Witherspoon v. Illinois

PETITIONER:Witherspoon
RESPONDENT:Illinois
LOCATION:Todd Pacific Shipyards

DOCKET NO.: 1015
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 391 US 510 (1968)
ARGUED: Apr 24, 1968
DECIDED: Jun 03, 1968

Facts of the case

Witherspoon was convicted of murder and sentenced to death by a jury in Illinois. An Illinois statute provides grounds for the dismissal of any juror with “conscientious scruples” against capital punishment. At Witherspoon’s trial, the prosecution eliminated nearly half of the prospective jurors with qualms about capital punishment. The prosecution did not find out if most of the jurors dismissed would necessarily vote against capital punishment.

Witherspoon appealed, alleging that the dismissal of prospective jurors with qualms about capital punishment violated his Sixth Amendment right to an “impartial jury” and 14th Amendment right to due process. On appeal, the Illinois Supreme Court found that no constitutional violation took place.

Question

Does a state statue that provides grounds for the dismissal of any juror with “conscientious scruples” against capital punishment violate the Sixth Amendment’s guarantee of an “impartial jury” and the 14th Amendment’s guarantee of due process?

Earl Warren:

Number 1015, William C. Witherspoon, petitioner versus Illinois et al.

I have with Mr. Jenner who was to speak first.

Albert E. Jenner, Jr.:

Yes, Your Honor.

Earl Warren:

Oh!

I can see that.

Mr. Attorney General:

Mr. Chief Justice, Your Honors and may it please the Court.

In Number 1015, William C. Witherspoon versus Illinois, I move to James Zagel member of the State of Illinois Bar be permitted to argue in behalf of one of the respondents in this case, the sheriff of Cook County.

Mr. Zagel is a member of the State of Illinois Bar and has been in the practice for two-and-a-half years.

And during his two-and-a-half years practice, he has been in the criminal appeals section of the State Attorney’s Office at Cook County.

I’m satisfied that he possesses necessary qualifications to argue the case in question, I respectfully request the Court to permit and do so at this time.

Earl Warren:

The motion is granted.

Mr. Jenner.

Albert E. Jenner, Jr.:

Mr. Chief Justice, Your Honors, may it please the Court.

I appear here on behalf of the petitioner and whose favor Your Honors granted certiorari to the Illinois Supreme Court.

In this case here, the petitioner stands convicted by jury in Cook County, Illinois of the murder of a policeman and the fixing by that jury of the penalty of death.

The case as I said comes of the Court by certiorari to the Supreme Court of Illinois which unanimously on writ of error in a post-conviction proceeding rejected the position of the petitioner which I have the privilege of presenting to Your Honors today and affirm the dismissal of the post-conviction petition which we filed myself, my partner Mr. Sullivan and Mr. Solovy in behalf of the petitioner.

Your Honors, limited the grant of certiorari to the following question, whether the operation of the Illinois statute providing that in a murder case, the state could challenge for a cause all prospective jurors who were opposed to or had conscientious scruples against capital punishment, deprived the petitioner of a jury which fairly represented a cross section of the community and interpolating in that scope of venireman were arbitrarily and systematically disqualified and excluded for cause.

And did this assure the state of a jury whose members were partial to the prosecution on the issue of guilt or innocence and I interpolate in that only none scope of venireman where judge qualified to serve all these in violation of the petitioners’ rights to a fair and impartial jury out of the Sixth Amendment, to due process and equal protection under the Fourteenth Amendment of the constitution of the United States.

Because in some aspects of the issues or sub-issues that are raised here, the course of these proceedings appeal wise and convict — post-conviction wise will have I respectfully suggest that will appear some vary.

I will take a minute or two to indicate the post-conviction course of these proceedings.

The petitioner was indicted in October of 1959.

He elected on his trial to be tried by a jury.

He is an indigent that has been indigent throughout and has been a representative throughout these proceedings by court appointed counsel several successively in some respects having an effect upon his ability to preside this matter eventually to Your Honors in a posture which would have enable him possibly to avoid some of the problems here particularly that of possible retroactive application of Your Honor’s decision if Your Honors hold — uphold the position of the petitioner in this case.

As I say, he was represented by a court appointed counsel on his trial.

When that trial was completed, that court appointed counsel withdrew, new court appointed counsel at the suggestion of the defense of prisoner’s committee of the Chicago Bar Association took — came into the case and appeal to the Supreme Court of Illinois.

On that appeal, the appellant was unsuccessful.

The Court appointed counsel again withdrew.

The permission sought from this Court, the appointment of counsel to draft and prepare and submit to the Court a petition for writ of certiorari.

And this Court quite properly advised the petitioner that it did not appoint counsel to prepare petitions for presentations.

The petitioner then went back to the Supreme Court of Illinois and the Supreme Court of Illinois did appoint counsel but by that time, the period for the filing of petition for writ of certiorari had expired.

Albert E. Jenner, Jr.:

That counsel, however, in his behalf because of the appointment of the Supreme Court of Illinois continued in the case and he filed a habeas corpus petition in the United States District Court for the Northern District of Illinois.

That was dismissed on the ground of failure to exhaust state court remedy.

He then filed an Illinois post-conviction hearing proceeding under the Illinois post-conviction hearing Act with the predecessor of the Uniform Act and this was dismissed and a writ of error was denied by the Illinois Supreme Court in January 1964 with a little memorandum order not in a published opinion.

He then applied for an original writ of habeas corpus in the Supreme Court of Illinois which was denied.

His counsel then persisting went back to the United States District Court to reinstate the habeas corpus petition in that court that had there before had been dismissed on the ground of the state court remedies had not been exhausted.

In that proceeding before his entertained to partial that court sustained in part the petition of the petitioner primarily and not an issue before this Court that we do refer to it in a footnote on the ground of a sentencing procedure in Illinois was in another respect violation — violated the Constitution in that if a petitioner elect to a defendant elect to be tried by jury his penalty whether death, imprisonment or otherwise under the statute was fixed by the jury without the possibility of extenuating and mitigating the circumstances being presented for the jury whereas if he pleaded guilty or if he took a trial before the Court those extenuating circumstances were permissible.

They presented to the Court in the sentencing procedure.

However, on appeal to the Court of Appeals of the Seventh Circuit, that Court reversed and the directed the dismissal of the petition.

At this point and certiorari was denied by Your Honor, a second habeas corpus petition was filed in the United States District Court and present counsel now appearing before Your Honors were appointed by His Honor Judge Parson as counsel for the petitioner in that case.

Upon examining the record, we determine that the state court remedies we sought might not have been exhausted or we anticipated another motion to dismiss on that ground and we filed in the Circuit Court of Cook County.

Another post-conviction hearing petition, stating in the petition not only categorically but by our points that we embrace every possible post-conviction procedure there might be in Illinois in this petition whether coram nobis, coram vobis, habeas corpus, the Illinois statutory post-conviction or whatever it might be, we wanted all of it, so we would avoid the technical — possible technical defenses.

We raised, if Your Honors please, for the first time in this case in that petition, the issue which is now before Your Honors and I wish frankly to state that.

That petition was dismissed after hearing and briefs very carefully considered and the written error was allowed by the Supreme Court of Illinois under our statute.

That Court by a unanimous decision written for the court by His Honor Walter V. Schaefer, Justice Schaefer rejected the issue what is presented to Your Honors as well as other points which we raised in the petition.

We then filed the petition here raising many grounds but this one in particular or at least that Your Honors might have felt with particular at one you wanted to consider and you’re allowed to search.

Now, that is the general background.

Under the Illinois law in effect, statutory law in effect at the time of the trial of this petitioner and at the time he elected to embrace his right of trial by jury under the Illinois and federal constitutions.

If one indicted for murder, exercise his right to trial by jury, the same jury on the issue of guilt or innocence also passes and passed upon the question of the penalty whether it would be under the statute, death, life or a term of years not less than 14 years and this was binding upon the Court.

Presently since 1961, a death penalty verdict is not binding upon the Court.

If there’s no death penalty recommended by the jury the judge fixes the penalty at a term for a year.

I’ve been —

Potter Stewart:

I’m not sure I understood that.

Since 1961 —

Albert E. Jenner, Jr.:

Since 1961.

Potter Stewart:

Is the jury required in the recommendation of sentence?

Albert E. Jenner, Jr.:

It is permitted to but not required.

Potter Stewart:

Permitted to but not required to —

Albert E. Jenner, Jr.:

Yes sir.

Potter Stewart:

And it does recommend the death penalty and that’s not binding on the Court.

Albert E. Jenner, Jr.:

It is not.

Albert E. Jenner, Jr.:

Correct Your Honor.

Potter Stewart:

And if it makes no recommendation at all, is the judge authorized to impose the death penalty?

Albert E. Jenner, Jr.:

It is.

Potter Stewart:

It’s not really as that much bearing on this case but I just want to know.

Albert E. Jenner, Jr.:

Not on this particular case but it might if the Court sustains our position and the position is applied generally throughout the country.

William J. Brennan, Jr.:

The jury had to fix them you said it?

Albert E. Jenner, Jr.:

That is correct, Your Honor.

William J. Brennan, Jr.:

And its options were death, life or a term of years.

Albert E. Jenner, Jr.:

Yes Your Honor and neither as this statute that is involved in this particular case.

Hugo L. Black:

Which one is defended?

Albert E. Jenner, Jr.:

I beg your pardon, Your Honor.

Hugo L. Black:

Which one you say it involved in this case?

Albert E. Jenner, Jr.:

It is the one that was in effect of the time of trial which is of the jury that is required to or have the option to fix the penalty of death, life imprisonment or a term of years not less than 14 years and that decision was binding on the Court.

Hugo L. Black:

This case was tried at that time.

Albert E. Jenner, Jr.:

It was, Your Honor.

Now, superimposed as it Goss and we think — an impermissible Goss on these procedures where Section 743 of Illinois Criminal Code dealing with the exercise of challenges in death penalty cases and murder cases.

It read, in trials for murder, it shall be a cause for challenge of any juror who shall on being examined state that he has conscientious scruples against capital punishment for that he is opposed to the same.

That Your Honors is the complete statute.

It is no requirement of the statute that the scruple or opposition, the related to guilt or innocence issue or that it the Court inquire to whether the scruple held would affect the perspective jurors judgment on the issue of penalty that he might fix — required to fix under the statute under which this case was tried.

The practice in Illinois under that statute gave the practice even today which we have just a general cause statute is that a mere response on the part of the venireman and prospective juror that he holds conscientious scruples against capital punishment or that he has post the same then and there without further inquiry disqualifies that perspective.

William J. Brennan, Jr.:

Does it work the other way Mr. Jenner suppose he says that I certainly agree with the death penalty and think of it to be imposed in every murder case.

Is that — if you were to say that would be automatically disqualified?

Albert E. Jenner, Jr.:

If he would go so far under the Illinois law as to say that, if Your Honor pleases, then the defendant has the right to exercise a peremptory challenge.

Byron R. White:

Not a cause?

Albert E. Jenner, Jr.:

Not a cause.

Earl Warren:

Suppose Mr. Jenner he merely says I’m opposed of the death penalty and nothing else, what is the practice?

Albert E. Jenner, Jr.:

The practice as Your Honor you’ll find from the appendix to our opening brief in which the actual examination of all the jurors here, it is that if he says that he has opposed to the death penalty, he is excused for cause if he is challenged by the state.

William J. Brennan, Jr.:

I wonder why he wouldn’t be excused because the other way.

Is that by interpretation of that statute?

Byron R. White:

Do you have some cases on that?

Albert E. Jenner, Jr.:

I don’t have a case —

Rather you’d never come up with this?

Have you ever heard of jurors say that?

Albert E. Jenner, Jr.:

No I haven’t but in —

Byron R. White:

It did come up in this recent Fourth Circuit case?

Albert E. Jenner, Jr.:

Yes, I was about to say as Your Honor pleases.

Thanks for raising the matter that in the Fourth Circuit case, there was one juror who solely states again, he was challenged by the defense and that challenge was overruled and that it is one of the ground that that court unanimously holds that the — that that was a violation.

Potter Stewart:

But that is not in this case or in this record at all.

Albert E. Jenner, Jr.:

No such issue or fact in this particular —

William J. Brennan, Jr.:

May I ask why you suggested that this is a ground only for peremptory challenge under your practice rather than for courts?

Albert E. Jenner, Jr.:

I cite that it should be a ground for challenge for a cause.

William J. Brennan, Jr.:

As you read the statute, it struck me as it would fit, wouldn’t it?

Albert E. Jenner, Jr.:

If Your Honor pleases —

William J. Brennan, Jr.:

You think not?

Albert E. Jenner, Jr.:

I think not.

It said, in trials for murder, it shall be a cause for a challenge of any juror who shall upon being examined state that he has conscientious scruples against —

William J. Brennan, Jr.:

I see.

Albert E. Jenner, Jr.:

–capital punishment or that he has opposed of the same and that if I may respectfully suggest that’s one of the reasons we think the statute is constitutionally impermissible because it limits this right of challenge for cause only to the state and then only on the ground that he has a conscientious scruple against —

William J. Brennan, Jr.:

And this is why you suggest the defendant the situation that I’m about to say it would have to exercise a peremptory here.

Albert E. Jenner, Jr.:

It would have to exercise peremptory and I must say in complete fairness that many judges presiding in a criminal court of Cook County or the criminal division now of Cook County would sustain a challenge for a cause or the juror have so effects the types of prejudice or view that Your Honor have suggested that he then should not serve as a juror in the case.

Hugo L. Black:

Suppose they would execute — suppose they would to execute that he has a conscientious scruples against punishing by imprisoning a defendant —

Albert E. Jenner, Jr.:

Yes, Your Honor.

Hugo L. Black:

Would you have the same objection to that?

Albert E. Jenner, Jr.:

Yes I would.

Earl Warren:

We’ll recess now.

You may continue your argument.

Albert E. Jenner, Jr.:

Thank you, Mr. Chief Justice and Your Honors.

In response to the question put by Mr. Justice Brennan, we were an error in a I think minor respect but I wish to correct the record.

You inquired whether if a venire even says he will impose only the death penalty, is that the challenge for cause?

I said that I knew of no instance in which the Court had refused or declined to sustain a challenge for a cause.

Albert E. Jenner, Jr.:

I said I knew of no case in Illinois holding that it was a ground for a challenge.

There is a case cited at page 6 of our brief as of page 5 of our opening brief in a footnote and a decision — unanimous decision by the Supreme Court of Illinois interpreting the new statute which provides merely instead of Section 731, we have that the parties have the right to challenge for a cause when Mr. Justice — Chief Justice (Inaudible) sustained that statute and sustained under it the same practice which was required to be applied under the statute which — under which this petitioner was tried, Mr. Justice (Inaudible) did pose, though not at holding, we wonder whether the petitioner or the defendant would make the same claim as respect to scruple jurors where he faced with a venireman who was of the view that Your Honor was the hub if Your Honor’s questions.

Now, to that extent, there is an observation but no holding.

Hugo L. Black:

Mr. Jenner, may I ask you a question?

Albert E. Jenner, Jr.:

Yes.

Hugo L. Black:

Why was 743 repealed?

Albert E. Jenner, Jr.:

In response to that, I would have to preface by saying this is a supposition on my part.

I do not know in fact.

It was part of the new criminal code, complete revision of the Illinois Criminal Code that was enacted at the 1961 session of the legislature and in revising the complete Criminal Code, the authors of that code, a joint committee of the Chicago and Illinois State Bar Associations appointed by the Supreme Court of Illinois.

[Audio abruptly cut 23:21-22]

Yes, the Illinois Supreme Court then, when that issue came before the court and it was argued that the generalization provision was intended by the legislature to change practice there before existing under an expresses statute Section 7 —

[Audio abruptly cut 23:38-41]

In a case tried before a jury.

If the jury doesn’t recommend death, then the judge cannot impose death.

Hugo L. Black:

So what is this whole part?

Albert E. Jenner, Jr.:

I beg your pardon?

Hugo L. Black:

I just thought that — I saw that the jury now has nothing to do with it except to advice.

Albert E. Jenner, Jr.:

That is correct.

And Mr. Justice Black, you posed a question to me which I responded in part and the question as I understood it was what would your position be if a perspect — a venire of respondent that he have scruples against imprisonment of a —

Hugo L. Black:

Punishment by imprisonment?

Albert E. Jenner, Jr.:

— punishment by imprisonment, my response was my position would be the same.

I wish to add to that or I sought the liberty — I would have sought the liberty of saying in further response that if whereas here no further inquiries were made as to whether that view or philosophy of this prospective juror is so strongly held as to affect his judgment or willingness to impose a verdict of guilty, then the difficulty presented here would still be present.

That is the nexus between the view held and the possible judgment of the juror on the issue of guilt.

Abe Fortas:

Mr. Jenner, I suppose there is a difference so far as this Court is concerned, between now considering whether that was an error to excuse a venire — a prospective juror because he was excused on the basis of this statute.

And there’s difference between that on the one hand and on the other hand, our considering whether the Illinois jury system is constitutionally defective because it includes this statute and because in the particular case, jury is — juror — perspective jurors were excused pursuant to the statute.

In other words, you’re not asking us to set aside the conviction here on the grounds that some jurors were excluded for a cause.

Some prospective were excluded for cause because of conscientious scruples.

You’re asking us rather to set aside the conviction because the Illinois statutory scheme for the selection of jurors as applied in this particular case is a violation of Federal Constitution.

And those are different, are they not?

Albert E. Jenner, Jr.:

They are different.

Albert E. Jenner, Jr.:

May I say however that we seek relief on both grounds.

Abe Fortas:

Well, I don’t know.

Have we ever reversed a conviction on the grounds of improper disqualification of a prospective juror?

To me, that presents some difficulties in terms of the functions of this Court, whereas consideration of the total Illinois scheme for the selection of jurors may fall with them in an accepted known pattern, but I don’t know that — I don’t know that whereby this Court has ever reversed a conviction because of the disqualification of a prospective juror on improper grounds.

Albert E. Jenner, Jr.:

My recollection, I share with Your Honor, on your latter observations —

Abe Fortas:

What about the Negro exclusion cases?

Albert E. Jenner, Jr.:

Yes, that was classic exclusion.

I thought that Mr. Justice Fortas was confining his second portion of his question to the narrow question of a case in which this Court might have reversed because a prospective juror —

Abe Fortas:

Exactly.

Albert E. Jenner, Jr.:

— was excluded.

Abe Fortas:

As distinguished from a systematic — from a scheme of exclusion of a particular class.

Albert E. Jenner, Jr.:

I think the cases with which I’m familiar or at least now I recall, I’ve read so many in the last several weeks, are all in which this Court granted relief for all cases where there were some measure or systematic exclusion.

Byron R. White:

Well, don’t you — I thought you were with — have argued or will argue that this practice in Illinois will — does have this consequence.

Albert E. Jenner, Jr.:

Yes, Your Honor and I appreciate your —

Byron R. White:

Is that —

Albert E. Jenner, Jr.:

Referring to that is precisely the point to which I made now, if I have your permission to turn.

But before I do that, because of the systematic exclusion claims made here, to acquaint Your Honors with at least the basics of the record with respect to the selection of the juror in this case, jurors — the 12 — all of the 12 jurors in this case.

96 veniremen and women were questioned.

The practice in Illinois is that the state questions the prospective veniremen first.

After examining a panel of four, if acceptable to the state, the panel is then tendered to the defense and the defense questions of the panel in either challenges for cause or peremptory challenges and eventually a panel is tendered back to the state and eventually if there’s an agreement on the panel of four and then we proceed to the next panel of four.

Now, here in selecting the three panels of four each, 96 prospective jurors were examined, men and women.

47 of the 96 are 49% were excused for the cause simply that they responded that they had conscientious scruples or they were opposed to on some modification in language of their responses to the death penalty.

No inquiry — no inquiry was made as to how strongly those views were held, no inquiry made as to whether the holding of the conscientious scruples would affect and to a degree would affect the best prospective jurors’ judgment on these fundamental and basic issue of guilt or innocence, nor was there ever any inquiry as to whether that view so held would have an effect upon any degree thereof on the question of punishment — death, life or imprisonment for a term exceeding 14 years.

The questions put, thought they had variance, the question essentially was to each juror, “Do you have a conscientious or religious scruple against the death penalty?”

Sometimes that was added, or “Are you opposed to…” or “Do you have an objection to imposition in a proper case?”

Where a proper case was never explained to any of these prospective venire.

That alone was sufficient ground for cause and in each instance His Honor sustained, the challenge for cause without more inquiry.

As a matter of fact, if Your Honors please, the practice is so set and was so set in Illinois that the Court became impatient and he said to Mr. Kissane distinguished assistant states attorney in Cook County was here at the table.

I would go to this juror and ask that question first.

Let’s get this out of the way.

Albert E. Jenner, Jr.:

Let’s get all this out of the way.

And at one stage of the proceeding, either the court or Mr. Kissane at the direction of the court turned to the whole then venire which happened to be in the courtroom and said, “Are there any of you who have conscientious scruples against the death penalty?”

And those who have merely raised their hands without warrant, five of them who just raised their hands, they were excused.

Now, there were — of these 47 who were excused, there were 10 men, 9 women, and 27 which I will have to call neutered.

Neuter because the widest jury was selected.

The number that — veniremen’s number or venireladies’ number, 95, 97, 55, whatever it happened to be, the court would say number of ten.

And either the lady or gentleman would rise and the question would be put to the venireman without even inquiring as to his or her name.

And if that faceless as far as the record is concerned, prospective juror responded, “Yes, I have conscientious to the scruple” or “I’m opposed to the death penalty,” the judge said to them, “Step aside.”

That was a typical word, to step aside.

But if they respond that they didn’t, then he said, “Go into the box” and then the further questioning went on.

So you have 27 who are identified by a mere number here.

Now, only five responded that they could not impose the death penalty under any circumstances.

The others’ responses you’ll notice in the appendix, both to our opening brief and supplemental appendix by — in the brief of the state are the very expressions of this reluctance or view with respect to death penalty or opposition to death penalty.

But there were no direct inquiries as to the effect which might — these views held might have upon either the issue of guilt or innocence or on the extent or nature or character of the punishment to be imposed by the jury.

Now, because of that systematic practice then obtaining and still obtaining in Illinois that all who express any view, and I say any because the degree is a number in the inquiry into the degree, of position opposed to or conscientious scruple against the death penalty automatically excuse.

Now, we say that because there is no rational relationship between the sustaining for cause, under that situation and the issue of the view of that juror, a prospective juror on the issue of the guilt or innocence or on issue of punishment that that was then an arbitrary exclusion resulting in, if Your Honors please, the state in Illinois tendering to the defense and to the defendant despite the provision of the Sixth Amendment of the Constitution, the United States that it should be entitled to a fair and impartial jury and equal protection of due process under the Fourteenth Amendment.

He is permitted, the defendant and his counsel, to examine only veniremen who are tendered after the state has excluded from this cross-section of the community, all those who hold any views — any views regardless of the degree on the issue of the death penalty.

Potter Stewart:

Well, any views in opposition, you mean, any views on one side —

Albert E. Jenner, Jr.:

No, the fact here, Mr. Justice Stewart, it would have to be a view — at least, do you have a conscientious scruple against the death penalty.

It has to go that far.

Abe Fortas:

It seems for me, Mr. Jenner, so far as I’m concerned, the perplexing problem may be stated this way.

The statute requires a jury to make a judgment as to whether they would recommend the death penalty, or as to whether the death penalty would be imposed.

And juror statute — then the statute says that if a juror says that he a conscientious or a religious scruple against the death penalty, he will be excused because the theory I suppose that might be advanced in defense of that is if a person has a religious or conscientious scruple in general against the death penalty, he cannot faithfully carry out his statutory duty, which is to make a judgment in the particular case as to whether the circumstances of a particular case weren’t the imposition of it.

Now, that’s the perplexing problem so far as I’m concerned in this case.

Albert E. Jenner, Jr.:

Mr. Justice Fortas, that is the problem and I share with you your observations.

I wish to say on that subject, if Your Honors please, that it amounts to this, that the state legislature has assumed without any proof, without any inquiry being made of prospective jurors, the statute excludes that possibility.

That the mere expression of opposition to the death penalty, the mere expression of it regardless of degree to which it is held excuses the juror for a cause and deprives the defendant of a fair cross-section of the community from which to select a jury.

Abe Fortas:

You’re suggesting that maybe some of these jurors, despite their deeply held principle, might be able to rise above the principle in the particular case.

Albert E. Jenner, Jr.:

That is correct, if Your Honor pleases, and the studies that are reported in the briefs precisely sustain that position that jurors, though expressing conscientious scruples or opposition, whether that may be to the death penalty, do and have and will assess the death penalty in what they call proper cases, strong facts, whatever they might be.

And the percentages of those are reported in Professor Han Zeisel’s study, a copy of which has been lodged in the library and there are several copies that the librarian of this Court recently completed, other studies of Mr. — Professor Cross and Professor Wilson, Professor Goldberg that these people in proper cases do render guilty verdicts and do impose death penalty.

Albert E. Jenner, Jr.:

As Professor Zeizel, the author with Professor Harry Kalven Jr. of the University of Chicago at the America jury reports — in the report now lodged with the librarian of this Court, about one-half — one-half of all scruple people will vote to impose the death penalty in what they would regard as appropriate case and they would be aggravated cases.

That’s at page 7 to 10 of his completed report.

Byron R. White:

(Inaudible)

Albert E. Jenner, Jr.:

That —

Byron R. White:

(Inaudible)

Albert E. Jenner, Jr.:

No, that — that people who are unscruple may not impose the death penalty.

There’s a variance in all groups.

Well the difference, if Your Honor pleases, is that if you exclude from the venire, those who have let us say the more humane viewpoint, then you do not have the viewpoint expressed in the deliberations in the jury room and you do not have brought to bear on the — in what we regard as a typical and constitutional American jury, a representative of the democratic process.

That in the jury room, they would be represented of all views, men and women and Negro because I’m much a Negro for this reason that these studies reveal that the Negro, men and women, share to a higher percentage scruples against death penalty than do men and women who are White, so that this process has resulted in Illinois.

In the exclusion of a greater percentage of Negroes in death penalty cases than of Whites, it results in the exclusion of a greater percentage of women from these juries in which the death penalty is asked than is the average.

Earl Warren:

Mr. Jenner, how — how far does your proposal carry us?

Would you — what would you say in the situation where — is your response that he has a conscientious scruple that would prevent him from brining in a capital verdict regardless of the facts or the law has given to him by the Court?

Albert E. Jenner, Jr.:

I would say as to that in response to you, Mr. Chief Justice, that if a view — we need not go any further in respect to this case.

If a prospective venireman’s sole response that he would be — that he couldn’t — he couldn’t render the verdict as you have indicated that that would not be a ground here on this case for relief.

Potter Stewart:

He could properly be challenged for cause by the state.

Albert E. Jenner, Jr.:

Yes, I would agree.

Potter Stewart:

They were filed like that in this case, weren’t they?

Thurgood Marshall:

Would you urge upon us of which you reject the usual rule when somebody has read about the crime in a newspaper that is questioned as to whether he’d made up his mind, then he convinces the court that while he had made up his mind, he can give a fair verdict, would you go that far?

Albert E. Jenner, Jr.:

No.

I would share the practice that now prevails that the inquiries to such a venire must bring up the fact that the newspaper readings have so influenced him that he could not render a fair and impartial judgment.

That is — he is —

Thurgood Marshall:

And you would do the same here?

Albert E. Jenner, Jr.:

He should be excused for cause.

Thurgood Marshall:

And here, when he first says, “I have conscientious scruples,” you question him and you might reject him, but you wouldn’t automatically reject him.

That’s what you’re saying.

Albert E. Jenner, Jr.:

That is correct.

Until you go further and examine that juror as to the degree to which his views are held, to see whether they would affect to the extent of a challenge for cause, his impartiality on the issue of guilt or innocence and his impartiality on the issue of penalty, you don’t know —

Thurgood Marshall:

Or as a matter of fact, it might just be illegal escape in jury service.

Albert E. Jenner, Jr.:

Yes.

And if Your Honor will note when you look at the appendix to the opening brief, as well to the appendix of the state briefs, the presiding judge in this case, one of our fine judges is now deceased, he occasionally turn to these prospective veniremen and he said, “You aren’t advancing that, are you, just to get out of jury service?”

Albert E. Jenner, Jr.:

And they all responded that they were not those to whom that question was put.

That is a point that I wish also to emphasize, that when a jury says — juror — prospective juror merely says “I have conscientious scruples” and you don’t go beyond that to inquire as to how strongly those views are held, you just don’t know whether the jury can get through or can give a fair and impartial judgment on the issue of guilt or on the issue of penalty.

And in the recent case in the Fourth Circuit to which Mr. Justice Stewart referred, Judge Harrison Winter in writing for the unanimous court there stated, we conclude that petitioner is entitled for writ of habeas corpus because his constitutional rights were violate by the manner in which the jury, to determine this criminal responsibility was selected and particularly because the prosecutor as here, Your Honors, was allowed successfully to challenge prospective jurors for a cause who expressed sentiments against capital punishment and thus to disqualify a substantial segment of the panel without additional determination being made that their objections to capital punishment would preclude them from rendering a fair verdict on the issue of guilt.

We confine our consideration therefore to that issue and the Court concluded that there was a denial —

William J. Brennan, Jr.:

I gather Mr. Jenner then that you don’t think our agreement with you would necessarily require Illinois to introduce a system of bifurcated trials?

Albert E. Jenner, Jr.:

Not necessarily if Your Honor pleases, but my judgment would be and if I may utter an observation on the subject that in my personal view that the essential solution here of these troublesome problems is a bifurcated jury.

So that the jury to hold the issue of guilt or innocence is presented maybe as free as possible from the troublesome problem of what is going to be the penalty that will be inflicted and particularly whether the death penalty will be inflicted.

William J. Brennan, Jr.:

Well, this doesn’t suggest — what you favor would be bifurcated trials in the sense of a jury on guilt or innocence and a different jury on the punishment?

Albert E. Jenner, Jr.:

That is my personal view.

William J. Brennan, Jr.:

As I understand it, the California system for example —

Albert E. Jenner, Jr.:

That’s that same jury.

William J. Brennan, Jr.:

The same jury, yes.

So in that situation, it probably would be no different, would it?

I mean, this problem that we’re discussing today, you’d still have to choose the jury and that’s — it would —

Albert E. Jenner, Jr.:

But if, if Your Honor pleases, in selecting a jury on the bifurcated practice, if you still permit a challenge for cause because a juror, a prospective juror had scruples with respect to the death penalty, the same problem that are presented here are a possible violation of the Constitution —

William J. Brennan, Jr.:

You’re still here, if you’re going to use the same jury for both purposes.

Albert E. Jenner, Jr.:

Yes, Your Honor.

That’s my — my personal view.

We don’t have to go that far of course in this particular case.

Now, as pointed out in the Court of Appeals’ decision where you have this existing practice applicable in case after case after case, necessarily there is a systematic exclusion of a cross-section — a substantial segment and significant segment of the community which is a defendant is deprived of the opportunity of having jurors from that segment of the community or at least having a consideration on whether they are reasonably impartial, at least not up to the point of being challenged for cause to sit in judgment on his case and bring their views to the community.

Now, the studies indicated this further, which the Court need not go that far insofar as this petitioner is concerned to give the petitioner relief.

That this excluded group, in addition to the factors I’ve indicated, that it is composed more of Negro men and women who are more of whom wholly the view against scruples or against death penalty and more women than men, but also the mix of that group indicates that the aggressive or authoritarian or alter-conservative type of person is a person who most readily entertains and holds to the view that the death penalty is a proper punishment in murder cases.

The — as Professor Zeisel reports, these people from his studies are more likely on a ratio of 24 to 1, 24 to 1, to bring in a verdict of guilty on the first ballot than those who hold scruples —

Potter Stewart:

I am a little concerned about Professor Zeisel’s most recent work about the propriety of our — considering that this case — I don’t mean for one moment to be — to criticize anybody for any impropriety.

I don’t mean it in that sense at all, but that’s not in the record.

It was not before any of the courts earlier.

It’s been sent to our library in the last two or three days for the purposes of this case, and it hasn’t been published anywhere.

In other words, there’s nothing in which we can take judicial notice.

Albert E. Jenner, Jr.:

I don’t know enough about it — about its publication.

I had —

Potter Stewart:

Well, I understand there’s not —

Albert E. Jenner, Jr.:

— so I don’t know.

Potter Stewart:

There’s internal evidence in it that it hasn’t been because there are some indications that before publication, changes may be made.

And I’d say I’m not — I’m not suggesting an impropriety but I just wondered whether or not that’s properly before us or whether even we could take judicial notice of it.

Albert E. Jenner, Jr.:

Your Honors, we’ll find in the earlier reports by Professor Goldberg and by Professor Cross and by Professor Wilson, the statistics reported by Professor Zeisel are likewise reported in those earlier reports, so this is amended without the preciseness of those of Professor Zeisel’s.

Thurgood Marshall:

But Mr. Jenner, how could anybody to find out how — how can I find out how I would vote if I were on the jury in a murder case?

If I was never on the jury, how could I ever find out how I would have voted?

Albert E. Jenner, Jr.:

The way to cite this, do this sort of thing as was the practice in connection with Professor Zeisel and Professor Kalven’s American Jury project work is either to submit to a sample group a state of — statement of facts or to reproduce by way of video — recording tape or video tape a trial.

And then after the subject has either listened to or read or looked at this picturization, then he assess or she assess what he or she would have voted in the event he or she was a juror.

Previous inquiry hasn’t been made of the particular person as to whether he or she did or did not hold conscientious scruples against the death penalty.

Byron R. White:

But they never had — they never actually had their subjects arrange this juror — these jurors to the —

Albert E. Jenner, Jr.:

No, they —

Byron R. White:

— to the group.

Albert E. Jenner, Jr.:

They were not in fact jurors.

Byron R. White:

But coming out with the — with the verdict.

Albert E. Jenner, Jr.:

That is correct.

The interplay of the 12 juror — 12 actual jurors at discussing the facts of the case and determining how they would reach the unanimous verdict or to reach one is not present in these — in this sort of studies.

Byron R. White:

Well, did any of these assigners testified at the trial court?

Albert E. Jenner, Jr.:

No, because we didn’t reach that part and we need not reach it, if Your Honor pleases.

The basic rule or proposition we’re submitting to the Court here is that —

Byron R. White:

But you seem to be relying on it.

Albert E. Jenner, Jr.:

I beg your pardon?

Byron R. White:

You seem to be relying on them.

Albert E. Jenner, Jr.:

Only if the Court passes on to the second phase of the case.

We take the position that standing alone the systematic exclusion of a segment of the community from the jury venire panel from which the jury is selected, itself as being arbitrary is a denial of equal protection and due process and a denial to the defendant an opportunity for having a fair and impartial jury.

Potter Stewart:

If we accepted that, that would result in the overturning of the convictions of what have we told, something like 8500 people in the United States, in the adversary more sentences.

Albert E. Jenner, Jr.:

I think not, if Your Honor pleases.

I think not.

Potter Stewart:

Why not?

Albert E. Jenner, Jr.:

Because in many of the jurisdictions, you will note in the appendix to the briefs that the conscientious scruple viewpoint of a particular prospective juror is keyed in with or related to the issue of judgment on the issue of guilt or innocence or on the — and on the question of the extent and nature of the punishment, unlike the Illinois statute.

Albert E. Jenner, Jr.:

So that Your Honors can shape your — the relief in the case, according to the — at least in this particular case, the limited and narrow question that is presented here.

There are only five states cited in the brief, Arizona, Illinois, Texas, and two other names of which I can’t think of, who have a statute such as was in effect at the time — in Illinois at the time in this case was decided or repracticed such as it was under effect or still no effect in Illinois, that the mere response of the holding of the conscientious scruple is in and of itself sufficient challenge for a cause.

Potter Stewart:

Well, aren’t there many, many other states with or without statutes that have a practice so similar as to be necessarily swept in with some of your doctrine?

Albert E. Jenner, Jr.:

I think it must be fairly said that Your Honor is correct, that there are some others.

I do not have them particularly in mind, but there are some others.

Byron R. White:

And I gather your argument was therefore would certainly cover the — all of the cases even where the death penalty was not imposed.

I mean, it would have to reach those because in those cases, if the death penalty could have been imposed and the jury was death qualified scruple people who admitted why even the death penalty isn’t imposed — wasn’t imposed, do they — a fair segment of the community has been excluded from the jury.

Albert E. Jenner, Jr.:

I would have to concede, if Your Honor please.

William J. Brennan, Jr.:

Would that be so —

Albert E. Jenner, Jr.:

This is why logically —

William J. Brennan, Jr.:

Would that be so, Mr. Jenner, if this turned only on due process, that is a practice which infected the fact-finding process?

Albert E. Jenner, Jr.:

It would not necessarily be so.

If predicated —

William J. Brennan, Jr.:

If that happened, would this extend as far as Justice White’s idea?

Albert E. Jenner, Jr.:

I would have my doubts.

Byron R. White:

Well, if you say that — if you say that it only affected the imposition of the penalty that was your basics, but does that would be important to your argument here.

You’re purporting argument has been that a man is entitled to have representation of all segments of the community in determining his guilt or innocence, and that disqualification of jurors excludes a segment of the community from the jury, which makes it an unfair jury.

That’s been your argument.

Albert E. Jenner, Jr.:

That is correct.

Byron R. White:

So I don’t see how you can help but apply it to the case where — where the death penalty has not been imposed.

Albert E. Jenner, Jr.:

But we’re —

Byron R. White:

And I thought you concede that.

Albert E. Jenner, Jr.:

Where the death penalty was asked, well not imposed by the jury.

The jury —

Byron R. White:

It’s under a case where when you’re picking the jury, the possibility is that the death penalty might be imposed.

Albert E. Jenner, Jr.:

That is forced —

Byron R. White:

But it does disqualify the jury.

Albert E. Jenner, Jr.:

It seems to me if, Your Honor and Mr. Justice White, that is forcibly presented and argued by John Frank in his amicus curiae brief in the Madden case, the case is pending before the Supreme Court of Arizona and others of the amicus briefs.

If the jury is infected, I must say if it is infected in the sense that I have indicated to the Court, then if a substantial segment of the community is excised from the jury panel from which the petit jury is to be selected, then there has been a denial of equal protection of the laws and of due process.

Potter Stewart:

Now, that would be true only if we accept your suggestion based upon what’s in the record or upon judicial notice, that this is an unrepresentative jury with respect to guilt determination.

Potter Stewart:

In other words, I suppose if you had all the jurors were six feet tall would be an unrepresentative jury and that would be — that would be unrepresentative of the population of the United States, it wouldn’t be on representative of the guilt determination.

It’s — and I’m suggesting that this might not be an unrepresentative jury vis-a-vis guilt determination but might be an unrepresentative jury vis-à-vis the function and trust of this Illinois jury of imposing — of fixing the penalty.

Albert E. Jenner, Jr.:

Personally, I am disturbed with any exclusion, if there’s an exclusion that’s difficult to determine whether or not the jury with which you finally wound up was impartial or not.

Thank you, Your Honors.

Earl Warren:

Mr. Veverka.

Donald J. Veverka:

Mr. Chief Justice, may it please the Court.

On behalf of the people, I will take 22-and-a-half minutes.

In the weight of my rather limited time, I would address myself to the questions asked as opposed to going through the said argument.

Now, there’s no doubt in my mind that Illinois law as it exists in spite of the fact that it was not a direct holding in the Hatz (ph) case, there’s no doubt in my mind that if the jurors states that “I am in favor of the death penalty” that under Illinois law, that person should be disqualified for cause.

In regard to Mr. Jenner’s argument that the statute allowed a person to be excused for cause in the basis of mere opposition, again, I would say that there has never been a case law in Illinois.

There is no reported case in Illinois which says that a person can be excused really because he is opposed.

I don’t think that the practices employed in this record shows that anyone was excused for mere opposition alone.

In that respect, I would point out that when the first juror, first prospective juror was examined, the question was asked, “Do you have any conscientious or religious scruples against imposition of the death penalty in a proper case?”

And he said, “I don’t understand the question.”

So the Court and the assistant states attorney, Mr. Kissane, then went on and they said, “Well, we’re going to submit evidence.

You, you’ll be instructed the rules of law.

If it is your opinion and the opinion of the other individuals, would you return a death verdict?”

And he said no.

And the Court then went on to say something about “Under no circumstances would you oppose a death penalty?”

And again, the juror said no.

And the Court then said, “Well, what you mean is you have conscientious religious scruples against imposition of the death penalty.”

And he said, “Yes, sir.”

Now, it’s true that the trial court did not go through that, go through each of the perspective jurors with that particular particularity.

But periodically throughout the course of the examination in regard with the six prospective jurors, either the ones who were excused, he did question them specifically as to whether or not they would impose a death penalty.

In each one of these six cases, the juror made it clear that under no circumstance would he in fact impose a death penalty.

At one point, one of the jurors said, “I have conscientious religious scruples against imposition of the death penalty” and yet, the judge persisted in his questioning when it turned out that it was a matter of a conscience where she said that she was really reluctant to serve on the jury.

The judge in fact tendered her to the attorneys for examination.

And there was only — after she stated the — she didn’t feel —

Thurgood Marshall:

Am I not correct that we — Mr. Jenner is not arguing about these six.

He’s arguing about the 40 some.

Donald J. Veverka:

Right, Your Honor.

And basically, it’s his contention that it’s a systematic exclusion.

It’s our contention that this — it’s our contention that when the prospective juror states, “I have a conscientious religious scruple against imposition of the death penalty in a proper case,” that indicates and it already has indicated under Illinois law and under federal law and under most — under the law of most other jurisdictions that when he states that, he indicates a belief which will interfere with his returning of verdict and the law and the evidence in this particular case.

Thurgood Marshall:

Well to the contrary, couldn’t it mean that he, like some other people, believe the 10th Commandment, thou shall not kill, and no more?

Donald J. Veverka:

No, Your Honor.

I don’t believe so.

I believe in the —

Thurgood Marshall:

Well, does the average juror knows what the exact meaning of “a proper case”?

Donald J. Veverka:

Your Honor, I would say this.

In the context of the questioning where periodically the jurors were questioned and the other jurors were instructed to listen, I think that the trial court made it clear that in fact, he was concerned with people who would not impose a death penalty under any circumstances.

Now —

Potter Stewart:

Yeah, but the — are you suggesting that every one of these 47 people who were excused for cause heard the interrogation of these few?

Donald J. Veverka:

I think, Your Honor —

Potter Stewart:

The record doesn’t show that, does it?

It shows these 96 veniremen who came in in separate parcels.

Donald J. Veverka:

That’s true.

But —

Potter Stewart:

And I gather that what you’re suggesting to us is that when this brief question was asked, this was because the jurors had heard the more lengthy interrogation of the others.

This was called for and incorporated the whole interrogation of the others.

Well, that would be all very well if you could show that all 47 of them had heard it, but they didn’t.

The record shows they didn’t.

Donald J. Veverka:

Your Honor, I’m saying that if this prospective juror states that “I would not return to death penalty under any circumstances”, that that clearly shows and actual bias.

Potter Stewart:

That shows it to whom?

To you or to whom?

That’s the basic question, is what does the juror mean by that?

Donald J. Veverka:

When he says —

Potter Stewart:

And that, it seems to me, is what is the — whether it should be the duty of the counsel to find out.

Donald J. Veverka:

When he says, “I would not impose a death penalty under any circumstances,” that indicates that —

(Inaudible)

Donald J. Veverka:

Right.

Donald J. Veverka:

Okay, in regard to the other prospective jurors who did not — were not examined with this degree of particularity, I’d say that he has indicated to the Court that there might be a disposition to lean for the defense.

Now, lacking any further questioning, and there was in one — at one point the defense counsel said, “Let state inquire” even after he had moved — even after the prosecutor had moved to excuse the juror, the defense counsel said “Let state proceed” and then there was further questioning.

I say simply that when a juror indicates this, lacking any indication or any objection on the part of the defense counsel that that juror has indicated that he has some predisposition in the case and that the excusing of those jurors on that basis is not unreasonable.

Now —

Thurgood Marshall:

Mr. Veverka, could —

Donald J. Veverka:

Yes, Justice —

Thurgood Marshall:

— the statute passed by the State of Illinois would say that no juror is qualified to sit on the capital case who has conscientious scruples against capital punishment.

Would you think that would be valid?

Donald J. Veverka:

No juror can sit down on a capital case with who has conscientious scruples against imposition of the death penalty?

Thurgood Marshall:

Uh-huh.

William O. Douglas:

It’s about what your statute provides.

Potter Stewart:

Just about what this statute says, isn’t it?

Donald J. Veverka:

That’s — that’s close to it.

William O. Douglas:

Section 743?

Potter Stewart:

The state waives it.

Donald J. Veverka:

Your Honor, I would have to say that — I would have to say that I think that it would — that it might very well be, but I don’t think that we have that situation in this case.

Byron R. White:

Would you have any concern — you say — you started out your argument by saying that the case law — the case law in the Illinois didn’t say that all he had to have was conscientious scruples, that the case law was the standard, was that he would not hold — he would not impose the death penalty in these circumstances —

Donald J. Veverka:

The case law in Illinois — there were no case in Illinois has ever held that mere opposition in and of itself, aside from the question —

Byron R. White:

Well, either some cases which define what kind of a conscientious objection he must have in order to be excused for good?

Donald J. Veverka:

No, Your Honor.

But I would point out that the Logan case which was an 1892 year — a case decided in 1892 by this Court, that was exactly the question that was asked, “Have you any conscientious scruples in regard to infliction of the death penalty for crime?”

And 14 jurors, prospective jurors were excused there.

And this Court held that a prospective juror who had conscientious scruples on any subject had indicated that he could not be impartial.

Byron R. White:

Yes, but what’s the — have the Illinois cases defined what the challenge for cause is in this area?

Donald J. Veverka:

Specifically defining what is a conscientious scruple?

Byron R. White:

Yeah, yeah.

Donald J. Veverka:

Your Honor, in the Hobbs case, they cited part and a couple of the other federal cases with approval, and I think that in those cases, it’s clear that when you talk about a conscientious or religious scruple, you’re talking about more than just a mere opposition.

You’re talking about a — an opinion.

It would seriously interfere with the juror’s ability to render a fair verdict.

Byron R. White:

Well, what did the Supreme Court of Illinois say in this case?

Byron R. White:

What did it say?

Donald J. Veverka:

I — in regard to this, it said merely that it was not an unreasonable act in excusing these individuals.

Byron R. White:

Well, what standard did the trial judge think he was applying in excusing 47?

I think that you’re suggesting that because he questioned the six in this manner and only excused them after they said in under no circumstances that he — that was the standard he was applying across the board in this case.

Donald J. Veverka:

I think it’s clear that the trial court and the prosecutor felt that by answering yes to that question, the juror was indicating that he was so opposed to the death penalty that the probability was great that he would not impose it under any circumstances.

I would also point out in that respect that on two other occasions, the defense counsel was the one who benefited.

There was one gentleman whose brother’s son-in-law was a policeman and he was asked if he could be fair and impartial.

He said he thought he could.

And the, defense counsel said, “Are you absolutely positive?”

And he said, “Possibly, it might affect me” and the trial court granted the defense’s motion to excuse for cause.

There was another woman whose husband was a policeman and in that case, she said — she was asked, “Do you have any leanings one way or the other?”

And the defense moved to excuse the woman and the trial court granted the defense’s motion to excuse that woman.

And what he said was, “I’m going to grant the excuse for cause.

You might have some leanings one way or the other.”

What we’re saying simply is that —

Thurgood Marshall:

But then in Illinois, is it common practice to have jurors directly related to policemen in criminal cases?

You mean that’s not a cause in Illinois?

Donald J. Veverka:

I don’t believe so, Your Honor.

I think that if the juror states that he could be fair and impartial on the facts of that particular case, I think that there’s a big chance that he might be allowed to stop the juror.

Thurgood Marshall:

Do you use relatives of the prosecutors, too?

Donald J. Veverka:

No.

No, Your Honor.

But our contention is simply this, that when the juror asked — answered affirmatively to that question, he was indicating sufficient intensity of bias in the case to be excused and it was not unreasonable to excuse him under those circumstances.

The trial court on numerous occasions indicated that what he was trying to do is get a fair and impartial jury with no leanings one way or the other way.

He excused not only these individuals but also a couple of individuals on the defense’s motion simply because it was attempting to get a jury which had no predisposition.

And again, we think that when a jury answers affirmatively to that question that he in fact has indicated that he cannot be absolute fair — absolutely fair and impartial to both sides and that it is not unreasonable to excuse them.

I think that —

William O. Douglas:

As I read your statute, which is 3 — Section 360 I guess, is it not?

The jury, after finding the person guilty of murder, can fix the punishment at death, life imprisonment or term —

Donald J. Veverka:

Not less than 14 years.

William O. Douglas:

— not less than 14 years.

Donald J. Veverka:

There was a statute that was in effect at the time Mr. Witherspoon was tried.

William O. Douglas:

That’s what I thought, yeah.

So under that statute, you’re picking jurors that would — why could you pick jurors who would cover that whole spectrum, those who are against life imprisonment — those who are against life imprisonment, those who are against capital punishment, because that’s within the permissible range of punishment provided by the state.

Donald J. Veverka:

Your Honor, because I think we’d go much broader than that the entire theory of American justice has always been that if a person indicates that he cannot be fair and impartial that you excuse him.

If a prospective juror in Illinois states that he thinks a policeman would be a more credible witness than say another individual that he indicates that he doesn’t believe in insanity defense, he’s excused.

Now, we think that if a person indicates a bias in some way that he should be excused.

We think that if a person says that he would not return the death penalty verdict under any circumstances that this is not a fair and impartial juror.

We feel that the question is carried over sufficiently enough and that the very definition of a conscientious scruple has always been in Illinois and in other jurisdictions that this indicates an opinion of sufficient intensity so that it interfere with the person’s ability to weigh the possibilities and to reach at a decision.

Potter Stewart:

Well, Mr. Veverka, that brings me back to my earlier question.

This indicates that to whom — do you assume that this prospective juror knows all about those decisions in Illinois saying that having a conscientious scruple against capital punishment means all these things?

Donald J. Veverka:

I —

Potter Stewart:

The question is, what does this mean to the juror?

Donald J. Veverka:

I understand your question, Your Honor.

I would — again, there were six that I don’t think that we would quarrel with at all.

I think that —

Potter Stewart:

You said that there were 41 others.

Donald J. Veverka:

Okay.

I think going beyond that, I think that we can — I think that there were certainly another group of individuals who have heard this question and it was clear to them that this is exactly what — what the judge was concerned with, a person who would not under any circumstances impose a death penalty.

Now, again, I think that even if in fact a — if a juror says, “I have a conscientious religious scruple,” even if he does not fully understand — he does not fully understand that this means that — it should mean that he will not under any circumstances impose the death penalty.

We say simply that it is yet not unreasonable and that if in fact some of those jurors were excused for cause or perhaps shouldn’t have been that it does not rise to the level of a constitutional violation.

And I think that it ties in with the point that Justice Fortas made that it might very well be two, we remember that the trial took place in 1960.

I think the trial court’s clearly indicated that he was trying to come up with 12 individuals who had not feelings one way or the other way, and I think that’s clearly did it for both the prosecution and the defense.

And going in, they are the two basic points, whether or not there’s been a systematic exclusion which is unreasonable, and I would point out that in spite of the fact that this Court has said that a systematic exclusion is unconstitutional, that it is always in its opinions, if not explicitly, implicitly made it clear that the mere exclusion of a group of individuals is not unconstitutional per se.

At every state, and I think this is directly involved in this case, every state has numerous exemptions.

Now, I think that perhaps a fireman or a minister or something like that, one individual minister or one individual fireman or the like might not necessarily be of such — be of such import that perhaps the public good would be hiring the fewer to be called for jury duty.

I think we have to look at the classification and determine whether or not it’s reasonable.

When you have an exclusion of individuals that is reasonable on its face, I think that if in fact one or two or a small number of those individuals are not in fact — if perhaps the exclusion of a few of these individuals is not warranted, I think nevertheless, we do not rise to the level of a constitutional violation.

The cross-section of the community concept, which Mr. Jenner discusses has never had any independent constitutional right.

It’s always been tied in with the question of whether or not there is an arbitrary systematic exclusion.

Abe Fortas:

Suppose this statute said that all Quakers may be challenged for cause, would that be — would that run the file of the Federal Constitution?

Donald J. Veverka:

I think it would, Your Honor.

Abe Fortas:

Don’t know of Quakers subscribed to — I don’t know if Quakers have scruples against capital punishment?

Donald J. Veverka:

Not necessarily, Your Honor.

Abe Fortas:

And that part of their religion, their faith or whatever?

Donald J. Veverka:

It —

Abe Fortas:

Suppose it were part of their faith and when this — suppose the record showed that we’re at with your present Illinois statute, that one that is in issue in this case, and suppose the record showed that all Quakers were people who had religious scruples against capital punishment, doesn’t that get you in to one of these misleading syllogistic —

Donald J. Veverka:

I understand —

Abe Fortas:

— results which would throw your case for a loss?

Donald J. Veverka:

I understand, Your Honor.

I understand, Your Honor, and I think that the classification of Quakers in and of themselves I think very well they might be unconstitutional.

But I don’t think that’s what we’ve said here.

I think what we said —

Abe Fortas:

But you said — you say all persons — all persons who have religious scruples, conscientious scruples against capital punishment.

All Quakers in my assumption have religious scruples against capital punishment therefore, etcetera.

Donald J. Veverka:

Well, I think that’s the unreasonable step though, assuming that all Quakers do in fact have conscientious religious scruples.

I would simply point out that setting up this criteria of those having conscientious religious scruples, we were in fact in accordance with this Court’s decision in the Logan case where they said that a person who has conscientious religious scruples cannot be a fair and impartial juror.

Now, I would indi — I would admit that if in fact defense counsel had made any attempt at any point and said, “We object to the execution — exclusion of that individual,” he might nevertheless be a fair and impartial juror.

I admit that if he had made an attempt to show bias questioning that in fact any one of those jurors could be a fair and impartial juror and if he was either not permitted to do so or if in fact he was able to show that these persons who were excluded could in fact be a fair and impartial juror, then I think we would have an entirely different situation.

Abe Fortas:

Well —

Thurgood Marshall:

Who is right about this?

Abe Fortas:

I suppose that the claim is that the general statutory scheme here is such as to make it impossible to select a jury from the citizenry of the community on the basis of the individual qualification or lack of qualification for the purposes of this particular case, and what you have done here is to set forth an arbitrary that is to say a definitional exclusion in terms of the definition of a class.

And that — that’s point one in the argument as I see it.

The point two in the argument would have to be I suppose that the exclusion of this particular class is a relevant material on the question of fair trial and the constitutional guarantee of a jury trial.

Donald J. Veverka:

Your Honor, but the definition is it was set up and was defined by the law was in effect that of those individuals who could not be fair and impartial.

I don’t think there’s any — any objection or any argument made that the statute said that all jurors who could not be fair and impartial —

Abe Fortas:

I think that’s an issue between — if I understand it, that’s the issue between you and your adversary that is Mr. Jenner who says that the statute is not a statute disqualifying persons in terms of their ability to discharge their function properly in this particular case but that the statute is a disqualification in terms of a general philosophical scruple.

Donald J. Veverka:

But that — it completely ignores the word scruple as it has been defined for a hundred years, including the decisions of this Court and —

Abe Fortas:

What you’re saying is that once you — a person says, “I have a conscientious scruple against something,” that means that — that that — yeah, that that also covers the particular inquiry.

That that would mean that he has a conscientious scruple which would not enable him to — not permit him to bring in a death penalty in a particular case.

Donald J. Veverka:

We say that an affirmative answer — my time is up, Your Honor.

My position is that when a person answers affirmatively to that question that there is a prima facie case set up and if lacking any additional question that that is not an unreasonable action taken by the trial court.

And that if on a few occasions, if a person’s views were not absolutely strong enough to exclude or which would provide sufficient grounds for excluding that person that that does not rise to the level of a constitutional violation.

Thank you.

Thurgood Marshall:

Just one moment.

Mr. Jenner said that the prosecute against four witness — four jurors and he asked them about conscientious scruples, they said yes, under those circumstances the defense counsel can ask him anything, is that right?

Donald J. Veverka:

That’s true, Your Honor, but I would point out that five of the 12 jurors who were actually tendered were tendered by the defense and not by the prosecution.

So what that indicates —

Thurgood Marshall:

What about this — you bring four jurors in, right?

Donald J. Veverka:

Right, Your Honor.

Thurgood Marshall:

Prospective jurors.

Donald J. Veverka:

Right, Your Honor.

Thurgood Marshall:

He asked them do they have conscientious scruples and they said yes.

The judge says goodbye.

The defense counsel can’t do anything at that state.

Donald J. Veverka:

Your Honor, I think that that was — that was not the practice followed in all of them.

Initially, three out of the first 12 jurors were interrogated at some length.

It wasn’t as perfunctory as the defense counsel would make this Court believe.

There was extended questioning of three of the first 11 jurors.

After that, it might have been perhaps a little more perfunctory, but again, I would point out that five of the 12 jurors that were tendered were tendered by the defense, which means that they had the opportunity to examine this panel.

They found those five jurors satisfactory and they tendered them to the prosecution.

So these were the ones who were examined by them.

Thurgood Marshall:

I guess I’ll have to read the writing.

Donald J. Veverka:

Thank you, Your Honor.

Hugo L. Black:

Does the defendant’s attorney have thought in hand to question the jurors?

Donald J. Veverka:

Yes, Your Honor.

Hugo L. Black:

He could ask him if he wants to do it but despite this thing, if they can give a fair trial, didn’t they?

Donald J. Veverka:

That’s right.

As a matter of fact –T

Hugo L. Black:

There’s nothing to prevent that, is there?

Donald J. Veverka:

As a matter of fact, Your Honor, I would point out that at one point where the prosecution moved to exclude a juror for cause and the grounds — on the grounds of conscientious religious scruples, what occurred was that the judge asked, “Do you have any conscientious religious scruples against imposition of the death penalty in a proper case?”

The juror said yes and the prosecution said excused for cause.

The defense counsel said let the state inquire.

I think the prosecution was inquiring and there was further questioning.

So there certainly was nothing to prevent the defense counsel from asking questions or from asking — objecting, asking the prosecution to further clarify it.

Earl Warren:

Didn’t the — didn’t the Court itself take over the examination of a lot of these jurors and then just preemptively excused them?

I’m looking now at page 29 of the appendix where the judge says, “Do you have any conscientious scruples against the effects of the death penalty in a proper case?”

The juror says, “I think my conscience would bother me.”

The judge, “You don’t believe in the death penalty?”

“No, I don’t.”

“Even though it is a state law?”

“That’s right.”

The Court, “You may stand aside.”

Donald J. Veverka:

Your Honor, they —

Earl Warren:

It’s rather preemptory to me.

The one above it is just about this brief.

The judge asked him if he had any — any scruple, conscientious scruples and he said, “Yes, sir.”

“Do you say you do?”

“Yes, sir.”

“How long have you entertained such views?”

“I don’t believe in it, sir.”

“You just don’t believe in it?”

“That’s right.”

“Very well, you’ll be excused in this case.”

That’s rather preemptory and it doesn’t spoil the man’s mind very much, does it?

Donald J. Veverka:

Your Honor, on occasion, in fact it was explored and we have — we have an additional problem here I think that at least in one case in Illinois and another case from some other jurisdiction, which I read, the claim was raised that in fact, the defendant was prejudiced by the fact that there have been extended questioning of the prospective jurors on the question of their views as to the death penalty.

The claim was that the trial was slanted in this way and that death penalty was unduly prejudiced.

Again, we would simply say that after the extended questioning of the first few jurors where they indicated that under no circumstances would they impose a death penalty that perhaps on occasion that although the questioning was not sufficient, lacking any request for — any request for clarification or the like that it was not an unreasonable action which was taken.

I think —

Hugo L. Black:

I presume what you’re arguing is that Illinois provides that in certain cases, people must suffer the death penalty if they’re found guilty of the crime.

Hugo L. Black:

Do you take the position that the Constitution, Federal Constitution doesn’t compel Illinois to nullify that right it has to sentence to death by starting out a jury of 12, all of them say, “We entered this bar dedicated to being against the death penalty and that is our firm belief.”

Donald J. Veverka:

We think it’s not only that, Your Honor.

Your Honor phrased it very succinctly.

I think it’s not only that.

I think it’s broader than that.

I think it goes as to the right of a defendant to have any particular provision nullified by having jurors on the panel who have a fixed bias in some way.

We feel that the results, if the contentions are accepted, I think that there would have to be a serious reappraisal over unanimous verdicts.

We think that the only alternative to this argument is a complete system of bifurcated trials with two juries, one sitting on the question of guilt and one sitting on the question of punishment.

We think that there is no alternative in capital cases if in fact the petitioner’s contentions are accepted.

Hugo L. Black:

What is the difference in effect in our holding that Illinois is barred by the Federal Constitution in having a death system, death execution, holding on the other hand, the difference between that and holding that they must be compelled to try their cases where jurors will announce from the beginning they do not believe in the death sentence and will not impose it.

Donald J. Veverka:

That is very — that is the effect of it, Your Honor.

That is.

Earl Warren:

Do you defend that portion of your act, which says that they may be excused for cause if they — if they’re opposed to the death penalty entirely?

Donald J. Veverka:

Your Honor, in so far as those — I believe there are two jurors —

Earl Warren:

No, I’m talking about the principle.

Do you oppose — do you seek to sustain that portion of your act which says that they’re entitled to — they should be excused for cause if they are opposed to the death penalty.

Donald J. Veverka:

In answer to your question, I understand your question and I would reply this.

I would say that it’s — we think clearly reasonable to excuse a juror who has an actual bias.

Now, we think that in addition to that, there are also the instances of implied bias.

For example, in the Erwin case decided by this Court where the Court said in effect even though the jurors said they could be fair and impartial, in fact since they read the newspaper accounts and the like, we think that the possibility of their being biased and therefore, we’re going to reverse the conviction.

Now, we would say that whether or not a person’s views are strong enough to justify his excuse has always been a matter of discretion for the trial court.

We say that it’s not entirely unreasonable for a trial court to examine a jury and if he says, “I am opposed to the death penalty” if absent other features, we do not think that this is entirely unreasonable.

But again, I would point out that in this case, we had two jurors which might be interpreted that way and to the best of my analogy, there’s never been a practice in Illinois, no case has ever said that mere opposition is sufficient.

As a matter of fact, now the statute merely provides for cause.

Earl Warren:

Well, I know that some of the briefs in this case indicate that any modification of the rule, even to the extent that I proposed to you, was objectionable to them.

Is that the position of the state of Illinois or do you — do you concede that if a man merely says, “I’m opposed to the death penalty.

I don’t like it,” and there’s no further discussion of it, no further exploration that the judge can say, “You’re excused” —

Donald J. Veverka:

I understand it’s being argued by amicus rather.

In the answer to your question, I would say that if the statute said that mere opposition is sufficient, I think I would have to concede that that would probably be unconstitutional.

If in any one individual case the question came up where one or two jurors or perhaps five jurors said “I am opposed to the death penalty” and if there was nothing other than that, I would say that that would not be unconstitutional.

Donald J. Veverka:

But I agree with you that if the statute read that way —

Earl Warren:

If just a few of them — if just a few of them who are — who are treated that way, would it be alright?

Donald J. Veverka:

I — it might be a violation of state law, Your Honor.

Thurgood Marshall:

With a hypothetical case, if 41 did, how about that?

Donald J. Veverka:

We’re excused from mere opposition of the death penalty?

Thurgood Marshall:

Uh-huh.

Donald J. Veverka:

Your Honor, I don’t think that that is the record in this case and I — the law has always been that the conscientious scruple differ immensely from mere opposition.

That is always — that’s been the federal law and from my reading of the Illinois law, that is the Illinois law, that there is a significant difference between the two.

Earl Warren:

But you’re faced here with a statute which says that that is sufficient and you also have some instances in this case where that was done.

Are you defending that fate of it or not?

Donald J. Veverka:

Your Honor, again, there were again two instances where — I don’t want to avoid your question.

Earl Warren:

Well then answer it and I won’t bother you anymore.

Donald J. Veverka:

I — I’d say that the excusing of two jurors under this statute is not unconstitutional per se.

Earl Warren:

How many would you say that had to be excused with that reason before it was that?

Donald J. Veverka:

I’d say, Your Honor, that it would have to depend on the facts and circumstances of the case.

I think a much greater number of jurors would have to be excused than we have in this case.

Hugo L. Black:

Suppose you would ask the jurors if they were in favor of inflicting the death penalty on every man who’s convicted of any — of killing of another, suppose you did that, what would you say about that?

Would you say you’d have to get into whether that was reasonable or unreasonable to take that man off the jury so he wouldn’t have to — you wouldn’t have to try him with a man who’s pledged in advance not to sentence him to death —

Donald J. Veverka:

I would —

Hugo L. Black:

— if he killed somebody?

Donald J. Veverka:

I would — I would — I would point out, Your Honor, that that has occurred in some of the cases, I believe Puff and the Boyd cases.

That’s exactly what happened where a juror said, “I believe that someone who is convicted of this crime should be punished with a death penalty.”

I — in the recent Speck case where eight nurses were murdered, one juror said, “I would consider only the first and third verdicts” and meaning that he would consider only death and he was excused and I think that this is a quarrel area but I don’t think that’s unreasonable.

I’m sorry Your Honor.

I couldn’t know —

Hugo L. Black:

You don’t know how many states use this method, do you?

Donald J. Veverka:

Which method, Your Honor?

Hugo L. Black:

Method of asking the jurors in events of any constitutionally and fundamentally and basically opposed to the death sentence and then excused him.Do you know how many states do that?

Donald J. Veverka:

Your Honor, there are 44 jurisdictions presently which have same or similar statutes which provide that a juror can be excused for conscientious scruples.

Potter Stewart:

I didn’t think there are that many that has death penalty.

Donald J. Veverka:

Your Honor, there are presently 41 jurisdictions.

Potter Stewart:

41 have the death penalty and three more have this kind of a jury disqualification?

Donald J. Veverka:

Your Honor, they’re set forth in the appendix, I —

Earl Warren:

But they’re not all to that effect, are they?

Aren’t — don’t some of them say that — many of them say that they must have conscientious scruples which would prevent them from bringing in a verdict of the death in the proper case?

Donald J. Veverka:

Many of them do say that, Your Honor, that’s correct.

Earl Warren:

Well, that’s — you can’t have any broad generalization other than that, can you?

Along the lines you said, 41 states.

Donald J. Veverka:

Well, Your Honor, I would point out that this is not specifically a statutory thing.

This is a common law thing.

Long before the statutes were passed, the courts have been holding back.

The first case in Illinois was in 1852.

And that long prior to the time that many of these statutes were passed, the courts of the various jurisdictions had been holding that such is the case.

I’m cutting in to the states attorney’s time, I —

Earl Warren:

Well, alright.

Alright.

Mr. Zagel.

James B. Zagel:

Mr. Chief Justice, may it please the Court.

I’d like to allude first of all to the question of Mr. Justice Marshall to the effect of whether a defense lawyer can intervene during the course of the voir dire.

I might say that there is nothing in Illinois law to prevent this.

It has been done.

It has been done in cases I’ve tried myself.

If they challenge for cause, if a lawyer feels that a challenge for cause has not been sufficiently established, he may ask the Court the relief to ask questions.

It was not done in this case but —

Thurgood Marshall:

That’s the discretionary with the Court.

James B. Zagel:

I do not think that it’s discretionary with the Court.

Thurgood Marshall:

Well, is it usually done in cases where you’ve got a clear-cut statute like this?

James B. Zagel:

I would say this, that I — I think — well, I think I have to emphasize the point that Mr. Veverka made toward the end.

It’s really I think misleading to regard this as a — particularly as a statutory provision.

First of all, the challenge for cause of one who had conscientious scruples against the death penalty existed prior to the time of the statute and was created in a case called Gates versus People on 14 Illinois and after the statute was eliminated from the statute books, the Supreme Court held that the law was the same.

James B. Zagel:

Second of all, the clear provision of the statute is that anyone who is opposed of capital punishment shall be excluded but I know of no single record that a petitioner is brought forth on in which a states attorney or a court asked the question of any prospective jury man, “Are you opposed to capital punishment?”

The question has always been whether there are conscientious or religious scruples and I think that the statute was a surplusage and I would point out that in the first footnote to the respondent Wood’s brief, we set out the law of — all of the states have considered this and we point out that even in most of those states where statutes have been passed, the challenge for cause originally arose at the time of the law and we point out further that the interpretations of these statutes has been such that one could no longer I think arguably state that this is a matter of statutory law.

Particularly, I point out that many of the statutes set by the petitioner say personally of such scruples which will preclude him from returning a verdict of guilty and that most typical of this is California and the Western States have similar statutes.

Thurgood Marshall:

Mr. Zagel, I suppose the practice in Illinois would be that when you get a jury for a capital case, the clerk of the jury says, “All of you who have conscientious scruples against capital punishment are excused.”

Would that be alright?

James B. Zagel:

Well, I very much doubt that that would be alright.I think one needs the intervention of the Court.

I think that —

Thurgood Marshall:

Well, if 96 people come into the courtroom and the judge says, “All of you who have conscientious scruples against capital punishment are excused,” is that alright?

James B. Zagel:

Well, that has been done and it has been approved in the State of Illinois.

However, it was not done in this case.

Each juror was asked individually.

Thurgood Marshall:

It hadn’t been approved by this Court, has it?

James B. Zagel:

No, it has only been approved in the State of Illinois but the better practice and the practice followed in this case has been to qualify each juror individually and I would ask as — that you notice Mr. Veverka has previously noted the instance in which a judge was somewhat reluctant to accept the juror’s — for original assurance that there was a conscientious scruple.

It was only after the juror insists — insisted that the juror was taken off.

Earl Warren:

Well, do you seek to sustain that portion of the statute which says that a man should be excused if he’s opposed of the death penalty?

James B. Zagel:

I don’t seek to sustain that portion of the statute.

I don’t think that portion of the statute was applied in this case, and I dare say that if I conceded that it was per se unconstitutional, that a single Illinois case would be reversed as a result of it.

The overwhelming practice in Illinois has just been on the basis of conscientious scruples and mere opposition is not sufficient under Illinois law regardless of what the statute has said.

That is the practice in our law.

Earl Warren:

Is there — would you have any — do you have any cases to support that theory?

James B. Zagel:

Well, I — in footnote 4, the respondent Woods brief, I put in every case that I could find in Illinois that dealt with conscientious scruples with the disqualification for cause and all of — none of them has dealt specifically with the problem which is in itself and indication of the fact that trial courts do not ask the question, “Are you opposed?”

Every one of those cases dealt with disqualification of jurors on the grounds that they had religious or conscientious scruples against the infliction of capital punishment.

Byron R. White:

Do you think that’s the standard problem applied in this case?

James B. Zagel:

I think that that was the standard the trial judge was applying with this limitation.

I think the comments of the trial judge is on the six jurors or five jurors to which in his previous reference indicated that the trial judge understood that standard to mean a conscientious scruple that would have a substantial influence on the verdict.

I might further add in connection with this question of the voir dire in Illinois.

It is true that all of these jurors came in a group of three — in three large groups and it’s impossible to tell exactly when they came in because when the trial judge brought them up for their preliminary instruction, he made a statement somewhat to the effect of bringing those jurors who have come in up to the front so you don’t know when they came in.

But I do point out that in addition to the comments of the judge indicating that he was only interested in those cases where a person would not inflict the death penalty in any case, I might add that —

Earl Warren:

What — I didn’t get that.

Who said that?

James B. Zagel:

The judge said that on — on a few occasions, on four or five occasions.

The reference to it can be found in the petitioner’s appendix and he refers to it specifically on page 7 of his brief and makes references to the appropriate — a portion of —

Earl Warren:

Who’s brief was it?

James B. Zagel:

The petitioner’s brief, Mr. Witherspoon’s brief.

Earl Warren:

Page 7?

James B. Zagel:

Page 7, he makes reference in the third paragraph on that page to the situations where the trial judge did make it clear that that’s what he was seeking.

I would also point out that each —

William J. Brennan, Jr.:

Perhaps I don’t fully understand it.

Are you taking a position that the correct standard under the Illinois statute is that you may challenge for cause only those who say they could not bring in the death penalty in any case?

James B. Zagel:

No, I am not saying —

William J. Brennan, Jr.:

What — what is it you say the statute is?

James B. Zagel:

I am saying that the practice in Illinois — and I think it is a —

William J. Brennan, Jr.:

That’s not my question.

My question is what do you say the statute is?

James B. Zagel:

I say the statute is directed to the securing of jurors who are willing under the law and evidence to return a death penalty verdict if justified.

William J. Brennan, Jr.:

Irrespective of any conscientious scruples they may have against death penalty?

James B. Zagel:

I think that the statute makes the assumption, not unjustified assumption, that the persons with such conscientious and religious scruples will have a great difficulty in returning such a verdict.

And I might add, and I think this is —

William J. Brennan, Jr.:

You still haven’t answered my question, with all respect.

I don’t know what is your position the statute means.

James B. Zagel:

Our position is the statute is designed — the purpose of the statute is —

William J. Brennan, Jr.:

Not the purpose.

Tell me what it means.

James B. Zagel:

The statute —

William J. Brennan, Jr.:

Specifically in what case does the statute permit a challenge for cause?

James B. Zagel:

The statute permits a challenge for cause when a man expresses conscientious or religious scruples against inflicting the death penalty.

And you say that that’s perfectly constitutional?

I say that that is perfectly constitutional.

Earl Warren:

Without more?

James B. Zagel:

I think it is — it is perfectly constitutional without more and I point out two things in this connection.

James B. Zagel:

First, it’s interesting that the District of Columbia Court of Appeals in the Turberville case, when faced with a record where the trial judge excluded on the basis of mere opposition, I held that that was improper though not reversible error.

And then, when it sought to define — the Court sought to define what was meant by challenge for cause in these cases, it specifically alluded to the phrase conscientious scruple and said that this means more than mere opposition.

Secondly, I would point out in this connection — I should note that there was a question asked as to whether or what the Supreme Court of Illinois said about this point.

The Supreme Court of Illinois said nothing about this.

This issue, this question of insufficient basis for the challenge for cause is being raised for the first time in this Court and I might add that it was not raised even in the petition for certiorari.

Secondly, I would point out that there was no attempt by a defense counsel at the trial level to ask any additional question in connection with the disqualification for cause.

And furthermore, he made no objection to any of the disqualification for cause.

And I might add that the Court never denied any challenge for cause made by defense counsel in this case.

Earl Warren:

May I repeat the question one of the other justices asked you?

To this effect, how are jurors supposed to know these things you’re telling us about now as to the extent of their conscientious objections?

James B. Zagel:

Well, I think — I think they’ll know in two ways.

First of all, I do not think it is an unfair or irrational assumption to make that conscientious scruple possesses for the juror the same common meaning it possesses for the rest of us.

Earl Warren:

What is the difference between a scruple and a conscientious scruple?

James B. Zagel:

Well, I — I think a scruple might be sufficient.

Sometimes a question in Illinois is phrased as a conscientious or religious objection.

I think —

Earl Warren:

I beg your pardon.

James B. Zagel:

Sometimes it’s referred to as a conscientious or religious objection.

I think scruple is meant to embody this idea of some overwriting moral principle or belief to which the man adheres.

Earl Warren:

Do you think every prospective juror should know those distinctions?

James B. Zagel:

I think that it is a reasonable assumption to say that a prospective juror will either know what it means or will do what Mr. Salazar did and ask what the question meant.

And furthermore, and this is something that I was not noted by Mr. Veverka’s and relied upon my brief.

Those jurors who said they did not have conscientious scruples were questioned further and this I think was heard by every venireman because it was quite frequent.

It was a question by Mr. Kissane to the effect of if after all the deliberations they were to return to the jury room and all of them were convinced beyond a reasonable doubt that the defendant was guilty as charged and that they all were convinced that this was a proper case for the death penalty, would they sign the verdict?

Earl Warren:

But all of them were not asked that.

James B. Zagel:

Not all of them were asked that but I cannot believe that you could reasonably say that not every one of them heard that, and I think that in itself it strongly clarifies the meaning of the question.

And I might add, alluding to Mr. Veverka’s point that the state is between — or say it’s under a sword here.

A contention has been made several times in Illinois and I think it’s made obliquely in the course of petitioner’s brief that by asking this second question, we indoctrinate the jurors.

We’re put in a position where if we ask conscientious scruples against the death penalty, they’ll say, “Well, you’re not very clear on your challenge for cause, the foundation of your challenge for cause.”

But if you ask the juror will he return the death verdict, they’ll say whether you’re orienting the juror to the returning of the death verdict, you’re indoctrinating it.

Thurgood Marshall:

Can I assume that some of the jurors do not know what a proper case is?

James B. Zagel:

I — I think that it is possible that some of the jurors may not be aware of what a proper case is.

That is to say they may not be aware of the fact that they primarily determine what a proper case is.

Thurgood Marshall:

So there is a possibility — there’s a two-pronged possibility of a juror and a judge at the prosecute — the defense counsel being on a different understanding based on the lack of communication, one as to what is a conscientious scruple and two, what is a proper case.

James B. Zagel:

Well, it seems to me that there is that possibility, although I would state again that it is not uncommon for a juror like Mr. Salazar did to ask what is meant by a proper case.

Thurgood Marshall:

Well, I suppose the juror ends up and says, “I think that if there is a proper case, I could put my conscientious scruples aside.”

James B. Zagel:

Well, if a juror were to state that he could return a death verdict in a proper case, then he would be qualified.

Thurgood Marshall:

He would be qualified?

James B. Zagel:

He would be qualified.

Thurgood Marshall:

And so, these 41, you don’t know how many of them might have gone to that point if they had been questioned?

James B. Zagel:

Well, I would say this.

If you’re talking about knowing in the sense of the absolute certainty, no, I don’t know.

If you’re talking about knowing in the sense of a reasonable belief that they did know, I think I can’t have that reasonable belief.

Thurgood Marshall:

Well I understand you correctly, you would have no objections of the defense counsel going into as far as he wanted in the hope of getting this out of the way.

That would be alright with you?

James B. Zagel:

Within — within limits.

I should point out that there’s a little tension between what’s being advocated today and what’s advocated in some other cases.

In the North Carolina case in particular, what the Court complained about was really a double standard.

They said that when a man said he had a fixed opinion as the guilt based on newspapers, the judge would cross-question him very closely to determine whether or not he were — would be influenced by it.

Whereas as soon as a man said he had a scruple or didn’t favor or didn’t believe in capital punishment, then he would knock him off the jury.

I would point out that the new procedure, at least the recommended one, the ABA recommends it, is that when a man says he’s got a newspaper opinion, you really shouldn’t cross-question him so closely.

That it’s — if you can conceivably get a jury by taking these people off the jury, you should do so.

That was their recommendation where — wherever feasible.

And I think that the Fourth Circuit was right about the double standard but I’d point out in Illinois, particularly in the Speck case to which counsel previously alluded, a very loose standard of challenge for cause was applied when the defense asked for one.

A man expressed an opinion if he had been acquainted with certain facts that everyone agreed were prejudicial.

Then in those circumstances, he would be excused and properly so.

And I might point out that in the footnote of our brief where we referred to a recent federal civil rights prosecution, a man was asked — were read the oath of the Ku Klux Clan and asked if they believe and subscribed to the principles of the clan oath.

And if they did, they said they did, they were excused for cause.

That was rather in contrast to the attorney general of Alabama’s experience, Richmond Flowers, when he tried Wilkins, Collie Leroy Wilkins for the murder of Mrs. Liuzzo.

But in the federal case, they did not ask each and every juror will these — and in fact, I don’t believe they asked any juror will these beliefs affect you.

James B. Zagel:

And now, it is possible that somebody who subscribed for the clan oath can be a fair and impartial juror in a civil rights trial.

Theoretically, it’s possible but not very, and I would state that that same basis for cause was laid in this case.

When a man states it is a matter of his individual belief that he has a conscientious or religious scruple against the death penalty, I think that that is a sufficient basis for cause, unless he wants to take the whole law back to the days where you just cross-question everybody to try to make incompetent jurors, and I don’t think it’s possible to do it in the publicity cases today.

And I would point out that Marshall versus United States 360 U.S. no inquiry was made.

This Court just reversed on the grounds of exposure of jurors to certain information.

And I think the same issue presents itself in the civil rights case.

I don’t think we’re to use the phrase used by counsel for the petitioner from the Murchison case in his reply brief that — In re Murchison 349 U.S. 133, the statement is “but our system of law has always endeavored to prevent even the probability of unfairness, thereto” or thereto as in publicity cases, it was the defendant who was complaining.

I don’t think the standard of fairness of juries and the threshold of disqualification should be any different in the case of a state which is asking for a fair trial.

Now, I have other matters but I think they’re sufficiently covered in my brief and I would like to have the California Attorney General speak for the few minutes that are remaining in a point which only he has —

William O. Douglas:

Can I ask one question with the Illinois law?

Could this jury in this case come back with a — under this indictment for the verdict of voluntary manslaughter or manslaughter?

James B. Zagel:

Well, there are cases where they could have but not in this case.

William O. Douglas:

Why not in this case?

James B. Zagel:

The evidence was just — it could not have justified a manslaughter verdict.

It was —

William O. Douglas:

Would the Court — Illinois Court have set it aside in panel to a new jury or what?

James B. Zagel:

If they’re — under Illinois law, if an instruction is submitted, which is not justified by the evidence and a verdict of guilty returns, the Illinois Supreme Court will set aside the verdict period and reverse the case outright, there be no remand.

William O. Douglas:

Even though it’s in favor of the lifetime penalty.

James B. Zagel:

Even though it’s in favor of — even though it’s in favor of the defendant.

If involuntary manslaughter instructions are erroneously submitted to the jury and the facts showed murder or nothing, the jury returns with a verdict of guilty.

That verdict is not good in Illinois.

Earl Warren:

Mr. Granucci.

Robert R. Granucci:

Mr. Chief Justice, may it please the Court.

In the remaining few minutes, I’d like to address myself to the subject of retroactivity of any new rule to be announced by this Court, but I would like to emphatically state that we are firmly convinced that there is no constitutional infirmity in exclusive — in excluding for cause.

In the case of actual bias, those jurors are unable to return a death penalty in a capital case.And as we note in our brief, we also believe —

Earl Warren:

Now, do you go as far as to say that — that less than a assurance on the part of the juror that he could not bring in such a verdict, that they should disqualify him for cause?

Robert R. Granucci:

Your Honor, California goes no further.

Earl Warren:

I know they do.

Now, what are you trying to do?

Are you trying to go farther than California goes?

Robert R. Granucci:

We think on behalf of the 23 states that have joined us, we should state that it is not unreasonable to hold that implied bias, namely opposition or scruple as a ground from which a conclusion may reasonably draw that the juror would be unable to fairly consider the issue of penalty.

Earl Warren:

Even that — even though that is not — you’re not concerned with that under the California law?

Robert R. Granucci:

That is quite correct, Your Honor.

Earl Warren:

Alright.

Now, you may go to that.

You may have a few minutes more to take.

Robert R. Granucci:

Thank you.

Earl Warren:

Take five minutes more.

Robert R. Granucci:

Thank you.

Thank you very much, Your Honor.

In four recent decisions, Linkletter, Tehan, Johnson and Stovall on this Court announced a proposition that newly announced constitutional rules need not be given retrospective application.

Considerations which determined the retroactivity or non-retroactivity of these decisions are the purpose to be served by the rule, the reliance on the old rules, and the impact on the administration of justice.

Now, talking about the purpose to be served by any new rule here announced, I think from the questions asked from the bench and from the direction of the argument, it would have to be on the grounds of making jury selection less exclusive.

William J. Brennan, Jr.:

You mean, that’s an equal protection?

Robert R. Granucci:

An equal protection.

William J. Brennan, Jr.:

I suppose it might be different.

What if it were only a due process in the sense of infecting the fact-finding process?

Robert R. Granucci:

If it infected the fact finding process, Mr. Justice Brennan, it might be taken into account but it wouldn’t be determinative.

William J. Brennan, Jr.:

Well, didn’t — and wasn’t that distinction drawn in Linkletter?

Robert R. Granucci:

Yes, but it was —

William J. Brennan, Jr.:

And actually, all the courts’ confession rules and Gideon rules, those are all fully retroactive, aren’t they?

Robert R. Granucci:

That is correct.

William J. Brennan, Jr.:

And why — weren’t they made so on the ground that —

Robert R. Granucci:

That — that is correct, Mr. Justice Brennan.

However, there were some other rules which were made non-retroactive which also went to the fact-finding process, namely the recent Stovall case.

That’s the one that comes most readily to mind in the line up case.

William J. Brennan, Jr.:

It doesn’t come readily to my mind.

Robert R. Granucci:

The stovall involved a case where there had been confrontation in the absence of counsel and there was some concern that — of improper suggestion and some concern about unfairness of the trial.

But the Court felt that this had to be weighed against the other considerations as well, namely the reliance on the former rules and the impact on the administration of justice.

Now, we think that here should be taken into account the fact that regardless of what was done with exclusion, both sides in the selection of the jury had the opportunity to challenge for cause biased jurors and have the opportunity to exercise preemptory and therefore have an opportunity for a fair jury.

Robert R. Granucci:

Now, as far as reliance, I think Logan versus the United States certainly justified reliance by the states.

And if not Logan, then the basic fundamental concept of our jurisprudence that one who is biased should not sit as a trier of fact, that one who has a fixed opinion in a case should not serve as a juror in that case.

Now, discussing the impact on the administration of justice, we have 75 men under sentence of death in California, at least 70 of them have standing to raise the scrupled juror claim.

Potter Stewart:

I misunderstood you there.

I thought you said that California had quite a different test from this one here over this case.

Robert R. Granucci:

Well, Your Honor, I don’t know what rule the Court is going to announce, but if the Court were going to accept the theory of the amicus on the side of the petitioners, then it would be error to exclude for cause, even those who are actually biased.

In fact, amicus are making that argument in California right now.

Potter Stewart:

Well, we have before us particularly in our case and our particularly state involving a particular standard of exclusion.

And I had understood you to say that California’s standard of exclusion is quite different.

Robert R. Granucci:

California’s standard of exclusion, Mr. Justice Stewart, is more restricted.

Our questions, our voir dire is primed in terms of, could you return a verdict.

And if the venire —

William O. Douglas:

Just on the — we’re talking now about your procedure for determining for the penalty or guilt.

Robert R. Granucci:

Mr. Justice Douglas, we have a bifurcated trial.

William O. Douglas:

I understand.

Robert R. Granucci:

Jurors are examined in the beginning of the trial.

They are asked, “Could you return a death penalty?”

In other words, they are asked first whether they could — whether they could return a verdict of death if they thought it was proper.

I respect —

Earl Warren:

If we were to hold that in this case, that this statute cannot stand because it doesn’t show that a man cannot render a verdict, a capital verdict, would that — would that do anything to the 75 convictions you were talking about in your state?

Robert R. Granucci:

It might not, Your Honor.

It might not.

Earl Warren:

Well, wouldn’t it?

Robert R. Granucci:

I — if you were to hold only in the terms of your question, it would not.

However, it wouldn’t probably result in collateral attack throughout the country on what we conservatively estimated as 8500 convictions.

Earl Warren:

Yes, very well.

Robert R. Granucci:

Thank you, Your Honor.