Harris v. Pulley Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT 

No. 84-6433

ROBERT ALTON HARRIS,

Petitioner-Appellant, 

-against-

R. PULLEY, Warden Of The California 
State Prison At San Quentin,
California,

Respondent-Appellee.

On Appeal From The United States District Court 
For The Southern District Of California

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE AND 

BRIEF AMICUS CURIAE OF THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER 
DEVAL L. PATRICK

99 Hudson Street
New York, New York 10013
(212) 219-1900

ANTHONY G. AMSTERDAM 
New York University 
School of Law
4-0 Washington Square South 
New York, New York 10012

ATTORNEYS FOR AMICUS CURIAE



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2
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7

13

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15

15

15

19

25

28

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

STATEMENT OF THE ISSUES PRESENTED ......................

STATEMENT OF THE CASE ...................................

A. The History Of The Issue ................

B. The Current Status Of The Issue .........

C . The Questions Presented By The Order
Of The District Court ..............

JURISDICTION

STANDARD OF REVIEW 

ARGUMENT .........

I. An Extensive Body Of Scientific
Research Provides Overwhelming
Proof That Death-Qualified Juries
Are 'Less Than Neutral' On The
Issue Of Guilt Or Innocence .............

A. The Hovey Evidence ..................

B. The Word & Sparks Evidence ..........

II. Because Death-Qualified Juries Are 
Biased In Favor Of The Prosecution And 
Unduly Prone To Convict, The Use of 
Such Juries To Try The Guilt Or Innocence 
Of Capital Defendants Violates The Sixth 
And Fourteenth Amendments ...............

CONCLUSION .

STATEMENT OF RELATED CASES

APPENDIX A - Description of Empirical Studies

APPENDIX B - Article by Dr. Joseph Kadane, "Juries 
Hearing Death Penalty Cases: 
Statistical Analysis of a Legal 
Procedure," 78 J.Am.S.A. 544 
(1983)

l



TABLE OF CASES

Page
Cases:

Adams v. Texas, 4-4-8 U.S. 38 (1980)........................  5

Ballew v. Georgia, 435 U.S. 223 (1978) ..................  28

Beck v. Alabama, 447 U.S. 625 (1980) ..................... 27

Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391
(1975)   6

Cuyler v. Sullivan, 446 U.S. 335 (1980).......................  14

Davis v. Georgia, 429 U.S. 122 (1977)(per curiam) .......  5

Duren v. Missouri, 439 U.S. 357 ( 1979)   11

Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985)(en banc).. 9,25,27,28

Grigsby v. Mabry, 637 F . 2d 525 (8th Cir. 1980)................ 8

Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983)..........  9

Hovey v. Superior Court, 28 Cal.3d 1, 616 P .2d 1301
(1980)............................................... 7,8,15

Keeten v. Garrison, 742 F .2d 129 (4th Cir. 1984).............. 10

Keeten v. Garrison, 578 F. Supp. 1164 (W.D.N.C. 1984).... 10,13,25

McCleskey v. Kemp, 753 F .2d 877 (11th Cir. 1985)
(en banc) .......................................  11

People v. Rhinehart, 9 Cal.3d 139, 507 P.2d 642
(1973)............................................ 6

Smith v. Balkcom, 660 F.2d 573 (5th Cir. Unit B, 1981), 
modified on other grounds, 671 F .2d 858
(1982)............................................ 11

Spinkellink v. Wainwright, 578 F .2d 582 (5th Cir. 1978),
cert, denied, 440 U.S. 976 (1979) ............ 10,25

Taylor v. Louisiana, 419 U.S. 522 (1975) ................  11



TABLE OF CASES (cont'd .)

Page

United States v. Harper, 729 F .2d 1216 (9th Cir. 1984).. 12

r United States ex rel. Clark v. Fike, 538 F.2d 752
(7th Cir. 1976)................................. 6 >12

United States ex rel. Townsend v. Twomey, 452
F . 2d 350 (7th Cir. 1972)....................... 6,12

Wainwright v. Witt, __ U.S.__, 83 L.Ed.2d 841 (1985).... 5,28

Witherspoon v. Illinois, 391 U.S. 510 (1968)............ 2,26,27,28

Other Authorities:
Hastie, R., Inside the Jury (Harvard University Press,

Cambridge, Mass., 1983).............................  18

• 8 Law and Human Behavior, Nos. 1/2 (June 1984)...........

Federal Statutes:

28 U.S.C. §2241 ...............................................  14

28 U.S.C. §2253 ...............................................  14
V

iii



IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT 

No. 84-6433

ROBERT ALTON HARRIS,
Petitioner-Appellant, 

-against-

R. PULLEY, Warden Of The California 
State Prison At San Quentin,
California,

Respondent-Appellee.

On Appeal From The United States District Court 
For The Southern District Of California

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE

The NAACP Legal Defense & Educational Fund, Inc. ("the 

Fund"), by its undersigned counsel, moves this Court, pursuant to 

Rule 29 of the Federal Rules of Appellate Procedure, for leave to 

file the annexed brief amicus curiae in support of petitioner-appellant 

Robert Alton Harris.
STATEMENT OF INTEREST OF AMICUS CURIAE

The Fund is a non-profit corporation established to 

assist black citizens in securing their constitutional rights.

In 1967, it undertook to represent all condemned prisoners in the 

United States, regardless of race, for whom adequate representation 

could not otherwise be found. It has frequently represented

IV



condemned inmates before the Supreme Court of the United States.

E . g . , Furman v. Georgia, 4-08 U.S. 238 (1972); Jurek v. Texas,

428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); 

Coker v. Georgia, 433 U.S. 584 (1977); Lockett v. Ohio, 438 U.S. 586 

(1978); Enmund v. Florida, 458 U.S. 782 (1982); Francis v. Franklin, 

_U.S. __, 53 U.S.L.W. 4495 (U.S., April 30, 1985)(No. 83-1590).

The Fund is serving as counsel for petitioners in two 

recent federal cases in which death-gualification claims —  virtually 

identical to the claims asserted on this appeal by petitioner- 

appellant Robert Harris -- have been evaluated on a full evidentiary 

record. See Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), 

aff'd , 758 F .2d 226 (8th Cir. 1985)(en banc); Keeten v. Garrison,

578 F. Supp. 1164 (W.D.N.C.), rev'd, 742 F.2d 129 (4th Cir. 1984), 

cert. pending, No. 84-5187 (filed February 2, 1985). The Fund rep­

resents numerous other inmates in a number of jurisdictions, includ­

ing this Circuit, who have asserted or intend to assert this consti­

tutional claim.

In light of (i) the extensive experience of the Fund with

the factual and legal issues presented by this claim, and (ii) the

direct interest of clients of the Fund in the ultimate resolution

of this claim, counsel respectfully request leave to file this

brief amicus curiae.

Dated: New York, New York
July 1, 1985 Respectfully submitted,

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER 
DEVAL L. PATRICK

99 Hudson Street
New York, New York 10013
(212) 219-1900

v



ANTHONY G. AMSTERDAM 
New York University 
School of Law
AO Washington Square South 
New York, New York 10012

ATTORNEYS FOR AMICUS CURIAE

BY:

vi



IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

No. 84-64-33

ROBERT ALTON HARRIS,
Petitioner-Appellant, 

-against-

R. PULLEY, Warden Of The California 
State Prison At San Quentin,
California,

Respondent-Appellee.

On Appeal From The United States District Court 
For The Southern District Of California

BRIEF AMICUS CURIAE OF THE 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

STATEMENT OF THE ISSUES PRESENTED 

1. Whether the jury trial guarantee of the Sixth 

Amendment and the Due Process Clause of the Fourteenth Amendment 

prohibit the systematic exclusion for cause from a capital 

defendant's guilt or innocence trial of all jurors who could 

fairly and impartially try that issue, solely because their 

opposition to the death penalty would make them ineligible for 

service in the event of a subsequent penalty trial -- despite 

extensive proof that this practice produces guilt-phase juries 

that are (i) biased in favor of the prosecution, (ii) unduly 

prone to convict, and (iii) unrepresentative of the communities

from which they are drawn?



2. Whether the District Court could properly reject 

petitioner's claims on their factual merits without allowing 

petitioner an evidentiary hearing on the important factual 

issues it resolved adversely to petitioner?

STATEMENT OF THE CASE 

A . The History Of The Issue
The constitutionality of "death-qualified" juries as 

triers of guilt or innocence in capital cases was first 

addressed by the Supreme Court in 1968 in Witherspoon v. Illinois,

391 U.S. 510, 520 n.18 (1968), and was left unresolved. Since 

1968 it has been the subject of a large and rapidly growing body 

of litigation in capital cases in the state courts and the lower 

federal courts. Although it has produced conflicting opinions 

from these courts, it has never been addressed by the Supreme 

Court again.
The term "death-qualification" refers to the practice 

of identifying and excluding from capital juries those potential 

jurors whose views on the death penalty are considered incompatible 

with their duties as jury members. This practice is universal in 

jury trials of capital cases, and with rare exceptions those who 

are excluded oppose the death penalty. It is hardly surprising 

that many people have long believed that this process alters the 

composition and functioning of the resulting jury in a systematic 

and predictable way: that it weighs the jury against the defendant.

But belief is one thing and proof another, and until the last few years 

there was no conclusive proof. In 1968 the Supreme Court was

2



asked in Witherspoon v. Illinois to hold that death-qualified

juries are unconstitutionally conviction-prone. The Court 

declined to do so, finding that the empirical record before it 

was too weak to form the basis for such a decision. The Court 

did not rule that Witherspoon was factually wrong in his claim 

that death-qualified juries are conviction-prone; rather, it with­

held judgment. Addressing the preliminary drafts of some early 

social scientific studies on the effects of death-qualification 

which Witherspoon's attorneys had asked it to judicially notice, 

id., 391 U.S. at 517, n.10, the Court found:

"The data adduced by the petitioner . . .
are too tentative and fragmentary to 
establish that jurors not opposed to the 
death penalty tend to favor the prosecutor 
in the determination of guilt. We simply 
cannot conclude, either on the basis of 
the record now before us or as a matter of 
judicial notice, that the exclusion of jurors 
opposed to capital punishment results in an 
unrepresentative jury on the issue of guilt 
or substantially increases the risk of con­
viction. In light of the presently available 
information, we are not prepared to announce 
a per se constitutional rule requiring the 
reversal of every conviction returned by a 
jury selected as this one was." Id., at 
517-518 (fn. omitted).

The basis for this assessment was clearly and carefully

stated in footnote 11 of the Court's opinion:

"During the post-conviction proceedings 
here under review, the petitioner's counsel 
argued that the prosecution-prone character of 
'death-qualified' juries presented 'purely a 
legal question,' the resolution of which required 
'no additional proof' beyond 'the facts . . .
disclosed by the transcript of the voir dire 
examination . . . .' Counsel sought an oppor­
tunity to submit evidence in support of several 
contentions unrelated to the issue involved here.
On this issue, however, no similar request was 
made, and the studies relied upon by the petitioner

3



in this Court were not mentioned. We can only 
speculate, therefore, as to the precise meaning 
of the terms used in those studies, the 
accuracy of the techniques employed, and 
the validity of the generalizations made.
Under these circumstances, it is not 
surprising that the amicus curiae brief 
filed by the NAACP Legal Defense and 
Educational Fund finds it necessary to 
observe that 'with respect to bias 
in favor of the prosecution on the 
issue of guilt, the record in this 
case is almost totally lacking in the 
sort of factual information that would 
assist the Court.'" Ld., at 517-518, n.ll.
The Witherspoon Court was quite explicit in leaving open

both the factual and legal questions of conviction-proneness of

death-qualified juries. It said in so many words that these

questions were reserved for future consideration, and it invited

further research and proof on the factual question:
"Even so, a defendant convicted by such a 
[death-qualified] jury in some future case 
might still attempt to establish that the 
jury was less than neutral with respect to 
guilt. If he were to succeed in that effort, 
the question would then arise whether the State's 
interest in submitting the penalty issue to a 
jury capable of imposing capital punishment may be 
vindicated at the expense of the defendant's 
interest in a completely fair determination of 
guilt or innocence -- given the possibility of 
accommodating both interests by means of a 
bifurcated trial, using one jury to decide 
guilt and another to fix punishment. That 
problem is not presented here, however, and 
we intimate no view as to its proper resolu­
tion." Id., at 391 U.S. 520, n.18.

On the record before the Court in that case, its decision appears

to have been inescapable. Indeed, although the Witherspoon Court

was not required to, and did not so hold, the entire body of
scientific evidence available in 1968 may well have been insufficient

<4



to support a factual conclusion concerning the conviction-proneness 

of death-qualified juries. Since 1968, however, the state of 

knowledge on this issue has changed greatly.
While it did not reach the question of bias on the 

issue of guilt, the Witherspoon Court did, of course, restrict 

the permissible scope of death-qualification in order to insure 

fair jury determination of the issue of penalty. Under Witherspoon, 

potential jurors could be excused from service in capital cases 

because of their opposition to the death penalty only if they were 

unwilling to consider the death penalty in any case, or unable to 

be fair and impartial in deciding the defendant's guilt. 391 U.S. at 

522-23 n.21. The Court held that a jury from which venirepersons 
were excused on any basis broader than these two is "a tribunal 
organized to return a verdict of death," id., at 521, and that "[n]o 

defendant can constitutionally be put to death at the hands of a 

tribunal so selected." Id., at 522-23. This rule does not affect 

the validity of any sentence other than death or the validity of a 

defendant's conviction, as opposed to his sentence.
Recently, in Wainwright v.-Witt, __U.S.__, 83 L.Ed.2d 84-1 (1985)

the Supreme Court modified the constitutional limitations on death- 

qualification. But while Witt changes the specific standards 
that govern this practice, it "adhere[s] to the essential balance 

struck by the Witherspoon decision." _Id, at n.5. Neither Witt 

nor the Supreme Court's earlier cases applying Witherspoon, see 

Davis v. Georgia, 429 U.S. 122 (1977)(per curiam); Adams v. Texas,
448 U.S. 38 (1980), address the present claim: that death-qualified 

juries are less than neutral with respect to guilt.

5



Neither petitioner Harris nor amicus are challenging

the exclusion of veniremen who could not be fair and impartial 

in deciding their guilt or innocence. Nor do they dispute the 

right of the state to exclude venirepersons who could not fairly 
try the issue of penalty from participation in sentencing delib­

erations. Their claim is limited to the assertion that it is 

unconstitutional to preclude venirepersons who would be fair 

and impartial in determining their guilt or innocence from trying 
that issue, solely because they would not be eligible to participate 

in a possible subsequent penalty trial.
In the decade between 1968 and 1978, the courts witnessed a 

steady incremental growth in the body of empirical evidence on 
death-qualification: the early studies that had been presented to

the Supreme Court in preliminary form were completed, and a few 

new studies were conducted. This new evidence was presented in the 

lower courts in support of arguments against the constitutionality 

of death-qualification, but in each case the courts held that 

despite these developments, the available scientific evidence on 

this point remained "tentative and fragmentary." See, e .g .,
People v. Rhinehart, 9 Cal.3d 139, 507 P.2d 642 (1973); Commonwealth 

v. Martin, 465 Pa. 134, 348 A.2d 391 (1975); United States ex rel. 

Townsend v. Twomey, 452 F .2d 350, 362-63 (7th Cir. 1972); United 
States ex rel. Clark v. Fike, 538 F.2d 752 (7th Cir. 1976).

In 1978 and 1979, however, a large scale research project 

on death-qualification was conducted under the direction of some of 

the most eminent forensic social scientists in the country, and it 
produced a major new set of studies on the effects of death-qual­

ification on jury composition, attitudes and behaviors. These
6



studies conclusively demonstrate that death—Qualified juries 

are indeed biased in favor of the prosecution, unduly prone to 

convict, and unrepresentative of the communities from which they
y

are drawn.
B . The Current State of the Issue

In the past several years, lower court cases have followed 

one of two irreconcilable paths: (i) some have addressed the death-

qualification issue as an empirical question and have held that death- 

qualification is constitutional despite its effects on capital juries;

while (ii) some have held that this practice presents a legal issue only.
(i) Major Cases Addressing the Empirical Issue 

Hovey v. Superior Court. The first appellate case that 

addressed this issue on the basis of a complete factual record 
including the more recent studies on death-qualification was Hovey 

v. Superior Court, 28 Cal.3d 1, 616 P .2d 1301 (1980). In Hovey, 

on the basis of a detailed record, the California Supreme Court 
found that a death-qualified jury selected by the procedures out­

lined in Witherspoon —  a "Witherspoon-qualified" jury —  "would 

not be neutral" on the question of guilt. Hovey, supra, 28 Cal.3d 
at 68, 616 P .2d at 1346. The court declined, however, to rule on 

the constitutionality of death-qualification as practiced in 

California, because under California law jurors may also be 
excluded from capital cases for an additional reason: because they

would always vote for the death penalty in every capital case.

The court reasoned that the exclusion of these potential jurors 

might, conceivably, offset the demonstrated effects of excluding 

those who would never consider the death penalty. I_d. , 28 Cal. 3d

1/ These studies have been published in a special journal issue on 
death-qualification, 8 Law and Human Behavior, Nos. 1/2 (June, 1984).

7



at 63-69, 616 P .2d at 1343-46. While the California Supreme 
Court recognized that this group, the "automatic death penalty" 

jurors, may only exist "in theory," id., 28 Cal.3d at 63, 616 P .2d 

at 1343, it held that the existence, the size and the impact of 

this group were factual questions on which the defendant had the 

burden of proof, and it found that the record in that case did not 

include any substantial evidence on this point. Therefore, the 

court concluded that "until further research is done . . . this
court does not have a sufficient basis on which to bottom a consti­

tutional holding" on jury selection practices in capital cases in 

California. _Id. , 28 Cal.3d at 68 , 616 P.2d at 1346.
In short, the Hovey case identified one narrow factual 

gap that remained to be filled in order to complete the proof of 

the claim that death-qualified juries are conviction-prone.

Grigsby v Mabry. In 1980 the Eighth Circuit held that 

Grigsby, a state prisoner in Arkansas, was entitled to a federal 

habeas corpus hearing on his claim that the death-qualified jury 
that tried him was unconstitutional. Grigsby v. Mabry, 637 F .2d 

525 (8th Cir. 1980). The central question that the Court of Appeals 

identified for consideration at that hearing was "whether death- 

qualified jurors are more likely to convict than jurors selected 

without regard for their views on the death penalty;" if that 

question is answered affirmatively "Grigsby has made a case that his 

constitutional rights have been violated and he would be entitled 

to a new trial." Id. at 527.

8



The hearing on remand in Grigsby was conducted in the

United States District Court for the Eastern District of Arkansas, 

and was comparable in scope to the Hovey hearing. It included 

evidence on all the new studies first presented in Hovey, and it 

also included extensive new evidence demonstrating that the "automatic 

death penalty" group constituted only 1% to 2% of the population 

nationally, and that the occasional exclusion of an "automatic 

death penalty juror" from a capital case has an insignificant 

impact on the demonstrated biasing effects of death-qualification.

In August of 1983, Judge G. Thomas Eisele of the Eastern District 

of Arkansas filed a detailed opinion based on this record, holding 

that the present form of death-qualification is unconstitutional on 

two grounds: (i) that it biases capital juries against the defendants

in the determination of guilt or innocence and (ii) that it denies 

capital defendants their Sixth Amendment right to a jury on the 

question of guilt or innocence that is drawn from a fair cross- 
section of the community. Grigsby v. Mabry, 569 F. Supp. 1273 

(E.D.Ark. 1983). Judge Eiselie's opinion has now been upheld on 

appeal by the Eighth Circuit en banc. Grigsby v. Mabry, 758 F .2d 

226 (8th Cir. 1985)(en banc).
Keeten v. Garrison (District Court). At the district 

court level, Keeten was similar to the Grigsby case both in form 

and in content. The petitioners were state prisoners who claimed 

in a federal habeas corpus proceeding that their constitutional 

rights were violated by the use of death-qualified juries to deter­

mine their guilt or innocence in the North Carolina state courts.

The evidentiary record was comparable to that in Grigsby, and*the

9



judgment of trial court judge, the Honorable James B. McMillan 

of the Western District of North Carolina, was the same: 

the evidence in the record answers the question posed in 

Witherspoon and demonstrates that death-qualification produces 

juries that are "less than neutral with respect to guilt." Keeten 

v. Garrison, 578 F. Supp. 1164- (W. D. N.C. 1984). The judgment of 

the District Court was reversed by the Fourth Circuit in Keeten 

v. Garrison, 742 F.2d 129 (4th Cir. 1984), but the opinion of the 

Court of Appeals did not rest on the factual issues, but on its 

view of the law.
Thus, since 1979, every court that has considered the 

entire body of empirical evidence now available has concluded that 
the evidence proves what remained unproven in 1968: that death-

qualified juries are more likely to convict than ordinary criminal 

j uries.

(ii) Major Cases That Reject The Empirical Issue

Spinkellink v. Wainwright. Until 1978, every court that

had considered the issue agreed that if proof could be marshalled

that such juries are more likely to convict than ordinary, fully

representative criminal juries, a constitutional violation would
be established. In 1978, in the case of Spinkellink v. Wainwright,
578 F .2d 582 (5th Cir. 1978), cert, denied, 440 U.S. 976 (1979),

the former Fifth Circuit held otherwise:

"When petitioner asserts that a death-qualified 
jury is prosecution-prone, he means that a death- 
qualified jury is more likely to convict than a 
non-death-qualified jury . . . .  Even if this is 
true the petitioner's contention must fail. That 
a death qualified jury is more likely to convict than 
a non-death-qualified jury does not demonstrate 
which jury is impartial." Id. at 594.

10



In essence, Spinkellink holds that there is no factual

issue to be decided at all: if each juror who tried the defendant

was individually "fair and impartial," nothing more can be asked.

Spinkellink flies in the face of the Supreme Court's 

statement that factual proof that death-qualified juries are un­
commonly conviction-prone would implicate "the defendant's interest 

in a completely fair determination of guilt or innocence." Wither­

spoon v. Illinois, 391 U.S. at 520 n.18. Spinkellink ignores the basic 

constitutional rule that a jury is not just any group of jurors who 

are individually fair-minded. If that were so, juries could consist 

entirely of fair-minded whites or fair-minded Democrats. A jury 

must also fairly reflect the community from which it is drawn, both 

in its composition, see Taylor v. Louisiana, 419 U.S. 522 (1975);

Duren v. Missouri, 439 U.S. 357 (1979), and in its predispositions.
This rule was applied by the Court in Witherspoon when it prohibited 

juries that are "uncommonly willing to condemn a man to die." 391 U.S. 

at 521. Yet Spinkellink explicitly endorses the use of juries that 

are uncommonly willing to convict. Nonetheless, the holding in 
Spinkellink on this issue remains the law in the present Fifth and 

Eleventh Circuits, the two successor courts to the former Fifth Circuit. 

See Smith v. Balkcom, 660 F.2d 573 (5th Cir., Unit B, 1981), modified 
on other grounds, 671 F.2d 858 (1982). McCleskey v. Kemp, 753 F .2d 877, 

901 (11th Cir. 1985)(en banc).
Keeten v. Garrison(Circuit Court). As noted, the Fourth 

Circuit reversed the judgment of the District Court in Keeten without 

making any attempt to resolve the factual issues raised by the 
record and the opinion of the trial court judge. Instead,

11



the Circuit Court chose to follow Spinkellink, and concluded that

the conviction-proneness of death-qualified juries is of no consti 

tutional consequence.
(iii) Other Federal Cases
Seventh Circuit. While the Seventh Circuit has not faced 

the task of analyzing all presently available empirical evidence 

on death-qualification, its position on the legal issue is clear 

and it is in direct conflict with Spinkellink and its progeny:

"the decision on this issue rest[s] on empirical analysis . . . ." 

United States ex rel. Clark v. Fike, 538 F.2d 750, 762 (7th Cir.

1976); see also United States ex rel. Townsend v. Twomey, 542 

F . 2d 350, 362-63 (7th Cir. 1972).
Ninth Circuit. This issue has not been determined 

by this Court, although the Court has previously alluded to the 

question and its ramifications. See United States v. Harper,

729 F .2d 1216 (9th Cir. 1984)(Fletcher, J., concurring):
"[W]hether a verdict returned such a 'death-qualified jury' can 

withstand constitutional scrutiny is a complex and difficult 

constitutional question" that should not be decided before a 

decision is necessary.
In sum, the Fourth, Fifth and Eleventh Circuits have 

held that it is constitutional to use death-qualified juries to 

determine guilt, even if they are uncommonly conviction-prone.

The Seventh Circuit has held that factual proof that death-qualified 

juries are conviction-prone would require a holding that the 

practice is unconstitutional. The Eighth Circuit has recently held 

that such a demonstration has been made,and has outlawed the practice.

12



The matter is before this Circuit on petitioner Harris' appeal; the 

remaining circuits have not yet been obligated to face this question. 

C . The Questions Presented By The Order of the District Court 

The District Court addressed and analyzed 
petitioner Harris' death-qualification claim as an empirical 

issue. In other words, it accepted the overall analytical 

framework set forth in Hovey, and determined that Harris 

was obligated to prove two things: first, that Hovey
itself correctly evaluated the death—qualification studies

and their results; and second, that Dr. Kadane's additional
2/

study presented in Word & Sparks filled the one evidentiary 
gap —  concerning the size and significance of the so-called 

"automatic death penalty" group of prospective jurors ("ADPs")

_ identified by the Supreme Court of California in Hovey.

The District Court proceeded to bypass the first 

question, the accuracy of Hovey, and decided as a matter of 

fact, without any evidentiary hearing, that Dr. Kadane's 

evidence was insufficient to make Hovey whole. By contrast, 
the District Court that received the Kadane evidence in Keeten 

v. Garrison, 578 F. Supp. 1164-, 1175-77 (W.D.N.C. 1984-) , 
found it "credible, consistent, and essentially uncontradicted.

Id. at 1177. Yet the District Court here rejected that same 

evidence without any adversary testing of Dr. Kadane's 

testimony.

2/ See discussion of the Word & Sparks evidence at pages 19- 
25, infra.

13



JURISDICTION

The District Court had subject matter jurisdiction 

of this case pursuant to 28 U.S.C. §224-1. This Court has juris­

diction on appeal pursuant to 28 U.S.C. §2253. The District 

Court's memorandum decision and order was filed on October 

17, 1984; it is final and appealable to this Court. A timely 

notice of appeal was filed on November 14, 1984.

STANDARD OF REVIEW
The death-qualification claim asserted by petitioner 

Harris and addressed in this brief by amicus curiae raises 
questions of federal statutory and constitutional law and 

mixed questions of law and fact requiring independent, de 

novo review by this Court. See, e . g ., Cuyler v. Sullivan,

446 U.S. 335, 341-42 (1980).



ARGUMENT

I

AN EXTENSIVE BODY OF SCIENTIFIC RESEARCH 
PROVIDES OVERWHELMING PROOF THAT DEATH- 
QUALIFIED JURIES ARE 'LESS THAN NEUTRAL'
ON THE ISSUE OF GUILT OR INNOCENCE______

A . The Hovey Evidence
The District Court did not explicitly pass upon the 

validity of the California Supreme Court's findings in Hovey 
v. Superior Court, 28 Cal.3d 1, 616 P.2d 1301 (1980), but even 

a cursory review of the scientific evidence reveals that those 

findings were compelled by an overwhelming and one-sided record.

Attitudinal and Demographic Surveys 

The Hovey record includes five surveys that study the

attitudinal and demographic characteristics of the jurors who are
_3/

excluded from service by the process of death-qualification.

These surveys uniformly find that jurors who are now permitted 

to serve in capital cases hold attitudes that are more hostile 

to the defendant and more favorable to the prosecution than the 

attitudes of those who are excluded. The surveys also uniformly 

find that women and blacks are disproportionately excluded by 

death-qualification.
Conviction-Proneness Studies

Six studies in the Hovey record examine the voting behavior 

of death-qualified jurors and of those who are excluded by death-
±J

qualification, in actual and in simulated criminal trials. These

_3/ A more complete description of each attitudinal study appears
in Appendix A at 1-6.

V  See Appendix A at 6-11.
- 15 -



range from a study by Professor Hans Zeisel of the votes of 

actual jurors in felony trials in Brooklyn and Chicago, to 

studies of responses of college students in Georgia and of 

industrial workers in New York, to a sophisticated trial 
simulation using jury-eligible adults in California. In each 

instance the results are the same: death-qualified jurors

are more likely to convict than those who are excluded from 
capital juries because of their opposition to the death penalty.

Studies Of The Mechanisms That Produce 
__________ The Biasing Effects___________ _

Several of the studies in the record examine how the 

removal of opponents of the death penalty pursuant to Witherspoon
_5/

changes the functioning of a jury. These studies show that 
death-qualified jurors are more likely than those who are 

excluded to believe prosecution witnesses and to disbelieve 

defense witnesses, that differences in voting behavior between 

these two types of jurors persist after jury deliberations, and 
that the exclusion of jurors who would not consider voting for 

the death penalty adversely affects the quality of jury delibera­

tions. In addition, one study (the Haney Study) demonstrates 

that the process of death-qualification —  the questioning of 

potential jurors at the outset of a capital trial on their 
attitudes toward the death penalty, and the removal of those 

who are unwilling to consider imposing the death penalty —  

predisposes even those jurors who are permitted to serve to 

believe that the defendant is guilty.

5/ See Appendix A at 12-14.

16



Three overall points about this record deserve brief

mention. First, it is noteworthy that so many studies, conducted

over a long period of time by different researchers in different

locations, using various methodologies and varying subject pools,

have all found the same thing: death-qualified juries are more

likely to convict than ordinary criminal juries. As Professor

Hans Zeisel explained in his testimony in this record:

"The reason I have put these six studies 
together is the following, namely, I'm 
sure that it couldn't escape anybody who 
has 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 con­
clusion that we can come to. The re­
lationship is too 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 RT 8A-85.)
Second, the studies are of high quality. The body of 

empirical research on death-qualification includes studies by 

such eminent social scientists as Professor Hans Zeisel and 

Professor Phoebe Ellsworth, and surveys by such nationally

17



known organizations as Louis Harris Polls and the Field Research 

Corporation. This research has been enthusiastically reviewed 

by, among others, Professor Reid Hastie, author of the most ex­

tensive work on jury functioning in recent years, Inside the Jury 

(Harvard University Press, Cambridge, Mass., 1983). The most recent 

studies -- those conducted after 1978 -- are of particular note.

They are exemplary in their methodology and they are tailored to 

address the exact legal issue at stake. The subjects in each of 

these studies were classified on the basis of their attitudes 

toward the death penalty using questions based on Witherspoon, 

and the two Witherspoon-excludable groups -- those who would never 
consider voting for the death penalty and those who would not be 

fair and impartial on guilt or innocence in a capital case -- were 
identified separately. In each study, the subjects who could not 

be fair and impartial on guilt were excluded from consideration.

As a result, these studies directly demonstrate the biasing effects 
of excluding potential jurors who would be fair on guilt but who 

would never consider voting for the death penalty, after those who 

would not be fair and impartial on guilt have already been removed.

Third, there are no studies whatever that reach a contrary 

conclusion. The views on both sides were thoroughly aired in the 

testimony in the record, and the criticisms failed to sway the 

courts that evaluated this body of research on its merits. One of 

the major reasons for the conclusions of the Hovey court is the 

fact that after sixteen years and a dozen or more studies, nothing 

has ever been shown to contradict the uniform finding that death- 

qualification biases juries against the defendant. To quote 

Professor Zeisel's testimony once more:
18



"But I just want to say, given the difficulties 
of coming to conclusions about human nature, I 
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-examinations, 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, RT, 163-64.)

B . The Word and Sparks Evidence
The Word & Sparks record consists, essentially, of 

the expert testimony of Dr. Joseph B. Kadane, an eminent professor 

of statistics at Carnegie-Mellon University in Pittsburgh, Pennsyl­

vania, and exhibits offered in support of that testimony. Dr.

Kadane reanalyzed two of the key Hovey studies -- the Ellsworth 

Conviction-Proneness Study and the Ellsworth Attitude Survey -- in 

light of two more recent surveys: (i) a 1981 Field Research Corpora­

tion Survey that found that 12.6% of the fair and impartial jury- 

eligible population of California would never consider imposing the 

death penalty in any capital case; and (ii) a 1981 Harris Poll that 

found that 1% of the national adult population who could be fair and 

impartial would always vote for the death penalty in any capital case.
0 J

(These surveys are described in Exhibit I to the Harris petition.)— 

Essentially, Dr. Kadane's analysis answers the following 
question: given the size of the "guilt phase nullifier" group

(couldn't be fair and impartial on guilt-or-innocence in a capital 
case), the "guilt phase includable" group (could be fair and im­

partial on guilt-or-innocence, but could never consider imposing 

death), and the "Witherspoon-qualified" group (could consider

6/ An article written by Dr. Kadane describing his studies is annexed 
as Appendix B to this brief, for the convenience of the Court.

19



imposing death) -- all found by the 1981 Field Survey -- and given 

the size of the "automatic death penalty" group (would always give 
death to a convicted capital defendant) found by the 1981 Harris 

Survey, what effect does the exclusion of "automatic death penalty" 

jurors from capital juries have on the findings of the Ellsworth 

Attitude Survey and the Ellsworth Conviction-Proneness Survey, as 

applied to the population of California venirepersons?
Dr. Kadane "had to assume something about the behavior 

[and attitudes] of the automatic death penalty group" (Word & Sparks 

RT 56) since they "were not directly measured" by the two prior 

Ellsworth studies. (Kadane Study, Exh. B, No. 6, at 19). Kadane 
took "the most conservative stance on this issue" (id.), and assumed 

that the automatic death penalty group "would be as strongly opposed 

to the defense as it could be on each issue, [and as] strongly pro­

prosecution as it could be on each issue." (Word &■ Sparks RT 56) . 

Specifically, he assumed that they would take the most pro-prosecution 

position on each question in the Ellsworth Attitude Survey, and "that 

they would vote, all of them, to convict in the behavior experiment 
[the Ellsworth Conviction-Proneness Study]." (Id.) This assumption 

therefore weights Dr. Kadane's results against the position urged 

by petitioner:
"By assuming that the group who would ALWAYS 
impose the death penalty have the most extreme 
views in favor of the prosecution, I am making 
it as difficult as I can to show that the amal­
gamated ALWAYS and NEVER group is nonetheless 
more pro defense, less pro prosecution than the 
remainder. So what this means is that my estimate 
of the bias will be too low, that is, if I had 
accurate data on the views of the group that 
would ALWAYS impose the death penalty, they will 
not be as extreme as what I have assumed. I don't

20



know by how much. Consequently, my estimate 
of the odds of bias will be lower, lower in the 
calculations that I do here than they would be 
if I had better data by an amount . . . [that]
I don't know. So I am making the assumption 
that is most conservative, most in accord with 
[the prosecution's] interest rather than [the 
defense's] in the sense that the numbers that 
I am calculating will . . . tend to show less
bias than they would if I had data on this 
question." (Id. at 57; emphasis added.)
Using these assumptions, Dr. Kadane calculated the effect 

of excluding "automatic death penalty" jurors on the findings of the 
Ellsworth Attitude Survey and the Ellsworth Conviction-Proneness

Z fStudy. The results, with respect to the Ellsworth Attitude Survey 

are set forth in Table 5 of the Kadane Study (Exhibit B, No. 6,at 22; 

see Figure A). (The form of this table is identical to that of 

Table 2 of the Kadane Study (see Figure 2).) Dr. Kadane states:

"I conclude from Table 5 a showing of substantial bias against 

the defense from the current procedure." (Kadane Study, Exhibit B,

No. 6, p . 21.)
With respect to the Ellsworth Conviction-Proneness Study, 

Dr. Kadane reports:
"The showing of substantial bias in the 
Ellsworth and Fitzgerald study is con­
firmed by the reanalysis of the Ellsworth,
Thompson and Cowan experiment. Here $ 
is 1.519 (so the estimated odds of NEVER 
or ALWAYS juror being more favorable to 
the defense than a SOMETIMES AND SOMETIMES 
NOT juror is more than 3 to 2), with a 
standard deviation of .228, which means that 
((f) -1)/SD = 2.27. Hence, the probability
of neutrality or bias against the prosecution 
( $ ^  1) is 1.3%. Pgain we have a finding
of substantial bias against the defense."
(Kadane Study, Exhibit B , No. 6, at 21) .

7/ The mathematical calculations involved are discussed in the 
Kadane Study (Exhibit B, No. 6) at pp. 18-19 and 26-40; a minor 
technical issue ("effective sample size") is discussed at 20- 
21 (see RT 58).

- 21 -



Comparing these data to the original findings of the Ellsworth

Conviction-Proneness Study, Dr. Kadane stated: "They are very

similar. The estimated odds drop from 1.65 to 1.52, which is

a very slight drop." (RT 66.)
The underlying reason for these findings is described

at the conclusion of the Kadane Study:
"What makes all the results true is that the 
ALWAYS group is so small (1% of the population) 
that the ALWAYS or NEVER group is dominated by 
the NEVER part, and the AT LEAST SOMETIMES group 
is dominated by the SOMETIMES AND SOMETIMES NOT 
majority. Even attributing the least favorable 
views to the ALWAYS group does not disturb the 
finding of substantial bias against the defense."
(Exhibit B, No. 6, at 23.)
Dr. Kadane calculated the effect of excluding the 

the "automatic death penalty" group using data from the Ellsworth 

Attitude Survey and the Ellsworth Conviction-Proneness Study be­

cause "they are the most recent and most thorough of their respec­

tive types." (Kadane Study, Exhibit B, No. 6, at 4.) He testified, 
however, that the same general conclusions would apply to the findings 

of the other studies on death-qualification. (Words 6 Sparks RT 68.)

The linchpin of the District Court's order is its 

rejection of Dr. Kadane's finding. This rejection is based on three 

grounds, all untenable. First, the District Court complains that 
Dr. Kadane 'performed no original research.' (Order, p. 7). The 

significance of-this criticism is not apparent. Dr. Kadane may not 
have interviewed research subjects personally, but he testified 

about a major new study of death-qualification that he conducted.

His study does reanalyze the data of earlier studies, but it 
does so on the basis of two new surveys that provide new data 

addressed to the issue left open in Hovey.
22



Second, the District Court speculates that the 

proportion of automatic death penalty jurors (ADPs) may in fact 

be higher than the 1% that Harris found. There is no evidentiary 

basis for this speculation. The Court cites a reference in Hovey 

to a possible ADP figure over 25%; in fact that figure comes from 

a study that does not measure ADPs. In any event, the proportion

of ADPs is a factual question —  put in dispute by the pleadings
 ̂/

It cannot be decided without evidence.

8/ The prosecutor at the Word 8 Sparks hearing faulted Dr. Kadane 
for not using the Jurow Study, or Smith, A Trend Analysis of Attitudes 
Toward Capital Punishment, 1936-1974 (1975) for their data on the 
size of the "automatic death penalty" group. (Word & Sparks RT 89-95.) 
This is an empty criticism.

Dr. Kadane explained why he used Harris 1981 rather than Jurow's 
finding of 2% automatic death penalty jurors: "The Harris study, 
being as it was done by a national polling organization, done under 
very strict standards . . .  is a very reliable thing for me to use.
I had confidence in that study, and that's why I used it." (Id. at 
93-94.) In comparison to the Jurow Study, "the Harris study, it 
seemed to me, was the sounder work." (_Id. at 94.) The Hovey court 
concurred. Jurow's finding that "2 percent of his 211 subjects fell 
into the 'automatic death penalty' category . . . did not afford a 
reliable basis for generalizing to the percentage of such jurors 
in the entire population, since . . . [it] was [not] based on a
random sample of the population." (28 Cal.3d at 64 n.lll; see also 
id.., at 63 n.109 and accompanying text.) (Jurow's finding was
based on interviews with 211 workers at one plant.)

Dr. Kadane stated that he had not read the Smith study. (Word 
& Sparks RT 89-95.) However, the Smith study -- which was before 
the court in Hovey -- contains only "tentative indications" as to 
the number of automatic death penalty jurors (28 Cal.3d at 64); it 
has no data on the issue, as the Hovey opinion reflects. The 
"suggestion" in Smith relating to this question (see id., at 64, 
n. Ill) is contained in data from a 1973 Harris poll (see Smith, 
supra, Appendix 2 for the text of the relevant questions) which 
merely indicate that 28% of the 1973 national sample favored 
the death penalty for all persons convicted of first degree 
murder. The 1973 Harris survey contains no indication of how many 
of these people, as jurors, would have personally voted for the 
death penalty, automatically, in every capital case, much less 
how many of them would have done so in the face of explicit legal

23 [cont'd .]



Third, the District Court then argues that Dr. Kadane's 

conclusions are untrustworthy because he has no data on the "be­
havioral characteristics that an always-death group might possess," 

and the Court speculates that this group might have a disproportionate 

impact if it "tended to vote in a unified fashion." (Order at 8).

This is plain error. Dr. Kadane assumed that this group would vote 

in a unified fashion, and that it would be as pro-prosecution as 
possible. His findings of bias are reliable precisely because he 

makes such a conservative assumption, and therefore necessarily 
understated the bias that the process of death-qualification produces. 

The District Court completely missed this important point.
The basic problem with the District Court's evaluation of 

Dr. Kadane's research is that the Court purports to resolve contested 

factual issues without a hearing. The errors the Court makes —  its 

remarkable oversights and extreme misinterpretations of the evidence 

—  are classic examples of the most basic reason why such in camera 

fact finding is prohibited: because it leads almost inexorably to

error. In this case the errors are all the more glaring because they 

contrast harshly with the actions of other federal courts faced with 

the identical issue. Evidence that was rejected here without a

instructions to them, as jurors, to consider all possible penalties. 
Faced with this evidence, the court in Hovey concluded that "there 
is no reliable data" on the size of the automatic death penalty 
group. (I_d. , at 6k.)

2k



hearing was found to be valid and reliable after a hearing by 

another federal court, Keeten v. Garrison, supra, 578 F. Supp. 

at 1175-77; and while the District Court here speculates that 

there may be more ADPs than the 1% Dr. Kadane estimated, other 

federal courts —  examining Dr. Kadane's underlying data in 

light both of competing evidence and of testimony on direct and 

cross-examination —  found that the number of ADPs is negligible. 

Grigsby v. Mabry, supra, 558 F. Supp. at 1308, aff'd , 758 F.2d at 

238. The Court's key factual assumptions are thus unwarranted.
II

BECAUSE DEATH-QUALIFIED JURIES ARE BIASED IN 
FAVOR OF THE PROSECUTION AND UNDULY PRONE TO 
CONVICT, THE USE OF SUCH JURIES TO TRY THE 
GUILT OR INNOCENCE OF CAPITAL DEFENDANTS 
VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS
Although the District Court does not refer to this issue, 

other circuits have held that the fact that death-qualified juries 

may be biased in favor of the prosecution and unduly prone to con­
vict is of no constitutional significance. The leading case in this 

line is Spinkellink v. Wainwright, 578 F.2d 582, 594- (5th Cir. 1978). 

If it disposes of the factual and procedural questions and ultimately 

reaches the legal merits on this appeal, we urge this Court to 
reject such an erroneous view of the Sixth Amendment. As noted 

earlier, the Fifth Circuit held in Spinkellink that
"[w]hen petitioner asserts that a death- 
qualified jury is prosecution-prone, he 
means that a death-qualified jury is more 
likely to convict than a non-death-qualified 
jury . . . .  Even if this is true the peti­
tioner's contentions must fail. That a 
death-qualified jury is more likely to convict 
than a non-death-qualified jury does not 
demonstrate which jury is impartial."
(Id. at 594.)

25



With due respect to the Fifth Circuit, the argument does not make 

sense. If ordinary, non-death-qualified juries are acquittal- 

prone and unfair, why are they used in all criminal trials except 

capital cases? Could a State seriously contend that it would not 
have received a fair trial if petitioner had been tried for non­

capital murder, because his jury would have been acquittal- 
prone? The issue here is whether a 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, and then death-qualifying the guilt-or-innocence jury.

Such an argument, moreover, is squarely refuted by Wither- 

spoon. The Supreme Court in Witherspoon condemned the systematic 

exclusion of opponents of the death penalty from capital juries be­

cause 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. However, 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 that community. Pre-Witherspoon juries 
failed that test because they were "uncommonly willing to condemn 

a man to die." Id., at 521.
The Spinkel1 ink position necessarily implies that a 

lesser standard of reliability governs determinations of guilt 

in capital cases than do determinations of penalty -- that a jury 

"uncommonly willing" to convict on capital charges is

26



constitutional despite the holding in Witherspoon. There is no 

justification for this distinction, and it is directly refuted 

by Witherspoon itself. The Court there recognized that a de­

fendant might someday prove that death-qualified juries are 

guilt-prone, and stated:
"If he were to succeed in that effort, the question 
would then arise whether the State1s interest in 
submitting] the penalty issue to a jury capable of 
imposing capital punishment may be vindicated at the 
expense of the defendant's interest in a completely 
fair determination of guilt or innocence -- given 
the possibility of accommodating both interests by 
means of a bifurcated trial, using one jury to decide 
guilt and another to fix punishment."

391 at 520 n .18 (emphasis added). The Supreme Court's question,

we submit, is rhetorical: the State's interest in using a single
jury in capital cases cannot possibly outweigh the right to a

fair trial. The Eighth Circuit addressed and disposed of the

Spinkellink argument in Grigsby v. Mabry:

"We feel the reasoning of Spinkellink 
. . . fails to analyze or decide the
fundamental issue . . . The issue is
not whether a jury would be biased one 
way or the other, but whether an impartial 
jury can exist when a distinct group in the 
community is excluded by systematically 
challenging them for cause. As the district 
court noted, the petitioners were not seeking

_9_/

9/ In Beck v. Alabama, 4.27 U.S. 625 (1980), the Supreme Court 
has expressly held that the higher standard of procedural fairness 
required at the penalty phase of the capital trials extends to 
the guilt-or-innocence phase as well: "To ensure that the
death penalty is indeed imposed on the basis of 'reason rather 
than caprice or emotions,' we have invalidated procedural rules 
that tended to diminish the reliability of the sentencing 
determination. The same reasoning must apply to rules that 
diminish the reliability of the guilt determination." Id. at 
638 (emphasis added).

27



a jury composed entirely of [Witherspoon 
excludables]; what petitioners sought was 
a 'jury drawn from the entire cross section 
of the community as a whole, including both 
those who strongly favored the death penalty 
and those who strongly opposed it.'"

Grigsby v. Mabry, supra, 758 F.2d at 24-0-4-2.

CONCLUSION

When Witherspoon was decided in 1968, the evidence 

on the possible bias of death-qualified juries was "too tentative 

and fragmentary. " Witherspoon v. Illinois, supra, 391 U.S. at 517 

n.10. Since that time, however, the scientific evidence has be­

come definite and whole, and totally one-sided. It has convinced 
two federal district courts; it is the basis for a major en banc 

decision by the Eighth Circuit; and it will likely be soon re­

viewed by the Supreme Court. See Witt v. Wainwright, __U.S. __,

8k L .Ed.2d 801 (Marshall & Brennan, JJ., dissenting from denial 

of certiorari)("This Court is certain to grant certiorari in the 

immediate future to resolve this issue.")
It would be appropriate and correct for this Court to 

accept the factual findings of the Eighth Circuit and follow 

Grigsby v. Mabry. The Supreme Court expressed some concern in 
Witherspoon that the studies adduced there had not been presented 

initially at the trial court level, see 391 U.S. at 517 n.ll. 

Similarly, several justices in Ballew v. Georgia, 4-35 U.S. 223 

(1978) were troubled that studies relied upon there by the 
majority had never been "subjected to the traditional testing 

mechanisms of the adversary process." 4-35 U.S. at 24-6. But the

28



overwhelming evidence here has been thoroughly tested in a 

number of lower courts, and it may not be necessary for every 

court that faces this claim to hear it again at the trial 

level.
It would be inappropriate, however, to rely upon the 

present record to reject petitioner's factual contentions. The 

District Court's adverse findings are the product solely of 

surmise and speculation, not adversary testing. If the Court 

concludes that the Grigsby and Word & Sparks records do not yet 

constitute a sufficient factual foundation upon which to base 

its legal conclusion, the case should be remanded so that full 

evidence may be presented on the factual issues that remain in 

dispute.
Dated: New York, New York

July 1, 1985
Respectfully submitted,

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER 
DEVAL L. PATRICK

99 Hudson Street
New York, New York 10013
(212) 219-1900

ANTHONY G. AMSTERDAM 
New York University 
School of Law
4-0 Washington Square South 
New York, New York 10012 
(212) 598-2638

ATTORNEYS FOR AMICUS CURIAE



STATEMENT OF RELATED CASES

Amicus curiae is not aware of any cases currently 

pending in this Court which related to the issues it has 

addressed in this brief.

30



CERTIFICATE OF SERVICE

I hereby certify that I am counsel for amicus

curiae NAACP Legal Defense & Educational Fund, Inc., and

that I served the annexed motion for leave to file brief

amicus curiae and brief amicus curiae on the parties to

this action, by placing copies in the United States mail,

first class mail, postage prepaid, addressed as follows:
Michael J. McCabe, Esq.
108 Ivy Street
San Diego, California 92101

Charles M. Sevilla, Esq.
1010 Second Avenue, Suite 1001 
San Diego, California 92101

Michael Wellington, Esq.
Office of the Attorney General 
110 West "A" Street, Suite 700 
San Diego, California 92101

All parties required to be served have been served. 

Done this 1st day of July, 1985.

P  /; /I
/ ,6'



APPENDIX A



APPENDIX A

This Appendix is provided for the convenience of the 

Court to summarize the major studies on death-qualification that 
have been presented to the courts. The studies are divided into 

four major categories: (i) studies on the relation between sub­

jects' death penalty attitudes and their demographic characteristics 

and other criminal justice attitudes (pages 1-6, infra);
(ii) studies on the relation between subjects' death penalty 

attitudes and their behavior as jurors in actual or simulated 

trials (pages 6-14,infra); (iii) other related studies on the 
relationship between death penalty attitudes and behavior in 
capital cases (pages 11-14,infra); and (iv) studies on the incidence 

of "automatic death penalty jurors" in the population (pages 14-15, 

infra).
I. ATTITUPINAL AMD DEMOGRAPHIC SURVEYS 

1. BRONSON - COLORADO, 1970 

AUTHOR: BRONSON, Edward C.
TITLE: "On the Conviction Proneness and Representativeness of
the Death-Qualified Jury: An Empirical Study of Colorado
Veniremen," 42 Colo. L. Rev. 1 (1970).
CITATIONS: Hovey v. Superior Court, 28 Cal.3d 1, 43-44,_616^P^
2d 1306, 1327-28 (1980); Grigsby v. Mabry, 569 F. Supp. 1273, 1293-
94 (E.D. Ark. 1983); 758 F .2d 226, 232 (8th Cir. 1985)(en banc); 
Keeten v. Garrison, 578 F. Supp. 1164, 1172 (W.D.N.C. 1984).

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-Colorado, 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).
CITATIONS: Hovey, 28 Cal.3d at 47-4-9, 616 P . 2d at 1330-33; Grigsby,
569 F. Supp. at 1293-94; 758 F .2d at 232-33; Keeten, 578 F. Supp. at 
1172-73.
SUMMARY:

The studies grouped together in Bronson - California, 1980 

are similar in methodology and results to the Bronson - Colorado, 1970 

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 - Colorado, 1970, respondents were asked to indicate 

their position regarding the death penalty on a scale from "strongly

2



They were also asked whether theyfavor" to "strongly oppose." 
agreed or disagreed with seven statements: five that were nearly

identical to the one used in Bronson - Colorado, 1970, and two 

additional criminal justice items. The findings of the Butte County 

survey closely parallel those in Bronson - Colorado, 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 admin­

istered a slightly modified questionnaire to a sample of 707 venire- 

persons from Los Angeles, Sacramento and Stockton, California.

(Bronson - Los Angeles, 1980). These interviews were carried out in 

late 197k 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 
there were marked attitudinal differences between the "sbrcngly 

oppose" group and the other three groups combined.
In a followup survey on some kOO Butte County prospective 

venirepersons in June 1971, Bronson found that 93% of those who 

"strongly opposed" the death penalty would be legally excludable 

under Witherspoon.

3. HARRIS, 1971

AUTHOR: LOUIS HARRIS & ASSOCIATES, INC.
TITLE: Study N.o. 2016 (1971).
CITATIONS: Hovey, 28 Cal.3d at k5-k7, 616 P .2d at 1328-30; Grigsby,
569 F. Supp. at 1293-9k; 758 F .2d at 233; Keeten, 578 F. Supp. at 
1173-7k.
SUMMARY:

Harris, 1971 is a detailed national opinion survey on 

attitudes toward the death penalty, and the first study in which
3



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 crim­

inal justice system, death-qualified respondents were consistently 
more likely to favor the prosecution's position than Witherspoon- 

excludable respondents. Harris, 1971 also found that more blacks 

than whites would be excluded from jury service by death qualifica­

tion (4-6% vs. 29%), and more women than men (37% vs. 24%). (Harris,
1971 also collected data on the voting behavior of the respondents 

as jurors in criminal trials; see infra, at g-io).

4. NATIONAL POLL DATA
AUTHOR: LOUIS HARRIS & ASSOCIATES, INC.: AMERICAN INSTITUTE FOR
PUBLIC OPINION (Gallup); 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).
CITATIONS: Hovey, 28 Cal. 3d at 54-57, 616 P .2d at 1337-39.

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.
4



5. ELLSWORTH ATTITUDE SURVEY, 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 (198A).
CITATIONS: Hovey, 28 Cal.3d at 50-54, 616 P .2d at 1333-37; Grigsby,
569 F. Supp. at 1293-94; 758 F .2d at 233; Keeten, 578 F. Supp. at 
1171-72.

SUMMARY:
The Ellsworth Attitude Survey, 1979 is the most sophisticated 

of the surveys that have examined the relationship between death-qual­

ification and juror attitudes. The respondents in the Ellsworth 

Attitude Survey, 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 Corpora­
tion of San Francisco, an independent professional polling organization.

The respondents in the Ellsworth Attitude Survey, 1979 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

5



survey ctXso 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
CITATIONS: Grigsby, 569 F. Supp. at 1294; 758 F .2d at 233.

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 the Ellsworth Attitude Survey, 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).
CITATIONS: Hovey, 28 Cal.3d at 27-30, 616 P .2d at 1315-17; Grigsby,
569 F. Supp. at 1295-96; 758 F.2d at 233; Keeten, 578 F. Supp. at 
1174.

6



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 391 U.S. 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? (iii) 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 deter­

mined what subjects with scruples against the death penalty voted to 

acquit significantly more often then those without scruples against 

the death penalty.

2. WILSON, 1964 

AUTHOR: WILSON, W. Cody
TITLE: "Belief in Capital Punishment and Jury Performance,"
unpublished (1964).
CITATIONS: Hovey, 28 Cal.3d at 32-33, 43; 616 P .2d at 1318-19, 1327;
Grigsby, 569 F. Supp. at 1295; 758 F .2d at 233-34; Keeten, 578 F. Supp. 
at 1174.

SUMMARY:
Wilson, 1964 was the first experimental study on the 

conviction-proneness of death-qualified jurors. The subjects --

7



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 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)
TITLE: "Toward Expansion of Witherspoon: Capital Scruples Jury
Bias, and the Use of Psychological Data to Raise Presumptions in 
the Law," 5 Harv. C.R.-C.L.L. Rev. 53 (1970).
CITATIONS: Hovey, 28 Cal.3d at 30-31; 516 P .2d at 1317-18; Grigsby, 
569 F. Supp. at 1295; 758 F .2d at 233; Keeten, 578 F. Supp. at 1174.

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).

8



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).

CITATIONS: Hovey, 28 Cal.3d at 33-36; 616 P .2d at 1319-21; Grigsby,
569 F. Supp. at 1296-97; 758 F .2d at 234; Keeten, 578 F. Supp. at 
1174.
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
9



CITATIONS: Hovey, 28 Cal.3d at 36-37, 616 P .2d at 1321-23; Grigsby, 
569 F. Supp. at 1297-98; Keeten, 578 F. Supp. at 1173-74.

SUMMARY:
The Harris, 1971 study, in addition to its attitudinal

and demographic data (see supra pp. 3-4) 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 CONVICTION-PRONENESS STUDY, 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).
CITATIONS: Hovey, 28 Cal.3d at 38-40, 616 P .2d at 1323-25; Grigsby, 
569 F. Supp. at 1298-1301; 758 F .2d at 234; Keeten, 578 F. Supp. at 
1174-75.

SUMMARY:
Ellsworth Conviction-Proneness Study, 1979 is the most 

sophisticated of the experimental studies on the conviction-prone- 

ness of death-qualified jurors. Its subjects -- 288 jury eligible
1 0



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\ 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 (1982).
CITATIONS: Hovey, 28 Cal.3d at 39-20, 57-58, 60; 616 P .2d at 1322- 
25, 1339-21; Grigsby, 569 F. Supp. at 1302.

SUMMARY:
After filling out their written ballots, most of the 

subjects in the Ellsworth Conviction-Proneness Study, 1979 (see 

supra pp. 10-11 —  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-qual­

ified subjects, and half included two, three, or four Witherspoon-
1 1



excludable subjects ("mixed juries"). After the one-hour delib­

eration, 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-qual­

ified 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 (prose­

cution and defense) more critically than did subjects on death-qual­

ified juries; (iii) subjects on mixed juries remembered the facts of 

the case better than those on death-qualified juries.
2. ELLSWORTH WITNESS CREDIBILITY STUDY, 1979

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 
Human Behavior, Issue 1-2, pp. 95-113 (1984.).
CITATIONS: Hovey, 28 Cal.3d at 59-60, 616 P .2d at 1340-41; Grigsby, 
569 F. Supp. at 1302; 758 F .2d at 234; Keeten, 578 F. Supp. at 1175.

SUMMARY:
Twenty death-qualified and 16 Witherspoon-excludable 

subjects who had participated in the Ellsworth Conviction-Proneness 

Study, 1979 (see supra, pp. 10-11) were shown a videotape of a prose­

cution witness (a police officer) and a defense witness (a possible 

defendant) giving two versions of an incident; they then answered

1 2



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 Witherspoon-excludable subjects 

(on 10 of the 16 questions 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.) .
CITATIONS: Hovey, 28 Cal.3d at 75-79, 616 P .2d at 1350-53; Grigsby, 
569 F. Supp. at 1302-05; 758 F .2d at 234; Keeten, 578 F. Supp. at 
1175-76.

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 Conviction-Proneness Study, 1979 (see supra, 

pp. 10-11) 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

13



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 (ADP'S)

1. Harris, 1981

AUTHOR: LOUIS HARRIS & ASSOCIATES, INC.

TITLE: Study No. 814002 (1981)
CITATIONS: Grigsby, 569 F. Supp. at 1307; 758 F .2d at 236; Keeten,
578 F. Supp. at 1170.

SUMMARY:
This national Harris survey of a sample of 14-98 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)
CITATIONS: Grigsby, 569 F'. Supp. at 1307; 758 F . 2d at 234.

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
14



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. 54-4-552 (1983) (see also 8 
Law and Human behavior, Issue 1-2, pp. 115-120 (1984-) for a 
more concise account).
CITATIONS: Keeten, 578 F. Supp. at 1176-77.

SUMMARY:
In this study Dr. Kadane reanalyzed the results of the 

Ellsworth Attitude Survey, 1979 (see supra, pp. 5-6) and the 
Ellsworth Conviction-Proneness Study, 1979 (see supra,pp. 10-11) 

using data from the Harris, 1981 (see supra, p. 14) 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.

the death penalty upon conviction, in every capital case.

15



APPENDIX B



Juries Hearing Death Penalty Cases: Statistical
Analysis of a Legal Procedure

JOSEPH B. KADANE*

Potential jurors in capital cases are often queried on their 
attitudes toward capital punishment. The extreme groups 
say they would never or they would always approve cap­
ital punishment, given a guilty verdict. In many jurisdic­
tions, these two groups are routinely excluded from juries 
deciding whether the defendant is guilty in capital cases. 
This exclusion persists even when the potential jurors say 
they could be fair and impartial in deciding guilt or in­
nocence. The current study shows that this exclusion cre­
ates a bias that almost certainly works against the de­
fendant.
KEY WORDS: Death penalty; Law; Missing datapBaye- 
sian analysis; Survey research.
This article considers a question of current legal inter­

est: whether the present jury selection procedure used in 
cases in which capital punishment is a possibility is biased 
against the defense. Section 1 gives the legal background 
of the question addressed here. Section 2 describes two 
major studies on jurors in capital cases that were recently 
presented to the California Supreme Court in Hovey v. 
Superior Court (1980): the Fitzgerald and Ellsworth 
(1984) work on the attitudes of jurors favoring either the 
defense or the prosecution, and the Cowan, Thompson, 
and Ellsworth (1984) experiment on juror behavior. The 
response of the California Supreme Court in Hovey is 
then discussed. Section 3 introduces the basic measures 
used in this article, and applies them to the Fitzgerald 
and Ellsworth, and the Cowan, Thompson, and Ellsworth 
data. Section 4 reviews two surveys on attitudes toward 
the death penally conducted since Hovey. a Field Re­
search Corporation survey of Californians and a Harris 
national survey. Then Section 5 gives the assumptions 
needed to justify the likelihood function. Section 6 gives 
the numerical results and discusses their implications. 
Substantial evidence of bias against the defense is found.

1. LEGAL BACKGROUND

Some 90 percent of the criminal cases prosecuted in 
America are settled by plea bargaining without a trial. Of

* Joseph B. Kadane is Professor of Statistics and Social Science, 
Carnegie-Mellon University, Pittsburgh, PA 15213. The author thanks 
Don Rubin for continuing to act as Editor for this article beyond the 
expiration of his term He also thanks Morris DeGroot, Pheobe 
Ellsworth, Eugene Ericksen, Steve Fienberg, Robert Fitzgerald, Robert 
Kass, Jill Larkin, Kathy Blaekmond Laskey, Timothy McGuire, and 
Michael Shamos for their comments and help. The referees and As­
sociate Editor gave unusually helpful comments. This article is a re­
vision of the paper that was the basis for the author's testimony in 
People v. Word and Sparks, California Superior Court, 31 August and 
I September 1981.

the remainder, fewer than half are heard by juries. And 
of those heard by juries, in only a portion is the outcome 
truly in doubt. Hence in terms of frequency of invocation, 
a trial by jury is the exception rather than the rule. None­
theless, juries play a vital role in American criminal law. 
Because every defendant has the right to a trial by jury, 
the likely outcome were the case to go to a jury forms 
the background to a plea bargain or an agreement to let 
a judge decide the case without a jury. It is precisely the 
unusual case in which the jury has to work hard that sets 
the tone for the system as a whole. As but one example, 
the refusal of a jury in New York City to convict John 
Peter Zenger of sedition for printing criticism of British 
Colonial authorities established practical freedom of the 
press in that era and context even before the American 
Revolution (Alexander 1963).
In each state and in each federal district, law and court 

rules establish the basic lists from which juries are to be 
chosen (see Van Dyke 1977, Appendix A). Generally the 
list of those registered to vote is used, although recently 
proposals have been made to supplement the voters list 
with others (Kadanq_and Lehoczky 1976; Kairys, Ka- 
dane, and Lehoczky 1977). These people are then sum­
moned to appear on a particular day, to serve for a set 
length of time. (To avoid large numbers of excusals, some 
jurisdictions have reduced the duration of service to one 
day or one trial.)
When a case is ready to be heard by a jury, a group of 

summoned potential jurors are examined— usually by the 
judge, often by the attorneys as well— to see if they 
should be excused from the case for cause. The reasons 
a person may be excused for cause are restricted to those 
that would directly impair their ability to hear the case 
impartially, for example being a close relative of the de­
fendant, the victim, or one of the attorneys, or having a 
fixed opinion on the defendant’s guilt. In addition, the 
law provides for peremptory challenges for each side (dif­
ferent numbers in,.each state, see Van Dyke 1977, Ap­
pendix D), which can be used by the defense or the pros­
ecution to eliminate potential jurors without having to 
explain their reasons.
In capital cases jurors are also questioned on their 

views about the death penalty, and some are excused 
because of their attitudes toward the death penalty. At 
one time all jurors w'ho opposed the death penalty were 
excluded from capital cases. In Witherspoon v. Illinois

© Journal of the American Statistical Association 
September 1983, Volume 78, Number 383 

Applications Section



K a d a n e : D e a th  P en a lty  Juries 5 4 5

(1968) the Supreme Court limited this practice. Under 
Witherspoon the only jurors who may be constitutionally 
excused from capital cases for cause because of their op­
position to the death penalty are those who say either (a) 
that they would automatically vote against the death pen­
alty in every capital case, regardless of the evidence, or 
(b) that they could not be fair and impartial in deciding 
a capital defendant's guilt or innocence. In addition, in 
some states— notably California— jurors are also ex­
cused for cause from capital cases if they state that they 
would automatically vote for the death penalty in every 
capital case in which they made a finding of first degree 
murder and aggravated circumstances, regardless of the 
evidence. This article analyzes the Cafifornia procedure.
Commonly in capital cases a single jury decides both 

(a) the guilt or the innocence of the defendent and (b) if 
the defendent is convicted of a capital offense, the pen­
alty. Undercurrent practice jurors who would never vote 
for the death penalty and jurors who would always vote 
for the death penalty are excluded from the guilt or in­
nocence phase of a capital trial even though they say they 
could fairly and impartially try that issue. The Supreme 
Court recognized in Witherspoon that this practice might 
be prejudicial to the capital defendant in the determina­
tion of guilt or innocence (Witherspoon v. Illinois, p. 520, 
fn. 18). This article examines whether the practice is in 
fact prejudicial.

2. RECENT STUDIES AND THE HOVEY DECISION

For our analysis, consider each potential juror to be in 
one and only one of the following four groups:
A|t those who say they would not decide the question 

of guilt or innocence in a fair and impartial manner;
A2: those who say they are fair and impartial, and say 

they would ALWAYS vote for the death penalty, 
regardless of the facts, if the defendant is found 
guilty;

A3: those who say they are fair and impartial, and say 
they would NEVER vote for the death penalty, 
regardless of the facts, if the defendant is found 
guilty;

A4: those who say they are fair and impartial, who say 
they would consider the death penalty and would 
SOMETIMES AND SOMETIMES NOT vote for 
it, depending on the facts, if the defendant is found 
guilty.

There are two other groups for which it is useful to 
have notation:
A5: those who say they are fair and impartial, who say 

they would consider the death penalty and would 
AT LEAST SOMETIMES vote for it, if the de­
fendant is found guilty (A5 "= A2 U A4);

A6: those who say they are fair and impartial, and say 
they would ALWAYS OR NEVER vote for the 
death penalty (A6 = A2 U A3), if the defendant is 
found guilty.

Under the procedure in effect in California and various 
other states, the question that the Supreme Court left 
open in Witherspoon can be restated as follows: does the 
exclusion from the pool of jurors who could fairly and 
impartially try a capital defendant’s guilt or innocence of 
two groups of jurors— the automatic death penalty (or 
ALWAYS death penalty) group, and the automatic life 
imprisonment (and hence NEVER death penalty) 
group— bias the jury pool against the defendant?
In 1980, a major presentation citing many studies was 

made to the California Supreme Court on this question. 
Two of these studies will be reviewed here in detail be­
cause they are the most recent and most thorough of their 
respective types. The first, by Fitzgerald and Ellsworth 
(1984), studies the relationship between attitudes toward 
capital punishment and attitudes on other relevant crim­
inal justice issues. A questionnaire was administered to 
811 persons eligible for jury duty in Alameda County, 
California at random by random digit dialing by the Field 
Research Corporation of San Francisco, CA. The ques­
tionnaire asked whether they could decide the question 
of guilt or innocence fairly and impartially; 717 respond­
ents indicated that they could. (The remaining analyses 
are limited to those self-designated fair and impartial re­
spondents.) They were also asked whether their views on 
capital punishment were such that they could never vote 
to impose it, or whether they would vote to impose it in 
some cases. The results are shown in Table 1.
Fitzgerald and Ellsworth summarize these data by find­

ing that those who would AT LEAST SOMETIMES im­
pose the death penalty “were consistently more prone to 
favor the point of view of the prosecution, to mistrust the 
criminal defendant and his counsel, to take a punitive 
attitude toward criminals, and to be more concerned with 
crime control than with due process.” By contrast, those 
who would NEVER impose the death penalty “tended 
to be more concerned with mercy, more oriented toward 
due process, and less mistrustful of the defendant and his 
legal representative.” These findings confirm those of 
Bronson (1970) and of Vidmar and Ellsworth (1974) that 
jurors’ attitudes with respect to whether they would ever 
impose the death penalty are related to many other juror 
attitudes of concern to a defendant seeking a fair trial.
The second study of major interest here, by Cowan, 

Thompson, and Ellsworth (1984), reports an experiment 
relating attitudes toward capital punishment to simulated 
juror behavior. In this study, 288 adults eligible for jury 
service in California were shown a videotaped reenact­
ment of an actual murder trial that occurred in Boston. 
Thirty-seven subjects were recruited from venire lists of 
the Santa Clara Superior Court after completing their 
terms, 218 responded to a newspaper advertisement for 
volunteers for a study of “how juries make decisions,” 
and 33 were referred by friends who had seen the ad­
vertisement.
The tape included appropriate instructions to the jury 

on California law. All the subjects in this study said they 
would be fair and impartial in deciding guilt or innocence; 
30 would NEVER impose capital punishment, the other



546 Jou rn a l o f the  A m e r ic a n  S tatis tical A ssoc ia tio n , S e p te m b e r  1983

Table 1. The Relationship Between Attitudes of Jurors on the Death Penalty and Defense Bias Items (from 
Fitzgerald and Ellsworth). Percent of Death Penalty Groups NEVER (A3) and AT LEAST SOMETIMES (A5)

Giving Each Answer and the Number Answering
Agree

Group of Respondent Strongly
Agree

Somewhat
Disagree

Somewhat
Disagree
Strongly

Number
Answering

1. Better some guilty go free NEVER 32.5 30.0 20.8 16.7 120
ALS 16.1 27.9 27.2 28.9 585

2. Failure to testify indicates NEVER 10.9 12.6 31.9 44.5 119
guilt ALS 16.0 16.3 39.5 28.2 582

3. Consider worst criminal for NEVER 40.2 37.6 10.3 12.0 117
mercy ALS 15.0 29.0 15.5 40.5 575

4. District attorneys must be NEVER 21.2 31.9 32.7 14.2 113
watched ALS 24.0 25.0 26.4 24.6 568

5. Enforce all laws strictly NEVER 22.3 24.0 25.6 28.1 121
ALS 38.1 19.0 25.3 17.6 585

6. Guilty if brought to trial NEVER 14.9 11.6 17.4 56.2 121
ALS 17.2 15.1 17.7 49.9 581

7. Exclude illeaaly obtained NEVER 50.0 13.9 17.2 18.9 122
evidence ALS 38.4 18.1 24.0 19.6 576

8. Insanity plea is a loophole NEVER 27.5 31.7 22.5 18.3 120
ALS 51.5 26.5 13.7 8.3 581

9. Harsher treatment not NEVER 55.0 25.0 14.2 5.8 120
solution to crime ALS 32.7 26.3 17.9 23.1 571

10. Defense attorneys must be NEVER 21.0 43.7 23.5 11.8 119
watched ALS 38.9 34.6 17.4 9.1 581

Unemployment Crime Number Answering
11. More serious problem: NEVER 50.4 49.6 117

Unemployment, crime ALS 37.5 62.5 581

Would Not Consider Would Consider
12. Consider confession NEVER 60.2 39.8 118

reported by news media ALS 49.1 50.9 581

Should not infer Should infer
13. Infer guilt from silence NEVER 86.0 14.0 118

ALS 76.0 24.0 588

NOTE: NEVER = NEVER vote for Death Penalty. ALS = AT LEAST SOMETIMES vote for death penalty.

258 would impose it AT LEAST SOMETIMES. After 
having seen the videotape, the jurors were asked whether 
they would vote for conviction of first-degree murder, 
second-degree murder, or manslaughter, or for acquittal. 
The data collected suggested that the only real issue in 
the case was the choice between manslaughter and ac­
quittal. Over 70 percent of the subjects in each category 
voted for one of these verdicts on the initial ballot; in a 
second ballot taken after an hour’s deliberations this fig­
ure rose to over 80 percent for each group. Accordingly, 
the focus of the analysis by Cowan, Thompson, and 
Ellsworth was on the dichotomy in the initial ballot be­
tween conviction and acquittal, rather than on the pos­
sible levels of conviction. The results of the study are 
given in Table 2.
Cowan, Thompson, and Ellsworth conclude from the 

data in Table 2 that jurors in the AT LEAST SOME­
TIMES group are more likely to convict than are jurors 
in the NEVER group. Similar experiments are reported 
by Goldberg (1970), Jurow (1971), and Wilson (1964).
The California Supreme Court in its Hovey decision

reviewed both the Fitzgerald and Ellsworth attitude study 
and the Cowan, Thompson, and Ellsworth study of juror 
behavior in a simulated trial. The court found the evi­
dence relevant and persuasive except for one fact: both 
studies included the automatic death penalty group (AL­
WAYS) with those who would SOMETIMES AND 
SOMETIMES NOT impose the death penalty, rather 
than with the automatic life imprisonment group

Table 2. Juror Attitudes Toward Capital Punishment 
and Behavior in a Simulated Trial (from Cowan, 

Thompson, and Ellsworth). Percent of Death Penalty 
Groups NEVER (A3) and AT LEAST SOMETIMES 
(A5) giving Each Verdict, and their Number

Acquit Convict Number

NEVER 46.7 53.3 30
ALS 22.1 77.9 258

NOTE. NEVER = NEVER vote for death penalty. ALS = AT LEAST SOMETIMES vote for 
death penalty.



K a d a n e : D e a th  P en a lty  Juries
547

(NEVER). Thus the court remained unconvinced that the 
exclusion of both the ALWAYS and the NEVER groups 
results in a bias against the defense, and consequently it 
did not find the form of death qualification in use in Cal­
ifornia to be legally flawed. In the remainder of this article 
the Fitzgerald and Ellsworth study and the Cowan, 
Thompson, and Ellsworth study are extended to take into 
account the effect of moving the automatic death penalty 
group from the AT LEAST SOMETIMES to join the 
NEVER group in a new group called NEVER OR AL­
WAYS (A6).

3. STATISTICAL MEASURES'f
That groups of people that differ in one respect (here 

views on the death penalty) differ also in others (attitude 
on the Fitzgerald-Ellsworth survey items and behavior in 
the Cowan-Thompson-Ellsworth experiment) is unsur­
prising. It is apparent in the data from Tables 1 and 2 that 
those who would consider voting for the death penalty 
are consistently more favorable to the prosecution than 
those who would never do so. It is not obvious, however, 
how strongly each item reveals a more favorable attitude 
toward the prosecution among the AT LEAST SOME­
TIMES (A5) group than among the NEVER (A,) group. 
To be most helpful to the court, I looked tor measures 
to quantify this difference, so that the court could judge 
whether the differences shown are sufficiently large to 
require the imposition of a new procedure for jury selec­
tion. >
There are several sources in the statistical literature for 

measures of association: the measures proposed and 
studied by Goodman and Kruskal (1954,1959,1963,1972), 
the literature on log-linear models, and the nonparametric 
literature. In this section, I first reorient the data in Tables 
1 and 2 so that answers favorable to the defense would 
be early, and answers favorable to the prosecution late, 
in the numbering system. Then I introduce the measure 
I chose, and explain its interpretation and relation to oth­
ers not chosen. Finally I disuss the statistical model ap­
propriate to the data of Tables 1 and 2 and apply the 
chosen measure to these data.
Suppose items are indexed with an integer subscript g. 

Thus in considering the Fitzgerald and Ellsworth data, g 
- 1, 2, . . . , 13. Also, suppose that item g has ng re­
sponses. Then for the Fitzgerald and Ellsworth data, nt 
= n2 = ■■■ = nio = 4, and «n = ni2 = flu = 2. The ng 
responses can then be reordered if necessary so that re­
sponse 1 is most favorable to the defense, and response 
ng most favorable to the prosecution. This requires re­
versal of items 2, 5, 6, 8, and 10 in Table 1. The data in 
Table 2 do not require this reordering.
Recall that groups holding the views A3 (NEVER) and 

A5 (AT LEAST SOMETIMES) are of interest here. Sup­
pose for the moment that the numbers p,-./ were known, 
where p,-./ is the proportion of jurors holding views A / on 
capital punishment (/ = 3 or 5), taking position i (1 ii 
< ng) on an item g. How might these numbers be sum­

marized in a single number representing how much more 
favorble to the defense is a typical juror in group A3 by 
comparison with a juror in group As on item g?
One convenient notion, borrowed from nonparametric 

statistics, is the probability that a random juror from 
group A3 has a view less favorable to the defense than 
does a random juror from group As (with ties being re­
garded as equally likely to go in either direction). The 
Mann-Whitney Statistic (1947) is an unbiased estimate of 
this probability (Fraser 1957). Expressed symbolically,

Wg = 2  P‘-S (2 Pi'-3 + -P'*3)* (!)I* I 1*36/
As an example, we do the calculations for question 12 

or Table 1, interpreting the proportions from the data as 
if they were probabilities in the entire population.

W 12 = Pl.5(P2.3 + P 1.3/2) + P2.5 (P2.3/2)
= .491 (.398 + .602/2) + .509(.398/2)
= .4445.

Thus, for this example, the probability is less than 45 
percent that a random NEVER juror is less favorable to 
the defense than is a random AT LEAST SOMETIMES 
juror on question 1 2, which relates to consideration of a 
confession reported in the news media.
It is convenient to reexpress Wg in odds form as

<t>, = (1 -  Wg)/\Vg.

In the example <(>12 = .5555/.4445 = 1.25. Thus the 
odds are 1.25 to 1, or 5 to 4, that a random juror in group 
A3 (NEVER) is more favorable to the defense on item 12 
than is a random juror in group A 5 (AT LEAST SOME­
TIMES). If 4>k is greater than 1, this would indicate bias 
against the defense in the AT LEAST SOMETIMES 
group compared with the NEVER group; if 4>K is less than 
1, this would indicate bias against the prosecution; finally, 
if <bs is exactly 1, this would indicate no bias on item g. 
(This is why the reorientation of the data is convenient.)
The measures studied by Goodman and Kruskal (1963), 

particularly their measures y and Somers’s (1962) A are 
possible alternatives. Somers’s measure and the Mann- 
Whitney W  are related by

A = 1 -  2\Vg

so that d> = (1 + A)/(l - A). Another alternative source 
of inspiration is the log-linear model literature, in which 
the work of Haberman (1974) specifically addresses ta­
bles with ordered classifications. Somers pointed out that 
his and the Goodman-Kruskal measures differ in their 
denominators. I found the Somers measure with the 
Mann-Whitney explanation convenient because its urn 
interpretation seemed natural to me for this problem. The 
log-linear approach would have imposed a particular par­
ametric form on the data, and then would have interpreted 
the extent to which one group is more favorable to the 
defense than is the other in terms of a parameter in this



548 Jou rn a l o f th e  A m e ric a n  Statistical A ssociatio n , S e p te m b e r  1983

distribution. This seemed to me to require extra assump­
tions that are really extraneous to the essential problem. 
For these reasons, I am satisfied with the Mann-Whitney- 
Somers Statistic transformed to odds (<}>).
The next issue is an appropriate statistical model for 

the data reported in Tables 1 and 2, now taking into ac­
count that the numbers pu are not known with certainty. 
Two important alternatives are to consider the data as 
jointly multinomial, or to consider them independently 
multinomial, row by row. If one believed that the Fitz- 
gerald-Ellsworth sample of Alameda County residents 
were typical of California potential jurors in the propor­
tion of NEVER, and AT LEAST SOMETIMES views 
among them, the former would be appropriate. Since Ala­
meda County, containing Berkeley and Oakland, has the 
reputation of being more liberal than California as a 
whole, this assumption would strain credibility. The same 
assumption for the Cowan-Thomspon-Ellsworth experi­
ment, involving volunteers, would be even harder to jus­
tify. However, assuming a row-by-row multinomial dis­
tribution means assuming only that the views of the 
NEVER (AT LEAST SOMETIMES) jurors in the Fitz- 
gerald-Ellsworth study and their behavior in the Cowan- 
Thompson-Ellsworth experiment are typical of those 
groups in California. This is a more reasonable assump­
tion, and consequently 1 adopt it.
Under this model, maximum likelihood estimates for 

4> and an asymptotic standard error for it can be calcu­
lated. The former consists simply of substituting sample 
proportions for p,-.5 and p,-,3 in (1). Since the latter is a 
special case of a more complicated computation de­
scribed later, I defer discussion of it.
Table 3 reports maximum likelihood estimates and 

asymptotic standard errors for each of the Fitzgerald- 
Ellsworth questions reported in Table 1. It shows that on 
each item, the odds are that a juror who would consider 
imposing the death penalty AT LEAST SOMETIMES 
(ALS) will be more favorable to the prosecution than one 
who would NEVER consider imposing the death penalty. 
The magnitudes of the odds of bias range from a modest 
finding of 1.131 on item 4, to very sizable odds on several 
other items. This analysis confirms and strengthens the 
Fitzgerald-Ellsworth conclusions about Table 1.

Table 4. (Cowan, Thompson, and Ellsworth 1983). 
How Much More Likely to Vote for the Defense is 

the NEVER Group Than is the AT LEAST 
SOMETIMES

6 = 1.652
SD(6) = .265
(<t> -  1)/SD(<5) = 2.45
Pr{<t> «  1} = 7.1 x 1 0 '1 2 3 4

A discussion of the philosophy behind the computation 
of the fourth column is necessary. In this problem, the 
parameters are the p,/s. There is a function of them, <f>, 
of particular interest and a special value of 4>, namely 1, 
of substantive concern. One classical method would be 
to test cj> = 1 against 6 > 1 at, say, the .05 level. If 
(4> - 1)/5D(4>) is greater than 1.645, significance at the 
.05 level is achieved. To say that <5 is significantly dif­
ferent from 1 at the .05 level says that if the system were 
exactly nondiscriminatory, the probability is less than 5 
percent that <t> would be as large, or larger, than the value 
observed.
A Bayesian approach can be based on a theorem of 

Walker (1962), showing that the asymptotic posterior dis­
tribution of c}> is normal, with mean <t> and standard de­
viation SD{4>). This result does not depend on the par­
ticular prior probability distribution in the parameter 
space chosen for the analysis, as long as it is smooth and 
has positive probability everywhere. The probability that 
<{> is greater than 1 can now be calculated in a straight­
forward way.
The fourth column of Table 3 can thus be interpreted 

either as the significance level of a one-tailed test of <J> =
1 against the alternative 4> > 1, or as the probability that 
4) < 1. I find the Bayesian interpretation more responsive 
to the legal question of the probability that the currently 
used juror selection procedure discriminates against the 
defense: the Bayesian analysis attempts to answer the 
question at hand, while the classical testing approach 
does not.
Table 4 gives a similar analysis of the Cowan-Thomp- 

son-Ellsworth experiment. Again the results indicate 
those who would NEVER impose capital punishment to

Table 3. (Fitzgerald and Ellsworth 1983). How Much More Likely to Favor the Defense is the NEVER Group
Than is the AT LEAST SOMETIMES Grobp?

Item j> ' SD(4>) (i> -  lyS D ft) Pr(i> s  1)

1. Better some guilty go free
2. Failure to testify indicates guilt
3. Consider worst criminal for mercy
4. District attorneys must be watched
5. Enforce all laws strictly
6. Guilty if brought to trial
7. Exclude illegally obtained evidence
8. Insanity plea is a loophole
9. Harsher treatment not solution to crime

10. Defense attorneys must be watched
11. More serious problem: unemployment, crime
12. Consider confession reported by news media
13. Infer guilt from silence

1.642 .124 5.16
1.427 .081 5.26
2.456 .160 9.12
1.131 .085 1.55
1.448 .091 4.93
1.149 .063 2.38
1.224 .085 2.62
1.796 .134 5.94
1.836 .122 6.84
1.451 .115 3.93
1.296 .093 3.20
1.250 .078 3.19
1.220 .047 4.67

1.3 X 10“ 7
8 X 10“8

7.5 X 10-20
6.1 X 10” 2
4.2 X 1 0 -7
8.8 X 1 0 -3
4.4 X 1 0 -3
1.5 X 1 0 -9 10 11
4.0 X i o 12 13
4.3 X 1 0 -5
6.9 X 10^"
7.1 X i o - *
1.5 X 10 6



K a d a n e : D e a th  P e n a lty  Juries
5 4 9

be more lenient to the defense than arc those who would 
impose it AT LEAST SOMETIMES, confirming the 
Cowan-Thompson-Ellsworth conclusions.

4. SURVEYS MEASURING THE SIZE OF THE DEATH 
PENALTY GROUPS

In order to conduct a further analysis of the Fitzgerald 
and Ellsworth attitude survey and the Cowan-Thompson 
and Ellsworth experiment, taking into account the eftect 
of the exclusion of the automatic death penalty group, it 
is necessary to have data on the proportion of people in 
the population holding various attitudes toward the death 
penalty. In particular, it is necessary tb have data on the 
size of the automatic death penalty group (ALWAYS). 
Two recent surveys, which contain the needed data, form 
the basis for the analysis presented in this article.
The first survey was conducted by the Field Research 

Corporation in March 1981 for the National Council on 
Crime and Delinquency. In this survey some 1,014 face- 
to-face interviews were conducted in a cluster sample of 
households. The respondents were asked about their gen­
eral views on the death penalty, whether they would fairly 
and impartially decide the question of guilt or innocence, 
and whether in the guilt phrase they would NEVER favor 
the death penalty, or whether in AT LEAST SOME cases 
they would consider voting for it.
Field describes its sample as follows: “The sample 

presently consists of 200 primary sampling-point clusters. 
These primary sampling units enter the sample with a 
probability of selection in proportion to the population of 
California counties. Specific cluster locations are deter­
mined by random selection of key addresses, using cur­
rent telephone directories as the initial sampling frame 
within counties. Households in a given cluster are con­
secutively listed with a procedure to assure that the in­
terviewers exert no influence on the selection of house­
holds. This procedure also draws non-telephone homes 
into the sample and permits telephone-density bias to be 
removed.”
The results of the interviews are then weighted by giv­

ing each cluster of interviews a weight inversely propor­
tional to the density of listed telephones found in that 
cluster. A second-stage weighting by age and sex within 
geographic area is done using Census data. The weighted 
results are given in Table 5. The data indicate that 11.3 
percent of the total adult population of California— which 
amounts to 12.6 percent of those in the adult population 
who could fairly and impartially try the guilt or innocence

Table 5. Attitudes of Californians on the Death 
Penalty (Field Survey)

Would be fair and impartial in deciding guilt or 89.8%
innocence

NEVER 11-3%
AT LEAST SOMETIMES 78.2%
Don't know/no answer/refused -4%

Would not be fair and impartial 7.9%
Don't know/no answer/refused 2.2%

of a capital defendant— would be excluded from jury ser­
vice in capital cases because they would never consider 
voting for the death penalty.
The Field survey does not permit disaggregation of the 

AT LEAST SOMETIMES imposers of the death penalty 
into the ALWAYS group and the SOMETIMES AND 
SOMETIMES NOT group. For this, I turn to a Harris 
survey conducted in January 1981 by a national telephone 
poll, with 100 clusters (telephone exchanges) stratified by 
geographic region and metropolitan/nomnetropolitan res­
idence. The respondents were asked whether they 
strongly favored capital punishment, or whether there 
were some (or many, or most, or all) cases in which it is 
legally possible but not appropriate. Since only those who 
had said they were strongly in favor of the death penalty 
had given answers consistent with the ALWAYS posi­
tion, only they were asked whether they would be fair 
and impartial in determining guilt or innocence in a capital 
case. Those who said they would be fair and impartial 
were asked whether they would ALWAYS vote to im­
pose the death penalty, or whether they would consider 
the evidence, and hence be in the SOMETIMES AND 
SOMETIMES NOT category. Of the 1,499 people ques­
tioned, 13 were in the ALWAYS group. After reweighting 
for age, sex, and race, the data support an estimate that 
1 percent of the adult American population falls into the 
automatic death penalty (ALWAYS) group. The Harris 
results are analyzed by region (East, Midwest, South, 
West), and area (city, suburbs, towns, rural), as well as 
by age, education, sex, race, income, type of work, re­
ligion, and union membership. No substantial regional 
differences in general attitudes toward the death penalty 
are revealed by the data.
There are two other sources cited in the Hovey decision 

(fn. Ill) for indications as to the size of the automatic 
death penalty (ALWAYS) group. Jurow (1971) studied 
the views of 211 volunteer subjects who were employees 
of Sperry Rand. His subjects were more conservative 
than the population of New York City at the time. Of 
these, five answered that in a jury vote to determine the 
penalty for a serious crime, “I would always vote for the 
death penalty in a case where the law allows me to.” This 
finding of 2.37 percent is not inconsistent with the 1981 
Harris survey finding of 1 percent ALWAYS jurors since
(a) those not fair and impartial were not eliminated and
(b) a more conservative than average, volunteer popu­
lation at one company cannot be taken to be represent­
ative of the national population.
The second study cited by the California Supreme 

Court in Hovey is Smith (1976), which relies on a 1973 
Harris survey. Here 28 percent of the respondents an­
swered that all persons convicted of first-degree murder 
should receive the death penalty. However, this question 
does not distinguish between people’s views on what the 
law should be and how they would vote as jurors. Jurow 
(1971), for one, found 21 percent of his population 
strongly favored the death penalty, while only 2.37 per­
cent would impose it in every case. Additionally, the Har­
ris 1973 question— unlike the 1981 question— does not



550 Jou rn a l of the A m e r ic a n  S tatis tical A ssoc ia tio n , S e p te m b e r 1983

tell the respondents that it would be their obligation as 
jurors to follow the law, and that the judge would instruct 
them that the law requires them to consider all penalties 
and to weigh all the evidence before making up their 
minds. Thus the 1973 Harris survey cited by Smith did 
not ask the relevant question to determine the size of the 
ALWAYS group. Consequently, we use the 1981 Harris 
survey number of 1 percent because, unlike Jurow, it was 
based on a national probability sample, and, unlike the 
1973 Harris survey, it asked the relevant set of questions.

5. ASSUMPTIONS AND A MODEL

It is entirely possible that an analysis will reveal that 
on some questions the ALWAYS OR NEVER group is 
more favorable to the defense than the SOMETIMES 
AND SOMETIMES NOT group, and that on other ques­
tions the reverse might be true. In order to learn whether 
this is the case, the findings of the Cowan, Thompson, 
and Ellsworth experiment, and of each of the 13 attitude 
questions in the Fitzgerald and Ellsworth study are con­
sidered separately.
The first assumption I make is that the Field survey 

and the Harris survey are random samples from the pop­
ulation of jurors in question. Thus if pi = Pr(A,), the Field 
survey contributes a likelihood function

pJ'pJ'pJ', (2)
where // is the weighted number of persons found in the 
Field survey to be in category A/ (/ = 1,3, 5). Similarly 
the Harris survey contributes a likelihood

Pi'12 ~ Pi)h\ (3)
*

where h2 is the weighted number of persons in the Harris 
survey to be in category A2, and h7 are the others in the 
Harris survey. In making this assumption, I am relying 
on the geographical homogeneity found in both surveys 
to indicate that Californians are very similar to other 
Americans in their views, and on the expertise of the 
Field and Harris organizations in doing their surveying 
properly.
My second assumption is that the attitude survey and 

the experiment constitute random samples from the pop­
ulations studied (A3 and A5). Thus ifj\ persons in group 
A3 take position i on item g, and A,- persons in group A5 
take the position /(I < / < ;iA.), the contribution to the 
likelihood is

nit

n P i j p i . s ki (4)i= 1
One need not assume that the number of subjects in 

groups A3 and A 5 in the Cowan, Thompson, and Ells­
worth and the Fitzgerald and Ellsworth studies are typ­
ical of the population, but only that the views of the sub­
jects in groups A3 and A5 are typical of the views of those 
groups in the population at large.
Finally, some assumption is necessary about the views 

ot the group A2, since these were not directly measured.

The harsher these views are to the defense, the more 
difficult the defense’s task of showing that exclusion of 
the whole group A6 = A 2 U A 3 is disadvantageous to 
them. Accordingly Ltake the most conservative stance 
on this issue. Those in group A2 are assumed, on each 
item g, to take the position rif, most opposed to the de­
fense’s interests. Inevitably, this assumption is, to some 
extent, false; to the extent that it is false, my estimates 
(J> will be too low. To the extent that bias against the 
defense is shown using this assumption, the real extent 
of the bias against the defense is greater by some amount.
In summary, the likelihood function for the data is

nK
%  = p \ f< p i f i  P 2h2 (i - P i ) h j n p j ‘p i .s*'. wi-1

where /?,.5 = (p2 Pi.i + Pa Pi.A)/{p2 + Pa), and where p,.2 
= 0 (iV ng) and pnil.2 = 1.
The maximum likelihood estimates are found in closed 

form by straightforward maximization of (5). The com­
putation of the asymptotic standard deviation is equally 
straightforward, but considerably more tedious. The prin­
cipal danger is that one might forget the Goodman-Krus- 
kal (1972) admonition not to change parameterization in 
midcomputation. An Appendix giving the details of both 
computations is available on request from the author.

6. IMPLEMENTATION AND RESULTS

Before implementing the model in the last section, sev­
eral details must be discussed about how to relate the 
model of Section 5 to the surveys of Section 4. First, the 
“don’t know/no answer/refused” groups were distributed 
among the other categories in proportion to their size. 
After doing this, the Field survey numbers fu /3, and / 5 
are taken to be proportional to .0808, .1162, and .8040, 
respectively. The Harris numbers h2 and h7 are taken 
from the weighted analysis to be proportional to .01 and 
.99, respectively.
The question of effective sample size arises in both 

studies, because both used cluster sampling (see Kish 
1965). Hence the actual sample sizes, 1,014 for the Field 
survey and 1,499 for the Harris survey, may overstate 
the amount of information available.
The Field survey reports the results of six replicates 

of approximately egual size, weighted as were the results 
reported in Table 4. For NEVER, the replicate standard 
error is .0 1 1, compared with the standard error computed 
as if simple random sampling had occurred, which is 
[(.113)(.887)/1014]l/2 = .0099. Thus the ratio is.011/.0099 
s 1.1. Similarly from the AT LEAST SOMETIMES 
group, the reported standard error is .0 1 0, which gives a 
ratio of 1.3. Finally the NOT FAIR AND IMPARTIAL 
question has a standard error of .088, yielding a ratio of 
1.06. I take the median of these numbers, 1.1, as repre­
sentative of them, and hence use the effective sample size 
for the Field survey of 1,014/(1.1)2 = 838.
In the Harris survey, each of the 13 in the ALWAYS 

group was found in a different cluster. This cannot be



K a d a n e : D e a th  P en a lty  Juries
551

taken as evidence of a correlation due to being in the same 
cluster, so I use the unadjusted sample size, 1,499, as the 
effective sample size for the Harris survey.
6.1 The F itzgera ld  a n d  Ellsworth Study

Using these effective sample sizes, values for 4>, 
SD(4>), (<{> - 1)/5D(4>), and Pr{6 < 1} were calculated 
for each item in the Fitzgerald and Ellsworth study, and 
are recorded in Table 6. In analyzing the results of Table 
6, recall the assumption that the ALWAYS group take 
the worst position on each question from the defense 
viewpoint. To the extent that this extreme assumption is 
wrong, the numbers of <f> recorded in "fable 6 are too low.
I propose a working assumption that estimated odds 

(4>) closer to 1 than .1 reveal an item close enough to 
nondiscriminatory that it need not be worried about. 
These items are those closer to even than 11 to 10 on the 
high side, and 9 to 10 on the low side. This eliminates 
four items, numbers 4, 6, 7, and 13. All nine of the others 
display bias against the defense, rising to estimated odds 
of 2 to 1 for item 3. I conclude from Table 6 a showing 
of substantial bias against the defense from the current 
procedure.

6.2 The C ow an , Thompson, a n d  Ellsworth Study

The showing of substantial bias in the Fitzgerald and 
Ellsworth study is confirmed by the reanalysis ot the 
Cowan, Thompson, and Ellsworth experiment. As shown 
in Table 7, <f> is 1.519 so the estimated odds of a NEVER 
or ALWAYS juror being more favorable to the defense 
than a SOMETIMES AND SOMETIMES NOT juror is 
more than 3 to 2. Hence the probability of neutrality or 
bias against the prosecution (4> ̂  1) is 1.3 percent. Again 
we have a finding of substantial bias against the defense.
What makes all the results true is that the ALWAYS 

group is so small (1% of the population) that the AL­
WAYS or NEVER group is dominated by the NEVER 
part, and the AT LEAST SOMETIMES group is domi­
nated by the SOMETIMES AND SOMETIMES NOT 
majority. Even attributing the least favorable views to 
the ALWAYS group does not disturb the finding of sub-

Table 7. (Cowan, Thompson, and Ellsworth 1983). 
How Much More Favorable to the Defense are the 
Votes of the ALWAYS OR NEVER Group (A6) 

Compared to the SOMETIMES AND SOMETIMES 
NOT (Aa) Group?____________

<j> = 1.519 

SD(6) = 229
(<j> -  1)/SD(<j>) = 2.27 

Pr(<t> «  1) = 1.3%

stantial bias against the detense. Ot course, this extreme 
assumption does reduce the estimated odds in Table 6 
compared with those in 1 able 3, and in Table 7 compared 
with those in Table 4, as arithmetically it must.

7. CONCLUSION

The Cowan-Thompson-Ellsworth experiment, because 
it deals with a simulated juror vote, is the evidence most 
closely related to actual juror behavior. Consequently, I 
would pay most attention to the odds (about 3 to 2) of a 
more proprosecution vote in that experiment among the 
SOMETIMES AND SOMETIMES NOT group than 
among the ALWAYS OR NEVER group. This conclu­
sion is strengthened by the finding that 9 of the 13 attitude 
questions from the Fitzgerald-EHsworth study show the 
same favoritism to the prosecution among the SOME­
TIMES AND SOMETIMES NOT group compared with 
the ALWAYS or NEVER group. (The other four attitude 
questions show essentially no difference.) This conclu­
sion is further strengthened by the tact these calculations 
are conducted under the extreme assumption that those 
who would ALWAYS impose the death penalty, but 
would reach the question of guilt fairly and impartially, 
would unanimously vote to convict in the experiment, 
and would unanimously take the most proprosecution 
view of each attitude question. Therefore there appears 
to be a distinct and substantial antidefense bias in the 
exclusion for cause of the ALWAYS OR NEVER group 
from the jury deciding guilt or innocence.

[Received November 1981. Revised April 1983.]

Table 6 (Fitzgerald and Ellsworth 1983). How Much More Favorable to the Defense is the ALWAYS OR 
NEVER Group (A&) Than is the SOMETIMES AND SOMETIMES NOT (A*) Group?________

Item

1. Better some guilty go free
2. Failure to testify indicates guilt
3. Consider worst criminal for mercy
4. District Attorneys must be watched
5. Enforce all laws strictly
6. Guilty if brought to trial
7. Exclude illegally obtained evidence
8. Insanity plea is a loophole
9. Harsher treatment not crime solution

10. Defense Attorneys must be watched
11. More serious problem: unemployment, crime
12. Consider confession reported by news media
13. Infer guilty from silence

SD<8) (6 -  1)/SD(i>) Pr(i> «  1)

.132 2.89 1.9 x 10~1 2 3 4

.108 1.75 4.0 x 10~2

.174 5.78 4.0 x 1 0 '9 10 11 12 13

.101 -.2 6 6.0 x 1 0 '1

.106 2.38 8.7 x 1 0 '3

.089 -.2 6 6.0 x 10"’

.100 .40 3.4 x 1 0 ''

.133 4.18 1.6 x 1 0 '5 6 7 8

.143 3.54 2.0 x 10“ “

.120 2.13 1.7 x 1 0 '2

.091 2.02 2.2 x 1 0 '2

.086 1.42 7.8 x 10"2

.085 .52 3.0 x 10“ '

1.380
1.189
2.006

.974
1.252
.977

1.040
1.558
1.506
1.256
1.184
1.121
1.044



Journal of the American Statistical Association, September 1983

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