Lockhart v. McCree

PETITIONER:Lockhart
RESPONDENT:McCree
LOCATION:Court in Ouachita County

DOCKET NO.: 84-1865
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 476 US 162 (1986)
ARGUED: Jan 13, 1986
DECIDED: May 05, 1986

ADVOCATES:
John Steven Clark – Argued the cause for the petitioner
Samuel R. Gross – Argued the cause for the respondent

Facts of the case

During the capital trial of Ardia McCree, a judge removed prospective jurors who stated that under no circumstances would they be able to impose the death penalty. The Eighth Circuit Court of Appeals found that the judge’s actions violated the Sixth and Fourteenth Amendments of the Constitution. A.L. Lockhart, the director of the Arkansas Department of Correction, appealed this decision to the Supreme Court.

Question

During a capital trial does the Constitution prohibit the removal of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties at the sentencing phase of the trial?

Warren E. Burger:

We will hear arguments first this morning in Lockhart against McCree.

Mr. Attorney General, you may proceed whenever you’re ready.

John Steven Clark:

Mr. Chief Justice and may it please the Court:

The facts simply stated are these: Ardia McCree on Valentine’s Day of 1978, in the course of robbing La Tienda Gift Shop and Service Station, killed Evelyn Roughton, the owner operator, with a shotgun blast to her face.

He was charged with capital felony murder.

The state sought the death penalty.

McCree was tried before a jury which was qualified in accordance with Witherspoon and nine prospective jurors who would not consider the full range of punishments to include the death penalty were removed for cause.

McCree was found guilty and sentenced to life without parole.

The conviction was appealed to the Arkansas Supreme Court and was affirmed.

William H. Rehnquist:

General Clark, where in Arkansas was McCree tried?

John Steven Clark:

He was tried in Ouachita County, Justice Rehnquist, where the crime was committed, in Camden, Arkansas.

William H. Rehnquist:

And where did the venire come from, from a particular state judicial circuit in that case?

John Steven Clark:

It is the state judicial district which comprises two counties, Union County and Ouachita County, population of about 75,000 together.

Post conviction relief was denied to Mr. McCree.

In 1980 he filed his petition for habeas relief, which leads us to this Court today.

I’ll discuss the issues of impartiality and then cross section as raised by Mr. McCree, but before I undertake to analyze McCree’s particular constitutional claims I think it’s important that we put this case in its perspective.

This case may be one of the most important criminal cases this Court will consider this term, for if the decision below is affirmed the potential is that some 90 percent of those inmates who comprise death row, numbering 1500, may have to be retried; that in 33 of the 37 states that allow for capital punishment their statutes may have to be changed through special sessions; and that some 3,000 to 5,000 inmates minimally who were charged with capital offenses but got sentences of less than death, either life without or life imprisonment, may potentially be tried again.

I believe it’s essential for those claims–

Sandra Day O’Connor:

General Clark, I would assume that would only be if such a holding were made retroactive.

John Steven Clark:

–Yes, Your Honor.

In putting these claims in perspective, McCree’s basic complaint is that Witherspoon excludibles were barred from potential membership on the jury that heard the guilt phase of his trial.

Factually, those nine prospective jurors were excluded due to the requirements of two entirely neutral and unassailable features of Arkansas state law.

The first feature is the state of Arkansas has determined that in criminal cases the issue of guilt and innocence should be decided by the same jury, as we believe that the jury acts as a safeguard, if you will, in the criminal justice establishment between the defendant and that establishment: that the policy and the law that require that has been the policy in our state for more than seven decades.

Secondly, the state of Arkansas naturally decided to exercise its option, when granted by Witherspoon, to prevent any juror from determining sentence who said he would, explicitly vowed, that he would under no circumstances follow state law, which included the penalty of death.

Sandra Day O’Connor:

General Clark, may I inquire about this matter?

Does it make any difference here that, after the state had excused these jurors for cause under Witherspoon, that it later waived its request for the death penalty?

John Steven Clark:

Your Honor, I don’t think that it makes a difference.

The state has–

Sandra Day O’Connor:

Does that leave open for manipulation by the state in a given case an option to excuse jurors under Witherspoon and then plan all along to waive a request for the death penalty?

John Steven Clark:

–Your Honor, I don’t think it was the intent of the state to leave open an option to procedurally come back and attempt to bar this effort.

John Steven Clark:

The state of Arkansas faces this fact: With some 27 inmates on death row and 146 other persons who were charged with a capital offense but got some lesser offense, the need to determine factually whether the assertions of McCree are constitutional, and what we will be facing if in fact this Court affirms the decision of the court below.

And so in the waiver of that procedure which we waived, and I admit that to this Court, we thought we had a chance to get at the essence of the merits of this issue and get some direction from this Court as to where we should go as a matter of policy.

Sandra Day O’Connor:

But does the record disclose in this case why the state opted to proceed as it did and forego requesting the death penalty, after initially embarking on that course?

John Steven Clark:

Your Honor, the answer to that question is yes, that in this instance, as with Grigsby in the case that was a companion case, that they were consolidated… and as the Court may be aware, Mr. Grigsby died while he was in prison… that in this instance what we did was we waived this issue because of the fact that, as I said, we wanted to get to the crux of the issue before the Court.

Sandra Day O’Connor:

I don’t think that responds to my question.

My concern is that is I understand this case the state proceeded initially when it empaneled a jury on the premise that it was going to ask the death penalty.

John Steven Clark:

Yes, Your Honor.

Sandra Day O’Connor:

And it excused for cause some jurors under the Witherspoon doctrine, right?

John Steven Clark:

Yes, Your Honor.

We excused those who said they would not follow state law.

Sandra Day O’Connor:

And then at some time after or during the trial, the state decided not to seek the death penalty after all.

John Steven Clark:

In the trial with Mr. McCree, the verdict that was returned was life without parole.

The state in that instance, Your Honor, I don’t think waived.

Sandra Day O’Connor:

The state never backed off and decided not to seek the death penalty?

That had been my understanding.

John Steven Clark:

Not in McCree, Your Honor.

In Grigsby that was the case.

In the Grigsby trial we did–

Sandra Day O’Connor:

But not in McCree?

John Steven Clark:

–Not in McCree.

Sandra Day O’Connor:

All right.

John Steven Clark:

Yes, Your Honor.

McCree must prove why it is constitutionally impermissible for the state of Arkansas to follow both of these rules at the same time.

He must demonstrate that the Constitution requires that Witherspoon excludibles be eligible for the guilty phase in juries in capital cases.

Put differently, I submit to this Court that McCree must show that the Constitution demands that jurors be eligible for the jury who will not follow state law.

This Court in Wainwright and Witt stated that the party seeking to exclude jurors for bias has the initial burden of establishing that bias.

Clearly, Arkansas did that here when it discovered that those nine prospective jurors explicitly vowed that they would not follow state law.

The right to an impartial jury based in the Sixth and the Fourteenth Amendments can be defined best succinctly, I think, as the right to have one’s case decided solely on the basis of the evidence presented and of the instructions of the court.

McCree’s evidence does not even begin to show jury bias within the meaning of this Court’s opinions.

It provides no basis whatsoever for concern that the jurors who voted to convict McCree violated their oaths, or that they relied on something other than the evidence presented or the arguments of counsel, or that they disavowed and did not follow the instructions of the court.

John Steven Clark:

In fact, McCree has presented no attack of any kind on the performance of his jurors.

The key flaw in McCree’s approach is its failure to look at the individual members of his jury who actually decided his case.

The only fact that we know about the jurors that were not allowed… that were allowed, excuse me, to serve, is that they stated they were willing to consider the full range of punishments in this case, which included the death penalty.

The fact that the jury might possibly impose the death penalty alone if justified does not establish that those jurors in McCree’s case are incapable of rendering an impartial verdict.

To the contrary, there is a presumption of impartiality which attaches to McCree and to McCree’s jurors in particular, which arises, one, from the trial court’s determination that they were qualified to sit: and two, from their stated oath they would follow state law.

John Paul Stevens:

Mr. Clark, doesn’t your argument prove too much?

Supposing they excluded all Democrats, for example, and left just nothing but Republicans, and you could prove all the Republicans were perfectly impartial.

Would that be permissible?

John Steven Clark:

Your Honor, if in fact you were trying to exclude these and identify them as denial of a cross-section because they were a distinct group and they were recognizable and they were sizable and they were systematically excluded, perhaps you would be moving toward that argument, which I will address later in my argument to this Court.

But in this instance what McCree has said and the Eighth Circuit sort of merged was the impartiality and the cross-section violation.

There’s nothing in the record that demonstrates that McCree’s jurors were anything other than impartial.

John Paul Stevens:

Well, I understand that.

But in my hypothetical, if you had nothing left but Republicans would that be permissible?

Say they’re all impartial.

John Steven Clark:

If in fact in qualifying these jurors they were excused because they were going to be partial–

John Paul Stevens:

No, no.

They just excluded all Democrats and left nothing but Republicans.

John Steven Clark:

–Well, if you start taking just–

John Paul Stevens:

And they’re all impartial Republicans.

John Steven Clark:

–that’s not permissible.

John Paul Stevens:

That’s not permissible?

John Steven Clark:

That’s not permissible, just to say all Democrats or all members of associations, I don’t think, because you would have to demonstrate that they’re not–

John Paul Stevens:

All I’m suggesting is it doesn’t seem to me a complete answer to the case to say that the remaining jury, examined individually, each one of them there’s no objection to.

That’s what your argument is, as I understand it.

John Steven Clark:

–Your Honor, no, that’s not the thrust of my argument.

It’s not just that the remaining jury was impartial.

It was the fact that these jurors were excluded not because of their belief in the death penalty; they were excluded because they would, they vowed explicitly they would, not follow state law.

In the Court’s example, if all Democrats said, we will not follow state law, and that left only Republicans, then I think you’d have a properly comprised jury.

If you just excluded Democrats for the reason they held that title or avowed to that certain political party, then I think you’re treading on constitutional violations that can be demonstrated by the defendant.

Sandra Day O’Connor:

Well, General Clark, I thought that Respondent’s argument was more along the line of an argument that by excluding these jurors at the guilt-innocence phase of the case that it was a procedure whereby the state has organized the procedure in such a way that it would be more likely to result in a guilty verdict because of the evidence produced by the studies, not that the jury panel was in fact biased or not impartial, but that it was a procedure by which the state is more likely to obtain a jury which will vote for a guilty verdict.

Sandra Day O’Connor:

I thought that was the thrust of their argument.

John Steven Clark:

Well, Your Honor, if that is the thrust, I would look at it from this standpoint.

The procedure is that of a unitary system, a unitary jury, one that determined both guilt and penalty.

It is the policy of the state of Arkansas, founded in this state interest, that we believe that same jury should consider guilt and innocence as well as penalty, for we believe that in fact it acts as a safeguard, as a check, if you will, against that criminal justice establishment.

Sandra Day O’Connor:

Well, that leads to the question of whether the state’s interest, which of course is substantial, is more substantial than the defendant’s interest in having a fair procedure.

John Steven Clark:

I submit to this Court that is.

But in taking the procedural argument one step further, what McCree does argue, Your Honor, is in fact that the policy in Arkansas is not good policy: We don’t like this policy of the unitary jury.

That is not the same as, there is a constitutional violation in this process, and it’s clearly distinguishable.

If Mr. McCree wants the policy changed, his proper forum is the Arkansas legislature in changing that policy.

But in regard to the procedure, the state interest that we determine that we want to protect first and foremost is that we believe that jury does act as that safeguard in that criminal justice establishment and it is important that the same jury hear guilt and punishment so as not to diminish their responsibility as a juror, so that one juror sitting only in the guilt phase says, I am absolved of all concern and responsibility as to penalty because I am not affected in terms of making that decision, or the reverse if you were the penalty jury.

And for those reasons, as well as reasons of economy and efficiency, but the first one is that state interest.

Without conceding the validity of any of McCree’s assertions to this Court, as to the mere existence… the issue as to the mere existence of any predilection or notion or concern by defendants in general, without some other objective criteria, is to establish a standard that allows them to be excluded because of their predilection or their notion, allows them to be excluded, is to establish an impossible burden for the state to meet.

I implore this Court to consider this.

Eight out of ten people in this nation have support, based on surveys, of capital punishment, in Arkansas better than nice out of ten.

We have said repeatedly throughout this case, and this Court has affirmed, that we have the right in certain instances to exclude certain persons or professions from the jury: lawyers, if you will, doctors in some instances, in Arkansas chiropractors, dentists, dental assistants and others.

We have said that that has a legitimate basis in doing so.

They perhaps make up a sizable, distinct group that may have a predilection or some notion or concern as to guilt or innocence.

But if we rely on social science data to jump to a legal conclusion, you put the burden on the state of having an impossible task of meeting, a jury that in fact would be impartial as required by the Sixth Amendment.

What the Constitution requires in not that a jury have a particular mix of viewpoints.

Thurgood Marshall:

Did I understand you that if 80 percent of the people of this country are against the Sixth Amendment, it doesn’t apply?

John Steven Clark:

No, Your Honor, I would not say that and would never contend that.

Thurgood Marshall:

You were getting awfully close.

John Steven Clark:

We do not contend that, Your Honor.

What the Constitution requires is not a jury with a particular mix of viewpoints that the defendant would prefer, but a jury that is made up entirely of persons who will evaluate the evidence–

William H. Rehnquist:

General, when you said that Arkansas perhaps excluded lawyers or doctors and chiropractors, were those just hypothetical examples or does Arkansas in fact exclude certain occupations?

John Steven Clark:

–Specifically, Your Honor, we do exclude professions: doctors, lawyers, chiropractors, dentists, dental hygienists, firemen, Christian Scientists.

There’s a whole group that may be excluded, yes, Your Honor.

Harry A. Blackmun:

As a matter of mandate or as a matter of choice on the part of the person who’s summoned for jury duty?

John Steven Clark:

Your Honor, it’s matter of choice.

It’s not a matter of mandate.

Warren E. Burger:

There’s no statutory category?

John Steven Clark:

No statutory, except for felons, which are disqualified, which are in fact disqualified.

Warren E. Burger:

But this recital is not a statutory exclusion that you were reciting?

John Steven Clark:

No, sir, Your Honor.

It is not a statutory exclusion.

It is a statutory definition of those who can be excluded.

Warren E. Burger:

Are you saying as a practical matter you don’t find doctors, lawyers, and businessmen on juries, generally speaking?

John Steven Clark:

No, Your Honor, I would not say that.

They do comprise juries from time to time in my state and I’m sure across the country.

But in this instance, if you take the rationale that is advanced by McCree and say that you cannot distinguish a group because of some single notion or predilection that they have, then where do you stop?

Where does this Court finish litigating that matter?

Because in this instance this policy of Arkansas has been if you are a doctor you can be excused, if you are a chiropractor you can be excused, not that you must but you can be.

This may in fact then rise to the issue of some sizable group.

It may rise to the fact that there’s some distinct group, and may show some effort, at least arguably from social science data, as to how they may affect or predict actions on a jury and be excluded for some systematic reason.

What I have argued to this Court is that I would ask you to consider sincerely that what the Constitution requires, as I said, is not a particular mix of viewpoints, but in fact a jury made up entirely of persons who can and will evaluate the evidence fairly.

It would be folly, I submit to this Court, to go beyond that requirement and find a jury bias in every case where the defendant shows that his jurors’ attitudes somehow did not perfectly mirror the range of attitudes in the general population.

Concerns of this kind about the relative mix of juror attitudes on issues other than matters to be decided must be recognized under some other constitutional theory, I submit to this Court.

The Court has recognized… the court below, excuse me, the Eighth Circuit recognized, McCree’s claim that the exclusion of Witherspoon excludibles violated the constitutional right to a jury drawn from a fair cross-section of the community.

But I submit to this Court, in doing so it seriously distorted the requirements in order to establish a prima facie violation.

As this Court has identified, that violation is shown when you identify a group that is distinctive in the community, one that the representation of that group is sizable in relation to the rest of the community, and that they’re systematically excluded.

This Court has never precisely defined cognizability, but it is clear that the Court has never found that attitude alone defined a cognizable group.

There’s no basis for applying that requirement, I submit, in this cross-sectional representation, where the excluded group shares only one single attitude.

This Court has held that the basic purpose of the right to a jury drawn from a fair cross-section of the community is the furthering of that democratic function of the jury, both by placing a democratic body between the defendant and the criminal justice establishment and by also making certain that no segment of society is barred from participating in the criminal justice system.

To that end, the requirement protects only those groups that are perceived by themselves and others as distinct in the community, a distinct segment of that community.

The exclusion of jurors who share a single attitude, I submit to this Court, does not threaten, does not threaten the democratic function of the jury and thus raise the constitutional issue.

Attitudes, unlike the characteristics that underlie the recognized groups that this Court has identified in cross-sectional cases, are subject to change.

It’s been firmly established that the number of Witherspoon excludibles in the population in dwindling.

The facts indicate that Witherspoon excludibles are not a fixed class, that they very in characteristics by which they are identified, and that that variance is subject to change.

The classification of Witherspoon excludibles as a group on the basis of attitude alone is vastly different from those traditional classification characteristics as sex or origin or race.

Lewis F. Powell, Jr.:

May I ask, Mr. Attorney General, there are two issues and they are independent, are they not, the cross-section issue and the impartiality issue?

John Steven Clark:

Yes, Your Honor, there are two issues.

William J. Brennan, Jr.:

You’re going to address the… I gather we could disagree with the Court of Appeals on the cross-section issue and yet find merit on the impartiality issue?

John Steven Clark:

Yes, Your Honor, you could.

I think the Court of Appeals merged the two issues, Your Honor.

They merged the issues of impartiality and cross-section and said they found that these jurors weren’t impartial, therefore a cross-section violation.

But they are two very distinct issues.

Moreover, this Court has made it clear that even if the defendant demonstrates a prima facie case of cross-section violation, a state is entitled to defend its jury selection process by showing it has some significant state interest in that process.

That threshold point is that the state has a significant interest in Arkansas in utilizing the same jury to make the death penalty decisions.

That interest is really not quantifiable, but in fact it is real.

It is real predicated on seven decades of belief both in history and tradition and a judgment in terms of policy, of common sense, that juries in our state represent an ability to be that safeguard, that check, if you will, on that criminal justice establishment, and sitting as a jury that they are best able, sitting as the same jury, having to know that they bear the responsibility of adjudicating guilt as well as punishment, that they are best able to make that awesome decision of life or death.

This Court has recognized that the state has broad discretion in fashioning its own jury selection procedures, and that the state must have some leeway in prescribing the qualifications relevant to jurors and provide a means for reasonably exemptions.

The goal of a fair cross-section is never achieved at the cost of leaving disqualified jurors on a jury.

For all the reasons that I have argued to the court above, I would ask that the decision below be reversed, and I’d like to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Mr. Gross.

Samuel R. Gross:

Mr. Chief Justice, may it please the Court:

I’d like to begin by saying a few words about the jury selection in Mr. McCree’s case.

The jury I believe was drawn from Ouachita County only, contrary to General Clark’s assertion.

At the very beginning of the case, the judge read to the jury the information charging Mr. McCree with capital murder.

With that in mind, the judge questioned the jurors about their ability to be fair and impartial in deciding the facts of the case and in rendering the verdict, and none of them had any difficulty with that.

After that was completed, the jurors were questioned individually and at length about their ability to consider imposing the death penalty on Mr. McCree if a penalty determination became necessary.

And at that point eight jurors were excluded solely because they would not consider imposing the death penalty if a penalty determination became necessary.

They were not questioned any further about their ability to be fair and impartial on guilt or innocence.

They were not challenged on that ground.

Nobody expressed any doubts about their ability to be fair and impartial on guilt or innocence.

That is the jury that Mr. McCree received.

The jury that Mr. McCree is asking for is not any special jury, not any jury for capital cases, not a jury that consists of the type of people he particularly likes, but an ordinary criminal jury, the same jury that tries 99 percent of criminal cases in Arkansas and throughout the country, the jury that he would have received if the prosecutor in his case had charged him with non-capital murder.

And the question here is what difference does it make that he received a death qualified jury instead of an ordinary criminal jury?

Mr. Clark said that we are questioning the policy of the state.

We are not.

We are arguing that the use of this jury, because it is so different from an ordinary criminal jury, violates the Constitution, it violated Mr. McCree’s Sixth Amendment right to a fair and impartial jury, it violated his Fourteenth Amendment right to a trial on guilt or innocence under the due process clause.

William H. Rehnquist:

Mr. Gross, you used the expression “ordinary jury”.

I would like to have a little bit better idea of what you mean by that.

I understand from General Clark that ex-felons are excluded from Arkansas juries.

Now, if the same sort of a survey was run among ex-felons in Arkansas as was run about Witherspoon excludibles’ attitudes in this case and it were found that ex-felons were more favorable to the defense than the typical citizen, would you think that gave you a constitutional argument that Arkansas had to include ex-felons on the jury?

Samuel R. Gross:

No, Justice Rehnquist.

I think Arkansas and the many states that follow the same policy have adequate justification for excluding ex-felons for a number of reasons, including the fact that these people have been adjudged, have been judged by proof beyond a reasonable doubt to have violated serious state laws and as a deprivation of civil rights, as a punishment imposed on them as a consequence of their violation.

I don’t think there’s any problem with that exclusion.

William H. Rehnquist:

Well then, an jury in your view is one that is simply made up of everyone of jury age, and then the state must show some justification for excluding any category?

Samuel R. Gross:

There are other exclusions that are permissible.

The ordinary jury is the jury be would have received in a non-capital murder case, and beyond that the state must establish that the jurors cannot be fair and impartial in determining the questions before them, yes, Your Honor.

William H. Rehnquist:

What if, instead of… what if you had conducted a similar survey just in Arkansas alone of Witherspoon excludibles and it showed that people from Little Rock were much more inclined to vote for the defense in a capital case than people from Camden.

Would that give you a right to argue that constitutionally you ought to have a jury made up from the entire state, rather than just from Camden?

Samuel R. Gross:

No.

The Constitution provides, the Sixth Amendment provides, for a local jury, a jury from the vicinity in which the crime took place.

Now, the definition of the locality varies.

William H. Rehnquist:

That was made for federal purposes, really, the Sixth Amendment.

Samuel R. Gross:

That’s correct, that’s correct.

And the definition could vary and may well.

It may well mean no more than that the jury has to be from the state in which the crime took place.

But I don’t believe that there’s any constitutional restriction on the state’s ability to define the geographical unit within which the trial jury is selected.

Sandra Day O’Connor:

Mr. Gross, what if by chance there were no Witherspoon excludibles on the jury panel?

Samuel R. Gross:

Then there would be no constitutional violation.

If none were excluded, there would be no constitutional violation.

Sandra Day O’Connor:

But by your terms it wouldn’t be a fair cross-section, I suppose, as I understand your argument.

Samuel R. Gross:

The fair cross-section argument, of course, goes to the systematic exclusion of Witherspoon excludibles from the group that is eligible for service.

It wouldn’t be a constitutional violation in a particular case in which the issue wasn’t presented.

Sandra Day O’Connor:

And you would say that it was a fair and impartial jury, even if by chance there were no Witherspoon excludibles on the jury?

Samuel R. Gross:

Yes.

We agree with the state and with many decisions of this Court that a defendant is not entitled to the representation of any particular group on his particular trial jury.

He is entitled to a jury that is selected without any systematic exclusion of groups, and in this case of a distinctive and important group.

Sandra Day O’Connor:

What you really are arguing for is a sort of prophylactic rule.

Samuel R. Gross:

It’s a prophylactic rule, but one that has actual consequences in quite a few cases, Your Honor.

There will be cases in which the jury would have been just the same.

In the evidence in this case, there is a study of actual voir dire transcripts is Arkansas capital cases, and that shows that the number of Witherspoon excludibles ranged from zero is some cases to 20 in other cases.

In those cases in which it was zero, then there was no prejudice.

In those cases in which there was many, the prejudice may have been quite great.

What we are arguing is against a rule of systematic exclusion in all cases.

The question… I want to address three major points in this argument.

The first I’ve already mentioned, and that is that McCree is not asking for any special procedure in capital cases, but for the same impartial jury that all non-capital defendants receive.

The second is that there is no serious disputes about the facts in this case.

There is no serious question on the exhaustive record that was presented in the district court and on the findings of the district court, which were affirmed by the circuit court, that death qualification produces juries or guilt and innocence that are less representative, less deliberative, and less impartial than ordinary juries.

Third, that there is no state interest that justifies or requires this extraordinary procedure.

Lewis F. Powell, Jr.:

There was no finding, was there, of bias on the part of any single juror?

Samuel R. Gross:

No, Your Honor, no.

Lewis F. Powell, Jr.:

So you’re relying primarily on the statistical and expert testimony–

Samuel R. Gross:

We’re not… that’s correct, Your Honor.

We’re not suggesting that any juror who served should have been excluded.

We’re addressing the point that Justice Stevens raised earlier, that a jury that consists completely of individual jurors, each of whom could be fair and impartial, as a group will not be fair and impartial if it doesn’t represent the community, and in particular in this case if it deviates from the sense of the community in a particular direction, in this case to the detriment of the defense.

Lewis F. Powell, Jr.:

–Does one state of Arkansas provide under certain circumstances that a person may be sentenced to life without benefit of parole?

Samuel R. Gross:

Yes.

That was the sentence that Mr. McCree received.

Lewis F. Powell, Jr.:

Yes, but let’s forget capital cases for the moment.

Some states do have provisions with respect to certain crimes that a jury may sentence for life without benefit of parole.

Samuel R. Gross:

I’m not aware of any Arkansas provisions for that sentence except in capital cases.

Lewis F. Powell, Jr.:

But assume there are states that have it.

Samuel R. Gross:

Yes, there are, I know that.

Lewis F. Powell, Jr.:

I think there are.

Samuel R. Gross:

I believe so.

Lewis F. Powell, Jr.:

I think Texas may be one of them.

In such a state, would the same argument you make here with respect to death-prone jurors, as that term is used, apply to jurors who, responding to questions from the court, said they couldn’t possibly agree that anyone could be sentenced for life without benefit of parole?

Samuel R. Gross:

I jurors like that were excluded from the determination of guilt or innocence in a state that uses jury sentencing for that purpose, for determining life without parole, Your Honor?

That’s a theoretical possibility, but I think no more than that, for two reasons.

First, this is a rare occurrence.

It’s rare that this practice exists and few states have jury sentencing outside of capital punishment, and it’s rare that people are excluded for opposition to any penalty other than death.

Second, not only is there no evidence that other attitudes about punishment have the distinctiveness and the importance that death penalty attitudes have; the evidence in the record here indicates the opposite.

Lewis F. Powell, Jr.:

But would such a jury be a cross-section of the community under your argument?

Samuel R. Gross:

It would be a cross-section of the community unless there were a demonstration that the group that were excluded were important and distinctive enough to have a material bearing on the process of jury deliberations and on jury outcomes.

Lewis F. Powell, Jr.:

What do you have to do, have a Gallop poll to determine what percentage of the people in the community would oppose life sentences without benefit of parole?

Samuel R. Gross:

You’d at least have to determine that it is a substantial number.

And beyond that, you’d have to show that these people have something to contribute that might make a difference to jury deliberations or the outcome of jury deliberations.

Lewis F. Powell, Jr.:

For example?

Samuel R. Gross:

For example, as the Witherspoon excludibles in this case as have been shown, these people have legitimate and distinctive attitudes on issues such as the meaning of proof beyond a reasonable doubt.

It’s also been shown, and I think it’s very significant, that juries that include Witherspoon excludibles have a better memory of the facts of the case, that juries that include Witherspoon excludibles are more critical of the testimony of the witnesses on both sides.

And of course, the evidence shows abundantly that juries that include Witherspoon excludibles are less likely to convict the defendant as charged and more likely to acquit or in many cases return a verdict of a lesser included offense.

Now, that sort of showing, I submit, has not only not been made with respect to other groups, but is very unlikely, and the reason I say that is that the evidence in the record does not only have an absence of evidence on other attitudes; there are studies in the record and there is a chapter of a comprehensive study of jury behavior in the record which examined the impact of other characteristics, other attitudes, other demographic characteristics on jury behavior, and found the death penalty attitudes are uniquely predictive, that nothing else has the type of impact on jury behavior and jury deliberations that death penalty attitudes have.

Lewis F. Powell, Jr.:

Would you approve of the Florida system, under which the jury may or may not recommend capital punishment, and the judge may make the decision with respect to, the final decision with respect to capital punishment?

Samuel R. Gross:

Personally, I have no particular position on it.

It certainly is constitutional under this Court’s decision in Spaziano versus Florida, and it could obviate the problem here, because–

Lewis F. Powell, Jr.:

Yes, but the case you’re arguing is constitutional under Gregg, and it is the law in the majority of the states.

But coming back to Florida, I think I’ve read statistical showings that judges are more prone to impose capital punishment in the state of Florida than the juries.

Samuel R. Gross:

–That’s correct, Your Honor, and they sometimes override jury recommendations for mercy and impose the death penalty.

In those cases, however, the Florida Supreme Court is particularly meticulous in its proportionality review, and it has reversed a fair… number of those death sentences.

But to get to your–

Lewis F. Powell, Jr.:

Doesn’t that cut against your basic argument, that so-called death-prone jurors in fact are more willing to impose capital punishment than judges, for example?

Samuel R. Gross:

–No, Your Honor.

Lewis F. Powell, Jr.:

You don’t think so?

Samuel R. Gross:

No, Your Honor.

Our argument is not that death-prone… that the jurors who now qualify to sit in Arkansas are more likely to sentence to death than those who are excluded.

We concede what Witherspoon excludibles should not sit to determine the issue of penalty.

Our argument is that–

Lewis F. Powell, Jr.:

Would you argue that in Florida the people who would not be willing to recommend capital punishment should not be excluded?

Samuel R. Gross:

–Yes.

Lewis F. Powell, Jr.:

You would?

Samuel R. Gross:

They should not be excluded from–

Lewis F. Powell, Jr.:

Even though the ultimate decision is to be made by a court?

Samuel R. Gross:

–They should not be excluded from the determination of guilt or innocence.

And I want to make a very basic point in response to Your Honor.

Our argument is that this practice biases the determination of guilt or innocence.

The defendant’s right to a fair and impartial jury determination of guilt or innocence is more basic and more important than any defendant’s right to any particular procedure at the stage of penalty.

A fair and impartial determination of guilt or innocence is an absolute constitutional precondition to the state’s right to sentence the defendant to anything… life without parole, death, or a $100 fine.

And the problem here is that by excluding people who would be ineligible to serve at the penalty determination, the state has biased the determination of guilt or innocence–

Sandra Day O’Connor:

Mr. Gross, if you’re right then I suppose any state which allowed the state to make peremptory strikes of jurors would have violated the Constitution if it tried to strike from the jury people that the state thought would be more likely to render a defense verdict.

Samuel R. Gross:

–No, Your Honor.

Sandra Day O’Connor:

Why not, if the state tries to exercise all of its peremptory strikes in such a way as to get a jury that’s more likely to convict?

Samuel R. Gross:

Your Honor, that is an even handed aspect of the adversary system.

In the state of Arkansas, the prosecutor does and the prosecutor in this case did exercise peremptory challenges to the best of his ability to try to obtain a jury that would most favor his side, and the defense attorney tried to do the same on the other side.

The problem here… one of the problems, but not the only one, is that in addition to that, before he got to that stage, the prosecutor could systematically exclude all of the people who would not consider imposing the death penalty.

And that’s not the only problem.

There’s an additional problem because these exclusions were done by law, by the judge, under sanction of state law.

And there’s yet another problem–

Sandra Day O’Connor:

Well, I suppose the defendant can also at the time of trial selection, in asking that jurors be excused for cause, have the defendant’s counterbalancing excuses for cause, can’t he?

Samuel R. Gross:

–On the issue of capital punishment?

Yes, the defendant can.

The defendant can exclude people who say that they would not consider any punishment other than death.

As it happens, the evidence here shows unambiguously that such people are exceedingly rare.

The findings of the district court and of the Court of Appeals on this are that the exclusion of those people contributes only to the appearance of justice and not to the actuality of justice.

Warren E. Burger:

Would you consider a jury to be non-representative in, let’s say, the District of Columbia, where overwhelmingly the people living in the District of Columbia are Government employees?

Now, if the majority of a given jury is not made up of… if a given jury is not made up of a majority of Government employees, then is it representative of the community in your view?

Samuel R. Gross:

If a given jury is not representative of the community, there is no problem, because, as this Court has repeatedly said, the defendant doesn’t have a right to a particular jury panel, to twelve jurors who mirror the community.

If the jury panel does not represent the community, then the question becomes is the difference between the jury panel, between the pool from which jurors are selected and the community, the type of difference which gives rise to a constitutional violation.

Samuel R. Gross:

And that–

Warren E. Burger:

Washington, D.C., has more lawyers per square city block or square mile than any city in the world.

Samuel R. Gross:

–Perhaps more judges, too, for that matter.

[Laughter]

Warren E. Burger:

Did you ever hear of a lawyer on a Washington jury?

Samuel R. Gross:

I don’t know if they ever serve on Washington juries, Your Honor.

But assume they don’t.

I have no quarrel with occupational exclusions.

This Court in its decisions in Taylor and in Duren specifically said that states are free to prescribe occupational exclusions, and I think what that–

Warren E. Burger:

But there’s no occupational exclusion of lawyers.

Samuel R. Gross:

–Oh, then it’s a de facto occupational exclusion.

Warren E. Burger:

Nor doctors.

Samuel R. Gross:

Some states exclude or, more likely, provide exemptions for doctors and lawyers as a matter of statute, and in some places particular occupational groups for one reason or another don’t happen to show up.

They get exemptions for hardship or whatever.

I don’t have any problem with that, as this Court didn’t in its previous decisions.

And I think the Court’s statements on that reflect a judgment that there is no basis for presuming that doctors or lawyers of medical health professionals in general, unlike women, unlike blacks, have a distinctiveness that makes their inclusion in jury panels important.

It is theoretically conceivable that one could demonstrate that they have that sort of distinctiveness, but in fact I believe the evidence, the evidence in this case, shows the opposite.

William J. Brennan, Jr.:

Mr. Gross, may I ask, if the Court should disagree with the Court of Appeals on the cross-section issue, would you have a different argument to make on the impartiality question?

Samuel R. Gross:

I believe, Your Honor, that the Eighth Circuit’s position on the cross-section issue and the Eighth Circuit’s findings on which it based its decision on the cross-section issue dictate a holding from this Court on the issue of impartiality as well.

The Eighth Circuit found that–

William J. Brennan, Jr.:

Is that to say that if we disagree with the Court of Appeals on the cross-section issue, we also disagree with the Court of Appeals on the impartiality issue?

Samuel R. Gross:

–No, indeed.

William J. Brennan, Jr.:

Well, that’s what I’m trying to get at.

Samuel R. Gross:

I’m sorry, I misunderstood your question.

William J. Brennan, Jr.:

If we should disagree with the Court of Appeals on the cross-section issue, what argument have you on the impartiality issue?

Samuel R. Gross:

The Court on formal grounds could disagree with the Eighth Circuit that this group is not what has been called a distinctive or cognizable group.

Nonetheless, the findings of the district court and the findings of the Eighth Circuit show that the exclusion of this group has an actual biasing effect.

And regardless of the distinctiveness of this group–

William J. Brennan, Jr.:

That’s on the guilt-innocence?

Samuel R. Gross:

–That’s correct, but not only on guilt or innocence, also on the predisposition of the jury prior to the initiation of deliberations, which is I submit a constitutional issue in itself, and also on the conduct of deliberations.

William H. Rehnquist:

Well, Mr. Gross, now, you say it has an actual biasing effect, and we’re not talking about cross-section.

You agree that no individual juror was biased?

Samuel R. Gross:

That’s correct, Justice Rehnquist.

William H. Rehnquist:

So you’re saying that a jury can be biased even though no individual juror on it is biased?

Samuel R. Gross:

Exactly.

Byron R. White:

You’re really saying the absence of these other people is what really biases the jury.

Samuel R. Gross:

That’s right.

This jury is not biased because any individual on it was unqualified.

It’s biased because it’s skewed.

Let me give you an example.

Byron R. White:

You think if it hadn’t have been for this exclusion conviction would have been less likely?

Samuel R. Gross:

The conviction may have been less likely.

I think the most likely effect is that the finding that the murder in this case occurred in the course of a robbery wouldn’t have been returned.

The evidence of the existence of a robbery in Mr. McCree’s case was entirely circumstantial.

If a jury had not believed that the state had proven the existence of a robbery beyond a reasonable doubt, then Mr. McCree could not have been sentenced to life without parole or to the death penalty.

And a different jury could reasonably have reached a different conclusion on that issue, or on other issues.

Let me say something about the effect here and how it indicates fairness.

There are many studies in the record here, but the effect here is not simply one that is known through studies.

It is well known in the legal community.

Let me give you an example, if I may.

In a brief amicus curiae submitted by the Dean of the University of Missouri at Kansas Law School and by a Jackson City prosecutor, they cite a section of a manual prepared by the Missouri Attorney General’s office which says:

“In the hands of a prepared state’s attorney, the death penalty jury selection process, as in no other type of criminal case, holds the ultimate weapon, the edge for maximum success. “

“The voir dire in death cases gives you, the prosecutor, certain unique opportunities to apply effective tactics which are unavailable in other criminal cases. “

And this is not the only time prosecutors have admitted that they are aware of this.

I don’t think there’s any secret about the effect that we have here.

The effect is that the prosecution, by asking for the death penalty, can increase its chances of getting a conviction beyond what they would have been in the same case if the prosecution had not asked that the defendant be executed.

And we submit that that’s unconstitutional.

Warren E. Burger:

Do you think you have destroyed the impartiality of a jury if the prosecutor is permitted one way or another to exclude people whose members of the family have been convicted of felonies?

Samuel R. Gross:

People whose members of family have been convicted?

That’s possible.

Samuel R. Gross:

Again, that would depend.

That strikes me as an overbroad exclusion if the purpose is the same purpose for which states exclude felons themselves.

I’m not aware of any state that permits anything of this sort.

Warren E. Burger:

What use is made of the peremptory challenge if they can’t challenge for cause in those cases?

Do you think a juror… or the defense, for example… do you think defense counsel wants people on the jury whose members of families are working in the prosecutor’s office, for example?

Samuel R. Gross:

No, indeed.

But as this Court held in–

Warren E. Burger:

Or who have ever been prosecutors?

Samuel R. Gross:

–I actually know of cases in which defense attorneys have permitted that, but typically not.

But that enough, as this Court has held in Smith versus Phillips, is not enough to impute bias to a juror.

A showing of actual bias has to be made or peremptories can be exercised.

But peremptories are balanced, and this is an unbalancing process.

Byron R. White:

Did I misunderstand your brief to argue that at the voir dire a prosecutor should not inquire of the guilt-innocence, potential guilt-innocence juror, anything about his attitudes towards the death penalty?

Samuel R. Gross:

That would avoid all of the problems that we’ve identified.

Byron R. White:

You mean that it would be unconstitutional, do you think, if the prosecutor said, would you be willing to impose the death penalty, and he said, no, in no circumstances; well, you, despite your attitude toward the death penalty, would you believe that would effect your deliberations on guilt or innocence?

Can’t he ask that?

Samuel R. Gross:

I see what you’re saying.

That might create a small portion of the problem that we have here, because one of the problems we have here is–

Byron R. White:

You don’t suggest that there are no people who are against the death penalty who would also not vote for guilt?

Samuel R. Gross:

–No, there certainly are.

Byron R. White:

Well, how does a prosecutor identify them without asking them?

Samuel R. Gross:

Well, there are a couple of possible procedures.

There are several.

But the one that was used in this case was a general voir dire by the judge, asking all the jurors, knowing that it was a capital case, if they would be fair and impartial on guilt or innocence.

The state–

Byron R. White:

You don’t object to that?

Samuel R. Gross:

–Not at all.

The state could permit prosecutors to go beyond that and engage in more extended inquiry on that issue, on the issue of nullification or guilt or innocence.

Increasingly, I believe state courts have tended to limit that type of voir dire, but I don’t see any constitutional obstacle to it.

Byron R. White:

Suppose that the challenge for cause were eliminated just because of the opposition to the death penalty.

Byron R. White:

Couldn’t a prosecutor at least on voir dire identify those people who are opposed to the death penalty, so that he might exercise his peremptories against them?

Samuel R. Gross:

A state could permit that.

It’s not required constitutionally.

Byron R. White:

Well, I know, but it wouldn’t be barred constitutionally?

Samuel R. Gross:

No, I don’t believe it would, Your Honor.

I think one of the problems we’ve identified… and I think Your Honor has that in mind… is that the process of asking questions about willingness to consider imposing the death penalty before a determination of guilt is in itself biasing.

That could be minimized.

But even if it were left as it is… and I don’t think it would under any ruling upholding the Eighth Circuit… that process alone may not give rise to a constitutional violation.

That process, together with all of the other problems we have here, I think certainly does.

I’d like to say that, as the Court knows, this issue is not entirely new.

When the Court first addressed it in 1968 in the Witherspoon case, I think most lawyers and most judges believed that death qualification violates… or rather, creates biased Juries on guilt.

But the Court decided not to act on that belief, to defer a decision.

And that was appropriate then, because it was not proven.

Now matters have changed.

It has been proven.

The evidence of it is overwhelming, it’s uncontroversial, and it’s well known.

And at this point, now that we know that death qualified juries are biased on guilt or innocence, to permit the practice to continue would be a very different matter and it would, I submit, be unconstitutional.

Byron R. White:

Do you have a… do you take any position that if you win, whether the ruling would be retroactive?

Samuel R. Gross:

I have no position on that as an advocate for Mr. McCree.

But obviously it’s of concern to the Court.

The best I can say on that for the Court’s information is, a brief was filed on this on behalf of Mr. Woodard which suggests a number of ways in which retroactivity could be limited, and I think it could.

Contrary to what General Clark said, I think only a small minority of the people who are on death row now would have relief available to them under this Court’s ruling in Wainwright v. Sykes.

I should point out, as the Court very likely knows, that Judge Eisele, the district court judge in this case, already dismissed one petition on this issue because the issue was not preserved in the state courts, and the Eighth Circuit has done that in two other cases.

Judge Eisele also suggested that the doctrine of Wainwright v. Sykes might prohibit applying this type of relief to defendants who raised the issue but did not present any evidence on it, since it had been identified as a factual issue.

So I suspect the number of people to whom it would apply under existing Court doctrine would be quite small, and it could be limited beyond that, and it could be made non-retroactive entirely.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Attorney General?

John Steven Clark:

Mr. Chief Justice and may it please the Court:

I will be very brief.

It’s important to note for this Court that the state has not moved to exclude Witherspoon excludibles because of their attitude as to the death penalty, but instead because they will not follow state law.

John Steven Clark:

The Sixth Amendment says that you’re entitled to an impartial jury, that is one that will fairly weigh the evidence presented, the arguments of counsel, consider the instructions of the Court, and apply that law to the facts and the case.

John Paul Stevens:

But General Clark, is it not correct that the state agrees that there is a substantial percentage of Witherspoon excludibles who could follow state law on the issue of guilt or innocence?

John Steven Clark:

Your Honor, we would consent that if a juror says, who is a Witherspoon excludible, I can follow state law, that you can’t strike them for cause on that reason.

We’ve never argued that point.

If that juror says I will follow state law, fine.

We may strike him peremptorily, but for cause we don’t have that issue.

But McCree argues to this Court that in fact–

Byron R. White:

Well, yes, but what if he says, I will follow state law except with respect to capital punishment?

John Steven Clark:

–Then he must be excused for cause because–

Byron R. White:

Well, but he says, I can decide guilt or innocence very fairly and not be affected at all by my views about the death penalty.

John Steven Clark:

–The policy, Your Honor, of our state is for the same jury to hear guilt and innocence as well as penalty, and that policy I submit to you is one that is founded in good constitutional principle.

Secondly, I would argue to this Court that, though the contention may be made that McCree’s attack… really, the contention should be made that McCree’s attack is on the procedure.

McCree’s attack is that we just don’t like this system, not that it’s unconstitutional, we think there’s a better way.

In looking at that attack and particularly in viewing it with the issue of whether these death qualified Juries are distinct as compared to all other ordinary criminal juries, that is factually inaccurate.

In Arkansas, when we qualify a jury in a criminal case we repeatedly… whether it’s a drug case, it’s a robbery case, it’s a theft case, it’s a rape case, or it’s a death case, we want to know if those jurors can consider the full range of punishment.

If they cannot, then we submit that they must be excused for cause.

John Paul Stevens:

But you agree, I take it, that the jurors we’re talking about here, the 17 percent or whatever the figure is, would all be qualified to sit in all of those cases if they were not capital cases?

John Steven Clark:

They would be qualified in those cases if they stated to the court, Your Honor, they would consider the full range of punishments.

John Paul Stevens:

But they also state to the court in these cases, the death cases, that they can pass on guilt or innocence without any disability, and you agree with that as I understand it.

John Steven Clark:

Some may state that, yes, Your Honor.

In fact, some have, that they could do guilt or innocence, but not penalty.

John Paul Stevens:

Well, does it boil down to the balancing between the state’s interest in the unitary system in capital cases as opposed to this proven, as I understand the record, conviction proneness of this particular jury?

Is that what we’re balancing?

John Steven Clark:

You are balancing state interests, Your Honor.

I think that is correct.

And if in fact there is a conviction proneness, there may be an acquittal proneness.

What the issue is in the Sixth Amendment is, do you get a jury who will follow state law?

If they submit to you that they will, then in fact our unitary system is constitutional.

John Paul Stevens:

Of course, under the Eighth Circuit holding you could have the best of both possible worlds, because it follows state law or guilt or innocence, and then you just have to have a few extra alternates on.

You have to give up your state policy as to a few of the jurors in a small segment of the cases.

John Steven Clark:

I would submit to this Court that that is not the best of all worlds, at least by the policy determination in Arkansas, that to set those alternates on the jury, which we set, too, but not in the deliberation phase, in case of illness or emergency, but to divide that responsibility, to diminish that responsibility, is not good policy, and that we have determined it not to be good policy.

And the remedy fashioned is really a policy consideration, not a constitutional violation.

In addition, I make one other point to the Court–

John Paul Stevens:

Well, may I also ask, is the state interest a matter of policy or is there any constitutional right to this?

Is there any constitutional guarantee that you can’t protect yourself by adequate peremptories or use of alternates, for example?

It seems to me you’re saying you have a policy at stake.

John Steven Clark:

–Yes, sir, I do.

John Paul Stevens:

They’re saying they have a constitutional interest in an impartial jury, and that they’re not getting an impartial jury.

Are they weighing a constitutional claim against your policy interest, that’s what I’m trying to–

John Steven Clark:

Your Honor, I submit that when they argue that they have a constitutional claim, their constitutional claim that’s described by the Constitution is to an impartial jury.

John Paul Stevens:

–Right.

John Steven Clark:

In this instance, by the process that we follow we only exclude those jurors who say they cannot follow state law.

Had one of McCree’s jurors, one of the nine excluded, said, I can follow state law, we could not have excused him for cause.

The record doesn’t show they said that, Your Honor.

John Paul Stevens:

Yes, but you’re recusing them from the portion of the proceeding in which they admittedly can follow state law, because they cannot follow state law in a later proceeding in which they admit they should be excluded.

John Steven Clark:

We are excusing them for that reason, Your Honor, and we do that because we think that jury deliberation is the better policy, rather than judge sentencing.

Thurgood Marshall:

General, in this case did the Government use up all its peremptories?

John Steven Clark:

Your Honor, I’m not aware of whether we did or not.

I believe we did.

There are ten for the Government in a capital case and twelve for the defendant, and I believe that we did.

Thurgood Marshall:

You believe they did use them up?

John Steven Clark:

She tells me we did not.

I’m sorry, Your Honor.

Thurgood Marshall:

You did not?

John Steven Clark:

We did not.

One other point I would like–

Byron R. White:

Was the voir dire conducted individually?

John Steven Clark:

–Yes, Your Honor.

First the court inquired, and the record I think indicates that six jurors immediately identified, because of their belief on the death penalty, they could not follow state law and were excused.

The three others that were excused were identified because they could not follow state law and because at least two of those three had some relationship or familiarity with the defendant, which caused the state to be concerned about their objectivity.

Byron R. White:

So they excused six out of the entire panel?

John Steven Clark:

Nine total, Your Honor, six immediately by the judge.

Byron R. White:

Yes.

But the three, the other three, were because of individual questioning?

John Steven Clark:

Yes, Your Honor.

The other point I would like to make to this Court–

Byron R. White:

I suppose if you had a rule that you cannot throw off Witherspoon excludibles, you cannot exclude them from the guilt or innocence phase, you would just… you would find out if they ware opposed to the death penalty, but then seat them.

And then you could, when you had filled up the… got your twelve jurors, you would add some alternates.

John Steven Clark:

–Your Honor, I think that procedure perhaps could be advanced.

Byron R. White:

I guess we just wouldn’t know how many alternates you would have had to have on that basis in this case.

John Steven Clark:

We would not have known, Your Honor, that’s correct.

Byron R. White:

We don’t know now.

John Steven Clark:

No, that’s right.

The other point I would make to this Court is that there’s a division in the legal community among prosecutors as to whether death qualifying a jury makes them conviction prone.

There is evidence in the record from prosecutors in Arkansas that disagree with others as to the effect that qualifying a jury has in terms of their indication of adjudication of a verdict of guilt and innocence.

And finally, that if the state is not allowed to voir dire on the issue of death, as the question asked, then we are facing a jury that cannot be impartial to the state because of the potential of nullifiers, those very persons who, because of their opinion of the penalty of death, would vote for an adjudication of innocence rather than guilt, even though the state met its burden.

For all those reasons, I would ask that the decision below be reversed.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.