Keeten v. Garrison
| Citation | 578 F. Supp. 1164 |
| Decision Date | 05 March 1984 |
| Docket Number | C-C-81-488-M and C-C-83-204-M.,No. C-C-77-193-M,C-C-78-285-M,C-C-77-193-M |
| Parties | Charles Bruce KEETEN, Petitioner, v. Sam GARRISON, Warden of Central Prison, and the State of North Carolina, Respondents. Ted Lemuel CARTER, Petitioner, v. Sam GARRISON, Warden, and Rufus Edmisten, Attorney General, State of North Carolina, Respondents. Bernard AVERY, Petitioner, v. Robert HAMILTON and Rufus L. Edmisten, Attorney General of North Carolina, Respondents. Larry Darnell WILLIAMS, Petitioner, v. Nathan A. RICE, Warden, Central Prison, Raleigh, North Carolina, and Rufus L. Edmisten, Attorney General of North Carolina, Respondents. |
| Court | U.S. District Court — Western District of North Carolina |
COPYRIGHT MATERIAL OMITTED
James E. Ferguson, II, Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, Charlotte, N.C., Jack C. Boger, NAACP Legal Defense Fund, New York City, Anthony Amsterdam, New York University School of Law, New York City, Samuel Gross, Palo Alto, Cal., James C. Fuller, Jr., Thorp, Fuller & Slifkin, and Adam Stein, Raleigh, N.C., for petitioner.
Richard N. League, Sp. Deputy Atty. Gen., North Carolina Department of Justice, Raleigh, N.C., for respondents.
I.
QUESTION PRESENTED
Where death is a possible penalty, does the accused get a fair trial on the question of guilt or innocence when the prosecuting attorney is allowed to challenge for cause all jurors who would be unwilling to vote for the death penalty if the issue of punishment were separately submitted to them in a later proceeding?
These suits do not attack the death penalty as such. I have accepted the death penalty as a fact of civilization for two-thirds of a century. Like many other judges, although I have serious moral reservations about it, and objections to it, I accept it as part of the law which I am obligated to uphold. It has been with us since the beginning of history; it is obviously much less a threat to humanity than a number of the things we are doing under power-oriented militaristic rationales which threaten the very existence of human life. The United States Constitution, Amendment Fourteen, says that "no person shall be deprived of life, liberty or property without due process of law; nor deny to any person of any jurisdiction the equal protection of the laws." The requirement that government observe due process when it takes a person's life obviously assumes that government will take life for sufficiently serious crimes.
However, the death penalty is the ultimate punishment. It is irreversible, and once it has been exacted there is on this earth neither parole nor pardon nor other corrective possibility.
Therefore, when death is a possible penalty, all constitutional safeguards should be scrupulously observed.
Common sense suggests that people who favor the death penalty are more likely to convict defendants charged with capital crimes, and that people who do not favor the death penalty are less likely to convict defendants charged with capital crimes. The Supreme Court recognized those contentions in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), but prudently did not then adopt them as a basis for decision because of the lack of sociological testimony, juror opinion polls and other evidence.
Such evidence has now been developed and occupies hundreds of pages of the record of these cases.
That evidence demonstrates that what common sense says is so, is so; jurors who favor the death penalty are significantly more likely to convict and jurors who oppose the death penalty are significantly less likely to convict.
There is no serious evidence refuting those two propositions.
A fair jury has not been provided when the prosecutor is able to keep on the jury those persons most likely to convict and to exclude from the jury for cause all those persons most likely to acquit.
Nor does a jury so constituted represent, even in theory, a representative cross-section of the community.
Separate trials on the question of guilt and on the question of punishment should be made available and persons conscientiously objecting to the death penalty may validly be excluded from the second phase, or punishment phase, of the trial. Separate trials on guilt and on punishment are already required by North Carolina. There is no evidence that following these principles will add substantially to the costs already required by North Carolina's split trial procedure. Such costs, if any, are trivial compared with the human rights and constitutional issues at stake.
HOW THESE FOUR CASES GOT HERE.
These four habeas corpus petitions, consolidated for trial, were argued by counsel, on September 23, 1983, on the written records and briefs and evidence, on one issue—petitioners' contention that the State of North Carolina deprived them of their Sixth Amendment and Fourteenth Amendment rights to fair trials before impartial juries when the prosecutors were allowed to excuse for cause at the guilt determination phase of their capital trials all jurors who said they would be unwilling to impose the death penalty if they were presented with that question at the later, separate, sentencing proceeding.
All four petitioners have exhausted their claims in the North Carolina courts. 28 U.S.C. § 2254(b), and have filed habeas corpus petitions in this court.
The pertinent facts as to the individual petitioners are as follows:
Ted Lemuel Carter.—On January 6, 1975, petitioner Carter was convicted by a jury in Gaston County, North Carolina, Superior Court, of first degree murder and armed robbery. Judge Sam J. Ervin, III, the trial judge, imposed a sentence of death. Petitioner's death sentence was later vacated by the United States Supreme Court, Carter v. North Carolina, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 1211 (1976), and he was subsequently sentenced to life imprisonment in September, 1976.
At Carter's trial on guilt or innocence, no jurors were challenged for cause; however, two jurors were excused upon peremptory challenges by the prosecutor on the basis of the views of those jurors concerning the death penalty.
Charles Bruce Keeten.—On July 21, 1976, petitioner Keeten was convicted by a jury in Mecklenburg County, North Carolina, Superior Court of first degree murder; he was sentenced by the trial judge to life imprisonment.
At Keeten's trial on guilt or innocence, eight jurors were excused for cause because they stated that they would be unwilling to vote to impose the death penalty in any case. The jury which ultimately tried the case was composed of at least six women and at least three blacks. Sixteen per cent of the people on the voter list from which jury panels were selected at the time were black.
Bernard Avery.—On December 6, 1978, petitioner Avery was convicted by a jury in Mecklenburg County, North Carolina, Superior Court of first degree murder; the jurors were unable to agree on an appropriate punishment and the trial judge sentenced petitioner to life imprisonment.
The record from petitioner Avery's trial on guilt or innocence reveals that 13 jurors were excused for cause because they stated that they would be unwilling to impose the death penalty in the sentencing phase of the case. The number 13 conflicts with petitioner's figure (12), and the state's figure (10), but was reached by the court from an independent examination of the record. Of the jurors thus excused, five were black men, five were black women, two were white men, and one was a white woman. The court excused five jurors for cause on petitioner's motion, when those jurors stated that they would automatically vote to impose the death penalty upon any defendant found guilty of murder. The jury which ultimately tried Avery was composed of eight white women, three white men, and one black man. Fifteen per cent of the members of the jury venire were black. Petitioner exhausted his peremptory challenges.
Larry Darnell Williams.—On June 8, 1980, petitioner Williams was convicted by a jury, in Gaston County, North Carolina, Superior Court, of first degree murder and armed robbery. In a separate sentencing proceeding, the same jury recommended that petitioner be sentenced to death. The trial judge then imposed the death sentence.
At the guilt-or-innocence phase of Williams's trial, three jurors who said they were unwilling to impose the death penalty at a later sentencing phase of the trial were excused for cause. All three of these jurors were white. Williams was tried by a jury panel which included one black, from a jury venire in which three of the 69 venire-persons were black.
North Carolina's capital punishment statute, North Carolina General Statutes § 15A-2000, effective June 1, 1977, provides in pertinent part:
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