Garrison v. Keeten Brief for Petitioners-Appellees
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May 15, 1984

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Brief Collection, LDF Court Filings. Garrison v. Keeten Brief for Petitioners-Appellees, 1984. 3621e8d9-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/77071039-dfea-4c99-acde-4c5634bcc2eb/garrison-v-keeten-brief-for-petitioners-appellees. Accessed July 06, 2025.
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d *•1 > « 5 t\ l V\ O c \ r \ r < S o ' / JAMES C. FULLER, JR. Suite 913Branch Banking S Trust Building Raleigh, North Carolina 27602 SAMUEL R. GROSSStanford Law School Stanford, California 94305 JAMES E. FERGUSON, II THOMAS M. STERN951 South Independence Boulevard Charlotte, North Carolina 28202 ADAM STEIN ANN B . PETERSEN Post Office Box 1070 Raleigh, North Carolina ANTHONY G. AMSTERDAMNew York University Law School 40 Washington Square South New York, New York 10012 ATTORNEYS FOR PETITI0NERS- APPELLEES 27602 I TABLE OF CONTENTS STATEMENT OF THE ISSUES PRESENTED FOR Rr,VIc.A? .... STATEMENT OF THE CASE ........................... Introduction .......................... Legal Background ...................... Procedural History Of These Cases ..... STATEMENT OF FACTS .............................. Death-Qualification And Juror Attitudes ........................ Death-Qualification And Juror 3ehavior ......................... The Process of Death—Qualification .... ARGUMENT: PART ONE -- THE COMMON ISSUES ........ I. The District Court Correctly Held That The State’s Use Of Death-Qualification Procedures To Exclude Impartial Jurors At The Guilt-Or-Innocence Phase Of Petitioners' Capital Trials Denied Their Sixth And Fourteenth Amendment Rights To Fair And Impartial Juries .......... A. The District Court's Findings On Conviction-Proneness .............. 3. The Applicable Standard Of Review Of Those Findings ................. C. The Controlling Legal Principles.... D. The State's Arguments For Reversal.. (i) Petitioners' Standing ........ (ii) The Impartiality Of Death- Qualified Jurors ............. (iii) The Possibility Of Partiality On Guilt -- The "Nullification" Argument ..................... Page 1 3 3 6 8 8 8 10 13 lk lk lk 16 18 22 23 25 29 i Page * « ■ (iv) The Value Of The Social Science Evidence ................. a. Attitudes and Behavior ....... b. Simulated Jury Research ...... (v) The Constitutional Significance Of The Biasing Effects Of Death-Qualification .............. a. The Significance Of The Applebaum Affidavits.......... b. The Legal Question At Issue ... II. The District Court Correctly Held That Death- Qualification Procedures Denied Petitioners' Sixth And Fourteenth Amendment Rights To Juries Selected From A Representative Cross- Section Of The Community .................... ARGUMENT: PART TWO — WILLIAMS' SEPARATE CLAIMS..... I. The Biasing Effect Of The Jury Selection Procedures Is Unacceptable When The Defendant Is Sentenced To Die .............. - II. A Juror Who Insists That She Is "Not Sure" And "Not Positive" That She Could Recommend The Death Penalty Is Not Irrevocably Committed To Vote Against Death So As To Permit Her To Be Excused For Cause From The Venire .................. CONCLUSION ......................................... 34 34 36 40 40 45 50 55 55 57 65 APPENDIX Summary Of The Studies Introduced In^o Evidence By Petitioners............... la TABLE OF AUTHORITIES Cases Adams v. Texas, 448 U.S. 38 (1980) .............. 20,32,46,58 Ballard v. United States, 329 U.S. 187 (1946).... 26 Ballew v. Georgia, 435 U.S. 223 (1978) .......... 12,45,47,53 Barfield v. Harris, 719 F.2d 58 (4th Cir. 1983)... 63 Barfield v. Harris, 540 F.Supp. 451 (E.D.N.C. 1982) ........................... 48,64 Beck v. Alabama, 447 U.S. 625 (1980) ............ 29,55 Blankenship v. State, 280 S.E.2d 623 (Ga. 1981) •• 64 Bonds v. Mortensen & Lange, 717 F.2d 123 (4th 1983) ................................. 17 Brady v. United States, 397 U.S. 742 (1970)...... 56 B's Company, Inc. v. B.P. Barker & Assoc., 391 F. 2d 130 (4th Cir. 1968)................ . 18 Bumper v. North Carolina, 391 U.S. 543 (1968).... Canron Inc. v. Plasser American Corp., ,7 609 F.2d 1075 (4th Cir. 1979) .............. Chandler v. State, 442 So.2d 171 (Fla. 1983)..... 64 Connally v. Georgia, 429 U.S. 245 (1977) (per curiam) ............................ 20 Darden v. Wainwright, 725 F.2d 1526 (11th Cir. 1974) (en banc) .................. 63,64 Davis v. Georgia, 429 U.S. 122 (1976) ......*.... 46,64 Davis v. State, 665 P.2d 1186 (Okla. Cr. 1983) * * -• 59,60 DeStefano v. Woods, 392 U.S. 631 (1968) (per curiam) ............................. ^ Duncan v. Louisiana, 391 U.S. 145 (1968) ........ 18 Duren v. Missouri, 439 U.S. 357 (1979)........ 26,50 Enmund v. Florida, 458 U.S. 782 (1982) .... 88 iii Estelle v. Williams, 425 U.S. 501 (1976) ........ 21 Estes v. Texas, 381 U.S. 532 (1975) ............. 21 Friend v. Leidinger, 588 F.2d 61 (4th Cir. 1978) .. 17 Furman v. Georgia, 408 U.S. 238 (1972) .......... 33 Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1981).... 59 Gardner v. Florida, 430 U.S. 349 (1977) ......... 55 ■. Granviel v. Estelle, 655 F. 2d 673 (5th Cir. 1981) , cert, denied, 455 U.S. 1003 (1982) ......... 63 Gregg v. Georgia, 428 U.S. 153 (1976) ........... 33 Grigsby v. Mabry, 637 F.2d 525 (8th Cir. 1980).... 5,28,47 Grigsby v. Mabry, 569 F.Supp. 1293 (E.D. Ark. 1983) .......................... 5,6,24,28,47 Grijalva v. State, 614 S.W.2d 410 (Tex.Cr.App. 1981) ......................... 64 Groppi v. Wisconsin, 400 U.S. 505 (1971) ........ 19 Hance v. Zant, 696 F.2d 940 (11th Cir. 1983) .... 64 Hogge v. Johnson, 526 F.2d 833 (4th Cir. 1975) ... 18 Hovey v. Superior Court, 28 Cal.3d 1, 616 P.2d 1301 (1980) ....................... 5,28,44,47 Hutchins v. Woodard, No. 84-8050 (4th Cir. March 9, 1984) ................... 48 Irvin v. Dowd, 366 U.S. 717 (1961) .............. 19,24,32 Johnson v. Mississippi, 403 U.S. 212 (1971) ..... 18 Jones v. Pitt County Bd. of Ed., 528 F. 2d 414 (4th Cir. 1975) ........................... 17 Jurek v. Texas, 428 U.S. 262 (1976) ............. 33 Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) ...... 17 Justus v. State, 542 P.2d 598 (Okla.Cr. 1975) , vacated on other grounds, 428 U.S. 907 (1976) ... 59,60 ' Lockett v. Ohio, 438 U.S. 586 (1978) ........... .33,51,52 55 IV Mayberry v. Pennsylvania, 400 U.S. 455 (1971)...... 21 McCorquodale v. Balkcom, 721 F.2d 1493 (11th Cir. 1983)(en banc) ................... 63 McGautha v. California, 402 U.S. 183 (1971)........ 33 Moore v. Balkcom, 670 F.2d 56 (5th Cir. 1982)...... 64 Moore v. Midgette, 375 F.2d 608 (4th Cir. 1967).... 77 In re Murchison, 340 U.S. 133 (1955)............... 18,21 O'.Bryan v. Estelle, 714 F. 2d 365 (5th Cir. 1983) •••• 63 O'Neal v. Gresham, 519 F.2d 803 (4th Cir. 1975).... 17,18 Parker v. North Carolina, 397 U.S. 790 (1976) ...... 56 People v. Goodridge, 76 Cal.Rptr. 421, 452 P.2d 637 (1969) .........................., 63 People v. Valasquez, 162 Cal.Rptr. 306, 606 P.2d 341 (1980) .........................., 64 People v. Vaughn, 78 Cal.Rptr. 186, 455 P. 2d 122 (1969) ......................... .. 63 People v. Washington, 80 Cal.Rptr. 186, 458 P.2d 479 (1969) ......................... . 63 People v. Word & Sparks, No. 78647 (Super. Ct. Santa Clara Co. 1981) ....................... . 5 Peters v. Kiff, 407 U.S. 493 (1972) .............. . 26 Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App. 1981) .......................... . 64 Proffitt v. Florida, 428 U,.S. 242 (1976 ).......... . 33 Pullman-Standard v. Swint, 456 U.S. 273 (1982) .... . 17 Reid v. Covert, 354 U.S. 1 (1957) ................ . 55 Roberts v. Louisiana, 428 U.S. 325 (1976) ......... . 62 Rosales-Lopez v. United States, 451 U.S. 182 (1981) ___24 Rose v. Lundy, 455 U.S. 509 (1982) ............... . . 25 Sheppard v. Maxwell, 384 U.S. 333 (1966) .......... . . 19,20,21 Smith v. Balkcom, 666 F.2d 573 (5th Cir. 1981) .... . . 28 Smith v. Texas, 311 U.S. 128 (1946) .............. V Smith v. University of North Carolina, 632 F. 2d 316 (4th Cir. 1980) ..................... 17 Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978) ................................ . . 28,33 State v. Adams, 76 Wash.2d 650 , 458 P.2d 558 (1969).... 64 State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980) ... 51 State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968) ...... 59,60 State v. Pruitt, 479 S.W.2d 785 (Mo. 1982) .......... 60,63 State v. Ross, 343 So.2d 722 (La. 1978) .............. 59,62 State v. Szabo, 94 111.2d 327, 447 N.E.2d 193 (1983)... 63 State v. Wilson, 57 N.J. 39, 269 A.2d 153 (1970) ...... 59,60 Strauder v. West Virginia, 100 U.S. 303 (1880) ....... 26 Taylor v. Hayes, 418 U.S. 488 (1974) ................. i8 Taylor v. Louisiana, 419 U.S. 522 (1975) .............. 19,26,50 Thiel v. Southern Pacific Co., 328 U.S. 217 (1945).... 19 Turney v. Ohio, 273 U.S. 510 (1927) ................... 20 United States v. Harper, ____ F.2d ____ (9th Cir. April 3 , 1984) ........................ 47 United States v. Jones, 608 F.2d 1004 (4th Cir, 1979).. 24,32 United States v. Warwick Mobile Home Estates, 537 F. 2d 1148 (4th Cir. 1978) ................... 17 United States v. Jackson, 390 U.S. 570 (1978)........ 56 Villareal v. State, 576 S.W.2d 51 (Tex.Cr.App. 1979) ............................. 59,63 Ward v. Monroeville, 409 U.S. 57 (1972).............. 20 Wardius v. Oregon, 412 U.S. 470 (1973)............... 22 White v. State, 674 P.2d 31 (Okla.Cr. 1983 ) .......... 61,63,64 Williams v. Florida, 399 U.S. 78 (1975) ............. 26,47 Williams v. Maggio, 679 F.2d 381 (5th Cir. 1982) , cert, denied, ____ U.S.____, 77 L.Ed.2d 1399 (1983) 63 Williams v. State, 542 P.2d 544 (Okla.Cr. 1975), vacated on other grounds, 428 U.S. 907 (1976) Witherspoon v. Illinois, 391 U.S. 510 (1968) Witt v. Wainwright, 707 F.2d 1196 cert, denied, ___ U.S.____, (U.S. May 1, 1984) ......... (11th Cir. 1983) , 52 U.S.L.W. 3786 Other Authorities Rule 52(a), F.R.Civ.Pro. ...................... S. PENROD & HASTIE, INSIDE THE JURY (1983) ....... Zeisel & Diamond, "The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court," 30 STAN L. REV. 491 (1978) ................................... Passim 59 63,64 17 36 38 v n IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 84--6139L SAM GARRISON, et al., Respondents-Appellants, -against- CHARLES BRUCE KEETEN, Petitioner-Appellee. No. 84--614-0 ROBERT HAMILTON, et al., Respondents-Appellants, -against- BERNARD AVERY, Petitioner-Appellee. No . 84--614-1 NATHAN RICE, et al., Respondents-Appellants, against- LARRY DARNELL WILLIAMS, Petitioner-Appellee. Appeal From The United States District Court For The Western District Of North Carolina Charlotte Division BRIEF FOR PETITIONERS-APPELLEES STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. May the extensive factual findings made by the District Court, amply supported by substantial record evidence and not clearly erroneous, be overcome by the State on appeal? 2. Is there substantial support in the record for the District Court's finding that death-qualification produces juries that are uncommonly prone to convict? 3. Is there substantial support in the record for the District Court's findings that death-qualification produces juries that are disproportionately favorable to the prosecution in their attitudes and predispositions? 4.. Is death-qualification unconstitutional be cause of the proven fact that it produces juries that are "less than neutral on the issue of guilt," i.e., that it permits the State to enhance its chances of obtaining a conviction by asking that the defendant receive a sentence of death? 5. Is there substantial support in the record for the District Court's finding that jurors who are ex cluded by death-qualification are a sizeable and distinctive group in the community, and that they share a distinctive constellation of attitudes on important criminal justice issues? 6 . Is death-qualification unconstitutional be cause it systematically removes a "cognizable group" of prospective jurors from the jury pool available to try capital cases? 2 STATEMENT OF THE CASE (i) Introduction The common issues on these appeals concern a procedure known as "death-qualification" under which prospective jurors in capital trials in North Carolina are examined at length during voir dire on their attitudes toward the death penalty. All jurors who state that they could never consider a sentence of death are subject to systematic exclusion for cause by the State, not merely from the penalty phase, but from the guilt-or-innocence phase as well — even if it is established on voir dire that these jurors could serve fairly and impartially in determining guilt or innocence. No question is presented on these appeals con cerning the State's authority to remove from the penalty phase those jurors who could not consider imposing a penalty of death, nor is any question raised concerning the State's authority to remove, at the guilt phase, those whose opposi tion to the death penalty would prevent them from serving as fair and impartial jurors on the issue of guilt or innocence. Neither do petitioners question the State's right to use all of its peremptory challenges to exclude any prospective jurors it chooses. The narrow question presented here is whether the State is constitutionally entitled to an unlimited number of challenges for cause to exclude from the guilt or innocence phase all jurors who could follow the law and serve fairly to determine guilt or innocence in a capital case, yet who 3 could not impose a sentence of death in a subsequent penalty proceeding, if any (hereinafter "Witherspoon excludables"). Petitioners contend that the systematic removal of this group of venirepersons from their juries severely and unconstitution ally prejudiced their rights to fair and impartial juries on __1/ the issue of guilt. Petitioners have established below that this group of prospective jurors share distinctive attitudes, not merely toward the death penalty, but toward a range of criminal justice issues, and that juries deprived of the perspectives of such "Witherspoon excludables" are more prone to favor the prosecu tion than are ordinary juries, and more likely than ordinary juries to convict. The District Court has held that, because of these effects, death-qualification violates their Sixth and Fourteenth Amendment rights to a fair and impartial jury, and to a tribunal selected from a representative cross-section of the community. The record in this case consists primarily of the transcripts and exhibits of three earlier evidentiary hearings on the effects of death-qualification: (i) the hearing in the 1/ As used throughout this brief, references to the deter mination of "guilt" are intended to include (in addition to the overall question of conviction or acquittal) the deter mination of the kind of homicide that may have been committed (murder or manslaughter), the degree of the offense and the sanity of the defendant. consolidated cases Grigsby v. Mabry (No. PB-C-78-32), Hulsey v. Sargent (No. PB-C-81-2), and McCree v. Housewright (No. PB-C-80-429), all heard by the Honorable G. Thomas Eisele (E.D. Ark., July-August, 1981) and decided in Gngshy v. Mabry, 569 F. Supp. 1293 (E.D. Ark., 1983)(hereinafter " 2/"Grig. Tr." )1 (ii) the hearing in People v. Moore, No-..67.113 (Superior Court, Alameda County, California, August-September, 1979), which formed the record for the California Supreme Court's opinion in Hovey v. Superior Court, 28 Cal. 3d 1, 616 P.2d 1301 (1980)(hereinafter "Hovey Tr.”); and (iii) the record in People v. Myron Eugene Word and Wendell Herbert Sparks, No. 78617, (Superior Court, Santa Clara County, California, August 1981)(hereinafter "Word Tr."). These records focus on an extensive series of social scientific studies on the effects of death-gualification. Although the State has appealed the District Court's judgment in this case, it has not at any point offered a co herent summary of the scientific record on which that judgment is based. This omission is perhaps understandable, for the evidence in this case is exceedingly one-sided: it provides overwhelming support for petitioners' contentions, and it does not contain a single study on death-gualification that supports the State's claims. (Indeed, as we will discuss infra, the 2/ In Grigsby v. Mabry, 637 F.2d 525, 528 (8th Cir. 1980), the United States Court of Appeals for the Eighth Circuit directed the District Court to hold an evidentiary hearing on several factual questions determinative of petitioners' conviction-proneness claim because "if they are answered in the affirmative, Grigsby has made a case that his constitu tional rights have been violated and he would be entitled to a new trial." Id. at 527. Following an evidentiary hearing 5 [Cont'd .] studies on which the State does attempt to rely underline the weakness of its position.) Since the facts are essential to an understanding of the District Court's holding, we will j W briefly set them forth here. One of the petitioners in this appeal, Larry Williams, also prevailed below on an individual claim, that at least one juror was excluded for cause from his capital jury in violation of Witherspoon v. Illinois, 391 U.S. 510 (1968). That issue will be addressed following our discussion of the common claims. (ii) Legal Background In 1968, the Supreme Court decided Witherspoon v . Illinois, 391 U.S. 510 (1968). The petitioner in Witherspoon had challenged, on two separate grounds, the prosecutor's statu tory right in Illinois to "death-gualify" a capital jury, that is, to exclude all prospective jurors, for cause, solely because of their "'conscientious scruples against capital punishment, Witherspoon v. Illinois, supra, 391 U.S. at 512. First, he urged that no jurors be excused at the guilt phase, irrespective of their attitudes towards the death penalty, so long as they could be fair and impartial in determining guilt or innocence. Juries selected by excluding such jurors, he contended, " . . . _2/ cont'd. at which various experts, seventeen social scientific studies and 270 exhibits were presented, the District Court found that the "death-qualification" process used in Arkansas created juries that were conviction-prone and denied the petitioners trial by a jury representative of a cross-section of the community. G*"^qsby v. Mabry, 569 F. Supp. 1293 (E.D. Ark. 1983), pending en banc, No. 83-2113EA (8th Cir.). 3/ In addition, we have provided the Court with a set of summarie of the most important studies that are included in the record, with relevant recor'd references, as an Appendix to this brief. _ p, - f conviction [and]"must necessarily be biased in favor o partial to the prosecution on the issue of guilt or innocence."' Id. at 516-17. Secondly, he argued that jurors should not be excluded at the penalty phase "simply because they voiced general objections to the death penalty," id. at 522, unless those reservations left the jurors unable fairly to consider the full range of penalties, that is, unless they would auto matically oppose a death sentence, regardless of the facts and circumstances of the case before them. The Supreme Court agreed with the petitioner's second argument, and forbade exclusion of prospective jurors "on any broader basis" than an opposition to the penalty so strong that the jurors would either (i) automatically vote against death in any case or (ii) be rendered incapable of making "an impartial decision as to the defendant's guilt given the prospect of a death sentence." Id. at 522-23, n.21 (emphasis in original). The Court, however, refused to accept petitioner s claim that the guilt-phase excusal of jurors who could never impose death, but who could be fair at the guilt phase, rendered the resulting jury conviction-prone. Observing that ”[t]he data adduced by the petitioner . . . are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution," id. at 517, the Court declined "either on the basis of the record now before us or as a matter of judicial notice," id at 518, to accept this claim. However, the Court explicitly invited further evidence on the issue. Id. at 520 n.lSI See also Bumper v. North Carolina, 391 U.S. 543, 52.5 ( 1968 ) . 7 (iii) Procedural History Of These Cases The procedural history of these cases is adequately set out in the brief for appellants-respondents filed on this _£/ appeal. (See Atty. Gen. Br. 2-3). STATEMENT OF FACTS It is impossible to review adequately the scientific evidence offered by petitioners within the limits of this brief; we will confine our discussion to the major points. The studies and the expert testimony address three separate factual issues: (i) the differences in the attitudes of death-qualified and Witherspoon excludable jurors; (ii) the differences m the behavior of these two groups of jurors; and (iii) the effect on prospective jurors of the process of death-qualifying voir dire itself. (i) Death-Qualification And Juror Attitudes The evidence presented on the relationship between death penalty attitudes and attitudes on other criminal justice issues does not permit conflicting interpretations: people who oppose the death penalty strongly, and those who are excluded from capital cases under Witherspoon in particular, have attitudes that are more favorable to the accused on a range of issues material to the criminal justice process. Half a dozen separate 5/studies support this proposition (see Pet. App., pp. 1-6.) ana none contradict it; the State's experts apparently conceded. this point. See, e ^ . , Grig. Tr. 1081-82(Dr. Gerald Shure); 2/ Each reference to the Brief of Appellants,, dated April 10, T982, will be indicated by the abbreviation "Atty. Gen. Br.," followed by the number of the page on which the reference may be found. 5/ Each reference to Petitioners' Appendix, which follows the text of this brief, will be indicated by the abbreviation "Pet. App." followed by the number of the page on which the reference may be found. _ q _ Grig. Tr. 1221-22 (Dr. Roger Webb). The District Court found that "[t]he evidence before the court overwhelmingly demonstrates that persons who are unwilling to impose the death penalty share a unique set of attitudes toward the criminal justice system which separate them as a group not only from persons who favor the death penalty, but also from persons who are generally opposed to the death penalty, but are willing to consider it in some cases." 6/(J.A. 122-25). This constellation of attitudes shared by Witherspoon excludables includes, for example, more open attitudes toward the insanity defense (J.A. 98, 101), greater willingness to honor constitutional restrictions on the admissibility of evidence (J.A. 99, 101), less partiality toward prosecutors (J.A. 103), and greater reluctance to assume that defendants would not be brought to trial unless they were guilty (J.A. 99). After "thoroughly review[ing] the evidence submitted by petitioners," (J.A. 112), and finding it "credible, consistent,* and essentially uncontradicted," id., the District Court expressly held that persons who are unwilling to impose the death penalty are a "distinctive group" in the community: "The results of the studies submitted by petitioners reveal that persons who are unwilling to impose the death penalty share a unique set of attitudes toward the criminal justice system which separates them as a group not only from persons who favor the death penalty, but also from per sons who are generally opposed to the death penalty, but are willing to consider it in some cases. These attitudes are consistently more favorable for the defense than they are for the prosecution." (J.A. 125). 5/ Each reference to the Joint Appendix will be indicated by the abbreviation "J.A." followed by the number of the page on which the reference may be found. 9 Petitioners' experts also testified about a second important feature of death penalty attitudes: because a greater proportion of blacks than of whites, and of women than of men, are inalterably opposed to the death penalty, blacks and women are subject to removal through the process of death-qualification in greater proportions than are whites and men. The District Court found that "[exclusion of persons unwilling to impose the death penalty from the guilt phase of capital trials further offends the Sixth Amendment in that it inevitably leads to the disproportionate exclusion of distinctive groups such as blacks and women, who tend to oppose the death penalty to a greater degree than white men. (j.A . 126). In so finding, the Court relied upon a long series of surveys, including a 1971 Harris national survey that showed that "[f]orty-six percent of black subjects stated that they could never vote for the death penalty, while only 29% of white subjects said they could never impose it . . .[and o]nly 24% of men subjects [but] . . . 37% of women said they could never vote for it." (J.A. 105). (See also Pet. App., 6a-7a). The uncontradicted evidence thus confirms that Witherspoon excludable jurors share unique attitudes toward the criminal justice system, and that their systematic exclusion for cause saddles defendants with those prospective jurors most predisposed to favor the prosecution and to convict. It also disproportionately excludes blacks and women from capital j uries. (ii) Death-Qualification And Juror Behavior Petitioners offered additional evidence addressed, not to whether death penalty attitudes are related to other 10 criminal justice attitudes, but to whether death penalty attitudes systematically affect the behavior of jurors. "[Piersons who are willing to impose the death penalty not only share a set of attitudes that are more favorable to the prosecution, but are also predictably more likely to decide in a manner that favors the prosecution." (J.A. 133). The District Court reviewed a series of nine studies, conducted by independent researchers over a twenty-five-year period, in which participants ranging in age and status from college students to actual jurors made guilt or innocence determinations in a variety of contexts. Some read short written descriptions of crimes before casting their ballots. Others heard audio accounts of criminal proceedings; in still other studies, videotaped reenactments of criminal trials were employed. One study obtained the jury verdict preferences of jurors who had participated in actual trials. The Court found that: "[sjeveral studies submitted by petitioners specifically concentrated on the manner in which pro-prosecution attitudes on the part of death qualified jurors translate into pro-prosecution behavior. The results of these studies were con sistently the same: with due consideration of the strength of the evidence, persons who are willing to impose the death penalty will vote to convict more often than will persons who are unwilling to impose the death penalty. (J.A. 133). The studies, in short, uniformly demonstrate that persons who are death-qualified by Witherspoon standards are substantially more likely to vote to acquit than are persons excluded by those standards. In the most sophisticated and carefully controlled study, the Ellsworth Conviction Pronenes; Study 1979, 288 adult, jury-eligible citizens were asked to 11 view a videotaped reenactment of an actual murder trial. The results showed that "[i]n this close case, 77.9,4 of the death-qualified jurors [willing to impose the death penalty] convicted the defendant of some degree of homicide, while only 53.3% of the currently excludable jurors voted that way." (J.A. 134; see id. 107). Moreover, the study found significant differences between death-qualified and excludable jurors, not only in the overall percentage of guilty verdicts, but in the degree of guilt imposed (from manslaughter to first degree murder) among the possible verdict outcomes. 7/ (J.A. 500; see also Pet. App. 5a-6a. 7/ Dr. Ellsworth's follow-up studies included a simulation of jury deliberations among 228 of the subjects who had witnessed the videotaped trial. The jurors were grouped into panels of 12 persons; half of these jury panels had only death-qualified subjects, and half included two, three or four Witherspoon excludable subjects ("mixed juries"). The subjects were asked to fill out a questionnaire about the trial. The questionnaire data revealed that subjects on mixed juries remembered the facts of the case better than those on death- qualified juries, and that they viewed all witnesses, prosecu tion and defense, more critically than did subjects on death- qualified juries (J.A. 560-63; see Pet. App. 5a-6a. The District Court found that "[this] process of excluding jurors with differing backgrounds and viewpoints results in reduced jury deliberation . . ., a situation explicitly con demned by the Supreme Court in Ballew v. Georgia, supra, and by the State in this case." 136) . 12 (j_j_i) The Process of Death-Qualification Petitioners' experts further testified, based upon the research of Professor Haney, that the process of death-qualifica tion — the searching voir dire inquiries from the court and from counsel on prospective jurors' attitudes toward the death penalty — itself biases jurors on the question of guilt or innocence. "The presumption of prejudice [against the defendant]," the District Court found, "is only escalated by a series of undesirable side effects which result from death qualification of jurors selected for the guilt phase of a ■trial. The voir dire itself tends to instill in the jury a sense that the defendant is guilty, and that the death penalty is the appropriate penalty for him." (J.A. 136; see J.A. 615-22). 13 ARGUMENT: PART ONE THE COMMON ISSUES I THE DISTRICT COURT CORRECTLY HELD THAT THE STATE'S USE OF DEATH-QUALIFICATION PROCEDURES TO EXCLUDE IMPARTIAL JURORS AT THE GUILT-OR- INNOCENCE PHASE OF PETITIONERS' CAPITAL TRIALS DENIED THEIR SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO FAIR AND IMPARTIAL JURIES___________ A . The District Court's Findings on Conviction-Proneness Perhaps the most striking quality of the proceedings in the District Court is the care with which that Court examined the factual issues in this case, on the basis of an exhaustive record. Virtually all relevant social scientific evidence developed within the past thirty years — from Professor Zeisel's 1954-55 field research involving actual jurors, to Professor Ellsworth's highly sophisticated series of studies in 1979 was placed before the Court and was subjected to intense pro fessional scrutiny and review. Equally striking are the results of the studies: no matter who conducted the research, no matter what locale or subjects, no matter what the methods used, death- qualified jurors were shown significantly more prone to convict, more favorable to the prosecution in their attitudes, and more prone to believe the prosecutor and his witnesses, than were Witherspoon-excludable jurors. In the Hovey Record, Professor Hans Zeisel illustrated his testimony on the cumulative impact of the conviction-prone- ness studies with a chart (see copy of Hovey Exh. HZ-5, infra) summarizing the strong points and the weak points of each of the six major studies on conviction-proneness (see also, Pet. App. 8a-13a). He explained: "The reason I have put these six studies together is the following, namely, I'm sure that it couldn't escape anybody who has SY NO PS IS U, » , tw n Sl BO Mf i P u iM H -O f- IM ^ ^ tl tA L^ lt lJ 0M S lU D U i Defendant’s jExhibit No. HZ’" $ FIGURE He. 3 7 listened to this testimony . . . the almost monotony of the results. It is obviously the same whether you take the experiment at Sperry-Rand in New York or students in Atlanta or jurors in Chicago or Brooklyn or eligible jurors here in Stanford; it comes always out the same way. "And Your Honor, I should add that it happens seldom in the social sciences that the problem is being studied even twice, not to speak of six times. . . . "So this is an unusual fact. And since all of the studies show the same result, no matter with whom, no matter with what stimulus, no matter with what closeness of simulation, there is really one conclusion that we can come to. The relationship is so robust -- and this is a term of art among scientists -- that no matter how strongly or how weakly you try to discover it in terms of your experimental design, it will come through." (Hovey Tr. 84-085). Professor Zeisel' s conclusion is greatly reinforced by the consistent findings of an extensive series of surveys that compared the attitudes of death-qualified and excludable jurors (see Pet. App. la-7a ), and by several experimental studies that examine the mechanisms that produce these effects and the impact of the process of the death-qualify ing voir dire itself (see Pet. App. 12a-15a). By contrast the record is utterly bare of any studies that contradict this well established finding. This absence cannot possibly be attributed to any lack of opportunity on the State's part to prepare and present evidence. As the pro cedural history of this case demonstrates, the State had, literally, years within which to put any relevant matters before the court. Rather, the state of the record reflects the fact that in the sixteen years since the Supreme Court identified the issue in Witherspoon, despite intense academic and legal interest in the issue, not a single contrary, 15 scientifically credible study has been reported, and the State offered no suggestion that such a contrary study might be in progress. From a scientific point of view this record is clear; the facts on conviction-proneness are known. Based on this record, the District Court reached the only conclusion possible: "[This] evidence demonstrates that what common sense says is so, is so: jurors who favor the death penalty are significantly more likely to convict and jurors who oppose the death penalty are significantly less likely to convict. There is no serious evidence refuting those propositions. A fair jury has not been provided when the prosecutor is able to keep on the jury those persons most likely to convict and to exclude from the jury for cause all those persons most likely to acquit." (J . A. 89). 3 . The Applicable Standard Of Review Of Those findings It is no surprise that the State studiously avoids the factual record and the District Court's findings, since the evidence so thoroughly refutes its contentions. The State's understandable desire to ignore those findings, however, runs squarely afoul of Rule 52(a) of the Federal Rules of Civil Procedure, which provides that such findings shall not be set aside unless clearly erroneous,and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." The Supreme Court of the United States has recently amplified the principles governing the appellate review of factual findings, holding that 52(a) applies to the trial court's treatment of all "ultimate" issues that turn 16 on factual findings, as well as its disposition of "subsidiary" f acts: Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982). This Court has long adhered to the view that "[i]t is not the function of the appellate court to decide factual questions de novo; the function of this court under Rule 52(a) is not to determine whether it would have made the findings the trial court made, but whether 'on the entire evidence it is left with the definite and firm conviction that a mistake has been made.'" United States v. Warwick Mobile Home Estates, 537 F. 2d 1148, 1150 (4th Cir. 1976)(citations omitted). Specifically, this court has emphasized that "[w]e may not weigh the evidence, pass on the credibility of witnesses, or substitute our judgement for that of the finder of facts. Canron Inc, v. Plasser American Corp., 609 F.2d 1075 (4th Cir. 1979); accord: Bonds v. Mortensen 8 Lange, 717 F.2d 123 (4th Cir. 1983), Katz v. Dole, 709 F.2d 251 (4th Cir. 1983), Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980), Friend v. Leidinger, 588 F.2d 61 (4th Cir. 1978), Jones v. Pitt County Bd. of Ed., 528 F.2d 414 (4th Cir. 1975). The rule has been applied by this Court with equal force to district court findings based upon conflicting docu mentary evidence. Moore v . Midgette, 375 F.2d 608, 612 (4th Cir. 1967); see also Friend v. Leidinger, supra; 0'Neal 17 v. Gresham, 519 F . 2d 803 (2-th Cir. 1975); Hogge v. Johnson, 526 F.2d 833 (2th Cir. 1975); B's Company, Inc, v. B.P. Barker 8 Associates, 391 F .2d 130 (2th Cir. 1968). Where, as on these appeals, the District Court "has thoroughly reviewed the evidence . . . , finds it credible, consistent, and essentially uncontradicted, . . . and accepts the opinions offered by experts in jury research that the studies are valid and reliable," Keeten v. Garrison, supra, 578 F. Supp. at 1177, its findings should not be lightly disturbed. C. The Controlling Legal Principles The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury . . . ." Even before Duncan v. Louisiana, 391 U.S. 125 (1968), incorporated the Sixth Amendment's jury- trial right into the Fourteenth, it had long been settled that the Due Process Clause assures every criminal defendant the right to have his trial before an impartial tribunal. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 329 U.S. 133, 136 (1955). See, e . g. , Tay,lQ£—Xj_ Hayes, 218 U.S. 288, 501 (1972)(citing authorities). Johnson v. Mississippi, 203 U.S. 212, 216 (1971)(per curiam). Witherspoon itself was technically not a Sixth -----3 7 Amendment case, but the ground of its decision demonstrates 8/ Although it was decided two weeks after Duncan v. Louisiana, ■Jgi u.S. 125 (1968), in which the Court held the Sixth Amendment jury trial right applicable to the states, Witherspoon v. Illinois did not rely on Duncan, and it ultimately relies on the Four- teenth Amendment in holding that the execution of Witherspoon s^ death sentence would "deprive him of life without due process of law." 391 u.S. at 523. The Court subsequently held that Duncan's incorporation of the Sixth Amendment into the Fourteenth did not [Cont'd .]18 how fundamental jury impartiality is to the guarantee of due process in jury trials. The Court there found that the pro cedure by which Witherspoon's jury had been selected denied him "that impartiality to which [he] . . • was entitled under the Sixth and Fourteenth Amendments," 391 U.S. at 518, in the determination of his sentence. A fortiorari, where a State entrusts the determination of guilt or innocence to a jury, "[d]ue process requires that the accused receive a trial by an impartial jury free from outside influence." Sheppard v . Maxwell, 384- U.S. 333, 362 (1966). "In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors . . . In the language of Lord Coke, a juror must be . . . indifferent as he stands unsworne.'" Irvin v. Dowd, 366 U.S. 717, 722 (1961), accord, Groppi v. Wisconsin, 400 U.S. 505, 509 (1971). The Sixth and Fourteenth Amendment right to "an impartial jury" means something more than that each juror be individually capable of fairly and impartially assessing the facts in light of the law on which he is instructed. The jury as a whole should be composed in such a way that its collective assessment of the facts will reflect the "conscience of the community." Witherspoon v. Illinois, supra, 391 U.S. at 519. This requirement of collective, or "diffused impartiality," Taylor v. Louisiana, 419 U.S. 522 (1975); Thiel v. Southern Pacific Co., 328 U.S. 217, 227 (1945)(Frankfurter, J. dissenting), 8/ Cont'd. apply retroactively to state-court trials that, like Witherspoon's, had predated the Duncan decision. DeStefano v. Woods, 392 U.S. 631 (1968)(per curiam). 19 was described in Witherspoon as the requirement of jury "neutrality;" accord Adams v. Texas, 448 U.S. 38, 44 (1980). The record in this case demonstrates two ways in which death-qualification deprives a capital defendant of his right to a neutral jury. First, it demonstrates that a death- qualified jury is partial in its predisposition. It is a jury that is more inclined than others, at the very outset of the trial, to side with the prosecution. Second, the record proves that a death-qualified jury is partial in its performance. Faced with the identical case, a death-qualified jury is more likely to vote to convict than a jury that is truly represen tative of the entire community. The courts have long held that any procedure that might predispose a criminal tribunal to favor the State violates due process. In Turney v. Ohio, 273 U.S. 510 (1927), the Court held that '[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law. Id. at 532. See also, Ward v. Monroeville, 409 U.S. 57 (1972); normally v. Georgia, 429 U.S. 245, 245 (1977)(per curiam). Applying this constitutional rule to the record in the present case involves a task analogous to evaluating the consequences of pretrial publicity. In both situations, it is necessary to assess the danger that events preceding the pre sentation of the evidence might change the jury’s disposition when it comes to judge that evidence. In Sheppard v. MaxweJUL, 20 384 U.S. 333 (1966), the Supreme Court held that [t]he trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Id. at 362. That basic canon of due process is recognized in a variety of situations which endanger the impartiality of the trier of criminal charges. Estes v. Texas, 381 U.S. 532, 543- 4.4. (197 5) ; Mayberry v. Pennsylvania, 400 U.S. 455 (1971), Estelle v. Williams, 425 U.S. 501, 504 (1976); In re Murchison, 349 U.S. 133, 136 (1955). Death-qualification, however, con trary to the Court's admonition in Sheppard v. Maxwell, dramatically skews the predispositional balance of the jury pool in a way that creates a jury pool that is "weighted./against the accused." Witherspoon also identifies the second type of non neutral jury forbidden by the Sixth and Fourteenth Amendments, a jury that is in actual practice, uncommonly prone to convict. 391 U.S. at 517. A death-qualified jury, the evidence in this case demonstrates, is just such a tribunal. This biasing effect in the performance of death-qualified capital juries is demon strated on this record not only as an inference from the death- qualified jury's proven pretrial predisposition, but also as an observed fact of its trial performance. The factual question that the Court in Witherspoon found unanswered — whether death- qualification "substantially increases the risk of conviction," 391 U.S. at 518 — has now been answered in the affirmative. Six major studies demonstrating the conviction-prone- ness of death qualified juries, together with a number of supporting explanatory studies were before the District Court. 21 They were explicated and dissected on direct and cross examine tion by prominent expert witnesses for petitioners and by the State's witnesses. The District Court has found them credible and persuasive. No contrary studies exist. "[T]he Due Process Clause . . . speak[s] to the balance of forces between the accused and his accuser. Wardius v. Oregon, 4-12 U.S. 470, 474 (197o) . As petitioners conviction-proneness studies all conclude, death-qualification destroys that balance. It is therefore unconstitutional. D. The State's Arguments for Reversal The State, in discussing the evidence, exhibits a curious ambivalence toward the scientific research that is before this Court. On one hand, it argues that sixteen years and some twenty carefully researched studies after Witherspoon, "the showings required by Witherspoon have still not been made and that the research is still fragmentary, (Atty. Gen. Br., at 12); at the same time, it claims that "when closely analyzed for impact, it [the research] favors respondents." (Id.) In the body of its argument, the State expands its position into a list of arguments that appear to be contra dictory as well as untenable: (i) that petitioners have no standing to raise this issue; (ii) that the research does not demonstrate that death-qualified jurors are, individually, legally disqualified to serve because of bias; (iii) that jurors who would never consider the death penalty, but who state under oath that they could fairly and impartially deter mine a capital defendant's guilt or innocence, must not be trusted to do so; (iv) that the entire body of petitioners' 22 research is scientifically unsound and unreliable, as demonstrated by studies by Dr. Steven Penrod and Professor Hans Zeisel; and (v) that, in any event, the demonstrated bias of death-qualified juries is constitutionally insignificant because it might change the outcome in [only] from 1-10% of close [capital] cases." (Atty. Gen. Br., at 13). We will address these argu ments in turn. (i) Petitioners' Standing The State's first argument is that the District Court must be reversed because petitioners "failed to show that the jurors excluded [by death-qualification] could have been fair and impartial on the guilt phase . . . ." (Atty. Gen. Br., at 14.). The State makes this argument despite the fact — acknowledged in its own brief — that at least some of these excluded jurors in each case testified under oath that they could return a verdict on guilt in accordance with the instruc tions of the court." (Atty. Gen. Br., 4-7). The State, it seems, considers such a sworn statement by a venireperson insufficient to overcome a challenge that was never, in fact, actually raised. One hardly knows where to begin to respond to this argument. The shortest answer is that the State has placed the shoe squarely on the wrong foot. The State did not challenge these jurors at trial on the ground that they could not be fair on guilt. Therefore it is now precluded from claiming that it might have been able to challenge the jurors on that ground. These jurors were excluded, by the State, on another ground, that they would never consider imposing the death penalty. It is those actual exclusions that are on review, not some hypo thetical challenges that were not made. Conceivably, a more 23 detailed inquiry into the jurors' impartiality on guilt would have revealed that these jurors could not have fairly decided guilt or innocence (that appears to be the State s position), more likely, no further questioning was undertaken at the trials because the jurors' sworn statements of impartiality were obviously credible to all participants. In any event, appellate review can only be meaningfully undertaken on the basis of evidence actually presented and objections actually made on the trial-court record, not on the basis of post hoc speculations. In these particular cases, however, the force of that basic rule of appellate review is amplified by the sub stantive law. First, potential jurors are, in general, pre sumed to be impartial unless the contrary is demonstrated. "The burden of proving partiality is upon the challenger." United States v. Jones, 608 F.2d 1004, 1007 (4-th Cir. 1979), citing Irvin v . Dowd, 366 U.S. 717, 723 (1961); see also Rosales — Lopez v. United States, 451 U.S. 182, 190 (1981), Grigsby v. Mabry, 469 F. Supp. 1273, 1283-84 (E.D. Ark. 1983). Witherspoon adheres to that basic principle in forbidding the State to exclude venirepersons for cause unless they make it unmistak ably clear" that they are disqualified. 391 U.S. at 522 n.2l. The burden, in other words, is on the State to establish that prospective jurors are not qualified, not on the defendant, to establish that the jurors are qualified. The State would turn these rules upside down; it would create a presumption that venirepersons are biased, and require them to make it unmistakably 24 JL/ clear that they are qualified to serve. That is simply not the law; "standing" is therefore not a problem on these appeals. (ii) The Impartiality of Death-Qualified Jurors The State's second argument is that petitioners have not shown that death-qualified jurors are biased in a manner that would disqualify them individually from jury service. (Atty. Gen. Br., 14— 15). Petitioners, however, are not asking that death-qualified jurors should be excluded from capital juries — they are certainly entitled to serve — but rather that fair and impartial jurors who are now excluded because of opposition to the death penalty be included in the deter mination of guilt or innocence. The State's argument reflects 9/ In a related procedural vein, the State claims that peti tioners' partial reliance on a study demonstrating that the process of the death -qualifying voir dire biases jurors against capital defendants (see Haney Study, J.A. 587-522; see Pet. App. ]_2a— 15a) amounts to a separate claim that is unexhausted under Rose v. Lundy, 4.55 U.S. 509 (1982) with respect to petitioners Keeten and Avery, although exhausted with respect to petitioner Williams (Atty. Gen. Br., kk-45). This argument deserves very little comment. As the District Court ruled, "this study is but one more piece of evidence offered by petitioners to support their original claim that the process by which the juries that tried their cases were selected deprived them of their right to trial by an impartial facjt — finder. (J.A. 110). The State attempts to sidestep this obvious fact by arguing that a different form of relief is required to meet this factual argument. (Atty. Gen. Br. , at 4-5) . Not so. To reiterate, petitioners claim that the process of death-qualification violated their constitutional rights to due process and to fair and impartial juries. They request, as relief, that the State be precluded from questioning prospective jurors about their ability to impose the death penalty until after a determination of guilt of a capital offense, if any. Such relief would eliminate or minimize all of the deleterious effects of the challenged practice. 25 a thorough misunderstanding of the petitioners' claims and of the opinion below. The State has missed the critical distinction between impartial jurors and impartial juries. A juror is fair and impartial if he or she can fairly try the issue before the court, and reach a decision based on the evidence and the law. But different fair and impartial jurors may reach opposing decisions; in fact, that is a common occurrence. The genius of the system of trial by jury is that it does not leave the determination of lawsuits to any one person, whether juror or judge, but relies on the wisdom of a group chosen from the community, the jury- That group must consist of fair and impartial individuals, but that is not enough; it is the essence of the jury that it represent the community in which the trial takes place. Strauder v . West Virginia, 100 U.S. 303, 308 (1880); Smith v. Texas_,_ 311 U.S. 128, 130 (194-0). Indeed, representativeness is at the heart of the concept of a fair and impartial jury under both the Sixth Amendment and the Due Process and Equal Protec tion principles of the Fourteenth Amendment. See Duren v._ Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522, 530 (1975); Peters v . Kiff, 407 U.S. 493 (1972), Williams v. Florida, 399 U.S. 78 (1975); Ballard v. Unite_d States, 329 U.S. 187 (1946). To choose a common example, it is quite possible that white and black jurors evaluate certain types of evidence quite differently; white jurors might be more skeptical, for instance, of a defendant's claim that a police officer struck him without justification. This is a legitimate difference 26 both the white and the black venirepersonsin point of view: may be fair and impartial as jurors, individually. Nonetheless, the disposition of the jury on this issue could determine the outcome of the case. To say in such a case that an all-white jury was prosecution-prone does not imply a criticism of the point of view of the whites, or embody a judgment that the defendant's contention is factually correct. The rule is simply that both of these legitimate points of view must be icyincluded. That is the relief requested by petitioners, and that is the issue addressed by the District Court. icy The State's misunderstanding of the meaning of neutrality "is exemplified by its discussion of one of petitioners' studies. In the Ellsworth Post-Deliberation Follow-Up Data, 1979 (the "Regret Scale" Study)(J .A. 577-80; see also id.,1121-25 for Dr. Ellsworth's testimony concerning the Regret Study), Dr. Ellsworth and her colleagues found that death-qualified and excludable jurors differed in their relative levels of regret for different types of judicial errors: Witherspoon-excludable jurors expressed more regret at the prospect of convicting an innocent person than at the prospect of acquitting a guilty one, while death-qualified jurors expressed equal levels of regret for these two types of errors. The State seizes upon the word "equal" in these findings and argues that their equal levels of regret demonstrate that death-qualified jurors "are equally fair to both parties while the excluded jurors would not be." (Atty. Gen. Br., 33-34). This is a semantic equation with no content. "Equality is a virtue only where it is the preferred attitude; there is nothing praiseworthy, for example, in being equally well disposed toward good and toward evil. In this case, of course, there is no clear reason to suppose that one point of view is superior to the other. The presumption of innocence and the burden of proof beyond a reasonable doubt strongly suggest that our legal system embodies the belief that erroneous convictions should be regretted more than erroneous acquittals, but the belief that these two tupes of problems are equally serious is also a valid point of view. It is the State's contention, however, that only the more punitive view is entitled to expression on capital juries, peti tioners want both perspectives included. 27 Petitioners have put forward evidence of differences in predisposition betweeen death-qualified and Witherspoon- excludable jurors not in order to exclude death-qualified jurors individually, but because their pronounced predisposi tion to favor the State is relevant to petitioners' claim that juries comprised solely of such jurors are not impartial, in that they are more conviction-prone than fully representa- 11/tive juries. 11/ Although the State has not relied on them, two cases from the Fifth Circuit — Spinkellink v. Wainwrigh^, 578 F.2d 582 593-94 (5th Cir. 1978) and Smith v. Balkcom, 560 F.2d 573 583-84 (5th Cir. 1981) — set forth a related argument: that the fact that death-qualified juries are uncommonly con viction-prone does not mean that they are not impartial, on the contrary, that non-death-qualified juries are acquittal prone." With all due respect to the Fifth Circuit, the argu Sent does not make sense. If ordinary, non-death-qualifled juries are acquittal-prone and unfair, why are they used m all criminal triafs except capital cases? The issue here whether the State can increase a defendant's chances of conviction tip the balance on guilt or innocence -- by placing him on trial for a capital crime, rather than a non-capital one. The Fifth Circuit apparently takes the position that such a balance can be struck only when the defendant's life is placed in jeopardy. The Fifth Circuit's position has been rejected directly by the Eighth Circuit, Grigsby v. Mabry, 637 F.2d 525 527 (8th Cir. 1980), on remand 569 F. Supp. 1273 (E.D. Ark! 1983), appeal pending, (8th Cir.) and by the California Supreme Court, Hovey v. Superior Court, 28 Cal.3d 1, 19 n.Ai, 516 P. 2d 1301, 1309 n.41, and it is directly contrary to Witherspoon. The Court in Witherspoon condemned the systematic exclusion of opponents of the death penalty from sentencing^ juries because it "stacked the deck against the petitioner on the issue of penalty. 391 U.S. at 523. If an inordinate tendency to prefer a particular outcome were constitutionally acceptable, the Supreme Court would not have condemned this practice. Yet, the Court recognized that a jury must express the "conscience of the community," id. at 519, and that its performance must be measured against the yardstick of -hat community. Pre-Witherspoon juries failed that test because they were "uncommonly willing to condemn a man to die." Id. at 521. The Fifth Circuit position amounts to a rule that a lesser standard applies to determinations of guilt in capital cases [Cont'd.]28 (iii) The Possibility of Partiality on Guilt — The "Nullification" Argument state is explicit in acknowledging the inconsistency of its arguments: While respondents' position has been that the attitudes dealt with in the surveys and relied on by petitioners are not concrete enough . . . to gauge actual juror behavior . . . [the State's] position is also that the attitude of strong opposition to the death penalty will largely equate with a refusal to convict if the death penalty can be imposed . . . . (Atty. Gen. Br., 19-20). Although it confesses that "[ljittle research has been done on" possible jury nullification by Witherspoon excludables, (id., at 20), the State nevertheless proceeds to claim that the research in the record "tends to support" this claim. (_Id. ) The research in the record does show, of course, that some potential jurors agree that they would be unable to act fairly and impartially at the guilt phase of a capital trial because of their opposition to the death penalty, while others who are now excluded for opposition to the death penalty could be fair and impartial on guilt. The actual figures vary, but the most recent and best studies indicate that a strong majority IV Cont'd. than to determinations of penalty, that a jury that is "uncommonly willing" to convict on capital charges is constitu tional, despite the implicit contrary holding in Witherspoon. There is no justification for this distinction; it is directly refuted both by Beck v. Alabama, 4-4-7 U.S. 625, 638 (1980) (need for extraordinary reliability attaches to the determination of guilt as well as the determination of penalty in capital cases), and by Witherspoon itself. 29 of Witherspoon-excludable jurors could be fair and impartial on guilt. See, e . g . , Ellsworth/Fitzgerald, 1979,(J.A. 736) (9% could not be fair). But petitioners have never claimed that jurors who cannot be fair and impartial on guilt should be per mitted to sit on capital juries, and the studies particu larly the most recent ones — have been careful to identify and exclude such potential jurors. The effects of death- qualification on the.behavior of juries has been demonstrated, repeatedly, after taking into account the inevitable and un contested exclusion of nullifiers. (See, e . Ellsworth, Thompson and Cowan, 1979, J.A. 539-40; Ellsworth/Fitzgerald ^ 1979, J.A. 733; Haney, 1979, J.A. 591; Kadane, 1981, J.A. 799). the article to is clear from the Joint Appendix . . . now awaiting 12/ The State quotes Professor Hans Zeisel as expressing concern Ibout a problem of jury nullification if death-qualification is discontinued. (Atty. Gen. Br., at 23). Here, ^ in o e places in its brief, the State has quoted from Professor Zeisel statements selectively and misleadingly. (See also infra, at The quoted comments are taken from an article published y Professor Zeisel in 1968 before the Witherspoon decision (a fact that is not apparent from the excerpt of which the State cites, at J.A. 347, but which the entire article which appears in Vol̂ . 3 of (see J.A. 404: " . . . Witherspoon v. Illinois hearing in the United States Supreme Court. ) At the time Professor Zeisel wrote these comments, jurors could be excluded merely for possessing "conscientious scruples against the death penalty." Witherspoon, of course, resolved the problem that Professor Zeisel had identified by clearly articulating two separate and narrow bases for exclusion of venirepersons for opposition to the death penalty: to consider the death penalty in any case, and lack of impartial y on guilt. 391 U.S. at 522, n.2l. If there were no other evidence in the record, one might wonder whether this legal change has affected Professor Zeisel's view of this issue, but speculation is unnecessary: Professor Zeisel testified under oath, m the record before this Court, eleven years after Witherspoon, and his opinion on the current "problem" of nullification --in light of Witherspoon and in light of the recent post-Witherspoon research — is unmistakable: "But I want to just reaffirm t e point that whatever this proportion of people is who might pervert the issue of guilt, they are neither at issue in this law court nor at issue in any one of the later studies. (Hovey Tr. 220 ) . 30 At bottom the State is arguing that jurors who state that they would not consider voting for the death penalty in any case cannot be trusted to be fair and impartial in deciding guilt or innocence in a capital case, even though they state under oath, after searching cross-examination, that they would be fair and impartial on that issue. (Atty. Gen. Br., 20-33). This is an argument that has no boundaries. It may be true that some jurors who promise impartiality will not act accordingly, but that fact applies to jurors throughout the entire spectrum of death penalty attitudes. Would it not be safer to exclude all opponents of the death penalty from capital cases on the ground that some of them may deceive the court, either intentionally or unintentionally, about their ability to consider voting for death and to be fair and impartial? And on the other side, why not be safe and exclude all strong proponents of capital punishment, since some of them may be unable to try guilt impartially, but will be unwilling to admit ? If we are concerned about candor, those jurors who forth rightly state that they will be unwilling to consider the death penalty — the law of the State notwithstanding — are better candidates for our trust than many of those who merely say what is expected of them; after all, any juror who wanted to get on the jury by stealth could easily deny holding any fixed views on capital punishment. Witherspoon holds that no juror can be excluded for opposition to the death penalty unless that juror himself makes it "unmistakably clear" that he holds a disqualifying attitude, observing that "[i]t is entirely possible, of course, that even 31 a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and 13/ obey the law of the State," id. at 514-15, n.7. Subsequently, in Adams v. Texas, 448 U.S. 38 (1980), the Court made the proper standard for exclusion even plainer; fair and impartial jurors are entitled in a capital case to take the prospect of a death sentence into account, and to be influenced by it, so long as they state that they can obey their oaths. [T]he Constitution [does not] permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law. Id. at 50. In inviting this Court to rule as a matter of law that a whole class of prospective jurors cannot be trusted, despite their oaths to the contrary, the State is asking the Court to ignore the Supreme Court's articulated standard, 13/ This standard is consistent with the general rule that prospective jurors are presumed to be impartial unless the con trary is clearly demonstrated. See United States v. Jones, 508 F. 2d 1004, 1007 (4th Cir. 1979); Irvin v. Dowd, 366 U.S. 717, 723 (1961). 32 in order to preserve a practice that is demonstrably unfair to capital defendants. 14./ The State cites three cases in support of this argument. One -- Soinkellink v. Wainwright, supra -- is premised on the supposition that the uncommonly greater likelihood of death- qualified juries to convict has no constitutional significance. As we have argued above, this holding is contrary to logic and to a clear line of Supreme Court cases, and should be rejected by this Court as it has been rejected elsewhere. The second case cited, People v. Ray, 252 Cal. App.2d 932 (1967), is in apposite for the simple reason that it pre-dates Witherspoon and reflects the state of California law when there were virtually no constitutional restrictions on a state's power to exclude death penalty opponents from capital juries. (The current state of California law on this issue i s d fscribed by Hovey v. Superior Court, 28 Cal.3d 1, 616 P.2d 1301 (198), a case which includes a detailed discussion of death-qualifica tion, but which the State all but ignores. The third_citation — to McGautha v. California, 402 U.S. 183 (1971) is partic ularly puzzling. The "unitary trial" question in McGautha was not who would determine guilt and penalty in capital cases, but whether a separate penalty hearing was constitutionally required. McC-autha held that a separate hearing was not re quired, but its holding was severely undermined if not effectively reversed — by Furman v. Georgia, 408 U.S. 238 (1972), and by the long series of Supreme Court cases apply ing Furman. The State, oddly enough, seems to inte^Pr®^j ̂ he 1976 Supreme Court death penalty cases — Gregg v.— Georgia, ^ 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); and Jurek v. Texas, 428 U.S. 262 (1976) — as upholding a unitary procedure for determining guilt and penalty. ( j.A . 78). In fact, bifurcated capital trials (in the McGautha sense) have been universal since Furman, and a unitary deter mination of guilt and penalty would probably be held to be inconsistent with the Eighth Amendment requirements for the penalty determination under Lockett v. Ohio, 438 U.S. 586 (1978), if the issue were ever presented to any court. 33 The Value of the Social Scientific Evidenceiv. a. Attitudes and Behavior, And The Work. Of Dr. Steven Penrod ______________ The State makes much of a claim that "Petitioners rely on the view that attitudes affect or cause behavior to a substantial extent." (Atty. Gen. Br., at 46). Not so. Attitudes may indeed "cause" behavior to a greater or lesser extent, but that possibly has little bearing on the legal claims in this case. Petitioners have demonstrated, exhaustively, that the attitudes for which Witherspoon-excludable jurors are excused from service are correlated with (i) other attitudes that bear intimately on the functions of jurors in criminal cases, and (ii) the actual voting behavior of criminal trial jurors. It is irrelevant whether their death penalty attitudes "cause" these differences between death-qualified and excludable jurors, or. whether the other differences "cause" the death penalty attitudes, or whether both are aspects of consistent overall outlooks. Whatever the causal link, if any, the con sequences of the exclusionary practice are the same: removal of Witherspoon excludables disadvantages the defense, and it aids the prosecution in obtaining convictions. Contrary to the State's repeated statements (see,e.g., Atty. Gen. Br., 9,11, 14.-19,28), these biasing effects need not be inferred from any evidence or any assumptions about the relationship between attitudes and behavior in general; they have been demonstrated directly by the studies in the record -- six studies documenting the fact that death-qualified juries are more prone to convict than ordinary juries and half-a-dozen surveys describing the differences in outlook between the two groups of jurors. 34 The State relies heavily on a study by Dr. Steven Penrod (J.A. 324-330; see Atty. Gen. Br., 16-19) which it describes, variously, as "ambitious research" (Atty. Gen. Br., at 19), "extremely important" (id. at 48), and "the only proof beyond opinion currently available." (Id. at 16). Indeed, the State goes so far as to claim that Dr. Penrod's study "knocks the props out from under the petitioners' position. ' (Id., 16-17). Given this billing, the Penrod study certainly deserves some comment. Dr. Penrod recruited volunteers from a Boston jury pool and had them deliberate on four simulated cases. He then examined their verdicts and attempted to correlate them with several attitudes that he measured by administering a questionnaire to the jurors. He found, with a few exceptions, that the attitudes that he examined were poor predictors of the jurors' votes. This is an interesting study, but what bearing does it have on the issues in the present case? Even at first glance the answer seems clear: little or none. As the State itself acknowledges (id. at 18, n .8), Dr. Penrod did not examine the death penalty attitudes of his subjects. The study provides no direct evidence on any material issue before this Court. If that was all there was to be said about Dr. Penrod's work, it would merely seem that the State had oversold an un commonly weak argument. The fact that other attitudes are not correlated with juror behavior would not "knock the props out from under" the claim that death penalty attitudes are so correlated, but it might be indirectly and weakly relevant. But that's not all there is to be said. 35 The State argues that its position is bolstered, somehow, by the fact that Dr. Penrod's work is unpublished. (Atty. Gen. Br., at 48). The logic of this argument escapes us but — more important — its factual premise is false. ’ 15/ Dr. Penrod's study has been published, and is described in Chapter 7 of Inside the Jury, which was co-authored by Penrod and Hastie. And in that chapter, after mentioning the fact that most other attitudes do not predict juror behavior well, Penrod and Hastie discuss the predictive power of death penalty attitudes directly. Their conclusions are the opposite of those the State ascribes to Dr. Penrod: Public opinion polls find that jurors who are strongly opposed to the death penalty tend to be less conviction-prone than jurors who are not strongly opposed (Bronson, 1970, 1980; Harris, 1971; Ellsworth 8 Fitzgerald, 1983). Data from post-trial iinterviews with actual jurors and simulated juror decision-making studies are also consistent with the conclusion that those strongly opposed to the death penalty are likelier to vote for acquittal (Zeisel, 1968; Goldberg, 1970; Jurow, 1971; Ellsworth, Thompson 8 Cowan, 1983). Inside the Jury, supra, at 1.127. b. Simulated Jury Research And The Work Of Professor Hans Z e i s e l ______________ The State also argues strenuously that the District Court's findings on conviction-proneness are faulty because they are based entirely on research using simulated, as opposed to actual, juries (Atty. Gen. Br., 24-26). This argument rests 15/ Indeed, it was published in a book cited by the State itself in its description of Dr. Penrod's qualifications: Inside the Jury (Harvard University Press: Cambridge, Mass., 1983) , which was co—authored by Drs. Reid Hastie and Nancy Pennington. 5ee Atty. Gen. Br., at 16 n.7. Dr. Hastie, of course, was one of the major witnesses for the petitioners. (See J.A. 1214-1442 for Dr. Hastie's testimony in the Grigsby case.) 36 heavily on the State's interpretations of a study by Professor Hans Zeisel; indeed the State's brief includes an argument heading that reads in part: PETITIONERS’ CONVICTION-PRONE JURY ARGUMENT IGNORES THE MAJOR WORK ON THE CORRELATION BETWEEN MOCK JURY AND REAL JURY VERDICTS WHICH WAS DONE BY PETITIONER AVERY'S WITNESS, HANS ZEISEL . . . (Atty. Gen. Br., at 24). The argument is false on two counts: Professor Zeisel does not support their position, and the District Court's findings do not rest solely on jury simulation research. The study that the State relies on was conducted by Dr. Shari Diamond and Professor Zeisel, and was first reported in 1974. (J.A . 348-350). In that paper -- an initial descrip tion of a research project, given at a scholarly conference the authors report that their findings suggest caution in generalizing from research with simulated juries to the behavior of actual juries. The State seizes upon this statement, (Atty. Gen. Br., at 25), but neglects to mention that Dr. Zeisel strongly qualified these tentative findings. (”[W]e do not know the extent to which studies of jury behavior are distorted") (J.A. 350). The State apparently wishes to claim, on the authority of this cautionary note, that Professor Zeisel — a man, in the State's words "whose research is frequently quoted by the Supreme Court” (Atty. Gen. Br., at 25) — agrees with its claim that the research on the conviction-proneness of death-qualified juries is unreliable. Few statements could be farther from the truth. 37 First, the final report on the very study cited by the State contradicts the State's assertion that as a consequence of their failure to reproduce the "felt responsibility" of actual jury service, jury simulation studies "simply have no weight." (Atty. Gen. Br., at 26.) ~ In that final report, a much more detailed and careful report than the two-page summary cited by the State, the researchers report that careful analysis permits them to conclude that the simulated jurors that they examined "were not . . . tainted" by their "aware[ness] that their verdict would not determine the outcome of the trial." Zeisel & Diamond, supra, 30 STAN. L. REV. at 513. Second, and more important, Professor Zeisel was not only a witness at petitioner Avery's trial-court hearing on death qualification; he also testified at length and in great detail in the Hovey case, one of the primary sources of evidence before the District Court. (Hovey Tr. 44-230). This testimony reveals that Professor Zeisel's views on the conviction-prone- ness of death-qualified juries are exceptionally clear, and they are contrary to those implied by the State. 16/ As with Dr. Penrod's work (see supra p.36), the State argues that its position is enhanced somehow by the fact that the Zeisel and Diamond study does not appear in "a regular publication" (Atty. Gen. Br., at 48). Yet, as with Dr. Penrod's work, the premise of this curious argument is false. The study in question is published. See Zeisel & Diamond, "The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court," 30 STAN. L. REV. 491 (1978). 38 But I just want to say, given the difficulties Q-f corning to conclusions about human nature, X would say that there are few things about which I am so certain than this relationship between death-qualification and the tendency to vote guilty. And it is supported by the attitude studies. I don't see how one can sensibly come to doubt it. You see, these cross-examina tions, if you will forgive me, have gone on now for 15 years, and nobody has ever produced a study which shows that this is not true. (Hovey Tr., 163-64.) The State, in its summary of the evidence on conviction- proneness, claims that petitioners' evidence on this point consisted primarily of "five [conviction-proneness] studies using persons divided by death penalty views to decide mock cases." (Atty. Gen. Br., at 9.)(emphasis added). The five conviction-proneness studies are identified as: Wilson, 1964; Goldberg,— 1970, Jurow, 1970.; Harris, 1971 and Ellsworth, Thompson 6 Cowan, 1979. (Id., at 9; see Pet. App. 9a-13a.) This list is incomplete and misleading, for it contains a glaring omission: Zeisel, 1968 (j. A. 402-53; see Pet. App. 8a). This omitted study is by Professor Zeisel himself, on the precise issue before this Court, and based on research on actual jury verdicts in actual felony trials in Brooklyn, New York, and in Chicago, Illinois, rather than on jury simulations. Professor Zeisel's conviction-proneness study -- orus of the more prominent works in the area -- adds a great deal to the force of petitioners' evidence, because it provides real-world confirmation of the findings of the other conviction- proneness studies. It was discussed extensively by the witnesses whose testimony is before the Court and it is cited by every 39 17/ conviction-proneness study that followed it. v. The Constitutional Significance of the Biasing Effects Of Death—Qualification The State argues, finally, that the demonstrated bias in jury attitudes and behavior achieved by death-qualifica tion is not so large as to offend the Constitution. (Atty. Gen. Br. , 26-34-.) As the District Court found, this arguments fails for two reasons: it is unsupported by any facts in the record, and it is unjustifiable as a statement of law (J.A. 117-19). a. The Significance of the Appelbaum Affidavits The State’s argument is based primarily on a series of five affidavits, commissioned by the North Carolina Attorney18/ General's Office and prepared by Dr. Mark I. Appelbaum. 17/ Given its importance and visibility, it is notable that the State omits the Zeisel, 1968 study from its list of the conviction-proneness studies in the record, and never discusses its findings elsewhere in its brief. The State simply cannot ■justify its effort to borrow Professor Zeisel's eminence, and to argue that he supports the State's view that the conviction- proneness studies are valueless because they rest on jury simu lations, when not only are his actual views the exact opposite — as the record unmistakably reveals — but when they are based in part on his own study of actual juries, the very study the State so pointedly ignores. (The State does quote, misleadingly, from Professor Zeisel's speculations in his study on the subject of jury nullification (Atty. Gen. Br., at 23) but it never discusses his methods, his data or his conclusions, or even acknowledges explicitly that these data exist.) 18/ The State also claims that the reported attitudinal differences between death-qualified and excludable jurors are too small to matter. This claim is based on two sets of calculations, both by attorneys for the State: first the State claims that the average difference in pro-prosecution attitudes between these groups in the Ellsworth/Fitzqerald 1979 survey is 11%. (Atty. Gen. Br., at 29.) (This figure is similar to the difference found by Dr. Ellsworth when she constructed an overall index of conviction-proneness for that study and found a disparity that was the equivalent of about 12% (J.A. 1148-1149), although Dr. Ellsworth's index is more informative since it takes the intensity of the respondents' feelings into account.) But is 11% a large difference or a small difference? The State says [Cont'd .]40 Dr. Appelbaum, it appears, is competent to do the mathematical tasks set for him by the State: a variety of statistical cal culations based on specific inquiries from the State's attorney. Essentially, Dr. Appelbaum has recalculated some of the statistical findings of the experts whose testimony is offered by petitioners, on the basis of assumptions given to him by the North Carolina Attorney General. These calculations appear to be mathematically correct, as far as can be determined, but their implications are far from clear. For example, in the Affidavit of August 17, 1982 (j.A . 360-362), Dr. Appelbaum examines the finding of Dr. Hans Zeisel and Dr. Reid Hastie that, given certain assumptions, death-qualification will increase the proportion of convictions by ten percent. Dr. Appelbaum recalculates this finding on the basis of different assumptions supplied by the Attorney General. These recalculations merely demonstrate the obvious, that, by changing the underlying assumption, differences in the propor tion of convictions can be altered. In this case, the propor tion of convictions was reduced, variously, to from 5.9 percent to 1.7 percent. What does this signify? Neither Dr. Hastie nor Professor Zeisel claimed that their exact figures are crucial; they were offered to illustrate an important general 18/ cont'd. it is small, but why? The margin in popular votes in presidential elections rarely exceeds 11%. Are those insignificant differences The State apparently hopes to persuade the Court on this point by the force of its adjectives. Whatever else can be said about the State's calculation of the average difference in pro-prosecution attitudes in the ̂ Ellsworth survey, at least it employed all the attitudinal questions on that survey. Their parallel calculations for the Harris 1971 survey is incomplete and -- as presented — uninterpretable. The State [Cont'd .] principle. Dr. Appelbaum's figures confirm that principle whichever way the assumptions are set, death-qualified juries convict more often. More importantly, however, the record contains no justification for the assumptions used by Dr. Appelbaum. In his calculations, he simply followed the Attorney General's instructions, and he expressed no opinion on the validity of these assumptions. This is not surprising. Unlike the expert witnesses offered, by the petitioners, all of whom were highly qualified researchers in the criminal justice field, Dr. Appelbaum, while undoubtedly competent in his own field, appears to have no familiarity with this area of research, or much less with the specific studies at issue here. Indeed his affidavits repeatedly refer to his complete reliance on the Attorney General's familiarity with the scientific litera ture in the area: "all the statistically significant differences of this sort in studies known to you" (Appelbaum Affidavit, JiAi 36); "which you advise are the reported scores of the only random test of the phenomena of 'conviction-proneness'" (id., emphasis added); "which you have advised comes from a 1981 nationwide Harris Poll (id., emphasis added); etc. The expert Ify Cont'd. has chosen to average the responses by several categories that it constructed itself, and it has come up with claimed differences ranging from 3% to 11-1/2%. (Atty Gen. Br., 29-31). But Harris 1971 (which the State — undoubtedly inadvertently neglected to reproduce in its entirety in the Joint Appendix, as petitioners had requested) includes, literally, dozens of potentially relevant attitudinal questions. Apparently the State has neglected to consider many relevant and important questions (e. g . , 89/c ot death-qualified respondents would trust a police witness some [Cont'd .] A2 conclusions, if any can be derived from the®® affidavits, appear to be those of the Attorney General. As the District Court found, "Dr. Appelbaum is qualified to do the task that he was asked to do; that is to assume facts contrary to the facts found by Dr. Hastie and Dr. Zeisel, and to record his calculations based on these different assumptions. (j . A . 117). But competence at calculations does not produce 10/ Cont'd. or "a lot" vs. 77% of Witherspoon-excludable respondents. As a result, the State's figures on this point simply cannot be said to embody any meaningful "average difference" in attitudes, as measured by this highly complex survey. ig/ For example, in his Affidavit of November 12, 1982 to which Is attached a letter dated October 28, 1982 (J.A. 287-91), Dr. Appelbaum uses two different methods to recalculate the level of statistical significance reported for the findings of the Zeisel 1968 study. One method yields statistically significant findings, the other does not. Neither of these sets of calculations, however, is justified by any familiarity with the nature of the research or the appropriateness of the underlying assumptions; they amount to no more than hypothetical statements without factual underpinnings. By contrast, Dr. Hastie, a recognized authority both on social scientific methodology and on jury research, presented testimony at the Grigsby hearing on several different methods for^calculating the statistical significance of Zeisel's findings -- all of which yield significant results -- and described the theoretical and empirical bases for each set of calculations in careful detail. (J.A. 1323-53; see also id. at 1353 for the District Court's comments on the importance of informed expert testimony on statis tical questions involving this type of research.) 23 20/ expert evidence, ~ as the District Court found in the very next paragraph: It must be remembered that the petitioners' evidence is the only source of information before the court on the central factual issue presented in these cases . . . . (J.A. 118). 20/ The State describes Dr. Appelbaum as a person "whose competence and the correctness of whose work were conceded below by petitioners with the seemingly unimportant caveat that Dr. Appelbaum does no do jury research and that his data came from the Attorney General Office." (Atty. Gen. Br., at 32). This is not quite accurate. Petitioners agree that Appelbaum appears to be competent to do the mathematical calculations he has done, and that these calculations appear to be correct, as far as can be ascertained without live testimony on direct and cross examination. The "seemingly un important" qualifications attached to that statement are (1) that Dr. Appelbaum has, and claims, no expertise in the substantive areas of research at issue here; (2) that Dr. Appelbaum used no data — not even those from studies in this record— but only assumptions, and these assumptions were all supplied by the North Carolina Attorney General. Since these computations are based completely on assumptions supplied by lawyers, it is not surprising that they contain errors We have spotted two errors that deserve brief mention. First, the Attorney General complains about the petitioners' experts use of studies that did not employ random samples. (See, e:_g. , Atty. Gen. Br., 31-32). But randomness is not magic: "If a researcher wants to determine whether grapefruits are larger . . . than lemons, he need only to gather a reasonable number of each fruit, measure them, and compare the results . • .From this comparison, he can confidently say that grapefruits in general are larger . . . than lemons. However, he cannot say that grapefruits are more numerous than lemons. Only if he wanted to test this latter hypothesis would he have to design a technique to obtain each fruit in proportion to its popula tion in the real world." Hovey v. Superior Court, 28 Cal.3d 1, 63 n.109, 616 P.2d 1301, 13k3 n.109. Petitioner* 1s experts never violated this rule; the only estimates of the sizes of groups that they made were based on surveys with random (and hence representative) samples. Second, the State argues that the estimates by Professor Zeisel and Dr. Hastie "are not adjusted to reflect the exclusion of nullifiers . . . which would reduce the impact even more." (Atty. Gen. Br., at 33). This is false. These calculations were based on the Ellsworth, Cowan & Thompson, 1979 conviction-proneness study (Pet. App. lla-12a) and the Ellsworth/Fitzgerald, 1979 attitudinal survey (Pet. App. 5a-6a), both of which carefully excluded nullifiers from the subject pools under study. b. The Legal Question At Issue Even if Dr. Appelbaum's calculations were reliable, their implications would be unclear, to say the least. Does the State claim that some particular level of excess capital con victions is constitutionally tolerable? As the District Court recognized, if death-qualification results in capital convictions that would not otherwise occur, it is unconstitutional whether "only one person out of ten in close cases might lose his life because of it," (J.A. 117), or whether the practice, as "even the state's witnesses concede will unnecessarily threaten the life of an accused in 1% of the trials." (J.A. 118). Recall that these unwarranted convictions will almost certainly occur in close cases, the very cases in which the constitutional guarantees of a fair trial and a neutral jury are most important. Ballew v. Georgia, 435 U.S. 223, 237-38 (1978). The State also argues that petitioners' claim must lose because "WE's [Witherspoon-excludables'] inclusion in jury panels ... might change the outcome in from 1 - 10% of close cases (again with the lower figure being the more realistic)." (Atty. Gen. Br. at 13). Ignoring for the moment the fact that there is no basis in the evidence for this assertion (let alone anything approaching a basis for reversing the District Court's findings of fact), it is striking that the most the State can claim about death-qualifica tion is that it will only produce relatively few wrongful execu tions . The Supreme Court has already rejected a comparable argument in a far less important context — constitutional limits 45 on reductions in the size of juries in misdemeanor cases — it did so in part for a reason that is directly applicable here, the effects of the practice are most unfortunate precisely because they occur primarily in close cases: "Disparities, therefore, appear in only small percentages. Nationwide, however, these small percentages will represent a large number of cases. And it is with respect to those cases that the jury trial right has its greatest value. When the case is close, the guilt or innocence of the defendant is not readily apparent, a properly functioning jury system will insure evaluation by the sense of the community and will also tend to insure accurate fact finding." Ballew v. Georgia, 435 U.S. 223, 237-238 (1978) (footnote omitted). Conclusion In 1968 the Supreme Court held in Witherspoon that a death judgment is unconstitutional if it is imposed by a jury that is more prone to return that judgment than one that represents the entire community. 391 U.S. at 521-522. The Court has re affirmed that holding several times since. See, e.g., Davis v. Georgia, 429 U.S. 122 (1976); Adams v. Texas, 448 U.S. 38 (1980). In 1968 the Supreme Court also found that it could not determine on the record before it whether death—gualified juries are unduly prone to convict. 391 U.S. at 520 n. 18. Sixteen years later, that factual issue has been resolved. The legal principle at issue is simple: the state cannot impose an unusual jury procedure on a criminal defendant if that procedure increases the risk of an adverse judgment. This is not a novel rule. It has been applied to this issue by the Eighth 46 Circuit, Grisby v. Mabry, 637 F.2d 525, 527 (8th Cir. 1980), see also United States v. Harper, ____ F. 2d ____, ---- (9th Cir., April 3, 1984.) (opn. of Fletcher, J.), and it has been applied by the Supreme Court in related contexts. See, e.g., Williams y, Florida, 399 U.S. 78, 101-102 (1970) (six-person juries held constitutional in part for lack of evidence that they are less advantageous to defendants than twelve-person juries); Ballew Georgia, 435 U.S. 223, 236 (1978) (five-person juries unconstitu tional in part because reduction in jury size below six creates "an imbalance to the detriment of one side, the defense."). The only serious question is the factual premise. On the record before this Court, the factual question cna only be answered one way: Death-qualification, as it is now practiced, systematically denudes capital juries of a substantial class of fair and impartial venirepersons who would be less likely to vote to convict than those who remain to serve. This has been the finding of the only two courts that have previously considered a full record of the presently available scientific evidence on this issue — see Hovey v. Superior Court, 28 Cal.2d 1, 616 P.2d 1301 (1980); Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983) on/ In Hovey the California Supreme Court, while accepting all "conclusions of the studies offered by the capital defendant, declined to grant relief because of the absence of any credible evidence in the record on the effects of the exclusion, under California law, of venirepersons who would always vote to impose the death penalty in every case (the so-called "automatic death penalty" or ADP jurors). 28 Cal.3d at 63-64, 616 P.2d at 1343- 1346. Since Hovey various studies on the ADP issue have been completed, and they are in the record here; they all support the Petitioners' contentions. See Kadane 1981, (J.A. 795-853); Harris, 1981, (described in Pet. App. 15a - 16a); Arkansas Archival Study, 1981, described in Pet. App. 16a). In any event that issue is not presented in the present appeal. 47 _ and it is a conclusion that is amply supported by the common knowledge and experience of defense attorneys, prosecutors, and judges. See Grigsby v. Mabry, supra, 569 F. Supp. at 1322. The District Court, in view of this record, made the only possible factual findings, and the only possible legal judgment; those find 22 / ings and that judgment must be affirmed. 22/ Note should be made of the somewhat confused state of the law 3n this issue in the Fourth Circuit. In Barfield v. Harris, 520 F. Supp. 251, 262 (E.D. N.C. 1982), the District Court denied an argument against death-qualification on the basis of a thin factual record. On appeal this Court reviewed that issue — and ggye^al others — with a general statement that we affirm for the reasons stated by the district judge." Barfield v. Harris, 719 F.2d 58, 63 (2th Cir. 1983). Later, in Hutchins v. Woodard, No. 82-8050 (2th Cir., March 9, 1982) a panel of this Court declined to issue a certificate of probable cause in a case raising constitutional arguments against death-qualification.^ Nowhere in this entire sequence of events, however, has an opinion on the merits of the claim been written by this Court. First, there is a curious circularity in the two Barfield opinions. The District Court denied the claim in part because "no federal court" had accepted it. 520 F. Supp. at 262. That is no longer true; it has been accepted both in Grigsby, supra, and in the present case. In addition, when asked to withhold decision pending the outcome of the extensive evidentiary pre sentation in the present case (Keeten) the District Court denied the request "principally for the reason that this case a..d those in the Western District [Keeten et al.] will all undoubtedly reach the Fourth Circuit, which has not spoken on the issue and which will have full benefit of the record rendered in the Western District cases." Id. at 262 n.6. In fact this Court did not have the benefit of the Keeten opinion, let alone the Keeten record, when it decided Barfield. As a consequence it affirmed the case "for the reasons stated by the trial judge" despite the ract that the trial judge obviously desired guidance from the Circuit. Important constitutional issues cannot be resolved by that sort of default. Second, the three separate opinions written by the Court in Hutchins make it explicit that the issues here remain unresolved. Judge Murnaghan, speaking for himself alone, did express doubts about the merits; he suggested that the differences in the con- viction-proneness that have been proven here might simply be caused by the fact that a Witherspoon-excludable juror might "vote for acquittal despite overwhelming proof of guilt" in order to preclude a possible death sentence. Hutchins, supra, Slip. Op. at 17. This is a reasonable misunderstanding that can be easily 28 22/ (Continued) corrected by reference to the record: (1) The difference in conviction-proneness between these two types of jurors is present in non-capital cases as well as capital cases (see, e. g., Zeisel, 19687“J.A. 402; Harris, 1971, described in Pet. App. 10a - 11a). This difference seems to be due in part to the fact that these two types of jurors differ in two ways that affect all cases, their evaluation of the relative credibility of defense and prosecution witnesses, and their interpretation of the meaning of reasonable doubt (see Ellsworth Witness Credibility Study, 1979, J.A. 567-74; Ellsworth Post-Deliberation Follow-Up Data, 1979, j.A . 577-80). (2) The newest and best studies in the record carefully exclude from consideration all potential jurors who might nullify on guilt because of their opposition to the death penalty. See, e.g., Ellsworth, Thompson & Cowan, 1979, (J.A. 537_52). Moreover, Judge Murnaghan also emphasized that he did not intend to prejudge the present case (Hutchins, supra, Slip Op. at 13), and that his opinion was independently based on two separate additional grounds: (i) that a favorable ruling on the death—qualification issue would not help Hutchins, since it would only bear on the question of guilt, and since "it certainly amounts to the law of the case that the issue of [Hutchins ] guilt or innocence is no longer open for consideration (id̂ . at 15-16 n.10); and (ii) that Hutchins' successive habeas corpus petitions amounted to an abuse of the writ. Id. at 11. Judge Phillips concurred on the grounds that Hutchins had abused the writ and in any event could not benefit from a favorable decision or the present issue could help him "given the undisputed and apparently indisputable evidence" on his guilt. Id. at 25. Judge Sprouse concurred resting solely on the abuse of the writ. Id. at 26. In short, one judge in Hutchins, speaking for him self alone, expressed doubts on the merits of this issue; these doubts appear (not surprisingly) to be based on a misunderstanding of the Keeten record, and are relevant to only one of three independent and adequate bases for his decision in Hutchins. All three judges in Hutchins, however, agreed that thie issues pre sented here are now ripe for review on this complete factual record, free of controlling precedent. 49 II THE DISTRICT COURT CORRECTLY HELD THAT DEATH-QUALIFICATION PROCEDURES DENIED PETITIONERS' SIXTH AND FOURTEENTH AMEND MENT RIGHTS TO A JURY SELECTED FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY____________________ _________ The District Court also held that the process of death- qualification violated petitioners' Sixth Amendment right to a jury comprised of a representative cross-section of the community (J.A. 123-29), See, e.g., Taylor v. Louisiana, 419 U.S. 522 (1979); Duren v. Missouri, 439 U.S. 357 (1979) , based on two findings. First, that Witherspoon excludables, those fair and impartial jurors excluded from guilt trials * because of their death penalty attitudes, "share a unique set of attitude toward the criminal justice system," (J.A. 124-25); and second, that those attitudes are not represented by other, remaining jurors, including persons who are generally opposed to the death penalty, but are willing to consider it in some cases." (J.A. 125). These conclusions are based in part upon overwhelming scientific evidence: half a dozen attitudinal surveys that conclusively demonstrate the uniqueness of the excluded group. (See J.A. 125; Pet. App. la-6a). But the findings also rest on the very legal definition of the group; noting that the ex cluded venire persons "were originally characterized as a legally significant group by the Supreme Court in Witherspoon v. Illinois, (J.A. 124), the District Court goes on to observe that "[i]t is hardly surprising to find that persons unwilling to impose the death penalty share a distinct set of values and attitudes," since "it is for this very reason that the state has excluded them from capital trials." (J.A. 126). And "'certainly, [n]o 50 one else will represent their strong viewpoint on the jury in their absence. Grigsby v. Mabry, supra, [569 F. Supp.] at 1382, State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980)(Exum, J., dissenting)." Since there is no question that fair and impartial jurors who would never consider a death sentence are systematic ally excluded from the eligible pool, the District Court found that petitioners had met their burden of proving a prima facie violation of the Sixth Amendment cross-section requirement (J.A. 127-28), and that the State failed to meet the heavy burden of justifying an exclusionary jury practice that has such an anti democratic effect. (J.A. 129-31). We will not review the District Court's opinion on this issue in detail, since space is limited and the opinion speaks well for itself. Rather we will confine ourselves to answering several points put forward in response by the State. The State relies heavily on the argument that "Lockett v. Ohio holds . . . that Wes [Witherspoon excludables] are not a group for a fair corss-section analysis." (Atty. Gen. Br., at 35)(Capitalizations omitted). Not so. In Lockett v. Ohio, 438 U.S. 586 (1978), four venire persons were excused because they made it "'unmistakably clear . . . that their attitude twoard the death penalty would prevent them from making an impartial decision as to the defendant's guilt.'" Id. at 596, quoting Witherspoon, supra, 391 U.S. at 522-23. The Court held that "[nlothing in Taylor [v. Louisiana] . . . suggests that the right to a representative jury include the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." 438 U.S. 51 at 596-97. Petitioners have no quarrel with the Lockett rule. The State, however, tries to force this case into the Lockett mold by a familiar sleight of hand: Lockett sanctioned the exclusion only of jurors who had made it "unmistakably clear that they would not be fair and impartial. The State now claims that this holding governs here, since none of the ex cluded jurors "said that he or she could be impartial," (Atty. Gen. Br., at 36), in terms that satisfy the State on appeal. Yet absent affirmative statements by the excluded jurors that they could not be impartial, no presumption of bias can be inferred. We have dealt with the State's unorthodox attempt to create such a presumption, supra, 25-28. The State attempts to bolster this argument in three ways. First, it relies again on the supposed danger of nulli fication if fair and impartial Witherspoon excludables are per mitted to serve, and once again it cites Spinkellink v. Wain- wright and a few pre-Witherspoon case. (Atty. Gen. Br., at 46). The argument here is no better than the one we have discussed above when it was advanced in an attempt to counter the convic— tion-proneness point. Second, the State puts forth the remark able argument that theDistrict Court should be reversed because "current juries and venires are already chosen to mirroring the community than they need to be." (Atty. Gen. Br., at 35) (Capitalization omitted). The basis for this argument appears to be the factual claim that "[e]ven without WEs [Witherspoon excludables], jury panels now appear to include up to 89% of the population," (id., at 38). This is an utterly unsupportable view of Sixth Amendment cross-section requirements; under it, the 52 State could presumably argue that the exclusion of blacks is constitutional in a state in which blacks constitute only 11 percent of the population since "even without blacks," juries would "represent 89% of the population." Finally, the State again attempts to undercut the evidence in the record by recomputations performed by attorneys on appeal rather than by experts at trial. (See Atty. Gen. Br., 39-40). These recomputations are subject to all of the problems that we have described for the earlier set, and more so, since they are — as far as we can follow — no less arbitrary but 23 / more complex” The State's effort to make this point puts it at odds not only with an unimpeached and uncontroverted showing by petitioners and District Court findings on that showing, but also with testimony by the State's own expert, Dr. Gerald Shure: [T]he evidence presented suggests that in fact a death-qualified juror is likely to be more biased in certain respects. At the level of attitudes, I think it has been demonstrated, particularly in this Ellsworth study. ££/ 23/ In some of these recalculations the State uses an 11% figure for the proportion of Witherspoon excludables in the population and then argues that "the 11% figure does not take into account the exclusion of nullifers" (Atty. Gen. Br., at 39), which pre sumably could make the differences even smaller. This is a meaningless criticism, since 11% is the State's own manufactured figure, and since petitioners most recent studies have all been careful to take nullifiers into account and to define the exact proportion of fair and impartial Witherspoon excludables in correct legal terms. 24/ The State also would dismiss the disproportionate impact of death-qualification on blacks and women as "not constitutionally significant in the context of these cases." (Atty. Gen. Br., at 41). Even if that were accurate, the State would have missed the point. The general, systemwide effect of death-qualification on the representation of minorities on capital juries would properly be a factor in this Court's consideration of the consti- tionality of the practice, irrespective of its impact in a particular case. See, e.g., Ballew v. Georgia, 435 U.S. 223 (1978) 53 _24/ (Con't.) Moreover, to the extent that the pattern of exclusion in the cases before this Court is significant, the record here contains dramatic examples of this problem of disproportionate exclusion. Nine of the twelve Witherspoon excludables in Averv, for example, were black, far higher than the black proportion of the Charlotte, North Carolina area where Avery was tried. (See Atty. Gen. Br., at 6). Eight women, but only one man, were excluded in Keeten. (Id. at 7). These figures are consistent with the overwhelming evidence presented by petitioners on this point. (See summary graphs at J.A. 877-78). 5k PART II ARGUMENTS FOR LARRY DARNELL WILLIAMS I. THE BIASING EFFECT OF DEATH-QUALIFICATION PROCEDURES IS UNACCEPTABLE WHEN THE DEFEN- DANT IS SENTENCED TO DIE ________________ Part of the State's argument is that the biasing effect of the death-qualification process is too slight to create a consti tutional violation (Atty. Gen. Br., at 31), a proposition which we have refuted above. Williams argues separately here, how ever, to emphasize that the State's burden to justify these prac tices is even greater with respect to Williams' case, since he is under a sentence of death, while the other cases involve sentences of life imprisonment. Trial procedures which may be constitutionally adequate to imprison a person may be insuffi ciently reliable under Eighth Amendment standards to permit the 25/ taking of his life. In case after case the Supreme Court has found wanting any procedure which in any way tends to undermine the reliability of 26/ a decision to put someone to death. In Beck v._Alabama, 447 As Justice Harlan said, concurring in Reid v. Covert, 354 U.S. 1, 77 (1957): I do not concede that whatever process is "due" an offender faced with a fine or a prison sen tence necessarily satisfies the requirement of the Constitution in a capital case. The dis tinction is by no means novel ... nor is it negligible, being literally that between life and death. 2€/ Woodson v. North Carolina, 428 U.S. 280, 305 ( 1976 ), Gardner v. Florida, 430 U.S. 349 (1977); Lockett v. Ohio, 438 n s. S86 (1978); Beck v. Alabama, 447 U.S. 625 (1980); cf., Enmund v. Florida, 458 U.S. 782," 827-28 ( 1982) (O'Connor, J., dissenting). U.S. 625 (1980), for example, the Court closely scrutinized and condemned a guilt phase rule because it could reasonably be seen to affect the reliability of the jury's verdict and because the 27/ defendant had received a death sentence. Similarly, when the Supreme Court invalidated the death penalty for federal kidnapping, because the statute tended to encourage guilty pleas, United States v. Jackson, 390 U.S. 570 (1968), it was only those who had been sentenced to death who were granted relief, not those who plead guilty. Brady v. United States, 397 U.S. 742 (1970); Parker v. North Carolina, 397 U.S. 790 (1970). The jury selection procedure employed in Larry Williams case, as we have shown earlier, "inevitably ... enhance[d] the risk of an unwarranted conviction[,] ... a risk [which] cannot be tolerated in a case in which the defendant's life is at stake." Beck, 447 U.S. at 637. Whatever this Court's ultimate judgment about the acceptability that risk in non-capital cases, its effect in a capital case cannot be permitted. Williams' conviction and ensuing death sentence are therefore unconstitu tional . 27/ The Court held that the Alabama preclusion statute at issue In Beck "enhance[d] the risk of an unwarranted conviction," 447 U. s . at 638 (emphasis added), and therefore tainted the death sentence just as would "procedural rules that tend to diminish the reliability of the sentencing determination." Id- 56 II. A JUROR WHO INSISTS THAT SHE IS "NOT SURE" AND "NOT POSITIVE" THAT SHE COULD RECOMMEND THE DEATH PENALTY IS NOT IRREVOCABLY COMMITTED TO VOTE AGAINST DEATH SO AS TO PERMIT HER TO BE EXCUSED FOR CAUSE FROM THE VENIRE------------- At the trial of defendant Larry Williams, forty-nine jurors were called and examined before twelve were selected to hear the evidence. Mrs. Nancy Melton was the twentieth juror called. Over objection, the trial court granted the State's motion to strike her for cause because of her scruples against capital punishment. (J.A. 176d). The District Court held that striking Mrs. Melton from the venire was improper under Witherspoon v.. Illinois, 391 U.S. 510 (1968), and its progeny, thus requiring that the defendant's death sentence be vacated. (J.A. 164-175). After explaining that a verdict of guilty of first degree murder would require the jury to recommend a penalty of life imprisonment or death, the trial court asked Mrs. Melton whether she could fairly determine the defendant's guilt or innocence in accord with the law. She said she could. (J.A. 176b-176c). She was asked twice whether she could, in accord with the law and the facts, recommend a sentence of death. She said that she "was not sure" and that she "was not positive" that she could. She said that she had conscientious beliefs about the death penalty. When asked a third time whether she could follow the law and return a verdict recommending death if the jury's conclusions called for it, she replied once more, "I'm not sure that I could." (J.A. 176c-176d). Witherspoon established strict limits on the exclusion of prospective jurors in a capital trial: 57 The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceed ings . 391 U.S. at 522 n. 21 (emphasis in original). Consequently, only those prospective jurors who make it, unmistakably clear (1) that they would automat ically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impar tial decision as to the defendant's gui11[...] 391 U.S. at 522-523 n.21 (emphasis in original), can be consti tutionally excluded for cause. These limits were further explained in Adams v.Texas, 448 U.S. 38 (1980). In Adams, the Supreme Court held that exclusion of jurors unable to state that the death penalty would not affect their verdict was in violation of Witherspoon. In so holding, the Court stressed that Witherspoon did not provide a basis for excluding any prospective juror. It is rather a limitation of the State's power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on "any broader basis" than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. 448 U.S. at 48. As for jurors improperly excluded because they could not say positively whether their deliberations would be affected, the Court went on to say: But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or 58 an inability on the part of the jurors to follow the court's instructions and obey their oaths regardless of their feelings about the death pen alty. 448 U.S. at 50 (emphasis added). Thus, it is clear from Witherspoon and Adams that exclusion of a juror who is unable to affirmatively say one way or the other whether she can, in accord with the law and the facts, vote for death is not equivalent to a showing that the juror is unable or unwilling to do so. Mrs. Melton stated no more than that she did not know whether she could vote for death in accord with the law and facts. She never said she was unwilling or unable to do so. She did not make it unmistakably clear that she would automatically vote against the death penalty regardless of the evidence. Exclusion of such a juror is a clear violation of Witherspoon and Adams. Despite the clear language in Witherspoon and Adams, the State has argued that it is entitled to exclude those jurors who do not affirmatively state that they are willing to vote for death in accord with the law and the facts. In support of this argument, the State has asserted that all of the cases dealing 28/ with uncertain jurors, save one, support its position. The State relies on two cases from New Jersey, three from Oklahoma, one from Louisiana, one from Texas, and one from Kentucky. Only 28/ It cites: State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968) State v. Wilson, 57 N.J. 39, 269 A.2d 153 (1970); Justus v_;_ ̂ State, 542 P.2d 598 (Okla. Cr. 1975), death sentence vacated on other qrounds, 428 U.S. 907 (1976); Williams v. State, 542 P.2d 544 (Okla. Cr. 1975), death sentence vacated on other grounds, 428 U.S. 907 (1976); Davis v. State, 665 P.2d 1186 (Okla. Cr. 1983); State v. Ross, 343 So.2d 722 (La. 1978); Gall v_.— Common^ wealth, 607 S.W.2d 97 (Ky. 1981); Villareal v. State, 576 S.W.2d 59 The other cases have eitherthe Kentucky case favors the State, been vacated after Witherspoon, do not apply to a situation like the instant one, or do not stand for what the State claims for them. The State relies most heavily on State v. Mathis, supra, and Justus v. State, supra. In Mathis, the juror stated that he could not definitely say whether he was unable to vote for a death sentence. The New Jersey court held that the juror was properly excluded because he did not affirmatively state that he would judge the case fairly. State v . Wilson, supra, relies solely on Mathis. After Wilson was decided, the United States Supreme Court vacated the death sentence in Mathis on Wither spoon grounds, Mathis v. New Jersey, 403 U.S. 946 (1971), a fact not mentioned in the State's brief. The first two Oklahoma cases relied on by the State, Justus v. State, sucra, and Williams v. State, supra, were companion cases. The language quoted in the State's brief is taken out of context. In Justus, the Oklahoma Court ruled that Witherspoon did not apply to Oklahoma because Oklahoma had a mandatory death penalty and the concerns expressed in Witherspoon, that a jury exercising discretion on the life/death decision must act as the conscience of the community, did not apply. The court then went on to examine the jurors in Justus and Williams based on a lower standard of exclusion that permitted the State to excuse jurors _2S/ Continued 51 (Tex. Cr. Apo. 1979). The State asserts that there is only one case in the‘defendant's favor, State v. Pruitt, 479 S.W.2d 785 (Mo. 1982). As will be shown below, the State is mistaken. 60 for cause on a basis of potential bias. It was within this con text that the court stated that the State was entitled to excuse the jurors in question. In the other Oklahoma case, Davis v. State, supra, one of the jurors gave a series of conflicting and confusing answers. She began by saying that she believed she could impose the death penalty, then said she didn't know if she could, then said that she couldn't under any circumstances, then said she did not think she could, then said she possibly could in some cases, and finally, when a definite yes or no was demanded, said that she could not. The court in Davis ruled that, in light of her con fusing and conflicting answers, the excusal was not error. The decisions in Justus and Davis have been recently dis cussed by the Oklahoma Court of Criminal Appeals in a case much like the instant case. In White v. State, 674 P.2d 31 (Okla. Cr. 1983), a case also not cited in the State's brief, the juror involved originally stated that she was not opposed to capital punishment but did not think she could vote to impose it. Dur ing extensive questioning by the prosecutor and trial judge, the juror repeatedly said that she just didn't know whether she could impose a death verdict. She was excused for cause. On appeal, the State argued that the excusal of this juror was proper under Justus and Davis. The Oklahoma Court of Crim inal Appeals responded as follows: The State argues that Mrs. Graham's equivocal responses were analogous to the responses of two veniremen in Davis v. State, 665 P.2d 1186 (Okl. Cr. 1983). In that case, however, the leading questions asked by counsel for both sides served to confuse the matter. The majority of 61 this Court determined from a review of the examinations of the veniremen in ity that the veniremen's answer satisfied the Witherspoon concerns. In the present case, ̂ however, despite the trial court's painstaking efforts, Mrs. Graham did not give a sufficiently definitive response to disqualify as a juror. See Coleman v. State, 670 P.2d 596 (Okl. Cr. 1983). The State has also argued that Mrs. Graham s responses were quite similar to those made by venireman in Washington v. State, 568 P.2d 301 (Okl. Cr. 1977). This Court's reasoning in that case, however, was based on Justus v^ State, 542 P.2d 598 (Okl. Cr. 1975), which held that Witherspoon did not apply to 21 O.S. §§701.1 to 701.6 (now repealed). In Justus, we stated that since the death penalty was the only pos sible punishment for one convicted of Murder in the First Degree under 21 O.S. §§701.1 to 701.6 now repealed), a venireman could be properly excused on the grounds less than required under Witherspoon, because the concerns affected his ability to impartially determine guilt, v. Branch, 554 P.2d 823 (Okl. Cr. 1976), and the Supreme Court cases cited therein; the repeal of 21 O.S. §§701.1 to 701.6; and the enactment of 21 O.S. 1981, §701.7 et seq. ren der inapplicable Justus and Washington to Witherspoon issues under the present statute. 674 P.2d at 35. The court held that the uncertain juror was improperly excluded and that the error was not rendered harmless by the State’s failure to use all of its peremptory challenges. In the Louisiana case, State v. Ross, supra, also decided under a mandatory death penalty statute, the juror said he used to be opposed to the death penalty, but didn't know what his present position was, and was unable to say whether he could find the defendant guilty knowing that there was an automatic death penalty. The Louisiana court stated that it was not con vinced that this excusal was improper, but it did not have to deal with the issue because the death sentence was vacated under Roberts v. Louisiana, 428 U.S. 325 (1976). 62 In the Texas case, Villareal v. State, supra, when the juror, asked if she could impose a death verdict, replied "I don't think that I could do that," the court held that the exclusion of this juror was proper. An "I don't think so" juror presents entirely different issues from the one involved here. See Barfield v. Harris, 540 F. Supp. 451 (E.D. N.C. 1982), aff'.d, 719 F.2d 58 (4th Cir. 1983); Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981), cert, denied, 455 U.S. 1003 (1982); Williams v._ Maggio, 679 F.2d 381 (5th Cir. 1982), cert, denied, --- U.S. ---, 77 L.Ed.2d 1399 (1983); Witt v. Wainwright, 707 F.2d 1196 (11th Cir. 1983), cert, granted, 52 U.S.L.W. 3786 (May 1, 1984); O'Brvan v. Estelle, 714 F.2d 365 (5th Cir. 1983); McCorquodale v. Balkcom, 721 F.2d 1493 (11th Cir. 1983) (en banc); Darden v^ Wainwright, 725 F.2d 1526 (11th Cir. 1984) (en banc). Contrary to the State's assertion, there are a number of other cases, in addition to State v. Pruitt, where the excusal of an uncertain juror was held improper under Wi therspoon. State v. Szabo, 94 111.2d 327, 447 N.E.2d 193 (1983) (juror had "some doubts" as to whether she could sentence someone to die); White v. State, supra (juror said she did not know if she could sentence someone to die); People v. Washington, 80 Cal. Rptr. 186, 458 P.2d 479 (1969) (juror said she could not make up her mind, doubted whether she could, and she was not really decided); People v. Vaughn, 78 Cal. Rptr. 186, 455 P.2d 122 (1969) (juror unsure, afraid her feelings would prevent her from imposing a death sentence and could not say for sure whether there was any case where she could); People v. Goodridge, 76 Cal. Rptr. 421, 63 452 P.2d 637 (1969) (juror did not know whether she could or not); State v. Adams, 76 Wash.2d 650, 458 P.2d 558 (1969), 29/ (juror did not know). In light of the above, the excusal of Mrs. Melton was improper. The improper excusal of just one juror renders the death sentence invalid. Davis v. Georgia, 429 U.S. 122 (1976). The State has argued, without citing any authority, that the improper excusal of Mrs. Melton was harmless because the State had unused peremptory challenges. The State's argument is without merit. Davis v. Georgia, supra; Moore v. Estelle, 670 F .2d 56, 57 (5th Cir. 1982); White v. State, supra; Darden v. Wainwright, supra; Witt v. Wainwright, supra; Hance v. 2ant, 696 F .2d 940, 956 (11th Cir. 1983); Barfield v. Harris, 540 F. Supp. 451, 456 (E.D. N.C. 1982), aff'd, 719 F.2d 58 (4th Cir. 1983); Chandler v. State, 442 So.2d 171, 174-75 (Fla. 1983); Blankenship v. State, 280 S.E.2d 623 (Ga. 1981); People,.̂ Valasquez, 162 Cal. Rptr. 306, 606 P.2d 341 (1980); Grijalva State, 614 S.W.2d 410 (Tex. Crim. App. 1981); Pierson v. State, 614 S.W .2d 102 (Tex. Crim. App. 1981). The district court decision vacating the death sentence imposed against defendant Larry Williams must be affirmed. 29/ in State v. Adams, supra, the court held that the exclusion 3f the "I don't know” juror was improper but not reversible^ error because only one juror was improperly excused. Adams death sentence was later vacated by the United States Supreme Court. Adams v. Washington, 403 U.S. 947 (1971). See, also, Davis v. Georgia, supra. 62 CONCLUSION The judgment of the District Court should be affirmed. Dated: May 15, 1984.. Respectfully submitted, JACK GREENBERG JAMES M. NABRIT, III JOHN CHARLES BOGER 99 Hudson Street New York., New York 10013 JAMES C . FULLER, JR• Suite 913 .Branch Banking & Trust Building Raleigh, North Carolina 27602 SAMUEL R. GROSS Stanford Law School Stanford, California 94305 JAMES E. FERGUSON, II THOMAS M. STERN951 South Independence Boulevard Charlotte, North Carolina 28202 ADAM STEIN ANN B. PETERSEN Post Office Box 1070 Raleigh, North Carolina 27602 ANTHONY G. AMSTERDAMNew York University Law School 40 Washington Square South New York, New York 10012 \ 6 5 APPENDIX A APPENDIX A This Appendix is provided for the convenience of the Court to summarize the major studies that were presented to the District Court. Record references are provided to the text of each study, to relevant exhibits, and to relevant expert testimony. The studies are divided into four major categories: (i) studies on the relation between subjects' death penalty attitudes and their demographic characteristics and other criminal justice attitudes (Appendix A, pp. la-7a); (u) studies on the relation between subjects' death penalty attitudes and their behavior as jurors in actual or simulated trials (Appendix A, pp. 7a-12a); (iii) other related studies on the relationship between death penalty attitudes and behavior in capital cases (Appendix A, pp. 12a-15a); and (iv) studies on the incidence of "automatic death penalty jurors" in the population (Appendix A, pp. 15a-17a). X. ATTITUDINAL AND DEMOGRAPHIC SURVEYS 1. BRONSON/DENVER, 1970 AUTHOR: BRONSON, Edward C. TITLE: "On the Conviction Proneness and Representativeness of the-Death-Qualif ied Jury: An Empirical Study of Colorado Veniremen," 42 Colo. L. Rev. 1 (1970). RECORD REFERENCES: Joint Appendix Vol. IV, 625-656^(text); Grigsby Exhibits EB-3 through EB-8, EB-79 and EB-80 (charts); *The Petitioners' exhibits, in both the Grigsby Record and in the Hovey Record were marked according to the initials of the witness during whose testimony they were presented in evidence; _ thus, for example, Grigsby Exhibit EB-15 is the fifteenth exhibit presented during the testimony of Dr. Edward Bronson at the Grigsby hearing. (In some cases, exhibits that were^discussed^by more than one witness bear multiple markings; e *g • , EB —2/RH—7 would indicate that the second exhibit discussed by Dr. Bronson la Grigsby RT 423-449 (testimony of Dr. Bronson), Joint Appendix Vol. VII, 1291-1292 (testimony of Dr. Reid Hastie). SUMMARY: This was the first study to examine the relationship between death-penalty attitudes . and other attitudes relating to the administration of criminal justice. The respondents in this survey were 718 Colorado venirepersons. Each respondent was asked whether he or she "strongly favor[ed]," "favor [ed]", "oppose[d]" or "strongly oppose[d]" the death penalty. Each respondent was also asked five questions about his or her attitudes on criminal justice issues. Interviews were carried out, in person and by telephone, by trained students from the University of Colorado, in 1968 and 1969. The Bronson/Denver^, 1970 survey shows a consistent correlation between attitudes on the death penalty and attitudes on other criminal justice issues. On each of the five questions, the stronger the respondent's support for the death penalty (as measured on Bronson s four- point scale), the stronger their support for positions most favorable to the prosecution. 2. BRONSON/CALIFORNIA, 1980 AUTHOR: BRONSON, Edward C. TITLE: "Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California," 3 Woodrow Wilson L. Rev. 11 (1980) . RECORD REFERENCES: Joint Appendix Vol. IV, 661-684 (text), Gr iqsby Exhibits EB-11 through EB-26 and EB-81 through EB-84 (charts); Grigsby RT 463-492 (testimony of Dr. Bronson); Joint Appendix Vol. VII, 1292-1294 (testimony of Dr. Reid Hastie). was also the seventh exhibit discussed by Dr. Reid Hastie.) 2a SUMMARY: The studies grouped together in Bronson/California, 1980 are similar in methodology and results to the Bronson/Denver, 197,0 survey. The first of these studies, Bronson/Butte County, 1980 , was conducted in 1969-1970. Seven hundred and fifty-five people from Butte County, California, jury venires were interviewed over the telephone by students at the California State University at Chico. As in Bronson/Denver, 1970, respondents were asked to indicate their position regarding the death penalty on a scale from "strongly favor" to "strongly oppose." They were also asked whether they agreed or disagreed with seven statements: five that were nearly identical to the one used in Bronson/Denver, 1970, and two additional criminal justice items. The findings of the Butte County survey closely parallel those in Bronson/Denver, 1970: the stronger the endorsement of the death penalty, the higher the level of agreement with pro-prosecution statements. Following the Butte County study, Professor Bronson administered a slightly modified questionnaire to a sample of 707 venirepersons from Los Angeles, Sacramento and Stockton, California. (Bronson/Los Angeles, 1980). These interviews were carried out in late 1974 and early 1975. Once again, the data showed a consistent pattern: the more strongly the respondents favored the death penalty, the more likely they were to endorse pro—prosecution positions, and attitudinal differences between the "strongly oppose" group and the other three groups combined were marked. In a followup survey on some 400 Butte County prospective venirepersons in June 1971, Bronson found that 93% of chose who 3a "strongly opposed" the death penalty would be legally excludable under Witherspoon. 3. HARRIS, 1971 AUTHOR; LOUIS HARRIS & ASSOCIATES, INC. TITLE: Study No. 2016 (1971). RECORD REFERENCES: Grigsby Exhibits CH-17, EB-32 and RH-9 (text); Grigsby Exhibits EB-33 through EB-63, EB-87 and EB 88 and Joint Appendix Vol. V, 861-867, 875-876 (charts); Grig sby 510-545 (testimony of Dr. Edward Bronson); and Joint Appendix Vol. VII, 1295-1298 (testimony of Dr. Reid Hastie). RT SUMMARY. Harris, 1971 is a detailed national opinion survey on attitudes toward the death penalty, and the first study in which a direct comparison can be made between respondents who are death-qualified and those who are excluded by Witherspoon criteria. It was administered in person to a representative sample of 2,068 respondents drawn from the adult population of the United States in 1971. The findings of the Harris, 1971 survey parallel those of the Bronson surveys, and greatly extend them. In response to dozens of questions on their attitudes toward various aspects of the criminal justice system, death-qualified respondents were consistently more likely to favor the prosecution's position than Witherspoon-excludable respondents. Harris, 19 71 also found that more blacks than whites would be excluded from jury service by death qualification '(46% vs. 29%), and more women than men (37% vs. 24%). (Har r is, 1971 also collected data on the voting behavior of the respondents as jurors in criminal trials; see infra, p. 10a). 4a 4 . NATIONAL POLL DATA AUTHOR: LOUIS HARRIS & PUBLIC OPINION (Gallup) ASSOCIATES, INC.; AMERICAN INSTITUTE FOR AND NATIONAL OPINION RESEARCH CENTER TITLE: Various national polls from 1953 through 1978 partially summarized in: Smith, Tom W. "A Trend Analysis of Attitudes Toward Capital Punishment, 1936-1974," in James A. Davis (ed.) Studies of Social Change Since 1948, National Opinion Research Center, Report 127B, Chicago (1976). RECORD REFERENCES: Grigsby Exhibit EB-91 ( text) ;^Grigsby^^ nno Exhibits EB-92 through EB-130 and Joint Appendix Vol. V, 877-878 (charts); Griqsby RT 583-593 (testimony of Dr. Edward_Bronson); and Joint Appendix Vol. VII, 1436-1438 (testimony of Dr. Reid Hastie). SUMMARY: Numerous surveys of the national population have established two major demographic facts about attitudes toward the death penalty: (1) Since 1953, women have consistently opposed the death penalty in greater proportions than men. (2) Since 1953, blacks have consistently opposed the death penalty in greater proportions than whites and that racial gap has grown steadily, from a difference of 8% in 1953 to 27% in 1978. 5. ELLSWORTH/FITZGERALD, 1979 AUTHORS: ELLSWORTH, Phoebe C.; and FITZGERALD, Robert TITLE: "Due Process vs. Crime Control: Death Qualification and Jury Attitudes," published in 8 Law and Human Behavior, Issue 1- 2, pp. 31-53 (1984). RECORD REFERENCES: Joint Appendix Vol. i v , 732-748 (text_;_ pre publication draft); Joint Appendix Vol. IV, 791-794, and Vol. V, 868-874 and 882-884 (charts); Joint Appendix Vol. VI, 1069-1155 (testimony of Dr. Ellsworth); Grigsby RT 546-564 (testimony of Dr. Bronson); Joint Appendix Vol. VII, 1298-1314 (testimony of Dr. Reid Hastie). SUMMARY: Ellsworth/Fitzgerald 1979 is the most sophisticated of the surveys that have examined the relationship between death- qualification and juror attitudes. The respondents in 5a Ellsworth/Fitzgerald, 1979 were a probability sample of 811 jury- eligible adult residents of Alameda County, California, in 1979. The sample was drawn, and the subjects interviewed, by the Field Research Corporation of San Francisco, an independent professional polling organization. The respondents in the Ellsworth/Fitzgerald,, 1979 survey were asked carefully tailored questions that embody the two prongs of the Witherspoon standard: whether they would consider voting to impose the death penalty, and whether they could be fair and impartial in determining guilt or innocence in a capital case. Respondents who could not be fair and impartial ("nullifiers") were excluded from the analysis; of those who could be fair and impartial (717 out of the total of 811), 17.2% were Witherspoon excludable. Respondents were asked 13 attitudinal questions on criminal justice issues; on each, death- qualified respondents were more favorable to the prosecution, more crime-control oriented, and less concerned with constitutional protections for suspects than were excludable respondents. Most differences were sizeable and highly statistically significant. The survey also found that more blacks than whites are excluded by death-qualification (25.5% vs. 16.5%), and more women than men (21% vs. 13%). 6. PRECISION RESEARCH, 1981 AUTHOR: PRECISION RESEARCH, INC. TITLE: Precision Research Survey. RECORD REFERENCES: Grigsby Exhibit DE-1 (text); Gr igsby RT 1301- 1319 ("testimony of Mr. Dale Enoch). 6a SUMMARY: In June 1981, Precision Research, Inc., a polling organization in Little Rock, Arkansas, conducted a state-wide survey of death penalty attitudes using a representative sample of 407 respondents drawn from the adult population of the State of Arkansas. This survey used the same death penalty questions that had been used in Ellsworth/Fitzgerald, 1979. It found that (i) approximately 11% of Arkansas adults who could be fair and impartial in determining guilt or innocence in a capital case are excludable under Witherspoon because they would never consider voting for the death penalty; (ii) among those who would be fair and impartial, more blacks than whites are excludable in Arkansas (29% vs. 9%); and (iii) more women than men (13% vs. 8%). II. CONVICTION-PRONENESS STUDIES 1. ZEISEL, 1968 AUTHOR: ZEISEL, Hans TITLE: "Some Data on Juror Attitudes Toward Capital^ ^ Punishment," Monograph, Center for Studies in Criminal Justice, University of Chicago Law School (1969). RECORD REFERENCES: Joint Appendix VOL. Ill, 402-453 (text^and charts); Hovey RT 61-69 (testimony of Professor Hans Zeisel); Grigsby RT 78-90 (testimony of Dr. Craig Haney), Joint Appendix Vol. VII, 1339-1354 (testimony of Dr. Reid Hastie). SUMMARY: This is the earliest study on the conviction proneness of death-qualified jurors. The data for the study were collected by Professor Zeisel and his late colleague Professor Harry Kalven, Jr. in 1954 and 1955, although the present monograph was not published until 1968. (In Witherspoon, the Supreme Court had before it some fragments of an early draft of this study; see 7a 391 U.S. 510 at 517 n.10). One distinctive feature of this study is that it examined the behavior of actual criminal trial jurors. The researchers interviewed jurors who had just completed service on felony trial juries in the Brooklyn Criminal Court in New York and in the Chicago Criminal Court in Illinois, and asked them three questions: (i) What was the first ballot vote of the jury as a whole? (ii) What was your own first ballot vote? ( m ) Do you have conscientious scruples against the death penalty? In all, the researchers collected data on 464 such votes. Professor Zeisel analyzed these data, controlling for the strength of the evidence of the defendant's guilt, and determined what subjects with scruples against the death penalty voted to acquit significantly more often than those without scruples against the death penalty. 2. WILSON, 1964 AUTHOR: WILSON, W. Cody TITLE: "Belief in Capital Punishment and Jury Performance, unpublished (1964). RECORD REFERENCES: Joint Appendix Vol. Ill, 455-468 (text); Joint Appendix Vol. V, 880 (chart); Grigsby RT 91-106 (testimony of Dr. Craig Haney); Joint Appendix Vol. VII, 1354-1357 (testimony of Dr. Reid Hastie). SUMMARY: Wilson, 1964 was the first experimental study on the conviction proneness of death-qualified jurors. The subjects 187 college students — were presented in 1964 with written descriptions of five capital cases (four with a single defendant, one with two codefendants), asked to assume that they were members of the juries trying the cases, and requested to reach a 8a decision on each defendant’s guilt or innocence. Each subject was also asked "Do you have conscientious scruples against the death penalty, or capital punishment for a crime?" Wilson found that subjects without scruples against the death penalty voted for conviction more often than those who had scruples against the death penalty (difference significant at the p<.02 level). 3. GOLDBERG, 1970 AUTHOR: GOLDBERG, Faye (Faye Girsh) "Toward Expansion of Witherspoon: Capital Scruples Jury and the Use of Psychological Data to Raise Presumptions in _ _ — - *. __ c -i / t m n \’5 Harv. C.R.-C.L.L. Rev. 53 (1970) TITLE Bias, the Law, RECORD REFERENCES: Joint Appendix Vol. HI, 470-486 ̂ l^xt) ; Joint-Appendix V^l. Ill, 487 (chart); Grigsby RT 91-106 (testimony of Dr. Craig Haney); Grigsby rt 494-492 (testimony Dr. Edward Bronson); Joint Appendix Vol. VII, 1357-1358 (testimony of Dr. Reid Hastie). of SUMMARY: The subjects in this 1966 study -- 200 students in private liberal arts colleges in Georgia, 100 white and 100 black were given 16 written descriptions of criminal cases involving various crimes, and were asked to assume that they were jurors and to indicate their vote on the case. They were also asked: "Do you have conscientious scruples against the use of the death penalty?" Subjects without scruples against the death penalty voted to convict in 75% of the cases, while those with scruples voted to convict in 69% (difference significant at the p<.08 level). 4. JUROW, 1971 AUTHOR: JUROW, George L. TITLE: "New Data on the Effects of a 'Death-Qualified ^Jury on the Guilt Determination Process," 84 Harv. L. Rev. 567 (1971). 9a RECORD REFERENCES: Joint Appendix Vol. 111' *91-534 (text), Griqsby Exhibits CH-11 through CH-15 (charts);_Grlgsby RT^lOT^l^ (testimony of Dr. Craig Haney); and Joint Appendix VII, 1358 1360 (testimony of Dr. Reid Hastie). SUMMARY: Jurow's subjects — 211 employees of the Sperry Rand Corporation in New York -- listened to two tape recordings of simulated murder trials including, in abbreviated form, opening statements, examination of witnesses, closing arguments, and the judge's instruction to the jury, and voted on the guilt or innocence of the defendant by marking a ballot. In addition, Jurow asked his subjects to complete a long questionnaire that contained several sets of questions relating to the death penalty, one of which (a five-point scale designated "CPAQ(B)") included a statement embodying the first prong of the Witherspoon criteria for exclusion: "I could never vote for the death penalty regardless of the facts and circumstances of the case." When the subjects are divided into groups on the basis of their positions on that five-point CPAQ(B) scale, the pattern that emerges resembles the patterns of responses to Bronson's attitudinal surveys: the subjects who more strongly favor the death penalty are more likely to convict. These differences are statistically significant at the .01 level in Jurow's first case, but not statistically significant in the second. 5. HARRIS, 1971 AUTHOR: LOUIS HARRIS & ASSOCIATES, INC, TITLE: Study No. 2016. RECORD REFERENCES: Grigsby Exhibits CH-13, EB-32 and RH-9 (text!; Joint Appendix Vol. V, 854-857(charts); Grigsby RT 124- 132 (testimony of Dr. Craig Haney); and Joint Appendix Vol. VII, 1360-1361 (testimony of Dr. Reid Hastie). 10a SUMMARY: The Harris, 1971 study, in addition to its attitudinal and demographic data (see supra pp. 3a-4a) gathered behavioral data on conviction-proneness. Each of the 2,068 subjects in the national sample was instructed about three legal principles which apply to all criminal cases (the prosecutor's burden of proof, the requirement that a defendant be convicted by proof beyond a reasonable doubt, and the rule that the defendant is not required to testify) and was given written descriptions of the evidence in four criminal cases. After each description, the subject was given the legal definition of the crime involved, and asked whether, as a juror in the case, he or she would find the defendant guilty or not guilty. In each case the Witherspoon- excludable subjects voted to convict less often than death- qualified subjects. In three of the cases the differences between the two groups were significant at the .01 level; in the fourth case the difference was significant at the .10 level. 6. ELLSWORTH/THOMPSON/COWAN, 1979 AUTHOR: ELLSWORTH, Phoebe C.; THOMPSON, William; COWAN, Claudia. TITLE: "The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, published in 8 Law and Human Behavior, Issue 1-2, pp. 53-79 (1984). RECORD REFERENCE^: Joint Appendix Vol. Ill, 537-545^(text, pre- publication draft); Joint Appendix Vol. Ill, 548, 550-552, and Vol. V, 858 (charts); Joint Appendix Vol. VI, 1179-1197 (testimony of Dr. Phoebe Ellsworth); Grigsby RT 135-165 (testimony of Dr. Craig Haney); Joint Appendix Vol. VII, 1361- 1376 (testimony of Dr. Reid Hastie). SUMMARY: El1sworth/Thompson/Cowan, 1979 is the most sophisticated of 11a the conviction-proneness of death-the experimental studies on qualified jurors. Its subjects — 288 jury eligible adult residents of San Mateo and Santa Clara Counties, California — were screened by telephone when they were initially contacted in 1979 to determine: (i) whether they would be excluded from capital juries under Witherspoon because they would never consider voting to impose the death penalty; and (ii) whether they could be fair and impartial in judging guilt or innocence in a capital case. Those who could not be fair and impartial ("nullifiers") were excluded from participation. The remaining subjects were shown a detailed and highly realistic 2-1/2 hour videotape of a homicide trial — including extensive witness testimony, arguments by prosecutor and defense counsel, and instructions by the trial judge — and were asked to give a written verdict. Nearly 78% of the death-qualified subjects voted to convict the defendant of some degree of homicide, compared with only 53.3% of the Witherspoon-excludable subjects (difference highly statistically significant, at the .01 level). III. OTHER EXPERIMENTAL STUDIES 1. ELLSWORTH POST-DELIBERATION DATA, 1979 AUTHORS: ELLSWORTH, Phoebe C.; COWAN, Claudia; and THOMPSON, William. TITLE: "The Effects of Death Qualification on Jurors _ ^ Predisposition to Convict and on the Quality of Deliberation, published in 8 Law and Human Behavior, Issue 1-2, PP• 53—79 “(1984 ) . RECORD REFERENCES: Gr iqsby Exhibits CH-32 through CH-35,^RH-39, rh-41 rh-42 (protocols and charts); Joint Appendix Vol. VI, 1197-1207 (testimony of Dr. Phoebe Ellsworth); Grigsby RT 172-190 (testimony of Dr. Craig Haney); and Joint Appendix Vol. VII, 1420-1429 (testimony of Dr. Reid Hastie). 12a SUMMARY: After filling out their written ballots most, of the subjects in the Ellswor th/Thompson/Cowan,_ 19,79 study (see supra pp. Ha-12a) — 228 out of 288 — were divided into juries of 12 members and deliberated for one hour on a verdict in the trial they had just seen. Half of the jury panels had only death- qualified subjects, and half included two, three, or four Witherspoon-excludable subjects ("mixed juries ). After the one hour deliberation, the jurors were asked to fill out a second ballot form. While none of the juries reached a unanimous verdict in the time allotted, individual jurors did change their votes. The basic difference between death-qualified and Witherspoon-excludable jurors did not change: the death- qualified jurors remained far more likely to vote for conviction than the Witherspoon-excludable jurors (difference significant at the .01 level). The subjects were also asked to fill out a post deliberation questionnaire about the trial. The questionnaire data reveal that: (i) the death-qualified subjects were more likely to believe the prosecution witnesses and to disbelieve the defense witnesses than Witherspoon-excludable subjects; (ii) subjects on mixed juries viewed all witnesses (prosecution and defense) more critically than did subjects on death-qualified juries; (iii) subjects on mixed juries remembered the facts of the case better than those on death-qualified juries. 2. ELLSWORTH WITNESS CREDIBILITY STUDY, 197_9 AUTHORS: ELLSWORTH, Phoebe C.; HARRINGTON, Joan C.; THOMPSON, William; and COWAN, Claudia. TITLE* "Death Penalty Attitudes and Conviction Proneness: The Translation of Attitudes Into Verdicts" published in 8 Law and 13a Human Behavior, Issue 1-2, pp. 95-113 (1984). RECORD REFERENCES: Joint Appendix Vol. Ill, 564-573 (text, pre- publlcation draft), and id. 574 (chart); Joint Appendix Vol. VI, 1165-1172 (testimony of Dr. Phoebe Ellsworth); Grlgsby RT 193-203 (testimony of Dr. Craig Haney); Joint Appendix Vol. VII, 1429- 1435 (testimony of Dr. Reid Hastie). SUMMARY: Twenty death-qualified and 16 Wither spoon-excludable subjects who had participated in the Ellswor th/Thompson/Cowan,_ 1979 study (see supra, pp. lla-12a) were shown a videotape of a prosecution witness (a police officer) and a defense witness (a possible defendant) giving two versions of an incident; they then answered questions about the witnesses' testimony. On each of 16 questions, the death-qualified subjects gave answers that were more favorable to the prosecution than those of the Witherspoo_n- excludable subjects (on 10 of the 16 the differences were significant at or beyond the .05 level). 3. HANEY, 1979 AUTHOR: HANEY, Craig TITLE: "On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process," published in 8 Law and Human Behavior, Issue 1-2, pp. 121-132 (1984). RECORD REFERENCES: Joint Appendix Vol. IV, 587-613 (text, pre- publi'cation draft), and id., 615-622 (charts); Grigsby RT 227-235 and 241-310 (testimony of Dr. Craig Haney); and Joint Appendix Vol. VII, 1388-1393 (testimony of Dr. Reid Hastie). SUMMARY: Haney, 1979 is the first study to investigate the effects of the process of death-qualification on the jurors who undergo it. The subjects — 67 jury—eligible adults from Santa Cruz County, California — were screened by telephone following the procedures used in the Ellsworth/Thompson/Cowan, 1979 study (see supra, pp. 14a lla-12a) to identify Witherspoon-excludables and nullifiers; only death-qualified subjects who could be fair and impartial in deciding guilt or innocence in a capital case were used. Those subjects were randomly assigned to two groups: one group saw a realistic two-hour videotape of a voir dire in a capital murder case, including a half-hour of voir dire during which prospective jurors were death-qualified; the other group saw the same videotape with the death-qualification segment edited out. Following the viewing, both groups filled out a questionnaire on their beliefs about the case. The questionnaire data show that the randomly assigned subjects who saw the death-qualifying voir dire were more likely to think that the defendant was guilty than those who did not, more likely to believe that he would be convicted, and more likely to think that the judge and the defense attorney believed that the defendant was guilty (all differences significant beyond the .05 level). IV. STUDIES ON "AUTOMATIC DEATH PENALTY" JURORS (ADP1 S )_* 1. HARRIS, 1981 AUTHOR: LOUIS HARRIS & ASSOCIATES, INC, *In addition to the studies summarized here, the record contains evidence of a study conducted by Dr. Gerald Shure, an expert for the State in the Grigsby hearing, that was intended to touch on the question of "automatic death penalty" jurors. We have omitted the Shure study from this appendix because its author testified that he did not believe it to be reliable (see_j_ e.q., Grigsby RT 996 , 1008 , 1181 , 1199; Joint Appendix Vol. VI, 1027, 1045), and because neither party to this appeal purports to rely on it. See Grigsby v. Mabry, 569 F. Supp. 1273, 1307-08 (E.D. Ark. 1983). 15a TITLE: Study No. 814002 (1981). RECORD REFERENCES: Grigsby Exhibits EM-2 through IHd~text): Grigsby RT 1577-1608 (testimony of Ms. Montgomery). EM-4 (protocols Elizabeth SUMMARY: This national Harris survey of a sample of 1498 respondents drawn from the adult civilian population of the United States in January 1981 found that only 1% of the respondents who could be fair and impartial in determining guilt or innocence in capital cases would automatically vote for the death penalty upon conviction for any capital murder. 2. ARKANSAS ARCHIVAL STUDY, 1981 AUTHOR: YOUNG, Andrea TITLE: Arkansas Archival Study (1981). RECORD REFERENCES: Grigsby Exhibits AY-1, AY-3 7 (protocols and text), AY-2 and AY-4 (charts); 1702 (testimony of Ms. Andrea Young). , AY-5 through AY- Grigsby RT 1679- SUMMARY: A review of 41 transcripts of voir dires of capital cases on file at the Arkansas Supreme Court, taken from trials in 1973 through 1981, reveals that of all the jurors who were questioned (a total of 1,914) 14.4% were excluded on Witherspoon grounds but only 0.5% were excluded because they would always vote to impose the death penalty upon conviction, in every capital case. 3. KADANE, 1981 AUTHOR: KADANE, Joseph B. TITLE: "Juries Hearing Death Penalty Cases: ^Statistical^ Analysis of a Legal Procedure," published in 78 Journal of the American Statistical Association, No. 383 , pp. 544-552 (J;888] (see also 8 Law and Human Behavior, Issue 1-2, pp. 115-120 (1984) for a briefer write-up). 16a RECORD REFERENCES: Joint Appendix Vol. V, 795-835 publication draft); i_d. , 836-838 (charts) and 839- protocols); Word &_ Sparks RT 9-78 (testimony of Dr Kadane). (text, pre- 853 (survey . Joseph SUMMARY: In this study Dr. Kadane reanalyzed the results of the Ellsworth/Fitzgerald, 1979 study (see supra, pp. 5a-6a) and the Ellsworth/Thompson/Cowan, 1979 study (see, supra, pp. lla-12a), using data from the Harris, 1981 (supra, pp. 15a-16a) survey for the proportion of ADP's in the population, and data from a 1981 state-wide Field Research Corporation survey of California for the proportion of fair and impartial Witherspoon-excludables in the population. The reanalysis reveals that even when the most conservative possible assumptions are made about the attitudes and behavior of ADP jurors, their exclusion from capital juries does not alter the fact that death-qualification biases capital juries against the defendant on the issue of guilt or innocence. 17a r.FRTTFICATE OF SERVICE I hereby certify that I am one of the attorneys for petitioners-appellees in the above-captioned action and that I served the annexed Brief for Petitioners-Appellees on respondent by placing copies in Federal Express (at counsel's request), addressed as follows: Richard N. League, Esq.Special Deputy Attorney General Department of Justice One West Morgan Street Raleigh, North Carolina 27602 All parties required to be served have been served, none this 15th day of May, 198-4. JOHN CHARLES BOGER