Brown v. Lambert

Decision Date08 December 2005
Docket NumberNo. 04-35998.,04-35998.
Citation451 F.3d 946
PartiesCal Coburn BROWN, Petitioner-Appellant, v. John LAMBERT, Superintendent of Washington State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Suzanne Elliott and Gilbert H. Levy, Seattle, WA, for the petitioner-appellant.

Rob McKenna, Attorney General, and John J. Samson, Assistant Attorney General, Criminal Justice Division, Olympia, WA, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-01-00715-JCC.



KOZINSKI, Circuit Judge.


The opinion filed December 8, 2005, and reported at 431 F.3d 661, is withdrawn, and is replaced by the Amended Opinion, 04-35998, filed concurrently herewith. The petition for rehearing is otherwise denied.

A judge requested a vote on whether to rehear this case en banc, but a majority of the non-recused active judges did not vote in favor of en banc consideration. The petition for rehearing en banc is therefore DENIED. See Fed. R.App. P. 35. No further petitions for rehearing or rehearing en banc will be accepted.


We consider the exclusion of jurors for cause in a death penalty case.


Cal Brown is not a nice man. In May 1991, he carjacked Holly Washa and drove her to a motel near the Seattle-Tacoma airport. Brown robbed, raped and tortured Washa while holding her hostage for two days. He bound and gagged her, penetrated her with foreign objects, whipped her and shocked her with an electrical cord. Eventually, Brown put Washa in the trunk of her car, slit her throat, stabbed her and left her to bleed to death in a parking lot.

Brown then flew to Palm Springs, California, to rendezvous with his next victim, Susan Schnell, whom he had met on an airplane a few days earlier. While inside their hotel room, Brown similarly robbed and raped Schnell, bound and gagged her, tortured and penetrated her. After handcuffing Schnell to the bed, Brown slit her throat and left her to die. Amazingly, Schnell was able to call the front desk and summon the police, who arrived and arrested Brown in the hotel parking lot.

Brown quickly confessed to both the rape and attempted murder of Schnell in California, and the rape and murder of Washa in Washington. After pleading guilty in California and receiving a sentence of life imprisonment, Brown was tried in Washington. A jury convicted Brown of aggravated first-degree murder, and sentenced him to death. Brown exhausted his direct appeals and state habeas proceedings. He then petitioned for a writ of habeas corpus in federal court, raising a number of constitutional claims regarding his trial and sentencing.2 The district court denied his petition after an evidentiary hearing, and Brown appeals three issues relating to his death sentence.3

Facial Validity of Washington's Death Penalty Statute

Brown challenges the constitutionality of the Washington death penalty statute on its face, arguing that it gives the jury no guidance on how to consider evidence of collateral crimes.

The Washington death penalty statute requires the jury to deliberate on one question only: "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?" Wash. Rev.Code § 10.95.060(4); see also id. § 10.95.070 (setting forth a non-exhaustive list of factors the jury may consider). We have previously upheld the facial validity of the identical Washington statute against a challenge that it "fails to adequately channel and guide jury sentencing discretion." Campbell v. Kincheloe, 829 F.2d 1453, 1464 (9th Cir.1987) ("Campbell I"). In Campbell I, we viewed the statute in light of the construction given to it by the Washington Supreme Court, see State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079, 1086-87 (1984) (en banc), and held that the defendant's facial challenge was "meritless." See Campbell I, 829 F.2d at 1464; see also Campbell v. Blodgett, 978 F.2d 1502, 1513-14 (9th Cir.1992) (per curiam) ("Campbell II").

Brown's argument in this case is merely a subset of Campbell's facial challenge; he claims that the statute fails to adequately channel and guide jury sentencing discretion with respect to evidence of collateral convictions. Thus, our broader holding in Campbell I—that the Washington statute does not fail to adequately guide jury discretion with respect to anything—necessarily precludes Brown's claim. We have no occasion to reevaluate our earlier assessment of the statute. See Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per curiam) (noting that rulings by three-judge panels are "law of the circuit," and are binding on subsequent three-judge panels).

Jury Selection

Brown next argues that three prospective jurors were erroneously dismissed for cause, and that he was therefore sentenced by a "tribunal organized to return a verdict of death." Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

1. Juror X was uncertain whether she would be able to impose the death penalty. Though she initially professed a willingness to follow the court's instructions, she later expressed serious reservations: "Oh, yeah, I could follow the instructions. I think that—actually making that decision, no." When the court asked her about her ability to vote for death, she responded, "I don't think I could. It would have to be so crystal clear. I would have to be—." Based on these responses, the trial judge properly excused X for cause, finding that her views on the death penalty would "substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)) (internal quotation mark omitted).

Juror Y's voir dire exposed even stronger antipathy toward the death penalty, bordering on moral outrage. She described the death penalty as "barbaric" and suggested that it "makes ... brutes of us all." She expressed resentment toward the state of Washington for putting her in the position of choosing between life and death. Finally, when asked by the court if she would be able to consider sentencing anyone to death, Y "crossed her arms, held her hand up ... and sat back."4 The trial judge properly excused juror Y for cause as well, noting that her impairment was "obvious."

The voir dire examinations of jurors X and Y contrast sharply with the examination of juror Z. Z expressed no antipathy toward the death penalty; to the contrary, he stated that he "believe[d] in the death penalty." In explaining his views, Z outlined a balanced and thoughtful position. For example, Z was discomfited by an earlier era in which "[i]t seemed like ... [the death penalty] wasn't used at all," because he believed "there [a]re times when it would be appropriate [to impose the death penalty]." But he expressed caution that the death penalty be reserved for "severe situations": "I don't think it should never happen, and I don't think it should happen 10 times a week either." Z felt most comfortable imposing the death penalty where the defendant is "incorrigible and would reviolate if released," and less comfortable where the defendant is found to have been "temporarily insane." But he stated unequivocally that he could consider the death penalty as an option if told to do so.5

In essence, Z's views on whether to impose the death penalty mirrored Washington's death penalty statute itself: He believed a defendant should be put to death where his crime was appropriately severe but not otherwise, and was willing to take into account mitigating factors (mental health issues, for example), aggravating factors (likelihood of recidivism, for example) and the particular circumstances of the instant murder. See Wash. Rev.Code §§ 10.95.060, 10.95.070. Additionally, he was open to considering other types of mitigating circumstances, such as "somebody's childhood" or "emotional development," was welcoming of his fellow jurors' views, and was accepting of the heavy responsibility assigned to jurors by the state. Most importantly, he promised he would "follow the law" without reservation.

Despite these assurances, the prosecutor protested that Z was too reluctant to impose the death penalty, and that he would only vote for death if convinced that the defendant would "kill again." The prosecutor thus moved to excuse juror Z for cause, and the trial judge granted the motion without further inquiry.

2. In 1985, and again in 1987, the Supreme Court explained that the "standard for determining whether prospective jurors may be excluded for cause based on their views on capital punishment ... is `whether 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." '" Gray v. Mississippi, 481 U.S. 648, 658, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (quoting Witt, 469 U.S. at 424, 105 S.Ct. 844 (quoting Adams, 448 U.S. at 45, 100 S.Ct. 2521)). The Supreme Court insisted that capital jurors not be struck for cause unless they are unable to follow the court's instructions. Even jurors "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." Id. (quoting Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (Rehnquist, J.)).

Further, the Supreme Court significantly circumscribed the state courts' role in...

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