Ruling benefits attorneys eyeing death penalty

By Linda Greenhouse - New York Times

WASHINGTON -- The Supreme Court on Monday strengthened the hand of prosecutors in death penalty cases by making it easier to remove potential jurors who express ambivalence about the death penalty or confusion about how it should be applied.

The 5-4 decision instructed federal judges, in particular, to defer to the ruling of a state court trial judge who concludes that a potential juror should be disqualified as unable to give appropriate consideration to imposing the death penalty. "It is the trial court's ruling that counts," Justice Anthony M. Kennedy wrote for the majority.

The decision overturned a ruling by a conservative icon among federal appellate judges, Judge Alex Kozinski, of the 9th U.S. Circuit Court of Appeals. Kozinski's majority opinion last June granted a writ of habeas corpus and ordered a new sentencing hearing for the defendant, Cal C. Brown.

Kozinski said the trial judge, in a Washington state court, had improperly granted the prosecutor's request to dismiss a juror who, while expressing some qualms about the death penalty, also said he would be willing to impose it in an "appropriate" case.

Writing for the four dissenters on Monday, Justice John Paul Stevens said the majority had erased an important distinction the Supreme Court had long drawn between "mere opposition to the death penalty" and "an inability to perform the legally required duties of a juror." Stevens said the court's precedents made it clear that no matter what a juror's personal opinion about capital punishment, the juror should not be dismissed in the absence of evidence of unwillingness or inability to follow the law.

The process of questioning potential jurors in a death penalty case, and weeding out those who hold such strong feelings for or against capital punishment that they would be unable to apply the law, is known as "death qualifying" a jury. It is an exacting process that in this case took 11 days, and it is governed by a series of Supreme Court decisions going back to 1968, before the modern era in capital punishment. The concern in those cases has been that if the prosecution had too free a hand in eliminating those with doubts about the death penalty, the jury would be stacked against the defendant.

Kennedy's majority opinion acknowledged that history. "Capital defendants have the right to be sentenced by an impartial jury," he said, adding that "the state may not infringe this right" by eliminating "those whose scruples against the death penalty would not substantially impair the performance of their duties."

The dispute on the court in this case, Uttecht v. Brown, No. 06-413, was therefore not over the basic principle but rather how to apply it, especially in the context of habeas corpus, in which Congress has already circumscribed the authority of federal judges to review state criminal convictions.Special deference is required in the death qualification context, Kennedy said, because the trial judge "is in a superior position to determine the demeanor and qualifications of a potential juror."