Marion Frank Crawford v. V. Lee Bounds, Warden of Central Prison (Successor to K. B. Bailey)

CRAWFORD, Aрpellant, Frank Marion Pris BOUNDS, of Central Warden

LeeV. (Successor Bailey), B. to K. Appellee. 10981.

No. Appeals Court

United States Circuit. Fourth

Argued 1967. Oct. April

Decided Durham, (Mc Burt, Jr., M. N. C. C. Burt, Durham, C., N. on

Kissick & brief) appellant. for C., Alstyne, Durham, William Van N. amicus curiae. Pollitt, Hill, Chapel Daniel H. N. C. Lambeth, Thomasville, (Charles Jr., P. C., brief) on for Carolina the North N. Union, curiae. Civil Liberties as amicus White, Jr., Atty., Ralph Of- A. Staff Atty. fice of Gen. of North Carolina- Atty. (Thomas Bruton, Gen. of Wade Brown, Carolina, North and Theodore C. Jr., Atty., Atty. Staff Office of the Gen., Carolina, brief) on for North appellee. HAYNSWORTH, Judge, Before Chief BRYAN, SOBELOFF, BOREMAN, and

WINTER, BUTZNER, CRAVEN and Judges.* Circuit WINTER, Judge: Circuit Petitioner, thirty-year-old male Ne- gro, degree mur- convicted first Negro eight-year-old der of female child, occurring in the course of allegedly rape, perpetrat- commission of ed him 1962.1 November N.C. 14-17; Gen.Stat. Petitioner was found § guilty and, jury’s because the verdict mercy, contained for no recommendation petitioner On was sentenced to death. appeal, judgment petition- entered on er’s conviction was affirmed. State v. * January initially,' argued rape, The case was 1. Petitioner was also indicted it 12, 1967, panel the Court con- before self offense under laws Winter, Judges, sisting of Bell and Circuit North Carolina. N.C. Gen.Stat. 14-21. § Judge. Russell, District Because He has been never tried on this indict Judge died before decision ment. Bell importance because Court, motion, issues, its own reargument ordered en banc. ment;

Crawford, S.E.2d 232 that he 260 N.C. denied due prosecutor announced, prior because trial, that he would seek the prior time About an hour penalty, prosecutor irrele- introduced capital punishment was to be carried vant evidence at the trial inflam- its out, sought petitioner habeas a writ of matory jury, effect on the told the corpus court. He ob- district petitioner’s prior record, criminal execution, stay but he was tained pleaded pen- with the for the death remedies, state remitted available alty ; that he was denied a fair trial be- re- court then exhausted. The district evidence, inflammatory including cause pictures jurisdiction until exhaustion tained body her deceased’s sought post- occurred. Petitioner had private parts, jury; was exhibited to the ple- relief conviction and was afforded that he was denied effective assistance nary hearing, represented he where was lawyer ap- of counsel because a was not by court-appointed counsel. N.C.Gen. pointed represent pre- him before the him 15-217. Relief denied Stat. was § liminary hearing and, court-ap- when his and the issuance of a writ certiorari pointed appointed, repre- counsel he was by Supreme denied was Court of petitioner incompetently; sented and North Carolina. He then his renewed relating that the North Carolina statute application corpus for a writ of habeas to the death is unconstitutional court, which, in the district after consid- application on its face and its ering it, the record extract and briefs Negro members race. appeal original trial, the transcript in his and the post-conviction of the state Most these claims of invalidi (excluding proceeding the exhibits ad- ty pressed post-convic were at hearing), summarily mitted that at de- hearing tion and evidence was offered in nied him relief.2 support many any of them. Absent suggestion judge, petitioner by Before the district of waiver or deliberate pass, none, petitioner why advanced numerous contentions there is judgment on entered his exhausted his conviction was available state remedies in claimed, regard generally, invalid. He he made that contentions before process law, Turner, was denied due the district that court. Stem v. (4 adequately 1966); he was never F.2d 895 informed Cir. McNeil State v. charges against Carolina, (4 him of North and was convicted 368 F.2d 313 Cir. 1966). petitioner of a crime he with which conclude We was charged, corpus he entitled to and that his a writ of was denied habeas be right by grand rights to indictment cause be- his constitutional were vio prosecutor permitted cause the to lated the manner in was which the responsibility amend the indictment to include determine his matters criminal presented grand selected, jury; particularly was because prosecutor successfully he was denied his to a trial was allowed impartial challenge prosecutor prospective jurors because for cause permitted challenge against expressed capi was prospective jurors for cause who sentiments punishment expressed disqualify who tal senti- thus to against capital punishment; segment ments panel, substantial of the with being he denied was due because the out the additional determination prosecutor accept plea objections refused to of made their guilty imprison- with sentence preclude of life wоuld them from application petitioner’s supplemental filing petition Before was con allow the merits, appli incorporating previous allegations sidered on its an amended ref- supplemental petition cation was dismissed for failure to state erence. Such a granted. supple- a claim on which relief could was filed remand. It was reversed, Bailey, petition, incorporating previous We F. Crawford mental all (4 1966), allegations, 2d 596 Cir. with directions that was dismissed. capital punishment. rendering firm on the issue believers a fair verdict consideration, Including four, thirty-eight guilt.2a these out of our confine We seventy-five (50.66% therefore, veniremen to that issue.3 total) petit were thus excluded undisputed that members of It is for these reasons. service panel, that convict- from which sharp of ex- contrast to the 45.33% chosen, petitioner interro- ed were jurors, juror admitted that cluded who any gated as to whether had senti- less, opinion” he had “more or' fixed capital pun- ment or reservation reading a result of about case as ishment; expressed permitted newspaper it in the about were, at sentiment or reservation such judge questioned trial to serve after the prosecutor, request of the immedi- answers him and further elicited ately further excused for cause without opinion- “erase” the could seventy-five inquiry. Thirty-four mind, he “disa- from his and that could prospective jurors disqualifed were opinion, and de- his mind of buse” ground. these thir- this broad None of solely on the ad- cide evidence ty-four was asked whether his court, applying thereto the duced against capital punishment inter- instructions, give the court’s so as to any way fere in the determination petitioner a fair The state and trial. Thus, petitioner’s innocence. challenge defense for cause of counsel panel was of cross-sectional 45.33% eliminated was denied. petit jury from service on the scruple Thirty-one jurors accepted because of a to- conscientious were capital punishment in- Only ward- prosecutor. without were ac- thirteen quiry effect, any, tually to their empaneled, what if each of thir- but scruples ability ty-one capital pun- to professed would have on their a belief petitioner’s Indeed, decide of the issue the thirteen ishment. Moreover, innocence.4 four veniremen “in stated he believed the doctrine that peremptorily challenged by eye eye,” were be- for an and that he an prosecution preliminary question- duty after lieved it be his to sentence ing they guilty established that were less than to of murder found January 15, 1968, repeat argu- tempt 2a. take that We on to note of the state Supreme granted complained Court certiorari under Hall v. ment of here Witherspoon Illinois, 1035, States, 22, 76, v. 14 389 U.S. 88 150 U.S. S.Ct. United 16, (January Wagner (1893), S.Ct. 19 822 and L.Ed.2d L.Ed. 1003 v. 37 1968), Carolina, (5 Bumper and v. North F.2d Cir. United (January 1959), sufficiency (3) L.Ed.2d 389 U.S. of the indict- 16, 1968), (January petitioner 36 L.W. 3298-3299 notice under Mc- ment and to 23, 1968), substantially State, in which the same v. 148 S.E.2d Clure 267 N.C. question presented. We, nevertheless, any procedural (1966), (4) other appropriate express deem it views. to our issues that counsel deem or substantive raise, all advisable to under the authori- suggest petitioner’s 3. We do not pertinent other cited and others ties possess contentions either or lack merit. those issues. It suffices that we see no constitutional petitioner’s original percentage startlingly bar to retrial. Since 4. The close granted Gallup trial counsel was to with- leave Poll which results a 1966 representation petitioner, draw from those interviewed were showed 47% proceed- prior capital opposed punishment. even the Federal Court The re- ings, poll adopted renders our decision moot claim and re- sults of the were representation Report: ported of denial of effective The Task Force assume, retrial, Courts, counsel. We on The President’s Commission competent counsel, peti- with alert and Law Enforcement and Administration opportunity (1967) tioner will have full liti- results Justice 27. The gate vigorously (1) attempt report poll were in the main summarized photographs complained Commission, Challenge state to use the Foust, Society (1967) under v. here State 258 N.C. in a Free Crime (2) (1963), any at- 128 S.E.2d 889 capital punishment. Thus, per- while no 14-17.5 The function of the under son known to entertain even unexam- the amendment has been considered in regarding scruple ined many the death McMillan, decisions. In State v. permitted qualify, was known 233 (1951), N.C. 65 S.E.2d 212 it regard sentence of death as his was held that an instruction to the “duty” permitted gave serve. statute them the imprisonment recommend they life “if peti- permitting the veniremen feel that under the facts and circum- on voir dire examined tioner’s casе to be alleged stances of the crime to have been or sentiments to their reservations as against defendant, they committed excusing justified making warranted and they challenge if evi- them for cause they recommendation” and that did denced conscientious ‍‌​​‌​​‌‌​‌​​​‌‌‌​​‌​​‌‌​​​​​​‌​​​​​​‌​‌‌​​​​​​​‌‍not feel “under the facts and circum- imposition punishment, stances” that such a recommendation original judge proceeded in accord- trial warranted, should act accord- ance established North Carolina ingly, vitiated an otherwise valid convic- years sixty-three practice, approved over verdict, tion in which a without recom- Vick, 995, 43 132 N.C. before. v. State mendation was returned. The vice in (1903); Vann, 162 N.C. S.E. 626 v. State was, said, the instruction the Court Arnold, (1913); State 77 S.E. 295 placed upon unauthorized restrictions (1963), 563, 129 258 N.C. S.E.2d jury: discretion vested in the grounds, rev’d on other 376 U.S. 1032, 12 al- L.Ed.2d 77 See language “The of this amendment so, Manning, State v. 251 N.C. 110 S.E. stands in plain bold relief. It is (concurring opinion); (1959) 2d 474 ambiguity free from expresses Childs, State v. single, 269 N.C. S.E.2d meaning, definite and sensible significant It that the meaning —a which under the settled Arnold and arose and were Childs cases law of conclusively pre- this State is decided after a 1949 amendment to the sumed to be the one the intended * * * criminal statutes North Carolina Legislature. permitted, time, which for the first patent purpose “It is that the sole jury prosecution degree in a for first give jury of the act is to the in to all upon murder a determination of guilty cases where a verdict of imposition. exercise a choice between the degree murder in the first shall have imprisonment. of death or life Thеreto- reached, right been the to recommend fore death the was exclusive and inevita- punishment the crime for the judgment jury’s ble to be entered on a imprisonment shall be life the for in degree verdict of of first murder. * * * prison. State’s No condi- The set text of the 1949 amendment is to, qualifica- tions are attached and no margin forth in of the the and consists imposed upon, tions or limitations are emphasized portion of N.C.Gen.Stat. § the the to so recommend. in imprisonment 14-17. Murder the first and sec- “§ ment shall he in life for defined; punishment. degree mur- prison, ond the State’s —A and the court shall perpetrated jury. shall be means der which so instruct the All other kinds of wait, imprisonment, poison, lying in murder shall be deemed murder starving, torture, by any degree, or other kind of punished second and shall be with willful, premeditated kill- imprisonment deliberate of not less than two nor ing, in thirty years the or which shall be committed more than in the State’s perpetration attempt perpetrate prison.” (emphasis supplied) or robbery, burglary arson, rape, language or other Similar was added to N.C. felony, 14-21, to be murder shall deemed Gen.Stat. §§ 14-52 and at LL58 degree punished the first and shall be provide the time. same These statutes Provided, optional penalties impris- with death: at the time or life rendering open court, rape, its verdict the degree burglary onment first punish- recommend, arson, respectively. shall so unbridled, (1962), fully right. discretionary 128 S.E.2d 667 It is an upon court accord. incumbent And it is this, jury. so instruct argues practice Petitioner right. a substantive obtaining “death-qualified” a so-called instruction, charge Therefore, jury, by the chal- allowance of successful suggestion for which to the causes lenge persons of all with con- cause ought to recommend could against capital pun- scientious sufficiently a ver- set aside is error ishment, interferes “unbridled with no recommendation dict where jury. ques- is a discretion” of This Id., (emphasis supplied) made.” set- tion of law which we consider S.E.2d, p. 213. at adversely petitioner’s tled by contention Arnold, supra, and v. v. State State consistency North which argues Childs, supra.6 also Petitioner “un- the rule of has adhered Carolina obtaining practice “death- fully document- was bridled discretion” qualified” juries con- offends current concurring opinion of Justice ined 278, cepts equal protection of due Pugh, Denny 250 N.C. v. in State (1959), laws. discussed which S.E.2d 649 arose between cases twelve outset, peti At think that we Re- and 1959. date of statute tioner would be entitled to writ be unnecessary. them view of all inherently cause of manner unfair Simmons, say that in v. State suffices to selected this case. (1951), 234 N.C. S.E.2d proceedings exposes Our recitation characterize erroneous to it was held (1) salient two facts: venireman imposed jury that statute thought “duty” impose cap it his recommending “duty” life to consider ital the event convic Dockery, 238 imprisonment; in State v. permitted serve, tion was while those (1953), it N.C. 77 S.E.2d pre whose dictates conscience would pros- for the error was held reversible sumably duty feel a converse were sum argue imprison- life ecutor to marily service, (2) excluded pa- possibility of ment because of opinion venireman who hаd reached an role; Denny, 249 N.C. State case, trial, prior about the was inter (1958), error it was held S.E.2d rogated by judge qual the trial until his judge to tell the for the established, ification to serve was while penalty, death could not consider the scruples against those who admitted to prosecutor he where the had stated that capital punishment were dismissed with seeking penalty; not the was death interrogation. out further escape We cannot Pugh error case it was held that, the a result of conclusion as judge con- trial the ultimate the to state interrogation and a insufficient double mercy prosecutor that tention of the inquiry, petit standard of se the later recommended. The should not be likely lected was at more to the outset Manning, su- of decided cases State v. impose punishment in the event pra, Christopher, 258 N.C. v. not. State of conviction than The unexamined Supreme 453, (1967), impliedly has Court The North Carolina S.E.2d re- 461 has specifically jected it, saying: general the itself to “It addressed rule is a argument scope pun- the of ‘“unbridled that the in the trial of crimes State by right the so so broad and im- discretion” ishable death has to an clearly partial it, jury, it for reasons to exercise in entitled order to secure record, challenge right of as dehors a matter has the for cause juror statutory prospective juror be should construction who to enter- is shown imprisonment regarding capital punishment be- free to recommend life tain beliefs prevent belief cause of a conscientious him would be calculated to capital punishment; joining carrying in its de- but latest verdict cision, Childs, 307, penalty.” v. N.C. 152 State “duty” panel may testimony of one of reasonably member whose “made it strong that, have of been so no verdict certain event of conviction guilt, except imposing pun- degree, for murder in one the first he would ishment, could have been returned. Cer- render no other verdict than one which

tainly, standing concept “duty,” required capital punishment.” Id., of alone, U.S., inescapable p. 381, p. carries that inference. 40 S.Ct. also 381. See was, therefore, Reynolds supra. Petitioner due States, denied v. United It is process of law violation of the Four- true Stroud the failure to court’s teenth challenge Amendment. sustain the was held revers- ible error because the accused had been That Fourteenth Amend challenges peremptory afforded more guarantees criminally ment “to the ac by than he was entitled to law and panel impar cused fair trial challenged peremptorily accused had tial, jurors” ‘indifferent’ is established juror question, that, so in the view of Dowd, 722, 717, v. Irvin 366 U.S. Court, it could not be said that the (1961). 6 L.Ed.2d 751 right challenge peremptorily accused’s Prejudice, or other bias basic form abridged. Here, petitioner was af- predisposition part on the trier forded peremptory the number of proc fact results a denial of due challenges permitted law, him and he Murchison, ess. Re 349 U.S. 75 S. consumed them all in the selection of (1955); Oliver, Ct. 99 L.Ed. 942 Re jury. Stroud, ground Unlike no there is 333 U.S. 68 S.Ct. 92 L.Ed. say petitioner preju- was not (1948); Ohio, Turney v. State of U. diced. S. 47 S.Ct. L.Ed. may While our decision be rested by (1927); Reynolds United ground that, on the narrow reason U.S. 25 L.Ed. 244 Where jury, of the manner of selection of the North Carolina chosen make the petitioner law, denied due degree punishment jury question significant this record reflects a more conviction, the event of as in the instant denial of constitutional and one case, guaranty juror that a be “im which is not correctible on retrial under ” partial, ‘indifferent,’ applicable is as practice North Carolina law and as the issue of as to issue prevail. petitioner’s now Since we order guilt. permit To mind whose retrial, appropriate it is to rest our deci- is foreclosed on one of that side issue systematic ju- sion on the exclusion serve, eliminating while who think those equal protection rors in violation contrary, special ef and to exert guaranty resulting disqualifi- from the qualify fort to whose mind try cation of issue foreclosed on issue while expressed about reservations freely excusing pre those who indicate a imposition capital punishment we lest disposition punishment, were not stage be understood at some later ways to achieve the constitutional case, comparable proceeding, inor objective. equal in Denial of treatment given implied approval it. have our inevitably manner re the of selection addressing In ourselves to this basis ‍‌​​‌​​‌‌​‌​​​‌‌‌​​‌​​‌‌​​​​​​‌​​​​​​‌​‌‌​​​​​​​‌‍process. sulted in denial of due decision, the we are met at outset array judicial the authori- with vast Stroud v. United 251 U.S. (1919), approved existence U. ties which have the S.Ct. 64 L.Ed. 103 capital regarding punishment of beliefs 64 L.Ed. 317 S. proper ground disqualification (1920), directly point as a for is a in with jurors juror capital regard As in for cause in cases. was done to the what Annotation, “duty” im- the cases collected in Juror- under a who felt himself Capital Scruples, pose capital punishment 48 A.L.R. in Punishment the event demonstrate, (1965), the an- a 2d 560 There was that conviction. it said challenge juror notator states: should be to a sustained arriving result, “Upon theory at the court that conscientious the prior against the scruples reviewed the cases enact- infliction of the death January circumstances, the penalty or ment of Act of under permitted jury beliefs, disqualify first the equivalent equally Stat. imprisonment in a juror prosecution for a to recommend life cause in a for degree case, pre- crime, as well as capital first murder the law whether subsequent single the the punishment those enactment of of death scribes group conviction, jury, In the upon statute. latter invests discretionary Supreme that upon conviction, Court decision with States, supra, it imprison- where power life Stroud United to assess death juror according was said that a should be excused ment the evidence if, preliminary exam- circumstances, for cause from his the rule has become ination, that, reasonably it certain generally accepted was that where the murder, in of conviction for event discretion is vested with such render may challenge would no other verdict state for such cause be- required punish-' than one which cause it maximum entitled case, it, ment. From the penalty proof justify Stroud the Court if the shall Appeals ju- throughout in reаsoned that trial and to contend Puff capital pun- rors with favor of finally bias the char- disqualified, ishment are with justifies acter the crime it.” against penalty the death bias should be thorough analysis A similarly disqualified.7 The Court con- law made in was United States v. cluded that all federal decisions were Puff, (2 1954), 211 F.2d Cir. where contrary to contention. Puff’s guilty degree Puff was found of first The Court next considered the deci- for murder without recommendation mercy sions of It noted state courts. three fed- under U.S.C.A. § argued cases which the defendants eral statute which directs that an ac- the modification under “guilty of a statute cused of murder determined mandatory degree, was un- first shall suffer death by provision punish- jury qualifies for an alternative less its add- verdict by imprisonment power ing punishment,’ ment thereto ‘without jury to decide between the two alter- in which event he shall be sentenced impliedly disqualifi- repealed imprisonment natives for tales- life.” Twelve against scruples capital pun- cation for men had been excused disclosed scru- for existed, ishment which ples capital punishment. had theretofore Puff argument rejected; sought judgment, argu- but where the was reversal of the ing it that, also noted had held two courts which since a should be a cross- challenge segment society, scruple cause of fixed ground against capital punishment lie.9 The Court col- belief for or many disqualifica- lected further other decisions murder cases not a having states statutes similar tion service in a murder case and, therefore, January which, Act ab- excuse talesmen specific ground sent thе made in the resulted in an contentions unbalanced truly reflecting contemporary five courts to which reference has been made, thought. re- had held that social contention been His against capital jected judgment proper and the affirmed. (1902); Riley, 7. N.W. This 88 789 State v. 120 Stroud was dictum statement 256, because, appears (1923). Wash. as from an examination 218 P. 238 opinions case, of both in the same tire Lee, 499, 9. State Iowa N.W. 91 60 119 juror whom reference was made was (1894); Wilson, 60, State v. 234 Iowa 11 peremptorily challenged. in fact (1943); Garrington, N.W.2d State v. 737 Owen, 394, 178, 8. State v. P.2d 11 S.D. 73 Idaho 253 76 N.W. 326 (1953); State, Rhea v. 63 Neb. 203 ground disqualification punishment. result, for for cause. and as to a as As Following imposing reference its to this Mr. Justice in his Frankfurter noted array authority, concurring opinion, page the Court stated: at U.S. page L.Ed. at S.Ct. at [92 “It will be noted that all the cases 1070,] hang page any juror ‘can above cited stem from the fundamen- way’ he if cannot have his as theory tal the American the sentence which he deems appropri- composed impartial ju- should be These considerations lead to ate. result, party rors. As a a is entitled conclusion trials before ‘balanced array impartial jurors to an findings juries,’ even on unanimous may peremptory which he direct his guilt, frequently in disa- result challenges. party To this a is entitled greements. disagreements And right. this, granted party as of But a prac- result successive trials would Having is entitled to no more. no le- immunity from murder. We can- tical gal to a which includes was in- not believe that Statute scruples those who because or bias Id., tendеncy.” tended to have a such might cause, he thinks favor his he p. prejudice jurors, suffers no even length the reason- have at We recited cause, without sufficient are excused ing be- Circuit Puff Second judge. Only judge if a without logic authori- and the cause its chain justification challenge overrules provide the context which it cites ties panel cause and thus leaves on the today. there Puff decision But our juror impartial, legal not does error recognition consti- that what was Id., pp. occur.” 184-185. partiality juror on the issue of a tutes directly The Court then turned necessarily con- punishment does Puff’s contention that the Act of Janu- partiality the issue of a stitute ary 15, interpreted 1897 should be to ex- guilt, on a not decided Puff cept general scruples doctrine that developed substantial record which against capital punishment constitute which, by systematic virtue exclusion ground disqualification cause sentiment, community inevi- prevailing application arising to cases under jurors, disqualified tably results when words, the Act —in other the Act punishment, are con- issue of as to the impliedly scruples eliminated automatically bias disqualified sidered against capital punishment disqualifi- as guilt. establish- as to issue of Puff cation for cause and sanctioned sentencing pro- “bal- ed the rule that when juries,” might properly anced in- requires to assess cedure jurors scruples. clude with such This single punishment in a simulta- fix argument rejected, with this state- necessarily, juror, verdict, hav- neous ment: ing punishment, as is biased as to bias reject; guilt. and as thesis we This readily “It will be seen that sentencing note, we later even if jury, ‘balanced’ which the defendant established, there are alternatives envisages, reality partisan is in ‘a system single result verdict when jury’: if, urges, as he include right. deny constitutional thereof is to with bias or capital punishment reaching it must —if it opposite tois a conclusion Puff, have recognize ‘balance’ —include also those with we reached bias favor of the death uniformly been followed Puff courts, for murder. It is set- other state and federal. both States, tled See, States, Andres v. United g., Pope F. e. v. United U.S. (8 1967); 92 L.Ed. 2d Tuberville v. Cir. that under U.S.App.D.C. Statute verdict United must be den., unanimous both as to 303 F.2d cert. 370 U.S.

307 2);10 join impos- (196 in a verdict 1596, event would he 813 8 L.Ed.2d objec- Mass., ing penalty, Subilosky, the but that his 224 death v. Commonwealth Laws, preclude find- him from (1967); would not 197, v. tion State 203 N.E.2d guilty.11 (1967). ing 633, 159, A.2d 646 233 50 N.J. Supreme Court Many North Carolina The the authorities cited above recently to this itself primarily addressed with stat has have been concerned inability a problem, utory interpretation held that rele laws of state imposing the juror join disquali question in verdict a to the of whether vant ground ground for juror death is sufficient of con on the fication a jury objection punish disqualification from the which capital scientious in- impliedly defendant’s to determine ment been revoked has supra, Childs, 152 S. mandatory nocence. State v. sen death abolishment a words, cur- In under other E.2d at 461. How under certain circumstances. tence prospec- practice ever, a Carolina rent North extent authorities that these objections juror prospec with conscientious proposition tive that a for the stand automatically punishment capital may juror capital be con in case tive a capital in a service stitutionally disqualified simply barred from regardless case, not he whether holding against capital pun sentiments a verdict on the issue would render fair death is not ishment where ju The result was same alone. punishment the effect of and where Riser, People v. 47 Cal.2d in reached a disqualification eliminate is to ror (1957), venire, 1 where the facts 305 P.2d portion substantial particularly placed fo- in clear them, issue reject also.12 we challenge case, In for cause a cus. ju- states, prospective Among is wide sustained when the there was he ror stated on voir dire that or retention to the abolition debate as against capital punishment, penalty.13 no have in states Divers point disqualifications 10. At it should be noticed that result which number of from a prosecution contrary in Turberville occurred rule. statutes under the District Columbia Further, reject argument 12. we capital punishment at time adopted Turberville, Pope, that our mandatory. (1961 22-2404 § D.C.Codo sys- inquiry if no at end we find Ed.). contrary in the case Statements general venire exclusion the tematic holding thus our here dicta. are systematic guaranty because to the selection does not extend exclusion jury panel. particular We do aof 1.1 to the Riser California has adhered general proposition quarrel with the holding, enactment even after have does not a defendant capital procedure statute of two-trial community every have element Gilbert, Sеe, People g., e. v. cases. represented tries him. which Cal.Rptr. P.2d Cal.2d Co., 328 U.S. Thiel v. Southern Pacific (1965). yet been decided 90 L.Ed. 66 S.Ct. York, adopted statutory in New existing practice in North But under the California’s, procedure like two-trial freely Carolina, sel, scruple against its coun- as conceded prior arose whether cases which jurors expressing conscientious the enactment of the statute and which punishment are as capi objections to held that conscientious tal certainly surely excluded from per disqualifica are se they serving panel if such a see, People case, g., e. tion membership on from had been excluded Fernandez, 320-321, N.Y. inevitably such Where venire. (1950), N.E.2d It has still valid. service, petit from will excused be suggested that the been the two-trial establishment say petitioner’s it is answer no system remove this should rights violated because were not disqualification pros ground array members of the were pective able nevertheless be try him was chosen. Note, join guilty in a verdict. See view, Challenge Free So- N.Y.U.B.Rev. such 13. Crime our The constitutionally compelled, ciety, p. op. Re- ft. Task Force result Courts, p. op. depending upon substantiality port: ft. 4. 308 recognizable, ways, problem in diverse exclusion of identifia resolved community outright partial group of from abolition ble within from whereby system capital punishment to a venire is drawn violates clause, irrespective imposition equal protection fix or recommend showing Systematic capital punishment. prejudice. non-imposition of of a of exclusion, practice, into the merits of this invidious

We do not enter controversy. usually the framework of most stricken down where Within been g., Constitutions, color, e. exclusion was based the Federal State 128, Texas, propriety capital punishment, and of U.S. of Smith v. State 311 164, (1940); imposed, questions 61 85 L.Ed. 84 Eu is to be are S.Ct. when it legislative judgment, Louisiana, of 356 U.S. for banks v. State reserved 584, 970, (1958); judicial questions unless 78 2 L.Ed.2d 991 are S.Ct. 773, Carolina, guaranty Arnold v. North 376 some constitutional violated. U.S. (1964); persons 1032, who 84 12 L.Ed.2d 77 Nor do we intimate that S.Ct. York, 1, (2 capital punishment 7 has its Chesnut v. New 370 F.2d believe that sex, 1966); place or are not more Cir. v. United function and Glasser States, 60, 457, easily guilt persuaded L. 315 U.S. “convic- S.Ct. of —more oppose (1940); tion-prone”- ‍‌​​‌​​‌‌​‌​​​‌‌‌​​‌​​‌‌​​​​​​‌​​​​​​‌​‌‌​​​​​​​‌‍it. Ed. 680 Ballard v. United those who —than Second, Eighth 91 L. and District of Col- 329 U.S. 67 S.Ct. status, (1946); Thiel umbia and the North Carolina Ed. 181 economic Circuits Co., rejected Supreme the due v. Southern Pacific 328 U.S. Court have (1946); argument 90 L.Ed. 1181 Labat that a S.Ct. Bennett, (5 by being subjected prejudiced trial 365 F.2d 719-724 to a v. 1965); origin, jury, or national Hernan before a all the members of which Cir. Texas, dez of do not in the abolition of v. State 347 U.S. believe L.Ed; We, believing punishment.14 it is (1954). See unnecessary proper disposition Fay also, People v. of New State case, not consider it. do York, 91 L. U.S. 67 S.Ct. (1947) (dissenting opinion), Ed. 2043 depart prior from de we Where disapproved which would have the use do hold that belief is that we cisions juries. “blue ribbon” The thrust and part against capital punishment on the employed in breadth of the statements jurors a dichoto who are vested with condemning these forms of ex obvious my determination of functions—the clusion some of these cases are wor found, and, guilt, the issue of thy testing degree imposed of examination in the validi to be disqualify ty practice allowed to a sub —cannot be at followed part of the venire when it is stantial bar, as measured its result. persons established that views Glasser, there was exclusion disqualified preclude from so making will them grand alleged from women the is a fair determination on women, exclusion of certain from pun guilt, from sue of aside the issue jury. petit Although the conviction was disqualification prevents ishment. Such (be- not cause, set aside either exclusion determining in its function of grand jury, as to the women had fairly rep being issue eligible been to serve as community, thus resentative of two months at the time the indictment equal protection of the laws. violates because, pet- was returned and as to the sup jury, proof), not look far for there need was a failure of We significant systematic following port principle Court made the for the Puff, supra; Pope Scruples Against Capital v. Jurors for Pun- United States States, supra; v. Unit- ishment Turberville Constitute Denial Fair Trial United supra. Childs, States, supra; State v. Issue of Guilt? 39 Tex.L.R. ed Disqualification Oberer, Does Contra: slight, toward selec- regard composition matter how statement jurors by other method tion jury: of of a insure a a which will than jury of trial mechanics “For the by representative group un- a are trial dermining processes as it ex- law the common we revert weakening the in- England country and in this isted trial, jury and be stitution should of adopted. was the Constitution when sup- (Emphasis sturdily resisted.’’ States, 281 U.S. United Patton v. Id., p. plied) pp. 85-86, 471. 62 S.Ct. A.L.R. 74 L.Ed. 50 S.Ct. of exсlusion Ballard also concerned trial, jury even as 263. But grand jury in- which petit jury women from the law, has privilege at common awas dicted the and also, defendants us, so what- with a become guilty. On this which found them in the inherent were ever limitations ground the defendants’ convictions were concept of common law historical reversed, saying: with the Court body peers not jury of one’s do as a country. notions prevail said, however, Our in this “It an all jury proper is have devel- panel of a what male from the various drawn harmony oped con- community our basic groups with will be as within a society cepts and a truly representative democractic of a ifas women were government. representative For thought ‘It included. The is that the fac- in the part the established tradition of tend to influence the action tors which juries public of instruments use of as as those which women are the same body truly justice jury a personal- be that the influence the action of men— community.’ representative ity, background, economic status —and Texas, enough say 311 U.S. State Smith not sex. Yet it is not to jurors 164, L.Ed. 86. sitting that women when as nor neither act tend to act as class. in a federal court are “Jurors Men do not class. likewise act aas qualifications of those have highest But, if the shoe were on the other State, they court of foot, jury would claim that a clerk are to selected of the be community truly representative of the jury court and a commissioner. intentionally sys- if all men were Jud.Code, U.S.C. [28 [Sees.] tematically panel? excluded from secs. U.S.C.A. 412] §§ The are truth is thаt the two sexes duty may not 412. This selection up fungible; community made delegated. Mur- be United States v. exclusively one is different 554; phy [D.C.], 224 In re Peti- F. community composed both; Jury [D.C.], Special tion for Grand interplay subtle of influence And, al- F.2d 973. its exercise must among imponderables. the other is ways accord with the fact To either insulate courtroom from functioning proper jury system, of the may given make an iota itself, indeed, democracy re- our flavor, Yet difference. a distinct quires ‘body truly that the abe quality exclud- is lost either sex is representative community,’ The exclusion of one indeed ed. organ special group not the representative make the less requirement If ob- class. community true if than served, charged the officials group an economic or racial were ex- choosing jurors may federal exercise (emphasis supplied) Id., pp. cluded.” compe- some discretion the end that 193-194, p. 67 S.Ct. jurors may they tent be called. But compe- Thiel the exclu- must not allow the desire case which grounds. tent sion on economic to lead them into selec- was based daily wage comport Persons who tions xohich do not with the worked for a concept jurors, prospective a cross-section were not listed as as class, thought jury community. Tendencies, no a ser- because it was hardship every imposed a financial be found in of socie- vice stratum ty. Jury competence experience demonstrated that is an them and individual and, usually group reluctant to rather than a matter. were serve or class very accordingly, by the trial That fact at were excused lies heart of the system. disregard judge. suit for To case was civil is to money open damages returned a the door to and the class distinctions and or- discriminations verdict. A new trial was abhorrent defendant’s “* * * dered admit- the democractic ideals of because trial large jury.” (emphasis supplied) Id., p. num- ted exclusion of a wholesale wage disregard p. 66 of earners in of the 985. ber S.Ct. high jury Id., of selection.” standards course, Glasser, Of Thiel and Bal- p. p. 988. S.Ct. super- lard cases were decided under the power visory Supreme of the of Court commenting proper composi- In on the the United States over lower federal panel of tion from which a avowedly courts and not as an announce- drawn, the Court said: They ment of constitutional doctrine. by “The American tradition of trial are, nevertheless, pertinent authorities jury, considered in connection with ei issue, on the constitutional each because proceedings, ther criminal or nec civil depended upon authority of Smith v. impartial essarily contemplates an Texas, supra, resting of State decision drawn a cross-section of from solely principles, on constitutional as au- community. Texas, 311 Smith v. U.S. thority and, for the result reached over 128, 130, [165], L. S.Ct. years, they generally have been so 86; States, Ed. Glasser v. United regarded. See, g., Beto, e. Brooks v. 457, 471], U.S. [62 F.2d 86 L.Ed. does not 707. This mean, course, every jury practice of must North of ex Carolina’s cluding representatives persons contain econom of all from the selected ic, social, religious, racial, political guilt to determine an inno accused’s cence, geographical groups merely they the com of because have some munity ; frequently complete against capital such sentiment or reservation representation impossible. punishment, any would be without determination prospective ju itBut does mean that that their beliefs would affect their abil ity culpability, rors shall selected court officials to decide be the issue of systematic Supreme without and intentional ex stand under cannot these Court groups. condemning systematic clusion of of these Rec decisions exclus ognition given case, must be to the fact ion.14a In this we are told eligible Attorney representatives that those are service of Gen- Explicit implicit separate scores, 14a. lie is a member of class which Judge unconstitutionally concurrence Sobeloff has been discriminated argument petitioner standing against. lacks equal protection Moreover, to claim ex a denial in such cases this tradi cept equal protection standing as a denial of tional restrictive rules as up process. they wane, mounts to a denial of due vi on the if indeed are still shocking suppose peti States, supra, would be able. Glasser United opposed capital punish standing tioner is not of male chal defendant ment, impor lenge ques at least for himself. More exclusion of women tantly. he, capital tioned; States, as a and in Ballard v. United case, equal supra, been denied treatment the conviction of a male defendant non- with that afforded defendants was reversed because of the exclusion of capital by juries cases who are tried women. In Rabinowitz v. United jurors’ part by (5 1966), selected in notions of 366 F.2d Cir. the conviction punishment; and, opinion as this demon white defendant was reversed be strates, proper grand there is no for hav basis cause the manner of selection of ing death-qualified jury try juries operated petit issue ex Thus, Negroes. Admittedly, of his or innocence. on tvo clude deci these objections pun- capital conscientious North Carolina eral of 30% truly represent- justified ground array ishment cannot be on the of veniremen community necessary for the the North Carolina effectuation ative ineligible in a interest of an accused in- to serve and the would be case, society having they terest have conscientious a fair and because impartial or in- determine practice, because, nocence of accused the facts as under North Carolina presented them, not in- and who are excused service would be judgment by Indeed, 45- fluenced in their extra- instant cause. regarding possi- neous beliefs prospective dis- were 33% qualified punishments might ground. not ble im- do We on this posed. course, There, color, sex, eco- be no or the can know the legitimacy as to inter- dis- doubt would be those who nomic status remaining But it qualified, would est. can be served the exclu- or those not, group and sion of a much qualified. narrower than We do be considered guilt determining that in not, which was excluded instant in know that need only class. case—the exclusion of whose act as those would a or innocence impair States, supra. impartiality beliefs would their We v. United Ballard determining guilt per- in question aside from a substantial that such know punishment. generally precisely dif- of centage populace is of the inquiry remaining populace in for this reason the voir dire from the ferent pun- concept should not a having of cease after determination basic a different prospective juror opposed that the crimes in even most heinous ishment capital punishment, stem, pointed Tur- may in but further out should which opposition States, supra, di- ascertain whether this would from United berville v. preclude making reasons, him from deter- from unshaka- a fair and diverse vers guilt. religious mination on intellectual issue of ble convictions group philosophical Such a or distaste. juror’s prospective If con a variety comprise of views and would objection to one forms scientious of the and, variety approaches if allowed of allows which the statute interplay serve, may a “subtle well have are so severe as to render participate, him unable upon Ballard the others. of influence” mind, open with an in p. 194, States, supra, 67 S.Ct. v. United jury’s culpability deliberations on the group readi- it seem as would 261. As ly accused, challengeable properly he is wage in earners identifiable as challenged —and should be cause. —for Co., supra. Pacific Thiel v. Southern He has demonstrated that he is not an impartial, juror. persons The exclusion all “indifferent” On the hand, prospective juror hold other if a in case who from Jury proceed a Racial in on constitutional A aid Criterion Selection: sions Fay Study majority opinion Standing, grounds, Due but tile Process York, Equal People Protection, New su 74 Yale L.J. 931- v. of the State proceed (1965), suggests discretionary pra, constitutional did may recognized application principle jus grounds, “[Tlliere of the tertli “impure may standing” special U.S. or be [332 cases” invoked be appropriate mem who is a cases as an defendant alternative 1613] where may complain requirement “pure standing,” if class not excluded even ber of a he the main class to which tiiesis of the author racial of a of the exclusion exclusionary belong. ground A in a cases should defendant be does “spe present process clause, such a ed on the due seem to rather than case Ga.App. equal protection rejected. State, clause, v. Allen cial case.” (1964), v. and State The facts before us would lead us to con 137 S.E.2d appro Madison, 213 A.2d 880 clude that the instant case 240 Md. is an approval priate jus standing in La (1965), cited with tertii both reject supra, pp. 723-724, Bennett, should be All of invoked. these reasons bat standing. petitioner requirement lead us to conclude traditional Challenge standing. note, To The Defendant’s objections can, spite ment, no pun- conscientious verdict on either objections, impartial single make an de- ishment these will be returned since a guilt, required ex- termination on the issue of his verdict is under North Carolina belongs law, clusion, might prac- to which he class and that this “result in substantial, deny immunity to the tical ring become works from murder” if occur- right trials, defendant to have his his successive United States judged Puff, jury representative supra. But, of the v. has no serving any recog- community imposition without constitutional nizable, legitimate capital punishment case; interest of the state. and a Objections capital punishment protection be has a constitutional belief, many stages systematic Moreover, based on different exclusion. and involve subtle nuances of conscience. state’s interest noneonstitutional can The function of voir dire should be served more measures narrow explore systematic large these nuances to determine than the exclusion of a prospective juror segment serving whether community would be of the participate fairly able to in the delibera- on a which is to determine guilt, confining tions on the defendant, issue his innocence and thus judgment presented. to the facts as Un- such exclusion cannot be neces- deemed equal protection clause, sary der the dire voir to effectuate a interest valid state system- cannot equal protec- be a blunt instrument of so as to save under the segment widespread atic exclusion of a tion clause. community whose views do not in- Other states have avoided or dealt terfere with the interest the state which problem ways. with the minority in other In a protect. seeks to problem the states the would sentеncing arise not because func- is clear that real interest solely judge. tion is vested in the In the seeking protect which state is to majority states, jury of the em- is practice the voir dire followed in in powered punish- to fix recommend or preservation capital stant case is the capital ment in cases.15 these Of Cali- punishment, possible punishment, as one fornia, Connecticut, New York and though pro not exclusive. This interest Pennsylvania system have a two-trial justification sys vides no firmer for the permits jury pass second to on por tematic exclusion of a substantial jury only sentence and a first to return community jury tion from a de guilt a verdict of if the is first termining guilt the defendant’s or inno disagreement punishment.16 as to The Again, question cence. we do le drafters of the Model Penal also Code gitimacy interest, of this we do not guilt punishment recommend that permitting persons doubt that with con separate a defendant be determined in objections capital punish scientious to proceedings.17 ment to sit on a which is both to guilt disapproval determine the or innocence of the As our of relevant impose punishment defendant and to his indicates, California decisions think we capital in a result in some system cas that a two-trial is immune to ines effective nullification of the death attack, constitutional if under it are sus penalty. We are also aware of dan challenges tained for cause of substan ger jurors, agreeing upon that if while prospective jurors tial numbers of in the guilt defendant, adopt of the guilt phase intran proceedings sigent positions punish- ground the issue of objections sole have Report: Courts, 15. Task Force The Code, (Prop. 17. Model Penal 201.6 § Final op. ft. 4. 1962); also, Draft See Tent. Draft No. Code, 190.1; 16. Cal.Penal § Conn.Gen. 53-10; Code, Stat.Ann. § N.Y.Penal Mc- Kinney’s Consol.Laws, 125.35; c. § 18 Penn.Stat.Ann. § 4701. judge the further The district should issue the without writ, staying being these its effect for a reasonable made determination time, permit retry pe- objections de- the state interfere their guilt or titioner. of the defendant’s termination However, system a two-trial innocence. Reversed and remanded. practicable provide to ac- means does commodate the interests Judge (concur- SOBELOFF, Circuit juries hung preventing successive ring specially): original jury cannot trials because route, Following different a somewhat preserv- agree upon punishment I concur reached in the result penalty ing possibility that the opinion. court and in most its system, imposed. Under such a will be my disagreement briefly extent only can assured that be indicated below. persons whose adherence to their those unnecessary I enter find it into objections pun- conscientious my the discussion between brethren rigid preclude them ishment is so as and Craven to whether Winter as making impartial determination State has a sufficient interest subject to of his or innocencewill be preservation of the death sentence as challenge cause, the state while possible punishment permit that, simultaneously assured submit the to a com- issue purpose of for the sole determin- called having posed persons no ing punishment, it will the defendant’s against capital punishment. Without ad- composed only persons of those whose be dressing interesting secondary but impose permit consciences them question, I conclude that been there has gamut punishments whole allowed a violation the Fourteenth Amend- guilty statute and that in no event awill simply ment this case because unanimously agreed upon lost verdict issue of or innocence submitted by disagreement appropriate rulings to a the trial court’s under punishment. systematically excluded.for cause existing every entertaining any scruples Under our view of how capital punishment, about procedure practice and this with- North and Carolina inquiring out even these whether beliefs must be accommodated to a defendant’s preclude a of fair consideration rights, prosecutors in that constitutional guilt agree con- the issue. I that the person run the that state must risk viction must be set aside because of the objections capi- has who conscientious to palpably double of unfair standard in- successfully tal persuade will either quiry which de- excluded all with fellow-jurors that death his the gree against principle pen- of death the imposed penalty the de- should alty seating while one who admitted a being tried or fendant whose is bias the defendant another disagree jury he to that will cause the felt he under man- would be disagreement of on the issue because of impose date the if the although agreeing punishment, the defendant be convicted. is should This guilt. because defendant’s This is so the most the obvious fault of trial. But of con- North resolution the Carolina’s procedure addition, was constitu- prosecutor in of the interest of flict tionally defective the manner in which obtaining is free to sen- which prospective jurors sys- the list of tence the manner tematically with the combed result that petitioner’s which the statute allows and guilt the issue innocence tried of by representative to trial jury. qualified” before a “death wholly making interest the state’s difficulty equal conceptual paramount However, cannot under I have stand footing protection with the clause. theoretical chosen major opinion invalidating process denied; is an such exclusion procedure resulted in a which “death has been held reversible error without qualified” showing prejudice particular for the determination of of punishment. My Bennett, as well as con- case. See Labat v. 365 F.2d (5th 1966). cern is with court’s refusal to con- Cir. If a venire process argument manipulated sider the due list has been while so to be- placing equal unrepresentative, exclusive reliance on come it de- cannot be protection agree unreservedly measuring up I clause. fended as to minimum Judge primarily process. Craven it is constitutional standards of due process practice all, process legal due simply forbids After due is employed expression denoting fairness, here. and we are agreed making the selection from underlying in all of the idea The unrepresentative an is list not fair. major upon relied selection cases opinion the trial the fairness is that escape It is difficult the conclusion empanel- impaired the deliberate was ing disqualification the automatic truly representative jury not of a of the available 30% 45% community. To of a cross-section destroys representa- cases essentially proc- my a due mind, this jury. tive character of the That expressing concept the Constitution’s ess question submission of the discrimination of invidious interdiction special group which remains after jury selection. See the method siphoning process tendency Texas, 311 U.S. Smith v. State prosecution favor the has been affirmed (1940). L.Ed. 84 by legal psychologists.2 scholars and objection the exclusion inherent race, though major opinion Even prospective jurors on account refuses sex, religion, philosophic or eco- accept studies, recognizes belief these way opens nomic condition that it the “may serve, group, excluded if allowed to partiality, fact finder’s bias to a interplay well have a ‘subtle unfairness, difficult to upon which are often influence’ the others.” This is particular case. These enough, demonstrate for the due claim stands integrity go very upon unrepresentative exclusions to “the character of depends fact-finding process” list, unnecessary spec- it is presence impartial on the truly representative particular ulate as to the effect might of group a cross-section permitted par- have if community. ticipate. If this basic condition Ballard v. United violated, representativeness due U.S. 67 S.Ct. 1613 Walker, 618, 639, ju- 1. Linkletter v. 381 U.S. in the defendant’s favor than would 1731, (1965). qualified ‘pound 14 601 ap- 85 S.Ct. L.Ed.2d rors on the of flesh’ proach.” Adorno, is The conclusion of these scholars best See also “The Authoritarian Per by sonality” (1950) ; E. Goldberg, summarized Professor Walter Ober- “Attitude article, Disqualification Capital er in his “Does Toward Punishment and Behavior Scruples Against Capital Capital Jurors for Pun- as A Juror In Simulated Cases” (1965) (unpublished study reproduced ishment Constitute Denial of Fair Trial in Guilt?”, petitioner’s App. on Issue Tex.L.Rev. brief at 60 filed in the (1961) Supreme : United States in Court Wither consequence excluding jurors spoon Illinois, al., [of “The v. State of et 389 U.S. scruples capital punishment] with about 19 L.Ed.2d jury pen- qualified (1968)) ; Wilson, Capital is that a on the death “Belief in alty necessarily Jury will have been culled Punishment Performance” prospective (1964) (unpublished study reproduced of the humane most of its in hardly sympathy petitioner’s App. members. Human brief at 66 filed in the subject compartmentalization. Supreme to nice United States spoon in Court Wither levy Illinois, al., Jurors hesitant to the death v. State of et 389 U.S. prone would also more resolve seem 88 S.Ct. L.Ed.2d many (1968)). the or doubts as innocence pre general. opinion Nevertheless, major from Because mankind in beliefs, protection solely equal qualified mem rely their otherwise on fers class, unlike in bers the excluded Amendment. the Fourteenth clause of segments society notes, from true, opinion dividuals other opportunity adjudi systematic pertaining were denied the decisions usually cate or innocence of defendants couched exclusion of say, capital in This not to equal cases. protection This is be terms. however, resting no that the defendant has stand of the cases cause each ing complain,3 equal pro ground practice complained for denial of operates to directly against to the excluded tection class discriminate worked to forcing deny by process him particular him due by defendant class to which a unrep belonged trial a chosen from he affiliated. with which was supra, example case, resentative commun cross-section of An is the Smith ity. perspective Negro It is from this tried be where defendant was involving may be viewed as one of his fore which members equal protection. systematically denial of denial while race were excluded equal treatment to this identifiable white defendants without State tried judicial group integral part excluding was an from the members of proceedings similarly which culminated defend their race. Thus individuals By demeaning discriminatorily ant’s by conviction. so situated were treated might contend, protection criminal State, equal process, clause invoked, appropriately State has violated the defendant’s without “regardless negative process, to due implication applicabil of whom the as to the may ity process unconstitutional state have conduct of the due In Eu clause. first instance.” The De Louisiana, banks affected v. State 356 U.S. Challenge 584, 585, To A Racial fendant’s Criter 78 S.Ct. 2 L.Ed.2d Jury Study ion In Supreme syn Selection: A Stand (1961), Court Protection, ing, Equal equal Due Process protection thesized thе ex 106, pp. & Yale L.J. n. clusion cases these measured words: sense, equal 939-40 stretching In this “In an limited unbroken line of cases protection years due be said back almost 80 this Court has again, coalesce this case. But held criminal is denied ground reversing equal protection ultimate guar the con of the laws process. viction would be due anteed the Fourteenth Amendment grand if he is indicted persons If with class excluded be petit jury tried from which mem against scruples punishment, bers of Ms race have been excluded be equal protection provide an cannot alone added.) (Emphasis their cause of race.” every ground adequate for decision. In grants case, one standing cases which the instant record fails the decided defendant, person ex- accused not within the establish class, speak murder, either not is a member the class—(cid:127) cluded the courts equal protection, equal persons at all of protection or of process; major coupled with due the text —which exclusively opinion clearly equal protec- none relies dis- holds accorded supra, criminatory by State, tion. In Allen a To v. treatment State. rights say involving civil worker white defendant has jury Negroes against capital punishment to him- tried before from which as excluded, Georgia systematically distinguish self him from were ‍‌​​‌​​‌‌​‌​​​‌‌‌​​‌​​‌‌​​​​​​‌​​​​​​‌​‌‌​​​​​​​‌‍fails unequivocally actually court stated: “When tried him or 711, Ga.App. 56, States, v. 329 137 714 Ballard U.S. 110 S.E.2d See United (1946) ; (1964) ; Madison, Md. L.Ed. v. State 67 S.Ct. (1965). v. F.2d A.2d 880 Rabinowitz United ; State, (5th 1966) & 1 Gir. Allen v. n. appropriate provides to deci- for indictment and select the avenue law State process law, jury, due sion. trial opinion, includes indictment and our by juries (concur- selected accordance Judge trial CRAVEN, Circuit law, from a list of ring) with the established : representing citizens a cross-section of readily I concur in the decision of the community.” added.) (Emphasis go reject court. I further premise that the state has a court’s footnote, apparent departure In a legitimate obtaining the death interest theory text, major of the penalty. There is no such state interest opinion suggests that the class involved and there has the 1949 not since been capital in this case is criminal defend- punishment choice of statute left per- ants. The view seems be that jury. “unbridled” discretion of the With charged sons offenses are statutory change of direction the inequitably compared treated to those legitimate relinquished its so-called non-capital accused of offenses who are penalty in interest in the death favor of jurors unquestioned tried before about obtaining imprison- either death or life opinions punishment. their While appropriate punishments. equally ment as suggestion decidedly unpersuasive, this appropriate, Since' either the state way it in no militates the use legitimate has no interest selection process of the due clause in this case. jury predisposed of a either one. process equal protection Due are not jury That choice is “unbridled” mutually conflicting exclusive or only means not ar- need process being I extent. read due as consciously ticulаte even have a rea- guarantee broader of fundamental fair- Certainly son. jurors mean that does not reason, ness. For this I cannot envision together are not to reason on the involving a mode of selection question on all others. equal protection might infraction of I cannot think of a reason better possibly satisfy proc- the demand of due imprisonment recommendation of life ess. questioning than wisdom process, In addition to due there is punishment religious —whether yet another constitutional basis which grounds. other To rule out such a rea- supports my the court’s conclusion. by systematic son exclusion of the doubt- view, were due not both ers in an “unbridled” results choice rights equal protection under the jury. Any a death-oriented method of infringed, Fourteenth Amendment no but systematically selection which de- emphatically less the defendant’s Sixth prives the accused of cross-sectional com- guarantee Amendment trial an im- munity representation proc- due violates partial guar- was violated. This view,” ess. “The end as Chief Jus- states, antee applies to the Parker v. Stacy put tice it for the North Carolina Gladding, 385 U.S. 87 S.Ct. Supreme Court, get a “is to fair cross- (1966). 17 L.Ed.2d 420 A is not an community judgment.” section of State impartial deliberately it has been Koritz, 227 N.C. 43 S.E.2d segment drawn from a restricted population may reasonably is obvious that there is no such thought “guilt more oriented” than a system per- cross-section where general random cross-section of the com- percent qualified cent to 45 of otherwise munity. jurors are their excluded bеcause view- point question course, defendant, on a To within their unbri- it matters ground pleasing pros- rely dled upon at all discretion is we voiding trial; court, however, particular ecution. select his To attitude deeper enduring of mind for has or heart —whether or more concern and legal penalty upon the death theory, with relevant it to erect and it should —and opinion. papers formed fixed and had exclusionary rule for the selection an agreeing he after that guilt punish- He was seated or jurors either the of in opinion from my his opinion, could eliminate fixed is, phase trial in of the ment on the evi- concept mind and decide case opposed of his fundamentally to the dence. by jury process. and due trial prefer decision rest among I would me that It seems clear infringe upon and due denial of thirty-four for cause on excused by jury rather to trial of ground many ment who had this there were equal I and protection, of than denial philosophical more or intellec- no than is entitled hold that antipathy capital would defendant punishment. A tual large segment has been screened today not population to a cross- a fair exercise of antipathy, varying to avoid thex an in de- such community judgment and of grees, including section those think a death who right applies determination appropriate in sentence such ex- punishment. of both and traordinary cases murder committed as aggravated by a circumstances under HAYNSWORTH, Judge (con- Chief prisoner already under sentence of life result): curring in imprisonment for whom the threat of a Bryan, re- Judge I concur As imprisonment would second sentence of very sult, upon the limited but I do so great be no deterrent.1 There is certain- ground of ex- of the essential unfairness showing persons ly no here that such juror professed cluding every who personal not be- could subordinate their pun- against capital scruple unexamined instructions liefs and follow court’s juror every seating who ishment while professed considering in or innocence of capital punishment, in a belief and, under North Caroli- including he a belief that one who stated practice, approach question na’s duty death for the under a vote was penalty degree with a reasonable any It case of murder. in open-mindedness. inquiry enough dire me that the voir Surely capital in case not and far from even-handed was many jurors, jury composed exclusively entitled to a agree whom all we bloodthirsty citizens, the most her qualified, excused for cause. were were opinion in differences shades presents not I do this record think appropriateness about punishment appropri- question it is or that broader ought particular cases sweep- new ate for a declaration to be allowed as the affecting of distinctions basis principles. ing constitutional qualification jurors. point, examina- the voir dire On this opened juror strongly among case suspect, too, in this tion each I you question, thirty-four jurors, some, “Do believe there were capital punishment?” perhaps many, If the answer had much who so ques- “No,” antipathy capital pun- he a second

was tion, typically, was asked an intellectual conscientious “You have ishment some classes of eases. scruples against you?” repeatedly an- If the do itWhen was demonstrated to “Yes,” question was the second all swer members the venire that could predictably by giving fur- was, simple pat as it without be excused two whatever, inquiry strong probing simple questions, ther answers to temptation no two juror placed for cause. court excused the was before those strong procedure important contrast members who had business to golf reported games probing who, play attend or reasons, he in the news- other had read were loath serve. antipathy. nothing system two 1. There new such centuries from a‘ very responsible imposed sub for the lias been for most progress last made felonies. we have stantial capable impartial possibility on the of such service remains the There punishment. among thirty-four question of the were some there jurors such excused who had who were speculation reed, in- Our a slender is religious, moral deep-seated notions upon deed, support imposition the philosophical foundations or states, the and United States District considering impartially in could act too,2 extraordinary re- Courts guilt question question or of of quirement trials in of bifurcated only possibility, a punishment. is majority Really requires cases. what the noth- record shows us however, for this is two full trials if the first results surely relevant ing, number is and their guilty, a of for the second verdict is- Fourteenth Amendment broad hardly pun- question can of decide undertakes to decide. the court sues being fully of ishment without informed crime, all of the circumstances of the specula- I for Nor can basis find mental and and his defendant’s defenses jurors holding unshakable tion that some short, condition, everything, emotional against capital punishment convictions developedat the first trial.3 might a have substantial nevertheless capacity impartial service on fact, one If the record disclosed the guilt though question improbable, of or innocence which seems to me most that a substantial number of question punishment. not on the firm excused held such against convictions Usually, questions inextric- are two imposition of the death sen- ably par- intertwined. North Carolina’s disqualified from tence as to be service practice may unusual, but ticular be yet question punishment on the essentially is not different impartial capable on the were service prevalent practice which a attributes guilt innocence, question of we would binding jury’s recommenda- effect to a majority question be with the met mercy. jurisdiction Even in a tion undertakes to resolve. When the record jury’s function ends with which the single juror fails to reveal a who could finding guilt innocence, juror a a classified, I be so think we far exceed inflexibly capital punishment, opposed to judicial deciding ques- our function in knowing jury, judge, that the or another tion which a different record conceiv- likely impose to, or even may;> Deciding ably might present. hypothet- guilty penalty upon death a verdict enough ical bad when the issues is very likely equate a verdict consequences felt in are the immediate guilty with of death. a sentence Such my litigation; intolerable, quite it is will out for a hold verdict far-reaching mind, imposes when it of a lesser offense which does extremely costly gen- consequences in the Certainly permit sentence. justice.4 eral of criminal administration record furnishes no basis for a conclu- unlikely presented question If the ever is num- sion that there is substantial enough court, to face to a it will be time any- people ber of in North Carolina or it then. capable where else who would be of im- judge did not follow partial question Because on the service approach approved though admittedly in- even-handed through pre- judge penalty avail himself 2. § Under 18 U.S.C.A. degree report. federal murder in the first within sentence jurisdiction quali- death unless judicial systems 4. for the administra- Our with the words “without fies its verdict justice suffering great tion of criminal capital punishment,” in which event assumptions now as result of stresses imprisonment. A federal is life Ways ever-increasing burdens. must determines thus burdens found to shoulder those additional jury. does a North Carolina necessary, im- needless which are but costly very weighty They great more, par- position addi- deal should have a ticularly cannot be afforded. of which tional burdens the kind information

319 by majority. g.: the Pope E. Pope States, v. United such as United eases v. (8 1967); States, 372 F.2d 710 Cir. 710,5 Cir., I concur in the 372 F.2d States, Turberville v. United 303 F.2d ques- result. I not think other do (D.C.Cir. 1962), cert. den. presented record, I 370 U.S. on this tion is 946, 813; grave S.Ct. 8 L.Ed.2d Unit- court makes a mistake think the Puff, ed States v. undertaking F.2d ques- in to decide other (2 1954), Cir. cert. den. 347 U.S. tion. 74 S.Ct. 98 L.Ed. 1106. A few Judge Bryan by I am authorized quotations will, think, from them I dem- say joins opinion. that he in this holdings. onstrate the soundness of their BOREMAN, Judge, joining Circuit Puff, supra, was decided in 1954 under Judge in with Chief HAYNSWORTH present statute, Federal murder concurring in result: U.S.C. 1111. To sustain § its view that I, by concur in result reached exclusion too, veniremen convic majority opposing capital tions insofar as the conviction is punishment, opportunity pro- set aside Court, and the is Puff, quoted Logan from retry petitioner. vided for the state to States, 263, 298, United 144 U.S. 12 S.Ct. readily join Judge Hayns- I with Chief 617, 628, (1892) 36 L.Ed. 429 as follows: separate worth in his statement of con- were indicted adopt. defendants currence in “As the which I result punish- a crime tried for and to be emphasize thought I would jurors who those death, able with judicial the court exceeds its function ‘con- dire that had stated on voir unnecessarily deciding question regard scruples in- scientious presented by present which penalty for crime’ fliction of the death Judge Haynsworth’s record and I echo rightly permitted chal- to be were observation that the decision of ma- lenged government A by for cause. jority “imposes far-reaching and ex- juror has conscientious who tremely costly consequences gen- prevent any subject, him justice. eral administration of criminal standing between from indifferent unlikely question If pre- ever accused, government from court, enough sented ato it will be time according trying law the case to face then.” impartial evidence, is not and the * * * principle juror. And the BRYAN, ALBERT Judge, V. Circuit very question applied to the has been concurring result, dissenting but Story by Mr. Justice now before us reason, of the decision. [Fed.Cas. Cornell in United States v. agree I judgment reversal of the by Mason, 105, and 14,868], 2 No. review, disagree ‍‌​​‌​​‌‌​‌​​​‌‌‌​​‌​​‌‌​​​​​​‌​​​​​​‌​‌‌​​​​​​​‌‍but I with the ma- in United States Mr. Baldwin Justice jority’s premise: decisional the success- 16,730], No. [Fed.Cas. v. Wilson challenge by ful the State of veniremen the courts Baldw., as well as opposed who were punishment. question every my view no clause in the Constitution by express arisen, statute judicial practice forecloses this by North many states.” Carolina. precedent Staunch Turberville, supra, Similarly, when conclusion is found in the very cases cited passing upon question but discarded now be- appears jurors that case hand, ten were excused three other were acknowledging thought excused indicating they after such after deep-seated scruples against capital upon pun- imposed be should prevent ishment as impos- them from course homicide in the who committed a ing though they conscientiously it even robbery regardless of the cir- of a bank thought punishment proper such under the disclosed evidence. cumstances law and on the evidence. On the other Puff, in the tenor of doubted A cannot fore us reasoned the Court. “guilty” qualification. vote An- without and also said: dres v. 333 U.S. United asserting really [appellant] is “What There- 92 L.Ed. on the some to have permit fore, if prejudiced in his favor-— n conscience will his him to ballot for the extreme a cast opposed e., to one are i. some who penalty, prevented from un- he would be possible he is penalty with which declaring equally qualifiedly his con- has con- think he no such We faced. conviction of the accused’s scientious right. right His is ab- stitutional guilt. unaccept- must stand aside as He added.) (Accent impartiality.” solute although because, able beyond convinced approved fully supra, atti- Pope, doubt, a he reasonable could not Puff, tude of Turberville following supplement: say unconditionally. so The statute jurymen plainly requires that, de- if the guilty termine position to be of a down comes defense “The offense, impartial must announce ei- demand, for an not a something penalty imprison- ther neutral, or life but for which is juryman namely, ment. who which A different, quite taking prejudiced about the life one persons he finds includes against and, also, possibly guilty committing cap- offense for— — has not choice a freedom of between punishment. ital capital punishment imprison- and life persuaded not are also “We ment. argument exclu- the trial court’s invalidity No Constitutional is raised improp- persons served sion of these statute, perceive and I no panel erly produce rejection fundamental bar to the State’s representative something than less juryman as a of a venireman conscience- community. In a narrow sense against capital punishment. bound is say might but one be said could perfectly understandable tenet I thing in the when same sense the same imply scruple. no derision of the Nor per- very properly court asks those Ido intimate view of the step personally aside who are sons wrong penalty. say only I the dеath prose- acquainted with counsel question it is a for determination cution, read, or who or who cannot by the not one for State, the Federal English understand the lan- cannot passing upon courts State laws. guage. panel is that extent the To representative always little less than majority Reference is made community aas But whole. percentage persons North Caro- produce un- this exclusion does lina averse to execution for crime. illegally unrepresenta- fair or an accuracy figures, of these Granted impartial is not tive one or accepting I doubt the soundness of sense. Amendment the Sixth poll representative of State or even tf community opinion. I Rather would look expressions of the North Carolina Courts, I that this feel did these As legislature in enactments. The its crim- governs principle whether or not study inal statute here under has re- capital punishment man- exact statutes mained the law of North Carolina for optional datorily verdict of allow an many years, and to me this is indicative imprisonment. life public judgment capital pun- thinking my Epitomized, in a ishment. is that If the citizens of the State unwilling statute, like one now were to follow the I trial under a statute considered, question promptly have no doubt it would be re- pealed injected question Again, present into the or otherwise modified. law validity this action guilt, act’s not for the Federal courts. However, I reverse the convic- tion here for of the defense disallowance

challenge who held it venireman duty capital punishment

his inflict guilty should the defendant found

murder. Cf. Stroud v. United 64 L.Ed. U.S. Puff, (1919); United States v.

supra, Moreover, 211 F.2d

there was trial error in the admission inflammatory evidence advertence prior

before the defendant’s

criminal record. These incidents neces- trial,

sitate a new and for that reason I

concur in the determination the court

to reverse.

Floyd POPE, Appellant, Delorace SWENSON, Warden, Appellee.

Harold R.

No. 19005. Appeals

United States Court Eighth Circuit.

June

Case Details

Case Name: Marion Frank Crawford v. V. Lee Bounds, Warden of Central Prison (Successor to K. B. Bailey)

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 11, 1968

Citation: 395 F.2d 297

Docket Number: 10981_1

Court Abbreviation: 4th Cir.