Morgan v. Illinois – Oral Argument – January 21, 1992

Media for Morgan v. Illinois

Audio Transcription for Opinion Announcement – June 15, 1992 in Morgan v. Illinois

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William H. Rehnquist:

We’ll hear argument next in No. 91-5118, Derrick Morgan v. Illinois.

Mr. Andrews, you may proceed.

Allen H. Andrews, III:

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether, in a capital case, a defendant’s right to an impartial jury requires a trial court to inquire of potential jurors whether, if the defendant is convicted of murder, they would automatically impose a sentence of death at a subsequent sentencing hearing.

The issue in this case arose at Mr. Morgan’s trial.

The defendant asked the trial court to ask the jurors, would you impose… if you convict Derrick Morgan of murder, would you impose a sentence of death no matter what the facts are.

The trial court declined, giving an explanation that he had asked that question in substantially similar form at some earlier time, but he had not.

At the State’s request, the trial court did ask the potential jurors whether they could never impose the death penalty upon Mr. Morgan.

Following those questions, approximately 17 jurors were excused because they could not sentence Mr. Morgan to death, or they said they could not.

Mr. Morgan was convicted by the jury of murder, and he was subsequently sentenced to death by that jury.

The Illinois supreme court affirmed both the conviction and the death sentence.

On this issue, it ruled that there was no requirement to reverse Witherspoon in the jury, in other words, to ask whether the jurors would always impose death.

It also held that because Mr. Morgan could not demonstrate that any of the jurors were prejudiced against him, that he was not entitled to any relief.

This Court granted certiorari to review that decision.

Now, the Sixth Amendment and the due process clause of the Fourteenth Amendment guarantee a defendant an impartial sentencing hearing in a death penalty proceeding.

Automatic death penalty jurors, people who would automatically impose death, cannot serve because they cannot be impartial.

Byron R. White:

Is that question… would that question, is it really asking, will you… would you always impose a death penalty, even if you are instructed to weigh mitigating and aggravating circumstances?

Allen H. Andrews, III:

That question did not… the form of the question did not discuss the Illinois statute.

It did not discuss weighing–

Byron R. White:

So, in short, it does cover that… it does mean would you disobey your instructions.

Allen H. Andrews, III:

–Actually, it definitely does mean would you disobey the instructions.

That is all that the defense was trying to find, was to discover whether jurors were being seated who could not follow the law.

And indeed, that is the only thing that they wanted.

Byron R. White:

Well, let’s assume they said, and satisfied the court, yeah, we’ll obey our instructions.

But then at the end of the weighing, there’s all these… still an area of discretion, isn’t there?

Allen H. Andrews, III:

There’s a tremendous amount of discretion.

Byron R. White:

But the question wasn’t just narrowed to that.

Allen H. Andrews, III:

The question was not narrowed as to whether they could weigh aggravation or mitigation.

Byron R. White:

Or it wasn’t narrowed to whether where you have discretion, whether you would always vote for the death penalty?

Allen H. Andrews, III:

No, it wasn’t.

Allen H. Andrews, III:

It was even narrower than any of that.

It was whether you would always impose death, no matter what type of sentencing procedure had been followed.

It was not even as broad as probably would have been allowed by decisions subsequent.

Byron R. White:

Well, I know, but if somebody, any juror who said, I won’t obey my instructions, is going to be thrown off, isn’t he?

He’s not going to answer yes to that.

Allen H. Andrews, III:

No, he’s not going to say that he would not obey the instructions.

There’s a tremendous amount of pressure.

And for that reason, these general questions about whether or not you would obey the law, or whether you can be fair, are not adequate to reveal whether somebody would automatically impose the death penalty.

Antonin Scalia:

Mr. Andrews, why do you say it amounts to violating your instructions?

I mean, I gather the instructions are, you know, given your assessment of what is mitigating, you should let him off.

But if a juror says, hey, I am really… I am a hard nose, and I would not allow any mitigation for this kind of… why is that disobeying the instruction?

He is just telling the judge, that’s the way my judgment works.

That’s not disobeying the instruction, is it?

Allen H. Andrews, III:

You’re right.

It does not require them to disobey the law.

They’re told in Illinois that the death penalty will be imposed unless mitigation outweighs aggravation.

Well, to jurors such as these, the mitigation will never outweigh the aggravation.

They believe that death should automatically be imposed, so therefore they will never find enough mitigation to preclude the imposition of the death penalty.

Anthony M. Kennedy:

And it’s your position that there’s nothing in these instructions that the State can point to to counter the effect that you fear.

Allen H. Andrews, III:

No, there is absolutely nothing in the instructions, because that is precisely what they are told, that they have that discretion, and it is pure weighing.

And there is no… the Illinois supreme court has said that there is no burden of proof upon the State, so they can do whatever they want, as long as they weigh the mitigation.

And even if–

William H. Rehnquist:

Is a part of your submission, Mr. Andrews, kind of sauce for the goose, sauce for the gander, that since the State is entitled to ask Witherspoon/Witt types of questions to jurors to see if they would ever impose the death penalty, you should be able to ask similar questions kind of pointing in the other direction?

Allen H. Andrews, III:

–That is part of our argument.

We don’t demand absolute equality, but in an issue of this importance, where the State is allowed to exclude, as in this case, perhaps 17 people, we do think that fundamental fairness requires that we should be able to discover the opposite type of jurors, those jurors who would always impose death.

Anthony M. Kennedy:

Well, would your position be the same if the Witherspoon question was not asked?

Allen H. Andrews, III:

I believe that even if the State does not Witherspoon, the defendant’s interest in obtaining an impartial jury is so significant that he should, at his request, be entitled to have the judge inquire of these jurors whether they would automatically impose death.

If for some reason the State decides that they do not care whether there are anti-death penalty people on the jury, their decision should in no way force a defendant to perhaps be tried by a jury composed of people who would automatically impose death upon him.

Byron R. White:

Would you say you’re entitled to have a question asked of jurors, do you favor the death penalty?

Would you lean towards imposing the death penalty in any case, or not?

Allen H. Andrews, III:

No, Your Honor, we merely want a question that would reveal whether they could, you know, consider the mitigation and follow what the Constitution requires, and not be automatic death penalty jurors.

Antonin Scalia:

Mr. Andrews, you mentioned fundamental fairness.

That’s sort of a due process standard, but you’re also relying on the Sixth Amendment, aren’t you?

Allen H. Andrews, III:

Yes, Your Honor.

Antonin Scalia:

How can you rely… I thought we’ve held, I know we’ve held, that the Sixth Amendment does not apply to… that there is no Sixth Amendment right to a jury in the penalty phase of a trial.

Allen H. Andrews, III:

Well, when there is a jury in the penalty phase in the trial, when the trier of fact in the penalty phase has to be impartial, and–

Antonin Scalia:

Well, that’s a due process claim, though, not a Sixth Amendment claim.

Allen H. Andrews, III:

–Even though there is no right to a jury, it seems to me that when the State gives you the right to a jury, that the jury has to be impartial, as required.

Antonin Scalia:

Well, again, that’s, it seems to me, a due process assertion.

I don’t see how you can get to a Sixth Amendment right to an impartial jury when there is no Sixth Amendment right to a jury.

Allen H. Andrews, III:

Well, this Court has specifically held in Turner v. Murray that the Sixth Amendment applies.

There’s the Bollington v. Missouri case that says that a death penalty sentencing hearing is the equivalent of a trial, and I would say that certainly supports the Sixth Amendment application to the sentencing hearing.

Antonin Scalia:

I’m just saying I don’t understand it.

Well, it wouldn’t hurt your feelings to rely on due process, would it?

Allen H. Andrews, III:

No, Your Honor, it wouldn’t hurt my feelings to rely on the equality argument, either.

I would just like some relief for Mr. Morgan.

Now, the risk… there’s a great risk that these people will serve if this inquiry isn’t made.

Now, the cases of Ross v. Oklahoma and Mu’Min v. Virginia, automatic death penalty jurors appeared in there.

There are a large number of State cases where these people appear.

In June of 1991, there was a poll that said 76 percent of the population favor the death penalty, and half of those believed in the concept of a life for a life.

So there are definitely people out there who will do this, who will impose death automatically.

And furthermore, it is not, as the State perhaps suggests, merely a question of numbers, it’s a question of logical consistency.

These jurors are as unfit to serve as a juror who would not impose the death penalty, and logically we should be entitled to inquire–

Byron R. White:

I take it that in the State courts of Illinois the judge voir dires the jury all the time?

Allen H. Andrews, III:

–The judge has absolute discretion.

He can allow the jurors to voir dire… the attorneys to voir dire if he sees fit.

In this case, the trial judge allowed absolutely no participation other than to request questions.

So the trial judge can preclude any inquiry.

And in this case the attorneys had no chance to ask–

Byron R. White:

Would it have satisfied you if the judge was willing to ask the jury, do you swear to follow your instructions, including the instruction to weigh any mitigating evidence against the aggravating evidence?

Allen H. Andrews, III:

–No, Your Honor.

Byron R. White:

Would that satisfy you?

Allen H. Andrews, III:

No, Your Honor.

Byron R. White:

Why not?

Allen H. Andrews, III:

Because as was pointed out earlier, these people might think that they’re weighing mitigation and aggravation, but they’re not weighing it in any meaningful manner as is contemplated by the Constitution.

What they do is they believe that no mitigation can outweigh the aggravation.

It is automatic.

Any weighing would be pointless.

It is not meaningful as the Constitution contemplates.

William H. Rehnquist:

Well, how would your question bring it out any more subtly or more discreetly?

Allen H. Andrews, III:

It would just directly ask them.

They would know what was required of them.

Could you… they wouldn’t even have to know what was required of them.

Would you automatically impose death?

If they answered yes, they would be removed from the venire, and they could not be on the jury.

William H. Rehnquist:

But you’re going to find a fair amount of people, I dare say, who answer no to that question.

Allen H. Andrews, III:

Yes.

William H. Rehnquist:

And yet are very likely to find that the aggravating circumstances outweigh the mitigating circumstances.

Allen H. Andrews, III:

Well, we’re not arguing that the death penalty can’t be imposed in suitable cases.

Byron R. White:

Would it have satisfied you if the judge says, well, I’ll ask this amended question.

Would you, despite your instructions to the contrary, always impose the death penalty?

Allen H. Andrews, III:

That would, I believe, satisfy me, because that would reveal that these people would always impose a death penalty.

However, that question is not the reverse of the Witherspoon question.

Ideally, what would be asked is would you always impose it, and they would answer.

And if there was some problem with the type of answer that they gave, if there was some ambiguity, then the trial judge would continue it and explore it more.

Antonin Scalia:

But our law does not prevent them from always imposing the death penalty.

We don’t say that a juror must weigh and be able to come out with a result against the death penalty.

A juror who always comes out with a death penalty is a perfectly acceptable juror, as far as our case law is concerned.

He just has to be given the opportunity to weigh.

We don’t say that he must have at least a reasonable possibility of coming out in favor of the defendant.

Antonin Scalia:

If he wants to weigh and come out that way, he must be allowed to do so.

Allen H. Andrews, III:

What the case law has said is that weighing has to be meaningful.

Now, if he’s automatically going to impose death, his weighing is not meaningful, and he is not–

Antonin Scalia:

Where does it say that it must be meaningful?

I don’t… I think there has to be a meaningful opportunity as far as the restrictions placed on the juror are concerned, but I don’t think we’ve ever said that the juror has to be someone who will have a reasonable possibility of coming out that way.

Allen H. Andrews, III:

–Well, the defendant has a right to present mitigation.

Now, to effectuate that right, he has to be able to present it to jurors who will pay attention to it.

Otherwise, it’s an absolutely meaningless right.

Antonin Scalia:

Why is that?

Suppose I’m the type of juror who… I just really don’t like any hearsay evidence, including some hearsay evidence that comes in under exceptions to the hearsay rule, and I’m just not persuaded by that kind of evidence.

Do I have to be excused?

Allen H. Andrews, III:

Yes, because you cannot follow the law to–

Antonin Scalia:

No, the law tells me to give it whatever weight I think it’s entitled to.

In my view of the thing, I think this kind of evidence is entitled to zero weight.

I’m not a bad juror for that, am I?

Allen H. Andrews, III:

–I’m not saying that these are bad people, or anything of that nature.

I’m saying they are not fit to be jurors.

It’s a very logical position in its own way, that death should be automatic following a murder.

But the defendant’s right to present this mitigation to defend his life is meaningless if these jurors are on the jury.

And if these jurors were fit, this Court would not have held in Ross v. Oklahoma that a death sentence must be vacated if there’s even one juror on the sentencing jury.

Byron R. White:

Were you trial counsel?

Allen H. Andrews, III:

No, I was not.

Byron R. White:

Have you tried death cases?

Allen H. Andrews, III:

No death murder cases, Your Honor.

Byron R. White:

How often would you predict that some juror is going to answer yes to your question?

Allen H. Andrews, III:

I would have no way of predicting.

I mean, certainly couldn’t tell from this record, since the question wasn’t asked.

But it seems to me the kind of question that isn’t necessarily… shouldn’t be based–

Byron R. White:

You speak about these people as though they were really quite a group of people.

Allen H. Andrews, III:

–I honestly couldn’t tell you how large a group of people there are.

Allen H. Andrews, III:

I would say that perhaps as the death penalty becomes increasingly popular that they would become more common.

But again, the defendant’s right to preserve his life is pretty well ruined when such an individual serves on the jury.

And whether there are a lot or a few, the question is whether can… will some of them possibly be seated?

And they definitely will, and that is what all of these cases show.

So it’s not necessarily a question of how many there are, or are there as many as would not impose death.

Anthony M. Kennedy:

At least we knew there was one in Ross v. Oklahoma.

Allen H. Andrews, III:

Yes, and there was one in Mu’Min.

And in Ross it was, the juror said, I can be fair.

And then they asked him, but would you always impose death?

And he said, oh, yes, I would.

I wouldn’t consider a lesser sentence.

So that case is a perfect example of where the fairness question, or the following the instructions wouldn’t apply, because they don’t really know what fairness involves, or what the law involves in the future.

You need to ask this question.

That tells them what the law is, and that is what allows them to make an honest answer.

And they don’t find themselves on the jury.

Now, in addition to the number of people who actually might or might not be out there, there’s just a tremendous amount of prejudice resulting from a people’s serving on this.

Because these people have already decided the ultimate issue in this case.

It’s not like race or bias against beards or any of the other biases, it goes to the ultimate issue.

A racist might acquit somebody, even though he does not like their race.

He might do it.

But this is a person… it’s a bias of an entirely different type.

They don’t think there’s anything wrong with it.

They will never, ever, you know–

William H. Rehnquist:

Well, what about a person who is perfectly willing to follow the instructions, but if they were questioned, they said, you know, I really am not much moved at all by this evidence of an abused childhood.

You know, I had an abused childhood.

I rose above it.

I think it’s all a lot of bunk as mitigating circumstance.

If they want to put in some other kind of mitigating evidence, that’s fine, but that just doesn’t move me at all.

Should he be excludable?

Allen H. Andrews, III:

–No, because he can consider the mitigation, he just does not give a certain type that much weight.

Allen H. Andrews, III:

Perhaps if he said, absolutely, I would refuse to consider the mitigation, perhaps he should be excluded.

But realistically, you’re not allowed to inquire of these jurors what type… about the type of mitigation you might present.

We just want to know whether–

William H. Rehnquist:

Isn’t that going to be the next step if we rule in your favor?

Allen H. Andrews, III:

–No.

No, I do not believe that it would be, because this goes to the ultimate issue of whether they can just absolutely follow the law.

It is the ultimate issue.

That is a prejudice against a certain type of evidence.

It is not outcome determinative of itself.

He could consider other mitigation and not impose death, or he can consider that mitigation and give it very little weight.

This just goes to the ultimate issue.

It is just like the Witherspoon juror.

Byron R. White:

Of course, if there are one of these persons who, if you didn’t have your question asked and there was one of these always will give the death penalty people on the jury, of course, he couldn’t control the verdict just by voting for the death penalty alone.

Allen H. Andrews, III:

No.

Certainly not in Illinois, where it requires a unanimous jury.

Byron R. White:

And it’s different on the other side, though.

In the Witherspoon case, in Illinois, a single person could avoid a death… could negate a death penalty.

Isn’t that right?

Allen H. Andrews, III:

Yes, that’s absolutely true, and that’s the whole point of the statute.

But it is not true that that somehow… well, first the State argues that they have this greater interest than we do in discovering the Witherspoon reasons for the purpose outlined in your question, but their interest is really wholly irrelevant.

If our interest in discovering these jurors is great enough, I’d be willing to concede to them that theirs is 10 times greater than ours.

But as long as ours is great enough to require the inquiry in this case, their interest is absolutely irrelevant.

It’s just not logically equated to this.

Byron R. White:

Are you so interested because you would think that that single juror out of the 12 would be able to unduly influence the other 11?

Allen H. Andrews, III:

No, it is not a matter of undue influence at all.

What it is, is the structure of the Illinois death penalty statute, where one juror can preclude the imposition of the death penalty.

So the way it works is you’ve got 12 shots at saving your life.

Byron R. White:

And if this one person wasn’t so hide bound, he might be the person to vote against it.

Allen H. Andrews, III:

Exactly.

And the more people you have on, the fewer chances you have.

Allen H. Andrews, III:

And the fact that each juror can prevent it makes each individual juror a very crucial person.

Antonin Scalia:

And you say the Constitution requires that you have 12 shots at this rather than just 11 or 10 or whatever?

Allen H. Andrews, III:

I’m not saying that the Constitution requires any number of jurors or anything.

I’m saying that the statute should… that the State’s point about the statute, that their interest is greater, is absolutely incorrect, because the statute is designed to make the death penalty difficult to impose, and that each of these jurors should not be able to… should have the opportunity to preclude it, and that the automatic death penalty people don’t.

Antonin Scalia:

Well, I think if you’re talking about a Sixth Amendment right to a jury and an impartial jury, I think that argument may go.

But if you’re just talking about fundamental fairness, it doesn’t seem to me fundamentally unfair to allow this decision to be made by 12 individuals, some of whom may have this attitude, even though others don’t.

Allen H. Andrews, III:

Well, if that is the position of this Court, the next cases you’re going to see is what about with three of these people on the jury?

What about with six?

And we’ll be fine-tuning that for a long time.

John Paul Stevens:

Do I understand you’re making the rather extreme argument that you’re entitled to have all 12 jurors unbiased?

Allen H. Andrews, III:

Yes, exactly.

Just as if in a trial, you know, no one would ever say that a racist was entitled to sit on a jury for guilt merely because the other 11 jurors would have to agree with him to convict.

It’s just not done.

John Paul Stevens:

For making the rather extreme argument that you are a biased juror if your particular view, which is not unlawful, of a crime is that this crime deserves the death penalty, and I will listen to the evidence of aggravating and mitigating circumstances, Your Honor, but I will tell you now, with this kind of a crime, I will always find in favor of the death penalty.

Is there anything unlawful about that?

Allen H. Andrews, III:

Yes, they cannot consider mitigation.

It’s not a crime per se, but they are not fit to be jurors.

Antonin Scalia:

They consider it.

They just come down against your client.

Allen H. Andrews, III:

Well, they don’t meaningfully consider it.

They just… if they as much as told the judge before they’ve heard it that they’re not going to give the guy any consideration about it, they’re not going to consider the mitigation.

That’s about as much as I can really say on that subject.

It’s just that if they’re announcing in voir dire that it’s always going to be death, there is no consideration that follows in the sentencing hearing.

Now, given the fact that in Ross v. Oklahoma this Court has said that these jurors shouldn’t serve, it would seem to me that perhaps the State’s greatest interest in this case would be to allow this inquiry so that we don’t have to keep coming back in collateral proceedings in the future to overturn these convictions.

Because if we don’t get to voir dire these jurors on this subject, the only time we can find out about whether they would automatically, or did automatically, impose a death penalty is years later in a collateral proceeding, and then the State’s going to be in the posture of re-creating these trials and finding their witnesses.

And it seems to me their best policy is to agree that we ought to have this inquiry whenever the defendant asks for it.

John Paul Stevens:

I don’t understand.

How do you find out in collateral proceedings?

Allen H. Andrews, III:

You go and interview the actual jurors and you ask them, were you… did you believe that you would automatically–

John Paul Stevens:

But will the judge allow you to inquire into that?

Allen H. Andrews, III:

–This is after the trial.

You can’t, like, do this on direct appeal.

You have to wait for the collateral proceedings and go out, and you interview all of the witnesses, and you interview the trial attorneys and the jurors.

It’s done all the time.

And it’s so far perfectly permissible to interview the jurors.

Now, as far as the other inquiry–

William H. Rehnquist:

And the statement of the interviewer is admissible in the collateral proceedings?

Allen H. Andrews, III:

–You could call the juror themselves after they’ve talked to you.

Now, as far as a few more points on the State’s positions.

Now, they argue that, you know, that the fairness inquiry is adequate.

But even the Illinois supreme court has finally realized, after Mr. Morgan’s case, that direct inquiry… there is no better way than direct inquiry into this.

And they have backed away from their idea that these fairness questions can reveal it and that the defendant is somehow required to show that the jurors are prejudiced, even though he was never entitled to ask about the subject matter.

And as far as the instruction about following the law, here in this case, in the discretion of the trial judge, he didn’t even ask three of the jurors if they could follow the law.

So here, at a minimum, in this case, the following the law was not adequate because they were not even asked.

Antonin Scalia:

Mr. Andrews, how do you want this question to be asked?

Is it to be asked with reference to the particular crime at issue?

I mean, would you say in the voir dire, you know, this is a case of the rape and murder of a, you know, of a 15-year old, or something like that?

I mean, could you describe the exact crime before you ask the question?

Allen H. Andrews, III:

No.

We do not seek that right at all.

We would seek, you know, Wainwright v. Witt, or Witherspoon… anything, no hypotheticals, no facts, just direct inquiry on whether they could follow this crucial area of the law.

Would your belief that the death penalty should be imposed, you know, interfere with your performance of your duties as a juror?

Antonin Scalia:

Should be imposed for what?

It’s hard for anybody to answer that question.

I mean, what crime are we talking about here?

Shoplifting?

Allen H. Andrews, III:

No, the death penalty.

If you convict Derrick Morgan of murder, would you automatically impose a death sentence in this case?

That would be fine.

I think that that would cover it.

Antonin Scalia:

What if the juror says, well, it would depend on the nature of the murder?

How, you know, how gory and heinous it was.

Allen H. Andrews, III:

I think that that is a juror who can consider mitigation and who is not an automatic death penalty juror.

And if there was some doubt in the trial court’s mind, then he could inquire further.

Antonin Scalia:

And you don’t think counsel would follow up with, well, let me describe to you this murder, and then the circumstances of the murder–

Allen H. Andrews, III:

No, not in Illinois, because the trial judge has complete discretion, and if he thinks that the trial counsel is doing something that he shouldn’t be doing, then he would tell counsel to stop.

Antonin Scalia:

–So you would just describe the nature of the offense, murder, or whatever–

Allen H. Andrews, III:

Yes.

If you convicted Mr. Morgan of murder, would you automatically impose death?

In conclusion, I would just state that because of the importance of this issue to the defendant’s right to a fair sentencing hearing, and because the questions were not asked in this case, that the judgment of the Illinois supreme court should be reversed.

And if there were no further questions I’d like to reserve my remaining time for rebuttal.

William H. Rehnquist:

–Thank you, Mr. Andrews.

Mr. Gillis, we’ll hear from you.

Kenneth L. Gillis:

Mr. Chief Justice, and may it please the Court:

Petitioner asks for a per se rule here, which would require all State trial judges in capital cases to ask a particular form of questions to prospective jurors.

Except for the racial prejudice cases, Turner v. Murray, capital cases, this Court has never required that of State trial judges.

The area about the thoughts about the death penalty was adequately opened by the trial judge here.

One juror, Benjamin Dexter’s, views were extreme, and he was excused from the jury.

The trial judge’s questions adequately explored that area.

John Paul Stevens:

May I ask, on that juror, I gather he’s the one that said he would automatically impose the death penalty if there were a conviction of first degree murder?

Kenneth L. Gillis:

Well, he related, too, that a friend’s parents had been murdered, and he speaks somewhat inaccurately, but I would say a fair reading of that is that he would either put that person to death or perhaps he was referring to the petitioner in this case.

John Paul Stevens:

The question I wanted to ask you is supposing the juror, it comes out during the colloquy, that he believed in the eye for an eye and a tooth for a tooth, and that if there were ever a conviction for first degree murder, he thought that nothing less than the death penalty should be imposed.

Would you think it would be an appropriate challenge for cause to remove that juror?

Kenneth L. Gillis:

Yes, I do.

Though I think that we must look realistically at the whole situation of a trial.

The jurors don’t know much about the case at this point, just the charges and some of the names, the victim’s name and the defendant’s name.

It’s only after they get the complete set of instructions later on in the trial that they would have their attention focused on the narrow issue of aggravation and mitigation in this case.

John Paul Stevens:

May I carry my question one step further?

Agreeing that it would be appropriate challenge for cause, do you think the Constitution would require that a challenge for cause be granted on the facts I’ve given you?

Kenneth L. Gillis:

No, I don’t believe it’s a constitutional issue.

Anthony M. Kennedy:

How then do you explain Ross?

Kenneth L. Gillis:

In Ross v. Oklahoma, that juror did not sit, but a peremptory challenge was used.

Anthony M. Kennedy:

Well, but I thought the Court made it very clear that if that juror had been seated, that a reversal would have been required under the Sixth and Fourteenth Amendments.

Kenneth L. Gillis:

Well, I think that in Ross the question was the whole make-up of the jury, whether the jury was impartial, a kind of a factual inquiry about the impartiality of that juror.

Take… Darrell Huling in that case did not sit, but as I recall, a peremptory had to be used and the Court held that that upset the fairness of the mechanism in so far as the jury selection.

David H. Souter:

Mr. Gillis, why did you answer yes to Justice Stevens’ question?

Why was it a proper challenge for cause?

Kenneth L. Gillis:

It may not be a constitutional violation, but I think a judge using his discretion could apply the Witt standard and say that this person was impaired on that issue, that he may not be able to set aside that view, and he may not be able to follow the law.

I think it’s discretionary, however.

David H. Souter:

Well, it’s discretionary, then, for him to say, not necessary but discretionary for him to say, something like this.

The need for a deliberative process implies the need for individuals who at least are capable of going either way, depending on the evidence.

This individual is not capable.

Therefore, I will excuse for cause.

But are you saying that it’s up to the judge to determine whether that is in fact his standard for cause?

Because you said the judge didn’t have to do it.

You said it was within the judge’s discretion to excuse for cause.

Kenneth L. Gillis:

I think it is within his discretion to rule whether this person is so impaired that the person could not consider the issues in the case.

David H. Souter:

Well, are you saying, then, it would also be within his discretion to say, I find that the person in fact could not go in one direction regardless of what the evidence would be, but in my judgment, as long as this juror will consider the evidence before he comes to the inevitable result, that is enough, and I will not excuse for cause.

Is that also your position?

Kenneth L. Gillis:

I think a leaning is not necessarily enough, but–

David H. Souter:

Well, this isn’t a leaning.

The judge concludes that no matter what the evidence is, the juror can only go one way.

For example, an eye for an eye, a tooth for a tooth juror always is going to impose… vote for the death penalty if there is a conviction.

Are you saying that it is within the judge’s discretion to say it is constitutionally sufficient that the juror will consider the evidence even though the result of considering that evidence in that juror’s case is inevitable?

Is that your position?

Kenneth L. Gillis:

–I think if the juror, before hearing the evidence, is locked into one point of view and cannot give up that point of view, that that is not a proper juror.

David H. Souter:

So that if the outcome is certain, if no process of deliberation would change the result, then the judge has to excuse for cause.

Kenneth L. Gillis:

If the judge makes that finding.

If he or she makes that finding, I would think so.

Sandra Day O’Connor:

And does the Federal Constitution require that result?

Kenneth L. Gillis:

I don’t believe that that is in the Sixth Amendment or the Fourteenth Amendment.

It’s a matter that’s been left to the discretion of the State trial judges, and I think–

Sandra Day O’Connor:

Well, if the Constitution doesn’t require it, then I don’t understand your answer in this Court when you have a Federal court trying to determine what the State court must do.

I just don’t understand your answer.

Kenneth L. Gillis:

–I’m sorry.

I… my point is that given this Court’s jurisdiction, and given that this is a State court, that it should be left to the discretion of the trial judges, and not constitutionally mandated through the Sixth and Fourteenth Amendments.

Sandra Day O’Connor:

What if the State wants to ask prospective jurors whether they would never be able to impose a death penalty?

Kenneth L. Gillis:

I… the form, I think they could legitimately ask questions about attitudes about the death penalty as Witt and Witherspoon have talked about.

Sandra Day O’Connor:

Can the State require the trial judge in Illinois to ask those questions, or such a question of prospective jurors?

Kenneth L. Gillis:

Other than through persuasion, I don’t think the State can require it.

Sandra Day O’Connor:

There is no constitutional requirement that the State be allowed to do that?

Kenneth L. Gillis:

That’s right.

Other than the opinions of this Court–

Sandra Day O’Connor:

And you find nothing in the opinions of this Court to suggest the contrary?

Kenneth L. Gillis:

–That’s right.

It’s only if the process is done, as in Witherspoon, it must be done fairly.

Witherspoon restricted the State’s right to excuse, but I don’t think that it requires this to be done, this sort of questioning to be done.

Anthony M. Kennedy:

Suppose we say that it is a violation of the Federal Constitution for a juror who automatically will vote for the death penalty to sit on the jury.

Suppose we say that.

Do you lose this case?

Kenneth L. Gillis:

No, I don’t think so.

There is still–

Anthony M. Kennedy:

Because even though there is a constitutional right to excuse that juror, you don’t have to provide a mechanism for discovering that bias?

Kenneth L. Gillis:

–In Ross, the juror admittedly and clearly said, I am always for the death penalty.

We don’t have that situation here.

We’ve got one juror–

Anthony M. Kennedy:

What we’re asking here is whether or not there must be a mechanism to uncover and disclose that bias.

Kenneth L. Gillis:

–We have a mechanism here.

The trial judge opened up and explored the area.

I don’t think there has to be a particular mechanism, a particular form of words.

Kenneth L. Gillis:

And that, the Court has never ordered that, except in the racial prejudice case or a situation like Hamm v. South Carolina, where there were special circumstances.

Anthony M. Kennedy:

You rely on both the voir dire and the instructions as being adequate to guard against any juror who would automatically impose the death penalty.

Kenneth L. Gillis:

The whole trappings of a trial court, the solemnity of it, the judge is there, the voir dire, the introductory remarks, and the juror’s oath that he swears to follow the law and apply the law to the facts, and then the instructions, which, in this case, narrowed the discretion, that still there is discretion, but it’s vastly narrowed from the situation.

Anthony M. Kennedy:

Well, can you point to anything specific in the instructions that it would advise a juror that it is his duty not to impose the death penalty automatically?

Kenneth L. Gillis:

The instruction says if you find any mitigating factor that you should not impose the death penalty.

That’s on joint abstract, page 123.

Byron R. White:

You just–

Kenneth L. Gillis:

No.

Byron R. White:

–What?

Kenneth L. Gillis:

That’s correct.

Anthony M. Kennedy:

What was your page, Mr. Gillis?

Kenneth L. Gillis:

123.

If you unanimously find, from your consideration of all of the evidence… now, that’s the no mitigating factor.

The flip side of it is, if you unanimously find from your consideration of all of the evidence that there are no mitigating factors sufficient to preclude the imposition of the death penalty, then you should sign the verdict requiring the sentence of death.

Anthony M. Kennedy:

Well, I suppose that the hypothetical is that this juror says, I don’t think there are ever mitigating factors.

Kenneth L. Gillis:

Well, that’s… that may be a matter that comes in the jury deliberation room once that occurs.

Anthony M. Kennedy:

But my point is there’s nothing in the instructions that would advise the juror that this was an incorrect disposition on his part.

Kenneth L. Gillis:

Everything about the process, including the instructions, directs the jurors to see if they can find mitigation.

If a person is so made up that they just do not believe in this facts… in this case that there amounts to mitigation, then I think the juror’s within their right to vote for the death penalty.

But you’re right, that nothing in particular points out… nothing in voir dire points out these decisions which will come later.

Although the judge did a thorough job of explaining that first there’d be a finding of guilt, innocence, and then there’d be a finding of eligibility, and then there would be a finding about aggravation and mitigation.

So the jurors knew, and one of the juror’s answers mirrored the fact that he recognized that decisions would be made later on down the line, of which they did not know the facts at that point.

John Paul Stevens:

Mr. Gillis, can I give you just one other hypothetical?

I don’t mean to push you too hard on this, but I’m assuming a question whether the juror would in all cases vote in favor of the death penalty in all cases of first degree murder because that was his conviction.

And after the defendant’s peremptory challenges have been exhausted, say the interrogation of the jurors revealed that there were 12 such people in the panel, and they all got on the jury.

Would you think that would be consistent with the Federal Constitution?

Kenneth L. Gillis:

Well, it seems to me that there’s a basic core of fundamental rights in the Fourteenth Amendment that that situation would cry out for relief.

John Paul Stevens:

I think it would, too, but why wouldn’t one do it, then?

Because isn’t the theory of it that the 12 are not completely unbiased if they have that fixed view on penalty?

Kenneth L. Gillis:

In the real world, we wouldn’t be able to… there’s nobody that stamps this person automatically for death penalty.

John Paul Stevens:

No, but that person very candidly says… and there are such people out there.

I don’t think anyone denies that there aren’t some people who believe very sincerely that this is the correct punishment for–

–But I think when they’re in a trial and they’re directed by the judge that here are the instructions, read the instructions, and they are informed to follow the law, and follow their oath, that that person’s individual feelings would be placed in a very secondary position to the solemn instructions of the law.

Well, I take it your answer is that in my 12-person hypothetical, that would violate the Constitution, but a one-person hypothetical would not.

Kenneth L. Gillis:

My answer is that it’s… and I hope I’m not quibbling… that it’s not clear, with one person, whether this person is that type of person that would automatically–

John Paul Stevens:

But I’m assuming in my hypothetical that the question is sufficiently unambiguous that you find that it is that kind of person, that the person just is the opposite of the Witherspoon-kind of person.

Some people are conscientiously opposed to the death penalty, some people sincerely believe that it’s the correct punishment in every capital case.

And I’m just saying if you find one such person by a proper question, do you think the Constitution permits that person to serve on the jury?

Kenneth L. Gillis:

–The question in a State court of whether that violates fundamental fairness?

John Paul Stevens:

Yes.

Kenneth L. Gillis:

I do.

I would not… I wouldn’t let that person sit.

But I think in the realistic setup that we find ourselves in, that–

Antonin Scalia:

Suppose enough of the facts are described.

I mean, let’s say Adolf Hitler is put on trial, and the jury knows there is somebody who’s been guilty of the murder of millions of people.

All right?

And you think it would be fundamentally unfair if all 12 jurors thought, gee, you know, I don’t frankly care what mitigation you want to put in, death penalty is appropriate for this, and that’s the way I’m going to vote.

That’s a basically unfair trial?

Kenneth L. Gillis:

–Well, no, I think in that case we’ve assumed some knowledge about the facts, which raises another issue.

Antonin Scalia:

Well, not all the mitigation.

You don’t know anything about mitigation at all.

All you know is more than that it’s first degree murder.

You know the number of murders.

So you’re relying on the fact that only… it’s when you only know the degree of the crime, is that it?

You cannot know anything more than this is murder.

What if you tell them it’s a murder of eight people, and then you have a juror who says, if he killed eight people, he ought to die.

That’s unfair.

Kenneth L. Gillis:

I think that the inquiry is about whether they could keep an open mind, follow the instructions that the judge gives them.

Antonin Scalia:

I can’t keep an open mind if this person has killed several million people.

Does that make me a biased juror?

Kenneth L. Gillis:

I think that juror is assuming knowledge about the facts in the case.

Byron R. White:

Certainly… by the way, Illinois bifurcates the penalty hearing.

Kenneth L. Gillis:

Yes.

Byron R. White:

First into finding the statutory aggravating circumstance, and his age?

Kenneth L. Gillis:

First, it’s to find if he’s eligible–

Byron R. White:

Yes.

And then the second phase is whether or not–

Kenneth L. Gillis:

–there’s any mitigating factors.

Byron R. White:

–Well, that phase, though, is for deciding whether he will get the death penalty.

Kenneth L. Gillis:

That’s correct.

Byron R. White:

And there the judge specifically instructs him that they have a duty of following every instruction.

Kenneth L. Gillis:

Yes.

And this judge, particularly he asked nine of the 12 jurors that question.

One other one said he would answer similarly to all the other questions, and that the subject of following the law was mentioned throughout the voir dire process in this case, which had three venires brought to the courtroom.

If there are no other questions, we would ask the Court to affirm the conviction and sentencing.

I thank you.

William H. Rehnquist:

Thank you, Mr. Gillis.

Mr. Andrews, you have four minutes remaining.

Allen H. Andrews, III:

Thank you, Your Honor.

Very briefly, in response to the question about whether the State has a right to inquire of these people whether they could indeed impose a death penalty, in Lockhart v. McCree, this Court said that if these jurors could not make a guilt/innocence decision because of their feelings on the death penalty, ipso facto the State is entitled to inquire as to whether or not they are automatically against the death penalty.

And that’s all we’re saying here.

Sandra Day O’Connor:

Was that dicta, do you suppose, in that case?

Allen H. Andrews, III:

It conceivably could have been, but it is very persuasive, it makes sense.

We’re not here to quibble with the State’s right to exclude these jurors who can’t follow the law.

And it fits with our position that indeed if they can’t follow the law, they shouldn’t be on the jury.

Now, the State also talked about the mechanisms were in place–

Antonin Scalia:

The State’s complaint in Witherspoon was not that the juror would never impose the death penalty at the penalty stage.

It was rather that a jury who was that much opposed to the death penalty would not convict, right?

Now, the defect that you claim in this case would not produce a juror who would come out the wrong way on the guilt phase, would it?

Allen H. Andrews, III:

–Not according to the State, no.

Antonin Scalia:

Well, tell me, is the State wrong about that?

Why would a person who–

Allen H. Andrews, III:

No, this Court has said that–

Antonin Scalia:

–Am I going to convict somebody just so I can impose the death penalty on somebody?

Allen H. Andrews, III:

–I would not think so, no.

Antonin Scalia:

I wouldn’t think so.

Allen H. Andrews, III:

No.

Antonin Scalia:

So Witherspoon is really a different situation.

You have a juror who cannot deliberate impartially on the guilt phase.

Allen H. Andrews, III:

That is only part of the Witherspoon decision.

But what is important is that when they can’t deliberate on any phase, you ipso facto get to ask the question to reveal that.

In any event, it is that you get to ask the question, not what phase it is.

In this case, talking about the mechanism in this case, one of the jurors said, equivocally, according to the State, look, I’d always impose a death penalty.

Well, with the mechanism that was in place in this trial, there was no further inquiry.

The trial judge didn’t ask him what you mean, sir, or anything like that.

Under the trial court’s discretion there was absolutely no further inquiry, where at least… because he didn’t have to.

If he didn’t–

William H. Rehnquist:

Do you say that for every possible challenge for cause there must be voir dire directed to that possibility?

Allen H. Andrews, III:

–No.

We would limit it to a case like this where it just determines the ultimate issue before the court, where they would give them the death penalty.

This is the ultimate issue.

That makes it different from race, beards, anything else.

William H. Rehnquist:

How about bias or partiality?

Allen H. Andrews, III:

Even with bias and partiality, that’s almost always covered in any event.

William H. Rehnquist:

Well, but supposing a trial judge didn’t cover it?

Do you say there would be constitutional error for him not to allow some sort of a voir dire on that subject?

Allen H. Andrews, III:

It could be constitutional error.

That might go back to the special circumstances that might be required that would indicate that there was some need for the inquiry.

But here, where it goes to the ultimate issue, that is the special need.

That is why we need the inquiry with this specific type of bias.

Allen H. Andrews, III:

No further questions?

Thank you.

William H. Rehnquist:

Thank you, Mr. Andrews.

The case is submitted.

The Honorable Court is now adjourned until tommorow at ten o’clock.