Ronald Clark O'Bryan v. W.J. Estelle, Jr., Director, Texas Department of Corrections, Respondent

Before RANDALL and HIGGINBOT HAM, Judges, *, Circuit and BUCHMEYER Judge. District RANDALL, Judge: Circuit Ronald O’Bryan Clark was convicted of the murder of his own child in a Texas state court in 1974 and sentenced to die. On appeal from the federal district court’s de- relief, nial of corpus habeas 28 U.S.C. (1976), the defendant contends: § (1) that the exclusion of three who expressed conscientious objections to violated the rule of * Judge Texas, District sitting by designation. of the Northern District of Illinois, been 88 ber of loans and had forced to sell their meet their most obli- (1968); pressing home to 20 L.Ed.2d O’Bryan discussed his financial gations. penalty proce- (2) that Texas death and in- acquaintances, burdens with friends because unconstitutional it does dure is forming them that expected some of he instructions concern- provide jury money by year. receive some end of the circumstances; ing mitigating difficulties, Despite O’Bryan his financial (3) that the defendant’s constitutional increased the insurance substantially life when the trial rights were violated coverage children, Timothy his two on prosecutor to comment on permitted Lane, during By Elizabeth mid-Octo- to ask defense counsel’s failure defense $30,000 worth on coverage ber there was about the de- questions witnesses certain child, O’Bryan while the coverage each reputation; fendant’s minimal. and his wife was court’s refusal to in- (4) that August, O’Bryan In unsuccess- tried governing pa- on the law struct cyanide where he worked. fully obtain persons as it relates to sentenced to role called September, a friend who the defend- imprisonment life violated and the Company, worked at Arco Chemical process rights. ant’s due availability the varieties two discussed recognize that we are compelled While continued to discuss cyanide. O’Bryan challenge has a serious O'Bryan raised his fellow at Tex- cyanide among employees three jurors of two of the the exclusion Shortly before Hallow- Optical. State conclude that Witherspoon, we een, appeared Curtin Matheson O’Bryan corpus denial of habeas re- district court’s Company, chemical outlet Scientific affirmed. lief should be Houston. When he discovered that AND PROCEDURAL I. FACTUAL large company only available cyanide had BACKGROUND. asked O’Bryan salesperson quantities, he obtain a smaller amount. murdering was of his where could O’Bryan convicted son, Timothy, remunera eight-year-old Halloween, 31, Thursday, On October thereof, promise namely, tion or the 1974, at the home O’Bryan family dined from a of life insurance proceeds number The both family. of the Bates children of life. Tex.Penal policies Timothy’s See treat- go families had “trick or planned (Vernon 1974).1 19.03(a)(3) Ann. Code § together neighborhood. in the Bates’ ing” of this as adduced trial are The facts case accompanied and Mr. Bates The defendant Texas Court of forth in detail in the set and son on the children Bates’ O’Bryan’s Appeals’ disposition O’Bryan’s Criminal arrived outing. party Halloween When the State, 591 appeal. O’Bryan direct S.W.2d out, home, lights were at the Melvins’ banc), (Tex.Cr.App.1979) (en cert. de up the children went and O’Bryan 2975, nied, 988, 100 446 U.S. When one answered anyway. the home no We have summarized L.Ed.2d door, next went on to the the children here. briefly them house; remained behind for about O’Bryan up He then ran to the chil- O’Bryan, thirty record reflects that who seconds. The dren, least “switching” “giant pixy two optician Opti- worked as at Texas State exclaiming that “rich styx” the air Company, prob- cal had serious financial handing expensive out family neighbors” The on num- were delinquent lems. was provides employs or to commit Texas Penal relevant another the murder for 1. The Code promise part: or the of remunera- remuneration tion; (a) person an offense if com- A commits 19.- mits murder defined Section 02(a)(1) (b) capital code and: under this is a An offense section 19.03(a)(3)(b) felony. Tex.Penal Code Ann. § (3) person commits the murder for re- (Vernon 1974). promise muneration remuneration carry pixy offered to O’Bryan O’Bryan’s treats. conviction and sentence were Back at the Bates’ styx for the children. affirmed the Texas Court of Criminal home, pixy styx distributed the O’Bryan Appeals 26,1979. on September O’Bryan v. children, gave his and Bates’ two a State, supra. application His for a writ of who came to boy fifth stick to a “trick or certiorari to the United States treat” at the door. Texas, O’Bryan denied in 64 L.Ed.2d 846 festivities had After the Halloween been (1980), as was his first application for state home, took his children completed, O’Bryan corpus habeas relief. while his wife went visit a friend. informed the children that O’Bryan July, he filed petition for fed- piece could each have one before candy corpus relief, eral habeas which was dis- bed; going chose the Timothy pixy stick. prejudice missed without so that he could The boy getting had trouble the candy out return to state court to present additional tube, O’Bryan so rolled the stick in unexhausted application claims. His second his candy hand to loosen his son. corpus for state habeas relief was denied on Timothy complained When the candy 1, 1982, September and his execution date taste, O’Bryan gave had a bitter him some 31,1982. set for October September On Kool-Aid to wash it down. 1982, O’Bryan filed his second application Timothy immediately became ill and ran for federal habeas relief. The district court bathroom, where he started vomit- application denied his for the stay writ and ing. Timothy became When sicker and of execution on October 1982. Wé convulsions, went O’Bryan into summoned granted application stay for a and re- Timothy ambulance. died within an quest for a certificate probable cause on hour after he arrived at the hospital. Cya- Estelle, October 1982. O’Bryan v. nide aspirated was found in fluids from his (5th Cir.1982). F.2d 706 stomach in his blood. quantity

cyanide in the blood was well above the II. THE WITHERSPOON ISSUE. fatal human dose. At least persons seventeen were excused conflicting testimony There was at trial serving jury cause from on the on the concerning the extent to which the defend- basis of their opposition penal- to the death ant hospital showed remorse at the and at ty. O’Bryan challenges the exclusion of his During son’s funeral. the days follow- Wells, Pfeffer, three of them: Jurors ing Halloween, O’Bryan gave conflicting Bowman. stories as origin pixy to the of the styx, but he eventually claimed that pixy styx Illinois, Witherspoon 510, v. came from the Melvin home. Mr. Melvin 1770, (1968), 88 S.Ct. 20 L.Ed.2d 776 work, however, was at until late in the Supreme set Court aside a defendant’s evening on Halloween. death sentence where members of the ve- nire had been excluded

O’Bryan charged solely they was because and convicted of capital had conscientious scruples against capital murder. At the sentencing pro- ceeding, punishment. The Court held that a poten- State reintroduced the evi- dence juror that it had tial could not be presented at trial excused for cause on and the presented opposition defendant nine basis of his to the death lay witnesses who stated they penalty “irrevocably did not unless he was believe that commit- ted, O’Bryan likely danger was to be a before the trial society begun, has to vote in the future. The jury against answered the two the penalty regardless of death special issues affirmatively2 and O’Bryan might the facts and circumstances that was sentenced to die. emerge in the course of proceedings.” rogatories. 2. A Texas trial must sentence a defend- See Tex.Code Crim.Pro.Ann. art. jury (Vernon 1981) (set if part ant to die returns affirmative an- 37.071 forth in relevant two, three, special 12). swers to sometimes inter- at note

371 21, assessing challenges 88 1777 n. 21. the exclusion of n. at Such Id. at 522 S.Ct. they only be if make persons may Witherspoon. excluded in state trials under Supreme expressly has never The Court review of a (1) would stated what the standard of unmistakably clear imposition automatically against Witherspoon challenge vote re- should be. Our regard without punishment capital Supreme principal view Court’s at might developed be any evidence cases, Texas, Witherspoon v. 448 Adams them, (2) or trial of the case before 2528-29, 38, 2521, 49-51, 100 65 U.S. S.Ct. the death pen- their attitude toward Ohio, (1980); L.Ed.2d Lockett v. 438 581 making prevent them alty 2959-61, 586, 595-97, 2954, 57 98 S.Ct. U.S. decision as defendant’s impartial Bishop, 398 (1978); L.Ed.2d 973 Maxwell guilt. 1578, 1580, 262, 264-65, 26 90 S.Ct. U.S. The (emphasis original). Supreme Id. Holman, 394 (1970); L.Ed.2d 221 Boulden v. jury reasoned that a from which all Court 478, 482-84, 1138, 1140-42, 22 U.S. against had im- persons who reservations (1969); Witherspoon, supra, L.Ed.2d 433 the death had been excluded posing penalty cases, suggests to us that those the Court willing “uncommonly to con- was a independent in an or de novo engaging was 521, 88 a man to Id. at at demn die.” S.Ct. review, mean that review. de novo we By itself, based appears the Court decide for and this Both the circuit of the whether a upon reading transcript, upon insisted strict adherence to allegedly improperly exclud- juror who courts have Witherspoon. mandate it unmis- has made ed a death to be set aside required sentence he or automat- takably clear that she would been only juror even if one has potential of the ically imposition vote opposing excluded for the death evi- without penalty, regard set broader than those forth grounds trial, or might developed dence that Georgia, see Witherspoon, Davis U.S. attitude or her toward (1976); 50 L.Ed.2d prevent him or her from penalty would Beto, (5th Marion v. 434 F.2d Cir. making decision as to the de- impartial has 1970), regardless of whether to be appears No deference guilt. fendant’s any peremptory challenges remaining to observe given ability to the trial court’s Austin, the close of voir dire. Alderman because juror, perhaps demeanor Cir.1982), (5th 663 F.2d 564 7 aff’d in n. that a Witherspoon’s requirement (5th Cir.1983) part, relevant F.2d “unambiguous- or her must make his views Estelle, (en banc); Granviel v. “unmistakably suggests clear” ly” Cir.1981), denied, cert. Signif- for such deference. there no need (1982); 71 L.Ed.2d 870 however, high decisions icantly, Court’s Estelle, 1297, (5th v. 592 F.2d 1299 Burns context of been made in the generally have aff’d, (5th Cir.1980) Cir.1979), F.2d 396 626 appeal.3 a direct criminal contra, Davis, 429 (en banc); supra, U.S. J., 124, (Rehnquist, at 400 dissent lower fed- Witherspoon challenges 97 S.Ct. in the ing). context of eral courts are raised in the tradi- proceedings. In the federal habeas Appellate

A. The Standard of Review. case, juror review tional bias federal habeas findings court’s is more of a state trial matter, a threshold we address the As appellate is re- narrowly circumscribed than ap- of the standard of question appropriate appeal. view in criminal See Smith proceedings in habeas a direct review federal pellate Maxwell, Boulden, supra, spoon supra, had been raised in the federal issue 3. While cases, Accordingly, Supreme re- the Court state courts below. habeas were federal ultimately federal courts cases to lower Wither- whether a manded both decide did consideration, necessary, ex- spoon and if in case for further had occurred either violation remedies. Wither- haustion of state not satisfied because it was 372 940, 209, bias), Irvin, 102 71 Phillips, supra (juror 455 U.S. S.Ct. with bias is mixed Smith, petitioner

L.Ed.2d 78 independent- law and fact be juror applied court). a who had ly by appellate maintained that reviewed position during a the trial law enforcement The that a state State maintains court’s biased him. The presumptively findings are presump factual entitled a post-trial hearing state trial held a 2254(d) tion of correctness under section in juror that the had not been determined Witherspoon challenges well. See Alder Supreme biased. The Court held a Austin, 124, (5th man v. 695 F.2d 130 Cir. it, like the one before federal habeas action 1983)-(en banc) J., (Fay, dissenting); Dar respect findings the state with court’s 1031, Wainwright, den v. 699 F.2d 1037-38 “presumptively actual bias were correct un Cir.), (11th granted, rehearing en banc 699 der 2254(d),” 28 and that “federal U.S.C. § (11th J., Cir.1983) (Fay, F.2d suggest 1043 courts in must not proceedings such disturb ing that Sumner presumption applies, but state courts unless the fed findings of apparently independent engaging review eral habeas court some basis articulate[d] propriety of the state court’s for disarming findings such of the statutory of prospective jurors). exclusion Like the ” are presumption correct .... Court, Supreme however, lower federal Mata, 102 (citing S.Ct. at 946 Sumner v. 449 courts, without expressly establishing 539, 764, 101 66 722 U.S. S.Ct. L.Ed.2d review, appear engage standard in a McMullen, (1981)); Rogers see also 673 Witherspoon de review of challenges novo 1185, (11th Cir.1982), F.2d 1190 n.10 cert. in federal habeas proceedings. McCorquo - denied, -, 740, 103 U.S. S.Ct. 74 Balkcom, 1553, 1556-57 dale v. 705 F.2d n. 9 (1983); Dowd, L.Ed.2d 961 see Irvin Watkins, (11th Cir.1983); Bell v. 692 F.2d 717, 723, 1642, 366 1639, 81 6 999, Cir.1982); (5th 1006-08 Williams v. (habeas L.Ed.2d (1961) 751 case in which 381, (5th 679 Maggio, Cir.1982) F.2d 384-86 juror Court held that bias is (en banc), denied,- U.S. -, cert. [question “mixed law and fact” and of] 3553, (1983); 77 L.Ed.2d Alder therefore, duty it was court of appeals Austin, man v. 562-64 (5th F.2d “independently evaluate the voir testi dire Cir.1982), part, aff'd relevant 695 F.2d mony impaneled jurors”) (quoting (5th Cir.1983) (en banc); Granviel v. States, 145, 156, Reynolds v. United 98 U.S. Estelle, (5th 655 F.2d Cir.1981); 677-78 (1878)). L.Ed. 244 Since Estelle, Burns v. 592 F.2d 1300-01 challenge juror challenge is a form a (5th Cir.1979), aff'd, 397-98 bias, seem Smith would to indicate (5th Cir.1980) (en Beto, banc); Marion v. findings respect court’s factual Cir.1970). F.2d to juror’s willingness to impose the death judges suggested a third pos Some penalty should entitled a presumption according sibility: some deference to the of correctness under 2254(d). section opportu trial court’s decision in of its light requirement Court’s of strict adherence to observe the nity juror’s demeanor while Witherspoon, however, see, Davis v. e.g., questions he or answering she voir Georgia, Judge recently suggested dire. Kravitch L.Ed.2d (1976) (death sentence must be the questions set that where asked of the pro aside only juror even if one prospective spective precise closely track excluded in violation Witherspoon), language Witherspoon, appellate leaves us with some doubts about court’s deference to the trial court’s apply Court would assess traditional bias the Witherspoon clarity juror’s standard of review to a ment of answers is Further, Balkcom, challenge. appropriate. McCorquodale the Supreme Court has (11th Cir.1983) (Krav not been consistent in its treatment 705 F.2d 1561 entirely of juror Smith, the itch, J., dissenting); bias cases. see Mason v. Compare also Balk supra com, of (presumption F.Supp. (M.D.Ga.1980) correctness accorded 560 findings judge’s court’s actual trial respect (noting opportunity with to observe automatically in inde engaging penal- listen to but vote death juror, and ty: Witherspoon challenge), analysis of pendent Hinton, Q. Wells, Mr. I’m Mike as the grounds,

rev’d on other ago told awhile for you Court denied,- U.S. -, Cir.1982), cert. State, co-counsel, my and Mr. L.Ed.2d 487 Driscoll. here represent- Vic We come however, carefully majority, McCorquodale in ing the of Texas this case in State effort to record in “scrutinized the [its own] we as seeking punish- which are of court’s the trial ascertain correctness the penalty ment for this defendant a venireman’s con finding regard with death. punishment,” capital victions about you me begin by asking Let then 1556-57, and that F.2d at n. noted whether or have conscien- you any not Aiken Washington, tious, religious scruples moral or (1971), L.Ed.2d against the imposition penalty a sentence reversed death summarily chair? death the electric had found no Wither- where the state court do, me I say morally, A. Let that I had some def spoon violation and accorded capable issuing don’t think that I am erence to the trial court. a of death man. above, however, review As our discussed Judge Q. right. Again, All as Price told have the case reveals that the courts law ago, a no one is here to you moment for not established standard specifically feelings quarrel your you with cer- or of Wither- appellate collateral review your are entitled to as tainly opinions While trial challenges. a state spoon good us country, all of are in our findings jur- respect court’s factual feelings that your includes about pre- to a may normally or bias be entitled But under law I in a habeas sumption correctness federal you ask this further must additional Smith, least proceeding, supra, Reverend, is, which I take it question, you court’s answer cannot light your some deference in the trial you of murder where imagine case juror the prospective observe opportunity to could, jurors, twelve vote to one of dire, appear voir the federal courts during electric as a send someone to the chair the trial engage a de novo review of their even punishment offense in cases the de- court’s conclusions where though was authorized statute? of a viola- complains fendant now, you yourself repeat A. Would we do have to re- Fortunately, tion. please? what solve and to Yes, I sir. that must Q. My question we court’s extent should defer the state then, your you upon ask based former we have findings because concluded is, I answer take it that because of the proceed exacting if we even under more feelings you you do review, from de resulting standard novo - have, entitled to moral reli- feelings, judge’s exclusion of three you gious feelings, imagine cannot proper Witherspoon. this case was you, sitting jury, a case where on a could vote to send someone to death in Juror B. Wells. punishment as a the electric chair juror though The first excused for their crime even law autho- prospective such penalty? at- rizes cause who merited the defendant’s has was the proceedings it, tention in these habeas imagine my- A. I can can’t see doing D. Wells. Wells Reverend Charles While self it. a case imagine

was able to where Then, must Q. right. All I believe we he impose penalty, vote to would between hypotheti- somewhere our [be] it, and on doing to see himself case can you imagine was unable cal where it? doing stated questioning further examination by A. Yes. counsel for and State above, the court set forth for counsel imagine can’t Q. you yourself doing But defendant directed Wells’ to attention those jurors, correct, those is that it as one of two questions: sir? it, Q. myself see All hardly doing yes. right. course,

A. I can You understand of nobody you would put ask to personally Now, I Q. don’t want right. you All to somebody death. You understand trying with me and I’m not get angry that. You personally do not have to argue you, but I have to ask pull switch or something? answer, for your because this you lady your testimony I taking down at this A. understand that. for the record. time Q. Surely. And of course there’s a lot your then from I take it answer that steps go you between the time your religious and moral because start trial and you the time end the feelings you that are cer- principles testimony puts the defense on their have, tainly you entitled to cannot testimony course, and of a there’s find- imagine a case where you would vote ing of guilt. You understand that. imposition for the death in the elec- You do now if you haven’t before. Is correct, Is chair. tric sir? that correct? No, A. I can’t. A. Yes.

MR. HINTON: I thank you, sir. We Q. then, All right. And finding after a juror submit is not qualified, one, guilt, if ques- there certain Honor. Your be tions will you submitted Now, juror. you saying

EXAMINATION BY THE COURT circumstances, time that under no re- Wells, Q. Mr. gardless let me ask what would you testimony be, before have the under no right you circumstances could you ask questions. penalty? vote the death Because of your or religious moral A. I don’t think there are I scruples, would you, you if possibly penal- were a could vote jury, member of the you would auto- ty- matically vote against imposition this, Q. sir, right. you All me Let ask if capital punishment no matter what the you juror, were selected as even

trial revealed? though the asked State has for the A. As far as the electric chair is con- penalty, you death could consider these

cerned? you two issues —and I’ll ask the issues Q. you you Would would be personally, you perhaps if were a asked to

member of a consider. All jury, right? would you automati- against vote cally the imposition of the All right. A. no matter what the trial Q. All first right. The issue revealed? whether the conduct of defendant Yes, A. I would. that caused the death of the deceased Q. All right. deliberately was committed and with expectation A. would vote the reasonable > it. death of the deceased or another would dal Transcript at 763-66. ques- result. you Could answer Texas,however, tech- does not tion, sir, gotten all you after had vote to impose the penalty, facts? ad, the trial judge sentences the de- Yes, A. Yes. if, if, only die the jury Q. You right? could answer that all two, three, sometimes statutory Sons Following affirmative. A. Yes. 2 Trial In any Transcript spite have trouble 768-70.

Q. And that wouldn’t that he would Wells’ assurance could and conscience, it? would your trial statutory questions, answer the the No. A. granted the that Wells request State’s be would anoth- Q. Then of course there be cause. at no Significantly, excused for be would whether question, er and that explain time did defense counsel to Wells the probability that defend- there is [a] that if and the other answered the he acts of vio- ant would commit criminal affirmative, in the statutory the questions a that constitute continu- lence would required trial would to sentence Now, could society. you threat to ing death, to review of defendant and our question? answer that possibly that at in the point the record indicates no Yes, I could answer that possibly A. of Wells proceedings before voir dire question. any counsel such did court or render thus do not know wheth- quarrel explanation. We any have Q. you And would er, he would an- in that could and saying questions? with those problem questions truthfully, statutory swer two I don’t think so. A. of those Wells understood what effect those Q. right. you All And if answered be. answers could course, up it wouldn’t be questions, Appeals The Texas Court of Criminal to do defendant. you anything with a chal recently presented merely questions you Those are that whose involving prospective juror lenge Isn’t that cor- answer the Court. respects simi strikingly views were in some rect? State, lar to Wells. those of Cuevas say yes. A. I would (en (Tex.Crim.App.1982) 641 S.W.2d 558 that, Q. you do sir? Could stated, in banc), initially Ward venireman in answering I could be as liberal A. appeals, the words of the court criminal questions as I could. par “that no circumstances could he ticipate returning a verdict as Q. you ques- And would answer those require court to assess would not? truthfully, you tions would Id. at 560. After the “bi penalty.” Yes, my opinions as far as are con- A. assessing guilt in Texas for system furcated cerned. cases” punishment capital murder minister, you Q. you’re I know him, how explained to “carefully” had been not? ever, he had been informed after Yes, sir. That’s correct. A. court, jury, impose would And answer those Q. you ques- could court that told penalty, Ward your ability tions to best of objections capital pun could set aside not? truthfully, you could statutory questions answer the ishment and Id4 presented. of the evidence on basis A. Yes. require portion the infliction of the voir is set verdict 4. The relevant dire Appeals’ opinion: punishment in the Court of crime. forth Criminal as a Q..... Oh, A. I see. Now, objection you you expressed you expressed opinion And Q. you your feel Would could not. objection to the death say conscientious May question? it’s the A. I ask a You such, your that it deliberation would affect imposes the Court and not the guilt upon his the first instance or on right? penalty, is that fact, ques- questions on either of the those obligated right, but the That’s Q. I tions that asked? punishment the answers assess based on No. A. issues____ your special atti- Would those Well, you now have answered me two Q. objection your to that form tude and ways. different way you punishment de- interfere with the Maybe you. I A. misunderstood upon the facts of the case? liberated you you outset whether asked at the Q. No, A. it wouldn’t. returning participate juror could as a criminal relied appeals While the court of his or her inability to follow the law and Adams, oath, Adams, than in set- Witherspoon, rather abide his or her supra, 448 sentence,5 2528; death the ting aside Cuevas’ U.S. at S.Ct. at accord Boul- den, supra, 483-84, that Ward could not court was convinced U.S. at S.Ct. at With- consistently appellate have with 1141-42—means that been excluded or feder- erspoon either, repeatedly because al habeas court be that cannot certain from “[h]e follow the stated that he could law and the of the face record about a venireman’s evidence of be- upon proper guilt inability must, convict to follow law the without doubt, despite opposi- consideration, writ, a reasonable his yond grant further the penalty.” to tion S.W.2d then we would be to compelled do so here. 563. The State that we argues should not sharpens ques the ultimate apply

Cuevas such rule in the circumstances of presented tion Wells’ exclusion. Just as by It it clearly case. maintains that estab juror put to may be able aside his her Wells’ opposition lished automatic to the opposition to death penalty obey the and penalty during death its initial examination law, or she may so, the so he decide that he or Having of him. done the argues State facts, i.e., determine the she can the the petitioner answer that if wished rehabilitate he or questions, long as as she is not the one a juror successfully, Wells as it was incum actually pronounce who must the fatal bent defense upon counsel take his in If the juror’s conclusion, words.6 this is quiry into Wells’ ability answer the stat then he or she be cannot excluded under utory questions one further step by clarify Witherspoon. just record, Ward Cuevas was the ing, on Wells whether under juror, such a and the Texas possible Court of Crimi stood the effect of his answers nal Appeals that, held his exclusion was questions. argues those The State error. since the defense to take that step, failed the exclusion of Wells on the basis of his presented by threshold unequivocal initial statements of automatic Wells’ voir dire is whether had the Wells opposition to the death penalty proper. same views as had Ward. The indi- record We agree with the State. cates have may that he held views. those He stated could that he and would answer A reading fair testimony Wells’ the statutory questions But in truthfully. to the response questioning by initial the view the fact the record does not by the indicates State trial court contain an explanation Wells of the ef- forcefully Wells stated clearly, and without fect of “yes” answers to those questions by any equivocation that he would automati- jury, the know we do not record imposition cally vote of the Wells, Ward, like aside put could no penalty death matter what the trial re- opposition his to the penalty obey Had the vealed. voir dire ended with the law, i.e., answer statutory questions court’s would questioning, clearly State truthfully, knowing the possible effect have properly obtained exclusion of his questions. answers to those We can If the Witherspoon. Wells under defense only speculate. If requirement by wished rehabilitate Wells demonstrat- Witherspoon and its progeny ing obey regardless ve- could the law —that nireman must make clear” to the “unmistakably opposition penalty, perhaps you successfully might imposed. You believe can set that Téx.Penal Q. See Code Ann. your solely 1974). aside 12.31(b) (Vernon and base answers art. exclusively upon you the evidence hear in the trial of case? held, example, have that a We trial court Yes, A. Sir. juror says exclude a who cannot he or she 641 S.W.2d at 560. be able to serve as would that he or sign she could not the verdict as the foreman. 5. Ward was excused because he could not take Alderman, supra, swearing the oath 663 F.2d at 563. that his decision by be “affected” the fact that the death affected, clearly surmountably” dis- the distinction between because of her. qualified fact-finder and as the persuasive in that Ward found sentencer original). We went on to (emphasis Id. Cuevas, upon then was incumbent caused explain speculations that the record, establish, Wells’ on the defense to ques- responses of Doss’ inadequacy fact-finding func- in that engage ability her, in initially posed to combination tions effect knowledge possible tion trial court’s failure to addi- permit with the fate. findings on the defendant’s those defense, required questioning tional Accordingly, do. This the defense failed to improper us hold that her exclusion was to of on the we that the exclusion Wells hold Witherspoon: under unequivocal and basis of his initial clear sure, speculations mere be these are To he automatically would statements her answers to such about what [addition- matter penalty vote the death no against might point have been. The questions al] proper what trial revealed was in her nothing is that actual answers its progeny. and acknowledg- Her mere forecloses them. with is not inconsistent holding This would her penalty ment that the “affect” we Burns, supra, in which held do so: deliberations does not what candid be- juror improper Doss exclusion responsible citizen would not admit speculate were forced to about cause we much, swear the truthfully prop- could as her in put she aside disbelief could to one of no concern whatever? osition the law. 592 penalty the death follow Id. Burns, 1301. In Doss affirmed that F.2d at penalty not in” the death she “did believe Burns, the voir dire in In contrast to the mandatory and stated “that

three times nor the trial court has left neither State life would imprisonment of death or penalty us about the nature of Wells’ speculate to any on issue of her ‘deliberations ‘affect’ prose- to opposition the death ” The trial court fact in the case.’ Id. statement cutor did not settle for Wells’ solely on the basis those excluded Doss “capable think he was he did not statements, rejected it defense coun- man,” death to issuing penalty be asked further suggestion sel’s that Doss he but could not “imagine” could imagine it not what questions because could voting send to himself someone “see” Unfortunately, else asked. could have been Transcript 764-65. The death. Trial we could: sit until Wells had prosecutor did not down whether, have been asked could She that he could not unequivocally stated convictions, expressed her she despite “vote where he would case imagine disbelief aside and do her put could her Id. of death.” at 765. After imposition might as a citizen. Her answer duty his questioning, had finished the prosecutor Or she have been that she could. could and asked wheth- up took task presence asked what effect the have been “automatically vote er would Wells possible of a death sentence would have no-matter what the trial penalty the death might Her answer her deliberations. revealed,” replied that he to which Wells be very that she would wish to have been If we are forced to Id. at would. convinced, guilt, thoroughly to be sure case, counsel, is defense in this it speculate in a way she could find facts such before who judge, or the trial failed not the State result. Ei- might the death penalty necessary question. ask have rehabi- ther answer would doubtless the converse of the situa- We have here her An answer litated service. Nothing Wells’ answers tion in Burns. not take or could not that she would questions forecloses the counsel’s defense oath not to be required comply with the not answered possibility that would her “affected” deliberations on the statutory questions basis doubtless, definition “af- upon proper knew that an affirmative if he or “in- evidence meaning “disablingly” as fected” questions opposition imposition pen- to both would mandate answer of the death alty. es- defendant’s execution. The State unequivocal opposition to tablished Wells’ F.2d (emphasis at 948-49 in original). beyond it speculation; the death penalty Porter, Like defense counsel in defense defendant, if upon was then incumbent here did ask enough questions counsel ask juror, rehabilitate the he wished to demonstrate ex- previously that Wells’ to demonstrate that Wells enough questions unequivocal opposition pressed to the death fact-finding his function in would not perform penalty prevent per- him from could forming juror capital his function in a penalty.7 spite opposition case. recently confronted a simi- We were Pfeffer. C. Juror defense counsel to

lar failure rehabili- expressed her opposi- had tate who presents opposite Pfeffer prob- Juror tion to in Porter v. Es- Indeed, lem from Wells. the voir dire of Porter, telle, (5th Cir.1983). quintessential be the may example Pfeffer response questions, pro- State’s be appropri- of a situation which would had ex- spective juror repeatedly Herndon give for appellate ate an court to at least pressed “longstanding against convictions judge, some deference to the trial who has juror the death that would re- had the to observe the penalty opportunity [have] or to struggles give he she an honest an- quire^] against her to vote no matter [it] questions. Regardless swer to difficult of what the trial revealed.” 709 F.2d at 948. advisable, our whether such deference her in opposition response She maintained independent own review of indi- the record to questions two from defense counsel but cates that Pfeifer’s exclusion was not in “put when asked whether she could her Witherspoon. violation of convictions aside and do a duty her ‘as ” case,’ in Capital Juror a Murder she re- As we observed in our grant decision to plied that could. (emphasis origi- she Id. execution, O’Bryan stay a of and as the nal). When objected defense counsel to the during court of criminal appeals recognized, cause, challenge State’s the point- State initial of lengthy two-thirds Pfeifer’s ed the general out question asked dire (covering voir examination twenty-four to ability about Herndon’s do her a “duty as pages transcript), he was juror” had included “the predi- second equivocal capital stating position cate in Burns .... if [that] He as a punishment. described himself death, sentencing meant a toman could you capi- “borderline thinker” on the issue of ” follow that duty?’ Id. Defense counsel punishment, expressed tal and doubt that did not any questions ask more and proper he could make the be- judgment juror was excused for cause. We held feelings” concerning cause of his “mixed Porter that the infliction the death firm, view repeated, of Herndon’s

[i]n O’Bryan Estelle, and unequivocal statements irrevoca- Cir.1982). When informed the trial [opposition ble imposition of the answer, the] give court that he must a definitive penalty circumstances, death any say” Pfeffer stated that he “would have to say we unable to her limited reply that he could not to impose vote ” that “she could do her as a duty juror although he cave- penalty, continued add equivocation time, indicated vacillation or referring ats time to previous in her statement of necessity giving unalterable a no judge “yes or rejects holds state must estab- be he should before or she juror’s opposition lish that a automatic challenge state’s for cause on the basis “unmistakably clear.” While juror. rehabilitation defendant’s We a defendant who seeks rehabilitate only attempt hold that the defense counsel’s standard, might exacting not be held to such was insufficient here. rehabilitation express we no view as how certain a trial answer,” no, I I couldnt say or “for and would answer,” a correct give “to the judgment. make concerned:” everyone good Transcript Although at 882-84. 3 Trial Well, requires law THE COURT: interspersed his answers from this Pfeffer answer. to have a definite that we have or in his voir dire with caveats point on understand, right. I PFEFFER: JUROR as those referred to such qualifications al- the law does Because THE COURT: above, are at least two instances in there because of to be excused people low which, specific question we focus on a if prejudicial that could certain beliefs answer, unqualified answers: gave other, for one side or or biased You are in such a yourself THE COURT: you to know if can just sides want both regardless of mind that of how frame mind, consider the entire open keep the facts circumstances horrible whatever range punishment, full vote are, automatically would you be, proper set and under may imposition circumstances, exist and they if do Is that correct? penalty? exist, could re- you feel you Well, says yes if it JUROR PFEFFER: that’s in es- verdict. And turn that I no, say yes, I would have to would asking. they’re what sence give automatically against, vote I Indirectly, guess PFEFFER: JUROR correct answer. say have to no. against? would vote THE You COURT: not? THE You could COURT: Yes. PFEFFER: JUROR say I would have to PFEFFER: JUROR Transcript (emphasis at 884-85 add- 3 Trial then, yes or no answer. give you no ed). Then, am I to believe THE COURT: Then, under no Harrison) Mr. Q. (By regardless answer that of that virtue circumstances, Pfeffer, could you Mr. reveal, regardless what the facts would voting answering even think may the circumstances of how horrible those if the result of questions those automatically vote be, would you that to, effect, give were to be questions of the death imposition Is that penalty. the death somebody penalty? correct? I don’t say, PFEFFER: As I JUROR time that’s present I think at A. know. correct, yes. Well, that’s the I question THE COURT: Id. at 892. a or no to. yes have to have view, while Pfeffer O’Bryan’s In Right. PFEFFER: JUROR “mixed emotions” “reservations” or had hu- you’re only And THE COURT: while he was penalty, death about the knows, Mr. Pfef- being alive who man ability to about his own seriously concerned fer. willing to penalty, he the death assess circ extreme set of “very, very I understand. a Right, PFEFFER: do so in JUROR were an accurate If this umstances.”8 yes make a choice between If I have to 8. There is first position. 3 Trial THE COURT: THE COURT: JUROR PFEFFER: you’ve explained but it would take that stances for of that answer twenty pages Transcript He you’re For ample support example: ^[*] you not Then, From at 875. to ever necessarily opposed of the voir dire for this ^[*] that an extreme That’s correct. your listening in the record of the you you ^[*] give answers, saying feel it? set of circum- ^[*] to the that I take it ^[*] virtue there way it, JUROR THE COURT: would be a set exist proper? return could and that a have about So, how proper punishment I still you whereby you feel that the reservations. PFEFFER: that. such a verdict was when I said with feel have reservations. They’re personally Well, everybody of circumstances In death as a member general, just There’s and that if as far as penalty wanted you I would reservations. no felt you that could would be of a going to know it was would death say, Id. at 515 n. view, exclusion would have at 1773 n. 8 (quoting then Pfeffer’s State, Smith (1887)); Miss. 413-14 Witherspoon, In one of the been improper. Burns, supra, accord at 1299 n. 2. excluded stated “she venirewomen Witherspoon makes it clear neither a for responsible ‘like to be ... would not deep pronounce reluctance to pen- death put be deciding somebody should ” alty, so, short of absolute to do refusal nor 88 S.Ct. at 1773. death.’ the reservation of the penalty death this accompanying descrip- the footnote circumstances, set only extreme is a tion juror’s feelings, of the ground for exclusion.9 U.S. at 522 n. cited, apparently approval, a 88 S.Ct. at n. 21. a that reversed Mississippi case court’s A careful transcript review indi- exclusion who not wish did during cates that the initial two-thirds of decide should die: person dire, Pfeffer’s voir suggest did indeed rejected jurors, declaration able, that he extreme would set of case, this only amounted statement circumstances, death assess the not would like ... man to be however, attitude, At point, Pfeffer’s hung. Every right- New men would. least, answers, very or at the changed would it as a thinking regard painful man when he stated “if to make a [he had] duty to a verdict of pronounce yes no,” choice between Trial Tran- upon script his fellow-man. he would to say that he penalty being punishment you saying considered as THE Are COURT: under no words, you apparently crime. In other you do could ever circumstances make that objection not have conscientious just or that it decision take an ex- penalty, you? do you treme set of circumstances before general. JUROR PFEFFER: inNot would? right. THE All COURT: very, very PFEFFER: It JUROR would take specific possibly. JUROR PFEFFER: But set of extreme circumstances to do it. then, you THE And COURT: if felt the facts you’re opposed THE Then COURT: not to it. justified and circumstances and warranted Is that correct? verdict, being could Well, opposed JUROR PFEFFER: I’m not you join and vote with eleven others to it, my but in own don’t heart I know if I you proper return that verdict if felt it was decision, proper could make deci- to do so under the facts and circumstances really evidence, by weighing sion with you them hear from this witness stand? being way on a thin line one or the other. said, JUROR PFEFFER: As I I don’t know. mean, directly you know —I say, trying Like I I’m not set—I’m to an- answers, would like direct but this is the question. your swer vague do best I can and it is a answer.

THE I COURT: understand. at Id. 879-82. vague; PFEFFER: JUROR But I know I’m myself judgment but I trust don’t on the may person 9. Pfeffer also be viewed aas who you you this with —as understand as heard simply involving to afraid make a decision answers, my I don’t have a concrete penalty, scruples the death not because of way. enough just conviction either I real- against penalty the death because but of con- ly— ability judg- cern a about his to make correct you telling THE COURT: Are me then that important ment on such an For matter. exam- just something this is that would be diffi- ple, explained Pfeffer to the trial court that he yourself do, you’re cult within not judgment did not “trust on the [himself] necessarily opposed to it? Transcript this.” 3 Trial at 881. He continued: JUROR I PFEFFER: think is correct. it, my opposed “I’m but in own heart I may THE COURT: And well be there some decision, I could don’t know if make the facts and circumstances whereby you that do exist really proper by weighing decision would, you could and if felt it evidence.” at 882. In Id. view fact that justified, was return a verdict death? the trial court excluded Pfeffer because he ulti- Well, say, JUROR PFEFFER: like I I still mately automatically that he stated would vote feelings have the mixed really there that I don’t against penalty the death no matter what the proper judg- I think could make revealed, we need not decide whether ment, being a borderline thinker on the Witherspoon permit would of a exclusion subject. just I decision that I don’t—a who concludes that he be unable to would put I don’t know that could make. Let’s penalty make a decision in a case. death way. that automatic imposition opposition record of against vote automatically would [Brou’s] that conclude established.” Id. penalty We the death of the death [was] en deci rejected our banc majority specifically this case is controlled banc The en 679 F.2d Maggio, Williams v. sion in “ex- that under the contention - denied, (en Cir.1982) banc), cert. un- impermissible clusion of a venireman is 77 L.Ed.2d U.S.-, to all response questions he states in less that stated Juror Brou in Williams refuses to consider the absolutely that read you cases where there were “certain (emphasis 679 F.2d at 386 penalty.” death so hideous that are about them Wil- added). It would seem that under think, oh, penalty the death just you conclusion liams, juror’s it is the ultimate outcome,” only good be the op- or she is irrevocably whether he about to Pfeifer’s statement a statement similar critical. penalty the death posed in a penalty he could assess the death of the sort effective rehabilitation Absent circumstances.” extreme set of “very, very in lacking we found defense counsel’s how probing, continued his prosecutor and the Texas of Wells questioning ever, response leading question to a present found in Cue- Appeals of Criminal case, Brou stated particular Williams’ about vas, ultimate statement of un- juror’s impose that she could not that she felt to the death opposition penalty equivocal penalty: death his or her exclusion under the justify will return you feel that could not Q. you So interpretation court’s of Wither- Williams penalty? the death spoon. Brou) (Ms. A. No. majority opinion).10 Id. (emphasis statement unequivocal Pfeifer’s automatically he would vote in con- uncertainty Brou’s initial Viewing Transcript Trial penalty, the death junction response with her ultimate exclusion under justify sufficient to ability about her prosecutor’s question Williams; his earlier that he statement majority penalty, return death in an ex- “the assess the in Williams that could this court concluded Oh, (Ms. Brou) I’m afraid I portion let’s see. of the voir dire was set forth A. 10. A thinking opinion: just majority in terms couldn’t. I would why person like that be rehabili- Assuming prove can’t I the defendant Q. degree and is con- exterminated. first murder tated rather than committed victed, statutory prove you you re- assume I not return the feel that could SoQ. circumstances, aggravating quirements of penalty? death Louisiana law make the case which under Brou) (Ms. No. A. penalty, you appropriate can for the you which there circumstances Are Q. a verdict that mandates return require that would could return a verdict put electrocution? defendant be be electrocuted? defendant (Ms. Brou) think I do that. A. I don’t could just Brou) particular (Ms. This one A. your being Okay. appreciate I honest Q. general? you And let me ask this. When with me. particular This one. Q. can, you you say I what don’t think Any where I could do A. circumstances me, telling you positively me that can’t tell that? can; you is that correct? Yes. Q. (Ms. Brou) cases I know there is certain A. Well, course, Brou) (Ms. I don’t know A. you them and are so where read about always the case. I think that much about think, oh, you just that the death hideous the crime is be- how hideous in terms of outcome, good only penalty would be the I I know that much about it. cause don’t case, particular I know. don’t but this I don’t think I can do it. don’t know. killing Judge you, this is the As the told Q. (emphasis majority opinion). in 679 F.2d at 385 Well, Judge said know if the don’t a — questioning, Immediately preceding this line of jury. that, I think it before all juror whether a would be dis- Ms. Brou asked robbery, that A P murder This is the & n occurred on qualified a “firm conviction” year. if she did not have January the 5th of penalty. you 679 F.2d at 399 n. 3 understanding the death my that feel about And it is J., penal- dissenting). you (Randall, return the death could not ty. circumstances, tions, his prolonged pursue treme set of to a line questioning de and qualifica- signed and his caveats out uncertainty to flush the venireman’s true Indeed, tions statement preceding unequivocal appellate views. an court confront do of that validity not undercut exclu- ed with the question whether such an exclu qualifications sion. The follow- sion was proper, apparent caveats and with do ing unequivocal making statement not an necessity independent review record, expect amount to the kind of effective rehabilita- based on the cold will no less. necessary tion of that would Pfeffer for The trial in this case succeeded in us to that his was obtaining hold exclusion error. an answer Pfeffer that he could impose penalty. not death Under suggests that Pfeifer’s O’Bryan ultimate circumstances, these we cannot say that reflect accurately statements do Pfef- Pfeifer’s exclusion was Wil improper. fer’s position. O’Bryan contends liams, supra. mistakenly trial viewed judge Witherspoon rule,”11 “exclusionary and that D. Juror Bowman. unwilling accept was Pfeifer’s O’Bryan’s complaint final about the voir deep, agonized pronounce reluctance juror dire involves the exclusion of Bow- penalty. death The defendant maintains Pfeffer, man. Like originally Bowman was court, effect, that the trial coerced Pfef- feelings unsure of his pen- about the death fer taking position into that he would alty, but on questioning further he stated vote automatically imposition of that he not vote could for it. When asked the death of the penalty regardless facts home,” however, about a “closer crime he trial. established at Our review the en- said that he consider death penal- could dire, tire voir seven encompassing volumes ty if “was the victim one of family.” 3 record, [his] trial indicates the trial Trial at 918. Transcript judge did not view generally Instead, as an exclusionary pains- rule. he agree We with the Texas Court takingly questioned, and permitted counsel of Appeals Criminal that Bowman’s re each question, and every who ex- sponse impose that he could the death pen pressed discomfort imposing about alty if a family member had been death penalty, excluding some for cause but killed does not invalidate the trial court’s refusing others, to exclude thereby forcing excusal of him cause. If the victim had the State to exercise peremptory its chal- been family, a member of Bowman’s lenges. would have “unable as a juror been to serve because prejudice of his interest and We cannot say that the court’s case.” supra, 591 O’Bryan, S.W.2d probing of Pfeifer’s in an attempt answers (citing Crim.Pro.Ann. art. Tex.Code 35.16 find some basis on which to evaluate his (Vernon Supp.1983)). & The state true feelings improper. Throughout ment person impose that a could the death dire, the voir Pfeffer express continued to a case penalty only in in which he or she concern ability pronounce about his permitted would not be to serve is virtually judge may trial equivalent of a the juror statement thought professed that Pfeifer’s willingness would capital punish never vote favor of to assess penalty “very, very ment. extreme set of was a circumstances” smoke screen for what was really inability III. THE CONSTITUTIONALITY OF assess circum THE CAPITAL SENTENCING PRO- view, stance. Under this we have to CEDURE. say that a judge, harboring those sus picions about the person in front of him or O’Bryan contends that the Texas capital her, right, has the within certain limita- sentencing procedure, Tex.Code Crim.Pro. Adams, supra, 11. power the Court stated tation on the state’s to exclude for ground that 47-48, was not a for chal- cause. 448 U.S. at 100 S.Ct. at 2527-28. lenging any prospective juror, but rather a limi-

383 1981), charge ground request is unconsti- on this or such an (Vernon Ann. art. 37.071 provide it not trial, does required tutional because instruction mitigat- concerning the jury instructions to law. Crim.Pro.Ann. arts. 36.- Tex.Code argues that in the ing circumstances.12 He 14, 1981, is, (Vernon superseded). It of .15 instructions, the determina- absence of such course, procedural that “when a settled law the is left to unbridled punishment tion of litigation of a constitu- default bars state resulting impo- in the jury, the discretion of claim, prisoner may not obtain tional a state arbitrary penalty in sition of the death showing habeas relief absent a federal the manner, in violation of capricious and and v. prejudice.” Engle cause actual fourteenth amendments. See eighth and Isaac, 107, 129, 1558, 456 102 S.Ct. U.S. 238, 92 Georgia, S.Ct. Furman v. 408 U.S. 1572, (1982); accord, 783 71 L.Ed.2d Wain- on the 2726, (1972). Relying 33 346 L.Ed.2d 2497, 72, 97 wright v. 433 S.Ct. Sykes, U.S. holdings Eddings Supreme Court’s hand, 594 On the other 53 L.Ed.2d 869, 104, Oklahoma, 455 U.S. reviewing are not “barred from a claim we must (1982), that a sentencer L.Ed.2d when a state rule the state procedural be- mitigating evidence consider all the themselves have not followed courts die, to and sentencing fore someone Watkins, Bell v. rule.” Ohio, Lockett v. accord, Cir.1982); County Court (5th Ulster the sentencer (1978), 57 L.Ed.2d 973 Allen, 154, 99 any considering precluded cannot be (1979); Henry L.Ed.2d factors, maintains O’Bryan mitigating F.2d Cir. Wainwright, evi- concerning mitigating an instruction mandated. constitutionally 1982). dence here is that the state problem The say denying did whether it was court not be O’Bryan cannot The State claims that the habeas relief on petitioner corpus the court’s the trial complain heard about the default or on procedural basis his mitigat- jury a instruction on give failure claim; simply merits of his it denied he did not make ing circumstances because court’s without comment.13 objection petition a the contemporaneous continuing capital sentencing procedure a is set forth lence that would constitute 12. The society; (Vernon art. 37.071 threat to in Tex.Code Crim.Pro.Ann. 1981), part: provides relevant which (c) prove must each issue sub- The state (a) Upon finding that the defendant is doubt, beyond the offense, mitted a reasonable guilty capital the court shall special “yes” jury verdict of or sentencing proceeding shall return separate conduct a “no” on issue submitted. each be whether the defendant shall determine (d) charge jury the court shall that: imprisonment. The it life sentenced to death or any “yes” (1) may un- not issue proceeding answer The in the trial shall be conducted unanimously; practi- agrees jury less it the trial as soon as court before (2) may any may issue un- proceeding, not answer “no” be cable. In the presented evidence jurors agree. any court 10 more as to matter that the less or (e) jury If affirmative find- This subsection the returns an deems relevant sentence. ing cle, to authorize the intro- submitted under this arti- shall not be construed on each issue any violation duction of of evidence secured in shall sentence the defendant court If negative finding the United or Constitution of States death. on returns a article, of Texas. The state and the defend- State submitted under issue permitted ant present argument his counsel shall or confine- court shall sentence the defendant to sentence Department Texas of Corrections ment death. for life. presentation (b) conclusion of On evidence, O’Bryan object adequacy shall submit the fol- 13. did mitigating jury: cir- lowing the trial court’s instructions issues to the applications (1) until he filed his two cumstances for state habeas of the defendant conduct relief in 1980 and was of the deceased caused Appeals deliberately of Criminal denied both with the reasona- Texas Court committed O’Bryan petitions raise de- without comment. did expectation ble the death of the result; challenge capi- generalized to the Texas a more ceased or another would throughout pro- sentencing procedure (2) probability tal whether there is procedure ceedings: unconstitu- acts of vio- commit criminal defendant would 384 recently were confronted with 71 (1982),

We L.Ed.2d 876 the Texas Court of interpreting the a state court’s problem Appeals Criminal refused to a capital hear grounds for its respect silence with murder defendant’s that contention he was state claim in petitioner’s denial of a habeas mitigating entitled to a circumstances in- Maggio, (5th 705 F.2d 113 Cir. Preston v. during sentencing phase struction of his 1983). that the same con We determined object where he had failed to or re- applied should be to cases in siderations quest such an instruction at trial. The which the court has denied relief with state held: objection court “Absent such an or offering out reasons for its denial as any instruction, requested the trial court’s fail- are to cases where state court has applied charge jury ure to as to the considera- been than Id. at We explicit.” “less tion mitigating circumstances was not those among included considerations: reversible error.” Id. at 120. Williams’ procedural Whether the court has used position O’Bryan’s: was the same as Wil- preclude default in similar cases to re his liams contended that death sentence had merits, view of the claim’s whether imposed unconstitutionally been because history suggest of the case would that the jury had been given not a mitigating of the procedural court aware instruction, circumstances had never default, and whether the state court’s requested such an trial. instruction at Un- opinions suggest upon procedural reliance circumstances, der these the Texas court grounds or a determination the merits. procedural concluded that Williams’ default Court, Id. Ulster 442 (citing County supra, precluded review his constitutional claim. 147-54, 2219-23). Ap U.S. at 99 S.Ct. has O’Bryan not offered us indication plying O’Bryan’s the Preston criteria to that the court would not have made the case, pre we conclude that the state court Further, same decision here.14 we know on the of his sumably denied claim basis Texas Appeals Criminal procedural default. had been made aware of proce- O’Bryan’s The Texas courts have held that default, dural since raised the State objections charge in the absence of matter in its opposing petition- answer specially requested charge, errors no application er’s second for habeas relief. appeal therein can be considered on “un- O’Bryan argues it that his failure to appears less that the defendant has not object had a the trial court’s should not impartial charge fair trial.” Boles v. 274, State, 598 S.W.2d 278 (Tex.Cr.App. bar his claim because the Texas court’s deci And, 1980). in determining fun- Williams, Quinones supra, sions v. error present, damental it is proper State, 592 (Tex.Cr.App.) (en 933 S.W.2d charge view the as a whole. 893, banc), denied, cert. 449 101 U.S. S.Ct. 256, (1980), placed 66 L.Ed.2d 121 him in State, 504, White 610 (Tex.Cr. S.W.2d App.1981) above, “Catch-22” As (en banc). State, In situation. discussed Williams v. 116 (Tex.Cr.App.1981) (en banc), appeals S.W.2d the court of criminal held Wil denied, 1008, 1646, cert. 455 U.S. a challenge liams review permitted capital tional because it sentencing to make its claim eralized Texas decision in unbridled discretion and in arbi procedure is unconstitutional is foreclosed trary capricious disposition manner. its Jurek. decision in Court’s O’Bryan’s appeal, direct criminal Texas Appeals “Appellant’s Court of Criminal held: example, O’Bryan 14. For has not demonstrated contention Article 37.071 is invalid under Texas courts have at times waived the the United States has an Constitution been procedural respect bar with instruc Texas, adversely to him in Jurek v. swered presented capi because were with tions 262, (1976). U.S. 96 S.Ct. 49 L.Ed.2d 929 Watkins, tal case. See Bell grounds These two error overruled.” 1982) (citing Culberson v. n. 5 Cir. State, O’Bryan (Tex.Cr. S.W.2d State, denied, (Miss. 1980), cert. 379 So.2d 499 denied, (en App.1979) banc), cert. 66 L.Ed.2d 831 64 L.Ed.2d 846 We (1981)). agree O’Bryan’s gen- Texas

385 where if he or she is sentencing instructions circumstances instruction those objection no had made defendant disposed to grant request. defendant’s Quinones, the de- at trial. In instructions The purpose of a contemporaneous objec- denied and been requested fendant had tion requirement is to give judge the trial The circumstances. charge mitigating the opportunity to rule on the defendant’s that no such held appeals of criminal court claim, Isaac, constitutional Engle see 456 overruled his ex- necessary charge 107, 128-29, 1558, U.S. 102 1572, 71 ception: L.Ed.2d (1982); 783 this is what O’Bryan evi present entitled to Appellant was failed to do.15 mitigating circumstances dence of Accordingly, we hold that the de evidence, including a such present and did fendant is barred raising from his claim personal his and fami broad discussion of about the absence of a mitigating circum The then is background. question ly stances instruction in these federal habeas special issue language whether the proceedings. Estelle, See also O’Bryan charge explanatory that an complex is so F.2d, 706, 691 (5th 710 Cir.1982) (Gee, J., from disre keep jury necessary dissenting). We note further the Su it. properly before the evidence garding preme Court’s recent decision in Zant v. State, (Tex.Cr. 553 105 King In S.W.2d - Stephens, -, 2733, U.S. 103 S.Ct. denied, cert. App.1977), 2744, 77 (1983) L.Ed.2d 235 (holding that (1978), 1284, 55 L.Ed.2d death sentence need not set aside where in Art. 37.- questions held that the one of three understanding statutory aggravating terms of common circum- 071 used stances special by juror no definition. found required which was subsequently rele grasp logical readily can held to be invalid by supreme state court the issue evidence to mitigating vance of but other two were specifically upheld, and fu probability is a of of whether there stating that “the legislature absence of violence. No addi criminal acts of ture court-imposed govern standards to the jury charge required. tional in weighing the significance of either or both of those assertion, aggravating circumstances O’Bryan’s Contrary Id. at 947. does not render [capital him with sentencing present do not two decisions these statute] hold applied) do not invalid” as situation, they makes the since defendant’s a Catch-22 mitigating give argument not may on the a trial merits far more difficult. Engle, supra, brief, Supreme dating 15. Court noted: late which relies on a Texas case necessity giving [Tjhe futility presenting objection from 1919 about concerning purpose of instruction evidence the state courts cannot alone constitute object good reputation, Gilbert v. for a at trial. If a cause failure of the defendant’s State, perceives claim defendant a constitutional 209 S.W. Tex.Cr.R. may and believes it courts, find favor in the federal (1919) (jury suspended determination sen- bypass may courts the state tence), ground demonstrates error simply unsym- because he thinks will be urged here was not “novel and unknown.” pathetic to the claim. Bass, Compare supra (contemporaneous objec- Estelle, Id. In Bass v. 102 S.Ct. at 1573. applies precise ground objec- tion rule where Cir.), modified, (5th 705 F.2d 121 696 F.2d 1154 requirement tion —overbreadth of Texas oath (5th Cir.1983), argued petitioner upheld year been be- —had exacting apply a less standard Texas courts Estelle, trial) with Green v. fore 706 F.2d 148 deciding procedural default where to excuse a explained, (5th Cir.), F.2d Cir. magnitude of constitutional has not “a defect 1983) (federal presume court would not trial,” quoting been established at the time of state court’s silence state had State, (Tex.Cr. Cuevas v. 641 S.W.2d applied procedural bar to claim of misuse of App.1982) (en banc). We observed that some psychiatric testimony petitioner’s where objection sort of to the exclusion of the before was conducted Court’s deci- Cuevas, quoted had been made in and that the Smith, sion in Estelle v. passage apply only seemed “to to situations (1981)). 68 L.Ed.2d 359 grounds where the were novel and O’Bryan’s appel- unknown.” 705 F.2d at 122. See society.

O’Bryan also contends that threat continuing posed death, upon solely based note punishment guilt stage introduced at evidence trial, having elected to IV. PROSECUTORIAL ARGUMENT. bearing spe the present upon no evidence 37.071(b)(2), required by article

cial issue O’Bryan complains that his constitutional V.A.C.C.P., the conclu plurality violated rights were violated when the prosecutor Georgia, v. 408 238 sion in Furman U.S. permitted was comment, during closing 2726, (1972); 33 L.Ed.2d 346] S.Ct. [92 argument at the sentencing phase of the Carolina, 428 280 Woodson v. North U.S. trial, on defense counsel’s to ques- failure (1976); 2978, 49 L.Ed.2d S.Ct. 944] [96 tion defense witnesses concerning O’Bryan’s Louisiana, 428 U.S. Roberts v. [96 reputation for being peaceful a and law- 3001, (1976). 49 L.Ed.2d S.Ct. 974] citizen, abiding and to suggest that counsel The never explains precisely defendant obligation” had a “moral to ask this ques- statement, what he means tion of the O’Bryan witnesses. contends seems to the refer to contention that he that these comments impermissibly shifted made in appeal his direct criminal that the the burden of disproving future dangerous- to support evidence was insufficient the ness onto the defendant, and that prose- the jury’s finding probability that there was a cutor’s deprived comments him of a funda- that he would commit criminal acts of vio- mentally fair trial.18 lence that would constitute a continuing The objec trial court overruled O’Bryan’s State, threat to society. O’Bryan supra, v. prosecutor’s tion to the argument. The at We agree S.W.2d 480.16 with the court stated that a party permitted, is in Texas Court of Appeals Criminal the Texas, to comment on the failure to call State’s reintroduction of the evidence certain witnesses. The Texas Court of presented during guilt phase of the trial Appeals agreed, Criminal noting that it “is provided sufficient evidence of O’Bryan’s well settled that in prosecutor, argu dangerousness future to support jury’s ment, may comment upon In the defendant’s findings.17 particular, we note that failure to call certain O’Bryan planned O’Bryan witnesses.” carefully poisoning of State, his own son so S.W.2d 479 (Tex.Cr.App. could collect life 1979) (en banc), proceeds, denied, insurance cert. gave and that he U.S. poisoned pixy styx children, (1980) to four other 100 S.Ct. 64 L.Ed.2d 846 (citing, including State, his own daughter, attempt e.g., Carrillo 566 S.W.2d up to cover his crime. We cannot say (Tex.Cr.App.1978)). The court added that no rational trier fact could while have found the burden of proving special beyond a State, reasonable doubt that such a man issues is on the option “the of coming O’Bryan through- 16. Since People has raised this claim that know [the and know defendant] proceedings out the and the Texas Court of you worthy him well told he is not of belief Appeals Criminal reached the merits of the reputation under oath. He has a bad for claim, by Sykes, supra, we are not barred veracity. truth and You didn’t hear reviewing O’Bryan’s challenge this variation on say anything the witnesses that he called constitutionality of his death sentence. reputation community about his in the for citizen, being peaceful abiding a and a law reviewing sufficiency 17. Our standard for being person No, veracity. for a of truth and upon the evidence claims collateral attacks question by weren’t asked that proceedings state criminal is: lawyers these defense because those witness- applicant corpus is entitled [T]he to habeas you es would have told the truth in that upon relief if it is found that the record evi- They respect. obligation if, have a moral dence adduced at the trial no rational trier of fact, good reputation this defendant a has proof guilt beyond fact could have found community citizen, being peaceful reasonable doubt. citizen, truth, abiding law a citizen of Virginia, 307, 324, a citi- Jackson v. veracity, 2781, 2791, bring zen of you to come in (1979) here and (sufficiency 61 L.Ed.2d 560 witnesses, support conviction). of evidence to those and there are criminal none. Transcript 14 Trial at 5276. prosecutor 18. The stated: complaint circumstances L.Ed.2d 368 Here mitigating forward comments, prosecutor’s off-the-cuff about capital defendant.” S.W.2d upon instructions. judicial the de- not that counsel both Noting had commented prosecution fense Naughten, 414 Cupp witnesses,19 to call on the failure habeas (1973), 38 L.Ed.2d 368 charged had properly judge’s claimed that a state trial petitioner regard to the State’s burden jury with instruction pre- witness is “[e]very phase of the punishment proof during truth,” id. at speak sumed trial, Appeals the Texas Court of Criminal 398, impermissibly shifted the bur- had not prosecutor’s held that the remarks proof. den held to the defend- proof shifted the burden tangential undercutting of [the “[w]hatever ant, ruling the trial court’s and that of innocence and the state’s presumption not in error. Id. a duty prove guilt beyond reasonable matter, may, as a theoretical have doubt] of propriety review of the Our giving from the of the instruction resulted made a during comments prosecutorial the of truthfulness is not of presumption proc one of state trial is “the narrow due 149, at 94 constitutional dimension.” Id. ess, supervi the exercise not broad of at 401. The connection between the S.Ct. possess in re sory power that [we] comments about the failure to prosecutor’s Donnelly own court.” v. gard trial [our] in this question defense witnesses case DeChristoforo, 637, 642, 416 94 S.Ct. U.S. is proof even more attenuat- the burden the 1868, 1871, (1974). 40 431 In L.Ed.2d the connection in Naughten, ed than was specific guaran a violation of a absence of supra. we overturn Rights,20 may tee of the Bill of if com only state the Further, a we have held that the conviction the fun conduct has made trial plained-of the requirements of federal Constitution 645, at unfair. Id. 94 S.Ct. damentally long satisfied as as the State bears the 1872; Blackburn, v. 652 aggravating see also Passman the circum proving burden denied, 559, (5th Cir.1981), Lucas, 1086, 1107 cert. F.2d Gray F.2d 567 v. 677 stances. 1722, denied,-U.S.-, 1022, 102 Cir.1982), 72 141 (5th 455 U.S. L.Ed.2d cert. S.Ct. 754, 1886, (1983). 609 76 L.Ed.2d 815 The (1982); Wainwright, v. F.2d 103 Cobb S.Ct. 907, 100 pros that the denied, jury 447 court instructed the (5th Cir.), 756 cert. U.S. 2991, (1980). proving bore the burden of the de 64 L.Ed.2d 857 Such ecution S.Ct. dangerousness beyond future not the here. fendant’s case re The Constitution reasonable doubt. not prosecutor’s The remarks did no The of who question more. quires proving shift the burden of impermissibly cir produce mitigating evidence of should issues under Tex.Code Crim.Pro. special the law; was a matter of state the cumstances 1981). (Vernon prose The Ann. art. 37.071 the defendant court’s decision that state tangentially most cutor’s comments were at entailed no constitutional that burden bore cases proof. the burden of related to Gray, supra. violation. See im by examples cited the defendant find no error of constitutional burden-shifting specif involved We permissible all, error any who if there be magnitude, trial court about ic instructions issues, prosecution permitting trial court’s certain proving bore burden see, Montana, 442 comment on defendant’s failure eg., U.S. Sandstrom 2450, questions. certain As 510, (1979), 61 39 ask witnesses L.Ed.2d S.Ct. noted, the Appeals re the same. In Texas Court of Criminal establishing state statute comment, as a may matter Winship, prosecutor 397 U.S. O’Bryan alleged prosecu- fail- has not the State’s 19. Defense counsel mentioned any specific provision testify violated tor’s comments ure to witnesses about call Rights. O’Bryan’s probability dangerousness. Bill of of the future law, suggestion on the call defendant’s failure to under state improper was witness, may and he a material draw 569 F.2d at In law. 381 n. 12. contrast, inference that failure that the testi Court refused to set See, mony would have been unfavorable. aside defendant’s where the conviction Carrillo, e.g., Similarly, we supra. had prosecutor expressed his personal opin- court, held that in federal “the failure of a ion about guilt defendant’s and had party to one produce peculiarly as a witness an improper made de- suggestion about the power party within the of such creates fendant’s motives standing trial. Don- testimony DeChristoforo, inference that such would be un nelly 637, 642, favorable, subject may 1868, 1871, of com 40 L.Ed.2d 431 ment to the other party.” case, O’Bryan’s evidence, Unit the State’s ad- Lehmann, ed States guilt trial, duced at phase of the (5th Cir.1980) (quoting McClanahan v. Unit probability defendant’s future dan- States, ed 919 (5th Cir.), F.2d cert. gerousness substantial, and the com- denied, 1 L.Ed.2d potential prejudice ments’ was at best (1956)). permissible, Comment is not Accordingly, minimal. we hold that however, if the “person equal prosecutor’s comments do entitle parties; available to both ly particularly O’Bryan to federal habeas relief. where he is court.” Id. actually V. PAROLE INSTRUCTIONS. witnesses, O’Bryan did call these law, Under jury may Texas not

points prosecutor out that the could have possibility parole consider the of in its delib asked them about the reputa- defendant’s see, on punishment, e.g, eration Moore v. tion for peacefulness easily as de- the State, 535 (Tex.Cr.App.1976), S.W.2d 357 fendant prosecutor’s could have. The state- jury and the in 0*Bryan’s case was so ins ment that defense counsel had a “moral tructed.21 The defendant maintains that obligation” to ask certain questions the the trial court’s refusal to instruct the jury witnesses probably bordered on the improp- the law governing about the Board of Par Viewing er. these two comments the dons and Paroles in to relation inmates context of the whole, however, trial as a see sentenced to life imprisonment deprived Estelle, (5th Houston v. 377 of a fundamentally him fair trial in viola Cir.1978), say we cannot that they deprived process tion due clause the four the fundamentally defendant fair trial. Relying teenth amendment. People on Houston, supra, where setwe aside a Morse, 60 388 Cal.2d P.2d 36 Cal. state court on conviction the of im- basis (1964), Rptr. O’Bryan argues an comments, proper prosecutorial the prosecu- instruction about the law of parole neces tor had repeatedly made the remarks even sary in a to capital dispel widely case the after he was reprimanded by the trial misconception held that a life sentence will Further, judge. the comments themselves result in a only serving defendant’s nine or were far more egregious than those made years prison. ten The Texas Court of during O’Bryan’s prosecutor trial. The be- Appeals adopt Criminal declined to the view gan argument a personal with attack on the California courts jury that a should counsel, the integrity of defense continued charged be on the law of parole and then with a personal opinion about the defend- not to O’Bryan, instructed consider it. su credibility stand, ant’s on the witness pra, 591 S.W.2d 478. suggested that the jury give the defendant long sentence so defendant would inAs our review of alleged himself, have an misconduct, opportunity rehabilitate prosecutorial our review aof jury: 21. The jurisdic- court instructed the matters come within exclusive tion of the Board Pardons among yourselves and Paroles and You are not to discuss long yours. required Governor and are no concern of how the defendant you impose. Transcript Trial serve the sentence that at 5254. Such request O’Bryan’s in a 2. failure to given instructions challenge to circum- concerning mitigating limited to wheth instruction narrowly trial is criminal chal- precludes “so infected the trial him from impropriety stances at alleged er the resulting such an lenging give conviction the court’s failure to entire trial process.” Cupp Naughten, proceedings; in these violates due instruction 400, 38 about comments prosecutor’s 3. that the accord, (1973); Easter v. Es L.Ed.2d ques- certain the defendant’s failure ask Cir.1980); (5th Hig telle, F.2d deprive witnesses not tions defense did gins Wainwright, 424 F.2d Cir. trial; fundamentally of a fair defendant Morse, supra, response was a 1970). position minority per earlier California’s complaint O’Bryan’s about jury parole to consider deter mitting give refusal to an instruction judge’s trial Concluding that mining punishment. cogniza- not parole Texas law is concerning concerning parole introduced evidence proceedings. ble in federal habeas jurors, confusing Cali trials court’s Accordingly, the federal district Supreme Court decided fornia relief to is AF- O’Bryan denial of habeas parole law be informed about should FIRMED. parole told not to consider and then punishment. its determination making HIGGINBOTHAM, E. Circuit PATRICK decision was based on The California court’s Judge, concurrence: special powers over state trial supervisory its courts, on the Constitu United States except join Judge opinion I Randall’s reasons for a state Whatever tion. which we to the standard respect such instruc require court’s decision to review the claimed ought courts, say own we cannot in its explain tion separately errors. also write is constitution parole that an instruction on reading how we in our voir differ capital in a case. See Cali mandated ally dire. Ramos,- U.S. -, -,

fornia v. 3448, (1983) 77 L.Ed.2d (instruction capital in case informing jurors dispassionate that the persuaded I am not to commute “life has governor power that ought bring we disinterest to possibility parole” without sentence we the facts requires case recast power them to informing equivalent are un- If the facts sterile abstraction. not unconstitu commute sentence horrible, they so wheth- or remain pleasant tional). Ultimately them away. er or wish not we actual give rules, justice the failure to such instruc- on the judged

Since our our of a of them. deprive O’Bryan did not funda- on our restatement tion facts and not trial, complaint fair his about the mentally Those facts follow. in fed- cognizable instruction is not

court’s arose petitioner November early Easter, proceedings. supra. See eral habeas sang and solo dedicated in his church son, buried eight Timothy, his year-old VI. CONCLUSION. It was learned day. soon previous hold: We Timothy by petitioner been murdered had life recently purchased proceeds for Wells, Bow- Pfeffer and Texas As described insurance. not excluded in violation of With- man were Appeals: Criminal Illinois, 391 U.S. erspoon v. A calculated and cold-blooded more (1968), because at some 20 L.Ed.2d 776 one for dire, appellant crime than the which each made it during the voir point imagined. can hardly was convicted could clear that he not vote unmistakably murdered his child in order to Appellant no matter what the for the insurance The record money. collect life required; law premeditation months of and reflects 9:00 a.m. on November approximately neared, he As Halloween took planning. morning after his son’s death the pol- life out new and additional insurance previous night, appellant his life called children, on made his icies both of his agent insurance to find out to collect how the poi- and successful search for diligent proceeds policy on his son. At use, up son which he was to set plans a.m. morn- approximately 9:30 this same that he would take his children insure death, ing inquired after his son’s he treating,” bought the children “trick bank about collecting policy his costumes, even began making their and there, Further, also. over the next sever- plans spend money which he would days, appellant al openly discussed how upon collect the deaths of his children. proceeds would use the of the life carefully planned Well before the insurance; plans taking these included murder, appellant began executed to con- extended vacation. house, buying sider a new off his paying By conduct, his including entire debts, job. and even his quitting facts that appellant, such a deliberate way,

and calculated took the life of his child money own and jeopardized the plan to execute Appellant, order his others, lives of four jury could have and to the life murder son collect appellant concluded that insurance and to had a wanton proceeds, escape detec- life; and callous so, disregard for human doing willing tion was to and at- evidence is to commit murder more sufficient for the to have tempted four times. When he found there is a intentionally probability distributed poisoned styx appellant the four additional commit pixy criminal acts of children, likely predict- other violence that would constitute a continu- able result of his acts was to their threat ing society. cause for the poisoning true. identification of another man as the sured. appellant’s showed that source out the murder of his son daughter, whose life was Jimmy Bates, and another tended of the two deaths also. The lives which appellant The i/t willing jury of appellant’s the candy, when the evidence State, 591 attempt also had before it to sacrifice in children this could not :js death, church, to of his good implicate another also included order to by a positive was sentenced child who and his own evidence ifc have heavily friend those carry ^[*] been at- in- of jury, proceeding under Texas’ bifurcated (en was affirmed on direct As yes decisions of ter original). by (Tex.Crim.App.1979) O’Bryan v. Petitioner was indicted November Article required finding banc). denied questions put S.W.2d 464 37.071(b), State, guilt On June him offense by certiorari. those guilty, 591 S.W.2d at death. of capital (en punishment, Vernon’s Ann. C.C.P. 2, (Tex.Crim.App.1979) appeal. O’Bryan answers, to them as 1980, banc) (emphasis in O’Bryan Houston, The conviction the murder. Af- petitioner answered required 480-81 Texas, Texas

Further, had it evi- before L.Ed.2d 846 appellant’s of twice, dence attitude toward his (1980). Petitioner has filing before and, crime. There was testimony that he was this state petition, sought habeas once before, by spread coverage “excited” wide federal news habeas relief. His first trip son’s There through his death. was also vari- state ended habeas with relief de- testimony concerning 31,1980. month, ous In disparity July nied that same appellant’s public between displays petitioner application filed his first for fed- grief over his petition son’s death and habeas. pending his behavior eral That was when pri- circumstances were more before United District Court for States vate. The jury testimony approximately year also heard one when Texas re- August made clear that a state retained expedition. pre- the Court quested veniremen right exclude were set. The briefing schedules evidentiary hearing, unmistakably (1) made clear requested an who automatically vote request to return petitioner’s November imposition capital punishment was additional claims state court to exhaust regard any without evidence that state. objections over the granted, might developed at trial of the petitioner’s state September On them, (2) before or atti- case their time, denied second application writ toward the death would pre- tude set and his execution was for October impartial making vent them from de- ex- before the scheduled Thirty days guilt. as to the cision defendant’s ecution, petitioner petition filed second 522-23 n. 1777 n. 21 2,1982, federal On October habeas. (emphasis original). denying held a hearing District Court There is inherent in writ, application stay nothing Witherspoon refused explains which failure to accord deference appeal. probable and certificate of cause the trial courts by reviewing court court, 27, 1982, panel On October error. a trial Witherspoon claimed That vote, pending by granted stay, divided decision in a may court’s result death sen- then is review. This appellate full decision tence has not been sufficient to it of strip time a has decided at least fourth court judges all such deference. Trial de- daily were exclusions contested have conspiracies cide whether been estab- Witherspoon. proper under independent by lished of declarations co- statements conspirators, whether were vol- II warnings and whether were untary, given rights Many or understood. trial decisions precedent may suggesting While potential, by lethal yet reviewed require Judge is at least uncertain as “clearly deferential errone- standards novo Randall’s able a de opinion employs ous.” standard of that accords no defer- review its its Despite many applications during judge. by ence to the trial The standard life, fourteen-year there have been few ef which an is too ba- appellate reviews by appellate forts courts confront so on these neatly sidestepped sic to be nor appellate question of the deference due core facts can it be. No decision is a decision excluding a trial court decision veniremen Judge analysis here because Randall’s Witherspoon exam objection. For over inevitably to disclaim touched effort by the Eleventh in a recent review ple, the trial The use judge. deference to error, three Circuit claimed of an device of evidentiary rehabilitation subject in two dissenting judges treated perceived Witherspoon a witness to fill a never mentioned majority but the opinions, hole in dire is illustra- testimony Wells’ voir Alderman v. Aus its standard review. hole ex- supposition tive. such a banc). tin, (11th Cir.1983) (en 695 F.2d 124 (might penal- ists have answered the death now has the question The Eleventh Circuit ty questions despite opposition penal- its en banc court. Darden v. Wain before fueled, part, least in the decision ty) Cir.), rehearing 699 F.2d 1031 wright, trial weight that no is to be accorded the (1983). granted, 699 F.2d 1043 This en banc I we are not judge. persuaded am that light in of the especially puzzling silence is if no trial required proceed as there were requirement of Supreme explicit Court’s here we not. that should of trial courts in mat deference decisions that a was consti- Witherspoon held state For example, point ters of selection. tutionally excluding from veniremen judge’s superior barred trial part in the ing veniremen, expressed reservations about to observe the opportunity trial a penalty, scruples said “the court has or had conscientious Court has time, question the of against duty its At the same serious to determine imposition. 392 bias, broad discretion in its court as an integral

actual and a level of operating an second, challenges justice on therefor.” Dennis v. as rulings system; expression an of 168, States, 162, federalism, comity 339 U.S. 70 United S.Ct. deference owed 521, 519, (1950).1 engaged 734 a state court a 94 L.Ed. federal court review; third, recognition collateral of Texas, 38, Yet, in 448 U.S. 100 Adams v. of superior opportunity an observer of 2521, (1980), 65 581 the Court S.Ct. L.Ed.2d witnesses to their comprehend testimony. statement, its with prefaced conclusion of appellate “Based on our own examination the rec- That simply ignore an court not ord, 12.31(b) we have concluded that the case has been earlier ex- decided § prospective presses part in this applied recognition case exclude the trial grounds impermissible with With- gate. was more than an entrance 49, cases.” at erspoon appellate afresh, and related Id. 100 When an court starts trial is (emphasis added). S.Ct. at 2528 This seem- court’s function reduced to that of not ing inconsistency compelled. collecting opportuni- is That data and providing itself record ty extrajudicial Court examined the is as for an of the resolution with dispute. consistent deferential review Even this function experi- would of ignores review existence ence a expectation reduction in value as judge. legal judicial trial Adams turned on the consequence decision of shifts could, wholly away of whether Texas courts trial py- court. The Witherspoon, consistent with exclude ve- shape present ramidal of our court struc- opinions who ture indisputably niremen had rests on the integrity institutional only affect their answers. It did not trial court as a distinct part present a judge’s justice review of conclu- system. As such review is extended sion that the sum of his upward, only observations of “court” in the last chain testimony veniremen and their was that retains full institutional More integrity. they would automatically nostalgic refuse vote for afoot here than or romantic rever- fact is the ence Finality for trial courts. and all val- has light shed little direct on the ues up implicated. bound in that are precept standard review claimed Witherspoon Review which ignores trial court also error. The language usual of deference is travels the command of 28 U.S.C. conspicuous Equally its absence. con- Mata, 2254(d) as read in v. 449 § Sumner spicuous, however, is the lack of discus- 764, 539, 101 66 722 U.S. S.Ct. L.Ed.2d sion all of appellate standard. , (1981) and the for the sovereignty concern summary, review in Witherspoon cases is of states collateral review of presented by independent precedent but does bar an review criminal convictions. Such attempt develop appellate standard “perplexing given ‘the limited nature of for its exercise. review federal courts 28 provided by U.S.C. ” In the following Austin, examine in functional 2245 Alderman v. 695 § [sic].’ the justifications J., terms 124, (11th Cir.1983) a deferential F.2d 131 (Fay, dis Mata, standard review and v. 449 inquire senting) (quoting Sumner U.S. justifications 541, 101 such apt penal- 766). in a death v. Lundy, S.Ct. at Cf. Rose ty overlapping, case. There are three 455 102 71 L.Ed.2d 379 U.S. S.Ct. distinct, judicial nonetheless fundamental Indeed when other than Wither- policies which spoon a deferential standard is error has been the principles asserted responsive: first, recognition a trial applied Sumner Mata have been Dowd, Brown, See also Irvin v. (8th Cir.1976); 366 81 Govern- F.2d 540 364 Illinois, Gereau, Spies Virgin (1961); 6 L.Ed.2d 751 ment of Islands F.2d 502 914 Palumbo, Cir.1974); (1887); (3d United States v. 123 U.S. 31 L.Ed. Reynolds States, States, v. United (2d Cir.1968); Beck v. United F.2d L.Ed. Taylor, (1878); Cir.1962); United States v. United States v. F.2d F.2d Robbins, Sferas, (5th Cir.1977); United v. (7th Cir.1954); States Bratcher 210 F.2d States, (5th Cir.1974); (4th Cir.1945). United States v. United 500 F.2d 650 Indeed, in death cases. there is review of asserted niremen federal habeas 209, 102 455 U.S. Phillips, the and pattern clarity certainty bias. Smith almost a (1982). 71 L.Ed.2d 78 S.Ct. from response progressing of hesitation — vagueness greater and at the outset toward long courts have Finally, appellate the clarity at the end. comprehension and And judge of the trial recognized advantage ought mental not be a groping surprise. matter when the the truth of a essaying at New citizens chosen random have so manner up are with a witness’s caught facts profound noted, thought through moral and As we and the Su- expression. of a questions implicated by least touched this Wither- Court have ethical preme decisions of trial reviewing base when as to spoon qualification do otherwise. selection, save for judges jury regarding A trial court’s decision to sustain a chal- error, all Witherspoon pro- when we because the venireman lenge cause ceeded in near silence. automatically against vote ideas, these three Nothing teaches presents questions sometimes of central, inapt in death general but in the sense that the trial court must fact high must evoke a cases. That death cases inferences. That permissible choose way scrutiny every level of level in no by opportunity choice is often aided three expressed travels against cannot be made observe and sometimes if we contrary, values. To the believe we opportunity. really without If to ob- judge’s superior opportunity a trial afresh, is wholly mean that the review one a of gives greater probability serve his call the trial telling can wonder if we are person than that a who was being correct make the choice. not to there, why ought it is not then unclear we jury It would seem to follow that selec administering decision in ignore his capital cases presents type tion Witherspoon standard. factual, as and properly categorized decision The of a in a case capital selection a familiar such by thus reviewable standard calls many judgment includes not clearly But it is so sim erroneous. intui- judges judge’s that involve —calls First, recurring difficulty there is ple. venireman, tion about the demeanor of question due a of the deference mixed response, of his appropriateness law and fact. See Pullman-Standard manner, dress, and It is his inflection. Swint, 286 nn. 16 and 456 U.S. of trial court decision with usual stuff 1781, 1790 72 L.Ed.2d 66 nn. and S.Ct. dependent upon calls decisionmaking, more Second, (1982). appellate courts have inde intuition, shrewdness, savvy or courtroom facts.” “ultimate See pendently assessed analogical processes. than Corre- abstract States, v. United Baumgartner pause long need spondingly, one not 665, 64 88 L.Ed. examples of up myriad expression summon Third, not legacy, category, there is a if can determined meaning only whose be of “constitutional fact.” unique review its expression. the inflection and manner of Alabama, 294 See, e.g., Norris v. “I expressions example, simple For (1938). Fourth, L.Ed. 1074 hardly may reckon “I could do so” so” and heightened may express ap doubt. itself demands seen, however, As will review. pellate sum, upon request exclude ruling law termed mixed involves an inter- inevitably a venireman fact, fact, ultimate or constitutional pretation of what was asked answered. demands, fact, and its internal ac despite easily is not con- dynamic trial scene cording the trial court deference not for shaped facili- formed judicially to a mold by independent appellate review bidden targeted level of tate or to achieve a review is, independent That Witherspoon error. lawyers few but accuracy, because perhaps may facts be undertaken fashion, review in such a judges talk and think of trial court discretion. interrogation backdrop of ve- so with the peculiarly 394 mixed

Appellate questions Independent review of of of Witherspoon review deci- part sions is driven questions by.its similarity law and fact and of ultimate fact cases traditionally characterized as mixed by was discussed Court questions fact, of and law in which the The Swint. Court intimated the two engage courts in de novo review without categories may essentially involve the same mentioning particular deference. Of rele- determination, of of whether type legal vance is the Court’s Swint characterization ly determinative consideration “satisfied of why Baumgartner al- Court there by subsidiary by facts admitted found lowed de novo review: trier of at fact.” 102 S.Ct. 1788-89 n. The Court of significance said Witherspoon, 16. Cases similar involving convincing proof clear and standard exclusions for bias resulting of veniremen “would be lost” if the ascertainment pre-trial publicity, traditionally the lower exacting courts involving been characterized as a mixed proof standard of had been satisfied question Dowd, and fact. Irvin law v. the whole record were to be deemed 717, 723, 1639, 1642, 366 U.S. 6 “fact” of the same order as all other (1961); Reynolds L.Ed.2d 751 v. United “facts” not to review here. open States, 145, 156,25 (1878). 98 L.Ed. 244 102 16. Like S.Ct. 1790 n. the clear and For that reason in these cases there is on standard, convincing the unmistakably clear appeal independent evaluation of the pushes reviewing standard courts to inde- testimony. Dowd, voir dire Irvin v. and, pendent rec- Judge review Randall 1642; U.S. at United States ords, with little shown deference to the Williams, (5th v. Cir. course, court. Of deference is not ar- 1975); Wansley Slayton, F.2d independent ticulated with review not does denied, (4th Cir.1973), cert. 416 U.S. mean either that it was absent or that (1974). Yet, L.Ed.2d cit inappropriate. was ing Dowd, Irvin v. we held in United States The character independent of Wither- Robbins, (5th Cir.1974), 500 F.2d 650 spoon explainable review is by also its simi- “rulings on suggestions impartiality larity appellate review of issues termed within the discretion of the trial Alabama, constitutional fact. Norris v. judge, and an abuse of that discretion must Justice Hughes for unanimous ex- be clear.” Id. at 653. See also Dennis v. pressed only not to examine need States, 162, 168, United 70 S.Ct. whether a rule of law has been correctly 519, 521, 94 L.Ed. 734 This combina applied to facts ex- established but also to independent tion of review and deference to amine historical facts-—constitutional judge the trial was evident in United States facts —in certain instances: Taylor, Cir.1977). 554 F.2d 200 We application is of the of [an] there noted that the trial had discre established principle [constitutional] tion to decide whether to excuse a the facts disclosed record. That nonetheless reversed his decision not to do question is one fact does re- Though so. we expressly did not character duty lieve us of the to determine whether our “independent,” ize review as we reex right in truth a federal has been denied. the colloquy amined between the judge and When right a federal has been specially noted that was juror, apparent “[i]t up court, set in a claimed it is judge that juror] extremely was reluc [the province inquire our not merely wheth- tant to sit on jury,” this concluded that er it express was denied in terms but also right trial, to an impartial jury free “[t]he whether it denied in substance and fear, dominated all other considerations.” requires effect. If examination These reviewing cases establish that courts evidence, that examination must engage can in an review independent Otherwise, review made. this Court give weight to trial court simultaneously purpose safeguarding would fail of its decisions. rights. constitutional language sug- clear” 589-90, “unmistakably at 580. Of The U.S. exclude a venireman only a decision to is not a stan- gests Witherspoon course that involve more than can Witherspoon but also a standard of dard for decision histori- of whether established question are based Many trial court decisions proof. standard. Witherspoon satisfy facts cal on a standard or a substan- preponderance disputed resolution of It also include can United tial evidence standard. See States historical facts. Cir.1979) (en James, (5th F.2d 575 catego- to the similarity to its In addition banc). are based on a clear Others courts en- appellate in which ries of cases or a reasonable doubt convincing, beyond review, Witherspoon independent gage on Evidence standard. McCormick See unique its formulation by review is driven clear unmistakably 340-41 §§ an internal standard of a rule that carries Witherspoon apart. sets standard This is true be- review, unique. equally of unmistakably internal to the nothing Yet has two intertwined Witherspoon cause deference to a trial clear standard forbids be analysis separated that can for parts sign internal If there is such court. for decision and labelled as standard In certain opposite in the direction. points part each proof. Although level of required reviewing only way for a instances independently reviewing courts requires objective that the reliably court to conclude testimony in order to de- review voir dire unmistakably of absolute bias was fact each proper, exclusion was cide whether an judg- to the trial court’s clear is- to defer reviewing give courts to also allows part to review To never defer would be decision. ment. judge’s the trial weight to view of to a less than accurate according for decision as a standard Witherspoon This many decisions. the nature of venire (1) the venireman possibilities: offers three to inaccurate deci- inevitably lead to consider the death unwilling must be because trial in the trial courts sionmaking say must that (2) the venireman penalty; to force attempt counsel would judges and penal- the death unwilling he is to consider language and to conform their veniremen he is and be (3) say he must both that ty; cast to the mold thought pattern penalty.2 unwilling to consider Thus, the reviewing judges. of inquiries, factual audience All are at their core three the unmis- appellate decisionmaking If an that accuracy but there differences. of what a venireman inquiry court’s is into would be requires standard takably clear we will be attempted say, believed diminished. transcript. from a judge forced to demeanor in decisionmak- accuracy recognize I said, each court If the is what was If ways. in different can be defined ing The Court has read as well as another. can error, all the defer- minimize goal is to states un- “[ujnless a venireman said for the rea- follows judge the trial ence to he would vote ambiguously that goal only But if the I have stated. sons no matter capital punishment of imposition error harmful any possibility eliminate reveal, it can- might simply what the overall defendants, regard to the without position.” is his not be assumed giving then proceedings, accuracy of 9,n. at 516 Witherspoon, U.S. at the fresh bites wholly two defendants added). The rub is 9 (emphasis at 1774 n. likely to be more apple may in the ambiguous is said can be that what end. have subscribed achieve this Some at trial due to unambiguous record but appel- to the view least in the abstract only part mirror transcript ability must be sentence review of a death late case the Certainly in such a the trial scene. disagree. I imperative. controlled must count of the trial decision judicial of our integrity The institutional something. law, belief, using rather part measure of Wither- not here discuss the do semantically esquisite measures guilt spoon relating decision. than the standard philosophers. objective to learn the truth Of course our system that a line drawn at demands effort was devoted to other than With Thus, example, we point. apply some erspoon qualification. words, In other sev Sykes, 433 Wainwright v. en of the fifteen of transcript volumes re (1977), penal- to death L.Ed.2d port requirements efforts meet Estelle, Bass v. ty cases. See Witherspoon. devoting After one half Indeed, Cir.1983). assertions that a selection, only trial to three of the subjected be to this capital case should level interrogated veniremen now to are claimed scrutiny of absolute little more may be than have been erroneously excluded under to flanking opposition penalty the itself. Witherspoon3 Witherspoon, Yet when it comes to the ar- Charles D. Wells is a minister. After gument ought that courts becomes to be to testifying open that he mind had an willing error if on the to find based record case, guilt or in innocence the he was asked: any scenario can be hypothetical construct- Q. begin Let me by asking you then ed, regardless of the trial court’s finding you whether or not any have conscien- correctness, probability of its in tious, religious moral or scruples potential which the was not inalter- of against imposition penalty ably opposed imposition to of the death death in the electric chair? A. I say morally, do, Let me that I An proof extreme standard of coupled capable issuing don’t think that I am with a calling standard decision for an of death penalty any man. extreme level of stated partiality requires He was further by prosecutor: asked reviewing courts to freshly make the With- Q. you imagine yourself doing But can’t erspoon time, At decision. the same both correct, it as of those jurors, one is that of proof standard and nature of the sir? venire against decision itself counsel a total ban of hardly it, deference to such court A. I see myself doing yes. deci- can considered, sions. All I persuaded am that Q. Now, All right. you I don’t want independent appellate by review a standard get angry with me and I’m not trying of abuse of discretion responds con- argue you, with I have to ask cerns of Witherspoon expressing while answer, you your lady for because this values of comity respect and of for trial taking your down testimony with integrity its sometime superior time record. opportunity for accurate decisionmaking. I take it then from answer your that Independent review is an understandable of your religious because and moral expression appellate courts’ reluctance to principles you feelings that cer- tie their in hands advance when the stakes have, tainly you entitled to cannot are so high. Here an abuse discretion you a case imagine where would vote standard will allow reviewing courts free- imposition of death the elec- dom to correct asserted error correct, tric chair. Is that sir? without dilution of its demanding standard No, A. I can’t. while giving weight to the trial court’s deci- by He was then asked the court: sion as warranted the circumstances of Q. you you if personally, Would were the particular case. of a jury, you member would automati- against cally imposition vote III. penalty no matter what the trial I turn specifics now of the error revealed? claimed in the exclusion of veniremen Yes, A. would. I Wells, Bowman and Fully Pfeffer. one- Q. All right. half of the effort in the trial court was devoted to the selection of a Little of A. vote it. jury. would relating Appendix Judge opinion. transcript to their selection is set out in the Randall’s have trouble juncture, indisputably Q. any Wells And wouldn’t At this was conscience, would it? your Witherspoon. excludable properly unequivocal, direct and No. His answers were A. prose- response questions by

both anoth- Q. Then course there be Then, would whether response question, and the court. er and that cutor counsel, there is defendant plain probability he made by defense questions criminal acts violence would commit were not made that his earlier answers a continuing would constitute pull he would assumption personally Now, pos- threat to society. you could something.” Otherwise stat- switch “or question? answer that sibly ed, causing explained Wells had Yes, I possibly could answer A. an indirect manner was question. He then asked equally abhorrent. Q. you quarrel And would counsel:

defense any problem questions? with those then, finding Q. right. All And after a A. I don’t think so. one, ques- is certain guilt, if there Q. right. you All And if answered those submitted to as you tions will be course, up it questions, of wouldn’t be Now, this juror. you saying are do this you anything to to defendant. circumstances, no re- time that under are merely questions you Those that testimony what the would gardless of answer the Court. Isn’t that cor- be, you under no circumstances could (Emphasis supplied.) rect? for penalty? vote the death I would say yes. A. there that I I don’t think are A. that, Q. you do sir? Could penal- could vote the death possibly the answering A. I could as liberal ty- as I could. questions juncture, the minister remained At answer Q. you ques- And would those were that there unshaken his statements truthfully, you tions would not? which he could vote no circumstances under Yes, as are con- my opinions A. far as Defense counsel penalty. cerned. re- following questions asked then minister, you’re you I know are Q. following ceived the answers: not? this, sir, if Q. All Let me ask right. you Yes, correct. sir. That’s A. even juror, selected as a you were you ques- answer those Q. And could has for the though the asked State your ability to the best of tions these you death could consider penalty, truthfully, you not? could two I’ll ask the issues you issues—and Yes. A. you perhaps that would be asked Wells told that no time was Reverend At right? consider. All questions would answers affirmative A. All right. imposition compel Q. All The first issue would be right. asked whether he contrary, he was To whether the conduct defendant or quarrel any problem “any would have death of the deceased that caused the explanation with the questions,” with those and with deliberately was committed you that “[tjhose merely questions that expectation the reasonable Court.” answer or would another death of the deceased because record suggested It is ques- result. answer that you Could reflect that Rever- affirmatively does all the tion, sir, gotten had you after effect of did not know end Wells facts? be a questions answers these would Yes, yes. A. sentence, unmistakably it is not clear right? Q. You that all could answer Witherspoon. disqualified that he was proceed argument upon does this only Not A. Yes. plain pushed that Wells knew effect assumption judge an record is trial It is that the question, opinion. equally plain answers to the for an of affirmative record, pushed in particular it no di- unsupported by the assumption counsel rection. the fact that defense told ignores were “merely questions him that these Wells, Pfeffer knew the effect of Unlike to the court.” It makes all you answer also In re- answering sentencing questions. It testimony virtual nonsense. is his other sponse questions by defense to wheth- Wells, despite his that Reverend suggested sentencing questions “pose any er the would he could not vote for the death view that you,” problems answered: might yet have been of the view penalty, would, it it A. I think because would could answer the death that he a direct bearing on the outcome unsup- questions. Apart being talking what we’ve been about anyway, ported hypothesis, supposition direct- Judge ago. with minute testimony with his that he ly inconsistent Well, be, Q. my question could see as one of “doing could not himself it” could you you ques- not answer that jurors. He was asked and answered as tion, sir? follows: Well, I A. would have to I couldn’t. say But can’t Q. you imagine yourself doing already I made the a mo- statement correct, jurors, as one of those ago. ment sir? colloquy among After a counsel and the it, hardly myself doing yes. can see A. court, put defense counsel the final Indeed, the witness angry became to Pfeffer follows: suggestion even the that he so vote. could Q. Harrison) Then, Mr. under no (By who, may persons although op- There circumstances, Pfeffer, you Mr. could

posed to the death answer penalty, could voting answering even think of the questions, impose effect of which is to questions if those the result those reading penalty, only a tortured to, effect, give were to be in questions transcript supports finding this that somebody the death Is that Wells was that explaining Reverend he was correct? persons. those one of that’s present A. I think time correct, yes. Pfeffer is a paradigm L.R. of veniremen in cases. His capital responses ques- his initial confusion and uncer- Despite tions counsel at the and court were out- Pfeifer’s a whole tainty, testimony read as set, to the extent they intelligible, would unmistakably makes clear that he The equivocal. prosecution was able to elic- automatically against penal- vote intelligible responses only difficulty. judge’s ty. suggested It is that the trial with a confusing Faced confused ve- and upon an answer somehow taints insistence nireman, the court learn attempted to Pfei- responses. judge Pfeifer’s The trial told volunteered, opinions. fer’s Pfeffer “I only he knew the answer to Pfeffer that know would like direct but this you answers point At that Pfeffer had questions. best I can is a vague do and this It done more than think aloud. was little The trial explained answer.” Pfef- suggested framing first his Pfeffer who he only opinion. fer that knew his Pfeffer yes gratui- in or no terms responses then, stated “if I have a to make choice that “if I to make a tous statement yes no, and I say between I would no, yes say I would I choice between judgment.” junc- couldn’t make a this At judgment.” make a The trial couldn’t ture, equiv- had progressed lead, put Pfeffer following Pfeifer’s judge, opin- ocal to a clear or no position yes difficulty terms. The expression certain, however, response certainty ion. His became terms philosophical is that in he vote only pushed by automatically as was the trial one give other. The in all cases has an internal opinion penalty one or the way in then used it to a framework for certainty provide There is no finite continuum. given every op- The witness was thought. Pfeffer response. one’s future predicting After the explain his answer. portunity certainty by level of translated his own exchange or no he was cross-examined yes would be if he what his answer stating responses were by defense counsel. argument in the Implicit must answer. That unmistakably then direct and clear. does not allow one exchange exchange may or no have been yes partiality absolute conclude that Pfeifer’s grasp catalyst progressive Pfeifer’s clear is that the no an- unmistakenly express his own views is no ability range uncertainty expresses swer There was no error in the exclusion. vice. under Wither- acceptable the level exceeds stated, argument spoon. Otherwise Bowman, response Mr. B. Finally, Gus through yes views extruding juror’s his beliefs questions regarding to the first the uncer- does not resolve or no channels regarding capital punishment, stated: Ac- expressed. that Pfeffer earlier tainty Well, I’ve never about it un- thought A. that a premise for now the cepting into this yesterday til I was called who after voir dire who has no view or Court. cannot be excluded on remains uncertain thereafter, explained: he “I doubt Shortly grounds, persuaded I am pen- I assess the death very seriously could Pfeffer left the stand had sorted when give I could him life or some other alty. and made a decision. his views I think in that I penalty, my but don’t mind responses note that Pfeifer’s were be- prosecu- him death.” The could condemn the trial themselves when coming questions the next with Bowman question, tor asked inquiry to Pfeffer de- judge redirected answering as follows: It suggest response. clining, properly, Q. Certainly many people do not believe himself, Pfeffer was then that penalty, many people or no strainer judge, yes reached for in the death be- who believe question. Significantly, and answered the they lieve in it but think that could not stop yes record does not with the or no others, while do it themselves. And probed Defense counsel Pfeffer question. might general objections not have into preface by inquiry without such a it, not assess or consider as- could sentencing whether he could answer themselves. sessing penalty the death I out. questions. exchange This have set I answer that in by your And take it following question It concluded with case, no how serious it every matter and answer: was, you juror automatically as a could pen- exclude consideration of the death Then,

Q. Harrison) Mr. under no (By in case turn to alty every and would circumstances, Pfeffer, you Mr. could wheth- punishment, some other form of voting answering even think of or or years er it be life confinement or 99 if the result of those questions those whatever? to, effect, give to be questions were somebody the death Is that A. I think that’s true.

correct? candor, your Q. Okay. appreciate We challenge Mr. Bowman and we would present I think at the time that’s A. for cause. correct, yes. cross-examination, Bowman response because it evi- sequence important This only that he could consider testified character of Pfei- progressive

dences “it closer to home.” He penalty if of certainty fixity opinion. fer’s level of meant that if a mem- explained by that he not, sugges- contrary petitioner’s We are family of his were a victim. ber tion, an answer forced rely upon forced to require Pfeifer’s does not that exclu- Witherspoon no to decide through yes gates or veniremen who who be limited to would a venireman sion view. Instead we have against penal- vote death automatically and a court device reached for that ty in conceivable case. Williams v. every Circuit decisions this area are becoming Maggio, (5th Cir.1982) (en 679 F.2d diss.ent, confusing and This inconsistent. denied,- U.S. -, banc), cert. therefore, argues that the should ex- Rather, 77 L.Ed.2d pressly hold: Witherspoon allows the exclusion those (i) that will same apply it standard automatically vote veniremen who would review cases that it Witherspoon regard penalty “without does corpus in other matters— habeas to any might developed evidence that be and, contrary to Judge opinion, Randall’s the trial of the case before them.” 391 U.S. will not conduct a de novo review to n. 522-23 n. at 1777 21. The jurors determine whether were improper- will is entitled to consider ly excluded because of “conscientious based on imposing scruples” against the penalty; evidence in the case before them. See Wil (ii) will, therefore, it give defer liams, at 386. Bowman without ence 2254(d) under 28 to specific U.S.C. § absolutely incap been findings credibility of fact and determi able so in this Thus doing ease. he was nations concerning made state courts properly excluded. jurors exclusion of under Wither- With each of these the trial judge that, spoon contrary Judge Hig 1—but asked, had a view superior of what was ginbotham’s opinion, no such deference answered, and understood than do we. Af- will judge be accorded if the trial did not ter independent review of the claimed er- express make factual credibility or deter giving weight presence rors and minations, and merely concluded without am judge persuaded that his explanation was properly decisions were reasonable constructions of excluded; testimony no abuse of discretion (iii) will, course, make an has thus suggest- been shown. The doubts “independent review” ed state court by the dissent and worried over Judge just record opinion Randall’s as it largely spun cases— does supposition. factual in other habeas supposition corpus That matters in- proceeds volving as if there judge, was no trial fundamental constitutional is- sworn as to apply Witherspoon. we But sues —to determine if it “unmistakably there was. jurors were, not, clear” that were im- properly Witherspoon; excluded under BUCHMEYER, Judge, District dissent- that, (iv) if this is “unmistak- ing: ably clear” from scrutiny” the “close My is presumptuous. dissent record, the state court then the case will just as in other habeas cor- A district who has never remanded — be —one pus matters —to the federal district court fore case, considered much evidentiary hearing to determine less the frustrating problems under Wither jurors not or were improperly spoon Illinois, v. 391 U.S. 88 S.Ct. excluded under Witherspoon. 20 (1968) L.Ed.2d 776 urging this Court —is to make it just clear” “unmistakably what Indeed, Fifth approved just Circuit standard of review the Fifth Circuit will “Witherspoon such a evidentiary hearing” apply in involving future cases by a district federal court Jackson v. Witherspoon challenges. Beto, Cir.1970)(the (5th 428 F.2d 1054 state prosecutor, In the state years Witherspoon, judge, fifteen since and the And, this has been jurors done. the Fifth excluded testified this hearing).2 banc, pending pending rehearing 1. This issue is for en banc determina- en 699 F.2d 1043 (1983). by tion the Eleventh Darden Circuit. v. Wain- wright, (11th Cir.1983), 699 1031 F.2d vacated 2. Recent Fifth Circuit decisions have not even question evidentiary considered the of whether done, Holman, or if the district court 394 U.S. not determines in Boulden Similarly, 1138, 1142, meaningful Witherspoon hearing 484-85, 22 L.Ed.2d that 89 S.Ct. conducted,6 then the case must be cannot be Bishop, Maxwell v. (1969), the state courts reversed and remanded to 1578, 26 (1970), 262, 90 L.Ed.2d solely for a new trial cases to federal remanded Supreme Court at 523 punishment. Witherspoon, 391 U.S. hearing direct for a “further district courts n. at 1777 n. 21. might issue” which Witherspoon ed to ] [ some fashion modify in “conceivably I. Witherspoon Issue by the strongly suggested so conclusion were im record” that the federal Judge Randall is correct court] [state excluded.3 properly stated what expressly courts “have never Witherspoon the standard of review of of ha- principles these standard Applying for feder- challenge petition should be” in case, this Court present beas review to the corpus al habeas relief under U.S.C. to the federal reverse and remand should However, erroneously con- 2254. she § hearing evidentiary for an district court and the cludes that both the Wells— exclusion of Juror concerning the engage in a “appear lower federal courts automatically vote the minister who would Witherspoon challenges” de novo review of who could penalty, but deference to fact find- giving any without statutory the two truthfully answer And, the state court.7 she ings by made because the trial penalty questions (i)— conducting errs in such a de novo review in findings fact specific made no this case. concerning his credibility determinations should, fact, Witherspoon challenges exclusion,4 because, Judge Ran- (ii) standards of re- subject very same holds, it is not clear from the state dall also to other constitutional applied view that whether Wells “could and record federal presented by petitions issues questions statutory would answer the two relief. This conclusion is demon- habeas explained if someone had to him truthfully” following summary of: by strated answers could “what the effect of those reasons, re- (i) corpus the case should be standards of habeas be.” For similar hearing findings credibility con- of fact and evidentiary remanded for an view of However, courts and the by if this is state cerning Juror Pfeffer.5 determinations Bowman, Judges hearings appropriate I concur with Wither- 5. As to Juror should be held on below, “unmistakably Higginbotham; spoon challenges. it is a With Randall and As discussed evidentiary hearing erspoon in the federal dis review of the state court record clear” from the as the one conducted Jack was not in violation of trict court —such alone that his exclusion Beto, have avoided Witherspoon son v. 428 F.2d 1054—could v. Illinois. inconsistency some in Fifth Circuit Wither- spoon example, decisions. For contrast Gran Estelle, F.2d Martin v. 6. See Esteile, (5th 1981) with viel v. 655 F.2d 673 Cir. 1978) (if meaningful retrospective (5th “a Cir. (5th Cir.1982) Maggio, 679 F.2d 381 Williams conducted, hearing competency then cannot be denied,- U.S.-, (en banc), cert. course, issue”); Ey Hart v. the writ must 77 L.Ed.2d 1399 man, Cir.1972) (habeas (9th claim 458 F.2d 334 confession). of coerced Lucas, Gray v. 1096- 3. See also Cir.1982) (the (5th prosecutor and the finding, Judge also errs in in her Randall attorney testified at a evi- defense Pfeffer, analysis exclusion of Juror dentiary hearing the federal district before simply can focus on one this de novo review Beto, court); Marion 434 F.2d 29 Cir. given response ultimate conclusion” — —“the evidentiary hearing 1970) (Witherspoon held considering during Wither- voir dire. In court). state district spoon challenges, the voir dire examination entirety. in its Williams v. must be viewed judge merely “I’ll sustain 4. The state concluded 381, Maggio, does not hold to the 679 F.2d by prosecutor to excuse the motion” made Estelle, contrary. Porter v. 709 F.2d 944 See Transcript (2 Juror cause Trial Wells for Wainwright, (5th 1983); v. 707 F.2d at Witt Cir. 717, Balcom, 771). 531 F.2d See Mason v. 1208-09. (5th Cir.1976). 721-23 402

deference that must be accorded to Sain, them narrators.” Townsend v. 372 U.S. 293, 28 2254(d) 745, U.S.C. (pages (1963), § 83 9 402- S.Ct. L.Ed.2d 770 ; 403) Allen, 443, 506, quoting Brown v. 344 U.S. 397, 445, (1953) (opin- L.Ed. 469 (ii) the standards for evidentiary hear- ion of Mr. Justice Frankfurter); Mason v. ings findings and fact by federal district Balcom, Cir.1976). 531 F.2d 721-23 courts habeas matters (pages 403- Thus, if a state specific court has made ; 404) findings of fact or credibility determina- (iii) the application these standards tions, these are binding upon a federal court “presumption and the of correctness” un- subsequent in a proceeding habeas unless 2254(d) der to review of Witherspoon § the federal court concludes —not with a (pages 404-407); challenges dismissal, “boilerplate” but with “some rea- soned written 2254(d) references to § (iv) types Witherspoon cases findings” state court the findings —that evi- by that can —and should —be resolved credibility or determinations are er- clearly in the federal dentiary hearings district Mata, roneous. v. Sumner at 549- U.S. courts, cases supporting and the the con- 770-71; 101 S.Ct. at Phillips, Smith v. Witherspoon evidentiary clusion that such 209, 218, 940, 946, hearings are proper (pages 407-412); and L.Ed.2d 78 (v) principles of these application course, Of this does not mean that total present (pages in the case to Jurors Wells deference must be accorded to state court 414-416). 412-414) (pages and Pfeffer findings. Eight exceptions “pre- sumption of correctness” are listed in

Habeas Corpus “Findings” Review: 2254(d); the ones most relevant to this § by State Courts case and other Witherspoon challenges are: “(1) that the merits corpus all habeas of the factual dis- proceedings institut- pute were ed not resolved in the by prisoners under 28 State court U.S.C. hearing; the federal district appellate § courts are bound by provisions of 2254(d) provide, substance, § —which (2) that factfinding procedure em- findings of the state court “shall be ployed by the court State was not ade- presumed correct,”8 to be and that peti- quate to afford a full and hearing; fair tioner has the burden of establishing that (3) that the material facts were not the factual determinations of the state adequately developed State court are “clearly erroneous.”9 Sumner hearing; Mata, (1981);

L.Ed.2d 722 Asper Estelle, (5th Cir.1983). F.2d 356 (6) that the applicant did not receive a full, fair and adequate hearing in the The “factual determinations” covered court proceeding;” State “basic, 2254(d) are primary or historical § facts: facts in the sense of a recital of Accordingly, no “presumption of correct- external events and the credibility of their ness” 2254(d) is due under if the state § statutory 2254(d) 8. The state court’s factual language determinations must 9. The of § —that finding, petitioner be “evidenced a written written must establish that “the factual opinion, adequate fairly supported by other reliable and written determinations are not presumption indicia” be entitled to the record” —has been held to be “the same as the 2254(d). transcript ‘clearly employed correctness under § erroneous’ standard in feder- appellate findings voir dire examination in the state court al review of trial on constitu- requirement Austin, criminal trial satisfies this in fed- tional facts.” Alderman v. 695 F.2d involving (5th Cir.1983) eral (en banc) (Fay, J., habeas cases 132-33 challenge. Estelle, Grigsby dissenting), quoting Wright See 500 F.2d 394 v. State of North (5th Cir.1974). Carolina, (4th Cir.1973).

403 cide whether of law any specific court does not make fact find the conclusions reached ings or determinations —or if the state credibility by Cuyler court are erroneous. v. Sullivan, 341-42, record because material incomplete is 446 100 at S.Ct. at U.S. 1714-15; fully adequately facts and devel Balcom, were at Mason v. 531 F.2d 722 oped hearing. at state court Mason v. n. 10. 721-23; Balcom, at White v. Fink 531 F.2d However, has if the state court not con- beiner, 194, Cir.1978). (7th 201 570 F.2d a full if hearing, ducted and fair or due to conclusions of Nor deference material adequately facts were not devel- Sullivan, Cuyler law court. v. by a state oped, or if the not make any state court did 335, 341-42, 1708, 446 100 S.Ct. 1714- U.S. credibility factual determina- findings or And, 15, 64 333 where the L.Ed.2d tions, hearing then an must be evidentiary the habeas issue corpus resolution of by held district court. Mason v. federal of fact and presents a “mixed Balcom, 721-23; 531 F.2d at Carroll v. law,” of correctness under presumption Beto, (5th Cir.1970). 421 As F.2d 1065 stat- 2254(d) findings “specific apply does § Texas, ed in Martin 694 v. F.2d State specific credibility and to historical facts” 423, (5th Cir.1982): 425 by made a state court —but determinations petition alleged “Had Martin’s facts it does not to the conclusions of law apply contradicted the record of the trial or by reached the trial court the mixed by subsequent an hearing, state evidentia and law. question of fact Townsend v. ry hearing in court would the district Sain, 293, 309 6, 745, 755 n. 83 372 U.S. Smith, unnecessary. v. Mack 659 See 6, (1963); Lee Hopper, n. 9 L.Ed.2d 770 v. 23, 25 (5th Cir.1981) (§ case). F.2d 2255 Cir.1974). (5th 499 F.2d 462 However, petition corpus when a habeas alleges er in state pro facts not resolved

Evidentiary Hearings Findings by that, ceedings if proved, District Courts entitle Federal writ, Habeas Matters him to is entitled to an Estelle, evidentiary hearing. Rummel v. corpus proceedings all institut- habeas aff’d, 103, 105 (5th Cir.1979), 590 F.2d 445 by ed for federal prisoners state habeas L.Ed.2d U.S. relief, and, court the district subse- first — ” 425.) (1980) (694 . ... F.2d at quently, appellate the federal court —must “closely scrutinize” the state record to de- course, district Of once a federal termine or not an evidentiary hearing in a habeas evidentiary holds Sain, hearing held. Townsend must be v. given must be proceeding, deference 312-316, 83 at S.Ct. at 756-58. U.S. credibility fact and de- findings court’s terminations; not be set aside they “shall hearing If a fair has held full and been erroneous.” Fed.R.Civ.P. clearly unless by by court on the issues raised 641 at 52(a); Hall 697 F.2d Maggio, v. the habeas “either the time of petition Cir.1983); Beto, 446 F.2d (5th Carroll or if proceeding” in a collateral —and However, (5th no deference Cir.1971). the merits of these issues been re- if the court has made is due federal district findings fact by specific solved credibil- credibility deter- specific findings no fact or of the state court —then ity determinations minations, has the trial court reached if no dis- hearing required federal erroneous conclusion of law.10 Jurek v. Sain, trict Townsend v. court. Estelle, (5th Cir.1980); 623 F.2d 931-32 312-15, The “presump- at 756-57. Louisiana, 478 F.2d 1031-32 West applies tion of these factual correctness” (5th Cir.1973), part, in relevant affirmed determinations credibility Cir.1975) banc). (5th (en F.2d 363 Fi- federal courts then de- 510 2254(d), and the § position clearly apply review the evidence as the erroneous rule same Nor does Estelle, drawn Court below.” 957-58; Jurek F.2d at respect inferences the trial Estelle, documents, transcripts, Nash v. and undis- court from Cir.1979). puted the Fifth “in the where Circuit is facts 404 required peti Estelle, 56, (5th is on the

nally, hearing if a Moore v. 670 F.2d 57 Cir. Or, possi 1982)11 may tion for habeas relief —but if it is not the record reveal meaningful hearing jurors ble for a to be held— numerous were be- merely excluded corpus habeas must be cause they scruples then the writ of had “conscientious Lucas, granted. 677 F.2d at 1097 Gray penalty,” Witherspoon Illinois, 510, (Witherspoon challenge alleged ineffec 391 U.S. 88 20 S.Ct. counsel); tive assistance of Martin v. Es L.Ed.2d or merely because their delib- telle, (5th Cir.1978) 583 F.2d 1374 erations might be “affected” their feel- trial); Hart v. (competency Ey ings to stand about penalty, Adams v. man, Texas, (9th Cir.1972) (habeas F.2d 334 U.S. confession). situations,

claim of coerced L.Ed.2d 581 In these no evidentiary hearing necessary; jurors Corpus Habeas Review of improperly were excluded under Wither- Challenges spoon, and no deference is due under 2254(d) to the state court’s incorrect legal § “Witherspoon exception” There is no conclusions. 2254(d). 28 U.S.C. § Similarly, the “close scrutiny” voir concerning The standards habeas corpus establish, dire may examination without review and evidentiary hearings ap —which more, that jurors were not ex improperly ply every type other of issue raised Witherspoon. example, cluded under For it petitions for federal habeas relief filed by may be “unmistakably clear” that the chal prisoners in death penalty cases— lenged jurors stated unequivocally should apply equally a habeas claim that they could never vote for the death penalty jurors were improperly excluded under Ohio, circumstances. Lockett v. Holman, Witherspoon. See Boulden v. 586, 595-96, 2954, 2959-60, 438 U.S. 98 S.Ct. 484-85, 1142; at Jackson v. (1978); Estelle, 57 L.Ed.2d 973 Porter v. Beto, 428 F.2d 1054. Specifically, a Wither- (5th Cir.1983); F.2d 944 at 948-49 Bell v. spoon challenge requires the federal courts Watkins, (5th 692 F.2d 1006-08 Cir. to make an “independent review” of the situations, 1982).12 In these evidentiary no state court record to determine whether an hearing is necessary; were not im evidentiary hearing necessary and to de properly Witherspoon, excluded under termine whether the state court has made 2254(d) (or no deference is accorded need § findings or credibility determinations given) legal to the state court’s correct given must be 2254(d). deference under § conclusions. Sain, Townsend v.

at 758. However, independent review may simply establish that state court record (i) The independent review is not clear. From the answers given by This review may jur- dire, alone establish that challenged jurors during voir it ors were improperly excluded under With- may “unmistakably not be clear” whether erspoon. For it example, may were, not, be “unmis- they improperly or were excluded takably clear” from the state situations, record that a under In these Witherspoon.13 who, despite excluded her scru- an evidentiary hearing may may not be ples against capital punishment, necessary depending upon could set — feelings these truthfully aside and answer state court made specific findings of fact or determinations, statutory penalty questions. credibility or whether Austin, cally inability 11. See also Alderman v. 695 F.2d stated their to consider the death (three jurors unequivocally they Beto, penalty”); stated Marion v. 434 F.2d 29. penalty, could vote for the death but that sign foreman). would not the verdict as 381; Maggio, 13. See Williams v. 679 F.2d Gran Estelle, 673; Estelle, viel v. Burns v. Maggio, 12. See also Williams v. 679 F.2d 381 Cir.1980) (en banc). 626 F.2d 396 (two jurors “unequivo- challenged of the three concluded, merely explanation, without terial facts concerning juror’s exclu- the jurors were excluded. properly sion were not adequately developed. Ma- Balcom, 722; son v. 531 F.2d at White v. (ii) Specific findings or mere conclusions Finkbeiner, 570 F.2d at 201. As the level of Witherspoon frustration These principles are by illustrated Mason increased, has so have arguments by differ- Balcom, v. (5th 531 F.2d 717 Cir.1976). ent Fifth judges Circuit that some defer- There, the petition for federal habeas relief ence must be accorded to the state court’s under 28 U.S.C. 2254 alleged ineffective § “findings” were properly ex- assistance of counsel. This was “a mixed cluded for cause under Witherspoon14 question law,” of fact —but and so the “presump- none of arguments distinguished these tion of correctness” 2254(d) applied under § between specific credibility factual and de- only “specific historical by facts found terminations and mere conclusions gener- (such habeas court as what an attor- Balcom, al rulings.15 Mason v. 531 F.2d ney actually client)” did for his did —but 717. The Witherspoon resolution of a chal- not apply legal conclusions to be lenge presents “a mixed question of law drawn from (531 these facts F.2d at 721- fact,” not question and unlike the mixed of 22). Accordingly, this held Court law and fact presented by a habeas claim of proper was not to give 2254(d) deference § “ineffective assistance of counsel.” Mason to the state court’s “mere conclusion” that 721; Balcom, v. 531 F.2d at Martin v. State petitioner Mason effectively had been rep- Texas, Therefore, 694 F.2d at 425 n. 3. resented by attorney Watts: review, under correct standards of a federal “The District Court found that the fac- Witherspoon confronted with a issue: tual determinations of the state habeas (i) by is not bound purely legal conclu- court were inadequate fairly and not sup- by sions reached the state court. Cuyler ported by fact, the record.... In Sullivan, 341-42, v. at state habeas court in this case really did at 1714-15. not make any factual purely findings (ii) give must deference under which the District presume Court could 2254(d), to any specific findings of fact § be correct.16 It merely found —or more or credibility determinations made by the properly, “concluded” —that counsel had Mata, state court. Sumner v. 449 U.S. at not been ineffective. Since the state ha- 549-52, 101 S.Ct. at 770-71. beas court any separate, did not make (iii) but apply need not any “presump- purely findings factual of fact concerning tion of 2254(d) correctness” under if the representation § which attorney Watts the state court did not make any specific client, findings afforded no such were factual or determinations, credibility or if available for the District to rely the record is incomplete because the ma- properly and District Court conducted arguments See, Judges e.g., 14. These have been made the remarkable deference Tjoñat, Fay Austin, Roney Alderman v. and in would be accorded to mere conclusions Wainwright, judge Darden v. (5th Cir.1983) (en banc) state trial in (Tjoflat, F.2d (11th Cir.1983), pending vacated F.2d 1031 dissenting part 126-27) (Fay Roney, at and banc, rehearing en 699 F.2d 1043 by Judges Reavley dissenting 128-34) at ... Fay Estelle, (5th in Burns v. and 626 F.2d 396 16. Mason v. Balcom also holds: “While the Cir.1980) (en banc) (Reavley Fay, concur- did state that he credited state habeas ring 398) perhaps by Judge Hill ... and attorney testimony Mason’s, Watts’ rather than Austin, (5th Alderman v. 663 F.2d 563 n. 5 actually Watts did not remember Mason and Cir.1981), affirmed, (5th 695 F.2d Cir. only general testified as to his custom and 1983) (en banc). Judge See also Kravitz’s dis- practice representing court-appointed Balkcom, McCorquodale sent any case, the District Court was not clients. J., Cir.1983) (Kravitz, 1561-64 dis- required credibility to strain to transform this senting). Judge majority opin- But see Clark’s findings binding choice into a set of of fact Balkcom, McCorquodale ion in 705 F.2d at upon (531 9) (emphasis it.” at 722 F.2d n. 1556 n. 9. added). case, (531 answer- evidentiary hearing.” finally F.2d some “hideous” its own 722) added).17 re- (emphasis ed that she did not “feel” she could facial turn the death From her review of a in the Similarly, expressions, from her demeanor and correctness” “presumption of challenge, the indeed, her indignantly tone of she 2254(d) apply specific should voice— § “I I can do spat out words don’t think credibility fact and determina- findings of return that” when asked she could ever if should be accorded no deference tions —but positive a death from her verdict —and to a mere conclusion Balcom, resounding Mason v. excluded. “no” to the properly See 722; Finkbeiner, penal- 531 F.2d at White whether she could return the death trial example, For a state F.2d at 201. ty, it is clear to me that she would auto- factual and credi- judge specific could make penalty vote the death 'matically concerning juror bility determinations in all cases.19 the truth or the telling who not be may It that such fact find specific is obvious words like “I don’t think so” juror who uses must be ings credibility determinations in the voir dire equivocal may appear 2254(d). deference under Not to do given § transcript: has so would be absurd: the trial credibility find specific made factual and juror lying juror’s of the ings upon based observations stated that she Juror Drew first was demeanor, observations that cannot be re punishment, morally opposed capital record; produced appellate in the cold later said she could vote to convict transcript accurately cannot reflect typed sentence him to the defendant and death. juror’s true all-too-typical vacillating However, her demeanor and from feelings penalty; about the death and the the tone of her voice when she tried to be printed page may words on the not reveal convincing saying put she could aside juror’s are patently answers it scruples against penalty, her the death addition, false. to Wither- responses is clear to me that she could not vote to voir dire “are often spoon questions during Indeed, impose ap- the death fraught ambiguity”; because of the she is out of pears lying perhaps — voice, expression “tone of the facial and the conviction —in order to deep some moral juror, simple ‘yes,’ even a demeanor” juror sit as a in this case and “veto” the written although appearing on cold record if the should penalty even evidence clear, in a manner crystal can be delivered warrant it.18 McCorquodale doubt.” v. conveys J., Balkcom, (Kravitch, at 1561 705 F.2d juror the “I don’t think so” dissenting). Juror Brou said “did not first she findings of fact and Accordingly, specific think” she could return a verdict state courts in credibility determinations death, caused the defendant’s then said cases must be accorded “positively” say that she couldn’t that she 2254(d) under impose could not of correctness presumption § Finkbeiner, is, course, upon example 17. See also White v. 570 F.2d at 18. This based (state merely 201 court “concluded” that con- unanswered in footnote 5 in Alderman voluntary, specific Austin, fession was but made no F.2d 563 n. 5. v. 663 therefore, findings; “presumption no of cor- 2254); proper rectness” was under Jurek v. § is, course, example upon 19. This based Wil- Estelle, (absence any specific 623 F.2d at 929 Maggio, liams v. 679 F.2d 563 at 385. The trial findings credibility fact or determinations judge might contrary findings have made evidentiary hearing federal district court after demeanor, credibility if the determinations tone 2254); petition relief under § for habeas voice, juror of the “I don’t think so” had etc. States, F.2d 360 Hart v. United 565 Cir. Estelle, been different. See Granviel v. 655 1978) (failure to make of federal district F.2d 673. case). specific findings 2255 § dire, as, areas of voir trial a finding challenged, in other can still be but such —just discretion in judges challenge analyzed are accorded broad under the abuse of Irvin v. evaluating juror impartiality. (608 638).20 See discretion standard.” F.2d at Dowd, 366 L.Ed.2d Martinez, also United See States Taylor, (1961); United States (5th Cir.1979) (there may be situa- (5th Cir.1977); United F.2d States tions “where the trial judge spell must out (5th Cir.1974). Robbins, F.2d findings with adequate specificity for However, may meaningful appellate review”). the state court record or findings contain fact credi- any specific Moreover, general ruling by Instead, bility determinations. juror qualified” court that “the is not is no concluded that the judge may merely different than the mere conclusions that excluded, expla- without juror properly “the effective petitioner received assistance general ruling, and with a such as: nation counsel”, Balcom, Mason v. 531 F.2d at cause,” or “The juror “The is excused for 722, or “the confession was not juror state’s motion to exclude this coerced”, Finkbeiner, White v. 570 F.2d at “This is not granted,” cause is Therefore, general rulings such —un- The trial qualified Witherspoon.’’ fact supported by any specific findings or judge may compliant have decided determinations —are not credibility entitled “I juror was or that don’t think lying, to a of correctness” “presumption juror opposi- so” had expressed unequivocal 2254(d), nor is a “required federal court § However, tion to the death there to strain to transform [such conclusions] way appellate no for an court to simply findings binding upon into a set of of fact if findings they review these determine —to Balcom, it.” Mason v. 531 F.2d at 722.21 or if the trial court clearly are erroneous abused its discretion —since there are no Witherspoon Evidentiary Hearings in the specific express findings record. however, mean, every This does not situations, analogous In this Court has not Witherspoon case must be reversed and re- require hesitated to “on the record” find- punishment for a new trial if there manded when to a ings necessary proper specific credibility are no factual and find- See, example, review. United appellate ings by resolving ques- the state court Preston, (5th 608 F.2d 626 Cir. States were, not, jurors tion or were 1979): above, excluded. As discussed improperly Judge “We hold that a Trial today the re- may “unmistakably be clear” from must finding make an on-the-record challenged jur- the record that the view of probative admitting prior value of not, were, excluded for properly ors or were outweighs prejudicial conviction its effect cause; not, just if it is as in then — non-609(a)(2) before admitting prior hear- evidentiary other habeas matters —an conviction for un- impeachment purposes may district court ing in the federal 609(a)(1). der Rule An on-the-record Balcom, Mason v. 531 F.2d at required. See finding probative outweighs value 721-23; Beto, 421 F.2d 1065. Carroll prejudicial merely effect is not an idle example, juror may For been

gesture. finding Such a insures that the making after Judge immediately has at taken into account the excused least course, ever vote relevant considerations. Of such “I don’t think could statement Preston, so, reversed; Indeed, if were not the Fifth In the conviction was not 21. this Circuit instead, every Witherspoon challenge dispose remanded to the district the case was could hearing court for a at which “an on-the-record simply by giving deference court’s 609(a)(1) would be made Rule determination” juror general properly this conclusion that essence, is, (608 639). F.2d at This the same excused.” appro- procedure being urged by dissent this priate Witherspoon See also United cases. Rivero, States v. F.2d 460-61 hearing). 1976) (remand Act Cir. for Jencks hearings If asked addi- the federal district courts for con- penalty.” to inflict cerning Witherspoon challenges: juror may this have been questions, tional unequivocal excluded because of properly therefore, “It the sen- appears, punishment opposition capital imposed upon petition- tence of death —or juror per- have been able to set aside may constitutionally er cannot stand under for the death feelings penal- sonal and vote not, Witherspoon v. Illinois. We do how- ty ever, here, if warranted the evidence. cases finally decide that this, First, district court should like the federal several reasons. Court, evidentiary hearing

hold an determine issue was not raised in the District was, not, of Appeals, petition or was in the Court or in the improp- whether the for certiorari filed in this Court. A fur- erly Witherspoon. excluded under This hearing might ther directed issue has, fact, approved holding conceivably modify in some fashion the evidentiary hearings appropriate to resolve conclusion so strongly suggested by Witherspoon challenges has the United —as Further, record now before it is not us. Supreme States Court. the petitioner clear whether has exhaust- respect ed his state remedies with to this (i) Supreme Court cases out, Finally, issue. in the event it turns Witherspoon evidentiary hearings were appears, as now relief from this directed Court in Boulden ordered, death sentence must be a local Holman, U.S. federal court will be far better equipped (1969) Bishop, L.Ed.2d 433 and Maxwell v. appropriate than are we to frame an de- 26 L.Ed.2d 221 U.S. regard cree with due to available Ala- Boulden, (1970). In re- “independent (394 bama procedures.” view” of the state court record revealed 1142) added). (emphasis thirteen had been excluded for Witherspoon In other cases which have cause after immediately stating they had “a Court, the Supreme reached there has been opinion against” fixed or “did not believe evidentiary hearing. no remand for an capital punishment. in” In Maxwell v. However, none of petitions these involved Bishop, it was clear state court relief; for federal habeas all were direct record that jurors three had been excused and, course, appeals state court cases of after immediately stating they “didn’t authority federal courts have no to order capital punishment” believe in or that they hearings state courts to hold in habeas mat- “thought” they or were “afraid” had consci- Sain, ters. Townsend v. 313 n. entious scruples against penalty. the death 9; Beto, 83 S.Ct. at 757 n. Dixon v. questions No additional were asked de- (5th Cir.1973).22 F.2d 598 could, termine if jurors despite these their (i) Fifth Circuit cases feelings capital punishment, about “consci- entiously follow the instructions of the trial Beto, Jackson v. 428 F.2d 1054 Cir. judge fairly imposition and consider 1970), “post- was this Court’s first Wither- ” penalty:” reversing the death Instead of There, prisoner the state spoon decision.23 remanding to the state courts for new jurors claimed that had been excluded sole- punishment trials —as this Court did in al- scruples” their ly because of “conscientious most situations in v. Es- identical Granviel against penalty. “indepen- No telle, Estelle, and Burns v. F.2d dent review” could be conducted of the transcript remanded to state Supreme F.2d 396—the Court court record because summarily 22. But see the “alternative” order affirmed in 23. The Court reversed this Beto, case, Eyman, Jackson v. (9th Cir.1972), and remanded it to the Hart v. 458 F.2d 334 light Fifth “for reconsideration conducting Circuit giving options the state the ” (392 retrying hearing, releasing prisoner, him. 1350). L.Ed.2d further testified that “Judge Bacon had been lost.24 dire examination the voir court, apply- However, capital district over a number presided the federal had review to of habeas ing principles cases, standard not to excuse that his concern was conducted an Witherspoon challenge, he stated he had a juror simply because six hearing approximately evidentiary venireman scruple, conscientious that no — court trial —to deter- the state years after unambigu- was excused unless he stated not, had, been or had mine whether he could not vote for the death ously that hearing, At this excluded. improperly under set of facts or circum- any that of the evidence presented petitioner (428 1056). stances.” F.2d excluded jurors who had been twenty-three federal district court resolved the con- the state court: by for cause the testi- by crediting flict in the evidence veniremen were dead. “Two prosecu- of the state trial mony not available. “Two were tor, that each by specifically finding Porterfield) did not (Forse and “Two juror had been asked prospective could conceive being they asked if recall affirmed the question.” “second This Court fact, situation, or circumstance any the district holding that penalty, pen- for the death they which could vote errone- findings “clearly court’s were not alty. improperly and that no had been ous” venireman said he was asked no “One (428 F.2d at Witherspoon. excused at all. questions 1057). that he response recalled his “One Beto, in Marion v. 434 F.2d 29 Similarly, situation in could not conceive Cir.1970), trial court held a (5th “ the state vote a death which he could hearing peti- on a Witherspoon evidentiary testified that “Thirteen four or corpus apparently tion for habeas — remem- they was not asked or could not murder trial— years original five after the asked. being ber it concerning of fact “findings and made veniremen, and In- “Only Kelly two jurors and ex- selecting methods used in mon, were asked about testified that (302 F.Supp. at cluding same for cause” an irrevocable commitment 913). gave This deference to the they had penalty, they replied made the state findings factual specific none, but were nevertheless excluded (434 federal district court” court and two of analysis, only cause. In the final 30), that both lower courts F.2d at but held testi- twenty three excluded veniremen conclusions that legal the erroneous reached with Wither- non-compliance fied to clear jurors did exclusion of three the improper (428 1056). spoon standards.” F.2d Witherspoon under be- require not reversal However, prosecutor both the and exclu- “systematic had been no cause there testified at the Wither- judge state trial they because had jurors merely sion” of ex- hearing juror that no had been spoon (434 penalty F.2d scruples against death merely scruples cused because of Lucas, And, v. 677 F.2d 31-32). Gray in that the usu- penalty; prosecutor the death Cir.1982), (5th ap- this Court turn, or juror, asked each “whether ally at which the evidentiary hearing proved an could, circumstances, any not under upon the district court federal facts, give penalty?”; state of the death determined — any prosecutor the state testimony by basis so, that, failed to do prosecutor if the jurors attorney the defense this “second asked each the trial —“which cause and which had had been struck for facts you any “Can conceive question”: Witherspoon no preemptorily”; been struck you could or circumstances so brutal these findings found because violation was proper penalty vote for the “clearly erroneous.” were not case?” In addition: through respon- charge that it occurred was does not is silent as to who 24. “The record 1056). it, 428 F.2d at petitioner-appellant State.” misplacing willful fault of the sible for Beto, 428 F.2d 1054. cases, Jackson v. judge.26 the Fifth Cir- to these In contrast found remanding And, specifically With- if the district court consider even cuit did not hearings Burns, evidentiary (Mrs. Mr. challenges jurors Doss erspoon (5th Estelle, Cir. Granviel) 626 F.2d set aside Harrison in could have in Burns Estelle, 655 (en banc) or Granviel 1980) scruples” against capi- their “conscientious Cir.1981). Mrs. Doss had been F.2d 673 their exclusion would have punishment, tal stating Burns after cause in excused for Witherspoon. But if improper been in the death believe” not that she “did not have set aside their these could her delibera- affect this “would penalty and automatically op- and were in fact feelings, been excused for Harrison had tions.” Mr. penalty, the death then there posed to that “I don’t stating after cause in Granviel Witherspoon viola- would have been no to inflict the death vote think I could [ever have been tion —and the cases should not the state case had In neither penalty].” by this Court. reversed credibility factual specific court made Indeed, this is what was deter precisely that, based on the demeanor determinations hearing in Jackson evidentiary mined at jurors, these an- voice of and tone of However, Beto, neither unequivo- automatic swers established the fact even mention Burns nor Granviel Al- penalty.25 to the death opposition cal Witherspoon hearing approved that a questioning that additional though noting Beto, F.2d in Jackson v. by this Court so, reversed the this Court may have done or the fact cases and remanded penalty in both fed almost identical situations to remanded pun- state courts for new both cases to the in Boulden hearings eral district courts for trials: ishment And, v. Bishop. v. Holman and Maxwell Further which was questioning, “... any other opinions neither these two —nor denied, revealed might well have either reasons decision —discuss Fifth Circuit lay person- she could her Doss] [Mrs. not be held hearings should why evidentiary aside, the court’s instruc- al views follow Witherspoon challenges. appropriate tions, as a citizen or duty and do her that she could unmistakably made clear objections obvious bene- (iii) Possible —and so. What her an- not or would do fits will never be might swers have been Witherspoon made to Objections might be prematurely known. was therefore She on the basis evidentiary hearings excused, showing required by with the a reliable too difficult to make would be incomplete. for her dismissal Witherspoon felt juror really of how determination was, she Burns’ death can- Since sentence during voir dire— about panel’s disposi- not be carried out. The possible that it would not be or on the basis tion of the case was therefore correct.” hearing years several to hold a (626 398) added). (emphasis F.2d at these trial. Neither of original after Yet, it that this ques- is obvious “further valid. objections is tioning” could have been done at an eviden- Witherspoon evidentiary in a The issues hearing district tiary before federal than would be no more difficult hearing judge, court —at in addition to which cases, penalty record, those raised in other death of the scrutiny” the “close received petitioner claims that the the such as testimony challenged could hear or was not assistance of counsel de- ineffective jurors, prosecutor, as well as the the Ma- to stand trial. See mentally competent fense and even the state trial attorney, However, “clearly See, hearing. e.g., findings spoon errone- discussed above con- cerning juror. apply inferences drawn the “I don’t think so” rule would not ous” by from this written the federal district court 2246, 26. Under 28 “the certificate U.S.C. § Estelle, 623 F.2d at See Jurek v. certification. trial, presided who [state] 957-58. trial,” setting occurring forth the facts would be at the Wither- admissible evidence

411 721-23; Balcom, addition, son v. 531 F.2d at Carroll In there are obvious benefits if Beto, 421 situa- analogous v. F.2d 1065. appropriate Witherspoon challenges are re- tions, hearings are conducted to post-trial solved by evidentiary hearings in the feder- See, impartiality juror. determine the of a al district courts. This may help prevent 209, 215-16, e.g., Phillips, Smith v. 455 U.S. decisions; inconsistent Witherspoon for ex- 940, 945, (1982) 71 78 102 S.Ct. L.Ed.2d ample, if Maggio, 381, Williams v. 679 F.2d trial, (during job juror applied had been for an remanded hear- evidentiary prosecutor; long this “Court has held that ing concerning challenged juror (Ms. allegations juror partiali- remedy Brou), this Court would not have rendered a is a in which the defendant has ty hearing fragmented (7-4) determination “I opportunity prove bias”); actual think” “I feel” voir dire answers consti- States, 227, Remmer v. 347 United U.S. unequivocal tuted opposition 229-30, 450, 451, 74 98 L.Ed. 654 S.Ct. penalty though they are remarkably —even (1954) to determine if (hearing required jur- similar to the “I think” and “I feel” voir attempted bribe). or prejudiced by dire answers in v. Granviel Estelle. Moreover, retrospective determinations of Finally, procedure suggested this by place years events which took earlier are dissent offers the best way to resolve the in habeas matters. For regularly required this has held that it is example, prop- competing present Court interests which are retrospective er to make a determination of every penalty Judge case. Randall prisoner whether or not a state was mental- granting described these interests in to stand trial ly competent twenty-three case, stay of execution in this O’Bryan v. evidentiary before the federal court years Estelle, 706, (5th Cir.1982): 691 F.2d 708 Beto, (5th 1065 hearing. Carroll v. F.2d case, “In a capital possibility Cir.1970) Cir.1971). and 446 F.2d 648 irreparable injury weighs in the heavily The Witherspoon hearing Jackson movant’s favor. The irreversible nature Beto, 1054, 428 F.2d was some held six penalty weighed of the death must be years original after the murder trial.27 ‘[tjhere the fact must come in this would be evidentiary hearing case time, even when so irreversible a held mur- years O’Bryan’s some nine after imposed upon as that of death has been der trial. defendant, particular legal that the issues Finally, just as in other habeas mat- litigat- in the case have been sufficiently ter, the federal district court must deter- relitigated ed and so that law must be mine whether or a retrospective With- ’ to run its .... Evans allowed course erspoon hearing would be If a possible. Bennett, 1301, 1303, 1306, meaningful hearing cannot be held for some 1481, 1482, 1484, 59 L.Ed.2d e.g.,if the is dead challenged juror reason — J., (1979) granting stay (Rehnquist, or cannot be located28—then the conviction case, execution). capital In a we must be corpus cannot stand and the writ of habeas legal certain that the issues particularly Estelle, must issue. Martin v. 583 F.2d See sufficiently litigated,’ ‘have been and the (if meaningful at 1374 “a com- retrospective all the pro- criminal defendant accorded conducted, petency hearing cannot be then guaranteed by tections him the Constitu- course, issue”); the writ must Hart v. tion United States. See Shaw (habeas claim of Eyman, F.2d confession). Martin, (4th Cir.1980).” coerced 613 F.2d Beto, see Jackson v. hearings 27. The ordered 28. But Holman, Witherspoon evidentiary hearing in Boulden v. 394 U.S. where a was Bishop, 433 and Maxwell v. L.Ed.2d approved held —and Court —even 26 L.Ed.2d dead, though two were two were not eight place until could not have taken five available, remember and several could not even years, respectively, elapsed origi- had since the questions during asked voir dire. nal trials. cases, truthfully” would make Witherspoon statutory questions other In this and virtual nonsense. testimony two alter- all his other recognized only has Fifth Circuit speculation— such Witherspoon prohibits conviction and affirm the natives: either and makes it clear that the critical if some members (even penalty the death ap- reasoning might is not what exotic doubts about have serious by Wells’ answers courts plied and remand to to Reverend or reverse challenges), commentators, by A he meant trial. or but what punishment for a new state court federal them: remanding to the third alternative — hearing if evidentiary

district court for course, “The critical is not question, not clear and if the state the state record employed in this area phrases how or findings fact specific has made no courts and com- by have been construed quickest credibility determinations—is matters is how mentators. What resolving compet- these way of and the best might be understood—or misunder- way. It is also the correct ing interests.29 jurors.... by prospective Unless stood— unambiguously a venireman states standards of review to the these Applying automatically against vote he would case, it is clear that present capital punishment no mat- imposition and remand to the federal should reverse reveal, simply might ter what the trial evidentiary hearing district court for position.” that is his cannot be assumed Juror Wells and concerning the exclusion of n. (391 at 516 n. at 1774 Pfeffer. Juror 9).

Juror Wells Indeed, “only reading a tortured of this Wells first said that he would will conclusion but transcript” support Reverend against penal- vote the death Wells first stated he automatically the fact that Reverend Then, truthfully that he could ty. automatically he stated vote death statutory penalty the two death truth- penalty, answer but then said that he could prosecutor, But no one—the questions. penalty questions. fully answer judge or the trial attorney, defense —ex- con- uncertainty Nor can we resolve this Reverend Wells the effect of plained to giving cerning Reverend Wells’ answers questions: to these that the “yes” answers 2254(d) specific “deference” § compelled trial would be to sentence determina- credibility of fact or findings So, Randall Judge the defendant to death. Indeed, there tions the state court. correctly concludes: although, question, were without none— whether, say- “We thus do not know have made factual and judge might ing he could and would answer example, For these findings. credibility truthfully, two Wells statutory questions are consistent with the en- two alternatives understood what the effect of those an- of Reverend tire voir dire examination swers could be.” Wells: We cannot assume that Reverend Wells disqualified juror knew the effect to the death of his answers that he could can Wells first stated penalty questions, anymore than we Juror impose penalty, can we vote to the death assume that he did not know. Nor never does, truthfully could answer but later said he suppose, Judge Higginbotham questions. statutory punishment not know the effect of the two Reverend Wells did juror me that this is not attorney defense It is clear to (i) his answers because the he can set being says truthful when “merely questions told him these were feelings against court,” (ii) deep because his aside his you answer to the demeanor, his tone of voice the two His statement that he could “answer Georgia, L.Ed.2d Particularly must be since a Beto, improperly only (1976); at 32. Marion v. been set aside if one has Witherspoon. Davis v. See excluded under clear from the record he realized it is not —indeed, angry he was when Since was, not, he im- implied that Juror Wells or was questions initial pen- the death willing impose to might Witherspoon, under properly excluded clear that unmistakably it make alty be reversed and remanded for case should —all impose the death never vote he could Beto, evidentiary hearing. Jackson the federal district court 428 F.2d 1054. If unequivocal- finds that Reverend Wells juror qualified to the death at the time ly opposed penalty stated that he could Juror Wells first no error of voir dire in there would be penalty, the death impose never vote to However, if it is in his exclusion cause. truthfully answer later said he could but Wells could have determined that Reverend questions. statutory punishment the two impartial juror notwithstand- served as quali- to me that It is clear then penalty, his views about the death ing demeanor, His Witherspoon. fied under and remanded to the case must be reversed indeed, spoke quiet- his tone of voice— trial. punishment the state courts for a new without hint of an- deliberately, and ly “shifting bur Finally, Judge Randall’s clear unmistakably make it ger30—all O’Bryan be proof penalizes den” —which could, despite his feel- this minister “whether attorney clarify cause his failed to truthfully ings penalty, about the death effect of his possible Wells understood the penalty questions, two death answer the novel, unde unsupported answers” —is just as he said. 32. It is also erroneous: fined specific these determinations If either of power on is “a limitation the State’s made, 2254(d) “presumption had been § exclude,” approach Judge Randall’s the find- apply of correctness” would permit prospective jurors to be the federal courts binding would be ings from service on “a broader ba barred “clearly not erroneous.” because the law. inability sis” than their to follow However, made no such judge the trial 48, 100 Texas, at Adams v. at U.S. instead, after the state’s motion findings; addition, that, In the fact ignores 2528. Wells, he merely Reverend disqualify law, Texas it is within the discretion No defer- ruled “I’ll sustain the motion.”31 permit trial court to refuse to to this mere conclu- ence should be accorded “tell the the effect attorneys jury panel Balcom, 721-23— sion, Mason v. 531 F.2d at their and ‘no’ answers” to ‘yes’ about speculate and this must not State, 556 cases. Burns v. See of the voir possible interpretation which (Tex.Cr.App.1977), rev’d on S.W.2d Witherspoon, dire is correct. Cir.1980) 626 F.2d 396 grounds, at 1774 n. 9. other 516 n. finding specific Judge Higginbotham’s judge that Juror Rever- no fact statement made 30. sug- angry. angry even the Wells was end Wells “became with gestion he could so vote” is based —not any response by upon upon surprising. Wells —but The state trial 31. This is not Now, right. prosecutor’s question: I findings credibility “All specific sixth made fact no angry you get I’m any place with me and don’t want in the seven vol- determinations you, trying argue ask transcript have to the voir dire umes of which contain lady answer, you your Certainly, length because this is tak- of voir dire examination. testimony your ing judge “painstakingly at this time for the down was not due to the speculation Indeed, pure questions conclude questioning” juror. record.” It each angry. (see, e.g., Al- publicity perfunctory this that Reverend Wells was were about been, just likely 761-63; though Transcript Transcript he could have it is 3 Trial Trial was, nothing 870-71) length ver- more than dire that this comment was of the voir —and doubt, fumbling by prosecutor practice as he searched courts in of state bal no due again attorneys way permit to conduct for a to ask the same Texas to —as State, explanation to Re- 577 S.W.2d voir dire. See Adams v. his nonsensical indicated 1979). asking ques- (Tex.Cr.App. these Wells that he was verend only reporter was tran- tions because the court event, scribing opinion. the trial Judge the answers. 7 in Randall’s See footnote State, 578 (en bane); During dire, Hammett v. S.W.2d portion first of his voir banc). Thus, (en (Tex.Cr.App.1979) (as Judge Juror Pfeffer was described correct, analysis is this Judge if Randall’s Randall) equivocal and inconsistent. How- practice also hold that the state Court must ever, once, clearly he did state but —not attorneys is unconstitutional and that must impose several times—that he could vote to to the permitted explain penalty the death if the circumstances were to the statutory effect of their answers “very, very extreme.”33 For example: penalty questions. death “THE listening COURT: From Therefore, if the case not remanded for way you’ve answers, explained your I evidentiary hearing in the take it that you’re necessarily op- not as urged by federal district court this dis- it, posed to but it would take ex- sent, the death sentence must be reversed— treme set of you circumstances for because the three two of members give ever it? panel have concluded that is not “unmis- (3 “JUROR PFEFFER: That’s correct.” whether Reverend takably clear” Wells 875). Trial at Transcript was, not, or was unequivocally opposed to Then, “THE COURT: are you saying by Juror Pfeffer virtue of that answer that feel that you there would be a set of circumstances Randall, Judge To Juror Pfeffer presents that could whereby you exist as a mem- quintessential example “the of a situation” ber of a feel that the jury could where “at least some deference” would be penalty proper would be a punishment for a appropriate judge observing trial that you would return such a ver- juror struggling give “to an honest answer you dict if felt it was proper? questions.” to difficult To Judge Higgin- botham, he is “a paradigm both of venire- general, “JUROR PFEFFER: I would men in capital cases” and a “confused and say, that was when I said with reserva- confusing venireman.” To the Texas Court So, tions. I (3 still have reservations.” of Criminal Appeals, equivocal he was at Transcript 879-80). Trial at first, but then in his “unbending resolve” against capital punishment (591 at S.W.2d “THE Are you telling COURT: me then 471). just something that this is that would But, dissent, to this Juror Pfeffer is an do, yourself be difficult within other example why judges federal should you’re necessarily opposed it? not, on the basis of their “independent re “JUROR PFEFFER: I think this is cor- record, view” of a appellate cold engage rect. speculation about a confusing, inconsistent “THE COURT: And there well be may should, voir dire—but if the state court has some facts and circumstances that do made specific no fact findings credibility would, whereby you exist could and if determinations concerning juror like Pfef you justified, felt it was return a ver- fer, remand the case for a Witherspoon dict of death? evidentiary so hearing the federal district Well, was, court can “JUROR PFEFFER: like I I say, determine whether he or was not, still have improperly feelings excluded under Wither the mixed there that 1054; spoon. Beto, Jackson really I don’t think I could make a Holman, Boulden v. proper judgment, being a borderline 1138,22 L.Ed.2d 433. subject. just thinker on the don’t—a 33. Pfeffer did not know just publicity how “extreme” the what he had seen—and he refused to O’Bryan little, any, permit attorney case was. He had seen if the defense to determine what publicity publicity about the murder so he “was not or other information Pfeffer had seen 870-71, Transcript Transcript familiar with it at all.” 3 Trial about the Trial case. 3 judge 870. The trial did not even ask Pfeffer 885-86. know I could extreme set of circumstances’ was very I don’t

decision that really it that screen for what was an inabili- put way. make. Let’s smoke assess ty un- you saying Are “THE COURT: again, But he did not: circumstances.” ever you der no circumstances could specific credibility there are no factual or just that decision or it would make determinations; merely set of circumstances take extreme granted the you challenge would? state’s for cause before Pfeffer, “Mr. will be you the conclusion It take a would “JUROR PFEFFER: at this time.” particular excused very extreme set circumstances very, Transcript it.” at 881— (3 to do Trial review” of Accordingly, “independent 82). confusing voir record reveals a the state this, in judge after the trial Shortly he could Juror Pfeffer said that dire where “the law requires Pfeffer that structed cir- in extreme penalty the death impose have to have a definite answer” —and we that, said if forced to later cumstances —but answer point every given from answer, he have to a definite would give affected the trial obviously was Pfeffer not time” that he could present “at the say yes must “a give statement that he court’s It is not impose penalty. the death vote Consider, example, for or no” answer.34 whether Juror Pfef- “unmistakably clear” which Randall responses Judges three was, not, excluded improperly or was fer Pfeffer Higginbotham conclude that Therefore, the case should for cause. his opposition clear” “unmistakably made court for a to the federal district remanded death penalty: Witherspoon evidentiary hearing. no, or yes if I would (i) says “Well However, if is no remand for there automatically I would say yes, have to must be evidentiary hearing, then case give penalty], vote [the to the state courts and remanded reversed answer”; correct trial. is not “un- punishment new It for a [pose (ii) [sentencing] “I think record mistakably clear” from direct it would have a problems] because opposed irrevocably Pfeffer was that Juror what bearing anyway, on the outcome reading penalty. From a fair to the death talking judge been about with the we’ve Pfeffer, he of Juror the entire voir dire ”; ago a minute (i) either because excused for cause was (iii) present “I time that’s think at the whether “in advance trial say not could penalty answer correct couldn’t [I pen- for the in fact vote extreme he would resulted], if questions penalty the death him,” (ii) because or alty in the case before yes.” positively unable to state he was portion of each Obviously, emphasized vote the death or could not he could responses qualification, of these is event, exclusion —one either judge’s instructions refers the trial which improper. Witherspoon would have been definite, give “yes Juror Pfeffer must at n. Illinois, 391 at 522 And, if even this were no” answers. or 21; Texas, n. Adams three so, responses, to focus on two or neither 49-50, (“But 2528-29 100 S.Ct. at dire improper. the rest the voir ignore involvement, nervousness, nor in- emotional what- deny confirm effect sure, or suggests, ability Randall Judge To be unwillingness or equivalent to an specific judge trial could made soever inability part on the willing- professed “that findings Pfeifer’s obey instructions and ‘very, the court’s assess follow ness to Transcript jurors. 1649-50 Although suggests Trial Judge Higginbotham other See 4 (Jur- Garrett), Transcript (Juror 2186-87 responsible 6 Trial Pfeffer somehow Juror However, Cooley). Judge Higginbotham is “yes” causing or judge to insist on pushed par- judge answers, gave in no in- correct that “the trial “no” also similar Transcript 882-83. two 3 Trial during least ticular direction.” structions dire of at the voir oaths, of their regardless feelings their penalty.”)35

about the death

II. Other Issues

I Randall and Judges Higgin- concur with

botham that the exclusion Juror Bow- Witherspoon.

man was not in violation I, III, IV

also concur in and Y of parts

Judge part Randall’s and in I of opinion, opinion.

Judge Higginbotham’s ALEXANDER,

Charlie

Petitioner-Appellant, WARE, al., et

Glenn

Respondents-Appellees.

No. 83-2095. Appeals,

United Court of States

Fifth Circuit. 26, 1983.

Aug. opinion Judge (page 373) Supreme summarily pen- Randall’s notes reversed Court Washington, 946, that “in Aiken v. 403 U.S. alties in had been cases where excluded (1971), say Supreme they they L.Ed.2d because were unable to summarily Court reversed a death sentence “could or could not” for the death vote However, where the state court had found no Wither- will that all three of also note these spoon summary preceden- violation accorded and had some defer- reversals be of little should dissent, simply among ence to the trial court.” This there- tial value because were fore, similarly in Mathis v. will New substantial cases reversed note number of Jersey, following Witherspoon. L.Ed.2d See Washington, (1971) 946-948, pages and Adams v. 403 U.S. 91 S.Ct. 2277- (1971), 29 L.Ed.2d 855 2287-2292.

Case Details

Case Name: Ronald Clark O'Bryan v. W.J. Estelle, Jr., Director, Texas Department of Corrections, Respondent

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 30, 1983

Citation: 714 F.2d 365

Docket Number: 82-2422

Court Abbreviation: 5th Cir.