Ruling Affirms Judges' Authority

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By Charles Lane
Washington Post Staff Writer
Tuesday, June 5, 2007

The Supreme Court bolstered trial judges' authority to shape juries in death penalty cases yesterday, ruling that a court in Washington state properly disqualified a man who expressed doubts about capital punishment during pretrial questioning.

By a vote of 5 to 4, the justices concluded that the exclusion was reasonable and consistent with Supreme Court precedents, which require that jurors in capital cases be "death qualified" -- able to impose death if the law provides for it, even if they oppose capital punishment.

The prospective juror said he supported the death penalty, but only if the killer might otherwise go free and kill again. Prosecutors argued that this meant he would automatically vote against the death penalty, because Washington allows an alternative of life in prison without parole.

The trial judge agreed, and the prospective juror was dismissed. The defendant, Cal Coburn Brown, was convicted and sentenced to death. But the defense appealed, and the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, overturned the sentence. The high court overturned that ruling yesterday.

The juror's answers, Justice Anthony M. Kennedy wrote, "could have led the trial court to believe that [the juror] would be substantially impaired in his ability to impose the death penalty in the absence of the possibility that Brown would be released and would reoffend." Kennedy was joined in the majority by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Justice John Paul Stevens showed his displeasure with the ruling by reading his dissenting opinion from the bench.

The ruling, Stevens said, would tilt jury selection in favor of prosecutors. The majority "appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot."

Yesterday's decision was significant because jurors in capital cases often face a choice of death or life without parole. Of the 38 states that have capital punishment, all but New Mexico offer life without parole, as does the federal government.

Capital defense lawyers say that the possibility of life without parole generally increases their chances of avoiding the death penalty, especially in cases of heinous murders such as that committed by Brown, who was found guilty of robbing, raping and torturing Holly C. Washa before killing her in 1991.

A June 2006 Washington Post-ABC News poll found that 65 percent of Americans favored the death penalty for convicted murderers, but that support dropped to 50 percent when respondents were given a choice between life without parole and the death penalty. Forty-six percent favored life without parole.

Prospective juror Richard Deal, identified in Kennedy's opinion as Juror Z, was asked about the alternatives during the jury-selection process before Brown's 1991 trial.

Saying he had just learned that afternoon that Washington law provided for life without parole, Deal explained that he thought the death penalty was appropriate in "severe situations" but offered only one example: "If a person was incorrigible and would reviolate if released." Reminded that Washington had life without parole, he assured the court that he could consider the case fairly.

Kennedy said that the court should defer to the trial judge's decision to grant the prosecution's objection to Deal, in part because the judge was able to assess his demeanor and body language, and in part because the defense did not clearly object to his dismissal during the trial.

But Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, wrote that "a more accurate characterization of Juror Z's testimony is that although he harbored some general reservations about the death penalty, he stated that he could consider and would vote to impose the death penalty where appropriate."

The case is Uttecht v. Brown, No. 06-413.


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