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EXCLUSION OF THOSE OPPOSED TO THE DEATH PENALTY VIOLATES THE SIXTH AMENDMENT

The mere expression of opposition to the death penalty does not constitute cause to exclude a juror absent an unequivocal expression of the inability to impose the same.

Witherspoon v. Illinois, 391 US 510, 88 S.Ct. 1770, 10 L.Ed.2d 776 (1968).

 

See also  Adams v. Texas, 448 US 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) (holding exclusion of jurors who would not say that death penalty would not affect their deliberations on any fact issue was improper); but see Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) (“Although [the venireperson] was never asked whether her views might substantially interfere with her ability honestly to answer the special punishment questions prescribed by law, this Court no longer requires specific inquiry on that subject as a prerequisite to the exclusion of a prospective juror for bias or prejudice against the death penalty.”).

 

United States v. Tipton, 90 F.3d 861 (4^th Cir. 1996) (holding the Sixth’s Amendment’s guarantee of an impartial jury is violated by exclusion of prospective juror simply because he expresses some reservations about imposing the death penalty in any case);

 

Gall v. Parker, 231 F.3d 265, (6^th Cir. 2000)(holding exclusion of venireman who was uncertain about his views on death penalty was reversible error, warranting federal habeas relief, in capital murder case, inasmuch as venireman’s discomfort with death penalty did not appear to prevent or substantially impair performance of his duties as juror in accordance with instructions and oath);

 

Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir. 1986);

 

Moore v. Estelle, 670 F.2d 56 (5th Cir.), cert. denied, 458 US 111 (1982).

 

The test of whether a prospective juror may be excluded is whether the juror demonstrates that his or her beliefs “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath”. Wainwright v. Witt,

 

469 US 412, 420, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). On appeal a court must look at the entire voir dire to examine if an exclusion was made based on the proper standard. Darden v. Wainwright, 477 US 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986);

 

See also    Milton v. McCotter, 765 F.2d 434 (5th Cir. 1985);

 

Adams   v. Texas, 448 US 38, 100 S.Ct. 2521, 65 L.Ed.2d 581(1980)  (holding  exclusion  on  grounds  broader  than Witherspoon is improper);