dissenting.
Because I believe that, under the legal standard recognized by the majority, juror Michael Boley should have been excused for cause, I respectfully dissent.
The majority has, with commendable candor, set out the pertinent portions of the Boley voir dire. (309 Or at 577-93) During that voir dire, after Boley had established that he was a strong believer in the death penalty, defense counsel asked the juror if he “could be fair in a case like this given your personal feelings, your strong personal feelings[?]” Boley answered, “I think I could, but, you know, some points it might be a little difficult, yeah.”
Immediately following this expression of doubt, Boley brought up sua sponte the murder of an acquaintance. He acknowledged still carrying feelings of anger about that crime. It is clear that these two subjects — Boley’s uncertainty about his ability to be fair and his memories of the murder of the relative — are connected in Boley’s mind.1 Defense counsel sensibly asked, “Is there any possibility that your feelings *615of anger about that situation would come out in this case?” Boley answered,
“I would follow the law the best I could, but, you know, there’s a possibility in revealing evidence and stuff like that that I saw pictures or whatever have you, you know, it’s just that click my brain that, yeah I might. I’m not sure but, yeah, there’s a possibility.”
Counsel made an effort to explore the “possibility”:
“[DEFENSE COUNSEL:] * * * How strong is that possibility?
“JUROR BOLEY: * * * On a scale from one to ten, you know, a three, four.”
Further questioning by defense counsel and especially by the prosecutor produced assurances from the juror that he would follow the law — given the leading form in which virtually all these questions were put, with the expected answer so self-evident, any other responses would have been astounding. Yet, in spite of all the rehabilitation, the last question and answer revealed the degree to which this prospective juror had his doubts about his own competency to serve:
“[THE PROSECUTOR:] And can you set aside your personal feelings in doing that, in following the law?
“[JUROR BOLEY:] Yes, I would. I would try to do the best I could.”
What we have here is a prospective juror who has very strong feelings about the death penalty being appropriate for most murders, who on his own volunteers the existence of the murder of someone he knew under circumstances that still anger him, and who expresses the likelihood that he will be able to set aside his feelings and follow the law as being as low as six in ten. Yet, the trial court declined to excuse the prospective juror for cause and a majority of this court now affirms that decision on the ground that such decisions are committed to the trial court’s “sound discretion,” and will not be reversed except for “manifest abuse.”
Disqualification of jurors is governed, so far as is *616pertinent to this case, by ORCP 57D(12)(g).2 That rule provides:
“Challenges for cause may be taken on any one or more of the following grounds:
<<* * * * *
“Actual bias, which is the existence of a state of mind on the part of the juror, in reference to the action, or to either party, which satisfies the court, in the exercise of a sound discretion, that the juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. A challenge for actual bias may be taken for the cause mentioned in this paragraph, but on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon the merits of the cause from what the juror may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.”
Obviously, the application of this rule leaves much in the hands of the trial judge. The judge sees and hears the testimony of the potential juror. He is in the best position to determine whether the existence of a bias, once identified, so infects the attitude of a potential juror that in fairness to a party the juror should not sit on that case. But the primacy of the trial judge’s role does not mean that we have no role to play.
The trial court’s only explanation of its rulings denying defense motions to excuse this juror came in the following statements:
“THE COURT: Well, the standard, of course would be probability, not possibility, because anything is possible.
U* * * * *
“THE COURT: [I] still think [the gravamen of the prospective juror’s answers is] in the possibility area and is not sufficient for a basis of challenge.”
I understand from these statements that the trial judge felt that it had to be established as being more probable than not *617that Boley’s views would interfere with performing his duties as a juror. The majority rejects this standard relied upon by the trial judge. It says:
“If the question was whether juror Boley would give defendant a fair trial, rather than whether reaction to specific evidence might affect his verdict, a possibility of unfairness of 3 or 4 on a scale of 10 casts sufficient doubt on Boley’s ability to be fair as to warrant a right to defendant to have Boley excused for cause. The voir dire, however, did not stop here.
“Boley thereafter specifically answered that he would follow the court’s instructions and be fair to both the defendant and the state and he retreated from his earlier position of doubt.”
309 Or at 586.
The difficulty with this analysis is that nowhere later in Boley’s voir dire did the trial judge acknowledge the correct standard or purport to apply it. We therefore cannot know on this record whether the court recognized the correct standard and applied it, i.e., we cannot know if his exercise of discretion was of “sound discretion” as required by ORCP 57D(1)(g). The only statements that we have from the judge affirmatively indicate that the judge was not correctly evaluating the significance of the evidence he was hearing. Thus, although it is true that there were later statements from the prospective juror that might have indicated that the juror really was rehabilitated, i.e., that he really had shaken off his doubts and determined that he could do his job as a juror, we cannot know if the trial judge relied on those statements, or instead thought them irrelevant because the prospective juror had not yet admitted that he was fifty-one percent sure he couldn’t fairly hear the case.3
This defendant, however disgusting his crime, did not have the fair and impartial jury to which he was entitled by statute and under the Oregon and federal constitutions.
I respectfully dissent.
Fadeley, J., joins in this dissenting opinion.It is manifest that this juror had serious doubts about his own ability to be fair. A short time later, Boley made this clear when, in response to a question by defense counsel concerning the gruesome facts surrounding the death in this case, he stated: “It might be tough [to be fair to defendant if the facts were as gruesome as described by counsel], yeah. That’s kind of why I brought it up to you.” (Emphasis added.)
ORCP 57D(1)(g) is made applicable to criminal trials by ORS 136.210(1). State v. Nefstad, 309 Or 523, 531, 789 P2d 1326.
What is clear is that the trial judge believed Boley — there would be no need to describe what the trial judge understood to be the test for disqualification, unless the judge believed Boley but felt Boley’s testimony did not meet that test.