*1 GRAY MISSISSIPPI Arguеd May No. 85-5454. November 1986 Decided *2 J., judgment of the Blackmun, announced Court and delivered the opinion respect I, II, III-A, III-B-1, to Parts IV, Court with and which Brennan, MARSHALL,Powell, JJ., joined, and Stevens, and an opinion III-B-2, respect to Part which Brennan, with Marshall, and J., JJ., joined. opinion filed an Stevens, Powell, concurring part and post, J., concurring judgment, in the Scalia, dissenting opin- filed a ion, J., O’Connor, JJ., C. Rehnquist, joined, which White post, 672. Volinsky H.
Andru argued the cause and filed briefs for petitioner. White, Jr., L.
Marvin
Assistant
General of
Attorney
Mis
the cause
argued
him
sissippi,
respondent. With
on the
Lloyd
Edwin
Pittman,
brief
Attorney General, and
*
Amy Whitten,
D.
Assistant
Special
Attorney General.
*3
announced the
of
judgment
the Court
Blackmun
Justice
delivered the
of
opinion
the Court with
to Parts
respect
I, II, III-A,
III-B-1, and IV, and an
with
opinion
respect
to
Part
III-B-2,
which Justice
Brennan,
Justice Mar-
and Justice
join.
shall,
Stevens
Georgia,
in Davis
More than 10
years ago,
*A brief of amici urging curiae affirmance was filed for the State of North by Lacy Carolina et al. Thornburg, Attorney H. General, Joan H. Byers, Special Deputy Attorney General, Roy Blackwell, David Assistant Attorney General, Graddick, Attorney Charles A. Alabama, General of Kamp, Attorney John Van de California, General of Kelly, John I. Chief Attorney Connecticut, State’s III, of Oberly Charles M. Attorney General Delaware, Smith, of Attorney Jim Florida, General of Hartigan, Neil F. Attorney Illinois, Linley Pearson, General of E. Attorney General of Indi- ana, Guste, Jr., William Attorney J. Louisiana, General of T. Travis Medlock, Attorney Carolina, General of South Mark Meierhenry, V. At- torney Dakota, Mary General of Terry, South Attorney Sue General of McClintock, Virginia, A. Attorney and G. General Wyoming. question presents jury the This case cannot stand.1 the ruling in- and, abandon that the Court now should whether subject impermissible harmless-error exclusion to stead, review. Gray Randolph petitioner was indicted David
In June charge County, for the stab- on a Miss., in Harrison engaged Wojcik bing in the commission while of Ronald death began jury felony kidnaping.2 The trial of the by assembling process in the entire venire selection panel voir dire an initial for He then formed courtroom. by calling persons Tr. 193-194. After to the box. regarding prior by questioning preliminary court knowl- prosecutor parties edge involved, the and of the of the case panel. After a member examination his commenced pe- by prosecutor’s use of a cause or removed for was challenge, remptory was called to the venire member another prosecutor. questioning When box for acknowledged point he ac- that would he where reached panel to the de- cept the voir dire shifted stood, as it the full procedure. attorney petitioner’s followed the same fense alternating with questioning fashion, in this continued The examining who had been venire members those side each inquire, opportunity until the box since its last called panel selected. final individually questioned panel members were *4 presence place part, of the others in the but this took
most
summary disposition
from the
Members of the Court dissented
1 Three
consideration.
See
plenary
Davis
They
given
ease.
have
would
the
of
summary
course,
has said that
S.,
Court,
at times
at 123. The
of
429 U.
as does a
de
effect
case
precedential
does not have the same
here
action
Jordan,
g., Edelman v.
e.
See,
briefing
argument.
upon full
and
cided
(1974).
651, 671
415 U. S.
opinion
of
are set forth
the
repulsive crime
The circumstanсes
(1985).
2d
Be
472 So.
Mississippi.
Court of
See
Supreme
proce
review concerns the
presented
this Court’s
legal issue
cause
selection,
recitation of facts to
we confine our
during jury
followed
dures
process.
that
to
relevant
those
presence
prospective
in the
of all
as well as
the box
waiting
result,
venire
to be called. As
courtroom
consequences
re
learn the
of different
members were able
response
particular,
sponses.
learned what
In
jury.
being
likely
from the
This
in their
excluded
result
difficultyduring
prosecutor’s question
knowledge
caused
panel
ing.
he or she had
each
member whether
against
He asked
scruples
capital punishment
any
conscientious
could vote to
a death sentence.
he or she
whether
scruples
prospective
revealed
such
or
Whenever
uncertainty
any degree
ability
expressed
to cast
prosecutor
panel
member
moved
have the
vote,
such a
granted
In
the court
cause.
one instance
excused for
eight instances, however,
368. In
the court
Id., at
motion.
prosecutor
peremptory
then used
the motion.
denied
challenges
eight panel
App.
3, 5,
those
members.
to remove
Aftеr his denials of these for-cause mo
13, 15, 16.3
6, 9, 12,
perhaps
that venire members
observed
tions,
responses
prosecutor.
being forthright
to the
not
their
expressing
hesitation
He criticized them for
insincere
about
sup
for cause of course must be
A motion to excuse a venire member
that,
a matter of
ported by specified causes or reasons that demonstrate
as
Dyke, Jury
law,
qualified
to serve.
J. Van
Se
the venire member is
(1977).
is no limitation on the number of
Procedures 139-140
There
lection
may
contrast,
Ibid.
challenged
be
for cause.
venire members who
traditionally
peremptory challenges
have limited the number
al
States
ordinarily
litigants
can be exer
lotted to
because
reasons, id.,
145-147, subject
articulating
without
constitutional
cised
(1986).
Kentucky,
Mississippi
A
Batson v.
By H. the time venire member Mrs. C. Bounds was called prosecutor had box, to exercised all the of peremptory challenges, see Miss. Code the State’s Ann. § apparently exercised 99-17-3 of which for panel responses to to reasons unrelated members’ Wit- questions. herspoon Tr. 390-391. Al 301-802, 381, See though dire the voir of member Bounds was somewhat con ultimately she stated that she could consider death fused, penalty appropriate judge case and the concluded an Evidently capable voting to it.5 of de Bounds transcript the entire voir dire reveals that this review of Our prosecutor problem apparent to the before the uttered had become member, During questioning another venire his his earlier admonition. scruples against capital pun might he have conscientious who stated that you this, ishment, interrupted and said: me tell let “Let me you you that. ... I know whether say you answer need to this to before just you get Jury. off You’d rather in that or whether want believе response prosecu to the App. 13. venire member’s not serve.” Another mean, way “I telling: Jury is Witherspoon question equally tor’s is, would, guilty. now, I I vote not ... I saying what I’m would going Penalty.” Id., know, guilty on would, you vote not the Death 7-8. clarify position: her in an effort questioned court Bounds words, you do have conscientious “BY THE COURT: other Penalty, if it’s authorized imposition of the Death against the scruples right? law. Is that
“BY BOUNDS: No. MRS. Id., Okay.” No. “BY THE COURT: attempt to prosecutor in demonstrate by the questioning After further cause, again acknowledged court was excludable that Bounds eligibility serve: Bounds’ Penalty? the Death vote for You could “BY THE COURT: I could. I think “BY MRS. BOUNDS: says for the Death Pen- she can vote right. She All “BY THE COURT: Id., alty.” at 22.
ciding realizing that he did not Bounds want on the and peremptory challenge prosecutor that he had no left, the challenge.6 the asked court to allow the State another such argued App. denying 22. He that the court had erred five challenges thereby or six of the State’s for-cause had compelled peremptory challenges against to State use its prosecutor those venire members. The asserted if that, he challenge, had another he would use to remove Bounds. Ibid. judge initially right, observed,
The I “Well, think that’s I you equivocate. made use аbout five them that didn’t Uh, ”many. I never had no run idea that we’d into this Id., at 23. objected granting After defense counsel to the State a 13th peremptory challenge, prosecutor urged ibid., the court to reverse one of its earlier denials of his for-cause motions, peremptory challenge which would restore a to the State. responded: The trial court myself. I
“Well, didn’t examine them Of course, I admit they unequivocal, were about five of them, that an- you way. swered [Bounds] guilty guilty,
“Go ask her if she’d vote or not says . .. and let’s see what she to that. says, gets equivocating
“If she if she to on I’m that, person going her off as up to let who can’t make her mind.” Ibid. response prosecutor’s questioning,
In to Bounds stated guilty guilty that she could reach either a or not verdict and penalty that she could vote death if the verdict güilty. Despite pros- Id., were at 24. these answers, the 6 response questioning from this during argument here, Court oral Mississippi cases, counsel for the State said that in some judge trial has peremptory challenges. allowed additional on say, however, He went unaware of that he was state-court on decision the issue. Tr. of Oral that, Arg. 35-37. He noted on the aware, occasions of which he was when granted, opрosing additional side also re Id., equal number. ceived ecutor renewed his motion that she be removed for cause. that Bounds’ Defense counsel out answers to the pointed excludable. He further did not render her con- questions questioned tended that had not prosecutor properly cause, excused for to de- earlier who had not been jurors, Witherspoon. under termine whether were excludable that the not used the appro- had judge agreed “I noted, them should have priate language questioned Id., ...” at 25. this, guess. on discussion, After still further excused Bounds for *7 declined to reconsider his earlier refus- cause, but expressly for cause.7 The voir dire als to strike venire members con- 12 venire members in accepted tinued until both sides the box following explanation: prefaced The court its conclusion with get get it reversed because of this one “I’d hate to a conviction up mind. woman. She can’t make her
“Well, opinion firm that the Court is of the that there let the record show five, challenges I nine though was at least even think there’s around been cause, nine, right, Attorney eight the District for either or all used against Capital eight there was of them that had said that were Punishment. was, uh, unequivocally op-
“And I think there five of those answered, substance, stronger language posed if not even than to it and case, uh, from the United question set forth in the States Court, uh, should, challenge him Supreme point, I at this allow this totally totally is indecisive. lady cause. indecisive. think she for She thing says thing one one time and one another. She by making opinion that it cheated the ... “The Court is of the State five instances. Attorney his at least District use particular case.” going And I’m to allow it cause? Excuse her for [defense counsel]: “BY MR. STEGALL going “BY THE I’m to excuse her. COURT: this, is the Court of the “BY MR. Let me ask the Court STEGALL: that, uh, record. . . . opinion that there has been a sufficient any his (Interposing) going I’m to add “BY THE COURT: challenges. Okay. right. All
“BY MR. STEGALL: go give him five more. going “BY THE I’m not back and COURT: added). App. (emphasis going to excuse her cause.” I’m for began and two alternates. The trial that afternoon and con- days petitioner jury cluded three later when the convicted capital murder and him sentenced to death. opinion, Supreme
In an otherwise unanimous
Court of
petitioner’s
Mississippi divided on
claim that his
sen
death
tence was invalid because the
exclusion Bounds violated
right
impartial jury
his
to a fair and
and was inconsistent
(1985).
Witherspoon’s
with
dictates.
Writing
joined
other members
dissent and
two
according
emphasized
to the
that,
court, Justice Sullivan
(“the major-
for
record,
excused Bounds
cause
the trial
words”),
judge’s very
ity
on
trial
. . . contradicts the
peremptory challenge.
In
Id., at 424.
the dis-
of a
basis
majority’s reasoning
because,
was invalid
view, the
sent’s
Gеorgia,
not treat erroneous
courts could
under Davis v.
2d,
as harmless error.
So.
dismissals
granted
consider
I—II—I Witherspoon, held that a defendant’s this Court right, Amendments, and Fourteenth under Sixth impartial jury prohibited of venire members the exclusion objections general “simply to voiced because scruples religious expressed penalty conscientious or or against It reasoned that S., at 522. its infliction.” U. *9 who members must be limited those of venire the exclusion penalty “irrevocably against the committed ... vote regardless of might death facts and circumstances that emerge proceedings,” in the course of and to those whose making prevent impartial views from would them decision guilt. question on Id., 522, n. 21. We have re- rule on occasions, examined several one of Wainwright being them v. Witt, 469 S.U. where determining prospec- for we clarified standard whether may jurors be excluded for tive cause based on their views on capital punishment. inquiry We there held that the relevant juror’s ‘prevent substantially is “whether views would or performance impair of his duties as in accordance quoting with his instructiоns and his Id., oath.’” at 424, (1980). Adams Texas, v. 448 U. S. again
There nois need to delve into the intricacies of that necessary, keep It sig- standard. is however, to in mind the capital right impartial nificance aof defendant’s to a fair and jury under the Sixth and Fourteenth Amendments. writing recently for the Court, Justice Rehnquist,
explained: important oppose “It is to remember not all who penalty subject capital death are to removal for cause in firmly penalty those cases; who believe that the death unjust may jurors capital nevertheless serve as cases long clearly they willing so as state are to tem- porarily set aside their own beliefs deference to the rule of law.” Lockhart McCree, v. 476 U. S.
(1986). power jurors capital The State’s to exclude for cause from juries beyond removing not does extend its interest those legitimate who “frustrate the State’s interest administering sentencing constitutional schemes following Wainwright their oaths.” Witt, permit U. S., at To exclusion cause of other prospective jurors penalty based on their views of the death unnecessarily narrows the cross section venire members. “stack[s] against petitioner. It the deck To execute
659 him life would of his without deprive death sentence [such a] Illinois, 391 U. Witherspoon S., law.” v. due of process of the Court Mississippi Supreme expressly Justice Every Bounds to be clearly qualified stated that member “was panel Adams Witt criteria.” seated a under the as at 422 and 424. We death sentence 2d, agree. Gray’s So. stand unless this Court chooses to abandon therefore cannot Davis.
Ill
Davis
cited in the Mississippi Supreme
was not
Although
in
in
case,
this Court
majority opinion
present
Court’s
se rule
Davis
per
established a
the vacation
surely
requiring
a
from which a
by jury
potential
a death sentence imposed
of
scruples against
pen-
who has conscientious
juror,
Witherspoon
under
eligible
but who nevertheless
alty
Davis,
has
excluded for cause. See
serve,
erroneously
been
Davis
per
123-124
S.,
(dissenting opinion).
429 U.
curiam
course after
identify
served to
Court’s
opinion
Witherspoon
decided,
Soon after
was
Witherspoon.8
in which state
was
with several situations
Court
presented
apply
their confusion as to how
courts had exhibited
1971,
in
case.9 In
it had sum-
standard enunciated
that
years following Witherspoon, the Court twice reaf
During the two
application.
opinions demonstrating
its correct
holding
firmed its
brief
(1969),
Holman,
and Maxwell
481-484
See Boulden v.
394 U. S.
curiam).
(1970)
Bishop,
(per
264-266
398 U. S.
however,
import
the full
already
recognized,
had
Some courts
Beto,
Witherspoon.
Marion v.
expressed in
constitutional mandate
(1971),
denied,
Appeals
the Court of
for
F. 2d 29
cert.
The efforts to a harmless-error determination to Witherspoon suggested analyses. violations have two See Witherspoon The Krauss, Doctrine at Witt’s End: Death- Qualification 24 Reexamined, L. Am. Crim. 1, Rev. 32, (1987). n. Ill The is first consider state’s retention of unexercised end of selec- tion as an indication that the erroneous for-cause exclusion approach representation by was harmless. This relies on the state that it would have removed venire member peremptory challenge if the court had denied its for-cause re prospective jurors opposed In Ander penalty. exclude all to the death son, 613, 618-620, 2d Cal. P. 2d 121-122 cert. denied (1972). sub California, nom. Anderson It U. noted S. jurors yield held that of all prospective exclusion such did not impartial jury. 2d, 2d, an at 122. Cal. 447 P. The second is to treat the' erroneous exclusion as
motion. prejudicial effect if it isolated incident without cannot panel fairly represent said that the ultimate did not be community anyway. Mississippi Supreme ap- The Court analysis; pears to relied on a variation of the first re- have spondent urges adopt the second.10 find Court to We unpersuasive. each
A seeming ambiguity Mississippi Supreme The Court’s opinion complicates somewhat our examination of its harm- analysis. opinion susceptible possi- less-error to three interpretations. that, view, ble The first is the court’s judge recognized failing trial that he had erred earlier therefore dismiss one of the for cause and restored peremptory challenge that the then State exercised to remove Bounds. The second is that the court concludingthat the trial court itself offset its could be seen as *12 denying Witherspoon in earlier error a valid for-cause motion by granting motion as to an invalid fоr-cause could The third is that the court be seen to have Bounds. judge peremptory challenge restored a decided that the trial by determining previously in the that he had erred State, prosecutor’s Witherspoon denying motions, one of the but interpretation, Bounds for cause. this still removed Under although judge that, court have reasoned the trial the removing error cause, erred in Bounds for the was harmless peremptory challenge had an unexercised because the State portion significant argument devoted a of its brief to an 10 TheState has findings by on the deference this Court owes to of fact made a trial based where, here, inappropriate as the trial court’s deference is court. Such law, Rog findings dependent apparent misapplication on an of federal are Richmond, internally ers and are inconsistent. U. S. finding reasoning unambiguous by made trial on the one the We rest our not appeal authorized under the court and affirmed on the court —that member Witherspoon-Witt standard to exclude venire Bounds for cause. 5, supra. See n. prosecutor if
that the would have used to remove Bounds judge trial had refused to remove her for cause. disagreе judgment if with the and to the extent it
We interpretation reasoning rests on the first because that wholly unsupported by judge the record. trial was ex- plicit explanation in his that Bounds was removed for cause. supra. no means in that, view, See n. It is clear his denying prosecutor’s Witherspoon he erred in motions. actually simply in he erred his earlier denials cannot Whether Although judge discerned from the record. the trial be knowledged ac- responded that some of venire members had prosecutor’s questioning language suggest- in to the ing at least they Witherspoon, would be excludable under judge agreed with defense counsel that the had properly questioned App. not the earlier venire members. type In order to avoid errors based on this of failure to adequate establish an foundation exclusion, Missis- contrary sippi implications requires law, to the the dissent, judge question the trial himself to the venire members.11 judge comply case, The trial did however, not with the Mississippi procedure. despite he so, Had done their initial Mississippi Supreme Court, present ease, that, explained
11 The capital case, judge under state law the trial should ask venire members “ panel any scruples against ‘if mеmber of the has conscientious penalty, it, eases, infliction when the proper death law authorizes testimony If say and where the warrants it. there are those who opposed penalty, go are to the death trial should then further and veniremen, affirmative, ask those who have answered in the whether or they could, nevertheless, testimony follow the and the instructions of *13 guilty and return although the court a verdict of that verdict could result in penalty, they, if being judges weight and worth of the evidence, guilt were convinced of of the defendant and the circum- say such they stances warranted a verdict. Those who that could follow retained, and the instructions of evidence the court should be and those who cannot follow the instructions of the court should be 472 released.’” State, (Miss. quoting Armstrong 2d, 421, 589, 214 2d So. So. 593 1968).
663 might responses, po- venire members have clarified their questioning upon that further and revealed their con- sitions they penalty origi- than about the death were weaker cerns nally might that stated. It have become clear could set jurors. scruples inadequate their and serve as aside regarding questioning the venire members’ views effect appellate determining precludes an court from whether the judge refusing trial erred them for cause.12 remove disagree judgment Mississippi also with the We of Supreme might if Court and to the extent seen to be approve remedying a trial court’s an erroneous denial of a Witherspoon by granting Witherspoon motion an invalid mo- by adage tion. Our reasons are embraced that well-worn wrongs right.” Although prefer do not make a we that “two remedy possible, if a trial court its own mistakes we can- by of one error not condone the “correction” commitment of another. may deprived have been
Moreover, the fact that the State improperly of does not render the petitioner’s con- error less violation rights guaranteed and Fourteenth stitutional Sixth Peremptory challenges Amendments. are not constitu- origin. Kentucky, 79, tional Batson v. 476 U. S. See (1965); (1986); 202, Swain v. 380 U. S. Stilson Alabama, (1919). a situation States, v. United U. S. right into as this where a constitutional comes conflict such statutory right, prevails.13 the former with belatedly ques judge The trial himself realized that he should have law, extensively, pursuant about their tioned the more to state Furthermore, penalty. App. if he had in views on the death errors, expect iden to correct earlier one would that he would have tendеd rulings he erroneous and restored specifically tified the earlier considered compensate prosecutor enough peremptory challenges to for the to the errors. that, applied suggest if the trial believed that he had We do not dire, voir way to correct during standard there was no an erroneous Mississippi Supreme Court said that a trial court “should be error. The *14 664 we with the
Finally, disagree Mississippi Supreme Court’s if that a judgment and to it the extent holds vi- olation constitutes harmless error when the has he unexercised he states peremptory challenge to excuse juror. have used At least two this Court’s summary 1971 reversals stand as prior of this rejections “unexercised peremptories” argument.14
A fresh examination of this
also leads
argument
us to
conclude that
it
be
rejected.15
must
unexercised pe
opportunity
any
by way
afforded the
to correct
errors at trial
of a motion
2d,
for a
472
at
presented by
new trial.”
So.
423.
In the situation
case,
equivalent
action would have
been
dismiss the venire sua
sponte
parties agreed
afresh. The
special
start
that a
new
venire
have been
compiled
could
less than a
Arg.
month. Tr. of Oral
34-35,
period might
46. The time
have
even
been
shоrter
this case
parties
right
special
because the
waived
to have
venire called. Tr.
14
Bernette,
People
227,
(1970),
v.
45 Ill. 2d
The result of of this unexercised remptory argument would be to insulate selection error meaningful appellate By stating simply during from review. prepared peremptory dire voir that the State is a exercise challenge prosecu- if cause, the court denies its motion for a reviewing tor could ensure that a court consider jecting argument allowing retrospective as matter of state law because appeal peremptory exercise of on transforms “a against prospective juror” peremptory against strike into “a strike error”). ground of prosecutor, A erroneous exclusion harmless. as a routine likеly append a matter, would statement to this effect to his motion for cause.
B
argument
The State’s
the erroneous exclusion of
single
awas
technical error that
Bounds
should be considered
any prejudicial
harmless because
did not have
effect is
equally unavailing.
judgment
Supreme
Court of
Georgia
analy-
was reversed Davis rested on a similar
(1976).
Davis State,
sis. See
Ga.
S. E. 2d 241
opinion,
In this Court’s Davis
it cited three of its 1971sum-
mary
having rejected
reversals which can be read as
this ar-
*16
gument.16
urges
429
S.,U.
at 123. The State nevertheless
apply
analysis
us to
the constitutional harmless-error
formu-
Chapman
(1967),
lated in
v. California,
In Davis v. State, the Court concluded despite that, the erroneous exclusion of a venire member scruples penalty justify whose about the death did not Witherspoon exclusion, Davis’ death sentence could stand. Georgia correctly Witherspoon prohibit court read “‘entrusting] State from the determination of whether a man organized should live or die to a tribunal to return a verdict ‘“stacking] against peti- death,”’ from the deck quoting tioner.’” 236 Ga., 809, at 225 S. E. at 2d, 244, Witherspoon v. Illinois, 391 U. S., 521, at It focused Witherspoon’s on statement that “‘the decision whether a man deserves to live or die must be made on scales that are
16
Adams,
State v.
In
650,
76
(1969),
Supreme
Wash. 2d
We reaffirm that
a case that
into
inappropriate
one of the
foсus
real-world factors that render
application
analysis
of the harmless-error
to such errone-
ous
exclusions for cause. Unlike Davis which the state
scrupled, yet
court found that the erroneous exclusion of the
eligible, venire member was an isolated incident because the
record revealed that similar
excused,
were not
support
finding.
record in the instant
case does not
such
suggests
opposite
fact,
the State exercised its
*17
—that
peremptory challenges to remove all
members who ex-
venire
pressed
degree
penalty.17
against
hesitation
generally
prosecution’s
Because courts do not
review
rea-
exercising
challenges,18
peremptory
sons
and because it
17
very
point:
The
at one
goal
made his
clear
(sic)
trying
people
am
“[Wlhat
to do is to find twelve
who tells
me that
Capital
scruples against
have no conscientious
Punishment when im-
by
posed
App.
the law.”
18
Kentucky,
recent decision in Batson v.
our
Under
79
U. S.
however,
prosecutor’s
a
peremptory challenges
subject
judicial
use of
prima
a
purposeful
review when
defendant establishes a
facie ease of
dis-
appears
prosecutors
oftеn use
say
manner,19
this
court cannot
with confidencethat an er-
scrupled, yet eligible,
roneous exclusion for cause of a
venire
particular
member is an
isolated incident
case.
say
may
Therefore, we cannot
that courts
treat such an error
having
prejudicial
as an isolated incident
no
effect.
Witherspoon-Witt
Because the
standard is
rooted
right
impartial jury, Wainwright
constitutional
to an
v. Witt,
impartiality
adjudi
S.,
469 U.
at 416, and because the
of the
goes
very integrity
legal system,
cator
of the
Chapman
analysis
apply.
harmless-error
cannot
We have
recognized
rights [are]
that “some constitutional
so basic to a
fair trial that their infraction can never be treated as harm
Chapman
less error.”
v. California, 386
S.,U.
at 23. The
right
impartial adjudicator,
jury,
to an
be it
or
is such a
right.
citing, among
Id., at
Tumey
23, n. 8,
other cases,
(1927)(impartial judge).
Ohio,
IV judgment Supreme Mississippi, Court of insofar imposes as it the death sentence, is reversed, and the case is remanded to proceedings that court for further not inconsist- opinion. ent with
It is so ordered. crimination based on concerning evidence prosecutor’s pe- exercise of remptory challenges at the defendant’s trial. 19 Winiek, See Peremptory Prosecutorial Challenge Capital Practices Empirical Study Cases: An and a Analysis, Constitutional 81 Mich. L. Rev. (1982); Lindsay, Peremptory Prosecutorial Abuse Challenges in Death Penalty Litigation: Some Considerations, Constitutional and Ethical (1986). Campbell L. Rev. 71
669 in the in Powell, concurring part concurring Justice judgment. (1976) curiam), (per Georgia, we
In Davis v. 429 U. S. erroneously single is excluded if a venire member held that penalty, a subse- cause of his views on for because capital quently imposed The facts of this sentence is invalid. although at times confused Bounds, that Mrs. case show finally explicitly questioning, inartful voir dire stated Wainwright carry duty juror. Cf. out her as she would (1985)(juror for cause not excludable Witt, 469 U. S. “ substantially impair ‘prevent or unless his views would juror’” (quoting performance Adams v. his duties as a (1980))). Bounds’ will- Given Mrs. Texas, U. S. capital appropriate ingness I in an case, sentence removing agree her for cause. that the trial court erred precise presentеd with the issue addressed therefore are We in Davis. opinion joined per Davis,
I curiam and continue improper in a case exclusion of a believe that subject grounds to a harmless-error should not be on these analysis. why a harmless-error The facts before us illustrate analysis inappropriate. dissent con- Justice Scalia’s had no effect on the that the exclusion of Mrs. Bounds cludes prosecutor composition should have because peremptorily. The dissent allowed to exclude her been- required points to exhaust his out that the erroneously challenges peremptory the trial because jurors despite un- cause, other their refused to exclude penalty. equivocal opposition I at 673. Post, to the death agree these earlier should have been that a number of prosecu- Nevertheless, cannot assume that excused.1 states, potential jurors who chal several of the As the dissent unsuccessfully explicitly stated that would not lenged for cause g., See, e. (juror any App. sentence circumstance. impose the death id., “[a]ny type case”); at 6 impose the death sentence Ruiz case”). [capital punishment] (juror never vоte for Coker “would *19 for” these mis- Mrs. Bounds “but would have excluded tor appeal to recon- notes, it is difficult on As the Court takes. strategy, predict prosecutor’s voir dire and to who the struct If had the facts been different. excluded would have been compelled challenges prosecutor to use his had not been the may certainly jurors, Bounds. It he have excluded on other prosecutor possible, have however, that the would also is objectionable challenges chance that a more his on the saved perhaps along, juror he would have excluded would come or requirement grounds. our on other Given an earlier reliability I cases, would hesitate to con- enhanced “definitely” composition of the venire would clude that the solely speculation on as to how the same, have been the based join judg- prosecutor might acted.2 I therefore the have opinion except generally in the for Part III-B-2. ment, and approach takes different dissent a somewhat Justice Scalia’s arguing that error in this case was harmless. He asserts that the the analysis point, improperly above misses the because it focuses on the trial judge’s cause, failure tо excuse the earlier rather than on the judge’s rulings permit prosecutor failure to revise these earlier the Post, 678-679, peremptory challenge. I agree exercise another n. 4. harm; judge’s rulings with the dissent about which of the trial caused the I simply disagree properly may light as to what inferences be drawn dispute that ruling prejudiced petitioner error. There is no was improper only question removal of Mrs. Bounds. Thus is whether composition a reasonable doubt that the there is of the venire would have panel The dissent been different as a result. is convinced that the cause, changed, judge not have because if the had not excused Bounds for rulings he nevertheless would have reversed his earlier and “returned” at peremptory challenges. least one of the State’s I do not think the record supports may an judge such inference. The trial was aware that he have cause, excusing panel erred the earlier members for and was asked specifically change Although procedure some of these decisions. apparently permitted law, although judge is under state was plainly aware that disputed question the exeusal of Bounds created a under Witherspoоn cases, change rulings. line of refused to his I App. 26. unpersuaded See therefore am but for error, both could and would have removed Mrs. Bounds panel. from the to the disagree plurality with extent that its decision
rests on “real-world factors” such as the use prosecutor’s Davis in- notes that challenges. plurality peremptory volved the exclusion of a venire single qualified member. in Davis Ante, 667. The state court found no error be- cause the exclusion incident, isolated a conclusion that this Court expressly rejected. S., See U. at 123. view, our decision in Davis my sufficient to resolve the case, that we cannot know what effect given the excluded *20 would have had on the as a whole. panel For unex- reasons, however, plained plurality seeks to distinguish Davis by out that here the State pointing “exercised its to remove all venire members who ex- of hesitation pressed any degree against penalty.” omitted). (footnote Ante, I do not see relevance of not surely this observation. The is that plurality suggesting out if the differently this case would have come prosecutor had not removed other of their attitude jurors because about Such a conclusion would restrict Davis capital рunishment. rather than reaffirm it. Presumably, then, sim- plurality is ply expressing exclusion of disapproval prosecutor’s who could not removed for cause. jurors be can in- There be no that a has the dispute right, deed the to use all and ethical means to obtain a duty, legal conviction, to remove including right peremptorily jurors whom he believes not lawful may willing punish- be ment. defense counsel has the same and course, right Of ori- duty may prosecution to remove he believes be jurors ented. This Court’s do not that precedents suggest the traditional of rights line of cases restricts counsel to exercise their peremptory defense prosecutors course, authority irrelevant, It that the trial had for the error to be permissible reasons. order remove Bounds ease, definitely harmless, this she that on the facts of must be shown removed, that the venire would have been the would have been and thus for cause. in the erroneous excusal same absence of the agree challenges in manner. I therefore cannot that the by prejudice exacerbated created Mrs. Bounds’ removal was may proper have shared exclusion of other who her views. normally may acknowledges judges plurality that challenges. prosecutor’s
inquire
Ante,
these
use of
into the
recognized
exception to
This Court has
one
667, n. 18.
prima
the defendant has established a
facie
when
rule,
particular
in the selection of a
venire. See
of racial bias
case
(1986).
Kentucky,
Our decision in
Batson v.
I in the Court’s Part III-B-2. The Justice, whom Chief Jus- Scalia, with
Justice join, dissenting. and Justice O’Connor White, tiсe petitioner’s sentence must be vacated holds that The Court improperly for cause excluded Mrs. Bounds because jury. sentencing I it is clear that dissent because from the have been excluded on other event she should 3 validity petitioner’s today bearing on the convic has no The decision Illinois, Witherspoon v. 521, 391 U. S. tion, See only on the sentence. (1968). 523, 21n.
grounds. judge’s any, The trial if error, consisted of no giving wrong more than reason for lawful action—which conceivably could not have affected the fairness of the sentence. Mrs.
Before
Bounds’ voir dire, the State moved to exclude
potential jurors
judge granted only
nine
for cause. The trial
eight
one of those motions, and the State excluded the other
potential jurors by peremptory challenge. Five of those
eight
unambiguously
they
had
stated that
would never vote
(Mr.
penalty.
See Record 368-369
(Mrs.
(Mrs.
Ruiz),
Coker),
Bush),
381-383
392-393
394-395
(Mrs.
(Mrs. Walker).
Price),
and 398-399
401-403
These
undoubtedly
statements
rendered them excludable for cause.
(1980)(a
g.,
poten
e.
See,
Adams v. Texas, 448 U.
38,
S.
juror may
tial
be excluded for
if
cause his views about
punishment
prevent
substantially impair
per
“would
or
formance of his duties as a
in accordance with his in
oath”).
Wainwright,
structions and his
See also Darden v.
(1986);Wаinwright
168,
U. S.
v. Witt, 469
U. S.
(1985).
Cf.
v. Illinois, 391 U.
S.
(1968).
judge eventually
The trial
realized that he had
(“[I]
by making
erred. See Record 554
cheated the State
Attorney
. . . the District
use his
ibid, (five
instances”);
potential jurors
at least five
un
“were
equivocally opposed
[capital punishment]
answered,
stronger language
question
substance, if not even
than the
(“Of
[Witherspoon]”);
set forth in
id., at 548
course, admit
,”).1
unequivocal,
about five of them . .
1Despite
statements,
these
the Court asserts that it
clear
trial
Ante,
656, 662-663,
believed himself to have erred.
n. 12.
It
solely
rests that assertion
judge’s expressions
on the trial
of re
gret
questioned
that he had not
himself and that the
language precisely patterned
had not used
after
holding Witherspoon
(1968).
Illinois,
“despite responses, their initial the venire members might positions upon ques- have clarified their further tioning and revealed that their concerns about the death penalty they originally were weaker than stated. . . . inadequate questioning regarding the venire mem- precludes appellate bers’ views in effect court from determining refusing whether the trial erred in (footnote remove cause.” Ante, them for 662-663 omitted). passage, plurality this brief invents —but unfortu- nately justify does not new constitutional doctrine, not —a provision
rooted in constitutional and contradicted our prior plurality suggests potential jurors cases. The can- erred, why imagine hard to he excluded Mrs. Bounds for cause after making “unambiguous what the Court believes was an finding” that he “was Witherspoon-Witt so, ante, not authorized under the standard” to do (1985) (“the 2d n. See So. . trial court . . rec- ognized prior rulings the error in its and took affirmative action correct error”). joined Although Justice Powell has opin the section of the Court’s containing claim, ion he po concludes that at least some of the Ante, tential should have been excluded for cause. at 669. He necessarily rejects plurality’s reasoning support thus contrary conclusion. *23 properly questioning”
not be excluded if for cause “further might they really they reveal that did not mean it when said would never vote to a death sentence. The requirement Court has never before even hinted at such a (perhaps difficulty saying because of the obvious how much questioning necessary satisfy point further it—a on plurality understandably provides guidance) which the no implicitly rejected rejection fact has it. That is made by comparison clear of the voir dire the Court found suffi- justify cient to an exclusion for cause in Witt with voir potential jurors entirety dire of the in this case. The of the voir dire at issue Witt was as follows: (P)]:
“[Prosecutor you question, let me Now, ask you any religious personal ma’am. Do have beliefs or against penalty? beliefs (J)]: “[Prospective personally I Juror am afraid but not— Speak up, please.
“[P]: “[J]: being personal, definitely am afraid of a little but religious. “[P]: you sitting Now, would that interfere with as a juror in this case?
“[J]: I am afraid it would.
“[P]: You are afraid it would?
“[J]: Yes, sir.
“[P]: judging guilt Would it interfere with or inno- cence of the Defendant in this case?
“[J]: I think so.
“[P]: You think it would.
“[J]: I think it S., would.” 469 at U. 415-416. potential jurors The voir dire of each of the five issue responses case was extensive, least as and the potential categorical. example, far more For voir of Mrs. dire Coker went as follows: you
“[P]: have conscientious scru- Coker, Mrs. do imposed ples against Capital Punishment when law?
“[Mrs. Coker]: I do not believe it. Capital “[P]: Now, You do not believe Punishment. *24 you you Capital tell me don’t believe Coker, Mrs. do any type type case or in of case? Punishment this any type “[Mrs. Coker]: In of case.
“[P]: tell me that if the Court instructed You mean to gave you you you a the law and told that case, that this is whereby you [sic] the Death this is a case could you Penalty, if law, would not follow the it meant that Penalty? imposing the Death Coker]: [Inaudible.] “[Mrs.
“DP]:Ma’am?
“[Mrs. Coker]: I not. would “[P]: You would not do it? Coker]:
“[Mrs. I would not do it. Capital just “[P]: Punishment. You don’t believe right. Coker]: “[Mrs. That’s Capital you “[P]: would never vote for Punishment, And any just type you telling case or me, are case? “[Mrs. Coker]: In I would never vote for it in case. any case.” Record 381-383. plurality
The makes no effort to reconcile its conclusion that jurors potential at issue in this the voir dire of the five case inadequate justify exclusion for with their cause our beyond judge I think it doubt that the trial decision Witt. erroneously motions denied at least five of the State’s potential jurors exclude for cause. may potential jurors plurality also hints that these not they properly excludable for cause because were
have been merely objections capital punishment feigning in order to n. 4. But Ante, 652-653, 656, service. at avoid certainly permits for cause of the exclusion the Constitution capi- jurors potential their views of lie under oath about who although punishment. that there is no doubt Moreover, tal judge some concerned that and the were the trial dissembling, potential 410, 445, Record only id., agreed in this fashion, two had acted that one or properly if were not excludable Thus, those even cause, three others were. obsta- there is no federal constitutional
I also concludethat granting request judge’s that it be the State’s to the trial cle challenge given peremptory for use to remove Mrs. a back (It Mississippi Supreme Court’s from the Bounds.3 is clear permissible opinion under state have been that this would 423.) doing that It is true so 2d, see So. law, produсed jury have different from which would have request impaneled the trial denied the had been produced jury might have his error uncorrected—and left impaneled had from which would have been different place. But never in the we have not made first error been simply suggested, be, that the Constitution and it could *25 jury correcting judges in prevents errors selection from trial doing might composition if affect the so that favor defendants implicitly jury. it concedes as much when the The Court judge his case couldhave remedied that the trial states by dismissing rulings petitioner’s ve- the favor erroneous starting 663-664, 13. That Ante, anew. n. nire jury replaced 12 the rather than all members of have would remedying merely means of Mrs. less drastic Bounds. permissible. be the error must difficulty that the the is come, then, last We —which erroneously judge the State the not restore to fact did
trial use to peremptory challenge was a request for Since State’s Bounds, that would Mrs. Record it is certain Mrs. Bounds exclude see judge her for fashion the trial not excluded in this had have been excluded by quite from those discussed This therefore different cause. ease is ante, improper 664-665, argued that an exclu Court, in which the State peremptory that it by the fact had rendеred harmless sion for cause was it might have used dire which the voir challenges remaining at the end potential juror. exclude peremptory challenge,
denied but instead excluded Mrs. purposes opinion Bounds for cause. assume for of this that constitutionally grounds. she was not on excludable those observes, we “if As improperly Court have said that a is venireman [for any subsequently imposed cause], excluded penalty Georgia, death stand.” Davis cannot S.U. (1976) curiam). (per 122, 123 We have not, however, ex language tended this so far as to vacate sentence when jury impaneled certain that the that was was identical to jury impaneled judge that would have been had trial In fact, not erred. the Court itself indicates that such an ex misguided, stating tension be would that “the relevant in quiry composition jury panel is ‘whether the ofthe as a whole possibly could have been affected the trial court’s error.’” (quoting Ante, at v. Estelle, Moore 670 F. 2d (CA5) (specially concurring opinion), denied, cert. 458 U. S. (1982)). requires peti-
The standard that the Court endorses that upheld. tioner’s sentence be As I described, have the trial lawfully granted request could have the State’s given peremptory challenge it be for use to remоve Mrs. judge’s Bounds. It is certain that the trial decision to ex- granting clude Mrs. Bounds for cause rather than re- quest composition any way. did not affect the of the In either event, Mrs. Bounds have been excluded. essentially The difference of her form exclusion— one utterance of set of words rather than another —could possibly composition jury. have affected There petitioner’s no thus reason vacate sentence.4 *26 agree 4 I with Justice Powell that it cannot be assumed “that the ” prosecutor would have excluded Mrs. Bounds ‘but for’ trial judge’s Ante, potential jurors erroneous failure to a of exclude number for cause. supra, at 669-670. identity See But the of outcome that is rele identity to is an vant this case between what occurred what would have occurred without the that error violated the constitutional defendant’s ante, right's. Here, concedes, 670-671, as Justice Powell n. that (which was error not the earlier failure to exclude other for cause plurality’s commenting upon Finally, I dic- cannot omit prosecutors implying to it is for use tum that unconstitutional challenges consistently potential ju- peremptory to exclude capital punishment. express about rors who reservations disagree. peremp- I Prosecutors can use at 667-668. Ante, might tory challenges many of which well reasons, for some constitutionally support legislative a exclu- be insufficient to legislate example, I a could not For assume that State sion. sympathetic are more defendants than that those who toward person may jurors. average But that not serve as is the prosecutors surely does not mean that violate the Constitu- challenges using people. peremptory to exclude such tion presumably peremptory use their chal- Since defendants simply lenges opposite action fashion, the State’s does in the “deliberately tipped juries toward” conviction. not result peremptory reasoning applies of the exercise to same per- potential jurors challenges on the basis of to remove that vote to a death sen- likelihood ceived defendant), rather later but deci- aggrieved the rather than State granting instead the State’s re- Mrs. Bounds for cause of sion to exclude decision, I challenge. That as have peremptory of a quest for restoration composition jury. had no on the of explained, is certain to have effect peti- that dispute sentenced Powell does not that Justice him had the trial to the one that would have sentenced tioner was identical by peremptory Bounds motion to exclude Mrs. judge granted the State’s could, dispute he trial and indeed Nor does that the challenge. Nevertheless, peti- he that granted believes should, have that motion. because, had not been ex- be Mrs. Bounds must vacated tioner’s sentence grant the State’s cause, judge might trial have refused cluded potential ju- earlier motion, persisting in his mistaken failure exclude should be va- imagine why petitioner’s sentence Ibid. But cannot rors. merely of Mrs. Bounds for possible that exclusion because cated judge’s the trial ear- petitioner the undeserved benefit of deprived cause logic It that both in law and in the conclusion lier seems me errors. inevitably from the fact petitioner’s sentence should be sustained follows by jury to the one that would have sentenced identical petitioner excluding judge, Mrs. Bounds for impaneled had the trial instead been different, cause, course. taken lawful *27 example, appears tence. case, that the defend- poten- ant used to exclude least two suggested relatively tial likely whose remarks
to vote to a death sentence. See Record 522 (Mr. Hester). Cavode), (Mr. and 579 573-577 and 579 foregoing respectfully For reasons, dissent.