language and, as a consequence, -Zitek ejected him from the prem- ises ((R. 474-477). Petitioner’s companion was a dark- - haired man, wearing a mustache and described as being - about five feet. ten inches tall (R. 509). Present. at. this time ‘were Patricia Hill, -a waitress, and approximately seven ‘other customers. The petitioner was positively | identified by Mrs. Hill as the ejected patron (R. 475). One hour later the petitioner returned to the tavern with a ‘shotgun. He-approached the bar, aimed the gun at. | Zitek and fired. The blast struck Zitek in the chest, ‘killing him (R.- 482-484). As petitioner fited | ‘the shot -he was again observ ed by Patricia Hill, who later posi- tively identified him as the murderer (R. 484). He was | “also: identified by another - ‘eyewitness, Henley Powell (R.. 525-526). The lighting conditions in the bar were ‘good, -and Mrs. Hill: was. ont six feet from the petinoner (R. i. — 483, 486). °° After killing Zitek,: sestioner fled the premises, pur sued by Henley Powell. (R. 527). Powell’s pursuit ended » when he was warned by petitioner’ not to come any “further or he too would be shot: “Then he started hol- lering at me and says, “‘Don’t come any further or Til | 8 “Rh” before to the original transcript of proceedings | at die s trial. | 303 Two days later. (April 27, 1962), at a different tavern known ds the Ponderosa Tap, a. man ‘known as “Slick” bragged to one Virgle Sanders that he had -shot a bar- tender in Lansing (R. 087). Sanders ideritified petitioner = © at trial as the person: he spokexto in the Ponderosa Tap. F :(R. 578-579).. William Joyce, the bartender at the Pon-- _-derosa, identified petitioner as the person with whom Sanders conversed, in the tavern on April. 27, 1962 (Ro -——- 555). Petitioner’s companion on that occasion was - “another fellow with dark hair and a mustache” (R. 561). Petitioner told Sanders and Joyce that he and his com- - panion needed a ride ‘to Harvey, Tllinois;- and Joyce ac- comodated, arranging for Bob Fair, owner of the Ponder- osa Tap, to give pétitioner a lift (R. 562-564). Bob Fair _ gave petitioner and his companion a ride to Harvey. (R- 603). Fair’s description of petitioner’s companion matched that given by.William Joyce and Patricia Hill (R. 603) and Fair furthér indicated that this individual’s name was Barbee (R..603, 605- 606). During the trip to Harvey either Moore or Barbee—it i is not clear from the record which—said “well, if we hadn’t had €hat trouble with the bartender in 2 EEE we'd have been all. right” . (R. — 606). ‘On October 31, 1962, a Chicago police officer was on patrol when the occupants of a 1957 Ford automobile | fired a shot and then fled from the car (R. ‘623-624). :The ear was staked out. and a search of the area was con- ducted. A fully loaded 16 gauge. shotgun was found in the oa (R. 630). ~ Registration papers . found -in. the car. indicated ‘ownership in Jerry Barbridge. Other papers found inthe car bore the signature of Jerry Bar- bee (R. 654). Later, while the car remained. under sur-: Véillance, two men -approached it and started to -enter. ~~ aa Rows 7 ‘ss RRA tase ‘killing. (R. 865, 87 8). J. { = / ——. . 40 ‘One was Lyman Moore; the other a dark-haired man wearing a mustache—Jerry Barbee (R. 684, 689). Both were arrested. Xe Petitioner’s defense was alibi and’ he produced two wit- nesses to that effect. The’ first; Alex. Koxhallari, was a bartender at a suburban country. club (R. 746). He testi- fied ‘ that petitioner was paid for working as a- cocktail waiter on the evening of April 25, 1962. On cross-exami- . nation it was established that the witness had: made a prior statement wherein he stated. that he didn’t remem- ber. if. petitioner had been at the club that: night (R. 757- 760). Herbert Anderson, the manager of the country elub (R. 165), testified that petitioner was an employee a ) _ of the club but was unable to: say that he had seeri Moore on the night of. April. 25, 1962 (R. 173-777)? The only other ‘défense witness ‘was Donald O’Brien who + was playing. cards in the Zitek tavern at the time of the mur- der .(R. 788): He testified that petitioner was not the man who was ejected. from ‘the tavern by the deceased - (R. 793). Donald: O’Brien was, drunk at the time of the ? ‘The jury found the petitioner iniilty and: recommended _ the death. penalty (R. 1003). In a hearing on aggrava-:’ tion’and mitigation the petitioner’s efforts to reduce his’ penalty f failed because of, wad alia, -his five pres felony | convictions (R. 1010-1012): (1) 1946, lareény, one to’ five years: (2) 1949, larceny, ‘one to ten years; 2. PepieeotieT tmsuccessfully offered the same alibi de- - efe-an earlier trial \for a different, armed robbery. | See People y. Moore, 35 TH. 2d 399, 406, 220 N.E. 2d ! 443 (1966), cert. hanes 389 U.S. 861. ie 7 7. (3) 1957, bank robbery,' seven years; . (4) 1957, Dyer Act, two years; (9) 1962, armed robbery, twenty to forty years. The sentence of the: court was death (R. 1017). Subsequently petitioner filed a petition ‘ander the Illi- nois. Post Conviction Hearing Act (Ill. Rev. Stats. .1969, Ch. 38, Art. 122) and an evidentiary * hearing Was con-— ducted. There Virgle Sanders’ was asked for the. first time whether he had given a statement to the police and _ . Sanders. readily admitted that he had (R-P.C/ 121). .Infhis statement given April 30, 1962 Sanders said that he had met. the petitioner six. months prior to~ the ‘conversation at the Ponderosa Tap. Sanders could not have met the petitioner when he said he did because | Moore was, serving a federal prison term af the time (Pet. Ex. No. Pp A: 304)? Moreover, one William Thompson, - who w as acquainted with a local resident named “Slick,” told the. police that Lyman Moore did not resemble the man known. to him as “Slick” (R.P.C. 39, 63, 76,-84)2 A bartender’ who also. knew “Slick” told the police that he could’ identify “Slick’’ but was never ealled for that a purpose (R.P.C. 38), These facts were not known to the’ defense at the time of trial. Neither were they known to the prosecution, and no ore ever requested ‘their’ ‘production - (R.P.C. 204, 347).° The prosecutor’s entire file Was made available to defense counsel at Bee time of trial | 4 ake 201). entrance. through which thé defendant passed:.-. | Undoubfedly; any individual: circumstance or set of ,cir: cumstances which exculpate or tend to diminish the qual- ity and weight of the prosecution's ease -can bé said to’ . be relevant and can not be. knowifigly withheld from the drawn by.a Lansing officer, that ‘would hdye shown’ } that Henley Powell was seated- with his back. to the .. qe > : _ defense. "Bowen: ieenal yeneralizations on criminal dis- covery are of little aid in delineating the dimerisions’ of ~ due process an any particular case. It. is imperative to keep in the mind this €ourt’s mandate in this regard: - ' We now hold that the suppression by the prosecu- ‘tion ‘of evidence favorable’ to. the accused upon. -re- ‘quest - violates. due wees where the evidence . is ar material . fay bY It AS agaiiiststhe tihove standard that the prosecution’s - eonduet in the instant case must be measug@> A r ae The claim by petitioner that he -was so liow i improper- ly ‘denied access to the prior statement. of a witness is = — particularly ill-conceived. . During trial petitioner's coun- * sel ach se eral witnesses. if ‘they had given statements to the police. (R. 506, 538, 611). Every witness who had * gi¥ en such a statement admitted doing” so and thé state- a ment was tendered. (R.507, 531, 606): Itis significant thay’ thre witness Sanders was not asked at trial if he had give, a statement.to police. -Moreover, on the very first pecasion ‘ when the. question was put. (at the post- conviction hear- . ° ing), the -witness readily admitted giving a statement to - the police and the. statement. was. er tendered tow a petitioner. (R.P.C. 22k ae ae The record below “also shows that the Agistant State’ S Attorney: at trial displayed his entire file to the defense - (RPC. -201). Thus any information which the petitioner “Tow claims material was not. in thei direct — of. : : = »5. Brady Vv. Maryland, 373 US. 83, gg. United States . “ex. .fel.- Felton. v. Rundle, . 410 FL 2d 1300, . 1306 (3rd Cir. 1969); United States. Tel. Fein v,. Deegan, 410. F. 2d 13 (2d Cir. 1969), cert. den. 395 ‘ US: 935; Goetsch v. State, 45 Wis. 2a 285, 172 N.W. 2d ai (1969) ; Peoples Vv. — 423 F. 2d 960 (9th Gir. 970). ‘ : ee ; Xs .t . ¢ PAR IRCN EA Wap ee ee = . oe + e . a = - 3 £ ey a 8 . +4 - tion may inv ‘olve scores of | fruitless, leads. . é The search © | . ‘ae the phantom. “Slick”? in the présent ease is but am - | & , example, - It is singularly riaive and unfair - -to impose x upon prosecutors the responsibility. to interrogate police officers in an effort to elicit facts which when viewed in hindsight might have a marginally favorable hearing, on ae the conduct of the, defense. . ‘ Unquestionably. ho’ prosecutor may engage in .knowing + suppression of evidence. However, the Constitution and : the proper administration’ of criminal justice demand of - the prosecution ” good faith and a quest for truth. They - —_>. do not ‘require an inquiry — into all the areas of. police "investigation | with an eye toward preventing —possible os oe inadvertent and immaterial omissions. ea ; : been shown to be the case here. produced no contrary conclusion. sc - 3 : ; im 4 : , z 5 x = ~ z = . os ‘ Admittedly police miseonduct. resulting in the ‘suppres- sion of material ‘ev idence even without the prosecutor's ) knowledge eannot be. condoned.. This, however, has not" Moreover, a state post- conviction proceeding, . designed for just such an inquiry, - It.is- submitted that there must. be a aan of intent _| or knowledge before an unconstitutional suppression takes - «place. The underlying standard of conduct at trial must — be fundamental fairness.- Defendants cannot hope to ob- tain’ * reversals upon subsequent findings of - minutiae in o the jproseentor ’ at. trial: Since there is no claim .of know aS ing suppression by. the prosecutor of ‘any evidence, the ,° : Issue devolves , to. whether it is, the obligation of a ~Prose- _ euting ‘attorney to ferret out every conceivable piece “of potentially impeaching evidence: that: may be contained -.in- police - files. “The promulgation of such a-rule. is.. _ neither realistie nor necessary for the fundamental fair- ~ ness dufe every defendant. A major murder investiga-__ 7 ae rr ~ police files. ‘Virtually "every investigatory file will con- ’ “i this 1 is highly impeaching and ee The State can- - worst, it ‘simply shows’ that Virgle Sanders, like many’~ people, is not Adept. at estimating - time. The peyod of. . hearing defense counsel called’ Virgle Sanders’ attention tain. some*ragmentary evidence which may, cast doubt on “ . : the perceptive | abilities . of . witnesses.. Very ‘often such ** files will also tréy eal the existence of persons -who ma¥ have been suspected of, involvement at ‘One time. But in the course of investigation facts are uncovered which absolve e some parties and farther i implicate others. / {In the. : gradual shift from investigation t -aceusation th e focus - of guilt sliarpens to include only the y. ae Ire some eases .the. sifting process eens Tere, the . overwhelming evidence established Is yman Moore as that . person: When the decision ‘is ~made. to prosecute, 1 thie State’s Oe Attorney has usually received -all relevant evidence: both ~~ «) *. s s . . y- j > - : : ; i 4 - Ree fi : 2 : i x : ae ties ° oe ‘ . . ; a | a : Oe + : : a : gah Lees _ to the: incite’ at “the Pondaeoss Tap’ two. ‘days after the FA murder. Sanders had testified at.trial that Lymda ‘Moote : was present at. the tavern and that they had a “conversa- ; . it was “open season on bartenders” (R. 583). and that. he ‘had slot one-in Lansing (R: 587). In laying the fourida- tion for Sanders’ relationship | with.Moore, the prosecutor ,. asked Sanders. whether he had- known petitioner, before os that day, Sanders replied that che: -had, ‘but -that he” couldn’t estimaté how long he had known Moore (R, 580). . a signed statement that jhe had met. Lyman Moore six ©: could: not read the long hand statement (he can only. read printed words) ‘and’ that. the ‘six’ month period was: questioning, Sanders said, “. . . it éould have been from. . comments to the Lansing Police entails a_-confusion of identities . between the petitioner and a man named “Slick.’”? At the _ post- conviction hearing, Sariders admit-. had: met -several months earjier, wore. his hair differently ’ — (R.P.C. 134), was - heavier and did not: wear glasses . “(R.P.C. 130). ‘Sanders, in answer to a leading -question, ~~ ~ said that if Lyman Moore was in prison atthe time he : (RPC. 132: 133). nn aT eeeess. Notwithstanding this, confusion. of ' identities, it is the ~ ‘State’s view that Virgle Sanders’ murky recollections of. a man, named “Slick” are irrelevant to his positive. identi- fication of. Lyman: Moore ‘as,the man he knew and spoke =| ' with at the Ponderosa Tap. Sanders’ statements. are but- , tressed by the ‘testimony. of two other men who saw’ him " speak to Lyntan Moore at the: Ponderosa:*” The first, William : Joyee, was the bartender. at the ‘Ponderosa on” pny (R. 552, ‘Dd4- 555). ‘He testified that he served. ~ several drinks to Virgle Sanders and Lyman Mbore, and — observed them talking (R. 561-562; 564). Joyce aco said that ‘Moore asked him for a- ride (R. 562). Joy e ac- eommodated Moore by arrangitig for a.ride with | bert Fab, the owner of the tavern and: the second man ‘to observé Lyman Moore speaking with Virgle Sanders: (R:° 562, 564,. 600-602). Fair drove.-Lyman. Moore and his os companion to Harvey, Illinois (R. 602-604).:In the course © -of.the automobile trip to Harvey Fair heard one of them ° say, “Well, if we hadn’t had that trouble with the bar- 4 | tender in “Lansing, we'd have. been all right” (R., 606). . “Thas, Virgle : ‘Sa : fusion ‘of identities: between ~ the “petitioner | and ‘the ‘ubiquitous “Slick” and when he « £ _ first met him, is ‘searcely material to. the facts. established. . The proof that Lyman’ Moore and Virgle Sanders met and spoke together.at ‘the Ponderosa. is: overwhelming. : ‘The same could he. ‘said of all the State’s evidence. In. " ‘addition to the two eyewitnesses who saw the he. petitivner kill. the bartender, a thi ss State that he heard —Moore, ee about the baa Any further question a ae ° a ae _ * ‘ 6. ‘It is ‘relevant to note that neither of these two men. - Were called as witnesses by defense counsel’ at. the post- - convietion hearing. . i > ° *2> \ ee ous Side about Moore’ S identity i is dispelled by two ‘more tiaiahees: _*.. who saw him speaking to Sanders at the time and place "in. question. The capstone is found, in the off-hand ad- iy ENA mission “made i in vale s automobile. : Petitioner conterids that State’ witness Henléy - “Péwell perjured hiniself when he testified that: he saw Moore . to light until: after the trial, somehow proyes. ‘that Powell . “was not facing the front door’ ‘but was ‘seated at a eard | seen what he testified to seeing. ‘ Petitione Tages us. _in this exercise in an_e of defense, witness Donald-O’Brian who was. also ‘seated atthe card table and testified that “Moore was not the -* man. ejected”. from the tavern. (O'Brian, it will be. fe- tnembered,y Was drunk and did not see ‘the actual shoot- - ing). - Completely overlooked. in. petitioner’ 's commentary. on-Pewell’s veracity cand the ‘importance of the “stp- "- pressed” diagram -is. the. actual testimony of Mr. Powell. . At. the time of the-murder he was playing pinochle’ with _. ,three other, cyanea (R. 536). His position at the table 3 \ gave him: a view of the bartender (R. 526). Because he +. eould not bid im the g he laid his hand down and was Bees : looking toward the front door when Moore walked in . (Re 526," 536). After the shooting he chased Moore but — - - retreated when warned by petitioner that, too might be | } - shot. (R.- 529). . As for the diagram, Officer Koppitz testi- | “> fied: that it “tells. which way the’ people were seated, wot > 4. ~° which way. they were. looking” (R.P.C. -273). TRB ait. gram dis¢loses nothing: that was mot brought out in ™ Bowell’: testimony at trial. ote Pe enter the tavern and ‘shoot’ the. deceased; that Officer sf _Koppitz’ Ss diagram of. the premises, “which ‘did not come -* oe table ‘facing | in the other direction’ and could not | have — snhancé the credibility — “4 - f- eo - the oes c he Tn afirming | petitioner’ Ss. cunihiion the Supreme Court of “ Tilinois was in total harmony with constitutional standards’ for eriminal discovery. © Ip, order to: constitute a viola- . vs tion of due ‘process, favorable ’ evidence’ must be sup-2-—~e. “pressed by the prosecution after it-has been .requésted by the. defense. Moreover, the evidence_must be ; tial either to/guilt or -to punishment B rady y Vv. Maryland, 373 “+ TS: 83:( 1963). o Certain ly-afiy of the items complained of - here would not hf re disturbed the’ finding of guilt or the sett fg.of .the death penalty. ‘The. fact that two ggasi successfully identified Moore as _the killer pee Sr ee Sree EN es uae sgt ee gee as Nor does the failure to produce any: of the above. items: come within the constitutional prohibition against the . knowing use of false evidence. Miller v. Pate, 386 US. | 11966). ‘No false’ evidence was Sed. against the -defen- 4 __ dant.. Virgle Sanders” incorrect e imate. of ‘when. he first | met petitioner. is not false evidénce. He spoke. the truth . ‘ according to the best of his. ecollection. A mistaken be: f Sanders’ miscalculation (or . lief is not perjury. ‘Eve : vany of the other items complained of) could--be charac- bes terized as “false _evidence,’’. they did not play -a “vital . *@e paxt in’ the ¢ Se for. the prosecution” as ait | by Miller v:. Pa SP eee oe : The ca Circa has explored the various standards ‘for reversal in cases of suppression in United States v. Keogh, 391: F. 2d 138 (2nd Cir. 1968). The court Sacra three categories: : (1) - ‘deliberate sappression in whick- the court in- | ’ eludes “not merely a considered decision to suppress, taken for. the. very purpose ‘of obstructing, but also a M ‘failure to disclose evidence whose high value to the’ — ‘defense could not."have escaped the prosecutor’ s at- ea ’ — (pp. 146-147) ; "e : eee SSE eee, ee “hae, oe ee @Q)- pens ession. eis -the\ p yrosecution of ‘evidence , - favorable to the aectised ‘pan ‘request; ae ae (3). and: “where hindsight ‘discloses that’ the: de-* es tne ‘could have. put thé evidehee t to" ~not insignifi- . -eant use” (p. 147 Je. f In the court’s view: the first. two situations shoami es no! difficulty. The third presents a problem. ‘The court con- cludes that’ while. in some ‘instances relief ' should be granted, the standard of materiality must be considerably -. - *higher than. the usual. level of. probity required: for ad- | - 3 - missibility, The State stibscribes to this analysis and sug- * . +gests: that in this ease the evidence does ' not reach this - high level of: materiality.’ HE ie . . . * It has never been held that the graaseation 's ‘duty to dis- ‘close extends to all evidence possibly admissible and useful to. the defense. Nor has it been. established what. specific 7 degree of prejudice must. be shown. in order to warrant a _ ' new trial. The cases, “however, indicate that insignificant ee items of’ unproduced information will not overturn : gonviction. The evidence suppressed i in Giles w Mar -yland, 386 U.S 66 (1967), is representative of the sort of with--. held data, which has‘ produced reversals, In. Giles the — State suppressed. evidence. which would. have severely = "discredited the prosecutrix in a rape case“ The effect of « ee the evidence would shave been sufficrent to show. that the. . : “victim” of the’ rape was blatantly promiscyous and had - probably - consented to, rélations with the defendants. : a: i the effect of the "evidence in Giles and other cases along ‘this line of decisions has been-such as would: have . ro an . acquittal. or « ‘substantial reduction in sen-, as te 2 Gomaie United States ex rel Fein x. _ tea: 410 - F. 2d: 13, 20 — Cir. 1969), cert. den. wy U. ~ 935. ons alt aes - eee SA Noah ee : : A \ ‘ See Oe. t: . EN ae i tence. Neither ert in the field of we aponry is simply wrong in his deductions. And ‘in’ this ease the witness’ expertise was not established in ‘the record. It is, Seapeeres: quite - ‘understandable why ‘ Tllinois courts will permit’ the introduction of a weapon ~ found within’ a suspect’s control at the time*of his arrest which is’ suitable for the ‘commission of the erime charged, even though — no claim is made that he ‘actually used it on the occasion in_ question. _ Accordingly, in the. ease of . People. v, Os strand, 35 Ill. 2d 520, 221 N.E.. 2d. _ 499 (1966), a “snub-nese”? revolver was used in a rob- -bery. A larger revolver was found on the defendant at the time of: his arrest and admitted into evidence. It was held that such a discrepancy goes only to the weight ‘of the evidence and not the admissibility. In the instant case there is a diminutive amount of evidence in the ‘record to establish the size of the. shotgun used in the murder. It is entirely possible that the weapon fétind inthe petitioner’s possession could have been the murder | weapon. There ean be no doubt that the shotgun fowl at the time of petitioner’ s arrest was similar to the murder s . weapon and was, “thereforg properly, admitted into bi: dence.?” _ For these reasons it is apparent that ‘the weapon was not meee against the petitioner to denounge him-as a “bad , man” without regard to his: guilt or inndcenee.. It‘ is a _- well: established tule that evidence, of prior crimes can- not be introduced when it has ‘no. purpose other than to show. criminal dispositien. Spencer: v. Texas, 385 US. 54. (1961). There are, however, -numerous instances where evidence: ef prior crimes is admissible: In such eases the probative value of the evidence outweighs the ‘ possible prejudicial effect | on the jury. Here, there was a ‘ distinet -possibility. that. the- ‘shotgun in evidence was the’ _very-same gun that killed the bartender. Moreov er, ready ° access to a loaded shotgun could be considered a. part. ; of the petitioner’s s modus operandi. - # It is clear that the “other crime,” when it%is found to be independently relevant and ‘admissible, need hot be established beyond a reasonable doubt, eitker as to its commission or as to the defendant’s connection there: ~ with. 1 W harton, Criminal Evidence, § 366 (11th ed. 1935). The decision as to whether the logical relevance fr of the. gun counterbalances any improperly damaging. ef- - fect on the petitioner was with the trial court. Here; the A ._ 12. Indeed, ‘there is authority which ‘would ‘permit - the introduction of the .weapori merely for illustrative purposes.“See People vy.’ Aguirre, 158 Cal. App. 2d 304, 322 P. 2d 478 (1958), and cases collected in .State v. . Mays, 7 Ariz. App. 90, 486 P. 2d 482 (1968). © 13. Petitioner and hiss companion Barbee used the same sfxteen gauge shotgun in.a July 27, 1962 armed ~* . robbery. Pedple v. Moore, 3 Il. 2d 299, 220 N.E. 2d HS eNO), cert. den. 389 U.S. 8 5 a i al ca ” NANCE ARN a Rp Ae pearing etic ae ae Ng ad nara ic a Re aA . 99 fo . We. se possibility that the shotgun could have been the murder: - weapon, plus its distinctive character tending.to show ; briefing the Court would have, abandoned its holding or: would: at least have found some basis more’ substantial for its proposition than that it was “self-evident”. Le punishment. His agp was that. the legitimate in: | terest of the State is securing a fair jury on the issue of punishment should not prejudice his. right’ to.a fair. jury’ on. guilt or innocence. He offered studies concluding. that jurors | without . conscientious» scruples were “prosecution . _ prone’’ on the issue of, guilt or innocence.-The Supreme . + Court of Ilinois affirmed the. denial of relief. reople ' v.: ' Witherspoon, 36. Il. 2d 471, 224 N. E.. 2d 259 (1967). W itherspoon tlfen sought certiorari remain ral ques- © tions but failing again to chaltenge the fairness of the .jury on the ‘issue’ of punishment: This Court . granted, certiotari but limited to considering whether” the jury . selection process “assured the State of a- jury whose members ,were partial to the prosecution on the issue. of guilt or innocence in violation of the petitioner’s rights. under the Sixth and on Amendments fo ‘the” United States Constitution 1035 (1968). ‘This language certiorari in a companion case. Bumper v. ced orth. Carolina, 389 U.S. 1034 (1968). However, when Witherspoon 1 filed his brief he said. : Emphasis added}. 359 US... for the_first time jn a brief passage, the question of the : jury on the issue of punishment. Yet he still did not ask ° for a vacation of sentence—only: for a new trial.’ ‘The prosecution, | noting. that the «question : ‘was not. properly before the court, stated that it would not reply: tor the argument unless requested. to do so.. See Brief. for Res- ° — Woods, ——— v. Illinois PP. 37- 38. | ' as echoed in the grant of . oe gee spas. --i °° (he lack of argument had a devastating effect on the "+ quality and ‘clarity of: the decision and it is this that the. passage of. time has revealed. most clearly.?! _ ee. . The most. immediate problem arising from theslack of- _argument on the issue decided was a-severe lack of focus in the ‘holding. It is diffetlt to state with assurance thé _ holding of the case. The text of ‘the opinion and. one, - ‘ footnote- offer at least three separate. standards for jury - selection in“capjtal cases.2?— i oe sae re Ye 4 A, jot ae : ; 21... The Coutt relied, for example; on-a. Gaillup Poll ‘of Z 1966..to show that persons favoring capital .punishment were a “distinct and: dwindling minority.” To-wit, 42%. * * (391 US. at 520, n. 16). Yet the same poll showed that’. } persons without Seruples against inflicting capital punish- _ ment constituted 65% of the population. This latter figure. is the more.meaningful singe jurors were not asked if ' they favored capital punishment; rather they were: dsked.. ; é. “¥ if. tifey had scruples against its infliction, In any event, - polls’ are hardly -a- good basis for: lastirfg doctrine. Ac- cording.to Gallup the number of persons favoritig capital punishment’ “dwindled’’. from 42% in 1966 to 51% in 1969. (Gallup ‘Poll Report, February 16, 1969}. In a recent referendum, conducted in concert with a’ vote on, whether to adept a new state constitution, the voters of . Illindis rejected a ‘ballot proposition to abolish pital punishment. 643% .of. those’ voting Tavored retaining a eapital punishment while. only 35.79% opted for abolition: Just under 2,000,000 votes were cast .on the proposition. [Illinois, Secretary of State,: Constitution of the State of Illinois and ‘United ‘States 13, 15 -(1971)]. To whatever extent Witherspoon. relied on polls, it has been proven - to rest on an insufficient foundation, = =|... 22. In the text of the opinion the Court said: ne « “Specifically, we held that a sentence of death can- _ hot bé carried out if the-jury that imposed of recom: mended it was chosen by excluding veffiremen for ~ | Se 7 Ae ij POET ee a ee Gite 80 oe What then‘is the holding? Is it the somewhat flexible minimum standard in the text? Is it the standard of the ‘ footnote, i.e., willingness to consider all ‘the penalities?~ ' @ —— . ‘= said: ~— cause simply: because ‘they voiced general objections to the death penalty or expressed: conscientious or _ religious scruples against its infliction.’’ (391 U.S. 510, 521-22) ~ , , _. However, in a long footnote to this statement the Court ‘“Just as veniremen cannot be excluded for’ cause on the ground that they hold such views, so too they | » eannot .be excluded for cause simply, because they in- dicate that. there are’ some kinds of cases in whieh , they would refuse to recommend capital punishment. And a prospective. juror cannot be expected to say in advanee of trial whether. he would in fdet vote for - the extreme penalty in the case before him: The . -most that can. be demanded of a vefireman in this regard is that he-be willing to.consider all of the ~- penalties provided. by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the . facts and, circumstances. that might emerge in the -- __. ~tourse of the:proceedings. If.the voir dire testimony -w™ ae = 3 Ea 2 : = = x f- 3 i e a a in a‘given case indicates that veniremen’ were ex- _ eluded on any broader basis than this, the death sen- tence cannot.be carried out even if applicable statu- tory or case law in the relevant jurisdiction would. appear to support only a ‘narrower ground of ex-_ -elusion.”’ (391 U.S. 510, 522 n. 21) a And in the second paragraph of this same footnote the -— _ Court added: “We repeat, however, that nothing we say today bears upon the: power of a State to execute a defen- dant sentenced to death by. a jury from which. the only veniremen who were in: fact excluded for cause . a —-« . , we. 8 v 31 _. What‘is the meaning of. the second paragraph of the foot- note which lays down a very rigid standard but provides ‘that “nothing -we say today bears’ upon” the application of this standard? Bo 7 In Bumper v. North Carolina, 391 U:S. 543, 545 (1968), . a companion case decided the same day with opinien written by-the same Justice as in Witherspoon’, the Court | said: 7 . Ae a v TOT BR BY 5 Ay ee Sv “In: Witherspoon: vy. Illinois * .* * we have held’ _ | that a death sentence . cannot constitutionally be executed if imposed by.a jury from which have been ~~ excluded for cause those, who, without ‘more, are | opposed to capital punishment or’ have conscientious . | scruples against imposing the death penalty.”. fe The ambiguity in the holding is clearly illustrated in. + the following passage from Witherspoon: Ze ‘the State had: excluded only those prospective Jurors who stated in advance: of trial that they Would not even consider returning a verdict of death, it could axgue that ‘the resulting jury was simply | ' ‘neutral’ with respect to penalty. But when it swept from the jury all who expressed conscientious or re- ligiouy scruples against capital punishment -and all i PR MEN I De Mme Me ea ENe A ITF Ih P . . PLATE ALES Were those who made unmistakably ‘clear (1) that they would automatically vote against the imposi- . tion of capital punishment without regard to any evi- © dence that might be developed at the trial of the case : before them, or (2) that their attitude. toward the * death penalty would prevent them from making an 2 impartial decision as to the defendant’s guilt. Nor .7 does the decision. in this case affect the validity of. — any sentence other than one of death. Nor, finally, ‘does’ today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” (391 U.S. 522-523). ¢ : EOE MURA STR : x 5 cael GRA latin a ae ABSA N iB cas 28 7 who opposed it ins principle, the State crossed the line of neutrality.” (391 U.S. 510, 520; emphasis added)... nn %¢ What kind of exclusion of jurors is permitted? What kind is prohibited? What standards were approved? What standards were disapproved? What did the Court de- cide? Except in certain cases at the ends of the spectrum the answers to these questions are not known.* 23. The California experience is particularly iHustra- tive of the confusion generated by lack of focus in_ the Witherspoon opinion. =. “ ‘The Supreme Court of California has ruled on the ap- plicability of Witherspoon in numerous reported opinions. The court has‘stated the applicable test in terms of- the second paragraph ‘of footnote 21 1.e., it must be unmis- takably clear that the juror would automatically vote - against the death penalty regardless of the evidence or that the juror’s attitude toward the penalty would pre- vent an impartial decision on the defendant’s guilt. KE. G. In re Anderson, 69 Cal. 2d 638, 447 P. 2d 11%, 120-23: (1968); People v. "Washington, 71 Caf. 2d 1170, 459 P. “2d 259, 264-65 -(1969). But even’ this clear choice of standard has not avoided serious problems. ° The most obvious of these problems is that jurors often do not make unmistakably clear answers to questions on voir: dire. This tendency to give equivocal answers is if- creased substantially when questioning becomes extensive and probing. The net result of an attempt to apply.a rigid standard to an inherently equivocal sort of proceeding is a course of basically inconsistent decisions. ’ In other words, it is difficult to tell why or how the Supreme Court of California differentiates between the cases it affirms and those it reverses. : : | é 3 For example, in a’series of cases the Court disapproved excusing a juror despite the fact that a juror “believes” 9° / ° ° ° > ; . e * % The Court: did net deal with the effect of peremptory : challenges on. jury selection. in capital eases. Certainly the Court did: not ov errule its long standimg doctrine that. peremptory challenges are a matter for each- party * to —exere)se as ‘it sees fit.. Swain v. Alabama, 380 us. 2e2, - 221-222 (1965). Presumably the prosecution ‘could exer’ or “really feels” he could not. consider the death penalty, (People v. Vaughn, “ Cal. 2d 406;°455 P. 2d 122, 125-28 (1969).)Or that a juror “did not think” he could: aSseSS “the penalty, (People v. Osuna; 70 Cal. 2d -811,. 452 P. 21 678 (1969)YOr that a+ juror said “I don’t “think J. - could: send anyone to death”, (Inve Hillery, 71) Cal! 2d S97, 457 P. idl 69, 566-70 (1969). ) Or that-a juror said “TL eannot serve, on a capital, punishment case” (Péople | v. Goodridge, 70 Cal. 2d 824, 452 P. 2d 637, 646-7 (1 69). Or that a juror did not “believe” or “think” he could give the death penalty under any ciréumstances. (People v.. Washington, Tr Cal, 2d 1061, 458 P. 2d 479 (1969).) On the other hand, the California Court has ‘affirmed the excusing: of jurors .who said they “would rather not serve!’ or “Pin afraid I would [feel compelled ‘to vote for life “imprisonment ]” or “I don’t think I could con- sider it” or “I feel I couldn’t” or “I don’t believe I could.” People v. Mabry, 71 Cal. 2d 430, 455 -P. 2d 759, 167-70 (1969). In another case the court sustained a challenge to jurors who said “I believe that is my feel- ing” and “I don’t think I would in conscience impose the death penalty.” .People v.. Hill, 70. Cal. 2d 678, 452 P. 2d 329, 341-42 (1969).-In a third case a juror whose answers shifted from “possikly could” to “could not” was finally excused when*the said he answered affirmatively to the - proposition thet no matter what the case was, he could age in good conscience, vote for the death-penalty. People | . Robles, 71 Cal. 2d 924, 458 P. 2d. 67: (1969). These de- -. @isions simply cannot be Subjected to a Simple, reasonable analysis explaining the difference in results. — Ee hig s oI eM Gl ae Mak RO PO a eee SS ee “34 cise its peremptory challenges to eliminate scrupled - jurors who could still return a death*penalty verdict. And presumably the prosecution: would always choose to exer- cise its challenges with respect ‘to "such jurors. Yet this — . important question is unanswered by Witherspoon.** Tn short, the Court ought to reconsider or clarify ‘its decision in Witherspoon in light of the effect of that de- cision on actual jury selection; in light of the problems created by retroactive: application and in light of the | serious problems in interpreting the decision. B.. The Particular Voir Dire In This Case Was Not Con- 7 ducted In Violation Of The Witherspoon Decision. - During the voir dire in the present ease each venire- | man was’ asked in ‘substance whether he had any religious or conscientious ‘ scruples against “the infliction . of the 24. In the case at bar the State had sufficient serenit tory challenges to have eliminated those prospective jurots -eligible to serve under Witherspoon. Since this was a capital case each.side had. 20 peremptory challenges under the applicable ‘Illinois. statute: Ill. Rev. Stat.1963, ‘Chap. 38, par. 115-4 (e). None of the. State’s peremptory challenges was exercised against veniremen who were - totally “opposed to capital punishment. Notwithstanding ~ this: fact the’ State failed to exhaust all of its peremptory . challenges at the close of the examination. If defense , counsel had elected to question further and had been able to elicit from“a few challenged veniremen the response that despite their. religious or philosophical principles they might be able to sign a death verdict, the composi- tion of the jury would have been no different. in respect -to its propensity to invoke the death penalty. 35 | death penalty - in thle proper’ case. In the ontext of the entire voir dire, cluding the. trial court’s efforts to de- ~ termine, whether the jurors would consider all possible verdicts, it cannot be said that there had. been removed ‘from’ the jury “for cause those who, without more, are opposed to capital punishment. or have: conscientious _ seruples against imposing the death penalty.” Bumper v. North Carolina, 391 US. 543, 545 (1968). Twelve jurors positively asser ted ‘that they. had such scruples and were excused for cause without motion by the State or objec- | ‘tion by petitioner. The general course’ of. the examination, however, was" unlike Witherspoon where. the’ trial judge promptly ‘re- | -. moved all who voiced the slightest disdain for the death | penalty. The effort of the trial court: to select a fair and ‘impartial jury is reflected in the examination of prospec- tive juror Conner: | “ “The Court: Q. Did you say Mr. Conner, that if | vou detérmine first, that the, defendant is guilty and: then vou are to determing whether you should render a verdict of death that. you couldn’t consider that? A. I said that I was one: hundred peggent for punishment, but if a man has to take another life to punish him, then I don’ t feel that I could be Justified in taking it. Q. In other words, you: don’t believe: in capital . punishment! ? . “A. If that’s w hat it amounts to. Q. :No, no. I’m ‘asking vou. I asked you, did you. have any religious or conscientious scruples against the infliction of the death penalty in a proper case? A. -In a proper case, no, I don’t have any ob- jections and I could sign a death penalty i in a proper case. | eer ooateesmE SRR E Re RESON RE ON MS oneR HPT Ear s *. "36 . ~The Court: Well, I’m not going ‘to gemove him.” (R. 145). | ; on Another example is the following examination of pros- : a pective juror Nakata: : . - ao et enw a mrt * — — St re mee eo gy BE Ne ape - eee, ae 3 Likewise, you can’t be a juror unless yo -when you’re sworn, and you are sworn to respect and. observe the law. ° - ‘A. That’s the reason wie I would like to give . “my reasoning right now, before I perjure myself about that personally, Nhechune T can't go all the why on eapital punishment. . Q. You ean’t go all the way? | | "AL Now . . _ os Q. Where do you stop! | _— = A. It depends on the: kind of crime ‘it is ail the evidence presented for it. _ : : Q. Oh, that’s all we are asking” you to do. ne A. We it seems to me, from the statements made by the prosecuting attorney, that he is going to ask for the death’ penalty, so in view of that fact, - I think I should | disqualify myself. Q. If he asks for it, it doesn’t miean that you i id ~ have to give H-te-him.> ~ : A. Of course, that’s true, too. But at the Same’ 7 time, though, [ mean, | wouldn’t be applying the a7, law, as, he stated it, you’see, upon his presentation oe ' ‘of the evidence, and all that, so I don’t think I would be fair ‘to the court or to the Test of the jurors by my being on the jury. - The Court: Step down, then, if you “don't think ] | “you.ecan be fair. I’m not going to ask you to try 4 any -further. The onjy question is, we- want you to _ be fair and -impartial.” (R. 227 299) | | _ . Tt is the State’s understandifig of the Witherspoon. doc- \ - trime that the/ exclusion of jurors with scruples against } e 37 capital punishment does not necessarily void the inflic- tion of: the death penalty. The‘tenor of the voir dire ex- amination here was quite different from that ‘of the Witherspoon court. In that case the tone was _ set early —-t. the_xoir, ¢ dire | when the trial judge. said, “Let’s get these’ conscientious : objectors out of the way - -without “wasting any time on. them.”-In this case, there ‘was no hint of a desire to be unduly rash in selecting the jury. . To thé contrary, the mood of the proceedings here indi- \eated a sincere desire to determine the jurors’ qualifica- tions. The fact that the questioning became more ab- _ breviated as the examination progressed indicates mere- dy an increase in efficiency, not a sellout to haste. —, Furthermore, jn the context of the voir dire it is clear that the veniremen were cognizant of the import of\the . ° : ° oo ° . . a) Pr question. In Illinois, as in most jurisdictions, the entire venire is present in the courtroom while the indivdual jurors are questioned. The. venire is brought into the courtroom and given preliminary: instructions - -eontérning the nature of the case and the-tria! procedure. The veniremen are then sworn as a group. After the -eolloquy between the trial court and venireman Connor (R. 145) g (who- was. the second venirpman examined) no pros-. pective juror: could, have been in doubt as to what was meant by conscientious: or religious scruples. against, in- © flicting the death penalty. The trial court made it clear ‘that it was concerned only with persons who would not render the death penalty under any circumstances; and such persons’ may be excused for cause under WWither- spoon. - | — a . Sa Sosa Cs eo AO, REN te coneaee INE REY SOK DA EMIS MR MY err ienT « rere : . .-. 7 . « : , “ew 4 a | Ba “ee EH ee . %s . . 7 . -s . ’ . - CONCLUSION _— For the foregoing reasons, Respondent requests that. the judgment of the Supreme Court of Illinois be affirmed. . __e esoeettaly submitted, y ae Wituam J. Scorr, . Attorney General, ee State of Mlinois,“ \ oo, o\ . . Jorn M. Fuaum, vo | _ . First Assigtant Attorney General, ¢ ; ‘James B: ZacEL, Assistant Attorney General, " Supreme Court Building, : Springfield, Iinois 62706, © | | Attorneys for Réspondent. Y = 2 io . Tuomas J, Inter, 5. * f _ Jayne A. ces, es es & Assistant Attorneys General, : of Counsel. -— B onsicrnsinniowesn | | . | a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0067%3A07. Public record. Not legal advice.