King v. Lynaugh

• Citation: 828 F.2d 257
• Decision Date: 14 September 1987
• Docket Number: No. 86-2006,86-2006
• Parties: Leon Rutherford KING, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 257

828 F.2d 257

56 USLW 2208

Leon Rutherford KING, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections Respondent- Appellee.

No. 86-2006.

United States Court of Appeals Fifth Circuit.

Sept. 14, 1987.

Order Granting Rehearing En Banc Nov. 4, 1987.

Ken J. McLean, Houston, Tex., for petitioner-appellant.

Paula C. Offenhauser, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN, JOHNSON, and JONES, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

In this capital case, a Texas inmate appeals from the district court's order denying his petition for habeas corpus relief under 28 U.S.C. Sec. 2254. Because the petitioner's eighth and fourteenth amendment right to exercise voir dire challenges knowingly was infringed when the state trial court refused to allow him to ask questions directed towards determining whether veniremembers harbored misconceptions about Texas parole law that might bias them in favor of capital punishment, he has a right to be resentenced.

I.

On October 16, 1978, Leon Rutherford King was convicted of the capital murder of Michael Clayton Underwood and sentenced to be executed. The facts of the crime are recounted by the Texas Court of Criminal Appeals in King v. State, 631 S.W.2d 486 (Tex.Crim.App.1982) (en banc). King's original conviction was overturned by the Texas Court of Criminal Appeals on February 6, 1980, and a retrial was ordered. ¹ In May 1980, King was convicted and sentenced to death a second time. That conviction was affirmed by the Texas Court of Criminal Appeals, ² and King's subsequent petition for a writ of certiorari was denied by the Supreme Court. ³ King then sought collateral review of his conviction in the state courts, with no success. His ensuing federal habeas corpus petition was denied by federal district court in 1986, but King was granted a certificate of probable cause to appeal and now does so. ⁴

King raises three issues concerning the constitutionality of his second trial. He contends: (1) the trial court violated his sixth and fourteenth amendment rights by failing to permit him to conduct voir dire directed toward discovering whether veniremembers harbored serious misconceptions about Texas parole law that might have biased them in favor of capital punishment; (2) his trial was rendered unfair and his entitlement to a presumption of innocence defeated when two jurors saw him bound in handcuffs on the second day of his trial during an emergency evacuation of the courthouse due to a fire; and (3) he was denied his rights under the eighth and fourteenth amendments by the trial court's refusal to allow him to conduct his own defense during the penalty phase of his trial.

II.

King contends that the voir dire he requested was necessary to dispel the common misconception that a life sentence might result in incarceration for only nine to ten years and to permit him to use peremptory challenges against prospective jurors whose erroneous assumptions about parole law might have biased them in favor of imposing the death penalty.

The state contends that King's claims are premised on the erroneous assumption that a jury instruction on parole issues is constitutionally mandated in capital cases. Under Texas law in effect at the time of King's trial ⁵ courts were precluded in all cases from giving jurors instructions on the Texas parole eligibility law. The constitutionality of this rule, Texas argues, has been confirmed in O'Bryan v. Estelle. ⁶ In O'Bryan, a panel of this court held that the due process clause does not give capital defendants the right to an instruction about the possibility of parole for a person sentenced to life imprisonment. King's characterization of his claim as a challenge to an impermissible restriction on voir dire, the state continues, merely restates the issue in different terms because King can claim no right to accomplish through voir dire what he may not accomplish with a jury instruction.

Even if the state is correct in asserting that O'Bryan forecloses King's claim that he is constitutionally entitled to a jury instruction on parole law upon request, however, it does not follow that King is not entitled to inquire about preconceptions of parole law harbored by veniremembers so that he can, at least, exercise his peremptory challenges knowingly.

The right to an impartial jury is basic to our system of justice. ⁷ This right carries with it the concomitant right to take reasonable steps designed to ensure that a jury is impartial. Perhaps the most important device to serve this end is the jury challenge, ⁸ a device based on voir dire examination. ⁹ Although the proper scope of voir dire is generally left to the sound discretion of the trial court, ¹⁰ that discretion is not unfettered. Limits on voir dire that create an unreasonable risk of bias or prejudice infecting the trial process violate due process. ¹¹

The Supreme Court has recognized "that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." ¹² The severity of the punishment is, however, not the only factor dictating that voir dire in capital cases be closely scrutinized. In such cases an accused's right to an impartial jury also must be more carefully safeguarded because capital juries are called upon to make a "highly subjective, 'unique, individualized judgment regarding the punishment that a particular person deserves.' " ¹³ Because of the range of discretion entrusted to juries in capital cases, a unique opportunity exists for bias to operate undetected. ¹⁴ The Court, therefore, has struck down capital sentences whenever it has found that the circumstances under which they were imposed created an unacceptable risk that the death penalty may have been imposed "arbitrarily or capriciously" or through "whim ... or mistake." ¹⁵

The significance of the information King sought to discover is clear. A juror might decline to impose the death penalty if the alternative were confinement of the criminal for life without possibility of parole because the general public would be adequately protected by such a life sentence. Similarly, a juror might decline to impose the death penalty on a particular defendant if he believed that the individual to be sentenced would no longer represent a menace if he were confined for at least twenty years without parole for the crime he committed. If, on the other hand, a juror believed it were likely--or even possible--that a convicted person would be released in a few years and the juror believed that the criminal would then still constitute a hazard to the public, that juror might conclude that only the death penalty would adequately ensure public safety.

Because widely held misconceptions about the actual effect of imposing a life sentence raise an unacceptable risk that the death penalty may be imposed on some defendants largely on the basis of mistaken notions of parole law, defendants in capital cases are at least entitled to determine whether such misconceptions are held by veniremembers and to exercise peremptory challenges to protect themselves against the effects of error. The state contends that, by instructing the jury that parole "is no concern of yours" and is not to be considered, the court benefitted King by essentially telling the jury that "life means life." If a misconception exists, no instruction that merely directs jurors to disregard issues of parole in making their sentencing determination can erase that fallacy from their minds. That voir dire could easily minimize the risk to the accused created by this misconception strengthens King's claim to constitutional protection from the potential ramifications of failing to strike a juror who harbors a mistaken belief. ¹⁶

As the dissent points out, the scope of voir dire has been consistently and correctly held to be within the discretion of the trial court. The Supreme Court cases evaluating the voir dire of veniremembers exposed to adverse pretrial publicity, ¹⁷ however, support our view that the ambit of this discretion does not extend to prohibiting a defendant whose life is at stake from inquiring about misconceptions or preconceptions that might bias the jury so as to exercise intelligently his peremptory challenges. In Patton v. Yount, the most recent of the pretrial-publicity cases, the Court stressed that trial judges, who observe and participate in voir dire, are best placed to assess a veniremember's impartiality and that a factual finding of impartiality should, therefore, be presumed correct. ¹⁸ Nonetheless, the court reaffirmed that, had "the jurors at Yount's trial had such fixed opinions that they could not judge impartially the guilt of the defendant," ¹⁹ Yount would have been deprived of a fair trial and stripped of his right to due process. ²⁰ Following the logic of Supreme Court precedent, this court has held that when the record reveals a significant possibility that pretrial publicity prejudiced the venire the district court is obligated to conduct individual voir dire to assure impartiality. ²¹ If preconceptions based on unreliable pretrial publicity might so bias a jury as to taint the trial, then misconceptions about the possibility of early parole might so bias a jury as to undermine due process in a capital sentencing proceeding, making adequate voir dire necessary to afford the defendant "reasonable assurance that prejudice would [have been] discovered if present." ²²

In addition to assessing the adequacy of voir dire in highly publicized cases, this circuit has before addressed questions about the accused's right to inquire about veniremembers' understanding of the law. In Moreno v. Estelle, ²³ Moreno sought habeas corpus relief from his conviction for aggravated assault and from his life sentence under...