# Witherspoon v. Illinois/Dissent Black

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Mr. Justice BLACK, with whom Mr. Justice HARLAN and Mr. Justice WHITE join, dissenting.
The Court closes its reversal of this murder case with the following graphic paragraph:
'Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.'
I think this charge against the Illinois courts is completely without support in the record. The opinion affirming this conviction for a unanimous Illinois Supreme Court was written by Justice Walter Schaefer, a judge nationally recognized as a protector of the constitutional rights of defendants charged with crime. It seems particularly unfortunate to me that this Court feels called upon to charge that Justice Schaefer and his associates would let a man go to his death after the trial court had contrived a 'hanging jury' and, in this Court's language, 'stacked the deck' to bring about the death sentence for petitioner. With all due deference it seems to me that one might much more appropriately charge that this Court has today written the law in such a way that the States are being forced to try their murder cases with biased juries. If this Court is to hold capital punishment unconstitutional, I think it should do so forthrightly, not by making it impossible for States to get juries that will enforce the death penalty.
Now to the case.
On April 29, 1959, more than nine years ago, petitioner shot and killed a policeman in order to escape arrest. Petitioner had been struggling on the street with a woman whom he had met in a tavern when a police patrol car assigned to the vicinity stopped at a nearby traffic light. The woman was able to free herself from petitioner's grasp and rushed to the patrol car where she told the two policemen in it that petitioner was carrying a gun. Petitioner overheard this conversation and fled to a nearby parking lot and hid in one of the many parked trailers and tractors. It was while one of the policemen was searching this trailer that petitioner shot him. There is no doubt that petitioner killed the policeman since the dying officer himself identified petitioner at the hospital, and petitioner later lectured the police on using such young and inexperienced officers. And as I read the majority's opinion, even those who agreed to it are unwilling to cast any doubt on petitioner's conviction. See n. 21, majority opinion.
At his trial for murder petitioner was represented by three appointed counsel, the chief of whom was the then Chairman of the Chicago Bar Association Committee for the Defense of the Indigent. It is important to note that when those persons who acknowledged having 'conscientious or religious scruples against the infliction of the death penalty' were excluded from the jury, defense counsel made no attempt to show that they were nonetheless competent jurors. In fact, when the jurors finally were accepted by defense counsel, the defense still had three peremptory challenges left to exercise. In the past this has frequently been taken as an indication that the jurors who were impaneled were impartial. See cases collected in United States v. Puff, 211 F.2d 171, 185 (C.A.2d Cir. 1954). And it certainly amounts to a clear showing that in this case petitioner's able and distinguished counsel did not believe petitioner was being tried by a biased, much less a 'hanging,' jury.
After petitioner's conviction, another very distinguished attorney was appointed to prosecute his appeal, and an extensive brief alleging some 15 separate trial errors was filed in the Supreme Court of Illinois. Again, however, there was no indication that anyone thought petitioner had been convicted by a biased jury. On March 25, 1963, the Supreme Court of Illinois affirmed petitioner's conviction in a lengthy opinion. People v. Witherspoon, 27 Ill.2d 483, 190 N.E.2d 281. Petitioner attacked his conviction by pursuing both habeas corpus relief and the statutory post-conviction remedy. Again no mention was made of any alleged bias in the jury. When the Supreme Court of Illinois on January 17, 1964, refused the requested relief, petitioner sought federal habeas corpus, and was assisted by a third court-appointed attorney. As in his previous attacks no claim was made that petitioner was denied an impartial jury. Petitioner was unsuccessful in this federal habeas corpus bid, United States ex rel. Witherspoon v. Ogilvie, 337 F.2d 427 (C.A.7th Cir. 1964), and we denied certiorari. Witherspoon v. Ogilvie, 379 U.S. 950, 85 S.Ct. 452, 13 L.Ed.2d 547. Then in February 1965, petitioner filed a petition in the state courts requesting whatever form of remedy is 'provided for by Illinois law.' Among other claims, now appeared the contention that petitioner's constitutional rights were violated when the trial court excused for cause prospective jurors having scruples against capital punishment. The state trial judge dismissed the petition on the ground that it failed to set forth facts sufficient to entitle the petitioner to relief. Petitioner then appealed to the Illinois Supreme Court where he was appearing for the third time in this case and where, more than six years after his trial, he argued that the disqualification for cause of jurors having conscientious or religious scruples against capital punishment was unconstitutional. That court disallowed petitioner's claim concluding that 'we adhere to the system in which each side is allowed to examine jurors and eliminate those who can not be impartial.' 36 Ill.2d, at 476, 224 N.E.2d, at 262. This Court subsequently granted certiorari to review the decision of the Illinois Supreme Court.
At the time of petitioner's trial, § 743 of Ill.Rev.Stat., c. 38, provided:
'In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.'
The obvious purpose of this section is to insure, as well as laws can insure such a thing, that there be an impartial jury in cases in Illinois where the death sentence may be imposed. And this statute recognizes that the people as a whole, or as they are usually called, 'society' or 'the state,' have as much right to an impartial jury as do criminal defendants. This Court itself has made that quite clear:
'It is to be remembered that such impartiality requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.' Hayes v. State of Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 30 L.Ed. 578.
See also Swain v. State of Alabama, 380 U.S. 202, 219-220, 85 S.Ct. 824, 835, 13 L.Ed.2d 759.
As I see the issue in this case, it is a question of plain bias. A person who has conscientious or religious scruples against capital punishment will seldom if ever vote to impose the death penalty. This is just human nature, and no amount of semantic camouflage can cover it up. In the same manner, I would not dream of foisting on a criminal defendant a juror who admitted that he had conscientious or religious scruples against not inflicting the death sentence on any person convicted of murder (a juror who claims, for example, that he adheres literally to the Biblical admonition of 'an eye for an eye'). Yet the logical result of the majority's holding is that such persons must be allowed so that the 'conscience of the community' will be fully represented when it decides 'the ultimate question of life or death.' While I have always advocated that the jury be as fully representative of the community as possible, I would never carry this so far as to require that those biased against one of the critical issues in a trial should be represented on a jury. I still subscribe to the words of this Court written over 75 years ago in Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429:
'As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had 'conscientious scruples in regard to the infliction of the death penalty for crime' were rightly permitted to be challenged by the government for cause. A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror. This court has accordingly held that a person who has a conscientious belief that polygamy is rightful may be challenged for cause on a trial for polygamy. Reynolds v. United States, 98 U.S. 145, 147, 157, 25 L.Ed. 244; Miles v. United States, 103 U.S. 304, 310, 26 L.Ed. 481. And the principle has been applied to the very question now before us by Mr. Justice Story in United States v. Cornell, 2 Mason, 91, 105, and by Mr. Justice Baldwin in United States v. Wilson, Baldwin, 78, 83, as well as by the courts of every state in which the question has arisen, and by express statute in many states. Whart.Crim.Pl. (9th ed.) § 664.'
The majority opinion attempts to equate those who have conscientious or religious scruples against the death penalty with those who do not in such a way as to balance the allegedly conflicting viewpoints in order that a truly representative jury can be established to exercise the community's discretion in deciding on punishment. But for this purpose I do not believe that those who have conscientious or religious scruples against the death penalty and those who have no feelings either way are in any sense comparable. Scruples against the death penalty are commonly the result of a deep religious conviction or a profound philosophical commitment developed after much soul-searching. The holders of such scruples must necessarily recoil from the prospect of making possible what they regard as immoral. On the other hand, I cannot accept the proposition that persons who do not have conscientious scruples against the death penalty are 'prosecution prone.' With regard to this group, I would agree with the following statement of the Court of Appeals for the District of Columbia Circuit: posed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. * * *' Turberville v. United States, 112 U.S.App.D.C. 400, 409-410, 303 F.2d 411, 420-421 (1962), cert. denied, 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813.
It seems to me that the Court's opinion today must be read as holding just the opposite from what has been stated above. For no matter how the Court might try to hide it, the implication is inevitably in its opinion that people who do not have conscientious scruples against the death penalty are somehow callous to suffering and are, as some of the commentators cited by the Court called them, 'prosecution prone.' This conclusion represents a psychological foray into the human mind that I have considerable doubt about my ability to make, and I must confess that the two or three so-called 'studies' cited by the Court on this subject are not persuasive to me.
Finally, I want to point out that the real holding in this case is, at least to me, very ambiguous. If we are to take the opinion literally, then I submit the Court today has decided nothing of substance, but has merely indulged itself in a semantic exercise. For as I read the opinion, the new requirement placed upon the States is that they cease asking prospective jurors whether they have 'conscientious or religious scruples against the infliction of the death penalty,' but instead ask whether 'they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.' (See majority opinion, n. 21.) I believe that this fine line the Court attempts to draw is based on a semantic illusion and that the practical effect of the Court's new formulation of the question to be asked state juries will not produce a significantly different kind of jury from the one chosen in this case. And I might add that the States will have been put to a great deal of trouble for nothing. Yet, as I stated above, it is not clear that this is all the Court is holding. For the majority opinion goes out of its way to state that in some future case a defendant might well establish that a jury selected in the way the Illinois statute here provides is 'less than neutral with respect to guilt.' (Majority opinion, n. 18.) This seems to me to be but a thinly veiled warning to the States that they had better change their jury selection procedures or face a decision by this Court that their murder convictions have been obtained unconstitutionally.
I believe that the Court's decision today goes a long way to destroying the concept of an impartial jury as we have known it. This concept has been described most eloquently by Justice Story:
'To insist on a juror's sitting in a cause when he acknowledges himself to be under influences, no matter whether they arise from interest, from prejudices, or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objects of a trial by jury, and to bring into disgrace and contempt, the proceedings of courts of justice. We do not sit here to produce the verdicts of partial and prejudiced men; but of men, honest and indifferent in causes. This is the administration of justice (which is required).' United States v. Cornell, 25 Fed.Cas. 650, 655-656, No. 14,868 (1820).
It is just as necessary today that juries be impartial as it was in 1820 when Justice Story made this statement. I shall not contribute in any way to the destruction of our ancient judicial and constitutional concept of trial by an impartial jury by forcing the States through 'constitutional doctrine' laid down by this Court to accept jurors who are bound to be biased. For this reason I dissent.

## Notes

1 Certainly long delays in raising objections to trial proceedings should not be condoned except to prevent intolerable miscarriages of justice. Cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.
2 See Bumper v. North Carolina, 391 U.S. 543, at 554, 88 S.Ct. 1788, at 1794, 20 L.Ed.2d 797 (dissenting opinion).
'No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not op-
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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