Burns v. Estelle

REAVLEY, Circuit Judge, with whom FAY, Circuit Judge,

joins, specially concurring:

My concern is to keep the Witherspoon rule discrete from juror qualification to decide guilt or innocence. The state is entitled to exclude anyone who, for whatever reason, cannot be impartial in deliberating upon that question. The presiding judge should be entitled to resolve doubts about a prospective juror’s ability to be impartial on defendant’s guilt or innocence by excusing for cause.

If a panel member discloses on voir dire that he has read in the press of the crime and the defendant’s participation, the defense attorney is entitled to have that person excused if the presiding judge is not satisfied that the panel member can and will lay aside what has been read and will not allow it to affect his deliberations in any respect or to any degree. His qualifications would not be assured by the facile assent to “follow the law as given by the court” and “be true to the juror’s oath.”

The rule should be no different where the panel member objects to capital punishment. We should be careful not to write as if there is a special rule now which raises *399the burden upon the prosecutor to “make unmistakably clear” the partiality of the prospective juror. I believe the point is a proper one despite the language quoted in the court’s opinion from the Witherspoon footnote 21 as well as the repetition of that quotation by the Chief Justice in Lockett v. Ohio, 438 U.S. 586, 595, 98 S.Ct. 2954 at 2960, 57 L.Ed.2d 973 (1978).

Read entirely, the Witherspoon opinion does not change the rule as to juror qualification to decide guilt or innocence. The Court expressly refused to reverse the conviction of Witherspoon even though half of the panel had been excused simply because they held conscientious scruples or opposition to capital punishment. 391 U.S. at 516-518, 88 S.Ct. at 1774-1775. I assume Mr. Justice Rehnquist is correct when he says in his Adams dissent: “No one would suggest, however, that jurors could not be excused for cause if they declined to swear that the possibility of capital punishment would not affect their determination of the defendant’s guilt or innocence.” -U.S. at-, 100 S.Ct. at 2531.

I concur in the judgment because Adams prevents the imposition of the death penalty by a jury from which persons were excluded solely because their deliberation in the penalty phase could be affected by their views on capital punishment.