Standard for excluding jurors: Argument 4/17/07
on Apr 16, 2007 at 6:00 pm
A single jury panel member named Richard Deal, excluded from serving in a gruesome murder case that went to trial 14 years ago in Washington State, is at the center of a potentially historic case on jury selection in death penalty cases due for argument at 1 p.m. Tuesday. The case of Uttecht v. Brown (06-413) puts before the Court a mixture of issues about federal court authority to review jury selection in state criminal courts, about the ease with which judges may bar jurors with reservations about the death penalty, and about how to apply a key Supreme Court precedent on capital trials (Wainwright v. Witt, 1985). It also involves the ongoing conflict between the Supreme Court and the Ninth Circuit Court over how rigorously to read the habeas-curbing provisions of the Antiterrorism and Effective Death Penalty Act of 1996.
Richard Deal was a potential juror in the 1993 trial of Cal Coburn Brown on charges of raping and torturing a woman he held captive for two days in a Spokane motel, before killing her by stabbing her repeatedly and leaving her to bleed to death in the trunk of a parked car. During selection of jurors, Deal said on a questionnaire and repeated on the stand that he could impose a death sentence for someone who had killed “and would kill again.” Despite repeated questioning by both sides about his views on capital punishment, his answers did not satisfy prosecutors, and they sought to have him excluded for cause. The judge found Deal’s responses equivocal, and removed him from the panel as “impaired.” The jury that was chosen convicted Brown and he was sentenced to death.
After failing in challenges in state courts, Brown pursued a habeas challenge in federal court, but lost in District Court. The Ninth Circuit, however, overturned his sentence, concluding that the exclusion of Richard Deal from the jury was not a reasonable application of Supreme Court precedent on the standards for jury selection in capital cases. The state courts had never explicitly found that Deal would have been unable to follow the trial judge’s instructions on considering a death sentence, the Circuit Court said. It added that Deal’s statements were clear enough that there was no need for federal courts to presume that the trial judge’s exclusion of the juror was correct.
Washington State prison officials took the case on to the Supreme Court, which granted review on Jan. 12. At Tuesday afternoon’s one-hour hearing, the state officials will be represented by John J. Samson, assistant state attorney general. Joining him on that side of the case will be Deputy Solicitor General Michael R. Dreeben; the U.S. government is in the case as an amicus to support the state as well as to defend jury selection procedures in federal capital cases. Representing Cal Coburn Brown will be a Seattle sole practitioner, Susanne Lee Elliott.
Because the case reaches the Supreme Court as a federal habeas case, much of the debate in the case centers on how much authority federal courts have to second-guess trial judges’ decisions about when to exclude a potential juror because of his or her views about capital punishment. The state of Washington, the federal government, and 23 other states as amici argue that AEDPA’s emphasis on the need to presume the correctness of state court decisions under review in federal habeas is especially necessary when it comes to jury selection and exclusion.
So much depends upon credibility as a factor in including or barring a juror, that side argues, that the trial judge is in the best position to make judgments about how that juror would react during the trial and decision on the verdict. As the Solicitor General’s government brief puts it: “Determinations of juror bias turn on an assessment of the juror’s credibility, and the trial court is uniquely positioned to assess the juror’s credibility by viewing the juror’s demeanor and hearing the juror’s testimony.” Thus, applying the standard of the Witt decision — a juror may be excluded from a capital jury if his or her views “would prevent or substantially impair the performance of his duties…in accordance with his instructions and his oath” — the challengers to the Ninth Circuit argue that it should have deferred to the trial judge’s assessment of what potential juror Deal had said about the death penalty.
A related issue that the states emphasize is whether the Witt standard can only be met if the trial judge makes explicit findings, and enters them on the record, as to why an excluded juror was considered impaired. The states contend that judges should be allowed to make that judgment based upon “implicit” findings not spelled out, or “inferences” from what is in the record. The Ninth Circuit in this case faulted the trial judge for never finding explicitly that juror Deal would not be able to perform his duty. The other states as amici argue that “if AEDPA’s presumption of correctness is inapplicable to implicit findings, state trial courts will deem it necessary to articulate all factual findings on each discrete legal issue that arises in the course of a case, and their ability to conduct criminal trials efficiently will be compromised.”
The Washington State brief argues that the “presumption of correctness” required by federal habeas law “is not limited to express findings of the trial court. The presumption applies to the express and implicit findings of the state trial and appellate courts.” Thus, the state said, even if the words a juror uses and are recorded in a transcript are clear, the demeanor that a juror exhibits may persuade a trial judge that the juror’s views, however stated, lead to a conclusion of impairment.
The brief for Coburn argues that the trial judge was wrong (and the state courts were wrong in upholding the trial judge) in concluding that juror Deal had to be barred because he misunderstood the law of capital punishment in Washington State. The trial court, Coburn’s brief says, dismissed Deal after prosecutors objected that Deal had not overcome the idea that a death sentence could be imposed only if there is proof that the murderer would kill again if not executed. The state Supreme Court upheld the exclusion, saying that this kind of proof is not requried as a matter of state law.
Coburn’s brief contends that the issue on whether a juror is impaired should not turn on whether he or she understands the law: “A prospective juror’s confusion about the law during voir dire is simply not a basis for concluding that his views about the death penalty would substantially impair his ability to ollow the law or honor his oath. Few jurors could pass a quiz about the law during voir dire.” In juror Deal’s case, the brief asserts, he was only stating his view that the prospect of further killing was a factor that would be important to him in deciding the death sentence issue.
That point is echoed in the amici briefs supporting Coburn. The American Civil Liberties Union urges the Court to make it clear that jurors’ concerns about future dangerousness should be allowed as a factor in influencing their decision on capital punishment. The National Association of Criminal Defense Lawyers adds 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.”
The Court is expected to decide the case before recessing for the summer.
