Justices Expand Jury Expulsion of Persons With Qualms on Death

In a victory for prosecutors, the Supreme Court eased the way Monday for excluding prospective trial jurors from capital cases when their doubts about the propriety of the death penalty threaten their impartiality.

In a 7-2 decision, the justices modified a 1968 ruling that had caused widespread confusion in the courts. They said that it is no longer necessary for a trial judge, before excluding such jurors, to find it was “unmistakably clear” that they would “automatically” vote against the death penalty.

Impaired Neutrality Instead, the court said in an opinion by Justice William H. Rehnquist that prospective jurors may be barred whenever their statements and behavior “prevent or substantially impair” their ability to be neutral and to follow the judge’s instructions on the law.

The decision drew a sharp dissent from Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, who warned that the court majority was encouraging the selection of juries that do not fairly represent a cross section of the community and that will be inherently biased against defendants.

The prosecution, Brennan wrote, now can “mold to its will” juries that will enhance its chances of obtaining a conviction and death sentence.

Jury selection often is difficult in a capital case, which under present law can only involve murder. Prosecutors prefer jurors without reservations about the death penalty, but defense lawyers believe such jurors may be too quick to convict and render a death sentence. Trial judges may excuse “for cause” a juror who could never vote for the death penalty, but a juror’s mere distaste for capital punishment is not sufficient for disqualification.

In 1968, in the case of Witherspoon vs. Illinois, the court said that a judge, in questioning prospective jurors about their views, could exclude only those who made it “unmistakably clear” that they would vote automatically against the death penalty. But, since then, courts across the nation frequently have disagreed on how to interpret jurors’ statements--and death sentences have often been overturned when an appellate court found that a trial judge erred in excusing jurors.

The case before the court (Wainwright vs. Witt, 83-1427) involved the Florida murder trial of Johnny Paul Witt, accused of fatally beating, suffocating, mutilating and sexually assaulting an 11-year old boy in 1973. During jury selection, a woman juror told the judge that she held “personal beliefs” against the death penalty.

“Now, would that interfere with you sitting as a juror in this case?” the judge asked.

“I am afraid it would,” she replied.

“You are afraid it would?”

“Yes, sir.”

“Would it interfere with judging the guilt or innocence of the defendant in this case?” the judge asked.

“I think so,” she said.

Death Penalty Overturned The juror was excused. But later, after Witt was convicted and sentenced to death, the U.S. 11th Circuit Court of Appeals in Atlanta upheld the conviction but overturned the death sentence, concluding that the juror should not have been removed because she had not “unequivocally stated” that she would automatically vote against death. Even a juror’s concession that his views might “color an objective determination” of the evidence is not sufficient to justify excusing the juror, the appellate court said.

Florida authorities appealed to the Supreme Court, saying that the appellate court had misinterpreted the 1968 ruling and had improperly interceded to overturn the trial judge’s finding of potential bias. Law enforcement officials in 10 states--including California--joined in support of the Florida appeal.

The justices, in reinstating Witt’s death sentence, said that the juror’s removal would be permissible under its new standard. A juror may be excluded for cause when his views on capital punishment “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,” Rehnquist wrote.

The court warned also that appeals courts should grant trial judges wide discretion in selecting jurors in capital cases. The trial judge, “who sees and hears the juror,” is in a better position to weigh the statements and demeanor of a juror than an appellate court looking only at a printed transcript of questions and answers, the justices said.

Assistance in Appeals In other actions Monday, the court:

--Ruled 7 to 2 that defendants are entitled to effective assistance of counsel when exercising their right to appeal a criminal conviction. In the landmark 1963 case of Gideon vs. Wainwright, the court held that a defendant has the right to counsel at trial; at the same time, in a less-acclaimed ruling, it gave the same right to defendants on their first appeal of a conviction.

On Monday, the court, in an opinion by Brennan, followed the lead of many states--including California--in recognizing that, under the Constitution, the right to counsel on appeal means effective counsel. “A party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all,” Brennan wrote.

In dissent, Rehnquist, joined by Chief Justice Warren E. Burger, predicted that the ruling would lead to a new wave of court-clogging appeals--with defendants who lose their first appeal bringing subsequent actions contending that they were denied effective counsel on such appeals (Evitts vs. Lucey, 83-1378).

--Agreed to review a ruling by the U.S. 9th Circuit Court of Appeals in San Francisco holding that customs agents improperly detained a person suspected of drug smuggling in an effort to examine her body wastes for evidence of contraband.

Cocaine-Filled Balloons The suspect, Rosa Elvira Montoya de Hernandez, was taken into custody at Los Angeles airport after her arrival in 1983 on a flight from Bogota, Colombia. A search by officers suspicious of her actions disclosed no evidence of drugs. But the woman refused to permit an X-ray of her stomach and digestive tract. After 24 hours, a warrant for an X-ray and a body cavity search was obtained and she was taken to a hospital, where a rectal exam showed a balloon containing cocaine. In the next four days, the suspect passed 88 balloons containing the drug.

The appeals court, in reversing her conviction for drug possession, said that the agents had lacked sufficient evidence for the initial detention of the woman at the airport and that the evidence subsequently recovered could not be used at trial (U.S. vs. Montoya de Hernandez, 84-755).