*1 Texas, v. Supreme Court. Russell States L.Ed.2d 104 S.Ct. RUSSELL, 465 U.S. parte Jr. Ex Clifton Charles (1984). No. 69298 set, ap- his date of execution was After Appeals of Criminal
Court
cor-
post-conviction
habeas
plicant filed
En Banc.
convicting court
in the
pus application
Sept.
1986.
alia,
prospective
inter
alleging,
by the trial
B.
was excused
Norman
Scott
required
of the standards
violation
Illinois, 391 U.S.
Witherspoon v.
by
(1968),
1770, 20
L.Ed.2d 776
88 S.Ct.
Texas, 448
v.
Adams
L.Ed.2d
on direct
was not raised
This contention
dire ex-
by
applicant.
The voir
appeal
of the
was not
amination
appellate
to be
in the
requested
included
application applicant
his habeas
record. To
transcription
voir dire
attached
Scott.
examination
convicting court concluded that
The
merit,
recom-
application was without
record
mended denial
ordered
to this Court.1
transmitted
habe-
stayed,
was
and the
The execution
set so that
application was filed and
contentions could be considered.
applicant’s
Scott
voir dire examination of
The entire
exception
of the back-
set forth with
Brown, Abilene,
appellant.
Stan
for
showing
was
ground information
Solis,
Abilene,
Dist.
Rob-
Jorge
Atty.,
A.
had
served
postman,
previously
retired
Huttash,
Austin,
Atty.,
State’s
for
ert
had reached
criminal trial
which
State.
verdict,
law
personally
had
had a civil
involving an
accident.
automobile
suit
dire
reflects:
The voir
examination then
OPINION
“Q
you yesterday
The Court
...
told
ONION, Presiding Judge.
case,
morning
that this is a death
is,
possibly.
capital,
That
it’s a
the defend-
post-conviction application
This is a
murder,
charged
capital
ant has been
with
corpus brought
writ of habeas
under Arti-
and in a
murder case there are two
cle
parte Young,
V.A.C.C.P. See Ex
options
punishment:
imprisonment
life
stand charge, and in charge going the he is to ask questions, these jury the must answer “A I said I capital didn’t believe in questions. the If the yes answer is it must punishment. unanimous, be and if the answer is not it “Q Okay. you Can judge tell the must be—at people least ten agree must us, tell are there Why, particular- certain— that the one, answer is no. And the first mean, ly I’m not questioning your feel- —I basically, asks whether or jury not the be- ings or why particular attitudes —but that lieves whatever it is the defendant did you don’t believe it? was deliberate and that when he did that Well, “A it doesn’t look like to ifme a reasonably expect could that death man somebody kills getting enough he’s result; is, would that it was deliberate and punishment. If they just kill him it’s all that, know, you person a reasonable would just over with. If he has to live in this that, well, you think if did this that some- forty, fifty years, well, world for it’s more body would die. And that would the punishment. question. question “The second would be wheth- “Q long And how you have felt er there is a probability that the defend- way about the death penalty? ant would commit criminal acts vio- “A for some time. I’ve thought lence that would continuing constitute a about it years. a lot the last few society. threat to And that means basi- “Q given You great have it a deal of cally jury looking the at the evidence of thought? case, particular the the evidence of the past is, defendant’s Yes, what has “A been ma’am. —that past his conduct in the from that —and Now, “Q you course, understand —Of determine whether or not he would be capital this is a case. It’s not automatic or violent the future. mandatory. jury But if the in a case finds questions “And those are the that guilty, defendant jury then the has to way have be answered one go on to punishment phase, just other, whatever that answer would you jury when served on that in that rob- yes, be. If both answers are then the bery case, case before. In that case Court penalty. must assess the death case, jury that’s not a has to set you Do understand that? punishment; is, a certain number of “A Yes. years. In jury case the has to questions. question answer some The first “Q Now, you ques- could answer those is whether or not the conduct of the de- tions, knowing you answered them if fendant that caused the death of the de- yes that the would be man- ceased was committed deliberately and datory? with the expectation reasonable “A I don’t believe could. death of the deceased or another would case, “Q Now, in a criminal if it’s a words, result. other that it was deliber- case, Court, in qualify order to that, ate and from what the defendant was somebody jury, give to sit on the must doing, he reasonably expect could oath, person an and that oath—Besides the person Now, you would die. do understand take, regular you oath that must means, ques- what that what that mandatory penal- state under oath jury tion would ask the to find? ty imprisonment of death or for life will not Well, no, “A I don’t understand it. affect his deliberations on issue of “Q Okay. going fact; words, to be in other the fact probably questions asked two should punishment mandatory wouldn’t bear on find guilty. this defendant Then your determining guilt on the or innocence. punishment phase there would more evi- Could take oath? Not it meant his death “A Would I vote “A penalty?
couldn’t. then, “Q So, then, saying, Yes. “Q are possibility a death “A Yes. weigh de- your your mind and affect “Q you saying Are ideas and *3 determining even liberations on whether viewpoint your frame your is such and of guilty? or not the defendant regardless horri- howof mind is such that “A Right. be, or might ble the the circumstanc- facts Therefore, “Q you say- from are what death, you would might es be of the that you princi- I take it that have some ing, absolutely unequivocally automatically ples, religious whether or consci- be against penalty, vote the death no matter whatever, against the what the entious or moral or were? facts penalty. death “A I’m I would. afraid “A Ido. nothing And I there that take it is “Q it; “Q justify Even would you change your could cause mind? if facts to is, that law allowed and if “A I don’t I think so. don’t know what it, justify you would still couldn’t facts it could be. give it? nobody you And that could talk “Q “A I don’t believe in taking a man’s out it.of life, no. “A No. “Q This, it, I take very deep-seated is a “Q Despite feelings your and the con- you conviction that have? firm you stated, are tell- you victions that have right. “A That’s you put ing the Court that could not “Q you sufficiently opposed Are in the your aside death disbelief against punishment capital point to the that your a duty and do as citizen? you could not take the and the law evidence my duty “A I could do as a citizen as considering without the fact that the death penal- long it didn’t the death as include penalty might imposed? ty. “A Well, I could take the and the law Honor, Your at this “MISS ELLIOTT: evidence, when to imposing but it come time we would this I penalty, don’t I it. think could do disqual- think cause both under—I he has
“Q your Would attitude toward ified himself under penalty, is, feeling you that do— under 35.16. understanding, again, And am Mr. Scott I Honor, may Your I “MR. BROWN: quarreling your viewpoints; there question? ask him viewpoints. are lots of different But Go ahead. “THE COURT: attitude, would strong feeling this you that have toward the death BY MR. BROWN: “EXAMINATION prevent you making impartial an Scott, understanding you “Q Mr. what guilt. decision as the defendant’s said, you opposed are have Well, “A I’m it would. afraid you actually saying are punishment, you automatically “Q Would vote case, no what any matter the circumstanc- against imposition penal- the death of was, were, no matter what the evidence es ty regard any without evidence that you might developed at the trial? penalty? “A On case? just I “A I’m afraid so. don’t believe any Or in it. “Q case. “Q
“Q right. you any right. you already All think of set All But have Can circumstances, you could consider the death any type stated of case—for circumstances, of, penalty under certain say, young example, killing mother you are so now the children, or and her three whatever deliberating person as a whether a type killing you most horrible could murder, guilty guilty or not imagine you think of would be—can any differently you deliberate that, would case, type circumstances like deciding guilty guilty just or not because voting you for the where could consider it’s a murder? penalty? Well, mind, my “A it would be on but “A I but I don’t consider know don’t know whether would or not. I could do it or not. whether just depend on the evidence. “Q Do think there could be certain think, then, “Q do *4 voting you could consider for cases where same, be the that— deliberations would penalty? the death Well, “A now— child, somebody small it’s “A If killed a “Q you —that would still follow the law possible. to—and review the evidence and follow “Q Now, ques- to some other answer you as to what are the Court’s instructions Elliott, you you stated that tions from Miss supposed to do? that, if the defendant were felt like the fact Well, yeah, I’d to follow the “A have murder, that the fact convicted instructions. Court’s ei- mandatory punishment would penalty prison ther be life or the “Q right. fact that in case All So the some might your mandatory affect deliberations on of a conviction there would be Now, you saying are there prison issue of fact. life in or the death penalty of either you a murder case where Say you had that not cause to delib- would that — the deciding punishment range going differently to be on whether erate life, guilty or not years anywhere 5 to 99 or within the defendant was or not range, you guilty, had a murder would it? that punishment either be case where the would Well, no, if he “A I could decide penalty. Are prison life in or the death guilty, yes. guilty or not cases, you saying that in one of those right. All “Q You could decide that. involved, the death was not where you understanding that could consider And you you simply way that would vote as the death prison life in as well both vote, ei- required you felt the evidence to cases, certain cir- in certain under guilty guilty? or not ther cumstances, willing you be to follow would Right. “A Court, to follow the instructions of the regard to given you to law that “Q other you do the same Would juror? as a your deliberations one? believe in the death “A I still don’t capital? “A In the Now, it I could penalty. whether follow words, you— “Q are Yes. other on a pass judgment or had not —If just “A I believe in it. killed, don’t I—I don’t have him man and it. think I could do tend “Q saying you that would you Are facing change “Q right. in order to avoid Then does that guilty not All to vote earlier, punishment? that you that have said anything con- under certain circumstances you could now, the evi- depends it “A right? penalty; is that the death sider not, guilty I voted dence whether some- a child or “A I could in—like with a man the giving as me but as far thing like that. it. sentence, don’t believe in I don’t—I “Q right. right. IMay All MR. BROWN: All state record, Honor, clearly your more for the murders, well, “A And that’s—that’s object granting would to the we possible. challenge to this State’s cause words, “Q saying In other 12.31(b) an inability take the could under certain consider circumstances grounds posi- oath on the that it is our it, then means would not 12.31(b) literally tion is followed against pen- impermissibly broader than the With- every case; alty in conceivable isn’t that erspoon test and And that not allowed. right? objection is the of our to the chal- basis not, again “A and I may lenge cause. depends on might. the evidence. I’m right. “THE COURT: All very much but—who knows? Scott, discharge you, “Mr. I will right. “Q All you very thank much for services. Honor, BROWN: Your “MR. we “THE Do I WITNESS: have come object would to the for cause back or— tomorrow juror. to this We believe that he has not No, you’re “THE COURT: excused. been through. you.” (Empha- You’re Thank we further state that as to added.) sis reading literal seen, interroga- As can after the State *5 upon an unconstitutional limitation With- prospective juror challenged ted the it Scott erspoon. 12.31, Witherspoon, “under cause under you Do “THE COURT: mean on the permit- and 35.16.” then Are you talking extra oath? that? about inquire. ted the to interro- defense After Yes, your “MR. BROWN: Honor. gation objected the defense to the State’s Honor, “MISS ELLIOTT: Your this— cause, inquired challenge for court then moment, Just “THE COURT: a now. objec- of Scott overruled the defense go enough The question did not far about court, by tion. excused Then was this oath. sustaining thus for cause. oath, Scott, an “You must take Mr. interrogate party Neither asked to further mandatory of life penalty or Scott, complaint now nor is made your death will not affect deliberations applicant of of deprived right inter- was Now, any issue in of fact the case. rogation. pre- not Scott’s “dismissal” was you can take oath? mature. “THE or WITNESS: The life death Witherspoon, United Su- States penalty will not affect it? preme Court said: mandatory “THE That the COURT: “Specifically, we hold that a sentence of death penalty life or will not affect the jury of death cannot be carried out if issue of fact. deliberations imposed or cho- recommended it was say “THE I’d WITNESS: excluding sen veniremen for cause would affect it. simply they general objec- because voiced It “THE COURT: would affect it. expressed or penalty tions to death it if
“THE WITNESS: would affect religious scruples conscientious that— can against its infliction. No defendant then, constitutionally put to at the death saying,
“THE COURT: Are hands of tribunal so selected.” cannot take that oath? think, “THE don’t no. WITNESS: that for The Court made clear Now, gone “THE COURT: that wasn’t right to do so would violate defendant’s properly. into Amend- under the Sixth and Fourteenth impartial jury. an Thus your objection. “I overrule ments to trial will 482
Witherspoon
upon
against
was a
excusal
limitation
vote
and even
jurors.
“unambig
then this state mind must be
See,
“unmistakably
uous” or
clear.”
e.g.,
Witherspoon’s
appeared,
21
footnote
Estelle,
(5th
Burns v.
F.2d
626
396
Cir.
however,
hold
1980).
they
be excluded
cause if
made it
See, e.g.,
no exception.
Texas was
Gri
(1)
“unmistakably
clear
State, 468
393 (Tex.Cr.App.
der v.
S.W.2d
1971);
78,
Perillo v.
79
imposition
capital punishment
without
(Tex.Cr.App.1983),
Texas cases
there
regard
evidence that
cited.3
developed at the trial of the case before
(2)
them, or
in
Georgia,
their attitude toward
The decision
Furman
408
238,
2726,
penalty
prevent them
33 L.Ed.2d
the death
U.S.
S.Ct.
(1972),
making
impartial
held unconstitutional the manner in
an
decision as to
imposed
penalty
in
guilt.”
which
the defendant’s
Texas,
many
states. See Branch v.
supra,
at
391 U.S.
n.
88 S.Ct.
33 L.Ed.2d
S.Ct.
(Emphasis
original.)
n.
(1972).
Witherspoon
recognize
did
the State’s
The reaction
was to enact new
Texas
legitimate
excluding
ju-
interest
those
Y.T.C.A.,
scheme. See
Penal
opposition
capital punish-
rors whose
19.03,
37.071,
Code,
Article
Y.A.C.C.P.
ment would
allow them to view
constitutionality
of the new scheme
proceedings impartially, and who therefore
upheld in
428 U.S.
Jurek v.
might frustrate the
of a
administration
2950, 49
L.Ed.2d
State’s
scheme.
V.T.C.A.,
Code,
pro-
Penal
also
Nevertheless,
Supreme Court
vided:
language in
lower courts referred to the
“(a)
adjudged guilty
An
individual
language in
footnote # 21 and
said
similar
felony
punished by
shall be
con-
setting
footnote #92 of
Department
finement
the Texas
*6
the
exclu
judging
proper
standard for
the
by
for life or
death.
Corrections
juror opposed
capital punish
sion of a
to
“(b) Prospective
in-
jurors shall be
See, e.g.,
398
Bishop,
ment.
Maxwell v.
imprison-
that a
of life
formed
sentence
265,
1578, 1580,
262,
26
U.S.
90 S.Ct.
mandatory
or death is
on conviction
ment
(1970);
Holman,
L.Ed.2d 221
v.
Boulden
capital
prospective juror
A
felony.
478, 482,
1138, 1140, 22
394
U.S.
serving
disqualified from
as a
shall be
(1969);
Decker,
L.Ed.2d 433
Hackathorn v.
oath
juror unless
states
1363,
(5th Cir.1971); People
438 F.2d
1366
mandatory
death or im-
penalty of
1091-1092,
1061,
Washington,
v.
71 Cal.2d
not affect his
prisonment
life will
479,
567, 584-585,
80
P.2d
Cal.Rptr.
458
issue of fact.”
deliberations
courts
496-497
Later some other
Thereafter,
in a
exclud
this Court
number of
stated that a veniremember
juror
in a
“automatically”
prospective
held
a
ed
if he or she
cases
only
under the most de-
Witherspoon
der case
manding
conducted
2.
# 9 from
Footnote
primarily
This is
be-
conditions.
unambiguously
a venireman states
"Unless
Supreme
cause the United States
Court has
that he would
matter
imposition
capital punishment no
held that the death
cannot
carried
reveal,
simply
might
cannot
it
has
what the trial
if even one
been
out
position.”
that that is his
challenge
prose-
be assumed
on a
for cause
excused
265,
Maxwell,
at
S.Ct.
tal jurors wherein or follow their oaths.’ were asked to specific answer three questions put by judge. the trial “The state of this case law leaves trial required impose to the death courts with the difficult task of distin- sentence if each guishing was answered between affirmatively. A provided opposition capital punishment Texas statute whose to prospective that a capital juror apply will not them to the or ‘shall be allow law jurors ... impartially unless he states under view the facts and who, though opposed oath that the mandatory penalty capital punish- of death to imprisonment ment, or conscientiously for life not affect nevertheless will will apply his on any deliberations issue of fact.’ the law to the facts adduced at Id., 42,100 S.Ct., Although may at decid trial. diffi- before this task ing event, jurors whether certain obviously had been cult in it is made 484
more difficult
the fact that the stan-
when faced with imposing the death sen-
applied
dard
in
tence,
Adams differs markedly
may
or
articulate,
be unable to
from the language of footnote
may
21. The
wish to hide their
feelings.
true
tests
respect
with
sentencing
Despite
to
this
clarity
lack of
in
printed
guilt, originally
prongs,
record, however,
in two
have been
there will be situations
merged;
requirement
juror
that a
where the
judge
trial
with the
left
may be
only
excluded
if he
impression
would never
that a prospective
definite
juror
vote for the
is now miss-
would be
faithfully
unable to
ing; gone
extremely
impartially
too is the
high
apply
bur-
the law. For reasons
proof.
general,
developed
den of
that will be
fully infra,
standard
more
simplified.”
why
has been
paid
must be
deference
judge
trial
who sees and hears the
Supreme
Court then
why
discussed
juror.’’
added.)
(Emphasis
preferable. First,
Adams test was
The Witt Court also
language
held that
Witherspoon’s
a state
footnote 21
trial court’s
disqualify potential
decision to
squared
cannot be
with the duties of
jurors because of
their
pun-
view
present-day capital sentencing juries. Sec-
ishment
finding
involves a
ond,
fact to which
languages
in Witherspoon’s foot-
federal courts must
in
corpus
defer
habeas
dicta,
*8
(Tex.Cr.App.1985);
State,
Bird v.
answer sessions
which obtain results
(Tex.Cr.App.1985).
S.W.2d 65
the manner of a catechism. What com-
experi-
mon sense should have realized
State,
And in Barney
supra,
it was
proved: many
simply
ence has
veniremen
pointed out that while this
only
Court has
enough questions
cannot be asked
it,
cold record
judge
before
the trial
review
point
reach the
where their bias has
ing
been
prospective juror
answers of a
had
‘unmistakably clear’;
made
these
opportunity
venire-
to observe the tone of voice
men may
not know how
will react
and demeanor
prospective juror
determining
precise meaning
might possibly
intended.
he
consider the
penal-
State,
See also Franklin v.
stated he didn’t believe in the death
ty,
reading
and that
literal
of that would
no matter the
be an
circumstances or
upon
evidence he was afraid he would
unconstitutional
limitation
Wither-
automati-
cally
court,
penalty;
spoon.”
not satisfied
(Oath
according
Jury):
4.Article
V.A.C.C.P.
verdict render
to the law and the
”
evidence,
help you
selected,
so
God.’
"When the
has been
the fol-
lowing
oath shall be administered them the
V.T.C.A.,
Code,
12.31(b).
Penal
Court or under the direction: “You and each
solemnly
do
swear that in the case of the State
*9
6. Article
V.A.C.C.P.
of Texas
the defendant
will a true
questioning
gone
enough
had
represents
“far
about
for cause: One who
that ex-
oath,”
ques-
asked Scott additional
segment
community
tensive
cause.
and the court excused
Scott,
tions.
appellant
thus
Appellant’s objection
restated his
sustaining
“12.31(b)” objection,
prospective juror
was
challenge
overruled,
for
who
dence to arrive at his verdict.
objects
$
would follow
n
n
n
law and the evi-
n
yet
[*]
one
penalty may
“The death
not be im-
questions
The mere fact that the last few
posed where even one venireman has
12.31(b)
concerned
of the Penal Code
§
jury
been excluded from the
in violation
does not mean that this
the sole
was
basis
Witherspoon.
Georgia,
Davis v.
sustaining
challenge
State’s
U.S.
487 Code, 12.31(b). The trial upon also one Penal This was of the bases Y.T.C.A. challenged applied the State for cause. that standard. which Scott court incorrect cause, objecting challenge approval to the for of this majority’s When to the dissent objected dis appellant that Scott was not error. and under With- qualified under Prospective juror op- firmly was Scott erspoon, did excus object but he not as to posed not penalty. to the That does
ing Scott on the basis of “35.16.” See and
mean, however,
automatically
that he was
701, cert.
White
cf.
629 S.W.2d
serving
from
on
in a
1995, 72
den. 456 U.S.
102 S.Ct.
capital case. No
he was
matter how often
Chambers,
(1982);
parte
Ex
L.Ed.2d 457
asked whether he
for” or
would “vote
knows?” applied it to the Texas murder procedure. Specifically it addressed the point It was at the State trial court’s exclusion of reurged its for cause and the mandatory who could not swear that the questioning, trial court took a hand penalties imprisonment of life or death concentrating Scott on whether could take would not their deliberations con- of the oath mandated § affect cerning issues of fact. V.T.C.A. Penal Penal Code: Code, 12.31(b). The Court reversed the oath, an “Court: You must take Mr. Adams, holding death sentence in Scott, mandatory penalty of life 12.31(b)may pro- not be used to exclude your or death will not affect deliberation spective jurors any than on basis broader Now, on issue of fact in the case. Witherspoon. that set out in A venireman can take that oath? merely who testifies that his deliberations penalty Witness: The life or death will mandatory penal- “affected” will be not affect it? may only ties murder case mandatory penalty Court: That the of mean that he take his duties as a will life or death will not affect delibera- seriously, neglect he will more tion issue fact. 100 2528. He not be them. S.Ct. at say it affect Witness: I’d Even a excused for that reason. who it. philosophical objections to harbors moral or it. Court: It would affect weight penalty may be able to it if Witness: would affect that— presented the evidence at trial and truthful- ly special issues in the affirma- then, answer you saying, Court: Are tive. cannot take that oath? think, the Constitution no.” “Nor our view would
Witness:
don’t
permit
jurors
the exclusion of
from the
discharged
The trial court
then
if
phase
a Texas murder trial
applicant’s objection.
over
they
honestly
will
find the
they aver that
glancingly
Both
State and defense
questions
and answer the
in the
facts
Illinois,
addressed
v.
beyond
are convinced
affirmative
1. All opinion indi- unless otherwise writer Supreme against” Court’s return to “vote im- latest Witt, Witherspoon is in Wainwright penalty, upon position of the death further 83 L.Ed.2d questioning he maintained that he would “simplifies” Witherspoon Witt the trial court’s instructions as follow veniremen, limitation exclusion of law, he could consider the death following S.Ct. reaffirms the murder, penalty in cases of and at least standard from Adams: three times his decision on the “ *12 challenged juror may a ... not be depend on verdict would the evidence. capital cause based on his views about point was at this the trial court punishment unless those views would took of the charge questioning and asked per- prevent substantially impair or the simply if deliberation “af- Scott’s would be juror formance of his duties as a in ac- by mandatory penalties fected” the cordance with his instructions and his affirmatively. Scott answered case. however, insist, may oath. The State interrupted then The trial court the venire- jurors will consider and decide the qualification attempted man’s of an- impartially conscientiously ap- facts and swer to ask if could take an oath that ply charged by the law as court.” the he be so Receiving would not affected. at 852. S.Ct. negative immediately the trial reply, court opinion in also that in a Thus, Witt holds prospective juror.2 dismissed the corpus federal habeas action under 28 inquire rather than to what extent Scott’s paid 2254 deference U.S.C. must be the attitude toward would findings court, the of the trial and that ability “affect” his to render a true verdict where record does not show otherwise with his special accordance oath as to presumed applied is that the trial the Art. issues under the court cut off proper standard in prospec- its exclusion of his answer and excused him when he stated Id., jurors. tive at 856. doing he at all. In could be affected so the clearly 12.31(b): misapplied trial court Here, however, clearly the trial court did “ application the of apply not ... Sec. standard. by required Adams and At the time he was not was excused it merely determination of calls for a yet whether put clear Scott could aside his mandatory penalty whether the would personal feelings honestly answer deliberations, ‘affect’ but rather the his 37.071(b) special pun- Article issues in would af- extent to which be phase ishment trial. murder [Emphasis original] fected.” compounded The confusion was because State, 643 S.W.2d 923-24 even after the Graham v. briefly explained prospec Exclusion of required two answer punishment, jurors on this overbroad defini questions at contin- tive based both sides exactly procedure ued to ask the tion of “affect” was venireman whether would against” punish- for” or “vote Adams. Scott well “vote condemned in Although initially type precisely ment. Scott stated have been 2. conclusion No. that the court its deci- THE WITNESS: based right. right. on the sion venireman’s that he admission All All I will THE COURT: by mandatory penalties "affected” you, then." excuse supported by pro- questioning court’s Seymore’s answers demonstrated Earlier spective Mary Seymore, Ida which con- properly be excluded for cause that she could as follows: cluded adopted Wainwright v. under the standard right. “THE COURT: All let me ask so, Then Witt, supra. Even the conclusive factor for question. though you another Even be- seemed to the trial court be that she could not lieve that given, not be should swear that her deliberations would be unaffect- could nevertheless the oath take mandatory penalties ed of life or death. says mandatory penalty which of life last asked the trial That death will not affect deliberation her, excusing just court before as in Scott’s case. any issue of fact?
juror Witherspoon being would shield from represents excluded for cause: one who McELROY, Appellant, Mark P. Jr. segment
that extensive community objects v. yet to the death one who would follow the law and the Texas, Appellee. The STATE of so, evidence to If arrive verdict. his No. 354-84. exclusion was in violation of the Sixth Fourteenth Amendments to the United Appeals Court of Criminal Adams, supra; States Constitution. Hart En Banc. State, (Tex.Cr. field App.1983). very At the least his dismissal Sept. premature. Lackey v. (Tex.Cr.App.1982)(Opinion S.W.2d Appellant’s Rehearing); Motion for
Rougeau v. S.W.2d party seeking prospective juror
exclude a has the burden proving proper. the exclusion is had not satisfied that burden before Bravo, parte
Scott was excluded. Ex (Tex.Cr.App.1985)(Opinion
S.W.2d Rehearing).
on State’s Motion for It was
in that sense that Scott’s dismissal was
premature. applicant No one contends that right examining pro
was denied his
spective juror. It was the State that had gone enough far to sustain its burden showing properly Scott was excludable ques His answers to the crucial cause.
tions whether he would follow the law arriving
and the evidence in at his verdicts Indeed, ambiguous.
were his clearest “possible” him
statements that it was
to consider the death for “mur depend
ders” and that decision would just
on the trial evidence came before the
court intervened in the voir dire. The trial abruptly ambiguity
court then resolved the
by applying the condemned standard later
in Adams. penalty may imposed
The death not be
where even one venireman has been exclud-
ed from the violation of the rule of
Witherspoon. Davis v.
429 U.S.
Georgia,
Because believe venireman case, respectfully
excluded dissent.
TEAGUE, J., joins
opinion.
notes
21
third,
19 and
are
proceedings.
Adams standard is in accord with tradition-
excluding
al reasons for
jurors and with
It is clear from
majority
Witt that a
the circumstances under which such deter-
the United
Supreme
States
Court aban-
minations are made.
doned
Witherspoon’s
both
substantive
stringent
standard and
proof
its
burden of
Further,
in Wainwright
Witt,
v.
105
requirement.
Supreme
See “The
Court—
Supreme
S.Ct. at
Court wrote:
Cases,”
Leading
99 Harvard Law Review
“We
take this-opportunity
therefore
(November 1985).
120
clarify
our
decision in
Witt,
and to
After
above-quoted
Adams and
stan-
before
this Court
reaffirm
upheld
prospective
dard
the excusal of
jurors
Adams as the
stan-
light
murder
determining
dard for
cases
when a
Adams
juror
where their
views
be excluded for cause because
prevented
would have
or substantially
of his or
im
capital punish-
her views on
paired
performance
jurors
their
ment.
ac
That
ju-
standard is whether the
cordance
their
with
instructions. See Bass
‘prevent
ror’s views would
or substantial-
State,
v.
(Tex.Cr.App.
S.W.2d
ly impair
performance
of his duties
1981);
State,
v.
Williams
S.W.2d
as a
in accordance
instruc-
118 (Tex.Cr.App.1981);
State,
Porter v.
tions
that,
and his oath.’ We note
(Tex.Cr.App.1981);
S.W.2d 374
addition to dispensing with Wither-
Griffin
State,
(Tex.Cr.App.1983);