Petition for writ of certiorari to the Supreme Court of
Georgia.
Oct. 2, 1989. Denied.
Rehearing Denied Nov. 27, 1989.
See 493 U.S. 985.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 231, 2973, 49 L. Ed. 2d 859 (1976) (MARSHALL, J.,
dissenting), I would grant the petition for certiorari and vacate
the death sentence in this case. Even if I did not take this view,
I would grant the petition to consider whether a defendant may be
prevented from questioning prospective jurors regarding their
ability to adhere to a state sentencing law that precludes jurors
from considering the likelihood of parole in their decision whether
to impose life imprisonment or death.
Page 493 U.S.
876 , 877
Both the Georgia Supreme Court and the United States Court of
Appeals for the Fifth Circuit have held that such a limit on voir
dire is constitutional. 259 Ga. 96, 101,
376 S.E.2d
851, 856 (1989); King v. Lynaugh,
850 F.2d
1055, 1060-1061 (CA5 1988). These decisions, however, cannot be
squared with minimal due process requirements permitting a
defendant to ensure that the jurors who sentence him consider only
those factors that the State has deemed relevant to their decision.
In the many States that prohibit jury consideration of parole, the
Constitution demands that the defendant be allowed to test the
jurors' ability to set that factor aside.
Jack Howard Potts was convicted of murder. During voir dire in
his sentencing proceeding, several members of the venire
volunteered the information that their decision whether to impose
the death penalty would be significantly affected by their
assessment of the likelihood of parole if they sentenced petitioner
to life in prison. Georgia law forbids jurors to consider the
possibility of parole during their deliberations. Ga.Code Ann.
17-8-76(a) (1982); Horton v. State, 249 Ga. 871, 873,
295 S.E.2d
281, 284 (1982), cert. denied, 459 U.S. 1188, 74 L. Ed. 2d 1030
(1983). Accordingly, the trial judge asked these jurors if they
could make their sentencing decision without regard to the
possibility of parole; some suggested that they could not.
Petitioner sought to question other prospective jurors about the
nature and strength of their attitudes about parole on the ground
that they, too, might be unable to set such considerations aside.
The court refused to permit the questioning.
During its subsequent deliberations, the jury requested
information about Potts' eligibility for parole if it were to
impose a life sentence. The court instructed the jury to ignore
parole in its deliberations, and the jury recommended that Potts be
sentenced to death.
A sentence of death is the most violent and final sanction the
State can inflict. Jurors who are charged with deciding whether to
impose this most serious sanction must make their decision on the
basis of law, not on prejudices that operate to the defendant's
detriment. If a court fails to permit a defendant to take all
reasonable steps to ensure impartial jury deliberations, it
undermines the legitimacy of the capital sentencing process and of
the legal system itself. By refusing to permit Potts to explore the
jurors'
Page 493 U.S.
876 , 878
prejudices with respect to parole, the court seriously
undermined his fundamental right to an unbiased jury.
It is a commonplace that a criminal defendant (and the state) is
entitled to a jury that will follow the law as embodied in the
trial judge's instructions. Thus, a juror who cannot
conscientiously follow the law as articulated by the court must be
excused. See, e.g., Witherspoon v. Illinois,
391 U.S.
510, 520, 1776 (1968) ( on State's request, court must exclude
for cause jurors who are so strongly opposed to the death penalty
that they would in no circumstances consider imposing it). But the
right to a jury that will follow the law would be nothing more than
an empty promise if the criminal defendant were forbidden to
inquire into prospective jurors' ability to abide by the court's
instructions. A "right" without any effective means of vindication
is hardly worthy of so lofty a designation.
The only means by which the defendant may vindicate his right to
a jury that will follow the law is through our system of
challenges-both peremptory and for cause. And the only means of
developing the information necessary to decide which jurors should
be challenged is voir dire. Accordingly, we have long held that,
although the conduct of voir dire is a matter committed to the
trial court's discretion, where there is substantial danger that
jurors might consider impermissible factors in reaching their
verdict, the defendant has a constitutional right to use voir dire
to inquire into the jurors' beliefs respecting those factors. Most
recently, in Turner v. Murray,
476 U.S. 28d 27 (1986), we
held that, in the sentencing phase of a capital case, a black
defendant accused of killing a white man has a constitutional right
to explore on voir dire whether prospective jurors harbor racial
prejudices. Id., at 36-37, 106 S.Ct. at, 1688-1689; accord, Ham v.
South Carolina,
409 U.S.
524, 527, 850 (1973); Aldridge v. United States,
283 U.S.
308, 315, 473 (1931). When the defendant is a member of a
racial minority, the danger that a juror might be influenced by
racial prejudice is of such significance that the defendant must be
permitted to ferret out such prejudice on voir dire.
A similar situation is presented here, where several jurors,
without prompting, suggested that they would consider parole in
their deliberations and that they would do so notwithstanding
contrary instruction by the court. It is certainly not unreasonable
to suggest that other jurors might well have subscribed to a
similar prejudice. Where the risk of prejudice is both great and
mani-
Page 493 U.S.
876 , 879
fest, it is an abuse of discretion for the trial court to
prevent the defendant from inquiring into whether the jurors harbor
such prejudice. Cf. Ham v. South Carolina, supra, 409 U.S., at
527-528- 851 (judge not required to examine jurors on voir dire to
determine whether they are prejudiced against bearded people).
The court in this case instructed the jury to ignore the
possibility of parole in deciding what sentence to impose. Without
knowing whether the jurors were able to follow such instructions,
however, we cannot be confident that the jury acted properly.
Indeed, the efficacy of those instructions is cast into grave doubt
by the indications that several prospective jurors were unable to
follow them. Thus, the trial court's rulings were blatantly
inconsistent: while acknowledging the applicability of a state law
forbidding the jury to consider the possibility that Potts might be
paroled if they did not sentence him to death, the court
nonetheless deprived Potts of the right to develop sufficient
information on voir dire to discern whether his sentencing jury
would follow that law. Because I believe that the court thereby
effectively deprived Potts of his constitutional rights, I
respectfully dissent.
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