*2 GEE, TATE, Before RANDALL and Cir- cuit Judges.
PER CURIAM:
Pеtitioner,
O’Bryan,
Ronald Clark
capital
convicted of
murder in Harris Coun
ty, Texas and sentenced to die. The evi
dence at trial indicated that he had killed
eight year
old son on
Halloween
giving him cyanide candy, in order to collect
proceeds.
ap
insurance
Petitioner’s direct
peal was affirmed in an
extensive
by the Texas
Appeals
State,
(Tex.Cr.
O’Bryan v.
state court for habeas corpus July relief were denied on 1980 and September 1982. September,
In the state trial court set Petitioner’s execution date for October 31,1982. 29,1982, September On application filed an for a writ of habeas corpus application and an for a execution in the district United States II, (emphasis F.2d at 856 stay.” Ruiz the district court. On October I, F.2d at Ruiz original) (quoting application for federal ha- court denied relief, request as well as the for a beas case, possibility In a court found all of the Petition- district heavily in weighs irreparable injury to be without merit. On er’s contentions irreversible nature of favor. The movant’s *3 25,1982, a notice of October Petitioner filed weighed against must be penalty the death court’s appeal to this court of the district time, must come a the fact that “[t]here dеnying him habeas relief. judgment a as that penalty even when so irreversible upon particular a imposed of death has been requests Petitioner now that we enter an defendant, legal the issues in the case execution date staying order his October 31 sufficiently litigated and reliti appeаl have been permit pursue in order to him to to law must be allowed gated so that the grant prob- and that we him a certificate of ” Bennett, Evans v. 440 us to run its course .... appeal. urges able cause to The State 1482, 1306, 1481, 99 S.Ct. deny request the and to order briefs and U.S. J., 1484, (1979) (Rehnquist, 756 may 27 so that we 59 L.Ed.2d argument before October execution). In a granting stay a of appeal render a decision on Petitioner’s be- case, particularly certain the forth we must be fore October 31. For reasons set liti sufficiently “have been below, stay legal the of the issues grant we have decided to defendant accоrd gated,” and the criminal probable execution and a certificate him protections guaranteed the ed all the appeal. recognition cause to In the See this the Constitution of United States. legitimate bringing interest State’s Martin, (4th 491 Cir. close, v. 613 F.2d already proceeding drawn out to а we Shaw 1980). expedited and di- appeal order expedited
rect the Clerk to establish an given right “is the A defendant briefing schedule. courts of claims in the federal seek review court, our national Constitution general, deciding upon In based court conviction. If arising must from his stay, whether to issue cоnsider: State district he is relief in the federal denied (1) the movant has made a whether right him the gives court then the law the showing of likelihood of success on 670 F.2d Wainwright, v. appeal.” Goode merits, (2) the movant made whether has 1982). we conclude (11th Because 941 Cir. injury if the showing irreparable Petitioner’s claims lеast one of stay granted, (3) is not whether and because question presents substantial granting stay substantially adequate review possibly give we cannot parties, harm the other whether days remaining few before in the his claims granting would serve execution, we must his scheduled public interest. the Petitioner’s protect stay in order Estelle, (5th F.2d 856 Ruiz v. Cir. court’s denial of appeal the district right Estelle, 1982) (Ruiz II) (quoting Ruiz v. corpus relief. habeas 1981) (5th (Ruiz I)). Cir. F.2d See grounds for habe- the Petitioner’s Businessmen For Free Enter One of also Florida at his trial of 956,957 that the exclusion 648 F.2d as relief is prise City Hollywood, v. reservations expressed who (5th 1981); jurors Drummond v. Fulton three Cir. Coun violated the capital punishment Su- Department Family and Children’s ty Illi- Witherspoon Services, 1001, 1002(5th rule preme Court’s 532 F.2d Cir. 20 L.Ed.2d nois, always movant need not show a While “the in Wither- merits,” The Court’s on the he ‘probability’ success recognition that a spoon upon is based “present must a substantial case popu- of the American significant segment in legal question merits when a serious serious reservations about harbors show that the balance of the lation volved and and that the exclusion equities, [i.e., the other three the death factors] who have such persons weighs heavily jury in the favor of service jury reservations would result in a unconsti- an set extreme of circumstances before tutionally composed because it is not repre- you would? sentative of the community. upon Based JUROR PFEFFER: It would take a this recognizing consideration and very, very extreme set of circumstances legitimate State’s interest in who are to do it. irrevocably against not committed to vote you’re opposed THE COURT: Then not penalty the death what the regardless of to it. Is that correct? show, may Supreme evidence op- I’m not Witherspoon held in that veniremen with it, posed but in own heart I don’t capital punishment reservations about decision, know if I could make the jury be excluded from service if only proper really by weighing decision make clear that: unmistakably evidence, a thin being line one (1) they mean, way or the other. this is not imposition capital punish- *4 know would directly you like direct —I regard any ment without evidence that answers, I but this is the best can do might be developed at the trial of the vague and it is a answer. them, case before their attitude The turning point position, in Pfeifer’s rec- penalty prevent toward death would as ognized such Court of Criminal making impartial them from an deсision Appeals, immediately follows that testimo- guilt. as to the defendant’s ny: n.21, Witherspoon, 391 at 522-23 U.S. Well, THE requires COURT: law in (emphasis original). A sub- that we have to have a definite answer. sequent opinion Supreme in understand, JUROR PFEFFER: I right. 38, 50, Adams v. THE COURT: Because the law does al- (1980), makes low to be excused because of people nervousness, clear that “neither emotional certain prejudicial beliefs that could be involvement, nor inability deny or con- other, or biased for one side or the and firm any equivalent effect whatsoever is just you both sides want to know if can unwillingness an or an inability part mind, keep open an consider the entire of to follow the court’s instructions range punishment, full whatever oaths, and their obey regardless of their be, proper that and under the set may feelings about the penalty.” death circumstances, if they do exist and The voir dire examination of one of the exist, yоu you feel that could re- jurors (L. Pfeffer) R. on the subject of his turn that verdict. And that’s in es- views about capital punishment consumes they’re asking. sence what thirty-three pages in the record of the trial. I I Indirectly, guess JUROR PFEFFER: During the initial two-thirds of that exami- say would have to no. nation, was, venireman Pfeffer as the Court THE You could not? COURT: Appeals recognized, say JUROR PFEFFER: I would have to
in stating position capital his on punish- then, no a or no answer. you yes ment. He described himself as a “border- Then, THE COURT: am I to believe by line thinker” on the issue capital punish- that regardless virtue of that answer ment, expressed and doubt that he could reveal, regardless what the facts would make proper judgment because of his of how horrible the circumstances feelings” “mixed concerning the infliction be, you that of the death penalty. following The collo- imposition of the death quy between the court and Pfeffer comes at рenalty? portion the end of that of the examination and is PFEFFER: As I I don’t representative precedes say, of what it: JUROR know. you saying
THE COURT: Are that under question no circumstances THE that’s the I you could ever make COURT: just decision or that it would take or no to. yes have to have States, been construed Right. ed as have Court, apply those laws Supreme and you’re THE And hu- only COURT: people. all be- evenly respect knows, being alive who Mr. Pfei- man grant is to obligation lieve that our sworn fer. stay of execution. Petitioner’s Right, I PFEFFER: understand. JUROR STAY GRANTED. to make a choice yes If I have between no, say I would I couldn’t GEE, Judge, dissenting: Cirсuit judgment. make the stay; and since the I would not The remaining pages ten continue to reflect its has stated reasons for panel majority what as apparent Petitioner views Pfeifer’s so, mine. doing briefly state to a change position uncertainty the death in penalty refusal to consider eight years It is almost since Peti- now provide “yes eight-year order to the trial court with a his old tioner murdered him proceeds feeding or no son for insurance answer.” candy cyanide.1 Halloween laced with The argues Supreme clear; there is no evidence that he did so opinions Withersрoon Court’s and Adams so, he was guilt. doubt Even entitled juror who, preclude the exclusion of after trial; if I to a fair and constitutional examination, searching remains uncertain serious believed the record raised doubts punishment subject one, I join he received whether from, effect, judge preclude further He makes three such juror to take a forcing position such a firm *5 claims. in no providing “yes the interest of or by which in charge One is that the strong argument that a answer.” We think punishment Texas fix unconstitu- that, contrary can to be made the conclu- the objection charge, tional. He to made no sion Ap- reached the Court however, waived the to right hence has and peals, Pfeifer’s true position venireman Wainwright Sykes, v. complain of it. 433 that he was uncertain what he while about 72, 2497, 594 (1977). 97 53 L.Ed.2d U.S. S.Ct. involving case the any given would do in moreover, already charge has, up- been were circum- pеnalty, death there some held as the United constitutional States (a extreme set of cir- “very, very stances Jurek v. 428 U.S. Supreme Court. he cumstances”) under which could assess (1976). 929 96 49 L.Ed.2d S.Ct. that death and his exclusion prosecutor, ar- Another claim is was, therefore, jury service unconsti- trial, phase in his guing punishment Witherspoon tutional under and Adams. O’Bryan’s failure to referring erred in to presents We think the Petitioner a substan- his community produce testimony tial entitled question and that Petitioner is veracity, truth and or as reputation for pursue appeal. to on point this law-abiding citizen. These peaceful and for аpplication raises on mitigation, matters for the were in matters arguments relating to two other —one were if to be defendant to advance charge jury failure to include to the Though produced he by anyone. advanced prose- on mitigation concerning and one activities, and church witnesses his civic punishment argument phase cutor’s of these sub- any were questioned none Petitioner’s trial —which one member objected to the O’Bryan for jects. Counsel present ques- this a substantial panel thinks our trying case” argument “the State as appeal. tion be considered on and should our that “it’s not burden ground and on this courtroom up- bring are into judges, any As we sworn evidence federal f) laws hold the of the Unit- Constitution opinion gave candy related in the he his other case are 1. Poisoned Appeals insured, child, and need not Texas of Criminal and to children of also three Stаte, O’Bryan repeated v. 591 neighbors here. after the of Tim- was retrieved death (Tex.Cr.App.1979). boy. othy, Those facts S.W.2d 464 murdered and other
711
settled,
It is
both in the law of Texas and
if
says
it
circuit,
no,
of our
prosecutor
yes
com
or
I
say yes,
would have to
I
ment on the defendant’s failure to
would automatically
against,
call cer
State,
tain
witnesses.
v.
a correct answer.
See
(Tex.Cr.App.1979);
S.W.2d
United
THE COURT: You would vote
Lehmann,
(5th
States v.
niremen improperly were jury excused from quired him to answer the question clearly, service in contravention of Witherspoon v. yеs Indeed, deference, no.4 all Illinois, I do not see how there can be a different L.Ed.2d 776 veniremen, Two of the view of the matter. however, Wells, Messrs. Bowman and early stated, then, For the reasons that I have I and candidly acknowledged delay eight-year would not further this old automatically vote аgainst the death penal- matter in to an response plea eleventh-hour ty circumstances, in all a clear disqualifica- advancing grounds that seem to me clearly third, tion under Witherspoon. The Mr. are, merit. my devoid of as brethren’s Pfeffer, engaged in a lengthy sparring ses- observes, uphold sworn to the law sion with counsel and with the court and the Constitution. find no warrant subject, giving equivocal and conditional either for a And while I thoroughly answers pages over almost fifteen of record respect brethren’s convictions and take testimony. pinned When at last down by whatever pleasure standing nо alone in *6 court, however, required give own-—convictions that would dictate other, clear answer one way or the he re- being execution of a fellow human fear—I sponded: grounds of a on such
THE COURT: You are in yourself procedures as these trivializes state criminal such regardless a frame of mind that public perception far to forward a goes how horrible the facts and circumstances regarding the real rule of our courts are, you that, they may vote while capital sentences is against the imposition penal- of the death be carried imposed, they cannot out. ty? Is that correct? would not Pate, merely 2. Miller v. 386 U.S. could not be excluded because S.Ct. (1967) (prosecutor, L.Ed.2d 690 who knew un stated deliberations would be “affect- that their paint only, dershorts were stained with re possibility ed” of the death peatedly during described them trial as blood even becausе were unable to state wheth- stained). any way er their would in or not deliberations 50, 100 be “affected.” 448 U.S. at Brady Maryland, 3. 373 U.S. 83 S.Ct. holding bearing 2529. That has no on the issue 1194, 10 (1963) (prosecutor L.Ed.2d 215 deliber us, judge properly before which is whether the ately bearing withheld evidence on extent of requiring after him to excluded Mr. Pfeffеr petitioner’s crime). involvement in the clear whether “he would automatical- answer supposed right 4. asserts a of venire- ly imposition of the death persist men to questions, citing answers to such penalty.” He answered that he would and he Adams v. properly excluded. I find no holding such It Adams. held that veniremen