742 F.2d 129 (4th Cir. 1984), 84-6139, Keeten v. Garrison

Docket Nº:84-6139 to 84-6141.
Citation:742 F.2d 129
Party Name:Charles Bruce KEETEN, Appellee, v. Sam GARRISON, Warden of Central Prison, Raleigh, North Carolina; and State of North Carolina, Appellants. Bernard AVERY, Appellee, v. Robert HAMILTON; and Rufus L. Edmisten, Attorney General of North Carolina, Appellants. Larry Darnell WILLIAMS, Appellee, v. Nathan A. RICE, Warden, Central Prison, Raleigh, North C
Case Date:August 21, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 129

742 F.2d 129 (4th Cir. 1984)

Charles Bruce KEETEN, Appellee,

v.

Sam GARRISON, Warden of Central Prison, Raleigh, North

Carolina; and State of North Carolina, Appellants.

Bernard AVERY, Appellee,

v.

Robert HAMILTON; and Rufus L. Edmisten, Attorney General of

North Carolina, Appellants.

Larry Darnell WILLIAMS, Appellee,

v.

Nathan A. RICE, Warden, Central Prison, Raleigh, North

Carolina; and Rufus L. Edmisten, Attorney General

of North Carolina, Appellants.

Nos. 84-6139 to 84-6141.

United States Court of Appeals, Fourth Circuit

August 21, 1984

Argued June 6, 1984.

Page 130

Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen. of N.C. and Thomas F. Moffitt, Sp. Deputy Atty. Gen., Raleigh, N.C., on brief), for appellants.

Samuel R. Gross, Stanford, Cal., and Ann Petersen, Raleigh, N.C. (Jack Greenberg, James M. Nabrit, III, and John Charles Boger, New York City, on brief), for appellees.

Before RUSSELL and HALL, Circuit Judges, and BUTZNER, Senior Circuit Judge.

K.K. HALL, Circuit Judge:

The State of North Carolina appeals from an order of the district court issuing writs of habeas corpus on behalf of Charles Bruce Keeten, Bernard Avery, and Larry Darnell Williams, and granting Williams' claim for relief from his death sentence. We conclude that the district court erred in issuing the writs and in granting Williams relief and, therefore, reverse.

I.

In 1968, the Supreme Court held that a venireman in a capital case may be excluded for cause if he is unwilling "to consider all of the penalties provided by state law." Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968). The Witherspoon decision left open the question of whether the Court might someday find that the Constitution required two separate juries in capital cases: one to determine guilt or innocence, and one to determine punishment. Under this bifurcated proceeding, the first jury may contain jurors who could not vote for the death penalty, although the second jury may not. The Court stated that for it to consider such a proceeding there would have to be a showing "that the exclusion of

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jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." Id. at 518, 88 S.Ct. at 1775. The Court declined to so hold in Witherspoon because the data presented in that case was "too tentative and fragmentary." Id. at 517, 88 S.Ct. at 1774. The appeals we consider today address the issue of whether, if such a showing is made, it necessarily mandates the adoption of the two-jury proceeding outlined in Witherspoon.

* * *

In 1976, Keeten was convicted of murder and sentenced to life imprisonment following a single-stage trial under North Carolina's then customary non-statutory state practice. Under this system, a single jury determined both guilt and sentencing in a one-stage proceeding. 1

In 1980, Avery was convicted of murder and sentenced to life imprisonment and, in 1982, Williams was convicted of murder and sentenced to death. Both men were sentenced under North Carolina's current death penalty statute enacted in 1977, N.C.Gen.Stat. Sec. 15A-2000, et seq., following jury trials conducted pursuant to Sec. 15A-2000(a)(2). This statute provides that a single jury shall hear both the guilt phase and the sentencing phase, but shall do so in two stages.

In each of the three cases, during the voir dire of the prospective jurors, some persons were excluded because they would not consider returning the death penalty. The exclusion of these jurors was pursuant to the Supreme Court's decision in Witherspoon, North Carolina case law, State v. Bowman, 80 N.C. 432 (1879), and, in Keeten's and Avery's cases, N.C.Gen.Stat. Sec. 15(A)-1212(8). 2 In addition, at Williams' trial, one of the prospective jurors, Nancy Melton, was excluded for cause as a Witherspoon -excludable ("WE") when, on each occasion that she was questioned, she stated that she was "not sure" she could follow the law if it required imposition of the death penalty.

In their habeas petitions in the district court, Keeten, Avery and Williams ("petitioners") urged that recent studies had proven that the exclusion of death penalty opponents created a conviction prone jury. Petitioners introduced two types of studies as proof of their claim: attitudinal surveys and mock trial studies. The attitudinal surveys, which compared an individual's responses to certain "prosecution-oriented" questions with his view on the death penalty, indicated that either strong death penalty opponents or WE's gave fewer conviction prone answers to questions than did (1) death penalty proponents, (2) persons who were neutral on the death penalty, or (3) persons who moderately opposed the death penalty. 3 The mock trial studies,

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which compared an individual's view on the death penalty with his willingness to convict in a mock trial setting, indicated that WE's and death penalty opponents convicted less frequently than death-qualified jurors ("DQ's"), 4 and those not opposing capital punishment. 5 Petitioners claimed that the attitudinal surveys and the mock trial studies justified the need for a bifurcated jury proceeding in which one jury would determine guilt or innocence and, if the defendant were found guilty, a separate jury would determine the appropriate sentence.

The State's expert witnesses testified that these studies were flawed. According to these witnesses, the most serious flaws were the lack of random samples in most of the studies, poor test design, and failure to check for consistency a person's responses to related survey questions. The State's experts also expressed the view that the attitudes asked about in the surveys were too general to predict behaviors, and that past behaviors caused attitudes rather than vice versa. These conclusions were supported by the research of Dr. Steven Penrod, a psychologist specializing in jury research. Dr. Penrod found almost no correlation between attitudes about the criminal justice system and verdicts in mock trials which he conducted, between the verdicts themselves, or between the several attitudes about which he inquired. Finally, the State relied on statistics from petitioners' own studies, which established that the impact of conviction prone differences between groups, to the extent it exists, is minimal, except in one respect: opposition to the death penalty strongly increases the likelihood of juror nullification. This nullification occurs when a juror so strongly opposes the death penalty that he will refuse to convict if the death penalty can be imposed as a result of the conviction.

Based on the statistical information presented to it, the district court found that: (1) WE's are a distinctive group in the community and their exclusion violates the requirement under the Sixth Amendment to the United States Constitution that a jury panel be drawn from a fair cross-section of the community; 6 (2) the exclusion of WE's created a conviction prone jury in violation of the due process clause of the

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Fourteenth Amendment; and (3) in Williams' case, prospective juror Melton was challenged for cause in violation of Witherspoon.

The State appeals.

II.

On appeal, the State contends that the district court erred in finding that the exclusion of WE's created a conviction prone jury in violation of due process and petitioners' right to a jury selected from a fair cross-section of the community. The State also contends that the district court erred in finding that, in Williams' case, prospective juror Melton was challenged for cause in violation of Witherspoon. We agree with each of these contentions.

Assuming that the evidence petitioners presented to the district court does indeed supply the persuasiveness found lacking by the Supreme Court in Witherspoon, 7 we nonetheless conclude that the district court erred in granting petitioners relief under this argument.

A. The Fair Cross-Section Requirement

Petitioners urged below and the district court held that jurors opposed to the death penalty comprise a distinctive group in the community whose exclusion violates the Sixth Amendment. We disagree.

Although the right to a jury trial includes the right to a jury venire drawn from a representative cross-section of the community, it does not include the right to be tried by jurors who are unable or unwilling to follow the law and the instructions of the trial judge in a capital case. Lockett v. Ohio, 438 U.S. 586, 596-97, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978). The state as well as the defendant has legitimate and vital interests at stake at both the guilt and penalty stages of a capital case.

The Supreme Court recently reaffirmed this principle in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980):

[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

Id. at 45, 100 S.Ct. at 2526. Furthermore, as the Fifth Circuit reasoned in Spinkellink v. Wainwright, 578 F.2d 582, 597 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), 8 members of the venire who are irrevocably opposed to capital punishment would engage in jury nullification if permitted to sit at the guilt stage of a capital case and, therefore, would not be impartial fact finders. 9 Under these cases, the state may thus exclude

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such jurors without violating a defendant's right to a fair cross-section of the community. Accordingly,...

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