Garrison v. Keeten Brief for Petitioners-Appellees
Public Court Documents
May 15, 1984
Cite this item
-
Brief Collection, LDF Court Filings. Garrison v. Keeten Brief for Petitioners-Appellees, 1984. 3621e8d9-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/77071039-dfea-4c99-acde-4c5634bcc2eb/garrison-v-keeten-brief-for-petitioners-appellees. Accessed July 16, 2025.
Copied!
d
*•1
>
«
5 t\ l V\ O c \ r \ r < S o ' /
JAMES C. FULLER, JR.
Suite 913Branch Banking S Trust Building
Raleigh, North Carolina 27602
SAMUEL R. GROSSStanford Law School
Stanford, California 94305
JAMES E. FERGUSON, II
THOMAS M. STERN951 South Independence Boulevard
Charlotte, North Carolina 28202
ADAM STEIN
ANN B . PETERSEN
Post Office Box 1070
Raleigh, North Carolina
ANTHONY G. AMSTERDAMNew York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITI0NERS- APPELLEES
27602
I
TABLE OF CONTENTS
STATEMENT OF THE ISSUES PRESENTED FOR Rr,VIc.A? ....
STATEMENT OF THE CASE ...........................
Introduction ..........................
Legal Background ......................
Procedural History Of These Cases .....
STATEMENT OF FACTS ..............................
Death-Qualification And Juror
Attitudes ........................
Death-Qualification And Juror
3ehavior .........................
The Process of Death—Qualification ....
ARGUMENT: PART ONE -- THE COMMON ISSUES ........
I. The District Court Correctly Held That
The State’s Use Of Death-Qualification
Procedures To Exclude Impartial Jurors
At The Guilt-Or-Innocence Phase Of
Petitioners' Capital Trials Denied Their
Sixth And Fourteenth Amendment Rights
To Fair And Impartial Juries ..........
A. The District Court's Findings On
Conviction-Proneness ..............
3. The Applicable Standard Of Review
Of Those Findings .................
C. The Controlling Legal Principles....
D. The State's Arguments For Reversal..
(i) Petitioners' Standing ........
(ii) The Impartiality Of Death-
Qualified Jurors .............
(iii) The Possibility Of Partiality
On Guilt -- The "Nullification"
Argument .....................
Page
1
3
3
6
8
8
8
10
13
lk
lk
lk
16
18
22
23
25
29
i
Page
*
«
■
(iv) The Value Of The Social
Science Evidence .................
a. Attitudes and Behavior .......
b. Simulated Jury Research ......
(v) The Constitutional Significance
Of The Biasing Effects Of
Death-Qualification ..............
a. The Significance Of The
Applebaum Affidavits..........
b. The Legal Question At Issue ...
II. The District Court Correctly Held That Death-
Qualification Procedures Denied Petitioners'
Sixth And Fourteenth Amendment Rights To
Juries Selected From A Representative Cross-
Section Of The Community ....................
ARGUMENT: PART TWO — WILLIAMS' SEPARATE CLAIMS.....
I. The Biasing Effect Of The Jury Selection
Procedures Is Unacceptable When The
Defendant Is Sentenced To Die .............. -
II. A Juror Who Insists That She Is "Not
Sure" And "Not Positive" That She Could
Recommend The Death Penalty Is Not
Irrevocably Committed To Vote Against
Death So As To Permit Her To Be Excused
For Cause From The Venire ..................
CONCLUSION .........................................
34
34
36
40
40
45
50
55
55
57
65
APPENDIX Summary Of The Studies Introduced In^o
Evidence By Petitioners............... la
TABLE OF AUTHORITIES
Cases
Adams v. Texas, 448 U.S. 38 (1980) .............. 20,32,46,58
Ballard v. United States, 329 U.S. 187 (1946).... 26
Ballew v. Georgia, 435 U.S. 223 (1978) .......... 12,45,47,53
Barfield v. Harris, 719 F.2d 58 (4th Cir. 1983)... 63
Barfield v. Harris, 540 F.Supp. 451
(E.D.N.C. 1982) ........................... 48,64
Beck v. Alabama, 447 U.S. 625 (1980) ............ 29,55
Blankenship v. State, 280 S.E.2d 623 (Ga. 1981) •• 64
Bonds v. Mortensen & Lange, 717 F.2d 123
(4th 1983) ................................. 17
Brady v. United States, 397 U.S. 742 (1970)...... 56
B's Company, Inc. v. B.P. Barker & Assoc.,
391 F. 2d 130 (4th Cir. 1968)................ . 18
Bumper v. North Carolina, 391 U.S. 543 (1968)....
Canron Inc. v. Plasser American Corp., ,7
609 F.2d 1075 (4th Cir. 1979) ..............
Chandler v. State, 442 So.2d 171 (Fla. 1983)..... 64
Connally v. Georgia, 429 U.S. 245 (1977)
(per curiam) ............................ 20
Darden v. Wainwright, 725 F.2d 1526
(11th Cir. 1974) (en banc) .................. 63,64
Davis v. Georgia, 429 U.S. 122 (1976) ......*.... 46,64
Davis v. State, 665 P.2d 1186 (Okla. Cr. 1983) * * -• 59,60
DeStefano v. Woods, 392 U.S. 631 (1968)
(per curiam) ............................. ^
Duncan v. Louisiana, 391 U.S. 145 (1968) ........ 18
Duren v. Missouri, 439 U.S. 357 (1979)........ 26,50
Enmund v. Florida, 458 U.S. 782 (1982) .... 88
iii
Estelle v. Williams, 425 U.S. 501 (1976) ........ 21
Estes v. Texas, 381 U.S. 532 (1975) ............. 21
Friend v. Leidinger, 588 F.2d 61 (4th Cir. 1978) .. 17
Furman v. Georgia, 408 U.S. 238 (1972) .......... 33
Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1981).... 59
Gardner v. Florida, 430 U.S. 349 (1977) ......... 55
■. Granviel v. Estelle, 655 F. 2d 673 (5th Cir. 1981) ,
cert, denied, 455 U.S. 1003 (1982) ......... 63
Gregg v. Georgia, 428 U.S. 153 (1976) ........... 33
Grigsby v. Mabry, 637 F.2d 525 (8th Cir. 1980).... 5,28,47
Grigsby v. Mabry, 569 F.Supp. 1293
(E.D. Ark. 1983) .......................... 5,6,24,28,47
Grijalva v. State, 614 S.W.2d 410
(Tex.Cr.App. 1981) ......................... 64
Groppi v. Wisconsin, 400 U.S. 505 (1971) ........ 19
Hance v. Zant, 696 F.2d 940 (11th Cir. 1983) .... 64
Hogge v. Johnson, 526 F.2d 833 (4th Cir. 1975) ... 18
Hovey v. Superior Court, 28 Cal.3d 1,
616 P.2d 1301 (1980) ....................... 5,28,44,47
Hutchins v. Woodard, No. 84-8050
(4th Cir. March 9, 1984) ................... 48
Irvin v. Dowd, 366 U.S. 717 (1961) .............. 19,24,32
Johnson v. Mississippi, 403 U.S. 212 (1971) ..... 18
Jones v. Pitt County Bd. of Ed., 528 F. 2d 414
(4th Cir. 1975) ........................... 17
Jurek v. Texas, 428 U.S. 262 (1976) ............. 33
Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) ...... 17
Justus v. State, 542 P.2d 598 (Okla.Cr. 1975) ,
vacated on other grounds, 428 U.S. 907 (1976) ... 59,60 '
Lockett v. Ohio, 438 U.S. 586 (1978) ........... .33,51,52 55
IV
Mayberry v. Pennsylvania, 400 U.S. 455 (1971)...... 21
McCorquodale v. Balkcom, 721 F.2d 1493
(11th Cir. 1983)(en banc) ................... 63
McGautha v. California, 402 U.S. 183 (1971)........ 33
Moore v. Balkcom, 670 F.2d 56 (5th Cir. 1982)...... 64
Moore v. Midgette, 375 F.2d 608 (4th Cir. 1967).... 77
In re Murchison, 340 U.S. 133 (1955)............... 18,21
O'.Bryan v. Estelle, 714 F. 2d 365 (5th Cir. 1983) •••• 63
O'Neal v. Gresham, 519 F.2d 803 (4th Cir. 1975).... 17,18
Parker v. North Carolina, 397 U.S. 790 (1976) ...... 56
People v. Goodridge, 76 Cal.Rptr. 421,
452 P.2d 637 (1969) .........................., 63
People v. Valasquez, 162 Cal.Rptr. 306,
606 P.2d 341 (1980) .........................., 64
People v. Vaughn, 78 Cal.Rptr. 186,
455 P. 2d 122 (1969) ......................... .. 63
People v. Washington, 80 Cal.Rptr. 186,
458 P.2d 479 (1969) ......................... . 63
People v. Word & Sparks, No. 78647 (Super. Ct.
Santa Clara Co. 1981) ....................... . 5
Peters v. Kiff, 407 U.S. 493 (1972) .............. . 26
Pierson v. State, 614 S.W.2d 102
(Tex.Cr.App. 1981) .......................... . 64
Proffitt v. Florida, 428 U,.S. 242 (1976 ).......... . 33
Pullman-Standard v. Swint, 456 U.S. 273 (1982) .... . 17
Reid v. Covert, 354 U.S. 1 (1957) ................ . 55
Roberts v. Louisiana, 428 U.S. 325 (1976) ......... . 62
Rosales-Lopez v. United States, 451 U.S. 182 (1981) ___24
Rose v. Lundy, 455 U.S. 509 (1982) ............... . . 25
Sheppard v. Maxwell, 384 U.S. 333 (1966) .......... . . 19,20,21
Smith v. Balkcom, 666 F.2d 573 (5th Cir. 1981) .... . . 28
Smith v. Texas, 311 U.S. 128 (1946) ..............
V
Smith v. University of North Carolina,
632 F. 2d 316 (4th Cir. 1980) ..................... 17
Spinkellink v. Wainwright, 578 F.2d 582
(5th Cir. 1978) ................................ . . 28,33
State v. Adams, 76 Wash.2d 650 , 458 P.2d 558 (1969).... 64
State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980) ... 51
State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968) ...... 59,60
State v. Pruitt, 479 S.W.2d 785 (Mo. 1982) .......... 60,63
State v. Ross, 343 So.2d 722 (La. 1978) .............. 59,62
State v. Szabo, 94 111.2d 327, 447 N.E.2d 193 (1983)... 63
State v. Wilson, 57 N.J. 39, 269 A.2d 153 (1970) ...... 59,60
Strauder v. West Virginia, 100 U.S. 303 (1880) ....... 26
Taylor v. Hayes, 418 U.S. 488 (1974) ................. i8
Taylor v. Louisiana, 419 U.S. 522 (1975) .............. 19,26,50
Thiel v. Southern Pacific Co., 328 U.S. 217 (1945).... 19
Turney v. Ohio, 273 U.S. 510 (1927) ................... 20
United States v. Harper, ____ F.2d ____
(9th Cir. April 3 , 1984) ........................ 47
United States v. Jones, 608 F.2d 1004 (4th Cir, 1979).. 24,32
United States v. Warwick Mobile Home Estates,
537 F. 2d 1148 (4th Cir. 1978) ................... 17
United States v. Jackson, 390 U.S. 570 (1978)........ 56
Villareal v. State, 576 S.W.2d 51
(Tex.Cr.App. 1979) ............................. 59,63
Ward v. Monroeville, 409 U.S. 57 (1972).............. 20
Wardius v. Oregon, 412 U.S. 470 (1973)............... 22
White v. State, 674 P.2d 31 (Okla.Cr. 1983 ) .......... 61,63,64
Williams v. Florida, 399 U.S. 78 (1975) ............. 26,47
Williams v. Maggio, 679 F.2d 381 (5th Cir. 1982) ,
cert, denied, ____ U.S.____, 77 L.Ed.2d 1399
(1983) 63
Williams v. State, 542 P.2d 544 (Okla.Cr. 1975),
vacated on other grounds, 428 U.S. 907 (1976)
Witherspoon v. Illinois, 391 U.S. 510 (1968)
Witt v. Wainwright, 707 F.2d 1196
cert, denied, ___ U.S.____,
(U.S. May 1, 1984) .........
(11th Cir. 1983) ,
52 U.S.L.W. 3786
Other Authorities
Rule 52(a), F.R.Civ.Pro. ......................
S. PENROD & HASTIE, INSIDE THE JURY (1983) .......
Zeisel & Diamond, "The Effect of Peremptory
Challenges on Jury and Verdict: An Experiment
in a Federal District Court," 30 STAN L. REV.
491 (1978) ...................................
Passim
59
63,64
17
36
38
v n
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 84--6139L
SAM GARRISON, et al.,
Respondents-Appellants,
-against-
CHARLES BRUCE KEETEN,
Petitioner-Appellee.
No. 84--614-0
ROBERT HAMILTON, et al.,
Respondents-Appellants,
-against-
BERNARD AVERY,
Petitioner-Appellee.
No . 84--614-1
NATHAN RICE, et al.,
Respondents-Appellants,
against-
LARRY DARNELL WILLIAMS,
Petitioner-Appellee.
Appeal From The United States District Court
For The Western District Of North Carolina
Charlotte Division
BRIEF FOR PETITIONERS-APPELLEES
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. May the extensive factual findings made by
the District Court, amply supported by substantial record
evidence and not clearly erroneous, be overcome by the
State on appeal?
2. Is there substantial support in the record
for the District Court's finding that death-qualification
produces juries that are uncommonly prone to convict?
3. Is there substantial support in the record
for the District Court's findings that death-qualification
produces juries that are disproportionately favorable to the
prosecution in their attitudes and predispositions?
4.. Is death-qualification unconstitutional be
cause of the proven fact that it produces juries that are
"less than neutral on the issue of guilt," i.e., that it
permits the State to enhance its chances of obtaining a
conviction by asking that the defendant receive a sentence
of death?
5. Is there substantial support in the record
for the District Court's finding that jurors who are ex
cluded by death-qualification are a sizeable and distinctive
group in the community, and that they share a distinctive
constellation of attitudes on important criminal justice
issues?
6 . Is death-qualification unconstitutional be
cause it systematically removes a "cognizable group" of
prospective jurors from the jury pool available to try
capital cases?
2
STATEMENT OF THE CASE
(i) Introduction
The common issues on these appeals concern a
procedure known as "death-qualification" under which
prospective jurors in capital trials in North Carolina are
examined at length during voir dire on their attitudes
toward the death penalty. All jurors who state that they
could never consider a sentence of death are subject to
systematic exclusion for cause by the State, not merely
from the penalty phase, but from the guilt-or-innocence
phase as well — even if it is established on voir dire
that these jurors could serve fairly and impartially in
determining guilt or innocence.
No question is presented on these appeals con
cerning the State's authority to remove from the penalty
phase those jurors who could not consider imposing a penalty
of death, nor is any question raised concerning the State's
authority to remove, at the guilt phase, those whose opposi
tion to the death penalty would prevent them from serving as
fair and impartial jurors on the issue of guilt or innocence.
Neither do petitioners question the State's right to use all
of its peremptory challenges to exclude any prospective
jurors it chooses.
The narrow question presented here is whether the
State is constitutionally entitled to an unlimited number of
challenges for cause to exclude from the guilt or innocence
phase all jurors who could follow the law and serve fairly
to determine guilt or innocence in a capital case, yet who
3
could not impose a sentence of death in a subsequent penalty
proceeding, if any (hereinafter "Witherspoon excludables").
Petitioners contend that the systematic removal of this group
of venirepersons from their juries severely and unconstitution
ally prejudiced their rights to fair and impartial juries on
__1/
the issue of guilt.
Petitioners have established below that this group
of prospective jurors share distinctive attitudes, not merely
toward the death penalty, but toward a range of criminal justice
issues, and that juries deprived of the perspectives of such
"Witherspoon excludables" are more prone to favor the prosecu
tion than are ordinary juries, and more likely than ordinary
juries to convict. The District Court has held that, because
of these effects, death-qualification violates their Sixth and
Fourteenth Amendment rights to a fair and impartial jury, and
to a tribunal selected from a representative cross-section of
the community.
The record in this case consists primarily of the
transcripts and exhibits of three earlier evidentiary hearings
on the effects of death-qualification: (i) the hearing in the
1/ As used throughout this brief, references to the deter
mination of "guilt" are intended to include (in addition to
the overall question of conviction or acquittal) the deter
mination of the kind of homicide that may have been committed
(murder or manslaughter), the degree of the offense and the
sanity of the defendant.
consolidated cases Grigsby v. Mabry (No. PB-C-78-32),
Hulsey v. Sargent (No. PB-C-81-2), and McCree v. Housewright
(No. PB-C-80-429), all heard by the Honorable G. Thomas
Eisele (E.D. Ark., July-August, 1981) and decided in Gngshy
v. Mabry, 569 F. Supp. 1293 (E.D. Ark., 1983)(hereinafter
" 2/"Grig. Tr." )1 (ii) the hearing in People v. Moore, No-..67.113
(Superior Court, Alameda County, California, August-September,
1979), which formed the record for the California Supreme
Court's opinion in Hovey v. Superior Court, 28 Cal. 3d 1, 616
P.2d 1301 (1980)(hereinafter "Hovey Tr.”); and (iii) the record
in People v. Myron Eugene Word and Wendell Herbert Sparks, No.
78617, (Superior Court, Santa Clara County, California, August
1981)(hereinafter "Word Tr."). These records focus on an
extensive series of social scientific studies on the effects
of death-gualification.
Although the State has appealed the District Court's
judgment in this case, it has not at any point offered a co
herent summary of the scientific record on which that judgment
is based. This omission is perhaps understandable, for the
evidence in this case is exceedingly one-sided: it provides
overwhelming support for petitioners' contentions, and it does
not contain a single study on death-gualification that supports
the State's claims. (Indeed, as we will discuss infra, the
2/ In Grigsby v. Mabry, 637 F.2d 525, 528 (8th Cir. 1980),
the United States Court of Appeals for the Eighth Circuit
directed the District Court to hold an evidentiary hearing
on several factual questions determinative of petitioners'
conviction-proneness claim because "if they are answered in
the affirmative, Grigsby has made a case that his constitu
tional rights have been violated and he would be entitled
to a new trial." Id. at 527. Following an evidentiary hearing
5 [Cont'd .]
studies on which the State does attempt to rely underline
the weakness of its position.) Since the facts are essential
to an understanding of the District Court's holding, we will
j W
briefly set them forth here.
One of the petitioners in this appeal, Larry Williams,
also prevailed below on an individual claim, that at least one
juror was excluded for cause from his capital jury in violation
of Witherspoon v. Illinois, 391 U.S. 510 (1968). That issue
will be addressed following our discussion of the common
claims.
(ii) Legal Background
In 1968, the Supreme Court decided Witherspoon v .
Illinois, 391 U.S. 510 (1968). The petitioner in Witherspoon
had challenged, on two separate grounds, the prosecutor's statu
tory right in Illinois to "death-gualify" a capital jury, that
is, to exclude all prospective jurors, for cause, solely because
of their "'conscientious scruples against capital punishment,
Witherspoon v. Illinois, supra, 391 U.S. at 512. First, he
urged that no jurors be excused at the guilt phase, irrespective
of their attitudes towards the death penalty, so long as they
could be fair and impartial in determining guilt or innocence.
Juries selected by excluding such jurors, he contended, " . . .
_2/ cont'd.
at which various experts, seventeen social scientific studies
and 270 exhibits were presented, the District Court found that
the "death-qualification" process used in Arkansas created juries
that were conviction-prone and denied the petitioners trial by a
jury representative of a cross-section of the community. G*"^qsby
v. Mabry, 569 F. Supp. 1293 (E.D. Ark. 1983), pending en banc,
No. 83-2113EA (8th Cir.).
3/ In addition, we have provided the Court with a set of summarie
of the most important studies that are included in the record, with
relevant recor'd references, as an Appendix to this brief.
_ p, -
f conviction [and]"must necessarily be biased in favor o
partial to the prosecution on the issue of guilt or innocence."'
Id. at 516-17. Secondly, he argued that jurors should not be
excluded at the penalty phase "simply because they voiced
general objections to the death penalty," id. at 522, unless
those reservations left the jurors unable fairly to consider
the full range of penalties, that is, unless they would auto
matically oppose a death sentence, regardless of the facts and
circumstances of the case before them.
The Supreme Court agreed with the petitioner's second
argument, and forbade exclusion of prospective jurors "on any
broader basis" than an opposition to the penalty so strong that
the jurors would either (i) automatically vote against death in
any case or (ii) be rendered incapable of making "an impartial
decision as to the defendant's guilt given the prospect of a
death sentence." Id. at 522-23, n.21 (emphasis in original).
The Court, however, refused to accept petitioner s
claim that the guilt-phase excusal of jurors who could never
impose death, but who could be fair at the guilt phase, rendered
the resulting jury conviction-prone. Observing that ”[t]he data
adduced by the petitioner . . . are too tentative and fragmentary
to establish that jurors not opposed to the death penalty tend to
favor the prosecution," id. at 517, the Court declined "either
on the basis of the record now before us or as a matter of
judicial notice," id at 518, to accept this claim. However, the
Court explicitly invited further evidence on the issue. Id.
at 520 n.lSI See also Bumper v. North Carolina, 391 U.S. 543,
52.5 ( 1968 ) .
7
(iii) Procedural History Of These Cases
The procedural history of these cases is adequately
set out in the brief for appellants-respondents filed on this
_£/
appeal. (See Atty. Gen. Br. 2-3).
STATEMENT OF FACTS
It is impossible to review adequately the scientific
evidence offered by petitioners within the limits of this brief;
we will confine our discussion to the major points. The studies
and the expert testimony address three separate factual issues:
(i) the differences in the attitudes of death-qualified and
Witherspoon excludable jurors; (ii) the differences m the behavior
of these two groups of jurors; and (iii) the effect on prospective
jurors of the process of death-qualifying voir dire itself.
(i) Death-Qualification And Juror Attitudes
The evidence presented on the relationship between
death penalty attitudes and attitudes on other criminal justice
issues does not permit conflicting interpretations: people
who oppose the death penalty strongly, and those who are excluded
from capital cases under Witherspoon in particular, have attitudes
that are more favorable to the accused on a range of issues
material to the criminal justice process. Half a dozen separate
5/studies support this proposition (see Pet. App., pp. 1-6.) ana
none contradict it; the State's experts apparently conceded.
this point. See, e ^ . , Grig. Tr. 1081-82(Dr. Gerald Shure);
2/ Each reference to the Brief of Appellants,, dated April 10,
T982, will be indicated by the abbreviation "Atty. Gen. Br.,"
followed by the number of the page on which the reference may
be found.
5/ Each reference to Petitioners' Appendix, which follows the
text of this brief, will be indicated by the abbreviation "Pet.
App." followed by the number of the page on which the reference
may be found. _ q _
Grig. Tr. 1221-22 (Dr. Roger Webb). The District Court
found that
"[t]he evidence before the court overwhelmingly
demonstrates that persons who are unwilling to
impose the death penalty share a unique set of
attitudes toward the criminal justice system which
separate them as a group not only from persons who
favor the death penalty, but also from persons who
are generally opposed to the death penalty, but are
willing to consider it in some cases."
6/(J.A. 122-25). This constellation of attitudes shared by
Witherspoon excludables includes, for example, more open
attitudes toward the insanity defense (J.A. 98, 101), greater
willingness to honor constitutional restrictions on the
admissibility of evidence (J.A. 99, 101), less partiality
toward prosecutors (J.A. 103), and greater reluctance to assume
that defendants would not be brought to trial unless they were
guilty (J.A. 99).
After "thoroughly review[ing] the evidence submitted
by petitioners," (J.A. 112), and finding it "credible, consistent,*
and essentially uncontradicted," id., the District Court expressly
held that persons who are unwilling to impose the death penalty
are a "distinctive group" in the community:
"The results of the studies submitted
by petitioners reveal that persons who
are unwilling to impose the death penalty
share a unique set of attitudes toward
the criminal justice system which separates
them as a group not only from persons who
favor the death penalty, but also from per
sons who are generally opposed to the death
penalty, but are willing to consider it in
some cases. These attitudes are consistently
more favorable for the defense than they are
for the prosecution."
(J.A. 125).
5/ Each reference to the Joint Appendix will be indicated
by the abbreviation "J.A." followed by the number of the page
on which the reference may be found.
9
Petitioners' experts also testified about a second
important feature of death penalty attitudes: because a
greater proportion of blacks than of whites, and of women
than of men, are inalterably opposed to the death penalty,
blacks and women are subject to removal through the process
of death-qualification in greater proportions than are whites
and men. The District Court found that
"[exclusion of persons unwilling to impose
the death penalty from the guilt phase of
capital trials further offends the Sixth
Amendment in that it inevitably leads to
the disproportionate exclusion of distinctive
groups such as blacks and women, who tend to
oppose the death penalty to a greater degree
than white men.
(j.A . 126). In so finding, the Court relied upon a long series
of surveys, including a 1971 Harris national survey that showed
that "[f]orty-six percent of black subjects stated that they
could never vote for the death penalty, while only 29% of white
subjects said they could never impose it . . .[and o]nly 24%
of men subjects [but] . . . 37% of women said they could never
vote for it." (J.A. 105). (See also Pet. App., 6a-7a).
The uncontradicted evidence thus confirms that
Witherspoon excludable jurors share unique attitudes toward
the criminal justice system, and that their systematic exclusion
for cause saddles defendants with those prospective jurors most
predisposed to favor the prosecution and to convict. It also
disproportionately excludes blacks and women from capital
j uries.
(ii) Death-Qualification And Juror Behavior
Petitioners offered additional evidence addressed,
not to whether death penalty attitudes are related to other
10
criminal justice attitudes, but to whether death penalty
attitudes systematically affect the behavior of jurors.
"[Piersons who are willing to impose the death penalty not
only share a set of attitudes that are more favorable to the
prosecution, but are also predictably more likely to decide
in a manner that favors the prosecution." (J.A. 133).
The District Court reviewed a series of nine studies,
conducted by independent researchers over a twenty-five-year
period, in which participants ranging in age and status from
college students to actual jurors made guilt or innocence
determinations in a variety of contexts. Some read short
written descriptions of crimes before casting their ballots.
Others heard audio accounts of criminal proceedings; in still
other studies, videotaped reenactments of criminal trials were
employed. One study obtained the jury verdict preferences of
jurors who had participated in actual trials. The Court found
that:
"[sjeveral studies submitted by petitioners
specifically concentrated on the manner in which
pro-prosecution attitudes on the part of death
qualified jurors translate into pro-prosecution
behavior. The results of these studies were con
sistently the same: with due consideration of
the strength of the evidence, persons who are
willing to impose the death penalty will vote
to convict more often than will persons who
are unwilling to impose the death penalty.
(J.A. 133).
The studies, in short, uniformly demonstrate that
persons who are death-qualified by Witherspoon standards are
substantially more likely to vote to acquit than are persons
excluded by those standards. In the most sophisticated and
carefully controlled study, the Ellsworth Conviction Pronenes;
Study 1979, 288 adult, jury-eligible citizens were asked to
11
view a videotaped reenactment of an actual murder trial.
The results showed that "[i]n this close case, 77.9,4 of
the death-qualified jurors [willing to impose the death
penalty] convicted the defendant of some degree of homicide,
while only 53.3% of the currently excludable jurors voted
that way." (J.A. 134; see id. 107). Moreover, the study
found significant differences between death-qualified and
excludable jurors, not only in the overall percentage of guilty
verdicts, but in the degree of guilt imposed (from manslaughter
to first degree murder) among the possible verdict outcomes.
7/
(J.A. 500; see also Pet. App. 5a-6a.
7/ Dr. Ellsworth's follow-up studies included a simulation
of jury deliberations among 228 of the subjects who had witnessed
the videotaped trial. The jurors were grouped into panels of
12 persons; half of these jury panels had only death-qualified
subjects, and half included two, three or four Witherspoon
excludable subjects ("mixed juries"). The subjects were
asked to fill out a questionnaire about the trial. The
questionnaire data revealed that subjects on mixed juries
remembered the facts of the case better than those on death-
qualified juries, and that they viewed all witnesses, prosecu
tion and defense, more critically than did subjects on death-
qualified juries (J.A. 560-63; see Pet. App. 5a-6a.
The District Court found that "[this] process of excluding
jurors with differing backgrounds and viewpoints results in
reduced jury deliberation . . ., a situation explicitly con
demned by the Supreme Court in Ballew v. Georgia, supra, and
by the State in this case." 136) .
12
(j_j_i) The Process of Death-Qualification
Petitioners' experts further testified, based upon the
research of Professor Haney, that the process of death-qualifica
tion — the searching voir dire inquiries from the court and
from counsel on prospective jurors' attitudes toward the
death penalty — itself biases jurors on the question of
guilt or innocence. "The presumption of prejudice [against the
defendant]," the District Court found, "is only escalated by
a series of undesirable side effects which result from death
qualification of jurors selected for the guilt phase of a
■trial. The voir dire itself tends to instill in the jury
a sense that the defendant is guilty, and that the death penalty
is the appropriate penalty for him." (J.A. 136; see J.A. 615-22).
13
ARGUMENT: PART ONE THE COMMON ISSUES
I
THE DISTRICT COURT CORRECTLY HELD THAT THE
STATE'S USE OF DEATH-QUALIFICATION PROCEDURES
TO EXCLUDE IMPARTIAL JURORS AT THE GUILT-OR-
INNOCENCE PHASE OF PETITIONERS' CAPITAL TRIALS
DENIED THEIR SIXTH AND FOURTEENTH AMENDMENT
RIGHTS TO FAIR AND IMPARTIAL JURIES___________
A . The District Court's Findings on Conviction-Proneness
Perhaps the most striking quality of the proceedings
in the District Court is the care with which that Court examined
the factual issues in this case, on the basis of an exhaustive
record. Virtually all relevant social scientific evidence
developed within the past thirty years — from Professor Zeisel's
1954-55 field research involving actual jurors, to Professor
Ellsworth's highly sophisticated series of studies in 1979
was placed before the Court and was subjected to intense pro
fessional scrutiny and review. Equally striking are the results
of the studies: no matter who conducted the research, no matter
what locale or subjects, no matter what the methods used, death-
qualified jurors were shown significantly more prone to convict,
more favorable to the prosecution in their attitudes, and more
prone to believe the prosecutor and his witnesses, than were
Witherspoon-excludable jurors.
In the Hovey Record, Professor Hans Zeisel illustrated
his testimony on the cumulative impact of the conviction-prone-
ness studies with a chart (see copy of Hovey Exh. HZ-5, infra)
summarizing the strong points and the weak points of each of
the six major studies on conviction-proneness (see also, Pet.
App. 8a-13a). He explained:
"The reason I have put these six studies
together is the following, namely, I'm sure
that it couldn't escape anybody who has
SY
NO
PS
IS
U,
»
,
tw
n
Sl
BO
Mf
i
P
u
iM
H
-O
f-
IM
^
^
tl
tA
L^
lt
lJ
0M
S
lU
D
U
i
Defendant’s jExhibit No. HZ’" $
FIGURE He. 3 7
listened to this testimony . . . the almost
monotony of the results. It is obviously
the same whether you take the experiment at
Sperry-Rand in New York or students in Atlanta
or jurors in Chicago or Brooklyn or eligible
jurors here in Stanford; it comes always out
the same way.
"And Your Honor, I should add that it happens
seldom in the social sciences that the problem
is being studied even twice, not to speak of
six times. . . .
"So this is an unusual fact. And since all of
the studies show the same result, no matter with
whom, no matter with what stimulus, no matter
with what closeness of simulation, there is
really one conclusion that we can come to.
The relationship is so robust -- and this is
a term of art among scientists -- that no matter
how strongly or how weakly you try to discover
it in terms of your experimental design, it
will come through."
(Hovey Tr. 84-085). Professor Zeisel' s conclusion is greatly
reinforced by the consistent findings of an extensive series
of surveys that compared the attitudes of death-qualified and
excludable jurors (see Pet. App. la-7a ), and by several
experimental studies that examine the mechanisms that produce
these effects and the impact of the process of the death-qualify
ing voir dire itself (see Pet. App. 12a-15a).
By contrast the record is utterly bare of any studies
that contradict this well established finding. This absence
cannot possibly be attributed to any lack of opportunity on
the State's part to prepare and present evidence. As the pro
cedural history of this case demonstrates, the State had,
literally, years within which to put any relevant matters
before the court. Rather, the state of the record reflects
the fact that in the sixteen years since the Supreme Court
identified the issue in Witherspoon, despite intense academic
and legal interest in the issue, not a single contrary,
15
scientifically credible study has been reported, and the
State offered no suggestion that such a contrary study
might be in progress. From a scientific point of view this
record is clear; the facts on conviction-proneness are known.
Based on this record, the District Court reached the only
conclusion possible:
"[This] evidence demonstrates that what
common sense says is so, is so: jurors
who favor the death penalty are significantly
more likely to convict and jurors who oppose
the death penalty are significantly less likely
to convict.
There is no serious evidence refuting those
propositions.
A fair jury has not been provided when the
prosecutor is able to keep on the jury those
persons most likely to convict and to exclude
from the jury for cause all those persons most
likely to acquit."
(J . A. 89).
3 . The Applicable Standard Of Review Of Those findings
It is no surprise that the State studiously avoids
the factual record and the District Court's findings, since the
evidence so thoroughly refutes its contentions. The State's
understandable desire to ignore those findings, however, runs
squarely afoul of Rule 52(a) of the Federal Rules of Civil
Procedure, which provides that such findings shall not be
set aside unless clearly erroneous,and due regard shall be
given to the opportunity of the trial court to judge the
credibility of witnesses." The Supreme Court of the United
States has recently amplified the principles governing the
appellate review of factual findings, holding that 52(a) applies
to the trial court's treatment of all "ultimate" issues that turn
16
on factual findings, as well as its disposition of "subsidiary"
f acts:
Rule 52(a) broadly requires that findings of
fact not be set aside unless clearly erroneous.
It does not make exceptions or purport to exclude
certain categories of factual findings from the
obligation of a court of appeals to accept a
district court's findings unless clearly
erroneous.
Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982).
This Court has long adhered to the view that "[i]t
is not the function of the appellate court to decide factual
questions de novo; the function of this court under Rule 52(a)
is not to determine whether it would have made the findings
the trial court made, but whether 'on the entire evidence it
is left with the definite and firm conviction that a mistake
has been made.'" United States v. Warwick Mobile Home Estates,
537 F. 2d 1148, 1150 (4th Cir. 1976)(citations omitted).
Specifically, this court has emphasized that "[w]e may not
weigh the evidence, pass on the credibility of witnesses, or
substitute our judgement for that of the finder of facts.
Canron Inc, v. Plasser American Corp., 609 F.2d 1075 (4th
Cir. 1979); accord: Bonds v. Mortensen 8 Lange, 717 F.2d 123
(4th Cir. 1983), Katz v. Dole, 709 F.2d 251 (4th Cir. 1983),
Smith v. University of North Carolina, 632 F.2d 316 (4th Cir.
1980), Friend v. Leidinger, 588 F.2d 61 (4th Cir. 1978), Jones
v. Pitt County Bd. of Ed., 528 F.2d 414 (4th Cir. 1975).
The rule has been applied by this Court with equal
force to district court findings based upon conflicting docu
mentary evidence. Moore v . Midgette, 375 F.2d 608, 612
(4th Cir. 1967); see also Friend v. Leidinger, supra; 0'Neal
17
v. Gresham, 519 F . 2d 803 (2-th Cir. 1975); Hogge v. Johnson,
526 F.2d 833 (2th Cir. 1975); B's Company, Inc, v. B.P.
Barker 8 Associates, 391 F .2d 130 (2th Cir. 1968). Where,
as on these appeals, the District Court "has thoroughly
reviewed the evidence . . . , finds it credible, consistent,
and essentially uncontradicted, . . . and accepts the opinions
offered by experts in jury research that the studies are valid
and reliable," Keeten v. Garrison, supra, 578 F. Supp. at 1177,
its findings should not be lightly disturbed.
C. The Controlling Legal Principles
The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . . trial,
by an impartial jury . . . ." Even before Duncan v. Louisiana,
391 U.S. 125 (1968), incorporated the Sixth Amendment's jury-
trial right into the Fourteenth, it had long been settled that
the Due Process Clause assures every criminal defendant the right
to have his trial before an impartial tribunal. "A fair trial
in a fair tribunal is a basic requirement of due process." In
re Murchison, 329 U.S. 133, 136 (1955). See, e . g. , Tay,lQ£—Xj_
Hayes, 218 U.S. 288, 501 (1972)(citing authorities). Johnson
v. Mississippi, 203 U.S. 212, 216 (1971)(per curiam).
Witherspoon itself was technically not a Sixth
-----3 7
Amendment case, but the ground of its decision demonstrates
8/ Although it was decided two weeks after Duncan v. Louisiana,
■Jgi u.S. 125 (1968), in which the Court held the Sixth Amendment
jury trial right applicable to the states, Witherspoon v. Illinois
did not rely on Duncan, and it ultimately relies on the Four-
teenth Amendment in holding that the execution of Witherspoon s^
death sentence would "deprive him of life without due process of
law." 391 u.S. at 523. The Court subsequently held that Duncan's
incorporation of the Sixth Amendment into the Fourteenth did not
[Cont'd .]18
how fundamental jury impartiality is to the guarantee of due
process in jury trials. The Court there found that the pro
cedure by which Witherspoon's jury had been selected denied
him "that impartiality to which [he] . . • was entitled under
the Sixth and Fourteenth Amendments," 391 U.S. at 518, in the
determination of his sentence. A fortiorari, where a State
entrusts the determination of guilt or innocence to a jury,
"[d]ue process requires that the accused receive a trial by
an impartial jury free from outside influence." Sheppard v .
Maxwell, 384- U.S. 333, 362 (1966). "In essence, the right to
jury trial guarantees to the criminally accused a fair trial
by a panel of impartial, 'indifferent' jurors . . . In the
language of Lord Coke, a juror must be . . . indifferent as
he stands unsworne.'" Irvin v. Dowd, 366 U.S. 717, 722 (1961),
accord, Groppi v. Wisconsin, 400 U.S. 505, 509 (1971).
The Sixth and Fourteenth Amendment right to "an
impartial jury" means something more than that each juror be
individually capable of fairly and impartially assessing the
facts in light of the law on which he is instructed. The jury
as a whole should be composed in such a way that its collective
assessment of the facts will reflect the "conscience of the
community." Witherspoon v. Illinois, supra, 391 U.S. at 519.
This requirement of collective, or "diffused impartiality,"
Taylor v. Louisiana, 419 U.S. 522 (1975); Thiel v. Southern
Pacific Co., 328 U.S. 217, 227 (1945)(Frankfurter, J. dissenting),
8/ Cont'd.
apply retroactively to state-court trials that, like Witherspoon's,
had predated the Duncan decision. DeStefano v. Woods, 392 U.S.
631 (1968)(per curiam).
19
was described in Witherspoon as the requirement of jury
"neutrality;" accord Adams v. Texas, 448 U.S. 38, 44 (1980).
The record in this case demonstrates two ways in
which death-qualification deprives a capital defendant of his
right to a neutral jury. First, it demonstrates that a death-
qualified jury is partial in its predisposition. It is a jury
that is more inclined than others, at the very outset of the
trial, to side with the prosecution. Second, the record proves
that a death-qualified jury is partial in its performance.
Faced with the identical case, a death-qualified jury is more
likely to vote to convict than a jury that is truly represen
tative of the entire community.
The courts have long held that any procedure that
might predispose a criminal tribunal to favor the State violates
due process. In Turney v. Ohio, 273 U.S. 510 (1927), the Court
held that
'[e]very procedure which would offer a
possible temptation to the average man
as a judge to forget the burden of proof
required to convict the defendant, or which
might lead him not to hold the balance nice,
clear and true between the state and the accused
denies the latter due process of law.
Id. at 532. See also, Ward v. Monroeville, 409 U.S. 57 (1972);
normally v. Georgia, 429 U.S. 245, 245 (1977)(per curiam).
Applying this constitutional rule to the record in
the present case involves a task analogous to evaluating the
consequences of pretrial publicity. In both situations, it is
necessary to assess the danger that events preceding the pre
sentation of the evidence might change the jury’s disposition
when it comes to judge that evidence. In Sheppard v. MaxweJUL,
20
384 U.S. 333 (1966), the Supreme Court held that
[t]he trial courts must take strong measures
to ensure that the balance is never weighed
against the accused. And appellate tribunals
have the duty to make an independent evaluation
of the circumstances.
Id. at 362. That basic canon of due process is recognized in a
variety of situations which endanger the impartiality of the
trier of criminal charges. Estes v. Texas, 381 U.S. 532, 543-
4.4. (197 5) ; Mayberry v. Pennsylvania, 400 U.S. 455 (1971),
Estelle v. Williams, 425 U.S. 501, 504 (1976); In re Murchison,
349 U.S. 133, 136 (1955). Death-qualification, however, con
trary to the Court's admonition in Sheppard v. Maxwell,
dramatically skews the predispositional balance of the jury
pool in a way that creates a jury pool that is "weighted./against
the accused."
Witherspoon also identifies the second type of non
neutral jury forbidden by the Sixth and Fourteenth Amendments,
a jury that is in actual practice, uncommonly prone to convict.
391 U.S. at 517. A death-qualified jury, the evidence in this
case demonstrates, is just such a tribunal. This biasing effect
in the performance of death-qualified capital juries is demon
strated on this record not only as an inference from the death-
qualified jury's proven pretrial predisposition, but also as
an observed fact of its trial performance. The factual question
that the Court in Witherspoon found unanswered — whether death-
qualification "substantially increases the risk of conviction,"
391 U.S. at 518 — has now been answered in the affirmative.
Six major studies demonstrating the conviction-prone-
ness of death qualified juries, together with a number of
supporting explanatory studies were before the District Court.
21
They were explicated and dissected on direct and cross examine
tion by prominent expert witnesses for petitioners and by the
State's witnesses. The District Court has found them credible
and persuasive. No contrary studies exist.
"[T]he Due Process Clause . . . speak[s] to the
balance of forces between the accused and his accuser.
Wardius v. Oregon, 4-12 U.S. 470, 474 (197o) . As petitioners
conviction-proneness studies all conclude, death-qualification
destroys that balance. It is therefore unconstitutional.
D. The State's Arguments for Reversal
The State, in discussing the evidence, exhibits a
curious ambivalence toward the scientific research that is
before this Court. On one hand, it argues that sixteen
years and some twenty carefully researched studies after
Witherspoon, "the showings required by Witherspoon have still
not been made and that the research is still fragmentary,
(Atty. Gen. Br., at 12); at the same time, it claims that
"when closely analyzed for impact, it [the research] favors
respondents." (Id.)
In the body of its argument, the State expands its
position into a list of arguments that appear to be contra
dictory as well as untenable: (i) that petitioners have no
standing to raise this issue; (ii) that the research does not
demonstrate that death-qualified jurors are, individually,
legally disqualified to serve because of bias; (iii) that
jurors who would never consider the death penalty, but who
state under oath that they could fairly and impartially deter
mine a capital defendant's guilt or innocence, must not be
trusted to do so; (iv) that the entire body of petitioners'
22
research is scientifically unsound and unreliable, as demonstrated
by studies by Dr. Steven Penrod and Professor Hans Zeisel; and
(v) that, in any event, the demonstrated bias of death-qualified
juries is constitutionally insignificant because it might
change the outcome in [only] from 1-10% of close [capital]
cases." (Atty. Gen. Br., at 13). We will address these argu
ments in turn.
(i) Petitioners' Standing
The State's first argument is that the District Court
must be reversed because petitioners "failed to show that the
jurors excluded [by death-qualification] could have been fair
and impartial on the guilt phase . . . ." (Atty. Gen. Br., at
14.). The State makes this argument despite the fact —
acknowledged in its own brief — that at least some of these
excluded jurors in each case testified under oath that they
could return a verdict on guilt in accordance with the instruc
tions of the court." (Atty. Gen. Br., 4-7). The State, it seems,
considers such a sworn statement by a venireperson insufficient
to overcome a challenge that was never, in fact, actually raised.
One hardly knows where to begin to respond to this
argument. The shortest answer is that the State has placed the
shoe squarely on the wrong foot. The State did not challenge
these jurors at trial on the ground that they could not be fair
on guilt. Therefore it is now precluded from claiming that
it might have been able to challenge the jurors on that ground.
These jurors were excluded, by the State, on another ground,
that they would never consider imposing the death penalty. It
is those actual exclusions that are on review, not some hypo
thetical challenges that were not made. Conceivably, a more
23
detailed inquiry into the jurors' impartiality on guilt would
have revealed that these jurors could not have fairly decided
guilt or innocence (that appears to be the State s position),
more likely, no further questioning was undertaken at the
trials because the jurors' sworn statements of impartiality
were obviously credible to all participants. In any event,
appellate review can only be meaningfully undertaken on the
basis of evidence actually presented and objections actually
made on the trial-court record, not on the basis of post hoc
speculations.
In these particular cases, however, the force of
that basic rule of appellate review is amplified by the sub
stantive law. First, potential jurors are, in general, pre
sumed to be impartial unless the contrary is demonstrated.
"The burden of proving partiality is upon the challenger."
United States v. Jones, 608 F.2d 1004, 1007 (4-th Cir. 1979),
citing Irvin v . Dowd, 366 U.S. 717, 723 (1961); see also Rosales —
Lopez v. United States, 451 U.S. 182, 190 (1981), Grigsby v.
Mabry, 469 F. Supp. 1273, 1283-84 (E.D. Ark. 1983). Witherspoon
adheres to that basic principle in forbidding the State to
exclude venirepersons for cause unless they make it unmistak
ably clear" that they are disqualified. 391 U.S. at 522 n.2l.
The burden, in other words, is on the State to establish that
prospective jurors are not qualified, not on the defendant, to
establish that the jurors are qualified. The State would
turn these rules upside down; it would create a presumption that
venirepersons are biased, and require them to make it unmistakably
24
JL/
clear that they are qualified to serve. That is simply not the
law; "standing" is therefore not a problem on these appeals.
(ii) The Impartiality of Death-Qualified Jurors
The State's second argument is that petitioners have
not shown that death-qualified jurors are biased in a manner
that would disqualify them individually from jury service.
(Atty. Gen. Br., 14— 15). Petitioners, however, are not asking
that death-qualified jurors should be excluded from capital
juries — they are certainly entitled to serve — but rather
that fair and impartial jurors who are now excluded because
of opposition to the death penalty be included in the deter
mination of guilt or innocence. The State's argument reflects
9/ In a related procedural vein, the State claims that peti
tioners' partial reliance on a study demonstrating that the
process of the death -qualifying voir dire biases jurors against
capital defendants (see Haney Study, J.A. 587-522; see Pet. App.
]_2a— 15a) amounts to a separate claim that is unexhausted under
Rose v. Lundy, 4.55 U.S. 509 (1982) with respect to petitioners
Keeten and Avery, although exhausted with respect to petitioner
Williams (Atty. Gen. Br., kk-45). This argument deserves very
little comment. As the District Court ruled, "this study is
but one more piece of evidence offered by petitioners to
support their original claim that the process by which the
juries that tried their cases were selected deprived them of
their right to trial by an impartial facjt — finder. (J.A. 110).
The State attempts to sidestep this obvious fact by arguing that
a different form of relief is required to meet this factual
argument. (Atty. Gen. Br. , at 4-5) . Not so. To reiterate,
petitioners claim that the process of death-qualification
violated their constitutional rights to due process and to
fair and impartial juries. They request, as relief, that
the State be precluded from questioning prospective jurors
about their ability to impose the death penalty until after a
determination of guilt of a capital offense, if any. Such
relief would eliminate or minimize all of the deleterious
effects of the challenged practice.
25
a thorough misunderstanding of the petitioners' claims and
of the opinion below. The State has missed the critical
distinction between impartial jurors and impartial juries.
A juror is fair and impartial if he or she can
fairly try the issue before the court, and reach a decision
based on the evidence and the law. But different fair and
impartial jurors may reach opposing decisions; in fact, that
is a common occurrence. The genius of the system of trial by
jury is that it does not leave the determination of lawsuits
to any one person, whether juror or judge, but relies on the
wisdom of a group chosen from the community, the jury- That
group must consist of fair and impartial individuals, but that
is not enough; it is the essence of the jury that it represent
the community in which the trial takes place. Strauder v .
West Virginia, 100 U.S. 303, 308 (1880); Smith v. Texas_,_
311 U.S. 128, 130 (194-0). Indeed, representativeness is at
the heart of the concept of a fair and impartial jury under
both the Sixth Amendment and the Due Process and Equal Protec
tion principles of the Fourteenth Amendment. See Duren v._
Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S.
522, 530 (1975); Peters v . Kiff, 407 U.S. 493 (1972),
Williams v. Florida, 399 U.S. 78 (1975); Ballard v. Unite_d
States, 329 U.S. 187 (1946).
To choose a common example, it is quite possible
that white and black jurors evaluate certain types of evidence
quite differently; white jurors might be more skeptical, for
instance, of a defendant's claim that a police officer struck
him without justification. This is a legitimate difference
26
both the white and the black venirepersonsin point of view:
may be fair and impartial as jurors, individually. Nonetheless,
the disposition of the jury on this issue could determine the
outcome of the case. To say in such a case that an all-white
jury was prosecution-prone does not imply a criticism of the
point of view of the whites, or embody a judgment that the
defendant's contention is factually correct. The rule is
simply that both of these legitimate points of view must be
icyincluded. That is the relief requested by petitioners, and
that is the issue addressed by the District Court.
icy The State's misunderstanding of the meaning of neutrality
"is exemplified by its discussion of one of petitioners' studies.
In the Ellsworth Post-Deliberation Follow-Up Data, 1979 (the
"Regret Scale" Study)(J .A. 577-80; see also id.,1121-25 for
Dr. Ellsworth's testimony concerning the Regret Study), Dr.
Ellsworth and her colleagues found that death-qualified and
excludable jurors differed in their relative levels of regret
for different types of judicial errors: Witherspoon-excludable
jurors expressed more regret at the prospect of convicting an
innocent person than at the prospect of acquitting a guilty one,
while death-qualified jurors expressed equal levels of regret
for these two types of errors. The State seizes upon the word
"equal" in these findings and argues that their equal levels of
regret demonstrate that death-qualified jurors "are equally fair
to both parties while the excluded jurors would not be." (Atty.
Gen. Br., 33-34).
This is a semantic equation with no content. "Equality is
a virtue only where it is the preferred attitude; there is nothing
praiseworthy, for example, in being equally well disposed toward
good and toward evil. In this case, of course, there is no
clear reason to suppose that one point of view is superior to
the other. The presumption of innocence and the burden of proof
beyond a reasonable doubt strongly suggest that our legal system
embodies the belief that erroneous convictions should be regretted
more than erroneous acquittals, but the belief that these two
tupes of problems are equally serious is also a valid point of
view. It is the State's contention, however, that only the more
punitive view is entitled to expression on capital juries, peti
tioners want both perspectives included.
27
Petitioners have put forward evidence of differences
in predisposition betweeen death-qualified and Witherspoon-
excludable jurors not in order to exclude death-qualified
jurors individually, but because their pronounced predisposi
tion to favor the State is relevant to petitioners' claim
that juries comprised solely of such jurors are not impartial,
in that they are more conviction-prone than fully representa-
11/tive juries.
11/ Although the State has not relied on them, two cases
from the Fifth Circuit — Spinkellink v. Wainwrigh^, 578 F.2d
582 593-94 (5th Cir. 1978) and Smith v. Balkcom, 560 F.2d
573 583-84 (5th Cir. 1981) — set forth a related argument:
that the fact that death-qualified juries are uncommonly con
viction-prone does not mean that they are not impartial, on
the contrary, that non-death-qualified juries are acquittal
prone." With all due respect to the Fifth Circuit, the argu
Sent does not make sense. If ordinary, non-death-qualifled
juries are acquittal-prone and unfair, why are they used m all
criminal triafs except capital cases? The issue here whether
the State can increase a defendant's chances of conviction
tip the balance on guilt or innocence -- by placing him on
trial for a capital crime, rather than a non-capital one. The
Fifth Circuit apparently takes the position that such a balance
can be struck only when the defendant's life is placed in
jeopardy. The Fifth Circuit's position has been rejected
directly by the Eighth Circuit, Grigsby v. Mabry, 637 F.2d
525 527 (8th Cir. 1980), on remand 569 F. Supp. 1273 (E.D.
Ark! 1983), appeal pending, (8th Cir.) and by the California
Supreme Court, Hovey v. Superior Court, 28 Cal.3d 1, 19 n.Ai,
516 P. 2d 1301, 1309 n.41, and it is directly contrary to
Witherspoon.
The Court in Witherspoon condemned the systematic
exclusion of opponents of the death penalty from sentencing^
juries because it "stacked the deck against the petitioner
on the issue of penalty. 391 U.S. at 523. If an inordinate
tendency to prefer a particular outcome were constitutionally
acceptable, the Supreme Court would not have condemned this
practice. Yet, the Court recognized that a jury must express
the "conscience of the community," id. at 519, and that its
performance must be measured against the yardstick of -hat
community. Pre-Witherspoon juries failed that test because
they were "uncommonly willing to condemn a man to die." Id.
at 521.
The Fifth Circuit position amounts to a rule that a lesser
standard applies to determinations of guilt in capital cases
[Cont'd.]28
(iii) The Possibility of Partiality on Guilt
— The "Nullification" Argument
state is explicit in acknowledging the inconsistency
of its arguments:
While respondents' position has been that the
attitudes dealt with in the surveys and relied
on by petitioners are not concrete enough . . .
to gauge actual juror behavior . . . [the State's]
position is also that the attitude of strong
opposition to the death penalty will largely
equate with a refusal to convict if the death
penalty can be imposed . . . .
(Atty. Gen. Br., 19-20). Although it confesses that "[ljittle
research has been done on" possible jury nullification by
Witherspoon excludables, (id., at 20), the State nevertheless
proceeds to claim that the research in the record "tends to
support" this claim. (_Id. )
The research in the record does show, of course, that
some potential jurors agree that they would be unable to act
fairly and impartially at the guilt phase of a capital trial
because of their opposition to the death penalty, while others
who are now excluded for opposition to the death penalty could
be fair and impartial on guilt. The actual figures vary, but
the most recent and best studies indicate that a strong majority
IV Cont'd.
than to determinations of penalty, that a jury that is
"uncommonly willing" to convict on capital charges is constitu
tional, despite the implicit contrary holding in Witherspoon.
There is no justification for this distinction; it is directly
refuted both by Beck v. Alabama, 4-4-7 U.S. 625, 638 (1980)
(need for extraordinary reliability attaches to the determination
of guilt as well as the determination of penalty in capital cases),
and by Witherspoon itself.
29
of Witherspoon-excludable jurors could be fair and impartial
on guilt. See, e . g . , Ellsworth/Fitzgerald, 1979,(J.A. 736)
(9% could not be fair). But petitioners have never claimed that
jurors who cannot be fair and impartial on guilt should be per
mitted to sit on capital juries, and the studies particu
larly the most recent ones — have been careful to identify
and exclude such potential jurors. The effects of death-
qualification on the.behavior of juries has been demonstrated,
repeatedly, after taking into account the inevitable and un
contested exclusion of nullifiers. (See, e . Ellsworth,
Thompson and Cowan, 1979, J.A. 539-40; Ellsworth/Fitzgerald ^
1979, J.A. 733; Haney, 1979, J.A. 591; Kadane, 1981, J.A. 799).
the article to
is clear from
the Joint Appendix
. . . now awaiting
12/ The State quotes Professor Hans Zeisel as expressing concern
Ibout a problem of jury nullification if death-qualification is
discontinued. (Atty. Gen. Br., at 23). Here, ^ in o e
places in its brief, the State has quoted from Professor Zeisel
statements selectively and misleadingly. (See also infra, at
The quoted comments are taken from an article published y
Professor Zeisel in 1968 before the Witherspoon decision (a
fact that is not apparent from the excerpt of
which the State cites, at J.A. 347, but which
the entire article which appears in Vol̂ . 3 of
(see J.A. 404: " . . . Witherspoon v. Illinois
hearing in the United States Supreme Court. )
At the time Professor Zeisel wrote these comments, jurors
could be excluded merely for possessing "conscientious scruples
against the death penalty." Witherspoon, of course, resolved
the problem that Professor Zeisel had identified by clearly
articulating two separate and narrow bases for exclusion of
venirepersons for opposition to the death penalty:
to consider the death penalty in any case, and lack of impartial y
on guilt. 391 U.S. at 522, n.2l. If there were no other evidence
in the record, one might wonder whether this legal change has
affected Professor Zeisel's view of this issue, but speculation
is unnecessary: Professor Zeisel testified under oath, m the
record before this Court, eleven years after Witherspoon, and
his opinion on the current "problem" of nullification --in
light of Witherspoon and in light of the recent post-Witherspoon
research — is unmistakable: "But I want to just reaffirm t e
point that whatever this proportion of people is who might
pervert the issue of guilt, they are neither at issue in this
law court nor at issue in any one of the later studies.
(Hovey Tr. 220 ) . 30
At bottom the State is arguing that jurors who state
that they would not consider voting for the death penalty in any
case cannot be trusted to be fair and impartial in deciding
guilt or innocence in a capital case, even though they state
under oath, after searching cross-examination, that they would
be fair and impartial on that issue. (Atty. Gen. Br., 20-33).
This is an argument that has no boundaries.
It may be true that some jurors who promise impartiality
will not act accordingly, but that fact applies to jurors
throughout the entire spectrum of death penalty attitudes. Would
it not be safer to exclude all opponents of the death penalty
from capital cases on the ground that some of them may deceive
the court, either intentionally or unintentionally, about their
ability to consider voting for death and to be fair and impartial?
And on the other side, why not be safe and exclude all strong
proponents of capital punishment, since some of them may be
unable to try guilt impartially, but will be unwilling to admit
? If we are concerned about candor, those jurors who forth
rightly state that they will be unwilling to consider the death
penalty — the law of the State notwithstanding — are better
candidates for our trust than many of those who merely say
what is expected of them; after all, any juror who wanted to
get on the jury by stealth could easily deny holding any fixed
views on capital punishment.
Witherspoon holds that no juror can be excluded for
opposition to the death penalty unless that juror himself makes
it "unmistakably clear" that he holds a disqualifying attitude,
observing that "[i]t is entirely possible, of course, that even
31
a juror who believes that capital punishment should never be
inflicted and who is irrevocably committed to its abolition
could nonetheless subordinate his personal views to what he
perceived to be his duty to abide by his oath as a juror and
13/
obey the law of the State," id. at 514-15, n.7. Subsequently,
in Adams v. Texas, 448 U.S. 38 (1980), the Court made the
proper standard for exclusion even plainer; fair and impartial
jurors are entitled in a capital case to take the prospect of
a death sentence into account, and to be influenced by it, so
long as they state that they can obey their oaths.
[T]he Constitution [does not] permit the
exclusion of jurors from the penalty phase
of a Texas murder trial if they aver that
they will honestly find the facts and answer
the questions in the affirmative if they are
convinced beyond a reasonable doubt, but not
otherwise, yet who frankly concede that the
prospects of the death penalty may affect
what their honest judgment of the facts will
be or what they may deem a reasonable doubt.
Such assessments and judgments by jurors are
inherent in the jury system, and to exclude
all jurors who would be in the slightest way
affected by the prospect of the death penalty
or by their views about such a penalty would
be to deprive the defendant of the impartial
jury to which he or she is entitled under
the law.
Id. at 50. In inviting this Court to rule as a matter of law
that a whole class of prospective jurors cannot be trusted,
despite their oaths to the contrary, the State is asking
the Court to ignore the Supreme Court's articulated standard,
13/ This standard is consistent with the general rule that
prospective jurors are presumed to be impartial unless the con
trary is clearly demonstrated. See United States v. Jones, 508
F. 2d 1004, 1007 (4th Cir. 1979); Irvin v. Dowd, 366 U.S. 717,
723 (1961).
32
in order to preserve a practice that is demonstrably unfair
to capital defendants.
14./ The State cites three cases in support of this argument.
One -- Soinkellink v. Wainwright, supra -- is premised on the
supposition that the uncommonly greater likelihood of death-
qualified juries to convict has no constitutional significance.
As we have argued above, this holding is contrary to logic and
to a clear line of Supreme Court cases, and should be rejected
by this Court as it has been rejected elsewhere. The second
case cited, People v. Ray, 252 Cal. App.2d 932 (1967), is in
apposite for the simple reason that it pre-dates Witherspoon
and reflects the state of California law when there were
virtually no constitutional restrictions on a state's power
to exclude death penalty opponents from capital juries. (The
current state of California law on this issue i s d fscribed
by Hovey v. Superior Court, 28 Cal.3d 1, 616 P.2d 1301 (198),
a case which includes a detailed discussion of death-qualifica
tion, but which the State all but ignores. The third_citation
— to McGautha v. California, 402 U.S. 183 (1971) is partic
ularly puzzling. The "unitary trial" question in McGautha
was not who would determine guilt and penalty in capital cases,
but whether a separate penalty hearing was constitutionally
required. McC-autha held that a separate hearing was not re
quired, but its holding was severely undermined if not
effectively reversed — by Furman v. Georgia, 408 U.S. 238
(1972), and by the long series of Supreme Court cases apply
ing Furman. The State, oddly enough, seems to inte^Pr®^j ̂ he
1976 Supreme Court death penalty cases — Gregg v.— Georgia, ^
428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976);
and Jurek v. Texas, 428 U.S. 262 (1976) — as upholding a
unitary procedure for determining guilt and penalty. (
j.A . 78). In fact, bifurcated capital trials (in the McGautha
sense) have been universal since Furman, and a unitary deter
mination of guilt and penalty would probably be held to be
inconsistent with the Eighth Amendment requirements for the
penalty determination under Lockett v. Ohio, 438 U.S. 586
(1978), if the issue were ever presented to any court.
33
The Value of the Social Scientific Evidenceiv.
a. Attitudes and Behavior, And The Work.
Of Dr. Steven Penrod ______________
The State makes much of a claim that "Petitioners
rely on the view that attitudes affect or cause behavior to
a substantial extent." (Atty. Gen. Br., at 46). Not so.
Attitudes may indeed "cause" behavior to a greater or lesser
extent, but that possibly has little bearing on the legal
claims in this case. Petitioners have demonstrated, exhaustively,
that the attitudes for which Witherspoon-excludable jurors are
excused from service are correlated with (i) other attitudes
that bear intimately on the functions of jurors in criminal
cases, and (ii) the actual voting behavior of criminal trial
jurors. It is irrelevant whether their death penalty attitudes
"cause" these differences between death-qualified and excludable
jurors, or. whether the other differences "cause" the death
penalty attitudes, or whether both are aspects of consistent
overall outlooks. Whatever the causal link, if any, the con
sequences of the exclusionary practice are the same: removal
of Witherspoon excludables disadvantages the defense, and it
aids the prosecution in obtaining convictions. Contrary to the
State's repeated statements (see,e.g., Atty. Gen. Br., 9,11,
14.-19,28), these biasing effects need not be inferred from any
evidence or any assumptions about the relationship between
attitudes and behavior in general; they have been demonstrated
directly by the studies in the record -- six studies documenting
the fact that death-qualified juries are more prone to convict
than ordinary juries and half-a-dozen surveys describing the
differences in outlook between the two groups of jurors.
34
The State relies heavily on a study by Dr. Steven
Penrod (J.A. 324-330; see Atty. Gen. Br., 16-19) which it
describes, variously, as "ambitious research" (Atty. Gen. Br.,
at 19), "extremely important" (id. at 48), and "the only proof
beyond opinion currently available." (Id. at 16). Indeed, the
State goes so far as to claim that Dr. Penrod's study "knocks
the props out from under the petitioners' position. ' (Id.,
16-17). Given this billing, the Penrod study certainly deserves
some comment.
Dr. Penrod recruited volunteers from a Boston jury
pool and had them deliberate on four simulated cases. He then
examined their verdicts and attempted to correlate them with
several attitudes that he measured by administering a questionnaire
to the jurors. He found, with a few exceptions, that the attitudes
that he examined were poor predictors of the jurors' votes. This
is an interesting study, but what bearing does it have on the
issues in the present case? Even at first glance the answer
seems clear: little or none. As the State itself acknowledges
(id. at 18, n .8), Dr. Penrod did not examine the death penalty
attitudes of his subjects. The study provides no direct evidence
on any material issue before this Court.
If that was all there was to be said about Dr. Penrod's
work, it would merely seem that the State had oversold an un
commonly weak argument. The fact that other attitudes are not
correlated with juror behavior would not "knock the props out
from under" the claim that death penalty attitudes are so
correlated, but it might be indirectly and weakly relevant.
But that's not all there is to be said.
35
The State argues that its position is bolstered,
somehow, by the fact that Dr. Penrod's work is unpublished.
(Atty. Gen. Br., at 48). The logic of this argument escapes
us but — more important — its factual premise is false.
’ 15/
Dr. Penrod's study has been published, and is described in
Chapter 7 of Inside the Jury, which was co-authored by Penrod
and Hastie. And in that chapter, after mentioning the fact
that most other attitudes do not predict juror behavior well,
Penrod and Hastie discuss the predictive power of death penalty
attitudes directly. Their conclusions are the opposite of those
the State ascribes to Dr. Penrod:
Public opinion polls find that jurors who are
strongly opposed to the death penalty tend to be
less conviction-prone than jurors who are not
strongly opposed (Bronson, 1970, 1980; Harris,
1971; Ellsworth 8 Fitzgerald, 1983). Data from
post-trial iinterviews with actual jurors and
simulated juror decision-making studies are also
consistent with the conclusion that those strongly
opposed to the death penalty are likelier to vote
for acquittal (Zeisel, 1968; Goldberg, 1970;
Jurow, 1971; Ellsworth, Thompson 8 Cowan, 1983).
Inside the Jury, supra, at 1.127.
b. Simulated Jury Research And The Work Of
Professor Hans Z e i s e l ______________
The State also argues strenuously that the District
Court's findings on conviction-proneness are faulty because they
are based entirely on research using simulated, as opposed to
actual, juries (Atty. Gen. Br., 24-26). This argument rests
15/ Indeed, it was published in a book cited by the State itself
in its description of Dr. Penrod's qualifications: Inside the
Jury (Harvard University Press: Cambridge, Mass., 1983) , which
was co—authored by Drs. Reid Hastie and Nancy Pennington. 5ee
Atty. Gen. Br., at 16 n.7. Dr. Hastie, of course, was one of
the major witnesses for the petitioners. (See J.A. 1214-1442
for Dr. Hastie's testimony in the Grigsby case.)
36
heavily on the State's interpretations of a study by Professor
Hans Zeisel; indeed the State's brief includes an argument
heading that reads in part:
PETITIONERS’ CONVICTION-PRONE JURY ARGUMENT
IGNORES THE MAJOR WORK ON THE CORRELATION
BETWEEN MOCK JURY AND REAL JURY VERDICTS
WHICH WAS DONE BY PETITIONER AVERY'S WITNESS,
HANS ZEISEL . . .
(Atty. Gen. Br., at 24). The argument is false on two counts:
Professor Zeisel does not support their position, and the
District Court's findings do not rest solely on jury simulation
research.
The study that the State relies on was conducted by
Dr. Shari Diamond and Professor Zeisel, and was first reported
in 1974. (J.A . 348-350). In that paper -- an initial descrip
tion of a research project, given at a scholarly conference
the authors report that their findings suggest caution in
generalizing from research with simulated juries to the behavior
of actual juries. The State seizes upon this statement, (Atty.
Gen. Br., at 25), but neglects to mention that Dr. Zeisel strongly
qualified these tentative findings. (”[W]e do not know the extent
to which studies of jury behavior are distorted") (J.A. 350).
The State apparently wishes to claim, on the authority
of this cautionary note, that Professor Zeisel — a man, in
the State's words "whose research is frequently quoted by the
Supreme Court” (Atty. Gen. Br., at 25) — agrees with its claim
that the research on the conviction-proneness of death-qualified
juries is unreliable. Few statements could be farther from the
truth.
37
First, the final report on the very study cited by the
State contradicts the State's assertion that as a consequence of
their failure to reproduce the "felt responsibility" of actual
jury service, jury simulation studies "simply have no weight."
(Atty. Gen. Br., at 26.) ~ In that final report, a much more
detailed and careful report than the two-page summary cited by
the State, the researchers report that careful analysis permits
them to conclude that the simulated jurors that they examined
"were not . . . tainted" by their "aware[ness] that their verdict
would not determine the outcome of the trial." Zeisel & Diamond,
supra, 30 STAN. L. REV. at 513.
Second, and more important, Professor Zeisel was not
only a witness at petitioner Avery's trial-court hearing on death
qualification; he also testified at length and in great detail
in the Hovey case, one of the primary sources of evidence before
the District Court. (Hovey Tr. 44-230). This testimony reveals
that Professor Zeisel's views on the conviction-prone-
ness of death-qualified juries are exceptionally clear, and
they are contrary to those implied by the State.
16/ As with Dr. Penrod's work (see supra p.36), the State argues
that its position is enhanced somehow by the fact that the Zeisel
and Diamond study does not appear in "a regular publication"
(Atty. Gen. Br., at 48). Yet, as with Dr. Penrod's work, the
premise of this curious argument is false. The study in question
is published. See Zeisel & Diamond, "The Effect of Peremptory
Challenges on Jury and Verdict: An Experiment in a Federal
District Court," 30 STAN. L. REV. 491 (1978).
38
But I just want to say, given the difficulties
Q-f corning to conclusions about human nature, X
would say that there are few things about which
I am so certain than this relationship between
death-qualification and the tendency to vote
guilty. And it is supported by the attitude
studies. I don't see how one can sensibly
come to doubt it. You see, these cross-examina
tions, if you will forgive me, have gone on now
for 15 years, and nobody has ever produced a study
which shows that this is not true.
(Hovey Tr., 163-64.)
The State, in its summary of the evidence on conviction-
proneness, claims that petitioners' evidence on this point consisted
primarily of "five [conviction-proneness] studies using persons
divided by death penalty views to decide mock cases." (Atty. Gen.
Br., at 9.)(emphasis added). The five conviction-proneness
studies are identified as: Wilson, 1964; Goldberg,— 1970,
Jurow, 1970.; Harris, 1971 and Ellsworth, Thompson 6 Cowan, 1979.
(Id., at 9; see Pet. App. 9a-13a.) This list is incomplete and
misleading, for it contains a glaring omission: Zeisel, 1968
(j. A. 402-53; see Pet. App. 8a). This omitted study is by
Professor Zeisel himself, on the precise issue before this
Court, and based on research on actual jury verdicts in actual
felony trials in Brooklyn, New York, and in Chicago, Illinois,
rather than on jury simulations.
Professor Zeisel's conviction-proneness study --
orus of the more prominent works in the area -- adds a great
deal to the force of petitioners' evidence, because it provides
real-world confirmation of the findings of the other conviction-
proneness studies. It was discussed extensively by the witnesses
whose testimony is before the Court and it is cited by every
39
17/
conviction-proneness study that followed it.
v. The Constitutional Significance of the
Biasing Effects Of Death—Qualification
The State argues, finally, that the demonstrated
bias in jury attitudes and behavior achieved by death-qualifica
tion is not so large as to offend the Constitution. (Atty. Gen.
Br. , 26-34-.) As the District Court found, this arguments fails
for two reasons: it is unsupported by any facts in the record,
and it is unjustifiable as a statement of law (J.A. 117-19).
a. The Significance of the Appelbaum Affidavits
The State’s argument is based primarily on a series
of five affidavits, commissioned by the North Carolina Attorney18/
General's Office and prepared by Dr. Mark I. Appelbaum.
17/ Given its importance and visibility, it is notable that
the State omits the Zeisel, 1968 study from its list of the
conviction-proneness studies in the record, and never discusses
its findings elsewhere in its brief. The State simply cannot
■justify its effort to borrow Professor Zeisel's eminence, and
to argue that he supports the State's view that the conviction-
proneness studies are valueless because they rest on jury simu
lations, when not only are his actual views the exact opposite
— as the record unmistakably reveals — but when they are based
in part on his own study of actual juries, the very study the
State so pointedly ignores. (The State does quote, misleadingly,
from Professor Zeisel's speculations in his study on the subject
of jury nullification (Atty. Gen. Br., at 23) but it never
discusses his methods, his data or his conclusions, or even
acknowledges explicitly that these data exist.)
18/ The State also claims that the reported attitudinal
differences between death-qualified and excludable jurors are too
small to matter. This claim is based on two sets of calculations,
both by attorneys for the State: first the State claims that the
average difference in pro-prosecution attitudes between these
groups in the Ellsworth/Fitzqerald 1979 survey is 11%. (Atty.
Gen. Br., at 29.) (This figure is similar to the difference
found by Dr. Ellsworth when she constructed an overall index
of conviction-proneness for that study and found a disparity
that was the equivalent of about 12% (J.A. 1148-1149), although
Dr. Ellsworth's index is more informative since it takes the
intensity of the respondents' feelings into account.) But is
11% a large difference or a small difference? The State says
[Cont'd .]40
Dr. Appelbaum, it appears, is competent to do the mathematical
tasks set for him by the State: a variety of statistical cal
culations based on specific inquiries from the State's attorney.
Essentially, Dr. Appelbaum has recalculated some of the statistical
findings of the experts whose testimony is offered by petitioners,
on the basis of assumptions given to him by the North Carolina
Attorney General. These calculations appear to be mathematically
correct, as far as can be determined, but their implications are
far from clear. For example, in the Affidavit of August 17, 1982
(j.A . 360-362), Dr. Appelbaum examines the finding of Dr. Hans
Zeisel and Dr. Reid Hastie that, given certain assumptions,
death-qualification will increase the proportion of convictions
by ten percent. Dr. Appelbaum recalculates this finding on the
basis of different assumptions supplied by the Attorney General.
These recalculations merely demonstrate the obvious, that, by
changing the underlying assumption, differences in the propor
tion of convictions can be altered. In this case, the propor
tion of convictions was reduced, variously, to from 5.9 percent to
1.7 percent. What does this signify? Neither Dr. Hastie
nor Professor Zeisel claimed that their exact figures are
crucial; they were offered to illustrate an important general
18/ cont'd.
it is small, but why? The margin in popular votes in presidential
elections rarely exceeds 11%. Are those insignificant differences
The State apparently hopes to persuade the Court on this point by
the force of its adjectives.
Whatever else can be said about the State's calculation of the
average difference in pro-prosecution attitudes in the ̂ Ellsworth
survey, at least it employed all the attitudinal questions on that
survey. Their parallel calculations for the Harris 1971 survey
is incomplete and -- as presented — uninterpretable. The State
[Cont'd .]
principle. Dr. Appelbaum's figures confirm that principle
whichever way the assumptions are set, death-qualified juries
convict more often.
More importantly, however, the record contains no
justification for the assumptions used by Dr. Appelbaum. In
his calculations, he simply followed the Attorney General's
instructions, and he expressed no opinion on the validity of
these assumptions. This is not surprising. Unlike the expert
witnesses offered, by the petitioners, all of whom were highly
qualified researchers in the criminal justice field, Dr.
Appelbaum, while undoubtedly competent in his own field,
appears to have no familiarity with this area of research,
or much less with the specific studies at issue here. Indeed
his affidavits repeatedly refer to his complete reliance on
the Attorney General's familiarity with the scientific litera
ture in the area: "all the statistically significant differences
of this sort in studies known to you" (Appelbaum Affidavit,
JiAi 36); "which you advise are the reported scores of the only
random test of the phenomena of 'conviction-proneness'" (id.,
emphasis added); "which you have advised comes from a 1981
nationwide Harris Poll (id., emphasis added); etc. The expert
Ify Cont'd.
has chosen to average the responses by several categories that
it constructed itself, and it has come up with claimed differences
ranging from 3% to 11-1/2%. (Atty Gen. Br., 29-31). But Harris
1971 (which the State — undoubtedly inadvertently neglected
to reproduce in its entirety in the Joint Appendix, as petitioners
had requested) includes, literally, dozens of potentially relevant
attitudinal questions. Apparently the State has neglected to
consider many relevant and important questions (e. g . , 89/c ot
death-qualified respondents would trust a police witness some
[Cont'd .]
A2
conclusions, if any can be derived from the®® affidavits,
appear to be those of the Attorney General.
As the District Court found, "Dr. Appelbaum is qualified
to do the task that he was asked to do; that is to assume facts
contrary to the facts found by Dr. Hastie and Dr. Zeisel, and
to record his calculations based on these different assumptions.
(j . A . 117). But competence at calculations does not produce
10/ Cont'd.
or "a lot" vs. 77% of Witherspoon-excludable respondents. As
a result, the State's figures on this point simply cannot be said
to embody any meaningful "average difference" in attitudes, as
measured by this highly complex survey.
ig/ For example, in his Affidavit of November 12, 1982 to which
Is attached a letter dated October 28, 1982 (J.A. 287-91), Dr.
Appelbaum uses two different methods to recalculate the level of
statistical significance reported for the findings of the Zeisel
1968 study. One method yields statistically significant findings,
the other does not. Neither of these sets of calculations, however,
is justified by any familiarity with the nature of the research or
the appropriateness of the underlying assumptions; they amount to
no more than hypothetical statements without factual underpinnings.
By contrast, Dr. Hastie, a recognized authority both on social
scientific methodology and on jury research, presented testimony
at the Grigsby hearing on several different methods for^calculating
the statistical significance of Zeisel's findings -- all of which
yield significant results -- and described the theoretical and
empirical bases for each set of calculations in careful detail.
(J.A. 1323-53; see also id. at 1353 for the District Court's
comments on the importance of informed expert testimony on statis
tical questions involving this type of research.)
23
20/
expert evidence, ~ as the District Court found in the very
next paragraph:
It must be remembered that the petitioners'
evidence is the only source of information
before the court on the central factual issue
presented in these cases . . . .
(J.A. 118).
20/ The State describes Dr. Appelbaum as a person "whose competence
and the correctness of whose work were conceded below by petitioners
with the seemingly unimportant caveat that Dr. Appelbaum does no
do jury research and that his data came from the Attorney General
Office." (Atty. Gen. Br., at 32). This is not quite accurate.
Petitioners agree that Appelbaum appears to be competent to do the
mathematical calculations he has done, and that these calculations
appear to be correct, as far as can be ascertained without live
testimony on direct and cross examination. The "seemingly un
important" qualifications attached to that statement are (1) that
Dr. Appelbaum has, and claims, no expertise in the substantive
areas of research at issue here; (2) that Dr. Appelbaum used
no data — not even those from studies in this record— but only
assumptions, and these assumptions were all supplied by the
North Carolina Attorney General.
Since these computations are based completely on assumptions
supplied by lawyers, it is not surprising that they contain errors
We have spotted two errors that deserve brief mention. First,
the Attorney General complains about the petitioners' experts
use of studies that did not employ random samples. (See, e:_g. ,
Atty. Gen. Br., 31-32). But randomness is not magic: "If a
researcher wants to determine whether grapefruits are larger
. . . than lemons, he need only to gather a reasonable number of
each fruit, measure them, and compare the results . • .From
this comparison, he can confidently say that grapefruits in
general are larger . . . than lemons. However, he cannot say
that grapefruits are more numerous than lemons. Only if he
wanted to test this latter hypothesis would he have to design
a technique to obtain each fruit in proportion to its popula
tion in the real world." Hovey v. Superior Court, 28 Cal.3d
1, 63 n.109, 616 P.2d 1301, 13k3 n.109. Petitioner* 1s experts
never violated this rule; the only estimates of the sizes of
groups that they made were based on surveys with random (and
hence representative) samples. Second, the State argues that
the estimates by Professor Zeisel and Dr. Hastie "are not
adjusted to reflect the exclusion of nullifiers . . . which
would reduce the impact even more." (Atty. Gen. Br., at 33).
This is false. These calculations were based on the Ellsworth,
Cowan & Thompson, 1979 conviction-proneness study (Pet. App.
lla-12a) and the Ellsworth/Fitzgerald, 1979 attitudinal survey
(Pet. App. 5a-6a), both of which carefully excluded nullifiers
from the subject pools under study.
b. The Legal Question At Issue
Even if Dr. Appelbaum's calculations were reliable,
their implications would be unclear, to say the least. Does the
State claim that some particular level of excess capital con
victions is constitutionally tolerable? As the District Court
recognized, if death-qualification results in capital convictions
that would not otherwise occur, it is unconstitutional whether
"only one person out of ten in close cases might lose his life
because of it," (J.A. 117), or whether the practice, as "even the
state's witnesses concede will unnecessarily threaten the life of
an accused in 1% of the trials." (J.A. 118). Recall that these
unwarranted convictions will almost certainly occur in close
cases, the very cases in which the constitutional guarantees of
a fair trial and a neutral jury are most important. Ballew v.
Georgia, 435 U.S. 223, 237-38 (1978).
The State also argues that petitioners' claim must lose
because "WE's [Witherspoon-excludables'] inclusion in jury panels
... might change the outcome in from 1 - 10% of close cases (again
with the lower figure being the more realistic)." (Atty. Gen. Br.
at 13). Ignoring for the moment the fact that there is no basis
in the evidence for this assertion (let alone anything approaching
a basis for reversing the District Court's findings of fact), it
is striking that the most the State can claim about death-qualifica
tion is that it will only produce relatively few wrongful execu
tions .
The Supreme Court has already rejected a comparable
argument in a far less important context — constitutional limits
45
on reductions in the size of juries in misdemeanor cases —
it did so in part for a reason that is directly applicable here,
the effects of the practice are most unfortunate precisely because
they occur primarily in close cases:
"Disparities, therefore, appear in only small
percentages. Nationwide, however, these small
percentages will represent a large number of
cases. And it is with respect to those cases
that the jury trial right has its greatest
value. When the case is close, the guilt or
innocence of the defendant is not readily
apparent, a properly functioning jury system
will insure evaluation by the sense of the
community and will also tend to insure
accurate fact finding."
Ballew v. Georgia, 435 U.S. 223, 237-238 (1978) (footnote omitted).
Conclusion
In 1968 the Supreme Court held in Witherspoon that a
death judgment is unconstitutional if it is imposed by a jury
that is more prone to return that judgment than one that represents
the entire community. 391 U.S. at 521-522. The Court has re
affirmed that holding several times since. See, e.g., Davis v.
Georgia, 429 U.S. 122 (1976); Adams v. Texas, 448 U.S. 38 (1980).
In 1968 the Supreme Court also found that it could not determine
on the record before it whether death—gualified juries are unduly
prone to convict. 391 U.S. at 520 n. 18. Sixteen years later,
that factual issue has been resolved.
The legal principle at issue is simple: the state cannot
impose an unusual jury procedure on a criminal defendant if that
procedure increases the risk of an adverse judgment. This is not
a novel rule. It has been applied to this issue by the Eighth
46
Circuit, Grisby v. Mabry, 637 F.2d 525, 527 (8th Cir. 1980),
see also United States v. Harper, ____ F. 2d ____, ---- (9th Cir.,
April 3, 1984.) (opn. of Fletcher, J.), and it has been applied
by the Supreme Court in related contexts. See, e.g., Williams
y, Florida, 399 U.S. 78, 101-102 (1970) (six-person juries held
constitutional in part for lack of evidence that they are less
advantageous to defendants than twelve-person juries); Ballew
Georgia, 435 U.S. 223, 236 (1978) (five-person juries unconstitu
tional in part because reduction in jury size below six creates
"an imbalance to the detriment of one side, the defense."). The
only serious question is the factual premise.
On the record before this Court, the factual question
cna only be answered one way: Death-qualification, as it is now
practiced, systematically denudes capital juries of a substantial
class of fair and impartial venirepersons who would be less likely
to vote to convict than those who remain to serve. This has been
the finding of the only two courts that have previously considered
a full record of the presently available scientific evidence on
this issue — see Hovey v. Superior Court, 28 Cal.2d 1, 616 P.2d
1301 (1980); Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983)
on/ In Hovey the California Supreme Court, while accepting all
"conclusions of the studies offered by the capital defendant,
declined to grant relief because of the absence of any credible
evidence in the record on the effects of the exclusion, under
California law, of venirepersons who would always vote to impose
the death penalty in every case (the so-called "automatic death
penalty" or ADP jurors). 28 Cal.3d at 63-64, 616 P.2d at 1343-
1346. Since Hovey various studies on the ADP issue have been
completed, and they are in the record here; they all support
the Petitioners' contentions. See Kadane 1981, (J.A. 795-853);
Harris, 1981, (described in Pet. App. 15a - 16a); Arkansas
Archival Study, 1981, described in Pet. App. 16a). In any event
that issue is not presented in the present appeal.
47
_ and it is a conclusion that is amply supported by the common
knowledge and experience of defense attorneys, prosecutors, and
judges. See Grigsby v. Mabry, supra, 569 F. Supp. at 1322.
The District Court, in view of this record, made the only possible
factual findings, and the only possible legal judgment; those find
22 /
ings and that judgment must be affirmed.
22/ Note should be made of the somewhat confused state of the law
3n this issue in the Fourth Circuit. In Barfield v. Harris, 520
F. Supp. 251, 262 (E.D. N.C. 1982), the District Court denied an
argument against death-qualification on the basis of a thin
factual record. On appeal this Court reviewed that issue — and
ggye^al others — with a general statement that we affirm for
the reasons stated by the district judge." Barfield v. Harris,
719 F.2d 58, 63 (2th Cir. 1983). Later, in Hutchins v. Woodard,
No. 82-8050 (2th Cir., March 9, 1982) a panel of this Court
declined to issue a certificate of probable cause in a case
raising constitutional arguments against death-qualification.^
Nowhere in this entire sequence of events, however, has an opinion
on the merits of the claim been written by this Court.
First, there is a curious circularity in the two Barfield
opinions. The District Court denied the claim in part because
"no federal court" had accepted it. 520 F. Supp. at 262. That
is no longer true; it has been accepted both in Grigsby, supra,
and in the present case. In addition, when asked to withhold
decision pending the outcome of the extensive evidentiary pre
sentation in the present case (Keeten) the District Court denied
the request "principally for the reason that this case a..d those
in the Western District [Keeten et al.] will all undoubtedly reach
the Fourth Circuit, which has not spoken on the issue and which
will have full benefit of the record rendered in the Western
District cases." Id. at 262 n.6. In fact this Court did not have
the benefit of the Keeten opinion, let alone the Keeten record,
when it decided Barfield. As a consequence it affirmed the case
"for the reasons stated by the trial judge" despite the ract that
the trial judge obviously desired guidance from the Circuit.
Important constitutional issues cannot be resolved by that sort
of default.
Second, the three separate opinions written by the Court in
Hutchins make it explicit that the issues here remain unresolved.
Judge Murnaghan, speaking for himself alone, did express doubts
about the merits; he suggested that the differences in the con-
viction-proneness that have been proven here might simply be
caused by the fact that a Witherspoon-excludable juror might
"vote for acquittal despite overwhelming proof of guilt" in order
to preclude a possible death sentence. Hutchins, supra, Slip. Op.
at 17. This is a reasonable misunderstanding that can be easily
28
22/ (Continued)
corrected by reference to the record: (1) The difference in
conviction-proneness between these two types of jurors is present
in non-capital cases as well as capital cases (see, e. g., Zeisel,
19687“J.A. 402; Harris, 1971, described in Pet. App. 10a - 11a).
This difference seems to be due in part to the fact that these
two types of jurors differ in two ways that affect all cases,
their evaluation of the relative credibility of defense and
prosecution witnesses, and their interpretation of the meaning of
reasonable doubt (see Ellsworth Witness Credibility Study, 1979,
J.A. 567-74; Ellsworth Post-Deliberation Follow-Up Data, 1979,
j.A . 577-80). (2) The newest and best studies in the record
carefully exclude from consideration all potential jurors who
might nullify on guilt because of their opposition to the death
penalty. See, e.g., Ellsworth, Thompson & Cowan, 1979, (J.A.
537_52). Moreover, Judge Murnaghan also emphasized that he did
not intend to prejudge the present case (Hutchins, supra, Slip
Op. at 13), and that his opinion was independently based on two
separate additional grounds: (i) that a favorable ruling on the
death—qualification issue would not help Hutchins, since it
would only bear on the question of guilt, and since "it certainly
amounts to the law of the case that the issue of [Hutchins ]
guilt or innocence is no longer open for consideration (id̂ . at
15-16 n.10); and (ii) that Hutchins' successive habeas corpus
petitions amounted to an abuse of the writ. Id. at 11. Judge
Phillips concurred on the grounds that Hutchins had abused the
writ and in any event could not benefit from a favorable decision
or the present issue could help him "given the undisputed and
apparently indisputable evidence" on his guilt. Id. at 25.
Judge Sprouse concurred resting solely on the abuse of the writ.
Id. at 26. In short, one judge in Hutchins, speaking for him
self alone, expressed doubts on the merits of this issue; these
doubts appear (not surprisingly) to be based on a misunderstanding
of the Keeten record, and are relevant to only one of three
independent and adequate bases for his decision in Hutchins. All
three judges in Hutchins, however, agreed that thie issues pre
sented here are now ripe for review on this complete factual
record, free of controlling precedent.
49
II
THE DISTRICT COURT CORRECTLY HELD THAT
DEATH-QUALIFICATION PROCEDURES DENIED
PETITIONERS' SIXTH AND FOURTEENTH AMEND
MENT RIGHTS TO A JURY SELECTED FROM A
REPRESENTATIVE CROSS-SECTION OF THE
COMMUNITY____________________ _________
The District Court also held that the process of death-
qualification violated petitioners' Sixth Amendment right to a
jury comprised of a representative cross-section of the community
(J.A. 123-29), See, e.g., Taylor v. Louisiana, 419 U.S. 522 (1979);
Duren v. Missouri, 439 U.S. 357 (1979) , based on two findings.
First, that Witherspoon excludables, those fair and impartial
jurors excluded from guilt trials * because of their death penalty
attitudes, "share a unique set of attitude toward the criminal
justice system," (J.A. 124-25); and second, that those attitudes
are not represented by other, remaining jurors, including persons
who are generally opposed to the death penalty, but are willing
to consider it in some cases." (J.A. 125).
These conclusions are based in part upon overwhelming
scientific evidence: half a dozen attitudinal surveys that
conclusively demonstrate the uniqueness of the excluded group.
(See J.A. 125; Pet. App. la-6a). But the findings also rest
on the very legal definition of the group; noting that the ex
cluded venire persons "were originally characterized as a legally
significant group by the Supreme Court in Witherspoon v. Illinois,
(J.A. 124), the District Court goes on to observe that "[i]t is
hardly surprising to find that persons unwilling to impose the
death penalty share a distinct set of values and attitudes,"
since "it is for this very reason that the state has excluded
them from capital trials." (J.A. 126). And "'certainly, [n]o
50
one else will represent their strong viewpoint on the jury
in their absence. Grigsby v. Mabry, supra, [569 F. Supp.] at
1382, State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980)(Exum,
J., dissenting)."
Since there is no question that fair and impartial
jurors who would never consider a death sentence are systematic
ally excluded from the eligible pool, the District Court found
that petitioners had met their burden of proving a prima facie
violation of the Sixth Amendment cross-section requirement (J.A.
127-28), and that the State failed to meet the heavy burden of
justifying an exclusionary jury practice that has such an anti
democratic effect. (J.A. 129-31).
We will not review the District Court's opinion on
this issue in detail, since space is limited and the opinion
speaks well for itself. Rather we will confine ourselves to
answering several points put forward in response by the State.
The State relies heavily on the argument that "Lockett v. Ohio
holds . . . that Wes [Witherspoon excludables] are not a
group for a fair corss-section analysis." (Atty. Gen. Br., at
35)(Capitalizations omitted). Not so. In Lockett v. Ohio,
438 U.S. 586 (1978), four venire persons were excused because
they made it "'unmistakably clear . . . that their attitude
twoard the death penalty would prevent them from making an
impartial decision as to the defendant's guilt.'" Id. at 596,
quoting Witherspoon, supra, 391 U.S. at 522-23. The Court held
that "[nlothing in Taylor [v. Louisiana] . . . suggests that
the right to a representative jury include the right to be
tried by jurors who have explicitly indicated an inability to
follow the law and instructions of the trial judge." 438 U.S.
51
at 596-97. Petitioners have no quarrel with the Lockett rule.
The State, however, tries to force this case into the Lockett
mold by a familiar sleight of hand: Lockett sanctioned the
exclusion only of jurors who had made it "unmistakably clear
that they would not be fair and impartial. The State now
claims that this holding governs here, since none of the ex
cluded jurors "said that he or she could be impartial," (Atty.
Gen. Br., at 36), in terms that satisfy the State on appeal.
Yet absent affirmative statements by the excluded jurors that
they could not be impartial, no presumption of bias can be
inferred. We have dealt with the State's unorthodox attempt to
create such a presumption, supra, 25-28.
The State attempts to bolster this argument in three
ways. First, it relies again on the supposed danger of nulli
fication if fair and impartial Witherspoon excludables are per
mitted to serve, and once again it cites Spinkellink v. Wain-
wright and a few pre-Witherspoon case. (Atty. Gen. Br., at 46).
The argument here is no better than the one we have discussed
above when it was advanced in an attempt to counter the convic—
tion-proneness point. Second, the State puts forth the remark
able argument that theDistrict Court should be reversed because
"current juries and venires are already chosen to mirroring the
community than they need to be." (Atty. Gen. Br., at 35)
(Capitalization omitted). The basis for this argument appears
to be the factual claim that "[e]ven without WEs [Witherspoon
excludables], jury panels now appear to include up to 89% of
the population," (id., at 38). This is an utterly unsupportable
view of Sixth Amendment cross-section requirements; under it, the
52
State could presumably argue that the exclusion of blacks is
constitutional in a state in which blacks constitute only 11
percent of the population since "even without blacks," juries
would "represent 89% of the population."
Finally, the State again attempts to undercut the
evidence in the record by recomputations performed by attorneys
on appeal rather than by experts at trial. (See Atty. Gen. Br.,
39-40). These recomputations are subject to all of the problems
that we have described for the earlier set, and more so, since
they are — as far as we can follow — no less arbitrary but
23 /
more complex” The State's effort to make this point puts it at
odds not only with an unimpeached and uncontroverted showing by
petitioners and District Court findings on that showing, but
also with testimony by the State's own expert, Dr. Gerald Shure:
[T]he evidence presented suggests that
in fact a death-qualified juror is likely
to be more biased in certain respects.
At the level of attitudes, I think it has
been demonstrated, particularly in this
Ellsworth study. ££/
23/ In some of these recalculations the State uses an 11% figure
for the proportion of Witherspoon excludables in the population
and then argues that "the 11% figure does not take into account
the exclusion of nullifers" (Atty. Gen. Br., at 39), which pre
sumably could make the differences even smaller. This is a
meaningless criticism, since 11% is the State's own manufactured
figure, and since petitioners most recent studies have all been
careful to take nullifiers into account and to define the exact
proportion of fair and impartial Witherspoon excludables in
correct legal terms.
24/ The State also would dismiss the disproportionate impact of
death-qualification on blacks and women as "not constitutionally
significant in the context of these cases." (Atty. Gen. Br., at
41). Even if that were accurate, the State would have missed
the point. The general, systemwide effect of death-qualification
on the representation of minorities on capital juries would
properly be a factor in this Court's consideration of the consti-
tionality of the practice, irrespective of its impact in a
particular case. See, e.g., Ballew v. Georgia, 435 U.S. 223 (1978)
53
_24/ (Con't.)
Moreover, to the extent that the pattern of exclusion
in the cases before this Court is significant, the record here
contains dramatic examples of this problem of disproportionate
exclusion. Nine of the twelve Witherspoon excludables in Averv,
for example, were black, far higher than the black proportion
of the Charlotte, North Carolina area where Avery was tried.
(See Atty. Gen. Br., at 6). Eight women, but only one man, were
excluded in Keeten. (Id. at 7). These figures are consistent
with the overwhelming evidence presented by petitioners on this
point. (See summary graphs at J.A. 877-78).
5k
PART II
ARGUMENTS FOR LARRY DARNELL WILLIAMS
I.
THE BIASING EFFECT OF DEATH-QUALIFICATION
PROCEDURES IS UNACCEPTABLE WHEN THE DEFEN-
DANT IS SENTENCED TO DIE ________________
Part of the State's argument is that the biasing effect of
the death-qualification process is too slight to create a consti
tutional violation (Atty. Gen. Br., at 31), a proposition which
we have refuted above. Williams argues separately here, how
ever, to emphasize that the State's burden to justify these prac
tices is even greater with respect to Williams' case, since he
is under a sentence of death, while the other cases involve
sentences of life imprisonment. Trial procedures which may be
constitutionally adequate to imprison a person may be insuffi
ciently reliable under Eighth Amendment standards to permit the
25/
taking of his life.
In case after case the Supreme Court has found wanting any
procedure which in any way tends to undermine the reliability of
26/
a decision to put someone to death. In Beck v._Alabama, 447
As Justice Harlan said, concurring in Reid v. Covert, 354
U.S. 1, 77 (1957):
I do not concede that whatever process is "due"
an offender faced with a fine or a prison sen
tence necessarily satisfies the requirement of
the Constitution in a capital case. The dis
tinction is by no means novel ... nor is it
negligible, being literally that between life
and death.
2€/ Woodson v. North Carolina, 428 U.S. 280, 305 ( 1976 ),
Gardner v. Florida, 430 U.S. 349 (1977); Lockett v. Ohio, 438
n s. S86 (1978); Beck v. Alabama, 447 U.S. 625 (1980); cf.,
Enmund v. Florida, 458 U.S. 782," 827-28 ( 1982) (O'Connor, J.,
dissenting).
U.S. 625 (1980), for example, the Court closely scrutinized and
condemned a guilt phase rule because it could reasonably be seen
to affect the reliability of the jury's verdict and because the
27/
defendant had received a death sentence.
Similarly, when the Supreme Court invalidated the death
penalty for federal kidnapping, because the statute tended to
encourage guilty pleas, United States v. Jackson, 390 U.S. 570
(1968), it was only those who had been sentenced to death who
were granted relief, not those who plead guilty. Brady v. United
States, 397 U.S. 742 (1970); Parker v. North Carolina, 397 U.S.
790 (1970).
The jury selection procedure employed in Larry Williams
case, as we have shown earlier, "inevitably ... enhance[d] the
risk of an unwarranted conviction[,] ... a risk [which] cannot
be tolerated in a case in which the defendant's life is at
stake." Beck, 447 U.S. at 637. Whatever this Court's ultimate
judgment about the acceptability that risk in non-capital cases,
its effect in a capital case cannot be permitted. Williams'
conviction and ensuing death sentence are therefore unconstitu
tional .
27/ The Court held that the Alabama preclusion statute at issue
In Beck "enhance[d] the risk of an unwarranted conviction," 447
U. s . at 638 (emphasis added), and therefore tainted the death
sentence just as would "procedural rules that tend to diminish
the reliability of the sentencing determination." Id-
56
II.
A JUROR WHO INSISTS THAT SHE IS "NOT SURE" AND
"NOT POSITIVE" THAT SHE COULD RECOMMEND THE
DEATH PENALTY IS NOT IRREVOCABLY COMMITTED TO
VOTE AGAINST DEATH SO AS TO PERMIT HER TO BE
EXCUSED FOR CAUSE FROM THE VENIRE-------------
At the trial of defendant Larry Williams, forty-nine jurors
were called and examined before twelve were selected to hear the
evidence. Mrs. Nancy Melton was the twentieth juror called.
Over objection, the trial court granted the State's motion to
strike her for cause because of her scruples against capital
punishment. (J.A. 176d). The District Court held that striking
Mrs. Melton from the venire was improper under Witherspoon v..
Illinois, 391 U.S. 510 (1968), and its progeny, thus requiring
that the defendant's death sentence be vacated. (J.A. 164-175).
After explaining that a verdict of guilty of first degree
murder would require the jury to recommend a penalty of life
imprisonment or death, the trial court asked Mrs. Melton whether
she could fairly determine the defendant's guilt or innocence in
accord with the law. She said she could. (J.A. 176b-176c). She
was asked twice whether she could, in accord with the law and the
facts, recommend a sentence of death. She said that she "was
not sure" and that she "was not positive" that she could. She
said that she had conscientious beliefs about the death penalty.
When asked a third time whether she could follow the law and
return a verdict recommending death if the jury's conclusions
called for it, she replied once more, "I'm not sure that I
could." (J.A. 176c-176d).
Witherspoon established strict limits on the exclusion of
prospective jurors in a capital trial:
57
The most that can be demanded of a venireman 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 course of the proceed
ings .
391 U.S. at 522 n. 21 (emphasis in original). Consequently,
only those prospective jurors who make it,
unmistakably clear (1) that they would automat
ically vote against the imposition of capital
punishment without regard to any evidence 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 impar
tial decision as to the defendant's gui11[...]
391 U.S. at 522-523 n.21 (emphasis in original), can be consti
tutionally excluded for cause.
These limits were further explained in Adams v.Texas, 448
U.S. 38 (1980). In Adams, the Supreme Court held that exclusion
of jurors unable to state that the death penalty would not
affect their verdict was in violation of Witherspoon. In so
holding, the Court stressed that Witherspoon did not provide a
basis for excluding any prospective juror.
It is rather a limitation of the State's power
to exclude: if prospective jurors are barred
from jury service because of their views about
capital punishment on "any broader basis" than
inability to follow the law or abide by their
oaths, the death sentence cannot be carried out.
448 U.S. at 48. As for jurors improperly excluded because they
could not say positively whether their deliberations would be
affected, the Court went on to say:
But neither nervousness, emotional involvement,
nor inability to deny or confirm any effect
whatsoever is equivalent to an unwillingness or
58
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 pen
alty.
448 U.S. at 50 (emphasis added).
Thus, it is clear from Witherspoon and Adams that exclusion
of a juror who is unable to affirmatively say one way or the
other whether she can, in accord with the law and the facts,
vote for death is not equivalent to a showing that the juror is
unable or unwilling to do so. Mrs. Melton stated no more than
that she did not know whether she could vote for death in
accord with the law and facts. She never said she was unwilling
or unable to do so. She did not make it unmistakably clear
that she would automatically vote against the death penalty
regardless of the evidence. Exclusion of such a juror is a
clear violation of Witherspoon and Adams.
Despite the clear language in Witherspoon and Adams, the
State has argued that it is entitled to exclude those jurors who
do not affirmatively state that they are willing to vote for
death in accord with the law and the facts. In support of this
argument, the State has asserted that all of the cases dealing
28/
with uncertain jurors, save one, support its position. The
State relies on two cases from New Jersey, three from Oklahoma,
one from Louisiana, one from Texas, and one from Kentucky. Only
28/ It cites: State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968)
State v. Wilson, 57 N.J. 39, 269 A.2d 153 (1970); Justus v_;_ ̂
State, 542 P.2d 598 (Okla. Cr. 1975), death sentence vacated on
other qrounds, 428 U.S. 907 (1976); Williams v. State, 542 P.2d
544 (Okla. Cr. 1975), death sentence vacated on other grounds,
428 U.S. 907 (1976); Davis v. State, 665 P.2d 1186 (Okla. Cr.
1983); State v. Ross, 343 So.2d 722 (La. 1978); Gall v_.— Common^
wealth, 607 S.W.2d 97 (Ky. 1981); Villareal v. State, 576 S.W.2d
59
The other cases have eitherthe Kentucky case favors the State,
been vacated after Witherspoon, do not apply to a situation
like the instant one, or do not stand for what the State claims
for them.
The State relies most heavily on State v. Mathis, supra,
and Justus v. State, supra. In Mathis, the juror stated that
he could not definitely say whether he was unable to vote for a
death sentence. The New Jersey court held that the juror was
properly excluded because he did not affirmatively state that
he would judge the case fairly. State v . Wilson, supra, relies
solely on Mathis. After Wilson was decided, the United States
Supreme Court vacated the death sentence in Mathis on Wither
spoon grounds, Mathis v. New Jersey, 403 U.S. 946 (1971), a fact
not mentioned in the State's brief.
The first two Oklahoma cases relied on by the State, Justus
v. State, sucra, and Williams v. State, supra, were companion
cases. The language quoted in the State's brief is taken out of
context. In Justus, the Oklahoma Court ruled that Witherspoon
did not apply to Oklahoma because Oklahoma had a mandatory death
penalty and the concerns expressed in Witherspoon, that a jury
exercising discretion on the life/death decision must act as the
conscience of the community, did not apply. The court then went
on to examine the jurors in Justus and Williams based on a lower
standard of exclusion that permitted the State to excuse jurors
_2S/ Continued
51 (Tex. Cr. Apo. 1979). The State asserts that there is only
one case in the‘defendant's favor, State v. Pruitt, 479 S.W.2d
785 (Mo. 1982). As will be shown below, the State is mistaken.
60
for cause on a basis of potential bias. It was within this con
text that the court stated that the State was entitled to excuse
the jurors in question.
In the other Oklahoma case, Davis v. State, supra, one of
the jurors gave a series of conflicting and confusing answers.
She began by saying that she believed she could impose the death
penalty, then said she didn't know if she could, then said that
she couldn't under any circumstances, then said she did not
think she could, then said she possibly could in some cases, and
finally, when a definite yes or no was demanded, said that she
could not. The court in Davis ruled that, in light of her con
fusing and conflicting answers, the excusal was not error.
The decisions in Justus and Davis have been recently dis
cussed by the Oklahoma Court of Criminal Appeals in a case much
like the instant case. In White v. State, 674 P.2d 31 (Okla.
Cr. 1983), a case also not cited in the State's brief, the juror
involved originally stated that she was not opposed to capital
punishment but did not think she could vote to impose it. Dur
ing extensive questioning by the prosecutor and trial judge, the
juror repeatedly said that she just didn't know whether she
could impose a death verdict. She was excused for cause.
On appeal, the State argued that the excusal of this juror
was proper under Justus and Davis. The Oklahoma Court of Crim
inal Appeals responded as follows:
The State argues that Mrs. Graham's equivocal
responses were analogous to the responses of
two veniremen in Davis v. State, 665 P.2d 1186
(Okl. Cr. 1983). In that case, however, the
leading questions asked by counsel for both sides
served to confuse the matter. The majority of
61
this Court determined from a review of the
examinations of the veniremen in
ity that the veniremen's answer satisfied the
Witherspoon concerns. In the present case, ̂
however, despite the trial court's painstaking
efforts, Mrs. Graham did not give a sufficiently
definitive response to disqualify as a
juror. See Coleman v. State, 670 P.2d 596
(Okl. Cr. 1983).
The State has also argued that Mrs. Graham s
responses were quite similar to those made by
venireman in Washington v. State, 568 P.2d 301
(Okl. Cr. 1977). This Court's reasoning in
that case, however, was based on Justus v^
State, 542 P.2d 598 (Okl. Cr. 1975), which held
that Witherspoon did not apply to 21 O.S. §§701.1
to 701.6 (now repealed). In Justus, we stated
that since the death penalty was the only pos
sible punishment for one convicted of Murder in
the First Degree under 21 O.S. §§701.1 to 701.6
now repealed), a venireman could be properly
excused on the grounds less than required under
Witherspoon, because the concerns affected his
ability to impartially determine guilt,
v. Branch, 554 P.2d 823 (Okl. Cr. 1976), and
the Supreme Court cases cited therein; the
repeal of 21 O.S. §§701.1 to 701.6; and the
enactment of 21 O.S. 1981, §701.7 et seq. ren
der inapplicable Justus and Washington to
Witherspoon issues under the present statute.
674 P.2d at 35. The court held that the uncertain juror was
improperly excluded and that the error was not rendered harmless
by the State’s failure to use all of its peremptory challenges.
In the Louisiana case, State v. Ross, supra, also decided
under a mandatory death penalty statute, the juror said he used
to be opposed to the death penalty, but didn't know what his
present position was, and was unable to say whether he could
find the defendant guilty knowing that there was an automatic
death penalty. The Louisiana court stated that it was not con
vinced that this excusal was improper, but it did not have to
deal with the issue because the death sentence was vacated under
Roberts v. Louisiana, 428 U.S. 325 (1976).
62
In the Texas case, Villareal v. State, supra, when the
juror, asked if she could impose a death verdict, replied "I don't
think that I could do that," the court held that the exclusion
of this juror was proper. An "I don't think so" juror presents
entirely different issues from the one involved here. See
Barfield v. Harris, 540 F. Supp. 451 (E.D. N.C. 1982), aff'.d,
719 F.2d 58 (4th Cir. 1983); Granviel v. Estelle, 655 F.2d 673
(5th Cir. 1981), cert, denied, 455 U.S. 1003 (1982); Williams v._
Maggio, 679 F.2d 381 (5th Cir. 1982), cert, denied, --- U.S. ---,
77 L.Ed.2d 1399 (1983); Witt v. Wainwright, 707 F.2d 1196 (11th
Cir. 1983), cert, granted, 52 U.S.L.W. 3786 (May 1, 1984);
O'Brvan v. Estelle, 714 F.2d 365 (5th Cir. 1983); McCorquodale
v. Balkcom, 721 F.2d 1493 (11th Cir. 1983) (en banc); Darden v^
Wainwright, 725 F.2d 1526 (11th Cir. 1984) (en banc).
Contrary to the State's assertion, there are a number of
other cases, in addition to State v. Pruitt, where the excusal
of an uncertain juror was held improper under Wi therspoon.
State v. Szabo, 94 111.2d 327, 447 N.E.2d 193 (1983) (juror had
"some doubts" as to whether she could sentence someone to die);
White v. State, supra (juror said she did not know if she could
sentence someone to die); People v. Washington, 80 Cal. Rptr.
186, 458 P.2d 479 (1969) (juror said she could not make up her
mind, doubted whether she could, and she was not really decided);
People v. Vaughn, 78 Cal. Rptr. 186, 455 P.2d 122 (1969) (juror
unsure, afraid her feelings would prevent her from imposing a
death sentence and could not say for sure whether there was any
case where she could); People v. Goodridge, 76 Cal. Rptr. 421,
63
452 P.2d 637 (1969) (juror did not know whether she could or
not); State v. Adams, 76 Wash.2d 650, 458 P.2d 558 (1969),
29/
(juror did not know).
In light of the above, the excusal of Mrs. Melton was
improper. The improper excusal of just one juror renders the
death sentence invalid. Davis v. Georgia, 429 U.S. 122 (1976).
The State has argued, without citing any authority, that
the improper excusal of Mrs. Melton was harmless because the
State had unused peremptory challenges. The State's argument
is without merit. Davis v. Georgia, supra; Moore v. Estelle,
670 F .2d 56, 57 (5th Cir. 1982); White v. State, supra; Darden
v. Wainwright, supra; Witt v. Wainwright, supra; Hance v. 2ant,
696 F .2d 940, 956 (11th Cir. 1983); Barfield v. Harris, 540 F.
Supp. 451, 456 (E.D. N.C. 1982), aff'd, 719 F.2d 58 (4th Cir.
1983); Chandler v. State, 442 So.2d 171, 174-75 (Fla. 1983);
Blankenship v. State, 280 S.E.2d 623 (Ga. 1981); People,.̂
Valasquez, 162 Cal. Rptr. 306, 606 P.2d 341 (1980); Grijalva
State, 614 S.W.2d 410 (Tex. Crim. App. 1981); Pierson v. State,
614 S.W .2d 102 (Tex. Crim. App. 1981).
The district court decision vacating the death sentence
imposed against defendant Larry Williams must be affirmed.
29/ in State v. Adams, supra, the court held that the exclusion
3f the "I don't know” juror was improper but not reversible^
error because only one juror was improperly excused. Adams
death sentence was later vacated by the United States Supreme
Court. Adams v. Washington, 403 U.S. 947 (1971). See, also,
Davis v. Georgia, supra.
62
CONCLUSION
The judgment of the District Court should be
affirmed.
Dated: May 15, 1984..
Respectfully submitted,
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
99 Hudson Street
New York., New York 10013
JAMES C . FULLER, JR•
Suite 913 .Branch Banking & Trust Building
Raleigh, North Carolina 27602
SAMUEL R. GROSS
Stanford Law School
Stanford, California 94305
JAMES E. FERGUSON, II
THOMAS M. STERN951 South Independence Boulevard
Charlotte, North Carolina 28202
ADAM STEIN
ANN B. PETERSEN
Post Office Box 1070
Raleigh, North Carolina 27602
ANTHONY G. AMSTERDAMNew York University Law School
40 Washington Square South
New York, New York 10012
\
6 5
APPENDIX A
APPENDIX A
This Appendix is provided for the convenience of the Court
to summarize the major studies that were presented to the
District Court. Record references are provided to the text of
each study, to relevant exhibits, and to relevant expert
testimony. The studies are divided into four major categories:
(i) studies on the relation between subjects' death penalty
attitudes and their demographic characteristics and other
criminal justice attitudes (Appendix A, pp. la-7a); (u) studies
on the relation between subjects' death penalty attitudes and
their behavior as jurors in actual or simulated trials (Appendix
A, pp. 7a-12a); (iii) other related studies on the relationship
between death penalty attitudes and behavior in capital cases
(Appendix A, pp. 12a-15a); and (iv) studies on the incidence of
"automatic death penalty jurors" in the population (Appendix A,
pp. 15a-17a).
X. ATTITUDINAL AND DEMOGRAPHIC SURVEYS
1. BRONSON/DENVER, 1970
AUTHOR: BRONSON, Edward C.
TITLE: "On the Conviction Proneness and Representativeness of
the-Death-Qualif ied Jury: An Empirical Study of Colorado
Veniremen," 42 Colo. L. Rev. 1 (1970).
RECORD REFERENCES: Joint Appendix Vol. IV, 625-656^(text);
Grigsby Exhibits EB-3 through EB-8, EB-79 and EB-80 (charts);
*The Petitioners' exhibits, in both the Grigsby Record and
in the Hovey Record were marked according to the initials of the
witness during whose testimony they were presented in evidence; _
thus, for example, Grigsby Exhibit EB-15 is the fifteenth exhibit
presented during the testimony of Dr. Edward Bronson at the
Grigsby hearing. (In some cases, exhibits that were^discussed^by
more than one witness bear multiple markings; e *g • , EB —2/RH—7
would indicate that the second exhibit discussed by Dr. Bronson
la
Grigsby RT 423-449 (testimony of Dr. Bronson), Joint Appendix
Vol. VII, 1291-1292 (testimony of Dr. Reid Hastie).
SUMMARY:
This was the first study to examine the relationship between
death-penalty attitudes . and other attitudes relating to the
administration of criminal justice. The respondents in this
survey were 718 Colorado venirepersons. Each respondent was
asked whether he or she "strongly favor[ed]," "favor [ed]",
"oppose[d]" or "strongly oppose[d]" the death penalty. Each
respondent was also asked five questions about his or her
attitudes on criminal justice issues. Interviews were carried
out, in person and by telephone, by trained students from the
University of Colorado, in 1968 and 1969. The Bronson/Denver^,
1970 survey shows a consistent correlation between attitudes on
the death penalty and attitudes on other criminal justice issues.
On each of the five questions, the stronger the respondent's
support for the death penalty (as measured on Bronson s four-
point scale), the stronger their support for positions most
favorable to the prosecution.
2. BRONSON/CALIFORNIA, 1980
AUTHOR: BRONSON, Edward C.
TITLE: "Does the Exclusion of Scrupled Jurors in Capital Cases
Make the Jury More Likely to Convict? Some Evidence from
California," 3 Woodrow Wilson L. Rev. 11 (1980) .
RECORD REFERENCES: Joint Appendix Vol. IV, 661-684 (text),
Gr iqsby Exhibits EB-11 through EB-26 and EB-81 through EB-84
(charts); Grigsby RT 463-492 (testimony of Dr. Bronson); Joint
Appendix Vol. VII, 1292-1294 (testimony of Dr. Reid Hastie).
was also the seventh exhibit discussed by Dr. Reid Hastie.)
2a
SUMMARY:
The studies grouped together in Bronson/California, 1980 are
similar in methodology and results to the Bronson/Denver, 197,0
survey. The first of these studies, Bronson/Butte County, 1980 ,
was conducted in 1969-1970. Seven hundred and fifty-five people
from Butte County, California, jury venires were interviewed over
the telephone by students at the California State University at
Chico. As in Bronson/Denver, 1970, respondents were asked to
indicate their position regarding the death penalty on a scale
from "strongly favor" to "strongly oppose." They were also asked
whether they agreed or disagreed with seven statements: five
that were nearly identical to the one used in Bronson/Denver,
1970, and two additional criminal justice items. The findings of
the Butte County survey closely parallel those in Bronson/Denver,
1970: the stronger the endorsement of the death penalty, the
higher the level of agreement with pro-prosecution statements.
Following the Butte County study, Professor Bronson
administered a slightly modified questionnaire to a sample of 707
venirepersons from Los Angeles, Sacramento and Stockton,
California. (Bronson/Los Angeles, 1980). These interviews were
carried out in late 1974 and early 1975. Once again, the data
showed a consistent pattern: the more strongly the respondents
favored the death penalty, the more likely they were to endorse
pro—prosecution positions, and attitudinal differences between
the "strongly oppose" group and the other three groups combined
were marked.
In a followup survey on some 400 Butte County prospective
venirepersons in June 1971, Bronson found that 93% of chose who
3a
"strongly opposed" the death penalty would be legally excludable
under Witherspoon.
3. HARRIS, 1971
AUTHOR; LOUIS HARRIS & ASSOCIATES, INC.
TITLE: Study No. 2016 (1971).
RECORD REFERENCES: Grigsby Exhibits CH-17, EB-32 and RH-9
(text); Grigsby Exhibits EB-33 through EB-63, EB-87 and EB 88
and Joint Appendix Vol. V, 861-867, 875-876 (charts); Grig sby
510-545 (testimony of Dr. Edward Bronson); and Joint Appendix
Vol. VII, 1295-1298 (testimony of Dr. Reid Hastie).
RT
SUMMARY.
Harris, 1971 is a detailed national opinion survey on
attitudes toward the death penalty, and the first study in which
a direct comparison can be made between respondents who are
death-qualified and those who are excluded by Witherspoon
criteria. It was administered in person to a representative
sample of 2,068 respondents drawn from the adult population of
the United States in 1971.
The findings of the Harris, 1971 survey parallel those of
the Bronson surveys, and greatly extend them. In response to
dozens of questions on their attitudes toward various aspects of
the criminal justice system, death-qualified respondents were
consistently more likely to favor the prosecution's position than
Witherspoon-excludable respondents. Harris, 19 71 also found that
more blacks than whites would be excluded from jury service by
death qualification '(46% vs. 29%), and more women than men (37%
vs. 24%). (Har r is, 1971 also collected data on the voting
behavior of the respondents as jurors in criminal trials; see
infra, p. 10a).
4a
4 . NATIONAL POLL DATA
AUTHOR: LOUIS HARRIS &
PUBLIC OPINION (Gallup)
ASSOCIATES, INC.; AMERICAN INSTITUTE FOR
AND NATIONAL OPINION RESEARCH CENTER
TITLE: Various national polls from 1953 through 1978 partially
summarized in: Smith, Tom W. "A Trend Analysis of Attitudes
Toward Capital Punishment, 1936-1974," in James A. Davis (ed.)
Studies of Social Change Since 1948, National Opinion Research
Center, Report 127B, Chicago (1976).
RECORD REFERENCES: Grigsby Exhibit EB-91 ( text) ;^Grigsby^^ nno
Exhibits EB-92 through EB-130 and Joint Appendix Vol. V, 877-878
(charts); Griqsby RT 583-593 (testimony of Dr. Edward_Bronson);
and Joint Appendix Vol. VII, 1436-1438 (testimony of Dr. Reid
Hastie).
SUMMARY:
Numerous surveys of the national population have established
two major demographic facts about attitudes toward the death
penalty: (1) Since 1953, women have consistently opposed the
death penalty in greater proportions than men. (2) Since 1953,
blacks have consistently opposed the death penalty in greater
proportions than whites and that racial gap has grown steadily,
from a difference of 8% in 1953 to 27% in 1978.
5. ELLSWORTH/FITZGERALD, 1979
AUTHORS: ELLSWORTH, Phoebe C.; and FITZGERALD, Robert
TITLE: "Due Process vs. Crime Control: Death Qualification and
Jury Attitudes," published in 8 Law and Human Behavior, Issue 1-
2, pp. 31-53 (1984).
RECORD REFERENCES: Joint Appendix Vol. i v , 732-748 (text_;_ pre
publication draft); Joint Appendix Vol. IV, 791-794, and Vol. V,
868-874 and 882-884 (charts); Joint Appendix Vol. VI, 1069-1155
(testimony of Dr. Ellsworth); Grigsby RT 546-564 (testimony of
Dr. Bronson); Joint Appendix Vol. VII, 1298-1314 (testimony of
Dr. Reid Hastie).
SUMMARY:
Ellsworth/Fitzgerald 1979 is the most sophisticated of the
surveys that have examined the relationship between death-
qualification and juror attitudes. The respondents in
5a
Ellsworth/Fitzgerald, 1979 were a probability sample of 811 jury-
eligible adult residents of Alameda County, California, in 1979.
The sample was drawn, and the subjects interviewed, by the Field
Research Corporation of San Francisco, an independent
professional polling organization.
The respondents in the Ellsworth/Fitzgerald,, 1979 survey
were asked carefully tailored questions that embody the two
prongs of the Witherspoon standard: whether they would consider
voting to impose the death penalty, and whether they could be
fair and impartial in determining guilt or innocence in a capital
case. Respondents who could not be fair and impartial
("nullifiers") were excluded from the analysis; of those who
could be fair and impartial (717 out of the total of 811), 17.2%
were Witherspoon excludable. Respondents were asked 13
attitudinal questions on criminal justice issues; on each, death-
qualified respondents were more favorable to the prosecution,
more crime-control oriented, and less concerned with
constitutional protections for suspects than were excludable
respondents. Most differences were sizeable and highly
statistically significant. The survey also found that more
blacks than whites are excluded by death-qualification (25.5% vs.
16.5%), and more women than men (21% vs. 13%).
6. PRECISION RESEARCH, 1981
AUTHOR: PRECISION RESEARCH, INC.
TITLE: Precision Research Survey.
RECORD REFERENCES: Grigsby Exhibit DE-1 (text); Gr igsby RT 1301-
1319 ("testimony of Mr. Dale Enoch).
6a
SUMMARY:
In June 1981, Precision Research, Inc., a polling
organization in Little Rock, Arkansas, conducted a state-wide
survey of death penalty attitudes using a representative sample
of 407 respondents drawn from the adult population of the State
of Arkansas. This survey used the same death penalty questions
that had been used in Ellsworth/Fitzgerald, 1979. It found that
(i) approximately 11% of Arkansas adults who could be fair and
impartial in determining guilt or innocence in a capital case are
excludable under Witherspoon because they would never consider
voting for the death penalty; (ii) among those who would be fair
and impartial, more blacks than whites are excludable in Arkansas
(29% vs. 9%); and (iii) more women than men (13% vs. 8%).
II. CONVICTION-PRONENESS STUDIES
1. ZEISEL, 1968
AUTHOR: ZEISEL, Hans
TITLE: "Some Data on Juror Attitudes Toward Capital^ ^
Punishment," Monograph, Center for Studies in Criminal Justice,
University of Chicago Law School (1969).
RECORD REFERENCES: Joint Appendix VOL. Ill, 402-453 (text^and
charts); Hovey RT 61-69 (testimony of Professor Hans Zeisel);
Grigsby RT 78-90 (testimony of Dr. Craig Haney), Joint Appendix
Vol. VII, 1339-1354 (testimony of Dr. Reid Hastie).
SUMMARY:
This is the earliest study on the conviction proneness of
death-qualified jurors. The data for the study were collected by
Professor Zeisel and his late colleague Professor Harry Kalven,
Jr. in 1954 and 1955, although the present monograph was not
published until 1968. (In Witherspoon, the Supreme Court had
before it some fragments of an early draft of this study; see
7a
391 U.S. 510 at 517 n.10). One distinctive feature of this study
is that it examined the behavior of actual criminal trial jurors.
The researchers interviewed jurors who had just completed service
on felony trial juries in the Brooklyn Criminal Court in New York
and in the Chicago Criminal Court in Illinois, and asked them
three questions: (i) What was the first ballot vote of the jury
as a whole? (ii) What was your own first ballot vote? ( m ) Do
you have conscientious scruples against the death penalty? In
all, the researchers collected data on 464 such votes. Professor
Zeisel analyzed these data, controlling for the strength of the
evidence of the defendant's guilt, and determined what subjects
with scruples against the death penalty voted to acquit
significantly more often than those without scruples against the
death penalty.
2. WILSON, 1964
AUTHOR: WILSON, W. Cody
TITLE: "Belief in Capital Punishment and Jury Performance,
unpublished (1964).
RECORD REFERENCES: Joint Appendix Vol. Ill, 455-468 (text);
Joint Appendix Vol. V, 880 (chart); Grigsby RT 91-106 (testimony
of Dr. Craig Haney); Joint Appendix Vol. VII, 1354-1357
(testimony of Dr. Reid Hastie).
SUMMARY:
Wilson, 1964 was the first experimental study on the
conviction proneness of death-qualified jurors. The subjects
187 college students — were presented in 1964 with written
descriptions of five capital cases (four with a single defendant,
one with two codefendants), asked to assume that they were
members of the juries trying the cases, and requested to reach a
8a
decision on each defendant’s guilt or innocence. Each subject
was also asked "Do you have conscientious scruples against the
death penalty, or capital punishment for a crime?" Wilson found
that subjects without scruples against the death penalty voted
for conviction more often than those who had scruples against the
death penalty (difference significant at the p<.02 level).
3. GOLDBERG, 1970
AUTHOR: GOLDBERG, Faye (Faye Girsh)
"Toward Expansion of Witherspoon: Capital Scruples Jury
and the Use of Psychological Data to Raise Presumptions in
_ _ — - *. __ c -i / t m n \’5 Harv. C.R.-C.L.L. Rev. 53 (1970)
TITLE
Bias,
the Law,
RECORD REFERENCES: Joint Appendix Vol. HI, 470-486 ̂ l^xt) ;
Joint-Appendix V^l. Ill, 487 (chart); Grigsby RT 91-106
(testimony of Dr. Craig Haney); Grigsby rt 494-492 (testimony
Dr. Edward Bronson); Joint Appendix Vol. VII, 1357-1358
(testimony of Dr. Reid Hastie).
of
SUMMARY:
The subjects in this 1966 study -- 200 students in private
liberal arts colleges in Georgia, 100 white and 100 black were
given 16 written descriptions of criminal cases involving various
crimes, and were asked to assume that they were jurors and to
indicate their vote on the case. They were also asked: "Do you
have conscientious scruples against the use of the death
penalty?" Subjects without scruples against the death penalty
voted to convict in 75% of the cases, while those with scruples
voted to convict in 69% (difference significant at the p<.08
level).
4. JUROW, 1971
AUTHOR: JUROW, George L.
TITLE: "New Data on the Effects of a 'Death-Qualified ^Jury on
the Guilt Determination Process," 84 Harv. L. Rev. 567 (1971).
9a
RECORD REFERENCES: Joint Appendix Vol. 111' *91-534 (text),
Griqsby Exhibits CH-11 through CH-15 (charts);_Grlgsby RT^lOT^l^
(testimony of Dr. Craig Haney); and Joint Appendix VII, 1358 1360
(testimony of Dr. Reid Hastie).
SUMMARY:
Jurow's subjects — 211 employees of the Sperry Rand
Corporation in New York -- listened to two tape recordings of
simulated murder trials including, in abbreviated form, opening
statements, examination of witnesses, closing arguments, and the
judge's instruction to the jury, and voted on the guilt or
innocence of the defendant by marking a ballot. In addition,
Jurow asked his subjects to complete a long questionnaire that
contained several sets of questions relating to the death
penalty, one of which (a five-point scale designated "CPAQ(B)")
included a statement embodying the first prong of the Witherspoon
criteria for exclusion: "I could never vote for the death
penalty regardless of the facts and circumstances of the case."
When the subjects are divided into groups on the basis of their
positions on that five-point CPAQ(B) scale, the pattern that
emerges resembles the patterns of responses to Bronson's
attitudinal surveys: the subjects who more strongly favor the
death penalty are more likely to convict. These differences are
statistically significant at the .01 level in Jurow's first case,
but not statistically significant in the second.
5. HARRIS, 1971
AUTHOR: LOUIS HARRIS & ASSOCIATES, INC,
TITLE: Study No. 2016.
RECORD REFERENCES: Grigsby Exhibits CH-13, EB-32 and RH-9
(text!; Joint Appendix Vol. V, 854-857(charts); Grigsby RT 124-
132 (testimony of Dr. Craig Haney); and Joint Appendix Vol. VII,
1360-1361 (testimony of Dr. Reid Hastie).
10a
SUMMARY:
The Harris, 1971 study, in addition to its attitudinal and
demographic data (see supra pp. 3a-4a) gathered behavioral data
on conviction-proneness. Each of the 2,068 subjects in the
national sample was instructed about three legal principles which
apply to all criminal cases (the prosecutor's burden of proof,
the requirement that a defendant be convicted by proof beyond a
reasonable doubt, and the rule that the defendant is not required
to testify) and was given written descriptions of the evidence in
four criminal cases. After each description, the subject was
given the legal definition of the crime involved, and asked
whether, as a juror in the case, he or she would find the
defendant guilty or not guilty. In each case the Witherspoon-
excludable subjects voted to convict less often than death-
qualified subjects. In three of the cases the differences
between the two groups were significant at the .01 level; in the
fourth case the difference was significant at the .10 level.
6. ELLSWORTH/THOMPSON/COWAN, 1979
AUTHOR: ELLSWORTH, Phoebe C.; THOMPSON, William; COWAN,
Claudia.
TITLE: "The Effects of Death Qualification on Jurors'
Predisposition to Convict and on the Quality of Deliberation,
published in 8 Law and Human Behavior, Issue 1-2, pp. 53-79
(1984).
RECORD REFERENCE^: Joint Appendix Vol. Ill, 537-545^(text, pre-
publication draft); Joint Appendix Vol. Ill, 548, 550-552, and
Vol. V, 858 (charts); Joint Appendix Vol. VI, 1179-1197
(testimony of Dr. Phoebe Ellsworth); Grigsby RT 135-165
(testimony of Dr. Craig Haney); Joint Appendix Vol. VII, 1361-
1376 (testimony of Dr. Reid Hastie).
SUMMARY:
El1sworth/Thompson/Cowan, 1979 is the most sophisticated of
11a
the conviction-proneness of death-the experimental studies on
qualified jurors. Its subjects — 288 jury eligible adult
residents of San Mateo and Santa Clara Counties, California —
were screened by telephone when they were initially contacted in
1979 to determine: (i) whether they would be excluded from
capital juries under Witherspoon because they would never
consider voting to impose the death penalty; and (ii) whether
they could be fair and impartial in judging guilt or innocence in
a capital case. Those who could not be fair and impartial
("nullifiers") were excluded from participation. The remaining
subjects were shown a detailed and highly realistic 2-1/2 hour
videotape of a homicide trial — including extensive witness
testimony, arguments by prosecutor and defense counsel, and
instructions by the trial judge — and were asked to give a
written verdict. Nearly 78% of the death-qualified subjects
voted to convict the defendant of some degree of homicide,
compared with only 53.3% of the Witherspoon-excludable subjects
(difference highly statistically significant, at the .01 level).
III. OTHER EXPERIMENTAL STUDIES
1. ELLSWORTH POST-DELIBERATION DATA, 1979
AUTHORS: ELLSWORTH, Phoebe C.; COWAN, Claudia; and THOMPSON,
William.
TITLE: "The Effects of Death Qualification on Jurors _ ^
Predisposition to Convict and on the Quality of Deliberation,
published in 8 Law and Human Behavior, Issue 1-2, PP• 53—79
“(1984 ) .
RECORD REFERENCES: Gr iqsby Exhibits CH-32 through CH-35,^RH-39,
rh-41 rh-42 (protocols and charts); Joint Appendix Vol. VI,
1197-1207 (testimony of Dr. Phoebe Ellsworth); Grigsby RT 172-190
(testimony of Dr. Craig Haney); and Joint Appendix Vol. VII,
1420-1429 (testimony of Dr. Reid Hastie).
12a
SUMMARY:
After filling out their written ballots most, of the
subjects in the Ellswor th/Thompson/Cowan,_ 19,79 study (see supra
pp. Ha-12a) — 228 out of 288 — were divided into juries of 12
members and deliberated for one hour on a verdict in the trial
they had just seen. Half of the jury panels had only death-
qualified subjects, and half included two, three, or four
Witherspoon-excludable subjects ("mixed juries ). After the one
hour deliberation, the jurors were asked to fill out a second
ballot form. While none of the juries reached a unanimous
verdict in the time allotted, individual jurors did change their
votes. The basic difference between death-qualified and
Witherspoon-excludable jurors did not change: the death-
qualified jurors remained far more likely to vote for conviction
than the Witherspoon-excludable jurors (difference significant at
the .01 level). The subjects were also asked to fill out a post
deliberation questionnaire about the trial. The questionnaire
data reveal that: (i) the death-qualified subjects were more
likely to believe the prosecution witnesses and to disbelieve the
defense witnesses than Witherspoon-excludable subjects; (ii)
subjects on mixed juries viewed all witnesses (prosecution and
defense) more critically than did subjects on death-qualified
juries; (iii) subjects on mixed juries remembered the facts of
the case better than those on death-qualified juries.
2. ELLSWORTH WITNESS CREDIBILITY STUDY, 197_9
AUTHORS: ELLSWORTH, Phoebe C.; HARRINGTON, Joan C.; THOMPSON,
William; and COWAN, Claudia.
TITLE* "Death Penalty Attitudes and Conviction Proneness: The
Translation of Attitudes Into Verdicts" published in 8 Law and
13a
Human Behavior, Issue 1-2, pp. 95-113 (1984).
RECORD REFERENCES: Joint Appendix Vol. Ill, 564-573 (text, pre-
publlcation draft), and id. 574 (chart); Joint Appendix Vol. VI,
1165-1172 (testimony of Dr. Phoebe Ellsworth); Grlgsby RT 193-203
(testimony of Dr. Craig Haney); Joint Appendix Vol. VII, 1429-
1435 (testimony of Dr. Reid Hastie).
SUMMARY:
Twenty death-qualified and 16 Wither spoon-excludable
subjects who had participated in the Ellswor th/Thompson/Cowan,_
1979 study (see supra, pp. lla-12a) were shown a videotape of a
prosecution witness (a police officer) and a defense witness (a
possible defendant) giving two versions of an incident; they then
answered questions about the witnesses' testimony. On each of 16
questions, the death-qualified subjects gave answers that were
more favorable to the prosecution than those of the Witherspoo_n-
excludable subjects (on 10 of the 16 the differences were
significant at or beyond the .05 level).
3. HANEY, 1979
AUTHOR: HANEY, Craig
TITLE: "On the Selection of Capital Juries: The Biasing
Effects of the Death-Qualification Process," published in 8 Law
and Human Behavior, Issue 1-2, pp. 121-132 (1984).
RECORD REFERENCES: Joint Appendix Vol. IV, 587-613 (text, pre-
publi'cation draft), and id., 615-622 (charts); Grigsby RT 227-235
and 241-310 (testimony of Dr. Craig Haney); and Joint Appendix
Vol. VII, 1388-1393 (testimony of Dr. Reid Hastie).
SUMMARY:
Haney, 1979 is the first study to investigate the effects of
the process of death-qualification on the jurors who undergo it.
The subjects — 67 jury—eligible adults from Santa Cruz County,
California — were screened by telephone following the procedures
used in the Ellsworth/Thompson/Cowan, 1979 study (see supra, pp.
14a
lla-12a) to identify Witherspoon-excludables and nullifiers; only
death-qualified subjects who could be fair and impartial in
deciding guilt or innocence in a capital case were used. Those
subjects were randomly assigned to two groups: one group saw a
realistic two-hour videotape of a voir dire in a capital murder
case, including a half-hour of voir dire during which prospective
jurors were death-qualified; the other group saw the same
videotape with the death-qualification segment edited out.
Following the viewing, both groups filled out a questionnaire on
their beliefs about the case. The questionnaire data show that
the randomly assigned subjects who saw the death-qualifying voir
dire were more likely to think that the defendant was guilty than
those who did not, more likely to believe that he would be
convicted, and more likely to think that the judge and the
defense attorney believed that the defendant was guilty (all
differences significant beyond the .05 level).
IV. STUDIES ON "AUTOMATIC DEATH PENALTY" JURORS (ADP1 S )_*
1. HARRIS, 1981
AUTHOR: LOUIS HARRIS & ASSOCIATES, INC,
*In addition to the studies summarized here, the record
contains evidence of a study conducted by Dr. Gerald Shure, an
expert for the State in the Grigsby hearing, that was intended to
touch on the question of "automatic death penalty" jurors. We
have omitted the Shure study from this appendix because its
author testified that he did not believe it to be reliable (see_j_
e.q., Grigsby RT 996 , 1008 , 1181 , 1199; Joint Appendix Vol. VI,
1027, 1045), and because neither party to this appeal purports to
rely on it. See Grigsby v. Mabry, 569 F. Supp. 1273, 1307-08
(E.D. Ark. 1983).
15a
TITLE: Study No. 814002 (1981).
RECORD REFERENCES: Grigsby Exhibits EM-2 through
IHd~text): Grigsby RT 1577-1608 (testimony of Ms.
Montgomery).
EM-4 (protocols
Elizabeth
SUMMARY:
This national Harris survey of a sample of 1498 respondents
drawn from the adult civilian population of the United States in
January 1981 found that only 1% of the respondents who could be
fair and impartial in determining guilt or innocence in capital
cases would automatically vote for the death penalty upon
conviction for any capital murder.
2. ARKANSAS ARCHIVAL STUDY, 1981
AUTHOR: YOUNG, Andrea
TITLE: Arkansas Archival Study (1981).
RECORD REFERENCES: Grigsby Exhibits AY-1, AY-3
7 (protocols and text), AY-2 and AY-4 (charts);
1702 (testimony of Ms. Andrea Young).
, AY-5 through AY-
Grigsby RT 1679-
SUMMARY:
A review of 41 transcripts of voir dires of capital cases on
file at the Arkansas Supreme Court, taken from trials in 1973
through 1981, reveals that of all the jurors who were questioned
(a total of 1,914) 14.4% were excluded on Witherspoon grounds but
only 0.5% were excluded because they would always vote to impose
the death penalty upon conviction, in every capital case.
3. KADANE, 1981
AUTHOR: KADANE, Joseph B.
TITLE: "Juries Hearing Death Penalty Cases: ^Statistical^
Analysis of a Legal Procedure," published in 78 Journal of the
American Statistical Association, No. 383 , pp. 544-552 (J;888]
(see also 8 Law and Human Behavior, Issue 1-2, pp. 115-120 (1984)
for a briefer write-up).
16a
RECORD REFERENCES: Joint Appendix Vol. V, 795-835
publication draft); i_d. , 836-838 (charts) and 839-
protocols); Word &_ Sparks RT 9-78 (testimony of Dr
Kadane).
(text, pre-
853 (survey
. Joseph
SUMMARY:
In this study Dr. Kadane reanalyzed the results of the
Ellsworth/Fitzgerald, 1979 study (see supra, pp. 5a-6a) and the
Ellsworth/Thompson/Cowan, 1979 study (see, supra, pp. lla-12a),
using data from the Harris, 1981 (supra, pp. 15a-16a) survey for
the proportion of ADP's in the population, and data from a 1981
state-wide Field Research Corporation survey of California for
the proportion of fair and impartial Witherspoon-excludables in
the population. The reanalysis reveals that even when the most
conservative possible assumptions are made about the attitudes
and behavior of ADP jurors, their exclusion from capital juries
does not alter the fact that death-qualification biases capital
juries against the defendant on the issue of guilt or innocence.
17a
r.FRTTFICATE OF SERVICE
I hereby certify that I am one of the attorneys for
petitioners-appellees in the above-captioned action and that
I served the annexed Brief for Petitioners-Appellees on
respondent by placing copies in Federal Express (at counsel's
request), addressed as follows:
Richard N. League, Esq.Special Deputy Attorney General
Department of Justice
One West Morgan Street
Raleigh, North Carolina 27602
All parties required to be served have been served,
none this 15th day of May, 198-4.
JOHN CHARLES BOGER