High Court Adds Death-Penalty And Tobacco Cases to Docket

Justices Also to Rule on Legal Fees, Tax Issues This Term

Washington Post Staff Writer
Saturday, January 13, 2007; Page A03

The Supreme Court added four cases to its docket for the current term yesterday, including a review of a judge's decision to dismiss a potential juror from a death-penalty case because of the man's equivocal statements about capital punishment.

A federal appeals court overturned the trial judge's ruling in a rape and murder trial in the state of Washington. One of the issues in the case is whether federal courts should defer to a trial judge who is in a position to actually talk to and observe a potential juror in making the decision about his ability to carry out the law.

The court has added 11 cases to its slimmer-than-usual caseload in the past eight days, all of which are scheduled to be argued and decided before the term's usual close at the end of June. Among the cases justices said yesterday that they will decide is a question of whether a cigarette manufacturer can move a lawsuit against it to federal jurisdiction and out of the state courts, where judgments against tobacco companies have been mounting.

The death-penalty case , Uttecht v. Brown (06-413), stems from the 1991 conviction of Cal Coburn Brown. One of the prospective jurors in the case indicated on a questionnaire that he could support a death sentence if convinced beyond a shadow of a doubt that the accused had killed and would kill again, and that he would have severe doubts without that. Because the only other alternative sentence for Brown would be life in prison without parole, he was told it would be unlikely such evidence would be presented.

After additional questioning, the prosecution asked that the juror be dismissed, and the defense did not object. The Washington state Supreme Court and a federal district judge upheld the state judge's decision to dismiss.

But the U.S. Court of Appeals for the 9th Circuit, with which the Supreme Court has already disagreed on a death-penalty case this year, reversed the sentence. The potential juror's statement that he "would impose the death penalty when the defendant would be likely to kill again did not exclude the possibility that he would vote to impose the death penalty in other circumstances as well," the court ruled.

And it said that automatically deferring to the trial judge's judgment because "unknown facial expression or body language" might contradict the actual words of the potential juror would make appellate review "obsolete."

The cigarette case, Watson v. Philip Morris (05-1284), comes from Arkansas, where consumers alleged that the company had violated the state's deceptive-advertising law with claims about its "light" cigarettes. Similar class-action lawsuits have been filed around the country.

But Phillip Morris, whose parent company is now known as Altria Group Inc., was successful in having the case transferred to federal courts, saying that its advertising is regulated by the Federal Trade Commission, and that made it a "person acting under" a federal officer.

The Bush administration said it disagreed with the U.S. Court of Appeals for the 8th Circuit ruling upholding the lower court's decision. Nevertheless, Solicitor General Paul D. Clement had recommended the Supreme Court not take the case, saying it did not warrant the court's review.

Those who sued said the move to federal court denies the right of states to be the primary forum for adjudicating state laws.

The court also took Struhs, et al., v. Wyner (06-531), about who should pay lawyer fees in a case involving nude protesters in a Florida park, and Hinck v. U.S. (06-376), a jurisdictional question about the U.S. Tax Court.

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