Death-Qualification After Wainwright v. Witt: The Issues in Gray v. Mississippi

When juries were given the right to decide whether a person convicted of a capital offense should live or die, judges had wide latitude in determining whether a venire member’s views about the death penalty disqualified him from service. For many years, judges generally were allowed to find anyone who said he opposed, did not believe in, or had “conscientious scruples” about the death penalty unfit to sit on juries in capital cases. This practice, which was designed to provide the State with juries that would pass “impartially” upon defendants’ guilt and consider imposing the ultimate sanction upon the guilty, undoubtedly resulted in the excusal for cause of some people who would have been willing and able to do both of these things. Nonetheless, because the defendant’s right to an “impartial” jury was thought to guarantee only that he be tried by a group of “impartial” jurors, few courts were troubled by this prospect. The Supreme Court flatly rejected this traditional wisdom in Witherspoon v. Illinois, 391 U.S. 510 (1968). Since most Americans appeared to have qualms about the death penalty, the Court felt that the for-cause exclusion of every such individual disabled Witherspoon’s jury from “express[ing] the conscience of the community on the ultimate question of life and death.” Indeed, the Court was persuaded that their systematic disqualification barred his jury even from voicing “the conscience of the community” of persons willing to do what the State expects of jurors in capital cases. Therefore, the Court deemed this a “hanging jury,” not the “impartial” jury to which Witherspoon was entitled under the sixth and fourteenth amendments, and held that the death sentence that it had imposed upon him could not be carried out. Without expressing an opinion as to whether an individual’s aversion to the death penalty could ever justify his disqualification from a capital sentencing jury, the Court declared that people may not be so excused if they have not made it unmistakably clear (1) that 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, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Seventeen years later, in Wainwright v. Witt, 469 U.S. 412 (1985), the Court held that the State can consider people whose feelings about the death penalty would prevent their “following the law” unqualified to sit on capital sentencing juries. The legitimacy of purging these juries of everyone who would never vote to condemn a human being to die (automatic voters against death, or “AVADs”) or who would vote to acquit a guilty defendant in order to protect him against what they believed would be an undeserved death sentence (“nullifiers”) is debatable, but this unexplained holding was clearly foreshadowed by prior decisions. What was unprecedented about Witt was its rejection of the evidentiary standard announced in Witherspoon. Witt involved a collateral attack on the for-cause exclusion of a juror who said only that she did not believe in the death penalty, that she was “afraid” that this would “interfere with [her] sitting as a juror in this case,” and that she “th[ought]” it would “interfere with judging the guilt or innocence of the Defendant in this case.” By affirming her dismissal, the Court ruled that the inability of AVADs and nullifiers “impartially” to “follow the law” need not be “unmistakably clear” in order for their excusal for cause to be constitutional. Rather, it decided that prospective capital sentencing jurors may be declared incompetent whenever they have been shown to lack “impartiality.” As a corollary, Witt also held that a trial judge’s determination whether a juror’s views on the death penalty would render him an AVAD or nullifier is a factual finding entitled to deference on habeas corpus review. And the Court’s evaluation of the exclusion challenged in that case manifested a commitment to reducing federal scrutiny of these decisions to a truly minimal level. The Court gave one reason for this doctrinal retrenchment: “excluding prospective capital sentencing jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias.” Justice Rehnquist, spokesman for the six-Justice majority, expanded upon this theme in a passage worth repeating in full: Exclusion of jurors opposed to capital punishment began with a recognition that certain of those jurors might frustrate the State’s legitimate interest in administering constitutional capital sentencing schemes by not following their oaths. Witherspoon simply held that the State’s power to exclude did not extend beyond its interest in removing those particular jurors. But there is nothing talismanic about juror exclusion under Witherspoon merely because it involves capital sentencing juries. Witherspoon is not grounded in the Eighth Amendment’s prohibition against cruel and unusual punishment, but in the Sixth Amendment. Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts. That is what an “impartial” jury consists of, and we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor. There is one problem with this analysis: there is something talismanic about juror exclusion under Witherspoon precisely because it involves capital sentencing juries. That is why Witt reaffirmed Witherspoon’s ban on the practice of regarding jurors with reservations about the death penalty ipso facto as biased. And the Court has renewed its commitment to the idea that the selection of capital sentencing juries is “different” even after Witt. In Lockhart v. McCree, 106 S. Ct. 1758 (1986), the Court considered the charge that the exclusion of AYADs from the jury that convicted McCree of capital murder violated his right to an “impartial” jury on the question of his guilt or innocence because, in their absence, a jury is more likely to find a person guilty of criminal behavior (or on more serious charges) than would a jury truly representative of the views of the unbiased community. Assuming the validity of his social science claims, the Court dismissed McCree’s legal argument on the ground that Witherspoon and its progeny, on which he relied, were inapposite. According to Justice Rehnquist, who once again spoke for the Court, this was principally because those cases “dealt with the special context of capital sentencing, where the range of jury discretion necessarily gave rise to far greater concern over the possible effects of an ‘imbalanced’ jury.” In other words, one year after Witt, the Court characterized its prohibition of the exclusion of “impartial” jurors with reservations about capital punishment as a reflection of its judgment that greater care must be taken to guarantee the “impartiality” of capital sentencing juries than of juries employed to determine guilt or innocence, even of a capital offense. The same judgment is also evident in Turner v. Murray, 106 S. Ct. 1683 (1986), in which the Court held that the failure to allow voir dire inquiry with regard to the possibility of bias on the part of white jurors where a black defendant is accused of an interracial crime vitiates his death sentence, but not his conviction. Since the Court has shown no signs of backing away from its decision in Witt, the question arises how far its commitment to deregulating the death-qualification process extends. Gray v. Mississippi, 106 S. Ct. 1182 (1986), presents the Court with a number of aspects of that question. After reviewing the record in Gray, this article will consider them seriatim. Part II will explore the deference to which appellate court fact finding is entitled on direct review in a criminal case, as I consider what are to be taken as the facts in Gray. Each of the two most reasonable ways of reading the record in this case presents significant issues regarding the capital sentencing jury selection process, and they will be examined in Parts III and IV. Part III will focus upon the risks of ex post facto factfinding as they bear upon the reconsideration of rulings that jurors are qualified to serve under Witt and the use of peremptory challenges to accomplish what Witherspoon and Witt forbade. Part IV will discuss the excludability of jurors on the ground that they do not know whether they could ever vote to impose a death sentence upon a convicted murderer. Finally, Part V will consider the harmless error problems presented by the case in the event that one juror was improperly disqualified on that basis.