Uttecht v. Brown

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UTTECHT, SUPERINTENDENT, WASHINGTON

STATE PENITENTIARY v. BROWN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 06–413. Argued April 17, 2007—Decided June 4, 2007
A Washington jury sentenced respondent Brown to death, and the state
appellate courts affirmed. Subsequently, the Federal District Court
denied Brown’s habeas petition, but the Ninth Circuit reversed, find
ing that under Witherspoon v. Illinois, 391 U. S. 510, and its progeny,
the state trial court had violated Brown’s Sixth and Fourteenth
Amendment rights by excusing “Jurors Z” for cause on the ground
that he could not be impartial in deciding whether to impose a death
sentence.
Held:
1. Courts reviewing claims of error under Witherspoon and Wain
wright v. Witt, 469 U. S. 412, especially federal habeas courts, owe
deference to the trial court, which is in a superior position to deter
mine a potential juror’s demeanor and qualifications. This Court’s
precedents establish at least four relevant principles. First, a crimi
nal defendant has the right to an impartial jury drawn from a venire
that has not been tilted in favor of capital punishment by selective
prosecutorial challenges for cause. Witherspoon, supra, at 521. Sec
ond, the State has a strong interest in having jurors who are able to
apply capital punishment within the framework state law prescribes.
Witt, 469 U. S., at 416. Third, to balance these interests, a juror who
is substantially impaired in the ability to impose the death penalty
under the state-law framework can be excused for cause, but if the
juror is not so impaired, removal for cause is impermissible. Id., at
424. Fourth, in determining whether a potential juror’s removal
would vindicate the State’s interest without violating the defendant’s
right, the trial court bases its judgment in part on the juror’s de
meanor, a judgment owed deference by reviewing courts. Id., at 424–
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Syllabus

434. The trial court is in a superior position to assess demeanor, a
factor critical in assessing the attitude and qualifications of potential
jurors. Id., at 428. The Antiterrorism and Effective Death Penalty
Act of 1996’s requirements provide additional, and binding, directions
to accord deference, creating an independent, high standard to be
met before a federal court may issue a habeas writ to set aside state-
court rulings. By not according the required deference here, the
Ninth Circuit failed to respect the limited role of federal habeas relief
in this area. Pp. 2–7.
2. In applying the Witherspoon-Witt rule, it is instructive to con
sider the entire voir dire in Brown’s case and then turn to Juror Z’s
questioning. Pp. 7–12.
(a) Here, 11 days of voir dire were devoted to determining
whether potential jurors were death qualified. During that phase, 11
of the jurors the defense challenged for cause were excused. The de
fense objected to 7 of the 12 jurors the State challenged for cause, and
only 2 of those 7 were excused. Before deciding a contested chal
lenge, the court allowed each side to explain its position and recall a
potential juror. It also gave careful and measured explanations for
its decisions. Before individual oral examination, the court distrib
uted a questionnaire asking jurors to explain their attitudes toward
the death penalty and explained that Brown was only eligible for
death or life in prison without possibility of release or parole. It re
peated the sentencing options before Juror Z’s group was questioned.
Pp. 7–10.
(b) The transcript reveals that, despite the preceding instructions
and information, Juror Z had both serious misunderstandings about
his responsibility as a juror and an attitude toward capital punish
ment that could have prevented him from returning a death sentence
under the facts of this case. He was told at least four times that
Brown could not be released from prison and stated six times that he
could follow the law. But he also gave more equivocal statements
that he would consider the death penalty only if there was no possi
bility that Brown would be released to reoffend. When the State
challenged Juror Z on the grounds that he was confused about the
conditions under which death could be imposed and seemed to believe
it only appropriate when there was a risk of release and recidivism,
the defense volunteered that it had no objection. Pp. 10–12.
3. The Ninth Circuit erred in holding that both the state trial
court’s excusal of Juror Z and the State Supreme Court’s affirmance
were contrary to, or an unreasonable application of, clearly estab
lished federal law. Pp. 12–19.
(a) Contrary to the Ninth Circuit’s conclusion, the State Supreme
Court explicitly found that Juror Z was substantially impaired. Even
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Syllabus

absent this explicit finding, the only fair reading of the opinion is
that the state court applied the Witt standard in assessing his ex
cusal. Regardless, there is no requirement in a case involving the
Witt-Witherspoon rule that a state appellate court make particular
reference to each juror’s excusal, for it is the trial court’s ruling that
counts. Pp. 12–14.
(b) On this record, the trial court acted well within its discretion
in granting the State’s motion to excuse Juror Z. His answers, on
their face, could have led the trial court to believe that he would be
substantially impaired in his ability to impose the death penalty ab
sent the possibility that Brown would be released and would reoffend.
The trial court, furthermore, is entitled to deference because it had
an opportunity to observe Juror Z’s demeanor. The State’s challenge,
Brown’s waiver of an objection, and the trial court’s excusal of Juror
Z support the conclusion that the interested parties all felt that re
moval was appropriate under the Witherspoon-Witt rule. While there
is no independent federal requirement that a state-court defendant
object to the prosecution’s challenge to preserve a Witherspoon claim,
voluntary acquiescence to, or confirmation of, a juror’s removal can be
taken into account. The defense did not just deny a conscientious
trial judge an opportunity to explain his judgment or correct an error;
it also deprived reviewing courts of further factual findings to help
explain the trial court’s decision. The need to defer to the trial court’s
demeanor decision does not foreclose the possibility of reversal where
the record discloses no basis for a substantial impairment finding,
but the record here does not show the trial court exceeded its discre
tion in excusing Juror Z. The State Supreme Court recognized the
deference owed and, contrary to the Ninth Circuit’s misreading of its
opinion, identified the correct standard required by federal law and
found it satisfied. Pp. 14–17.
(c) The Court is not persuaded by Brown’s additional arguments
to depart from the State Supreme Court’s determination of the state
law at issue or to ignore Brown’s failure to object to Juror Z’s excusal.
Pp. 17–19.
451 F. 3d 946, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which SOUTER, J.,
joined.
 Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–413
_________________

JEFFREY UTTECHT, SUPERINTENDENT, WASH-

INGTON STATE PENITENTIARY, PETITIONER v.

CAL COBURN BROWN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 4, 2007]

JUSTICE KENNEDY delivered the opinion of the Court.
Respondent Cal Coburn Brown robbed, raped, tortured,
and murdered one woman in Washington. Two days later,
he robbed, raped, tortured, and attempted to murder a
second woman in California. Apprehended, Brown con
fessed to these crimes and pleaded guilty to the California
offenses, for which he received a sentence of life impris
onment. The State of Washington, however, sought the
death penalty and brought Brown to trial. Based on the
jury’s verdicts in the guilt and sentencing phases of the
trial, Brown was sentenced to death. His conviction and
sentence were affirmed by the Supreme Court of the State
of Washington. State v. Brown, 132 Wash. 2d. 529, 940
P. 2d 546 (1997) (en banc).
Brown filed a petition for writ of habeas corpus in the
United States District Court for the Western District of
Washington. The District Court denied the petition, App.
to Pet. for Cert. 77a–79a, 91a, but the United States Court
of Appeals for the Ninth Circuit reversed. Brown v. Lam
bert, 451 F. 3d 946 (2006). The Court of Appeals consid
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Opinion of the Court

ered, among other arguments for setting aside the capital
sentence, the contention that under Witherspoon v. Illi
nois, 391 U. S. 510 (1968), and its progeny, the state trial
court had violated Brown’s Sixth and Fourteenth Amend
ment rights by excusing three potential jurors—whom we
refer to as Jurors X, Y, and Z—for cause. The State moved
to excuse these jurors due to the concern that they could
not be impartial in deciding whether to impose a death
sentence. The Court of Appeals held it was proper to
excuse Jurors X and Y, but agreed with the defense that it
was unconstitutional to excuse Juror Z for cause. On this
premise the court held that Brown’s death sentence could
not stand, requiring that Brown receive a new sentencing
trial more than a decade after his conviction.
We granted certiorari, 549 U. S. __ (2007), and we re
verse the judgment of the Court of Appeals.
I
When considering the controlling precedents,
Witherspoon is not the final word, but it is a necessary
starting point. During the voir dire that preceded William
Witherspoon’s capital trial, the prosecution succeeded in
removing a substantial number of jurors based on their
general scruples against inflicting the death penalty. The
State challenged, and the trial court excused for cause, 47
members of the 96-person venire, without significant
examination of the individual prospective jurors. 391
U. S., at 514–515; see also Brief for Petitioner in
Witherspoon v. Illinois, O. T. 1967, No. 1015, p. 4. The
Court held that the systematic removal of those in the
venire opposed to the death penalty had led to a jury
“uncommonly willing to condemn a man to die,” 391 U. S.,
at 521, and thus “woefully short of that impartiality to
which the petitioner was entitled under the Sixth and
Fourteenth Amendments,” id., at 518. Because “[a] man
who opposes the death penalty, no less than one who
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Opinion of the Court

favors it, can make the discretionary judgment entrusted
to him by the State,” id., at 519, the Court held that “a
sentence of death cannot be carried out if the jury that
imposed or recommended it was chosen by excluding
veniremen for cause simply because they voiced general
objections to the death penalty,” id., at 522. The Court
also set forth, in dicta in a footnote, a strict standard for
when an individual member of the venire may be removed
for cause on account of his or her views on the death pen
alty. Id., at 522–523, n. 21.
In Wainwright v. Witt, 469 U. S. 412 (1985), the Court
explained that “Witherspoon is best understood in the
context of its facts.” Id., at 418. The Court noted that in
Witherspoon the trial court had excused half the venire—
every juror with conscientious objections to capital pun
ishments. 469 U. S., at 416. Furthermore, the state sen
tencing scheme under which Witherspoon’s sentence was
imposed permitted the jury “unlimited discretion in choice
of sentence.” Id., at 421. When a juror is given unlimited
discretion, the Court explained, all he or she must do to
follow instructions is consider the death penalty, even if in
the end he or she would not be able to impose it. Ibid.
Rejecting the strict standard found in Witherspoon’s foot
note 21, the Court recognized that the diminished discre
tion now given to capital jurors and the State’s interest in
administering its capital punishment scheme called for a
different standard. The Court relied on Adams v. Texas,
448 U. S. 38, 45 (1980), which provided the following
standard: “[W]hether the juror’s views would prevent or
substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.”
Witt, 469 U. S., at 424 (internal quotation marks omitted).
The Court in Witt instructed that, in applying this
standard, reviewing courts are to accord deference to the
trial court. Deference is owed regardless of whether the
trial court engages in explicit analysis regarding substan
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Opinion of the Court

tial impairment; even the granting of a motion to excuse
for cause constitutes an implicit finding of bias. Id., at
430. The judgment as to “whether a veniremen is biased
. . . is based upon determinations of demeanor and credi
bility that are peculiarly within a trial judge’s province.
Such determinations [are] entitled to deference even on
direct review; the respect paid such findings in a habeas
proceeding certainly should be no less.” Id., at 428 (inter
nal quotation marks, footnote, and brackets omitted). And
the finding may be upheld even in the absence of clear
statements from the juror that he or she is impaired be
cause “many veniremen simply cannot be asked enough
questions to reach the point where their bias has been
made ‘unmistakably clear’; these veniremen may not know
how they will react when faced with imposing the death
sentence, or may be unable to articulate, or may wish to
hide their true feelings.” Id., at 424–425. Thus, when
there is ambiguity in the prospective juror’s statements,
“the trial court, aided as it undoubtedly [is] by its assess
ment of [the venireman’s] demeanor, [is] entitled to re
solve it in favor of the State.” Id., at 434.
The rule of deference was reinforced in Darden v.
Wainwright, 477 U. S. 168 (1986). There, the State had
challenged a potential juror, and the defense had not
objected to his removal. Without further questioning from
the trial court, the juror was excused. Id., at 178. The
petitioner argued to this Court that the transcript of voir
dire did not show that the removed juror was substantially
impaired because the critical answer he had given was
ambiguous. The Court rejected this argument. “[O]ur
inquiry does not end with a mechanical recitation of a
single question and answer.” Id., at 176. Even when
“[t]he precise wording of the question asked of [the veni
reman], and the answer he gave, do not by themselves
compel the conclusion that he could not under any circum
stance recommend the death penalty,” the need to defer to
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the trial court remains because so much may turn on a
potential juror’s demeanor. Id., at 178. The absence of an
objection, and the trial court’s decision not to engage in
further questioning as it had prior to excusing other ju
rors, supported the conclusion that the juror was im
paired. Ibid.
In Gray v. Mississippi, 481 U. S. 648 (1987), the Court
addressed once more a case involving not the excusal of a
single juror but rather systematic exclusion. The State
had lodged for-cause or peremptory challenges against
every juror who “expressed any degree of uncertainty in
the ability to cast . . . a vote” for the death penalty, id., at
652, and quickly exhausted all 12 of its peremptory chal
lenges, id., at 653. The prosecution then challenged a
juror who had expressed no opposition to the death pen
alty and had said many times that she could return a
death sentence. The trial court denied the challenge. Id.,
at 654–655. Arguing that the trial court had erroneously
denied certain earlier challenges for cause, and thus had
forced the State to waste peremptory challenges, the
prosecution sought to reopen those previous challenges.
The trial court refused to do so, but removed the current
juror, over objection from the defense. Id., at 655. On
appeal all of the state judges agreed the juror could not be
excused for cause under either the Witherspoon or the Witt
standard, but the majority held it was appropriate, under
the circumstances, to treat the challenge in question as a
peremptory strike. 481 U. S., at 656–657.
This Court reversed, holding that the juror had been
removed for cause and that she was not substantially
impaired under the controlling Witt standard. 481 U. S.,
at 659. The error was not subject to harmlessness review,
and thus the sentence could not stand. Ibid. Gray repre
sents a rare case, however, because in the typical situation
there will be a state-court finding of substantial impair
ment; in Gray, the state courts had found the opposite,
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Opinion of the Court

which makes that precedent of limited significance to the
instant case.
These precedents establish at least four principles of
relevance here. First, a criminal defendant has the right
to an impartial jury drawn from a venire that has not been
tilted in favor of capital punishment by selective prosecu
torial challenges for cause. Witherspoon, 391 U. S., at 521.
Second, the State has a strong interest in having jurors
who are able to apply capital punishment within the
framework state law prescribes. Witt, 469 U. S., at 416.
Third, to balance these interests, a juror who is substan
tially impaired in his or her ability to impose the death
penalty under the state-law framework can be excused for
cause; but if the juror is not substantially impaired, re
moval for cause is impermissible. Id., at 424. Fourth, in
determining whether the removal of a potential juror
would vindicate the State’s interest without violating the
defendant’s right, the trial court makes a judgment based
in part on the demeanor of the juror, a judgment owed
deference by reviewing courts. Id., at 424–434.
Deference to the trial court is appropriate because it is
in a position to assess the demeanor of the venire, and of
the individuals who compose it, a factor of critical impor
tance in assessing the attitude and qualifications of poten
tial jurors. Id., at 428; Darden, supra, at 178. Leading
treatises in the area make much of nonverbal communica
tion. See, e.g., V. Starr & M. McCormick, Jury Selection
389–523 (3d ed. 2001); J. Frederick, Mastering Voir Dire
and Jury Selection 39–56 (2d ed. 2005).
The requirements of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, of
course, provide additional, and binding, directions to
accord deference. The provisions of that statute create an
independent, high standard to be met before a federal
court may issue a writ of habeas corpus to set aside state-
court rulings. See 28 U. S. C. §§2254(d)(1)–(2); Williams v.
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Taylor, 529 U. S. 362, 413 (2000).
By not according the required deference, the Court of
Appeals failed to respect the limited role of federal habeas
relief in this area prescribed by Congress and by our cases.
II

A

In applying the principles of Witherspoon and Witt, it is
instructive to consider the entire voir dire in Brown’s case.
Spanning more than two weeks, the process entailed an
examination of numerous prospective jurors. After the
third day of the voir dire, during which few jurors were
questioned, the trial court explained the process would
“have to go a little bit faster.” Tr. 1398. The next day, the
court reiterated this concern, for it had told the jury the
trial would take no more than six weeks in order not to
conflict with the Christmas holidays. Id., at 1426.
Eleven days of the voir dire were devoted to determining
whether the potential jurors were death qualified. During
that phase alone, the defense challenged 18 members of
the venire for cause. Despite objections from the State, 11
of those prospective jurors were excused. As for the State,
it made 12 challenges for cause; defense counsel objected
seven times; and only twice was the juror excused follow
ing an objection from the defense. Before deciding a con
tested challenge, the trial court gave each side a chance to
explain its position and recall the potential juror for addi
tional questioning. When issuing its decisions the court
gave careful and measured explanations. See, e.g., id., at
2601–2604 (denying the State’s motion to excuse a juror
following an objection for defense); App. 97–100 (granting
the State’s motion to excuse Juror X despite an objection
from defense).
Before the State challenged Juror Z, the defense moved
to excuse a potential juror who had demonstrated some
confusion. After argument from both counsel, the trial
8 UTTECHT v. BROWN

Opinion of the Court

court explained that it would be open to further question
ing if one of the parties felt the juror’s position could be
clarified: “I thought at first the both of you were wanting
to excuse [this juror] since he seemed kind of confused to
both sides, but if there really is a question, let me know
and I don’t have any hesitation about bringing the juror
out here and following up.” Id., at 26. Consistent with the
need for an efficient voir dire, the court also told counsel:
“Let me point something out to both sides. If you are
going to agree on a challenge, . . . we can shortcut some of
what happens out here.” Ibid.
Setting aside the disputed circumstances of Juror Z’s
removal, the defense refrained from objecting to the
State’s challenges for cause only when the challenged
juror was explicit that he or she would not impose the
death penalty or could not understand the burden of proof.
See Tr. 1457, 1912, 2261, 2940. For other jurors, the
defense objections were vigorous and, it seems, persuasive.
The defense argued that the jurors’ equivocal statements
reflected careful thinking and responsibility, not substan
tial impairment. See, e.g., id., at 1791, 2111, 2815. The
tenacity of Brown’s counsel was demonstrated when, long
after the trial court had overruled the defense objection
and excused Juror Y, the defense moved in writing to have
her returned for further questioning and rehabilitation.
Id., at 3151–3154. The trial court denied this motion after
argument from both parties. Id., at 3154.
The defense also lodged its own challenges for cause. In
defending them against the State’s objections, defense
counsel argued, contrary to the position Brown takes in
this Court, that a trial court cannot rely upon a potential
juror’s bare promises to follow instructions and obey the
law. See, e.g., id., at 1713–1714, 1960–1961, 2772–2773,
3014–3016. With regard to one juror, defense counsel
argued:
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“Any time this individual was asked any questions
about following the law, he will always indicate that
he will. But when we look to see . . . his view[s] on the
death penalty, . . . they [are] so strong that they would
substantially impair his ability to follow the law and
to follow his oath as a juror.” Id., at 1960–1961.
In at least two instances this argument appears to have
prevailed when the trial court overruled the State’s objec
tion to Brown’s challenge for cause.
A final, necessary part of this history is the instruction
the venire received from the court concerning the sentenc
ing options in the case. Before individual oral examina
tion, the trial court distributed a questionnaire asking
jurors to explain their attitudes toward the death penalty.
When distributing the questionnaire, the court explained
the general structure of the trial and the burden of proof.
It described how the penalty phase would function:
“[I]f you found Mr. Brown guilty of the crime of first
degree murder with one or more aggravating circum
stances, then you would be reconvened for a second
phase called a sentencing phase. During that sen
tencing phase proceeding you could hear additional
evidence [and] arguments concerning the penalty to
be imposed. You would then be asked to retire to de
termine whether the death penalty should be imposed
or whether the punishment should be life imprison
ment without the possibility of parole.
“In making this determination you would be asked
the following question: Having in mind the crime
with which the defendant has been found guilty, are
you convinced beyond a reasonable doubt that there
are not sufficient mitigating circumstances to merit
leniency? If you unanimously answered yes to this
question, the sentence would be death. . . . [Other
wise] the sentence would be life imprisonment with
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out the possibility of release or parole.” Id., at. 1089–
1090.
After the questionnaires were filled out, the jurors were
provided with handbooks that explained the trial process
and the sentencing phase in greater depth. Small groups
of potential jurors were then brought in to be questioned.
Before Juror Z’s group began, the court explained once
more that if Brown were convicted, “there are only two
penalties that a jury could return, one is life in prison
without possibility of release or parole. And that literally
means exactly that, a true life in prison without release or
parole.” Id., at 2016.
With this background, we turn to Juror Z’s examination.
B
Juror Z was examined on the seventh day of the voir
dire and the fifth day of the death-qualification phase.
The State argues that Juror Z was impaired not by his
general outlook on the death penalty, but rather by his
position regarding the specific circumstances in which the
death penalty would be appropriate. The transcript of
Juror Z’s questioning reveals that, despite the preceding
instructions and information, he had both serious misun
derstandings about his responsibility as a juror and an
attitude toward capital punishment that could have pre
vented him from returning a death sentence under the
facts of this case.
Under the voir dire procedures, the prosecution and
defense alternated in commencing the examination. For
Juror Z, the defense went first. When questioned, Juror Z
demonstrated no general opposition to the death penalty
or scruples against its infliction. In fact, he soon ex
plained that he “believe[d] in the death penalty in severe
situations.” App. 58. He elaborated, “I don’t think it
should never happen, and I don’t think it should happen
10 times a week either.” Id., at 63. “[T]here [are] times
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Opinion of the Court

when it would be appropriate.” Ibid.
The questioning soon turned to when that would be so.
Juror Z’s first example was one in which “the defendant
actually came out and said that he actually wanted to die.”
Id., at 59. Defense set this aside and sought another
example. Despite having been told at least twice by the
trial court that if convicted of first-degree murder, Brown
could not be released from prison, the only example Juror
Z could provide was when “a person is . . . incorrigible and
would reviolate if released.” Id., at 62. The defense coun
sel replied that there would be no possibility of Brown’s
release and asked whether the lack of arguments about
recidivism during the penalty phase would frustrate Juror
Z. He answered, “I’m not sure.” Id., at 63.
The State began its examination of Juror Z by noting
that his questionnaire indicated he was “in favor of the
death penalty if it is proved beyond a shadow of a doubt if
a person has killed and would kill again.” Id., at 69. The
State explained that the burden of proof was beyond a
reasonable doubt, not beyond a shadow of a doubt, and
asked whether Juror Z understood. He answered, “[I]t
would have to be in my mind very obvious that the person
would reoffend.” Id., at 70. In response the State once
more explained to Juror Z, now for at least the fourth
time, that there was no possibility of Brown’s being re
leased to reoffend. Juror Z explained, “[I]t wasn’t until
today that I became aware that we had a life without
parole in the state of Washington,” id., at 71, although in
fact a week earlier the trial judge had explained to Juror
Z’s group that there was no possibility of parole when a
defendant was convicted of aggravated first-degree mur
der. The prosecution then asked, “And now that you know
there is such a thing . . . can you think of a time when you
would be willing to impose a death penalty . . . ?” Id., at
71–72. Juror Z answered, “I would have to give that some
thought.” Id., at 72. He supplied no further answer to the
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question.
The State sought to probe Juror Z’s position further by
asking whether he could “consider” the death penalty;
Juror Z said he could, including under the general facts of
Brown’s crimes. Ibid. When asked whether he no longer
felt it was necessary for the State to show that Brown
would reoffend, Juror Z gave this confusing answer: “I do
feel that way if parole is an option, without parole as an
option. I believe in the death penalty.” Id., at 72–73.
Finally, when asked whether he could impose the death
penalty when there was no possibility of parole, Juror Z
answered, “[I]f I was convinced that was the appropriate
measure.” Id., at 73. Over the course of his questioning,
he stated six times that he could consider the death
penalty or follow the law, see id., at 62, 70, 72, 73, but
these responses were interspersed with more equivocal
statements.
The State challenged Juror Z, explaining that he was
confused about the conditions under which death could be
imposed and seemed to believe it only appropriate when
there was a risk of release and recidivism. Id., at 75.
Before the trial court could ask Brown for a response, the
defense volunteered, “We have no objection.” Ibid. The
court then excused Juror Z. Ibid.
III
On federal habeas review, years after the conclusion of
the voir dire, the Court of Appeals granted Brown relief
and overturned his sentence. The court held that both the
state trial court’s excusal of Juror Z and the State Su
preme Court’s affirmance of that ruling were contrary to,
or an unreasonable application of, clearly established
federal law. 451 F. 3d, at 953. The Court of Appeals held
that the Supreme Court of Washington had failed to find
that Juror Z was substantially impaired; it further held
that the State Supreme Court could not have made that
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finding in any event because the transcript unambigu
ously proved Juror Z was not substantially impaired. For
these reasons, explained the Court of Appeals, the trial
court’s decision to excuse Juror Z was contrary to the
Witherspoon-Witt rule despite Brown’s failure to object.
Each of the holdings of the Court of Appeals is wrong.
A
As part of its exposition and analysis, the Court of Ap
peals found fault with the opinion of the Supreme Court of
Washington. It stated that although the State Supreme
Court had held that Jurors X and Y were substantially
impaired, the same “finding is missing from the state
court’s discussion” of Juror Z’s excusal. 451 F. 3d, at 950.
The Court of Appeals therefore held “[t]he Washington
Supreme Court in this case applied the wrong standard
with respect to Juror Z.” Id., at 953, n. 10. This is an
erroneous summary of the State Supreme Court’s opinion.
The state court did make an explicit ruling that Juror Z
was impaired. In a portion of the opinion entitled “Sum
mary and Conclusions,” the court held: “The trial court
properly exercised its discretion in excusing for cause
prospective jurors [X, Y, and Z] during voir dire. Their
views would have prevented or substantially impaired
their ability to follow the court’s instructions and abide by
their oaths as jurors.” Brown, 132 Wash. 2d, at 630, 940
P. 2d, at 598, 599. It is unclear why the Court of Appeals
overlooked or disregarded this finding, and it was mis
taken in faulting the completeness of the Supreme Court
of Washington’s opinion.
Even absent this explicit finding, the Supreme Court of
Washington’s opinion was not contrary to our cases. The
court identified the Witherspoon-Witt rule, recognized that
our precedents required deference to the trial court, and
applied an abuse-of-discretion standard. 132 Wash. 2d, at
601, 940 P. 2d, at 584. Having set forth that framework, it
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explained:
“[Brown] did not object at trial to the State’s challenge
of [Juror Z] for cause. At any rate, [Juror Z] was
properly excused. On voir dire he indicated he would
impose the death penalty where the defendant ‘would
reviolate if released,’ which is not a correct statement
of the law. He also misunderstood the State’s burden
of proof . . . although he was corrected later. The trial
court did not abuse its discretion in excusing [Juror Z]
for cause.” Id., at 604, 940 P. 2d, at 585.
The only fair reading of the quoted language is that the
state court applied the Witt standard in assessing the
excusal of Juror Z. Regardless, there is no requirement in
a case involving the Witherspoon-Witt rule that a state
appellate court make particular reference to the excusal of
each juror. See Early v. Packer, 537 U. S. 3, 9 (2002) (per
curiam). It is the trial court’s ruling that counts.
B
From our own review of the state trial court’s ruling, we
conclude the trial court acted well within its discretion in
granting the State’s motion to excuse Juror Z.
Juror Z’s answers, on their face, could have led the trial
court to believe that Juror Z would be substantially im
paired in his ability to impose the death penalty in the
absence of the possibility that Brown would be released
and would reoffend. And the trial court, furthermore, is
entitled to deference because it had an opportunity to
observe the demeanor of Juror Z. We do not know any
thing about his demeanor, in part because a transcript
cannot fully reflect that information but also because the
defense did not object to Juror Z’s removal. Nevertheless,
the State’s challenge, Brown’s waiver of an objection, and
the trial court’s excusal of Juror Z support the conclusion
that the interested parties present in the courtroom all felt
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that removing Juror Z was appropriate under the
Witherspoon-Witt rule. See Darden, 477 U. S., at 178
(emphasizing the defendant’s failure to object and the
judge’s decision not to engage in further questioning as
evidence of impairment).
Juror Z’s assurances that he would consider imposing
the death penalty and would follow the law do not over
come the reasonable inference from his other statements
that in fact he would be substantially impaired in this case
because there was no possibility of release. His assur
ances did not require the trial court to deny the State’s
motion to excuse Juror Z. The defense itself had told the
trial court that any juror would make similar guarantees
and that they were worth little; instead, defense counsel
explained, the court should listen to arguments concerning
the substance of the juror’s answers. The trial court in
part relied, as diligent judges often must, upon both par
ties’ counsel to explain why a challenged juror’s problem
atic beliefs about the death penalty would not rise to the
level of substantial impairment. Brown’s counsel offered
no defense of Juror Z. In light of the deference owed to
the trial court the position Brown now maintains does
not convince us the decision to excuse Juror Z was
unreasonable.
It is true that in order to preserve a Witherspoon claim
for federal habeas review there is no independent federal
requirement that a defendant in state court object to the
prosecution’s challenge; state procedural rules govern. We
nevertheless take into account voluntary acquiescence to,
or confirmation of, a juror’s removal. By failing to object,
the defense did not just deny the conscientious trial judge
an opportunity to explain his judgment or correct any
error. It also deprived reviewing courts of further factual
findings that would have helped to explain the trial court’s
decision. The harm caused by a defendant’s failure to
object to a juror’s excusal was described well by a Wash
16 UTTECHT v. BROWN

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ington appellate court in a different case:
“When a challenge for cause is made, opposing counsel
can object either on the grounds that it is facially in
sufficient or that the facts needed to support it are not
true. [Defendant] did neither. Had [defendant] ob
jected immediately to the State’s challenge for cause,
the court could have tried the issue and determined
the law and facts. Because [defendant] did not timely
object to the excusal of Juror 30, the court had no op
portunity to remedy whatever factual questions were
in the mind of [defendant’s] counsel.” State v. Taylor,
No. 16057–2–III etc., 1998 WL 75648, *5 (Wash.
App., Feb. 24, 1998) (unpublished opinion; citations
omitted).
The defense may have chosen not to object because
Juror Z seemed substantially impaired. See 451 F. 3d, at
959 (Tallman, J., dissenting from denial of rehearing en
banc). Or defense counsel may have felt that Juror Z, a
basketball referee whose stepbrother was a police officer,
would have been favorable to the State. See App. 68, 74;
451 F. 3d, at 953, n. 9 (reasoning that “defense counsel
declined to object because he was glad to get rid of juror Z.
After all, Z had described himself as pro-death penalty
. . . . Defense counsel must have thanked his lucky stars
when the prosecutor bumped Z”). Or the failure to object
may have been an attempt to introduce an error into the
trial because the defense realized Brown’s crimes were
horrific and the mitigating evidence was weak. Although
we do not hold that, because the defense may have wanted
Juror Z on the jury, any error was harmless, neither must
we treat the defense’s acquiescence in Juror Z’s removal as
inconsequential.
The defense’s volunteered comment that there was no
objection is especially significant because of frequent
defense objections to the excusal of other jurors and the
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trial court’s request that if both parties wanted a juror
removed, saying so would expedite the process. In that
context the statement was not only a failure to object but
also an invitation to remove Juror Z.
We reject the conclusion of the Court of Appeals that the
excusal of Juror Z entitles Brown to federal habeas relief.
The need to defer to the trial court’s ability to perceive
jurors’ demeanor does not foreclose the possibility that a
reviewing court may reverse the trial court’s decision
where the record discloses no basis for a finding of sub
stantial impairment. But where, as here, there is lengthy
questioning of a prospective juror and the trial court has
supervised a diligent and thoughtful voir dire, the trial
court has broad discretion. The record does not show the
trial court exceeded this discretion in excusing Juror Z;
indeed the transcript shows considerable confusion on the
part of the juror, amounting to substantial impairment.
The Supreme Court of Washington recognized the defer
ence owed to the trial court and, contrary to the Court of
Appeals’ misreading of the state court’s opinion, identified
the correct standard required by federal law and found it
satisfied. That decision, like the trial court’s, was not
contrary to, or an unreasonable application of, clearly
established federal law.
IV
Brown raises two additional arguments that rely upon
Washington state law. He first contends we should not
consider his failure to object because Washington state
law does not require a defendant to object to a challenge to
a potential juror. See Tr. of Oral Arg. 35 (“As to the . . .
failure to object . . . we have admitted that what [defense
counsel] said was I have no objection. . . . But [they] all
knew that this issue could be raised for the first time on
appeal”). In addition he asserts that even if Juror Z’s
statements indicated that he would base his decision upon
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the risk of Brown reoffending, that requirement was con
sistent with the state sentencing scheme.
For the reasons explained above the defense’s failure to
object in this case has significance to our analysis even on
the assumption that state law did not require an objection
to preserve an error for review in the circumstances of this
case. The Supreme Court of Washington, however, noted
Brown’s failure to object, suggesting it had significance for
its own analysis. Brown, 132 Wash. 2d, at 604, 940 P. 2d,
at 585. This is consistent with Washington law, which
permits a party to “except” to the opposing party’s chal
lenge of a juror for cause, Wash. Rev. Code 4.44.230
(2006), and gives appellate courts discretion to bar “any
claim of error which was not raised in the trial court”
unless that error is a “manifest error affecting a constitu
tional right,” Wash. Rule App. Proc. 2.5(a) (2006). See also
13 R. Ferguson, Washington Practice: Criminal Practice
and Procedure §4908, p. 432 (3d ed. 2004) (“In general,
issues not raised in the trial court will not be considered
for the first time on appeal. It is the purpose of this gen
eral rule to give the trial court an opportunity to correct
the alleged error. Accordingly, it is the duty of counsel to
call the trial court’s attention to the alleged error . . .”
(footnotes omitted)).
The Supreme Court of Washington also held that Juror
Z misstated Washington’s sentencing law. Brown, supra,
at 604, 940 P. 2d, at 585. It is not for us to second-guess
that determination, and our conclusion is, in any event,
the same as that court’s. Juror Z did not say that the
likelihood of Brown’s harming someone while in prison
would be among his sentencing considerations. Rather,
the sole reason Juror Z expressed for imposing the death
penalty, in a case where the accused opposed it, was
whether the defendant could be released and would revio
late. That is equivalent to treating the risk of recidivism
as the sole aggravating factor, rather than treating lack of
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future dangerousness as a possible mitigating considera
tion. See Wash. Rev. Code §10.95.020 (2006) (setting forth
aggravating factors); §10.95.070 (setting forth future
dangerousness as one of eight mitigating factors).
For these reasons, we are not persuaded to depart from
the Supreme Court of Washington’s determination of the
state law at issue or to ignore Brown’s failure to object.
* * *
Capital defendants have the right to be sentenced by an
impartial jury. The State may not infringe this right by
eliminating from the venire those whose scruples against
the death penalty would not substantially impair the
performance of their duties. Courts reviewing claims of
Witherspoon-Witt error, however, especially federal courts
considering habeas petitions, owe deference to the trial
court, which is in a superior position to determine the
demeanor and qualifications of a potential juror. The
Court of Appeals neglected to accord this deference. And
on this record it was error to find that Juror Z was not
substantially impaired. The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
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Appendix to opinion of the Court

APPENDIX TO OPINION OF THE COURT

Excerpts of Verbatim Report of Proceedings (Voir Dire)
(Nov. 3, 1993) in State v. Brown, Cause No. 91–1–03233–1
(Super. Ct. King Cty., Wash.), App. 57–75:

THE COURT: All right. [Juror Z]. (Prospective Juror,
[Juror Z], entered the courtroom.)
THE COURT: That’s fine, [Juror Z]. Good afternoon.
[JUROR Z]: Good afternoon.
THE COURT: Do you have any questions at all about
any of the preliminary instructions that you got this after
noon and the format that we were talking about or the
reasons why the attorneys have to discuss the penalty
phase when there may never really be a penalty phase.
[JUROR Z]: No, I think I understand the situation.
THE COURT: Did you answer or nod your head about
remembering something about having heard this crime
before?
[JUROR Z]: No, I did not.
THE COURT: Okay. We’ll start with the defense.
MS. HUPP: Thank you, your Honor.
VOIR DIRE EXAMINATION
BY MS. HUPP:
Q Good afternoon. My name is Lin-Marie Hupp, and
I’m one of Cal Brown’s attorneys.
I would like to start off asking you some questions about
your feelings about the death penalty. I want to reinforce
what the Judge has already told you, which is there are no
right or wrong answers. We just need to get information
about your feelings so we can do our job.
A Okay.
Q Can you tell me when it was you first realized this
was a potential death penalty case?
A Not until last Monday when I was here in the initial
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Appendix to opinion of the Court

jury information session.
Q Okay. Can you tell me when the Judge read that
long thing to you and basically told you that this was a
potential in the case, can you tell me what you were think
ing when you heard that?
A I guess I wasn’t surprised when I got the announce
ment for jury duty. And it was more than the standard
two weeks that most everybody else goes to. I thought it
must be a pretty substantial case. In my mind I tried to
guess what it might be, so this is one of the things that
entered into it.
Q Can you give me an idea of what your general feel
ings about the death penalty are?
A I do believe in the death penalty in severe situations.
A good example might be the young man from, I believe he
was from Renton that killed a couple of boys down in the
Vancouver area and was sentenced to the death penalty,
and wanted the death penalty. And I think it is appropri
ate in severe cases.
Q And that case you’re talking about, that is the one
where he actually came out, the defendant actually came
out and said that he actually wanted to die?
A I believe that was the case.
Q Does that have any kind of bearing on your idea that
the death penalty was appropriate in his case?
A I believe that it was in that case.
Q If you removed that factor completely from it, is that
again the type of case that you think the death penalty
would be appropriate?
A It would have to be a severe case. I guess I can’t put
a real line where that might be, but there are a lot of cases
that I don’t think it’s where people would—
Q Okay. And let me kind of fill in the blanks for myself
here by just asking you a couple of questions about that.
I’m assuming that there would not be any case other than
murder that you would think the death penalty would be
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appropriate?
A I think that is correct.
Q Okay. And the way the law is in Washington any
way, in order to get to the point where you would even
consider the death penalty, the State would first have to
prove that you had committed a premeditate murder and
one that had been thought about beforehand.
Do you have any kind of feeling that something other
than a premeditated murder, in other words, one that
would have been planned that would be appropriate for
the death penalty?
A No. I think it would have to be premeditated.
Q In addition to that in Washington even premeditated
murders are not eligible for a potential death penalty
unless the State also proves aggravating circumstances.
In this case the State is alleging or is going to try and
prove a number of aggravating circumstances, four of
them. Okay. And the ones that they are going to try and
prove are that the murder was committed, a premeditated
murder was committed during a rape, a robbery, a kid
napping and that it was done in order to conceal a witness
or eliminate a witness.
Does that fall within the class of cases that you think
the death penalty is appropriate?
A I think that would be.
Q Okay. Now, how about other sentencing options in a
case like that, do you think that something other than the
death penalty might be an appropriate sentence?
A I think that if a person is temporarily insane or
things of that that lead a person to do things that they
would not normally do, I think that would enter into it.
Q All right. Other than—well, maybe what we should
do—the way that the law is in Washington, if the jury
finds beyond a reasonable doubt that somebody has com
mitted a premeditated murder with at least one aggravat
ing circumstance, and in this case you have a potential for
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Appendix to opinion of the Court

the four, then the jury reconvenes to consider whether or
not the death penalty should be imposed or whether or not
a life sentence without parole should be imposed.
One sort of aside here, life without parole is exactly
what it sounds like. It is a life sentence. You’re not ever
eligible for parole. You hear about it in the papers some
times where somebody has got a life sentence and they’re
going to be eligible for parole in 10 years or 20 years.
A I understand.
Q Were you aware before that Washington has got this
kind of sentence where it’s life without parole where you
are not ever eligible for parole?
A I did not until this afternoon.
Q That is the two options that the jury has if they found
the person guilty of premeditated murder beyond a rea
sonable doubt plus aggravating circumstances beyond a
reasonable doubt.
Do you think that you could consider both options?
A Yes, I could.
Q Could you give me an idea sort of have you thought
about sort of the underlying reason why you think the
death penalty is appropriate, what purpose it serves, that
kind of thing?
A I think if a person is, would be incorrigible and would
reviolate if released, I think that’s the type of situation
that would be appropriate.
Q Okay. Now, knowing that you didn’t know before
when you were coming to those opinions about the two
options that we have here obviously somebody who is not
going to get out of jail no matter which sentence you give
them if you got to that point of making a decision about
the sentence, does that mean what I’m hearing you say is
that you could consider either alternative?
A I believe so, yes.
Q Now, in your, I think in your questionnaire you sort
of referred to that also, what you kind of thought about
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Appendix to opinion of the Court

was if somebody had been killed and it had been proven to
you that they would kill again. Understanding that the
two options there are life without parole or the death
penalty, there is not a lot of likelihood that people are
going to spend a lot of time talking about whether or not
they’re going to kill again in the sentencing phase of this
case. Is that going to make you frustrated? Are you going
to want to hear about things like that, about people’s
opinions in the penalty phase?
A I’m not sure.
Q Okay. That’s very fair. Do you have any kind of
feelings about the frequency of the use of the death pen
alty in the United States today? Do you think it’s used too
frequently or not often enough?
A It seemed like there were several years when it
wasn’t used at all and just recently it has become more
prevalent in the news anyway. I don’t think it should
never happen, and I don’t think it should happen 10 times
a week either. I’m not sure what the appropriate number
is but I think in severe situations, it is appropriate.
Q It sounds like you’re a little more confortable that it
is being used some of the time?
A Yes.
Q You weren’t happy with the time when it wasn’t
being used at all?
A I can’t say I was happy or unhappy, I just felt that
there were times when it would be appropriate.
Q Let me ask you, and we may have covered this al
ready, but let me ask you just to make sure I understand.
If the State were to prove beyond a reasonable doubt that
the defendant had committed a premeditated murder with
aggravating circumstances that I have laid out for you,
rape, robbery, kidnapping, to conceal or eliminate a wit
ness, at least one of those, in addition another thing you
might hear in this trial is some evidence that the defen
dant deliberately inflicted pain upon the victim before she
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Appendix to opinion of the Court

died for some period of time.
If that was the crime that you heard about and came to
a decision about guilty about, do you think you consider a
life sentence?
A I could consider it but I don’t know if I really have
enough information to make a determination.
Q Right. And it’s real tough to be asking you these
questions and even tougher for you to have to answer
them without any evidence before you. But you under
stand that this is our only time to do that before you have
heard all the evidence?
A I understand, yes.
Q As a matter of fact, the law in this state after, even
after you have found somebody guilty of really hideous
crime like that presumes that the sentence, the appropri
ate sentence is life without parole. The State has the
burden of proof, again, in the penalty phase. And they
would have to prove beyond a reasonable doubt that there
are not sufficient mitigating circumstances to merit a life
sentence.
Are you comfortable with that idea that you start off
presuming that, as a matter of fact, even for a hideous
crime that a life sentence is the appropriate sentence?
A It is or is not?
Q That it is an appropriate sentence.
A I guess I’m a little confused by the question. So, you
go into it with a life sentence is the appropriate sentence?
Q Right. If you look at the chart here, there’s almost a
mirror image to start off a trial presuming that somebody
is innocent and you start off a sentencing presuming that
a life sentence is appropriate?
A I see.
Q Okay.
A Yes.
Q Okay. Now, as far as mitigating circumstances, you
had mentioned the idea that maybe somebody was tempo
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Appendix to opinion of the Court

rarily insane. The Judge is going to give you an instruc
tion on mitigating circumstances, and I will defines it for
you, but the definition is real broad. The definition basi
cally is, any reason, not a justification, not an excuse for
the crime and not a defense to the crime, but a reason for
imposing something other than death. That’s pretty broad.
MR. MATTHEWS: I object to that question. I don’t
believe that is a question. I believe that’s a statement.
THE COURT: The objection will be sustained.
Q (BY MS. HUPP) The judge will instruct you about
what a mitigating circumstance is.
But what I want to be real clear about is that it’s not a
defense to the crime. Okay. In other words, if you believe
that somebody was really temporarily insane at the time
he committed the offense, well, then it wouldn’t be pre
meditated. It would be an insanity defense, and that
would all get dealt with—
MR. MATTHEWS: Your Honor, again, I am going to
object to the nature of the question.
THE COURT: [Juror Z], you were the one that actually
brought it up in terms of the mental status of the person.
You are the one who said temporarily insane when they
committed this kind of crime. You realize that there are
particular defenses that may be available in the actual
criminal case itself, the guilt phase.
But once you get to the penalty phase, we’re not talking
about the crime in any way, and you’re simply trying to
determine what the appropriate punishment or sanction
should be for a crime that a person has been found guilty
of. At that point in time, something like all sorts of miti
gating circumstances come into it, and mental status can
come into it. But it would only be evaluated in the light of
the mitigating circumstances, not a defense. Do you un
derstand that?
A Understand.
Q (BY MS. HUPP) To just sort of follow up on that, if
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mental status came into play and you were presented with
some sort of evidence about mental status, is that the sort
of evidence you would consider?
A Yes, I could.
Q How about things like somebody’s childhood or their
emotional development?
A I could consider it. I don’t have strong feelings one
way or the other.
Q Okay. All right. And, also, when we talk about miti
gating circumstances, what might be mitigating to you
might not matter much to the person sitting next to you in
juror’s box. Do you think you could discuss your feelings
about those things?
A Yes.
Q Could you, say the person next to you says something
is mitigating and you don’t think it’s very mitigating at
all, could you also discuss it in this situation?
A (Nodding head).
Q Could you respect that other person’s opinion?
A Everybody is entitled to an opinion, yes.
Q Another thing that happens at the sentencing phase
of the trial is that the jury would have to be unanimous, in
other words, everybody would have to agree if they were
going to impose a death sentence. If one person, four
people, five people, how ever many people don’t agree with
that, then the sentence is life. Okay. So, it kind of strips
away that sort of comfort in numbers that some people get
from the idea of having a unanimous decision.
Do you think you can accept the responsibility for such
an important decision for yourself?
A I do.
Q Okay. Thank you.
MS. HUPP: I have no further questions.
THE COURT: The State.
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VOIR DIRE EXAMINATION
BY MR. MATTHEWS:
Q [Juror Z], I’m Al Matthews. I’m one of two prosecu
tors in the case. I have got some very specific questions,
and perhaps we can clear them up real rapidly.
I see your step-brother is a policeman and you see him
about four times a year.
A (Nodding head).
Q Do you ever have any discussions about the death
penalty, is this a subject that ever comes up?
A No.
Q Have you ever had occasion to discuss it at all within
the family circle?
A I don’t believe so.
Q You mentioned on your questionnaire, and we do
read them, that you’re in favor of the death penalty if it is
proved beyond a shadow of a doubt if a person has killed
and would kill again. Do you remember making that
statement?
A Yes.
Q First of all, have you ever been on a jury trial before?
A I have not.
Q Now, you made this statement before you read your
juror’s handbook I imagine?
A Yes.
Q So, I want to ask you, the thing that bothers me, of
course, is the idea beyond a shadow of a doubt. The law
says beyond a reasonable doubt, and it will be explained to
you what it actually means. But I want to assure you it
doesn’t mean, I don’t believe the Court would instruct
would you it means beyond all doubt or beyond any
shadow of a doubt. Knowing that, would you still require
the State to prove beyond a shadow of a doubt that the
crime occurred knowing that the law doesn’t require that
much of us?
A I would have to know the, I’m at a loss for the words
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here.
Q You can ask me any questions, too, if you need some
clarification.
A I guess it would have to be in my mind very obvious
that the person would reoffend.
Q Well, we’re not talking about that, sir.
A Or was guilty, yes.
Q So, we’re talking about that?
A Yes.
Q So, you would be satisfied with a reasonable doubt
standard? You would be willing to follow the law?
A Yes.
Q In other words, nothing, there is very few things in
life absolutely certain?
A I understand.
Q And that is basically what we’re saying to you, and
that is what the term reasonable doubt means—
A (Nodding head).
Q —that we don’t have to prove it beyond all doubt.
Now, we get to the penalty phase and the question
becomes slightly different. It presumes life as a person is
presumed innocent in the guilt phase, it is presumed that
the proper penalty for the beginning point in the penalty
phase is life in prison without parole.
Now, you mentioned that you would have to be satisfied
that the person would not kill again. Now, you know that
the possible, that the only two penalties are life in prison
without parole or death. The person, if he is committed, if
he is convicted of aggravated murder, is not going to be
out on the streets again, not going to come in contact with
the people that he had a chance to run into before. So, the
likelihood of him killing someone out in the street is nil or
practically nil at that point.
I guess the reverse side of what you’re saying is, if you
could be convinced that he wouldn’t kill again, would you
find it difficult to vote for the death penalty given a situa
30 UTTECHT v. BROWN

Opinion of the Court
Appendix to opinion of the Court

tion where he couldn’t kill again?
A I think I made that statement more under assump
tion that a person could be paroled. And it wasn’t until
today that I became aware that we had a life without
parole in the state of Washington.
Q And now that you know there is such a thing and
they do mean what they say, can you think of a time when
you would be willing to impose a death penalty since the
person would be locked up for the rest of his life?
A I would have to give that some thought. I really, like
I said, up until an hour ago did not realize that there was
an option of life without parole.
Q And I realize this is put on you rather suddenly, but
you also recognize as someone who is representing the
State in this case, we have made the election to ask that
the jury if he is found guilty, ask that the jury vote for the
death penalty.
And I’m asking you a very important thing and to
everyone in here, whether you, knowing that the person
would never get out for the rest of his life, two things. And
they’re slightly different. One, whether you could consider
the death penalty and the second thing I would ask you is
whether you could impose the death penalty. I’m not
asking a promise or anything.
But I’m asking you, first, could you consider it, and if
you could consider it, do you think under the conditions
where the man would never get out again you could im
pose it?
A Yes, sir.
Q So, this idea of him having to kill again to deserve
the death penalty is something that you are not firm on,
you don’t feel that now?
A I do feel that way if parole is an option, without
parole as an option. I believe in the death penalty. Like I
said, I’m not sure that there should be a waiting line of
people happening every day or every week even, but I
 Cite as: 551 U. S. ____ (2007) 31

Opinion of the Court
Appendix to opinion of the Court

think in severe situations it’s an appropriate measure.
Q But in the situation where a person is locked up for
the rest of his life and there is no chance of him ever get
ting out again, which would be the situation in this case,
do you think you could also consider and vote for the death
penalty under those circumstances?
A I could consider it, yes.
Q Then could you impose it?
A I could if I was convinced that was the appropriate
measure.
MR. MATTHEWS: I have no further questions.
THE COURT: All right. [Juror Z], there is something
that I want to clarify in response to some of the questions
that were asked of you.
VOIR DIRE EXAMINATION
BY THE COURT:
Q In your questionnaire it talks about beyond a shadow
of a doubt, and the prosecutor here went into that a little
further. You realize that that is the standard that the law
imposes on the State to prove a case beyond a reasonable
doubt. And, obviously, that is a question of interpretation.
You officiate basketball games. That’s in your question
naire. You, even at the college level, knowing how fast
that game is, you have to make a call on some of those
calls and you have to decide whether to blow that whistle
and make that particular call. Do you think you under
stand the difference between a reasonable call and beyond
a shadow of a doubt type call?
A I guess I do. The terminology beyond a shadow of a
doubt, when I wrote that I wasn’t even sure whether, I
mean, it’s just terminology that I have heard probably
watching Perry Mason or something over the years. But I
guess the point I was making that it has to be—
Q You would have to be positive?
A I would have to be positive, that’s correct.
32 UTTECHT v. BROWN

Opinion of the Court
Appendix to opinion of the Court

Q The State has to convince you?
A Yes.
Q As they would have to convince any reasonable per
son?
A Yes.
THE COURT: [Juror Z], let me have you step back into
the juryroom. The bailiff will excuse you from there in
just a few minutes. Thank you.
Counsel, any challenge to this particular juror?
MR. MATTHEWS: I would, your Honor, not on the term
beyond a shadow of a doubt, I think he would certainly
stick with the reasonable doubt standard. But I think he
is very confused about the statements where he said that
if a person can’t kill again, in other words, he’s locked up
for the rest of his life, he said, basically, he could vote for
the death penalty if it was proved beyond a shadow of.
And I am certainly going to concede that he means beyond
a reasonable doubt. And if a person kills and will kill
again. And I think he has some real problems with that.
He said he hadn’t really thought about it. And I don’t
think at this period of time he’s had an opportunity to
think about it, and I don’t think he said anything that
overcame this idea of he must kill again before he imposed
the death penalty or be in a position to kill again. So, that
is my only challenge.
MR. MULLIGAN: We have no objection.
THE COURT: Counsel, the request of the prosecutor’s
office, we will go ahead and excuse [Juror Z].
 Cite as: 551 U. S. ____ (2007) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–413
_________________

JEFFREY UTTECHT, SUPERINTENDENT, WASH-

INGTON STATE PENITENTIARY, PETITIONER v.

CAL COBURN BROWN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 4, 2007]

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
Millions of Americans oppose the death penalty. A cross
section of virtually every community in the country in
cludes citizens who firmly believe the death penalty is
unjust but who nevertheless are qualified to serve as
jurors in capital cases. An individual’s opinion that a life
sentence without the possibility of parole is the severest
sentence that should be imposed in all but the most hei
nous cases does not even arguably “ ‘prevent or substan
tially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’ ” Wain
wright v. Witt, 469 U. S. 412, 420 (1985) (emphasis de
leted). Moreover, an individual who maintains such a
position, or even one who opposes the death penalty as a
general matter, “ ‘may not be challenged for cause based
on his views about capital punishment.’ ” Ibid. Today the
Court ignores these well-established principles, choosing
instead to defer blindly to a state court’s erroneous charac
terization of a juror’s voir dire testimony.1 Although this
——————
1 The Court opens its opinion with a graphic description of the under
lying facts of respondent’s crime, perhaps in an attempt to startle the
reader or muster moral support for its decision. Given the legal ques
tion at issue, and the procedural posture of this case, the inclusion of
2 UTTECHT v. BROWN

STEVENS, J., dissenting

case comes to us under the standard of review imposed by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, the level of deference given by
the Court to the state courts in this case is completely
unwarranted based on the record before us. Because I
find no justification in the record or elsewhere for the
decision to strike Juror Z for cause, I must dissent.
I
When the State challenged Juror Z, it argued that he
was “confused about the conditions under which [the
death penalty] could be imposed and seemed to believe it
only appropriate when there was a risk of release and
recidivism.” Ante, at 12. A more accurate characteriza
tion of Juror Z’s testimony is that although he harbored
some general reservations about the death penalty, he
stated that he could consider and would vote to impose the
death penalty where appropriate.2 When asked for “an
——————
such a description is, in my view, both irrelevant and unnecessary. Cf.
Witt, 469 U. S., at 440, n. 1 (Brennan, J., dissenting) (“However heinous
Witt’s crime, the majority’s vivid portrait of its gruesome details has no
bearing on the issue before us. It is not for this Court to decide whether
Witt deserves to die. That decision must first be made by a jury of his
peers, so long as the jury is impartial and drawn from a fair cross
section of the community in conformity with the requirements of the
Sixth and Fourteenth Amendments”).
2 In contrast to Juror Z’s statements, those jurors who have been

properly struck under the Witherspoon-Witt rule have made much
stronger statements with regard to their inability to follow the law or to
impose the death penalty. See, e.g., Wainwright v. Witt, 469 U. S. 412,
416 (1985) (juror confirming that her personal beliefs would interfere
with her ability to judge the guilt or innocence of the defendant); id., at
438, n. 7 (STEVENS, J., concurring in judgment) (discussing the two
other jurors who were properly dismissed for cause, one of whom stated
that he would not be able to “ ‘follow the law as instructed by the
Court’ ” when the death penalty was in issue, and the other of whom
stated that he could not “keep an open mind as to whether to vote for
the death penalty or life”). Cf. Gray v. Mississippi, 481 U. S. 648, 653–
654, and n. 5, 659 (1987) (holding that a juror who seemed “somewhat
 Cite as: 551 U. S. ____ (2007) 3

STEVENS, J., dissenting

idea . . . of the underlying reason why you think the death
penalty is appropriate [or] what purpose it serves,” Juror
Z responded that “the type of situation” in which the death
penalty would be appropriate was “if a person was incorri
gible and would reviolate if released.” App. 62 (emphasis
added). After it was explained to Juror Z that the only two
sentencing alternatives available under Washington law
would be life imprisonment without the possibility of
parole and a death sentence, Juror Z repeatedly confirmed
that even if he knew the defendant would never be re
leased, he would still be able to consider and vote for the
death penalty. Id., at 62, 72, 73. As for any general reser
vations Juror Z may have had about the imposition of the
death penalty, it is clear from his testimony that he was in
no way categorically opposed to it. When asked whether
he was “a little more comfortable that it is being used
some of the time,” Juror Z responded in the affirmative.
Id., at 63.
While such testimony might justify a prosecutor’s per
emptory challenge, until today not one of the many cases
decided in the wake of Witherspoon v. Illinois, 391 U. S.
510 (1968), has suggested that such a view would support
a challenge for cause. The distinction that our cases re
quire trial judges to draw is not between jurors who are in
favor of the death penalty and those who oppose it, but
rather between two sub-classes within the latter class—
those who will conscientiously apply the law and those
whose conscientious scruples necessarily prevent them
from doing so.3 As then-Justice Rehnquist explained in
——————
confused” but who stated that she “could” vote for the death penalty
“ ‘was clearly qualified to be seated as a juror under the Adams [v.
Texas, 448 U. S. 38 (1980)] and Witt criteria’ ”).
3 “The state of this case law leaves trial courts with the difficult task

of distinguishing between prospective jurors whose opposition to capital
punishment will not allow them to apply the law or view the facts
impartially and jurors who, though opposed to capital punishment, will
4 UTTECHT v. BROWN

STEVENS, J., dissenting

his opinion for the Court in Lockhart v. McCree, 476 U. S.
162, 176 (1986):
“It is important to remember that not all who oppose
the death penalty are subject to removal for cause in
capital cases; those who firmly believe that the death
penalty is unjust may nevertheless serve as jurors in
capital cases so long as they state clearly that they are
willing to temporarily set aside their own beliefs in
deference to the rule of law.”
Today’s opinion simply ignores the justification for this
strict rule. As we explained 20 years ago:
“The State’s power to exclude for cause jurors from
capital juries does not extend beyond its interest in
removing those jurors who would ‘frustrate the State’s
legitimate interest in administering constitutional
capital sentencing schemes by not following their
oaths.’ Wainwright v. Witt, 469 U. S., at 423. To
permit the exclusion for cause of other prospective ju
rors based on their views of the death penalty unnec
essarily narrows the cross section of venire members.
It ‘stack[s] the deck against the petitioner. To execute
[such a] death sentence would deprive him of his life
without due process of law.’ Witherspoon v. Illinois,
391 U. S., at 523.” Gray v. Mississippi, 481 U. S. 648,
658–659 (1987).
In its opinion, the Court blindly accepts the state court’s
conclusory statement that Juror Z’s views would have
“substantially impaired” his ability to follow the court’s
instructions without examining what that term means in
practice and under our precedents. Ante, at 13. Even
AEDPA does not permit us to abdicate our judicial role in

——————

nevertheless conscientiously apply the law to the facts adduced at

trial.” Witt, 469 U. S., at 421.

 Cite as: 551 U. S. ____ (2007) 5

STEVENS, J., dissenting

this fashion.
The high threshold that must be crossed to establish the
kind of impairment that would justify the exclusion of a
juror under the rule of Wainwright v. Witt is illustrated by
Justice Powell’s opinion for the Court in Darden v. Wain
wright, 477 U. S. 168 (1986). In that case, we assumed
that a prospective juror’s affirmative answer to the follow
ing question would not suffice to support his exclusion for
cause: “ ‘Do you have any moral or religious, conscientious
moral or religious principles in opposition to the death
penalty so strong that you would be unable without violat
ing your own principles to vote to recommend a death
penalty regardless of the facts?’ ” Id., at 178. We recog
nized that the juror’s answer by itself did not compel the
conclusion that he could not under any circumstances
recommend the death penalty. See ibid. (“The precise
wording of the question asked of [the juror], and the an
swer he gave, do not by themselves compel the conclusion
that he could not under any circumstance recommend the
death penalty”). We nevertheless upheld his exclusion
because the trial judge had previously explained that he
wanted to know if “ ‘you have such strong religious, moral
or conscientious principles in opposition to the death
penalty that you would be unwilling to vote to return an
advisory sentence recommending the death sentence even
though the facts presented to you should be such as under
the law would require that recommendation?’ ” Id., at 176
(emphasis added). Our holding in Darden rested squarely
on the distinction between mere opposition to the death
penalty—even when based on religious or moral princi
ples—and an inability to perform the legally required
duties of a juror.
In contrast, in Gray, 481 U. S. 648, we reversed a death
sentence where a juror had been impermissibly struck for
cause. In that case, the trial court struck a juror who
appeared confused and who at times seemed to equivocate,
6 UTTECHT v. BROWN

STEVENS, J., dissenting

but who eventually acknowledged that “she could consider
the death penalty in an appropriate case.” Id., at 653; cf.
voir dire testimony of Juror Z, App. 73 (“I could [impose
the death penalty] if I was convinced that it was the ap
propriate measure”). The Court distinguishes Gray from
the case now before us solely on the basis that in Gray
there was no state-court finding of substantial impair
ment. Ante, at 5–6. In the Court’s view, this distinction is
grounded in the fact that, here, there was “an explicit
ruling that Juror Z was impaired.” Ante, at 13. That
“ruling” consists of a one-sentence conclusion included in
the final summary section of the Washington Supreme
Court’s opinion. That conclusion is based on an earlier
part of the court’s opinion, in which it found that during
voir dire, Juror Z “indicated that he would impose the
death penalty where the defendant ‘would reviolate if
released,’ which is not a correct statement of the law.”
State v. Brown, 132 Wash. 2d 529, 604, 940 P. 2d 546, 585
(1997) (en banc). Under our precedents, a juror’s state
ment that he would vote to impose a death sentence where
there is a possibility that the defendant may reoffend,
provided merely as an example of when that penalty
might be appropriate, does not constitute a basis for strik
ing a juror for cause.4
In the alternative, and perhaps recognizing the tenuous
nature of the state court’s “ruling,” the Court relies on the
fact that the trial court’s judgment is entitled to deference
——————
4 To the extent the Washington Supreme Court deemed Juror Z “sub

stantially impaired” because he initially demonstrated a misunder
standing of or confusion about the relevant law, that would also be an
insufficient basis to support his exclusion for cause, given that by the
end of the voir dire questioning, his confusion on that point had abated
and he had made clear that even if the defendant were never to be
released, he could still consider the death penalty. He also initially
“misunderstood the State’s burden of proof in a criminal case” but, as
the Washington Supreme Court itself explained, “he was corrected
later.” 132 Wash. 2d, at 604, 940 P. 2d, at 585.
 Cite as: 551 U. S. ____ (2007) 7

STEVENS, J., dissenting

because it had the unique opportunity to observe Juror Z’s
demeanor during voir dire. A ruling cannot be taken at
face value when it is clear that the reasoning behind that
ruling is erroneous in light of our prior precedents.5 There
is absolutely nothing in the record to suggest—even in
light of the trial court’s tendency to provide “careful and
measured explanations” for its decisions, ante, at 7—that
anything about Juror Z’s demeanor would dull the impact
of his numerous affirmative statements about his ability
to impose the death penalty in any situation. In effect, the
Court reads something into nothing and defers to a finding
that the trial court never made, instead of relying on the
finding on which the Washington Supreme Court clearly
based its own ruling and which finds no support in our
decisions.
In its analysis, the Court places great emphasis on
defense counsel’s failure to object to Juror Z’s exclusion for
cause, characterizing it as “voluntary acquiescence to, or
confirmation of” his removal. Ante, at 15. A closer look at
the voir dire transcript, which the Court has included as
an appendix to its opinion, reveals that the Court’s inter
pretation of defense counsel’s statement is not necessarily
accurate. Upon being asked by the judge if either party
had any challenge to Juror Z, the State provided that it
did and the defense responded to the judge that it had “no
objection.” App. 75. Although the Court reads defense
counsel’s statement to mean that defense counsel had no
objection to Juror Z’s exclusion, it is more clearly read to
——————
5 Although pre-AEDPA, we recognized in Gray that the deference
traditionally given to a trial court’s findings may not be due when those
findings are based on a misapplication of federal law. See 481 U. S., at
661, n. 10 (“The State has devoted a significant portion of its brief to an
argument based on the deference this Court owes to findings of fact
made by a trial court. Such deference is inappropriate where, as here,
the trial court’s findings are dependent on an apparent misapplication
of federal law”).
8 UTTECHT v. BROWN

STEVENS, J., dissenting

mean that the defense had no objection to Juror Z serving
on the jury and therefore no reason to challenge him.6
Even if we were to interpret defense counsel’s statement
as the failure to provide an affirmative “defense of Juror
Z,” ante, at 15, it is important to recognize that Washing
ton law does not require an objection to preserve an error
for review.7 Ante, at 17; see also State v. Levy, 156 Wash.
2d 709, 719, 132 P. 3d 1076, 1081 (2006) (“We have long
held that even if the defendant fails to object at trial, error
may be raised on appeal if it ‘invades a fundamental right
of the accused’ ” (quoting State v. Becker, 132 Wash. 2d 54,
64, 935 P. 2d 1321, 1326 (1997)).
In any event, whether defense counsel’s statement is
taken as a failure to provide a defense of Juror Z or as
acquiescence in his recusal, it is irrelevant to the ultimate
disposition of this case. We said in Witt that the failure to
object “in a situation later claimed to be so rife with ambi
guity as to constitute constitutional error” is a factor that
should be considered when assessing a defendant’s claims,
469 U. S., at 431, n. 11, but in this case there was abso
lutely no basis for striking Juror Z. Thus, counsel’s failure
to provide an affirmative response to the State’s motion,

——————
6 As the Court of Appeals recognized in its opinion, it could also cer

tainly be the case that “defense counsel declined to object because he
was glad to get rid of juror Z[, given that] Z had described himself as
pro-death penalty, and reiterated numerous times, under oath, that he
would be willing and able to impose the death penalty.” Brown v.
Lambert, 451 F. 3d 946, 953, n. 9 (CA9 2005); cf. Witt, 469 U. S., at 437
(STEVENS, J., concurring in judgment) (noting that in the case of one
juror who stated unequivocally that she “ ‘could not bring back a death
penalty,’ ” the defense’s objection to the prosecutor’s motion to excuse
her for cause served to demonstrate that defense counsel wanted the
juror to remain on the jury).
7 In contrast, in Witt, we found it significant enough to note that since

it had decided the case, the Florida Supreme Court had “enforced a
contemporaneous-objection rule when dealing with Witherspoon chal
lenges.” Id., at 431, n. 11.
 Cite as: 551 U. S. ____ (2007) 9

STEVENS, J., dissenting

though perhaps not strategically sound, does not doom
respondent’s constitutional claim. Unlike Witt, in which
there was arguably some ambiguity in the juror’s voir dire
responses, here Juror Z had unambiguously asserted his
full capability to follow the law. See, e.g., App. 58 (“I do
believe in the death penalty in severe situations”); id., at
62 (responding to whether he could consider both available
sentencing options, “Yes, I could”); id., at 63 (“I just felt
that there were times when [the death penalty] would be
appropriate”); id., at 72 (responding to whether he could
consider and impose the death penalty where the defen
dant would otherwise never be released from prison, “Yes,
sir”); id., at 73 (responding to whether he could consider
and vote for the death penalty where the alternative is a
life sentence without the possibility of parole, “I could
[impose it] if I was convinced that was the appropriate
measure”); cf. Witt, 469 U. S., at 438 (STEVENS, J., concur
ring in judgment) (“Given . . . [the juror’s] somewhat tim
orous responses, it is entirely possible that her appearance
and demeanor persuaded trial counsel that he would
prefer a vigorous or more reluctant juror”).
II
Even a juror who is generally opposed to the death
penalty cannot permissibly be excused for cause so long as
he can still follow the law as properly instructed. The
Court recognizes this principle, see ante, at 2–3, and yet
the perverse result of its opinion is that a juror who is
clearly willing to impose the death penalty, but considers
the severity of that decision carefully enough to recognize
that there are certain circumstances under which it is not
appropriate (e.g., that it would only be appropriate in
“severe situations,” App. 63), is “substantially impaired.”
It is difficult to imagine, under such a standard, a juror
who would not be considered so impaired, unless he deliv
ered only perfectly unequivocal answers during the unfa
10 UTTECHT v. BROWN

STEVENS, J., dissenting

miliar and often confusing legal process of voir dire and
was willing to state without hesitation that he would be
able to vote for a death sentence under any imaginable
circumstance. Cf. Adams v. Texas, 448 U. S. 38, 50–51
(1980) (“We repeat that the State may bar from jury ser
vice those whose beliefs about capital punishment would
lead them to violate the law or violate their oaths. But
[the Constitution does not allow the exclusion of] jurors
whose only fault was to take their responsibilities with
special seriousness or to acknowledge honestly that they
might or might not be affected”).
Today, the Court has fundamentally redefined—or
maybe just misunderstood—the meaning of “substantially
impaired,” and, in doing so, has gotten it horribly back
wards. It appears to be under the impression that trial
courts should be encouraging the inclusion of jurors who
will impose the death penalty rather than only ensuring
the exclusion of those who say that, in all circumstances,
they cannot. The Court emphasizes that “the State has a
strong interest in having jurors who are able to apply
capital punishment within the framework state law pre
scribes.” Ante, at 6. But that does not and cannot mean
that jurors must be willing to impose a death sentence in
every situation in which a defendant is eligible for that
sanction. That is exactly the outcome we aimed to protect
against in developing the standard that, contrary to the
Court’s apparent temporary lapse, still governs today. See
Gray, 481 U. S., at 658 (explaining that to permit the
exclusion of jurors other than those who will not follow
their oaths “unnecessarily narrows the cross section of
venire members” and “ ‘stack[s] the deck against the peti
tioner’ ” (quoting Witherspoon, 391 U. S., at 523)).
Judge Kozinski’s opinion for the Court of Appeals in this
case is solidly grounded on the entire line of our cases
recognizing the basic distinction dramatically illustrated
by Justice Powell’s opinion in Darden and by Justice
 Cite as: 551 U. S. ____ (2007) 11

STEVENS, J., dissenting

Rehnquist’s statement in Lockhart. He surely was enti
tled to assume that the law had not changed so dramati
cally in the years following his service as a law clerk to
Chief Justice Burger that a majority of the present Court
would not even mention that basic distinction, and would
uphold the disqualification of a juror whose only failing
was to harbor some slight reservation in imposing the
most severe of sanctions.
I respectfully dissent.
 Cite as: 551 U. S. ____ (2007) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–413
_________________

JEFFREY UTTECHT, SUPERINTENDENT, WASH-

INGTON STATE PENITENTIARY, PETITIONER v.

CAL COBURN BROWN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 4, 2007]

JUSTICE BREYER, with whom JUSTICE SOUTER joins,
dissenting.
I join JUSTICE STEVENS’ dissent. I write separately to
emphasize that, in my opinion, the majority’s strongest
piece of evidence—defense counsel’s words “no objection”
(uttered in response to the court’s excusing Juror Z)—
should play no role in our analysis. App. 75. The words
“no objection” meant in context at most what they say,
namely that defense counsel did not object to the judge’s
excusing Juror Z for cause. Often States treat such a
failure to object as waiving a point. But that is not so here.
That is because the Washington Supreme Court has told
us that, under state law, counsel’s failure to object is
without significant legal effect. Ante, at 18–19 (opinion of
the Court); ante, at 8 (STEVENS, J., dissenting); State v.
Levy, 156 Wash. 2d 709, 719–720, 132 P. 3d 1076, 1080–
1081 (2006) (en banc). And that means we must treat this
case as if a proper objection had been made.
The majority continues to rely upon the statement,
however, not as proving an objection, but as helping to
demonstrate courtroom “atmospherics,” such as facial
expressions or vocal hesitations or tones of voice sufficient
to warrant excusing Juror Z for cause. Ante, at 15–18, 19.
But in my view the majority reads too much into too little.
2 UTTECHT v. BROWN

BREYER, J., dissenting

What the words “no objection” suggest is simply that
defense counsel did not have any objection. And to find
more in those few words treats them like a Rorschach blot,
permitting a reviewing judge to affirm (or to reverse) the
trial judge on no more than the subjective view of the
written record that the appellate judge may take. Or, it
simply offers a backdoor way to avoid the effect of Wash
ington’s procedural rule. The latter would wrongly ignore
Washington law. The former would too often make it
impossible to obtain meaningful review of silent records.
There is no need, after all, to stretch the significance of
ordinary statements and thereby to assume special atmos
pherics that support (or undercut) a trial judge’s decision.
Where special courtroom atmospherics matter, a lawyer
(or the judge) can always make appropriate remarks for
the record.
Basing my conclusions, then, on the written record
itself, and in particular upon what Juror Z said in re
sponse to questions, I believe, for the reasons JUSTICE
STEVENS sets forth (and applying AEDPA’s strict stan
dard), that the trial judge’s decision to excuse Juror Z was
constitutionally erroneous and a new trial is necessary.
For these reasons, I dissent.