Analysis: Barring jurors in death penalty cases
on Jun 4, 2007 at 2:45 pm
The Supreme Court, in a ruling Monday that split the Court 5-4, has elevated the importance of the role of defense lawyers when a trial judge decides to exclude a potential juror in a death penalty case because of what that juror has said under questioning about capital punishment. The Court majority in Uttecht v. Brown (06-413) treats as an unusually significant factor the defense’s failure to raise a distinct objection when prosecutors want a juror off the case — even when state law does not require such an objection to be made in order to raise it later on appeal. In fact, the language the majority uses in discussing the failure of an objection suggests that it considers it harmful to the process and a failing of the defense lawyer’s professional obligations.
The majority opinion by Justice Anthony M. Kennedy and the lead dissenting opinion, by Justice John Paul Stevens, both focus very closely on the specific jury panel questioning that led to a judge’s decision to bar a juror from a murder trial, but that focus diverts attention from the broader sweep of both the majority and dissenting opinions. Kennedy’s opinion appears to stand for the proposition that federal courts should seldom second-guess a state trial judge’s exclusion from a state murder trial of a juror who has ambiguous views about the death penalty but is not totally opposed to it in all circumstances. Stevens opinion, in turn, appears to be a strong complaint that the Court has moved to encourage the inclusion of jurors more likely to opt for death sentences. The two opinions appear to take sharply differing positions on what it means to find a juror cannot serve because he or she is “substantially impaired” in the ability to weigh a possible death sentence.
The ruling grows out of the murder trial of Cal Coburn Brown, who was convicted and sentenced to death for first degree murder. Brown was prosecuted for raping and torturing a woman for two days before killing her and dumping her body in a parking lot. During jury selection, one potential member of the panel — his name was Richard Deal, although the Supreme Court refers to him throughout only as “Juror Z” — repeatedly said that he could impose the death penalty in circumstances that he thought appropriate. But some of his answers (recounted in an appendix to the majority opinion) show some misunderstanding of Washington state law on punishment for murder, and some ambiguity about just when Mr. Deal would be willing to vote for a death sentence.
Kennedy’s opinion canvasses those exchanges in detail, and comes ultimately to the conclusion that the state of Washington’s courts had adequately supported Mr. Deal’s exclusion, and that the Ninth Circuit Court was wrong in finding that it was error to have kept him off the jury. The majority opinion is built upon two major foundations: trust in the ability of trial judges to understand the demeanor and the atmospherics in the courtroom during jury selection, but distrust of defense lawyers who do not object when a juror who is equivocal about the death penalty is challenged for cause by prosecutors and then excluded by the judge.
The majority was composed of Kennedy, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. Dissenting with Stevens were Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Breyer also filed a separate dissent, joined by Souter, arguing that the defense lawyer’s failure to object to Juror Deal’s exclusion should not even have been considered by the Court. Stevens recited orally about his dissenting views from the bench, following Kennedy’s recitation for the majority.
The majority appears to make no new law of consequence in finding that federal courts as a general matter should defer in federal habeas cases to the decisions of state trial judges to exclude jurors from capital cases because of their views on the death penalty. But it does rely upon the Antiterrorism and Effective Death Penalty Act of 1996, a broad rewrite of federal death penalty law to cut down habeas options for state prisoners, to reinforce its conclusion that deference to trial judges is most appropriate in that circumstance.
What appears to be new about the majority opinion is its emphasis upon the role of the defense lawyer when a juror who seems uncertain about the death penalty (and thus, under the precedents, would not necessarily be ineligible to serve) is barred from serving by the trial judge. Kennedy’s opinion concedes that, in order to challenge a juror’s exclusion in federal habeas, there is no requirement under federal law that defense counsel have objected at trial. And it concedes that, under Washington state law, it is not necessary to object to a juror’s exclusion in order to preserve the opportunity to later challenge that as error. But, Kennedy went on, the failure to object nonetheless is significant and must be taken into account by reviewing courts.
“By failing to object,” Kennedy wrote, “the defense did not just deny the conscientious trial judge an opportunity to explain his judgment or correct any error. It also deprived reviewing courts of further factual findings that would have helped to explain the trial court’s decision. The harm caused by a defendant’s failure to object to a juror’s excusal was described well by a Washington appellate court in a different case…” That was followed by a quotation that failure to object deprives a court of an opportunity to determine the law and facts about a juror’s exclusion.
While Kennedy undertakes to speculate about strategic or tactical reasons why the defense lawyer in Brown’s case did not raise an objection to Juror Deal’s exclusion, it goes on to suggest again that the failure was “especially significant” in this case because the defense lawyer had frequently objected to the exclusion of other jurors in the case. And, Kennedy added, in the context in the trial at that point, the volunteered comment that there was no objection “was not only a failure to object but also an invitation to remove Juror Z.”
Stevens’ dissenting opinion treats the defense lawyer’s failure to object to Juror Z’s removal as irrelevant, because “in this case there was absolutely no basis for striking Juror Z” and doing so in fact skewed the jury by excluding a member who could have followed the law despite some reservations about the death penalty. Breyer’s dissent argued that the failure to object should not even be a factor in the Court’s decision, because state law does not require such an objection in order to preserve a claim of error. “And that means,” Breyer wrote, “we must treat this case as if a proper objection had been made.”
