Garrison v. Keeten Brief for Petitioners-Appellees

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May 15, 1984

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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



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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

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