LAY, Chief Judge.
The issues on this appeal relate to the question left open in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968): whether the exclusion of jurors who hold absolute scruples against the death penalty creates a "conviction-prone" jury as to the guilt of a defendant in a capital case.
Based on the overall exhaustive record, we find substantial evidentiary support for the district court's findings. We find that substantial evidence supports the court's finding that a capital jury, with WEs stricken for cause, is in fact conviction prone and, therefore, does not constitute a cross-sectional representation in a given community. In view of our finding on the sixth amendment violation, it is unnecessary to discuss the issue whether the jury in the petitioners' cases was in fact a biased jury. We affirm, with modification, the judgment of the district court. We vacate that portion of the district court's judgment which requires the state to utilize two separate juries; one to determine guilt-innocence and another for the penalty phase of the trial. We leave the actual procedural remedy to the discretion of the state.
Although this was originally a consolidated proceeding,
In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), the Supreme Court stated:
And in an earlier opinion, Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975), the Court stated:
A threshold contention of the state here is that the cross-sectional requirement of the sixth amendment is not applicable to a petit jury. In making this argument the state relies on statements taken from Duren that such attack only applies to the panels or venires from which juries are drawn. Duren, 439 U.S. at 363-64, 99 S.Ct. at 668. Similarly, the state cites from Taylor the abstraction that "we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population." Taylor, 419 U.S. at 538, 95 S.Ct.
Childress must be read within its factual context. The significant issue in Childress was whether an alleged systematic exclusion of blacks by the prosecution in exercising its peremptory strikes constituted a sixth amendment violation. Childress, 715 F.2d at 1314-15. We agree the state may exercise peremptory challenges as it deems necessary. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); but see Williams v. Illinois, ___ U.S. ___, 104 S.Ct. 2364, 80 L.Ed.2d 836 (1984) (Marshall, J., dissenting); Gilliard v. Mississippi, ___ U.S. ___, 104 S.Ct. 40, 78 L.Ed.2d 179 (1983) (Marshall, J., dissenting). No stated reason is necessary in exercising peremptory challenges. To establish a rule that jurors cannot be stricten by peremptory challenges on certain grounds seeks the impossible and limits the right of a party to eliminate jurors who appear to be biased. A correlative to Childress is the concept that no defendant has the right to select biased jurors who he feels might be more sympathetic to his case.
It would, of course, be impossible to obtain a petit jury that reflects all the distinctive groups in a community.
We base our rejection of the state's argument on decisions of the Supreme Court. In Swain the Court noted that systematic exclusion from a petit jury of a distinctive group over a long period of time would be wrong. Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-38. In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), the Court held that a petit jury of less than six persons would violate a defendant's sixth amendment right to have a cross-sectional representation. Id. at 230, 245, 98 S.Ct. at 1034, 1041. See also Williams
Witherspoon, 391 U.S. at 519-20, 521-23, 88 S.Ct. at 1775-76, 1777 (footnotes omitted) (our emphasis).
We conclude on the facts of the present case, which involves a challenge for cause, that the state cannot defeat a sixth amendment claim on the ground that we deal only with a petit jury, rather than the jury pool at large.
Turning to the specific elements of the Duren test, we find Witherspoon also is direct authority that the group of WEs excluded in this case is a distinctive group in the community. Witherspoon found a distinctive group in those venirepersons who were not "automatic-life"
The second element of the Duren test relates to venires. However, given our earlier discussion and finding that there is no practical difference between exclusion from the venire and systematic exclusion for cause from the petit jury, we analyze the resultant petit juries. In this case we find the representation of WEs on the juries is not "fair and reasonable in relation to the number of such persons in the community * * *." Duren, 439 U.S. at 364, 99 S.Ct. at 668. The district court found WEs constitute between eleven and seventeen
Finally, Duren requires the petitioners to establish that the WEs are systematically excluded. Here, the district court found the systematic exclusion results from the voir dire at trial. Grigsby, 569 F.Supp. at 1286. There is little argument offered by the state that in capital cases the exclusion is not systematic.
It is necessary to emphasize that this case concerns only the exclusion of WEs from the guilt-innocence phase of a capital trial. The exclusion of jurors who will never consider a penalty of death, approved in Witherspoon, becomes irrelevant when the focus is on the first half of a bifurcated trial;
The fundamental issue facing the court is whether the evidence supports the district court's finding that a jury with WEs stricken for cause is a conviction-prone jury. If the evidence supports this finding then we feel McCree has established his case that there has been a denial of his sixth amendment right. This conclusion finds analogous support in the Witherspoon court's holding that exclusion for cause of venirepersons who opposed the death penalty, but were found not to be automatic-life — i.e., able to consider the evidence and follow the law — created "a tribunal organized to return a verdict of death." Witherspoon, 391 U.S. at 521, 88 S.Ct. at 1776. Since the district court has exhaustively analyzed this evidence, see Grigsby, 569 F.Supp. at 1291-1308, we need only summarize the proofs.
A. Attitudinal and Demographic Surveys
1. Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970). (Bronson-Colorado).
The subjects of this study were 718 Colorado venirepersons. Interviews were done by trained students from the University of Colorado in 1968 and 1969. Each subject was asked whether they strongly favored, favored, opposed, or strongly opposed the death penalty. This was followed by five questions regarding attitudes on criminal justice issues. On each of the five questions the survey found the stronger the subjects' support for the death penalty, the stronger their support for positions most favorable to the prosecution.
2. Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Make the Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson L.J. 11 (1980). (Bronson-California).
Two studies similar to the Bronson-Colorado survey are grouped together in this
The second survey involved interviews of 707 venirepersons from Los Angeles, Sacramento and Stockton, California. The results were consistent with the prior studies: the more strongly the subjects favored the death penalty, the more likely they were to endorse pro-prosecution positions.
3. Louis Harris & Associates, Inc., Study No. 2016 (1971).
Harris randomly polled 2,068 adults throughout the United States in 1971. The respondents were asked about their attitudes on the death penalty and other criminal justice issues. The results parallel those of the Bronson surveys. In addition, Harris found more blacks than whites, and more women than men, would be excluded from jury service by death qualification.
4. Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum.Behav. 31 (1984). (Fitzgerald 1979).
The survey upon which this article is based was a sample of 811 jury eligible persons in Alameda County, California, in 1979. An independent professional polling organization, Field Research Corporation of San Francisco, drew the sample and interviewed the subjects. Respondents who could not be fair and impartial, i.e., nullifiers, were excluded. Of the remaining 717 subjects, over seventeen percent were found to be WEs. Questions regarding attitudes on criminal justice issues showed that death qualified respondents were more favorable to the prosecution than the WEs.
5. Precision Research, Inc., Survey No. 1286 (1981). (Precision Survey).
This survey was conducted by an Arkansas polling organization in 1981. A sample of 407 adults in the state of Arkansas were asked the same questions used in Fitzgerald-1979. The survey found that approximately eleven percent of those who could be fair and impartial in determining guilt-innocence were WEs.
B. Conviction-Proneness Surveys
1. H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (University of Chicago Monograph 1968). (Zeisel).
In 1954 and 1955 Zeisel questioned jurors who had served on felony juries in Brooklyn, New York, and Chicago, Illinois. The subjects were asked about the first ballot votes of their jury and whether they had scruples against the death penalty. The study controlled for the weight of evidence in each case and found jurors with conscientious scruples against the death penalty voted to acquit more often than jurors without such scruples.
2. W. Wilson, Belief in Capital Punishment and Jury Performance (1964) (unpublished). (Wilson).
This study presented 187 college students with written descriptions of five capital cases in 1964. Each student was asked whether he or she had scruples against the death penalty. They were then asked to assume that they were jurors in the five cases. The students without death penalty scruples voted for conviction more often than those with scruples.
3. Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.C.R.-C.L.L.Rev. 53 (1970).
A set of sixteen written descriptions were given to 100 white and 100 black college students in Georgia. Those without scruples voted to convict in seventy-five
4. Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv.L.Rev. 567 (1971). (Jurow).
Audio recordings of two simulated murder trials were played for 211 employees of Sperry Rand Corporation in New York. The subjects filled out questionnaires which measured their attitudes toward the death penalty and various criminal justice issues. The subjects were then asked to listen to each "trial" and vote on guilt-innocence. Those persons who more strongly favored the death penalty were found to be more likely to convict.
5. Cowan, Thompson & Ellsworth, The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum.Behav. 53 (1984). (Cowan-Deliberation).
This 1979 study began by identifying the WEs in its sample of jury eligible residents of San Mateo and Santa Clara Counties, California. Those WEs who could not be fair and impartial in determining guilt-innocence (nullifiers) were excluded from the sample. The remaining 288 subjects were shown a realistic two and one-half hour videotape of a murder trial. The subjects filled out questionnaires regarding their criminal justice attitudes and were assigned to panels of twelve in order to simulate jury deliberations. Some panels were death qualified, while others included WEs. Ballot forms were filled out by each subject before and after the panel deliberations as a means of examining the quality and importance of the deliberations.
The study found that death penalty attitudes were closely linked to conviction proneness — subjects favoring the death penalty were more likely to convict. In addition, the study concluded that jury panels containing a mix of WEs and death-qualified subjects tended to view all witnesses more critically and remember the facts of the case more accurately than death-qualified jury panels.
C. Other Surveys
1. Thompson, Cowan, Ellsworth & Harrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Hum.Behav. 95 (1984). (Thompson-Attitudes).
A videotape of two witnesses' conflicting testimony in a criminal trial was shown to twenty death-qualified subjects and sixteen WEs, all of whom had participated in the Cowan-Deliberation survey. The subjects then filled out a questionnaire regarding the testimony they had viewed. The death-qualified subjects gave answers more favorable to the prosecution than the WEs.
2. Haney, On the Selection of Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum.Behav. 121 (1984).
This study investigated the process of death qualification on the jurors who undergo it. A sample of sixty-seven jury eligible residents of Santa Cruz County, California were selected after screening out those who could not be fair and impartial in determining guilt-innocence (nullifiers). The subjects were randomly divided into two groups and shown a realistic two hour videotape of a murder trial. One group, in addition, saw a half-hour of voir dire in which prospective jurors were death qualified. The study found that the members of the group which viewed the voir dire were more likely to believe the defendant was guilty than members of the other group.
3. A. Young, Arkansas Archival Study (1981) (unpublished). (Arkansas Study).
This study consisted of a review of forty-one transcripts of voir dires in capital cases from 1973 to 1981 which were on file at the Arkansas Supreme Court. The survey found that over fourteen percent of the
D. Expert Testimony
1. Edward J. Bronson, B.S., J.D., LL.M., Ph.D.
Dr. Bronson is a Professor of Public Law and Political Science at California State University at Chico. He has experience working with a variety of officials in the criminal justice system including prison officials, law enforcement officers, and parole officers. At trial, Dr. Bronson testified for petitioners about his own empirical evidence and evidence developed by others. He discussed how death qualification affects the attitudes and demographic composition of the resulting juries.
2. Craig W. Haney, B.A., M.A., Ph.D., J.D.
Dr. Haney is a Professor of Psychology at the University of California, Santa Cruz. He has conducted research on a wide range of criminal justice subjects including plea bargaining, eye witness testimony, the effects of television on witness perception, the impact of imprisonment on personality and the effects of voir dire on prospective jurors. Dr. Haney's testimony for petitioners concerned the relationship between death penalty attitudes and other criminal justice attitudes. In addition, Dr. Haney presented his study on how death qualification voir dire tends to bias the resulting jury against the defendant.
3. Reid Hastie, B.A., M.A., Ph.D.
Dr. Hastie is a Professor of Psychology at Northwestern University. He has focused his research on juries and their decision-making process. In his testimony for petitioners, Dr. Hastie reviewed research on the effect of death qualification on the resulting jury and the quality of that jury's deliberation and fact finding. He also compared the relative conviction proneness of death-qualified and nondeath-qualified juries.
4. Gerald H. Shure, B.S., Ph.D.
Dr. Shure is a Professor of Psychology and Sociology at the University of California, Los Angeles. His research in the field of jury behavior is limited; however, Dr. Shure has considerable expertise in the effects of communication channels in problem solving, bargaining and negotiation, and pacifist behavior. Dr. Shure, in his testimony for the state, critiqued petitioners' studies and offered one of his own.
After examining all of the surveys and considering extensive testimony, the district court concluded that petitioners had proven a jury with WEs stricken for cause is a conviction-prone jury. Grigsby, 569 F.Supp. at 1293-1305. The district court found that "[a]lthough Dr. Shure has made some reasonable criticisms and suggestions concerning the possibility of improving research techniques and better interpretation of existing studies, he has not, in his general comments, successfully impeached the clear thrust and effect of petitioner's [sic] case." Grigsby, 569 F.Supp. at 1307. Dr. Shure's own study did not contradict the basic findings introduced by petitioners and he acknowledged there were problems with
On appeal, the state challenges petitioners' evidence on many grounds: (1) petitioners compared the wrong groups — WEs versus death-qualified jurors instead of WEs and ADPs versus death-qualified jurors; (2) petitioners succeeded in showing only that WEs are biased because they are more acquittal prone than death qualified jurors; and (3) the behavior of jurors cannot be predicted on the basis of the studies and testimony presented. Moreover, Arkansas complains that much of the evidence was based on statistical significance, which the state calls "the lowest form of proof."
Arkansas' first argument is based on the fact that some of the early studies do not identify WEs or properly differentiate between WEs and death-qualified jurors. In addition, the state contends petitioners have failed to account for ADPs. Of course the pre-Witherspoon studies did not specifically identify WEs, nonetheless they do show that death penalty attitudes are directly related to general criminal justice attitudes and conviction proneness.
The focus on particular groups of jurors does give insight into the difference between a death-qualified jury and a normal criminal jury. The state argues that the comparison should center on the two types of juries rather than the characteristics of WEs and death-qualified jurors. However, by examining and defining the elements of the normal criminal jury which are missing on a death-qualified jury — the WEs and ADPs — reasonable conclusions about the differences between the two juries can be drawn. In addition, one study did compare death-qualified with nondeath-qualified panels.
Arkansas next echoes the Fifth Circuit's argument
Arkansas also contends that the behavior of real jurors cannot be predicted from the studies presented by petitioners. However, some of the studies included real jurors,
Finally, Arkansas complains about the court's reliance on social science data and belittles its statistical significance. Other courts have accepted some of the studies presented here and similar social science data. See Keeten v. Garrison, 578 F.Supp. 1164, 1171-77 (W.D.N.C.), rev'd, 742 F.2d 129 (4th Cir.1984); Hovey, 28 Cal.3d at 26-60, 616 P.2d at 1314-41, 168 Cal.Rptr. at 141-68. Moreover, in Witherspoon, the Supreme Court invited development of this type of evidence. Witherspoon, 391 U.S. at 517, 520 n. 18, 88 S.Ct. at 1774, 1776 n. 18. In other sixth amendment cases the Supreme Court has relied on similar data. See Ballew v. Georgia, 435 U.S. 223, 232-39, 98 S.Ct. 1029, 1035-39, 55 L.Ed.2d 234 (1978); Colgrove v. Battin, 413 U.S. 149, 158-60, 93 S.Ct. 2448, 2453-54, 37 L.Ed.2d 522 (1973); Williams v. Florida, 399 U.S. 78, 101-02, 90 S.Ct. 1893, 1906-07, 26 L.Ed.2d 446 (1970). All of the studies introduced were consistent in their conclusions that death penalty attitudes are related to criminal justice attitudes and conviction proneness. Arkansas introduced no contrary studies. The consistency over a wide range of survey methods and respondents is impressive. The state's attack is not well founded. The district court's finding of fact that a petit jury without WEs is "conviction prone" and, therefore, not an impartial or cross-representative jury is not clearly erroneous.
The state raises two additional issues which merit discussion. First, the question is raised whether or not those who are not WEs, but still possess scruples against the death penalty, will adequately represent WEs on the jury so as to nullify the argument that the jury is conviction prone or not cross-representative. The second question is whether the fact that ADPs are excluded from the jury in Arkansas undermines the studies relied upon by the district court. Cf. Hovey, 28 Cal.3d at 63-69, 616 P.2d at 1343-47, 168 Cal.Rptr. at 170-74.
The district court rejected both arguments. We agree with its conclusions. In considering the first argument, the court addressed our holding in United States v. Olson, 473 F.2d 686 (8th Cir.), cert. denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973), and found there was no evidence in that case to suggest that the criminal justice attitudes of the excluded eighteen to twenty year old group would not be represented by other eligible jurors. Grigsby, 569 F.Supp. at 1282-83. By contrast, in this case, the district court found that one element of the WEs' distinctiveness as a group is that no other group of death-qualified jurors shared their attitudes or perspectives. Id. at 1283. The court considered petitioners' attitudinal studies and concluded: "[s]uch evidence undercuts the idea that the mildly scrupled jurors who are not excluded under Witherspoon would adequately represent the attitudes of those who are excluded under Witherspoon." Id.
In upholding the district court's finding based upon the evidentiary record we must note: (1) the record here is exhaustive; it is difficult to perceive how any petitioner could make a record and an objection to death-qualified juries, as constituting an improper jury for the determination of guilt-innocence, more complete than that presented here; and (2) there are no studies which contradict the studies submitted; in other words, all of the documented studies support the district court's findings.
Only a few cases have been decided with a similar question. We note Hovey in California,
Nonetheless, although we are not fully cognizant of the records presented in Spinkellink and Keeten, in all due respect, we cannot follow the reasoning of our sister circuits. First, and foremost, it would appear that Spinkellink, without an evidentiary record, concluded as a matter of law that there can be no constitutional violation.
We feel the reasoning of Spinkellink and Keeten fails to analyze or decide the fundamental issue. In Spinkellink the court observed:
Spinkellink, 578 F.2d at 593-94 (footnotes omitted).
We think this not only closes the door, as a matter of law, for a petitioner to present an empirical record to the contrary, but also fails to understand the fundamental issue.
Keeten, 742 F.2d at 134.
Judge James McMillan, one of America's most distinguished trial judges, observed in the district court opinion in Keeten:
Keeten, 578 F.Supp. at 1167.
One last point urged by the state is that McCree should not succeed because there is no showing of actual prejudice. In a sixth amendment claim prejudice is not an element of proof. See, e.g., Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). The underrepresentation of a distinct group from a petit jury brought about by systematic challenge for cause affects the integrity of the entire jury system and no actual prejudice need be shown.
The district court recommended a bifurcated trial with two juries. In a subsequent opinion the Arkansas Supreme Court found this to be impractical and the worst of all solutions. Rector v. State, 280 Ark. 385, 396, 659 S.W.2d 168, 173 (1983).
Since Arkansas already has a bifurcated trial in capital cases perhaps the best possible procedure, rather than have two separate juries, would be to add to the number of alternates who sit in the guilt phase of trial. If the defendant is convicted a new voir dire could take place and the same jury could be qualified, with WEs excluded, to hear the penalty phase of the trial. As another alternative the WEs could be identified at the initial voir dire and a sufficient number of alternates retained to take their place on the sentencing jury. We note, however, the California Supreme Court has concluded this form of voir dire tends to bias the jury. Hovey, 28 Cal.3d at 70-73, 616 P.2d at 1347-50, 168 Cal.Rptr. at 174-77. We need not pass upon that issue at this time. Neither procedure should significantly affect the cost or efficiency of the trial.
We therefore modify the district court's direction, to the extent it mandated a bifurcated trial with two juries, but otherwise find the writ should be issued unless the state begins proceedings to re-try McCree within such reasonable time as the district court may fix.
JOHN R. GIBSON, Circuit Judge, with whom ROSS, FAGG and BOWMAN, Circuit Judges, join, dissenting.
The court today concludes that a defendant's sixth amendment right to have a jury that reflects a representational cross-section of the community is violated when at voir dire those persons who would refuse to consider capital punishment are excluded for cause. The case before us essentially involves the refusal of such jurors to follow Arkansas law and consider the full range of penalties it provides, specifically the death penalty.
At the outset, I note that decisions of the Supreme Court have found only a sixth amendment right to have a jury selected from a representational cross-section. The court today goes to extreme lengths to hold that the cross-sectional requirement applies to petit juries as well as to venires or panels. The court recognizes that Duren and Taylor prohibit only exclusion of cognizable classes from jury wheels, panels, or venires. E.g., Taylor, 419 U.S. at 538, 95 S.Ct. at 702 ("no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population"). Thus, it must argue that "there is no functional difference" between exclusion from the various jury groups and that Duren and Taylor "implicitly" forbid exclusion from the actual jury. Supra at 230. Two functional differences, however, exist. Peremptory challenges are made, not to members of the jury panel, but to persons who otherwise would become actual petit jurors, and petit jurors alone must swear to view the trial fairly and impartially and to render a verdict in accordance with the law of the case. Further, the court's conclusion conflicts with the law of this circuit as stated in Pope v. United States, 372 F.2d 710 (8th Cir.1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). There Judge (now Justice) Blackmun discussed in detail the jury selection process and rejected an argument that the exclusion of persons opposed to the death penalty "served improperly to produce a panel which was something less than representative of the community." Id. at 725. The court concluded that the "point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn." Id. The court today thus blurs the distinction between jury panels and actual juries, in contravention of reality and legal precedent.
The court's decision in this case rests solely on its sixth amendment analysis. See supra at 228, 242.
Cross-section analysis must start with Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Explaining that the "purpose of a jury is to guard against the exercise of arbitrary power," the Court held:
Id. at 530, 95 S.Ct. at 698 (emphasis added). Such distinctive groups or cognizable classes have been said to include "economic, social, religious, racial, political and geographical groups of the community." Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946) (daily wage-earners cognizable class).
The court today, however, enters uncharted waters when it recognizes attitudes or opinions as sufficient to create a distinctive group. Attitudes and opinions, unlike the characteristics that underlie recognized cross-sectional groups, may change rapidly, whimsically, and without objective manifestation.
Supra at 230. The court could not make this statement unless it believed that the opinions and attitudes it itemizes are sufficient to create cognizable classes. However, while individuals may be classified according to their expressed attitudes, the constitutional issue is whether such classification is durable enough and objective enough to create a recognizable group. If a jury panel were questioned closely enough, a great many additional classes might emerge. It would be absurd, however, to suggest that the sixth amendment would prevent the exclusion for cause of each such class.
The reasoning of the Supreme Court of California is most persuasive in this regard:
The efforts of other circuits to define cognizability reveal similar concerns. In United States v. Potter, 552 F.2d 901, 904 (9th Cir.1977), the Ninth Circuit held that cognizability requires "an identifiable group, which in some objectively discernible and significant way, is distinct from the rest of society, and whose interest cannot be adequately represented by other members of the * * * panel" and "some internal cohesion." Potter also looked to "whether a particular class is in fact thought of as an identifiable group by the community." Id. at 904-05. In United States v. Test, 550 F.2d 577, 591 (10th Cir.1976), the Tenth Circuit defined cognizability as: "(1) the presence of some quality or attribute which `defines and limits' the group; (2) a cohesiveness of `attitudes or ideas or experience' which distinguishes the group from the general social milieu; and (3) a `community of interest' which may not be represented by other segments of society." Potter and Test, unlike the court today, require a cohesive group recognized
McCree is not entitled to relief even if it is assumed that the majority is correct in holding that Witherspoon excludables are a cognizable group. Arkansas has significant interests that are "manifestly and primarily advanced" by its death-qualification process. Duren, 439 U.S. at 367-68, 99 S.Ct. at 670-71.
Arkansas currently utilizes a bifurcated scheme, in which a single jury sits at the guilt and sentencing stages. Georgia's use of a similar system was approved by the Supreme Court in Gregg v. Georgia, 428 U.S. 153, 162-68, 96 S.Ct. 2909, 2920-23, 49 L.Ed.2d 859 (1976). Jurors who refuse to consider imposing the death penalty are properly excluded from the sentencing phase. See Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 596, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978). A representative jury does not include the "jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." Id. at 596-97, 98 S.Ct. at 2960-61. As the Supreme Court stated in Adams, states have a "legitimate interest in obtaining jurors who could follow their instructions and obey their oaths." 448 U.S. at 44, 100 S.Ct. at 2526. Capital jurors must be willing to recognize "that in certain circumstances death is an acceptable penalty," and the "State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oath." Id. at 46, 50, 100 S.Ct. at 2527, 2529. It was exactly such jurors who were excluded from McCree's jury. Arkansas may constitutionally exclude from capital-sentencing juries those who will not consider the full range of punishments. That such exclusions will incidentally remove some venire persons from the guilt phase of the trial does not vitiate the state interest in death-qualifying juries for sentencing.
Thus, the issue narrows to whether the state has an interest in maintaining the single-jury bifurcated system. The Arkansas legislature and supreme court have approved the use of a single jury in capital cases. See Rector v. State, 280 Ark. 385, 393-98, 659 S.W.2d 168, 172-74 (1983), cert. denied, ___ U.S. ___, 104 S.Ct. 2370, 80 L.Ed.2d 842 (1984). The state has an interest in seeing that the same persons who decide guilt fix punishment. As the Arkansas Supreme Court has observed:
Rector, 280 Ark. at 395, 659 S.W.2d at 173. Placing the moral responsibility on the same group of jurors to decide both guilt and punishment is justified by the most significant policy considerations. When one jury hears both phases of the case, the jurors that comprise it cannot evade the heavy responsibility placed upon them of whether a convicted person should receive the death penalty. The court today would seem to require the replacement of some members of the guilt-phase jury with death-qualified jurors for the purpose of considering the death penalty. This division of responsibility between the two groups, even if only a few are replaced, would dilute accountability and disadvantage the accused.
Further, as several courts have observed, jurors who decide both guilt and penalty
Some courts have suggested that the state has an interest in assuring that Witherspoon excludables do not act as nullifiers in the guilt determination. See Keeten, 742 F.2d at 133; Spinkellink, 578 F.2d at 595; Rector, 280 Ark. at 397, 659 S.W.2d at 174; cf. Adams v. Texas, 448 U.S. at 46, 100 S.Ct. at 2526 (jurors must be willing to answer certain questions without "conscious distortion or bias" whose affirmative answers would lead to imposition of death penalty by the court).
As the Supreme Court has made clear several times, it is "unwilling to say that there is any one right way for a State to set up its capital-sentencing scheme." Spaziano v. Florida, ___ U.S. ___, 104 S.Ct. 3154 at 3165, 82 L.Ed.2d 340 (1984); cf. Gregg v. Georgia, 428 U.S. at 186-87, 96 S.Ct. at 2931-32 (judgments concerning capital punishment schemes should be tempered with considerations of federalism and the states' ability to judge the desirability of the death penalty as a sanction). The state interests asserted are sufficient grounds to uphold the Arkansas capital punishment structure.
The court, stating that the question is "whether an impartial jury can exist when a distinct group in the community is excluded by systematically challenging them for cause," further characterizes the issue as whether an impartial jury can be present without a "jury drawn from the entire cross section of the community as a whole, including both those who strongly favor the death penalty and those who strongly oppose it." Supra at 242 (quoting Grigsby, 569 F.Supp. at 1311). It approves the statement of the district court in Keeten that "[a] fair jury has not been provided when the prosecutor is able to keep on the jury those persons most likely to convict and to exclude from the jury for cause all those persons most likely to acquit." 578 F.Supp. at 1167. The court thus apparently holds that impartiality under the sixth amendment requires a balancing on the jury as a whole of the juror attitudes regarding the death penalty.
The court's first error in this analysis lies in assuming that partiality as a legal concept is proven when factually it can be shown that juries with WEs removed are more conviction-prone. Even if we assume that the latter proposition is correct,
Id. at 578 (quoting Spinkellink, 578 F.2d at 594) & n. 13.
To understand legal impartiality we may look either to the individual jurors or to the jury as a whole. If we look to the former, it is obvious that all jurors undoubtedly come to their task with a number of attitudes, opinions, and "biases" that may bear on the way they will view the trial. The crucial question is whether such views prevent them from taking and following their oath to consider and decide the facts impartially and conscientiously apply the law as charged by the court. As was recently held in Balkcom:
660 F.2d at 583.
If we look to the jury as a whole, the court today may be urging that we view impartiality "as a middle ground that involves a jury with persons who are in effect defendant prone." Id. But if defendant-prone individuals are added to an impartial jury, then the scales of justice have been tilted in favor of the accused. Yet the state as well as the accused enjoys a right to an impartial jury. As Balkcom points out:
Id. at 579.
The only other interpretation of the court's position today is one that assumes that jurors come to their tasks with biases that cannot be overcome, that one can only attempt to balance such conflicting biases in seating a representative jury, and that removal of WEs, who are acquittal-prone, thus tilts the jury as a whole toward conviction. I am not prepared to say, however, that a juror who is not a WE must be regarded as so conviction-prone that his very presence on the jury creates impartiality unless counterbalanced. Ultimately, I believe this view of the jury strips of significance the sworn oath of impartiality that each juror takes. The comments of the late Judge Prettyman regarding this issue are entirely apposite:
Turberville v. United States, 303 F.2d 411, 420-21 (D.C.Cir.), cert. denied, 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813 (1962), quoted in Spinkellink, 578 F.2d at 595.
In Witherspoon terms, although a death qualified jury may be more prone to convict than a jury with Witherspoon excludables, such a jury need not be "less than neutral." 391 U.S. at 520 n. 18, 88 S.Ct. at 1776 n. 18. To date three different panels of circuit courts have unanimously concluded that as a matter of law Witherspoon exclusions do not fail to produce impartial juries. Keeten, 742 F.2d at 134; Balkcom, 660 F.2d at 578-79; Spinkellink, 578 F.2d at 593-96. The court today cites as precedent only the overruled district court opinion in Keeten. It starkly stands alone in its views as to partiality under the sixth amendment.
The court today declares that jurors who would refuse to follow the law in a capital case and consider the full range of penalties, including a sentence of death, are a distinctive group whose absence from a petit jury robs it of neutrality and impartiality.
Witherspoon, 391 U.S. at 517-518, 520 n. 18, 88 S.Ct. at 1774-1775, 1776 n. 18 (emphasis original).
Childress, 715 F.2d at 1319-20.
Grigsby, 569 F.Supp. at 1294. Since we find that the exclusion of WEs violates the sixth amendment, we need not pass on the court's finding relating to blacks and women.
Witherspoon, 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original). This holding explicitly allows for venirepersons excludable in the penalty phase to be included on the jury determining guilt-innocence.
The state makes much of the argument that a WE participating in the guilt-innocence determination might vote to find a defendant not guilty simply to insure that the death sentence will not be imposed during the penalty phase. This argument has little merit because it overlooks the requirement that the WE must swear to consider the evidence and follow the law in determining guilt, otherwise the WE can be excluded for cause. We cannot assume a juror who takes the oath will not abide by it.
Addressing Hovey's second contention, the California Supreme Court concluded that voir dire for death qualification does tend to bias the resulting jury against the defendant and make it conviction prone. Hovey, 28 Cal.3d at 70-73, 616 P.2d at 1347-50, 168 Cal.Rptr. at 174-77. Thus, the court held that individualized sequestered voir dire should be required in order to "minimize the untoward effects of death-qualification * * *." Id. at 80, 616 P.2d at 1353, 168 Cal.Rptr. at 181.
Arkansas asserts Adams held, sub silentio, that WEs can be excluded from the guilt-innocence phase as well as the penalty determination. There is no language in the opinion which supports this contention. The Court focused on the penalty questions which, under Texas law, the jury must answer affirmatively in order to sentence a defendant to death. Adams, 448 U.S. at 40-41, 46, 50, 100 S.Ct. at 2524-25, 2526, 2529. The Court gave no indication it was addressing or deciding the issue Witherspoon had expressly left open. Adams does support the proposition that a state may exclude jurors who will not abide by their oath. Id. at 44, 46, 50, 100 S.Ct. at 2526, 2527, 2529. However, that is not an issue in the present case. We agree, and petitioners do not dispute, that Arkansas may exclude jurors who will not take the oath and decide guilt-innocence on the basis of the law and evidence presented. But the state cannot assume a juror with scruples regarding the death penalty will violate the oath and refuse to follow the law. Adams holds that the state cannot exclude venirepersons simply because their attitudes toward the death penalty may affect their deliberations on issues of fact. Id. at 46-47, 49-51, 100 S.Ct. at 2526-27, 2528-29.
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), is entirely consistent with our holding today. In that case the trial judge "asked whether any of the prospective jurors were so opposed to capital punishment that `they could not sit, listen to the evidence, listen to the law, (and) make their determination solely upon the evidence and the law without considering the fact that capital punishment' might be imposed." Id. at 595, 98 S.Ct. at 2960. Four venirepersons indicated they could not. The judge then asked each of the four whether they could take the oath "to well and truely [sic] try this case ... and follow the law * * *." Id. On two occasions, each of the four explicitly stated he or she could not take the oath. Id. at 596, 98 S.Ct. at 2960. The Supreme Court concluded:
Id. (citation omitted). Of course, the Court had to "assume arguendo" that Witherspoon allowed an attack on the conviction because Witherspoon explicitly did not decide that issue.
In Maggio v. Williams, 464 U.S. 46, 104 S.Ct. 311, 78 L.Ed.2d 43 (1983), the Court vacated the stay of Williams' execution because it was based on his second petition for a writ of habeas corpus which the district court found "frivolous and without merit." Id. 104 S.Ct. at 312. The Fifth Circuit had affirmed the district court's denial of the petition. In passing, the Supreme Court commented on Williams' sixth and fourteenth amendment claims, finding "the evidence proffered by Williams on the question whether the jury was less than neutral with respect to guilt [was] tentative and fragmentary, and we cannot conclude that [the district court] abused its discretion in refusing to hold an evidentiary hearing on this issue." Id. 104 S.Ct. at 314. It is important to note that the Court did not indicate the issue itself lacked merit, but only that Williams' claim had no merit. In fact, two justices explicitly indicated that the issues raised in Grigsby do have merit. Id. 104 S.Ct. at 321 n. 7 (Brennan, J., dissenting). See also Rector v. Arkansas, ___ U.S. ___, 104 S.Ct. 2370, 80 L.Ed.2d 842 (1984) (Marshall, J., dissenting); Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 754-55, 78 L.Ed.2d 541 (1984) (Brennan, J., dissenting); Knighton v. Maggio, ___ U.S. ___, 105 S.Ct. 32, 82 L.Ed.2d 923 (1984) (Brennan, J., dissenting). In the instant case the evidence presented was neither tentative nor fragmentary and we conclude that venirepersons were excluded on a broader basis than required by Witherspoon.
Sullivan v. Wainwright, 464 U.S. 109, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983), also involved a second petition for a writ of habeas corpus which was denied by the district court and affirmed by the Eleventh Circuit. The case reflects the Supreme Court's general policy of avoiding multiple reviews of successive writs of habeas corpus in capital cases, rather than the Court's considered judgment on the merits of the sixth amendment claim we address today. Id. 104 S.Ct. at 452. The Court did state Sullivan's claim that the jury was biased in favor of the prosecution was found meritless, but the implication is not that Witherspoon precluded the claim; rather, it appears no evidence ever was presented to substantiate the merits of Sullivan's claim. Id. 104 S.Ct. at 451.
Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984), is very similar to Sullivan. Once again the Court was faced with successive writs of habeas corpus and multiple reviews in a capital case and the Court acted quickly to vacate the stay of execution. Id. 104 S.Ct. at 752-53. Two justices expressed their view that petitioners must show actual bias on their particular juries to make out a claim of non-neutrality. Id. 104 S.Ct. at 754 (Rehnquist, J., concurring). However, another justice indicated that the claims raised in Grigsby have merit. Id. 104 S.Ct. at 754-55 (Brennan, J., dissenting). Justice Marshall, as noted previously, has expressed a similar view. See Rector, 104 S.Ct. at 2370 (Marshall, J., dissenting).
Similarly, the California Supreme Court recognized the question whether the exclusion of WEs from the guilt-innocence phase of a capital trial violates the defendant's sixth amendment right is a question of fact, not law. Hovey, 28 Cal.3d at 26-60, 616 P.2d at 1314-41, 168 Cal.Rptr. at 141-68.
Gross, Determining the Neutrality of Death-Qualified Juries: Judicial Appraisal of Empirical Data, 8 Law & Hum. Behav. 7, 13 (1984).
The problem is that the court focused on the wrong issue. The issue is not whether nondeath-qualified jurors are acquittal prone or death-qualified jurors are conviction prone. The real issue is whether a death qualified jury is more prone to convict than the juries used in noncapital criminal cases — juries which include the full spectrum of attitudes and perspectives regarding capital punishment. The fact that the state charges a defendant with a capital crime should not cause it to obtain a jury more prone to convict than if it had charged the defendant with a noncapital offense.
One commentator has noted:
Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich.L.Rev. 1, 59 n. 199 (1982).
Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich.L.Rev. 1, 59-60 (1982).
In its brief, the state has raised a concern about the possible retroactive application of our decision. There is no reason to decide that issue on the facts of the case before us. We decline to speculate as to the proper resolution of that issue and believe that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), will prevent most prisoners from raising it.
The questioning and responses of other members of the jury panel were similar to this exchange.
Regardless of what constitutional principle the majority opinion is ultimately based upon, the district court erred in finding that McCree was entitled to relief on the ground that death-qualified juries are conviction-prone. McCree failed to demonstrate "actual bias" on the part of the jurors that convicted him. See Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 754, 78 L.Ed.2d 541 (1984) (Rehnquist, J., concurring); Smith v. Phillips, 455 U.S. 209, 216-17, 102 S.Ct. 940, 945-46, 71 L.Ed.2d 78 (1982); Dennis v. United States, 339 U.S. 162, 167-68, 70 S.Ct. 519, 521-22, 94 L.Ed.2d 734 (1950).
A simple example shows the dangers of forsaking the "actual bias" requirement for reliance on hypothetical studies. The district court concluded the studies established that "one consistent and inevitable result of the death-qualification process is the disproportionate exclusion of blacks and women." 569 F.Supp. at 1283. The limited data in the record disproves this "inevitable" conclusion. Following voir dire, eight individuals (five men and three women) were struck for cause solely because of the Witherspoon inquiry. Based on the gender figures for the group (11 men and 13 women), women (23.1%) were excluded for their death scruples half as frequently as men (45.5%).
Further, we also observe that there was evidence before the district court of the volatility and emphemeral nature of such attitudes. Dr. Gerald Shure testified that classifications can shift during a series of questions and some jurors can change their attitudes during the trial. The number of WEs has evidently varied from 23% of the population to 11-17% of the jury eligible population.
First, Witt makes clear that the essential consideration is whether jurors will conscientiously perform their duties in accordance with their instructions and their oath.
___ U.S. at ___, 105 S.Ct. at 852. As I have argued, this is the proper, relevant consideration. Supra at 243, 247. Second, the Court's consideration of the Witherspoon standard as redefined in Adams indicates there is a serious question whether Witherspoon can support the recognition of WEs as a distinctive class.
Finally, Justice Brennan's dissent in Witt sets forth in some detail the "fair cross-section" arguments enumerated by the court today, including the conclusion of conviction-proneness, and cites numerous authorities relied upon by the court today, including the district court decisions in Grigsby and Keeten. The majority opinion in Witt, however, rejects these views. It observes that the dissent's "exegesis" of Witherspoon "is a latter-day version of a `fair cross-section' theme barely adumbrated by that opinion," ___ U.S. at ___, 105 S.Ct. at 852, and notes that the dissent's reasoning regarding the cross-sectional requirement "if carried to its logical conclusion would require that a juror be seated who frankly avowed that he could not and would not follow the judge's instructions on the law." Id. In stating that the Court "adhere[s] to the essential balance struck by the Witherspoon decision * * * if not to the version of it presented by today's dissent," id., such reasoning is rejected.
The language of Witt relevant here is the product of a footnote exchange between Justices Rehnquist and Brennan in an opinion which elsewhere deprecates the force of footnotes. ___ U.S. at ___, 105 S.Ct. at 851. Nonetheless, the discussion in Witt gives substantial support to this dissent.