Burns v. Estelle

• Decision Date: 11 April 1979
• Docket Number: No. 78-3109,78-3109
• Parties: James Paul BURNS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, and Robert Cousins, Warden, Ellis Unit, Texas Department of Corrections, Respondents- Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1297

592 F.2d 1297

James Paul BURNS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, and Robert Cousins, Warden, Ellis

Unit, Texas Department of Corrections,

Respondents- Appellees.

No. 78-3109.

United States Court of Appeals, Fifth Circuit.

April 11, 1979.

Richard J. Clarkson, Beaumont, Tex., for petitioner-appellant.

Joel Berger, Legal Defense Fund and Educational Fund, Inc., NAACP, New York City, for amicus curiae.

John L. Hill, Atty. Gen., Anita Ashton, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GEE and VANCE, Circuit Judges, and HUNTER, ^* District Judge.

GEE, Circuit Judge:

Witherspoon v. Illinois ¹ and its progeny form the legal terrain of this difficult and distressing case. Its factual merits are not involved, so that mercifully we are spared recounting the pitiful details of the Witherspoon provides that a venireman can be struck for cause only when he is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." 391 U.S. 510, 522 n.21, 88 S.Ct. 1770, 1777 n.21, 20 L.Ed.2d 776. The Court further defined this footnote holding by acknowledging a state's power to exclude veniremen who

gross and brutal murder which the evidence amply shows this habeas petitioner committed. The only points before us concern the manner in which the jury that imposed his death penalty was constituted. Suffice it to say that if any crime merits such punishment, it is thoroughly deserved by Burns. Nevertheless, a faithful observance of Supreme Court authority forbids its imposition here, and it falls to us to say so.

made unmistakably clear (1) that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's Guilt.

(Emphasis in original).

Footnote 21 also states that if the voir dire testimony indicates that veniremen were excluded on "any broader basis . . . the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion." ²

In its next significant opinion on the Witherspoon issue, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), the Court, again through Mr. Justice Stewart, invalidated yet another death sentence. Several veniremen had been excused on such typical grounds as that they did not "believe in" or had "a fixed opinion against" capital punishment. Although the petitioner there had complained below only of a confession assertedly coerced, he raised the Witherspoon question in brief and oral argument before the Court. Elevating its mainly footnote expressions in Witherspoon to text, the Court struck down the death sentence imposed by a jury so constituted.

Next came Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), a per curiam decision reiterating the principles laid down in Witherspoon and Boulden and striking down the death sentence where veniremen had been excused for "conscientious scruples about imposing the death penalty" or for not believing in it. And in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), the Court added, in another per curiam, that excluding even One venireman on grounds at variance with the Witherspoon standard was fatal, and this although the state may have gone to trial with one peremptory challenge unexercised.

Finally and most recently, the Court handed down its opinion in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Here the Court at last rejected a Witherspoon challenge, though it vacated the imposed death sentence on other grounds. Four veniremen had responded, in reply to prosecution questioning, that they were sufficiently opposed to capital punishment that they could not take the law and hear the evidence " 'without considering It is true that this "untrustworthiness" took the more honorable form of being unwilling to take the oath to follow instructions. Aside from this moral distinction, however, we would see no difference between one who refuses to be sworn in such a case because of his convictions and one who avows that he will take an oath to be indifferent to the penalty but will feel free, because of the strength of his convictions, to disregard it. Certainly, one who so avows holds strong views indeed and not mere general reservations or reluctance about capital punishment. His position may be slightly less extreme than one who is resolved to vote against the death penalty automatically and regardless of the evidence, but he clearly indicates that he will not serve unless he is legally and morally free to disregard his oath.

the fact that capital punishment' might be imposed." Under further questioning by the trial judge, each twice stated specifically that, because of the strength of his convictions, he could not swear to well and truly try the case and follow the law knowing that the court might impose a death sentence if guilt were found. Citing language from Witherspoon and Boulden, the Court held that jurors who could not be trusted to abide by the law as given them by the trial judge were properly excluded.

And so our survey of ruling Supreme Court law in the area is complete. It may be summarized:

1. Only the most extreme and compelling prejudice against the death penalty, perhaps only or very nearly a resolve to vote against it blindly and in all circumstances, is cause to exclude a juror on Witherspoon grounds. A mere disbelief in it, or even "conscientious or religious scruples against its infliction" ³ will not suffice, since many people hold such views and some of these may yet be able to overcome them and abide by the law.

2. No jury from which even one person has been excused on broader Witherspoon -type grounds than these may impose a death penalty or sit in a case where it may be imposed, regardless of whether an available peremptory challenge might have reached him. Bearing these in mind, we turn to the jury in Burns' case.

Section 12.31(b) of the Texas Penal Code provides that no person is qualified to serve as a juror "unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact." Tex.Penal Code Ann. § 12.31 (1974). The questioning of four veniremen on the Burns panel Doss, Mann, Tillman, and Mitchell reflects this provision; and each said at least once that the mandatory death penalty would affect his or her deliberations on issues of fact. Mrs. Doss testified that she did not believe in the death penalty; Mrs. Mann testified that she had thought about the death penalty a lot and was against it, and in no circumstances could she give it. Mr. Tillman acknowledged additionally that he could not sit and decide this case due to the existence of the penalty, that it would be "real hard" to sit and listen objectively to the issues, and that he could not do it. Mrs. Mitchell commenced by saying that she did not think the mandatory sentence would affect her deliberations on the facts, but she later said it probably would affect her decision or deliberations and finally stated that she was sure her deliberations on issues of fact would be affected. The pertinent portions of the sworn voir dire of these veniremen are set out in the Appendix.

Defendant's counsel did not clearly object to the exclusion of each of these veniremen. Regarding Mrs. Doss and Mrs. Mitchell, he requested and was denied the right to question them further. For Mrs. Mitchell, he questioned the sense in which she had interpreted "affect," whether she meant that she would consider the gravity of the penalty or meant instead that she could not consider death at all. He then excepted to the court's sustaining the state's challenge We need go no further than to the examination of Mrs. Doss to see that at least one prospective juror was excused for holding views about capital punishment not shown to be sufficiently unbending to meet Witherspoon standards. Three times in succession she affirmed that she "did not believe in" the death penalty. She then acknowledged that the mandatory penalty of death or life imprisonment would "affect" her "deliberations on any issue of fact in the case." This is all. Defense counsel immediately stated he thought she should be asked further questions, but the court excused her without more, observing, "I don't know what you could ask." Unfortunately perhaps, we do.

for cause to Mrs. Mitchell. Regarding Mr. Tillman, he only noted an exception to the fact that the " Witherspoon question" was not asked. No comment was made regarding Mrs. Mann. The state used only 13 of its 15 peremptory challenges.

She could have been asked whether, despite her expressed convictions, she could put her disbelief aside and do her duty as a citizen. Her answer might have been that she could. Or she could have been asked What effect the presence of a possible death sentence would have on her deliberations. Her answer might have been that she would wish to be very sure of guilt, to be thoroughly convinced, before she could find facts in such a way that the death penalty might result. Either answer would doubtless have rehabilitated her for jury service. An answer that she would not take or could not comply with the required oath not to be "affected" in her deliberations would doubtless, upon a proper definition of "affected" as meaning "disablingly" or "insurmountably" affected, have clearly disqualified her. To be sure, these are mere speculations about what her answers to such questions...