Gray v. Mississippi

481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622, 1987 U.S. LEXIS 2057, 55 U.S.L.W. 4638

• Court: Supreme Court of the United States
• Decided: May 18, 1987
• Docket: 85-5454
• Status: Published

Opinions

Justice Blackmun

announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B-1, and IV, and an opinion with respect to Part III-B-2, in which Justice Brennan, Justice Marshall, and Justice Stevens join.

More than 10 years ago, in Davis v. Georgia, 429 U. S. 122 (1976) (per curiam), this Court on certiorari summarily reversed a judgment of a state court and ruled that when a trial court misapplies Witherspoon v. Illinois, 391 U. S. 510 (1968), and excludes from a capital jury a prospective juror who in fact is qualified to serve, a death sentence imposed by the jury cannot stand.¹ This case presents the question whether the Court now should abandon that ruling and, instead, subject an impermissible exclusion to harmless-error review.

I

In June 1982, petitioner David Randolph Gray was indicted in Harrison County, Miss., on a capital charge for the stabbing death of Ronald Wojcik while engaged in the commission of the felony of kidnaping.² The trial judge began the jury selection process by assembling the entire venire in the courtroom. He then formed an initial panel for voir dire by calling 12 persons to the jury box. Tr. 193-194. After preliminary questioning by the court regarding prior knowledge of the case and of the parties involved, the prosecutor commenced his examination of the panel. After a member was removed for cause or by the prosecutor’s use of a peremptory challenge, another venire member was called to the box for questioning by the prosecutor. When the prosecutor reached the point where he acknowledged that he would accept the full panel as it stood, the voir dire shifted to the defense and petitioner’s attorney followed the same procedure. The questioning continued in this alternating fashion, with each side examining those venire members who had been called to the box since its last opportunity to inquire, until the final panel was selected.

The panel members were questioned individually for the most part, but this took place in the presence of the others in the box as well as in the presence of all prospective jurors in the courtroom waiting to be called. As a result, venire members were able to learn the consequences of different responses. In particular, they learned what response would likely result in their being excluded from the jury. This knowledge caused difficulty during the prosecutor’s questioning. He asked each panel member whether he or she had any conscientious scruples against capital punishment and whether he or she could vote to impose a death sentence. Whenever a prospective juror revealed any such scruples or expressed any degree of uncertainty in the ability to cast such a vote, the prosecutor moved to have the panel member excused for cause. In one instance the court granted that motion. Id., at 368. In eight instances, however, the court denied the motion. The prosecutor then used peremptory challenges to remove those eight panel members. App. 3, 5, 6, 9, 12, 13, 15, 16.³ After his denials of these for-cause motions, the judge observed that venire members perhaps were not being forthright in their responses to the prosecutor. He criticized them for expressing insincere hesitation about the death penalty in order to be excluded from the jury. He admonished them: “Now I don’t want nobody telling me that, just to get off the jury. Now, that’s not being fair with me.” Id., at 16.⁴

By the time venire member Mrs. H. C. Bounds was called to the jury box, the prosecutor had exercised all 12 of the State’s peremptory challenges, see Miss. Code Ann. § 99-17-3 (1972), 4 of which apparently were exercised for reasons unrelated to the panel members’ responses to Wit-herspoon questions. See Tr. 301-802, 381, 390-391. Although the voir dire of member Bounds was somewhat confused, she ultimately stated that she could consider the death penalty in an appropriate case and the judge concluded that Bounds was capable of voting to impose it.⁵ Evidently deciding that he did not want Bounds on the jury and realizing that he had no peremptory challenge left, the prosecutor asked the court to allow the State another such challenge.⁶ App. 22. He argued that the court had erred in denying five or six of the State’s for-cause challenges and thereby had compelled the State to use its peremptory challenges against those venire members. The prosecutor asserted that, if he had another challenge, he would use it to remove Bounds. Ibid.

The judge initially observed, “Well, I think that’s right, I made you use about five of them that didn’t equivocate. Uh, I never had no idea that we’d run into this many. ” Id., at 23. After defense counsel objected to granting the State a 13th peremptory challenge, ibid., the prosecutor urged the court to reverse one of its earlier denials of his for-cause motions, which would restore a peremptory challenge to the State. The trial court responded:

“Well, I didn’t examine them myself. Of course, I admit that they were unequivocal, about five of them, that answered you that way.

“Go ask her [Bounds] if she’d vote guilty or not guilty, . . . and let’s see what she says to that.

“If she says, if she gets to equivocating on that, I’m going to let her off as a person who can’t make up her mind.” Ibid.

In response to the prosecutor’s questioning, Bounds stated that she could reach either a guilty or not guilty verdict and that she could vote to impose the death penalty if the verdict were güilty. Id., at 24. Despite these answers, the prosecutor renewed his motion that she be removed for cause. Defense counsel pointed out that Bounds’ answers to the questions did not render her excludable. He further contended that the prosecutor had not properly questioned the earlier jurors, who had not been excused for cause, to determine whether they were excludable under Witherspoon. The judge agreed that the prosecutor had not used the appropriate language and noted, “I should have questioned them on this, I guess. ...” Id., at 25.

After still further discussion, the judge excused Bounds for cause, but expressly declined to reconsider his earlier refusals to strike venire members for cause.⁷ The voir dire continued until both sides accepted 12 venire members in the box and two alternates. The trial began that afternoon and concluded three days later when the jury convicted petitioner of capital murder and sentenced him to death.

In an otherwise unanimous opinion, the Supreme Court of Mississippi divided on petitioner’s claim that his death sentence was invalid because the exclusion of Bounds violated his right to a fair and impartial jury and was inconsistent with Witherspoon’s dictates. 472 So. 2d 409 (1985). The majority stated at the outset that the jury selection problem in the case was created in part by the trial court’s failure to follow the voir dire guidelines for capital cases set forth in Armstrong v. State, 214 So. 2d 589, 593 (Miss. 1968), cert. denied, 395 U. S. 965 (1969), which were aimed at ensuring compliance with Witherspoon. 472 So. 2d, at 421. Despite this violation of state procedure, the court affirmed petitioner’s sentence as well as the judgment of conviction.

The majority explained that reluctance on the part of some venire members to serve complicated the jury selection. Ibid. The majority did not discuss in any detail the voir dire of the venire members whom the State removed by peremptory challenges. It noted, however, that the trial court had refused to excuse several jurors who had expressed conscientious scruples against the death penalty and who had stated they could not vote to inflict it. The majority offered the following explanation for the trial judge’s action:

“It is abundantly clear from the record that his reason for doing so was because he believed that the jurors were simply claiming to have conscientious scruples against the death penalty so that they could be released from jury service. Confronted by what he believed to be insincere attestations of personal moral convictions, the trial court was unwilling to dismiss those jurors for cause even though their responses clearly indicated that they could properly be so dismissed both under Witherspoon and Adams [v. Texas, 448 U. S. 38 (1980)].” Id., at 421-422 (footnote omitted).

After reviewing Bounds’ voir dire, the majority agreed with petitioner that Bounds “was clearly qualified to be seated as a juror under the Adams and [Wainwright v.] Witt, [469 U. S. 412 (1985)] criteria.” Id., at 422. It concluded, however, that petitioner was not prejudiced by the trial court’s erroneous exclusion of this juror:

“The force and effect of the trial court’s ruling was to correct an error he had committed in refusing to dismiss other jurors for cause after they had unequivocally stated that they could not vote to impose the death penalty in any circumstance. . . . That being the case the trial court was correct when it recognized the error in its prior rulings and took affirmative action to correct that error.” Id., at 422-423.

Writing in dissent and joined by two other members of the court, Justice Sullivan emphasized that, according to the record, the trial judge excused Bounds for cause (“the majority . . . contradicts the trial judge’s very words”), not on the basis of a peremptory challenge. Id., at 424. In the dissent’s view, the majority’s reasoning was invalid because, under Davis v. Georgia, courts could not treat erroneous Witherspoon dismissals as harmless error. 472 So. 2d, at 425.

We granted certiorari, 475 U. S. 1010 (1986), to consider whether to abandon the Davis ruling and whether the improper excusal of a juror for cause can be harmless.

I — I I — I

In Witherspoon, this Court held that a capital defendant’s right, under the Sixth and Fourteenth Amendments, to an impartial jury prohibited the exclusion of venire members “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U. S., at 522. It reasoned that the exclusion of venire members must be limited to those who were “irrevocably committed ... to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings,” and to those whose views would prevent them from making an impartial decision on the question of guilt. Id., at 522, n. 21. We have reexamined the Witherspoon rule on several occasions, one of them being Wainwright v. Witt, 469 U. S. 412 (1985), where we clarified the standard for determining whether prospective jurors may be excluded for cause based on their views on capital punishment. We there held that the relevant inquiry is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Id., at 424, quoting Adams v. Texas, 448 U. S. 38, 45 (1980).

There is no need to delve again into the intricacies of that standard. It is necessary, however, to keep in mind the significance of a capital defendant’s right to a fair and impartial jury under the Sixth and Fourteenth Amendments.

Justice Rehnquist, in writing for the Court, recently explained:

“It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Lockhart v. McCree, 476 U. S. 162, 176 (1986).

The State’s power to exclude for cause jurors from capital juries does not extend beyond its interest in removing those jurors who would “frustrate the State’s legitimate interest in administering constitutional capital sentencing schemes by not following their oaths.” Wainwright v. Witt, 469 U. S., at 423. To permit the exclusion for cause of other prospective jurors based on their views of the death penalty unnecessarily narrows the cross section of venire members. It “stack[s] the deck against the petitioner. To execute [such a] death sentence would deprive him of his life without due process of law.” Witherspoon v. Illinois, 391 U. S., at 523.

Every Justice of the Mississippi Supreme Court expressly stated that panel member Bounds “was clearly qualified to be seated as a juror under the Adams and Witt criteria.” 472 So. 2d, at 422 and 424. We agree. Gray’s death sentence therefore cannot stand unless this Court chooses to abandon Davis.

Ill

Although Davis was not cited in the Mississippi Supreme Court’s majority opinion in the present case, this Court in Davis surely established a per se rule requiring the vacation of a death sentence imposed by a jury from which a potential juror, who has conscientious scruples against the death penalty but who nevertheless under Witherspoon is eligible to serve, has been erroneously excluded for cause. See Davis, 429 U. S., at 123-124 (dissenting opinion). The Davis per curiam opinion served to identify the Court’s course after Witherspoon.⁸ Soon after Witherspoon was decided, the Court was presented with several situations in which state courts had exhibited their confusion as to how to apply the standard enunciated in that case.⁹ In 1971, it had summarily reversed the judgments in 23 cases imposing death sentences and had remanded the cases for further proceedings in light of Witherspoon and its progeny. See 403 U. S. 946-948. Several of the state courts in those cases had relied on harmless-error analyses similar to those Mississippi seeks to resurrect here. See nn. 14 and 16, infra.

We did not have occasion to revisit the Witherspoon issue during the period between the decision in Furman v. Georgia, 408 U. S. 238 (1972), and Branch v. Texas, decided with Furman, where Georgia and Texas death sentences were invalidated, and the decisions in Gregg v. Georgia, 428 U. S. 153 (1976), and its companion cases, where we upheld post-Furman death penalty statutes against constitutional challenge. But after Gregg, the Witherspoon issue again appeared. In fact, our first post -Gregg opinion in a capital case was Davis, which served to inform lower courts that we would continue to treat Witherspoon violations as reversible constitutional error in the post-Gregg era. 429 U. S., at 123. The instant case presents yet another opportunity for this Court to adopt a harmless-error analysis and once again we decline to do so.

The efforts to apply a harmless-error determination to Witherspoon violations have suggested two analyses. See Krauss, The Witherspoon Doctrine at Witt’s End: Death-Qualification Reexamined, 24 Am. Crim. L. Rev. 1, 32, n. Ill (1987). The first is to consider the state’s retention of unexercised peremptory challenges at the end of jury selection as an indication that the erroneous for-cause exclusion was harmless. This approach relies on a representation by the state that it would have removed the venire member by peremptory challenge if the court had denied its for-cause motion. The second is to treat the' erroneous exclusion as an isolated incident without prejudicial effect if it cannot be said that the ultimate panel did not fairly represent the community anyway. The Mississippi Supreme Court appears to have relied on a variation of the first analysis; respondent urges the Court to adopt the second.¹⁰ We find each unpersuasive.

A

The seeming ambiguity of the Mississippi Supreme Court’s opinion complicates somewhat our examination of its harmless-error analysis. The opinion is susceptible to three possible interpretations. The first is that, in the court’s view, the trial judge recognized that he had erred earlier in failing to dismiss one of the jurors for cause and therefore restored to the State a peremptory challenge that the prosecutor then exercised to remove Bounds. The second is that the court could be seen as concluding that the trial court itself offset its earlier error in denying a valid for-cause Witherspoon motion by granting an invalid for-cause Witherspoon motion as to Bounds. The third is that the court could be seen to have decided that the trial judge restored a peremptory challenge to the State, by determining that he had erred previously in denying one of the prosecutor’s Witherspoon motions, but still removed Bounds for cause. Under this interpretation, the court would have reasoned that, although the trial judge erred in removing Bounds for cause, the error was harmless because the State had an unexercised peremptory challenge that the prosecutor would have used to remove Bounds if the trial judge had refused to remove her for cause.

We disagree with the judgment if and to the extent it rests on the first interpretation because that reasoning is wholly unsupported by the record. The trial judge was explicit in his explanation that Bounds was removed for cause. See n. 7, supra. It is by no means clear that, in his view, he erred in denying the prosecutor’s Witherspoon motions. Whether he actually erred in his earlier denials simply cannot be discerned from the record. Although the trial judge acknowledged that some of the venire members had responded to the prosecutor’s questioning in language at least suggesting that they would be excludable under Witherspoon, the judge agreed with defense counsel that the prosecutor had not properly questioned the earlier venire members. App. 25. In order to avoid errors based on this type of failure to establish an adequate foundation for juror exclusion, Mississippi law, contrary to the implications in the dissent, requires the trial judge himself to question the venire members.¹¹ The trial judge in this case, however, did not comply with the Mississippi procedure. Had he done so, despite their initial responses, the venire members might have clarified their positions upon further questioning and revealed that their concerns about the death penalty were weaker than they originally stated. It might have become clear that they could set aside their scruples and serve as jurors. The inadequate questioning regarding the venire members’ views in effect precludes an appellate court from determining whether the trial judge erred in refusing to remove them for cause.¹²

We also disagree with the judgment of the Mississippi Supreme Court if and to the extent that it might be seen to approve a trial court’s remedying an erroneous denial of a Witherspoon motion by granting an invalid Witherspoon motion. Our reasons are embraced by that well-worn adage that “two wrongs do not make a right.” Although we prefer that a trial court remedy its own mistakes if possible, we cannot condone the “correction” of one error by the commitment of another.

Moreover, the fact that the State may have been deprived improperly of peremptory challenges does not render the Witherspoon error any less a violation of petitioner’s constitutional rights guaranteed by the Sixth and Fourteenth Amendments. Peremptory challenges are not of constitutional origin. See Batson v. Kentucky, 476 U. S. 79, 91 (1986); Swain v. Alabama, 380 U. S. 202, 219 (1965); Stilson v. United States, 250 U. S. 583, 586 (1919). In a situation such as this where a constitutional right comes into conflict with a statutory right, the former prevails.¹³

Finally, we disagree with the Mississippi Supreme Court’s judgment if and to the extent it holds that a Witherspoon violation constitutes harmless error when the prosecutor has an unexercised peremptory challenge that he states he would have used to excuse the juror. At least two of this Court’s 1971 summary reversals stand as prior rejections of this “unexercised peremptories” argument.¹⁴

A fresh examination of this argument also leads us to conclude that it must be rejected.¹⁵ The unexercised peremptory argument assumes that the crucial question in the harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court’s erroneous ruling. Rather, the relevant inquiry is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error” (emphasis in original). Moore v. Estelle, 670 F. 2d 56, 58 (CA5) (specially concurring opinion), cert. denied, 458 U. S. 1111 (1982). Due to the nature of trial counsel’s on-the-spot decisionmaking during jury selection, the number of peremptory challenges remaining for counsel’s use clearly affects his exercise of those challenges. A prosecutor with fewer peremptory challenges in hand may be willing to accept certain jurors whom he would not accept given a larger reserve of peremptories. Even if one is to believe the prosecutor’s statement that if his motion to remove Bounds for cause had been denied and he had had a peremptory remaining, he would have used it to remove her, we cannot know whether in fact he would have had this peremptory challenge left to use. That is, if the court had granted one or more of his earlier motions to remove for cause, the prosecutor may have used his peremptory challenges on other jurors whom he did not strike when he had fewer peremptory challenges to exercise. The nature of the jury selection process defies any attempt to establish that an erroneous Witherspoon-Witt exclusion of a juror is harmless.

The practical result of adoption of this unexercised peremptory argument would be to insulate jury selection error from meaningful appellate review. By simply stating during voir dire that the State is prepared to exercise a peremptory challenge if the court denies its motion for cause, a prosecutor could ensure that a reviewing court would consider any erroneous exclusion harmless. A prosecutor, as a routine matter, would likely append a statement to this effect to his motion for cause.

B

The State’s argument that the erroneous exclusion of Bounds was a single technical error that should be considered harmless because it did not have any prejudicial effect is equally unavailing. The judgment of the Supreme Court of Georgia that was reversed in Davis rested on a similar analysis. See Davis v. State, 236 Ga. 804, 225 S. E. 2d 241 (1976). In this Court’s Davis opinion, it cited three of its 1971 summary reversals which can be read as having rejected this argument.¹⁶ 429 U. S., at 123. The State nevertheless urges us to apply the constitutional harmless-error analysis formulated in Chapman v. California, 386 U. S. 18 (1967), and affirm petitioner’s death sentence.

In Davis v. State, the Georgia Supreme Court concluded that, despite the erroneous exclusion of a venire member whose scruples about the death penalty did not justify Witherspoon exclusion, Davis’ death sentence could stand. The Georgia court correctly read Witherspoon to prohibit the State from “‘entrusting] the determination of whether a man should live or die to a tribunal organized to return a verdict of death,”’ and from ‘“stacking] the deck against the petitioner.’” 236 Ga., at 809, 225 S. E. 2d, at 244, quoting Witherspoon v. Illinois, 391 U. S., at 521, 523. It focused on Witherspoon’s statement that “‘the decision whether a man deserves to live or die must be made on scales that are not deliberately tipped toward death.’ ” 236 Ga., at 809, 225 S. E. 2d, at 244, farther quoting Witherspoon, 391 U. S., at 521-522, n. 20. The Georgia court, however, then concluded: “The rationale of Witherspoon and its progeny is not violated where merely one of a qualified class or group is excluded where it is shown, as here, that others of such group were qualified to serve.” 236 Ga., at 809, 225 S. E. 2d, at 244-245. The court observed that “other veniremen who initially expressed opposition to capital punishment . . . were not excused when upon further examination it was determined they were not unalterably opposed to the death penalty under all circumstances.” Id., at 810, 225 S. E. 2d, at 245. Nevertheless, this Court reversed the judgment and held that the subsequently imposed death sentence could not stand.

We reaffirm that ruling today in a case that brings into focus one of the real-world factors that render inappropriate the application of the harmless-error analysis to such erroneous exclusions for cause. Unlike Davis in which the state court found that the erroneous exclusion of the scrupled, yet eligible, venire member was an isolated incident because the record revealed that similar jurors were not excused, the record in the instant case does not support such a finding. In fact, it suggests the opposite — that the State exercised its peremptory challenges to remove all venire members who expressed any degree of hesitation against the death penalty.¹⁷ Because courts do not generally review the prosecution’s reasons for exercising peremptory challenges,¹⁸ and because it appears that prosecutors often use peremptory challenges in this manner,¹⁹ a court cannot say with confidence that an erroneous exclusion for cause of a scrupled, yet eligible, venire member is an isolated incident in that particular case. Therefore, we cannot say that courts may treat such an error as an isolated incident having no prejudicial effect.

Because the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury, Wainwright v. Witt, 469 U. S., at 416, and because the impartiality of the adjudicator goes to the very integrity of the legal system, the Chapman harmless-error analysis cannot apply. We have recognized that “some constitutional rights [are] so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U. S., at 23. The right to an impartial adjudicator, be it judge or jury, is such a right. Id., at 23, n. 8, citing, among other cases, Tumey v. Ohio, 273 U. S. 510 (1927) (impartial judge). As was stated in Witherspoon, a capital defendant’s constitutional right not to be sentenced by a “tribunal organized to return a verdict of death” surely equates with a criminal defendant’s right not to have his culpability determined by a “tribunal ‘organized to convict.’” 391 U. S., at 521, quoting Fay v. New York, 332 U. S. 261, 294 (1947).

IV

The judgment of the Supreme Court of Mississippi, insofar as it imposes the death sentence, is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

1 Three Members of the Court dissented from the summary disposition of the Davis ease. They would have given it plenary consideration. See 429 U. S., at 123. The Court, of course, at times has said that summary action here does not have the same precedential effect as does a case decided upon full briefing and argument. See, e. g., Edelman v. Jordan, 415 U. S. 651, 671 (1974).

2 The circumstances of the repulsive crime are set forth in the opinion of the Supreme Court of Mississippi. See 472 So. 2d 409, 412 (1985). Because the legal issue presented for this Court’s review concerns the procedures followed during jury selection, we confine our recitation of facts to those relevant to that process.

3 A motion to excuse a venire member for cause of course must be supported by specified causes or reasons that demonstrate that, as a matter of law, the venire member is not qualified to serve. J. Van Dyke, Jury Selection Procedures 139-140 (1977). There is no limitation on the number of venire members who may be challenged for cause. Ibid. In contrast, States traditionally have limited the number of peremptory challenges allotted to litigants because peremptory challenges ordinarily can be exercised without articulating reasons, id., at 145-147, subject to constitutional limitations. See Batson v. Kentucky, 476 U. S. 79 (1986). A Mississippi statute provides: “In capital eases the defendant and the state shall each be allowed twelve peremptory challenges.” Miss. Code Ann. § 99-17-3 (1972).

Although the prosecutor at Gray’s trial did not refer expressly to this Court’s decision in Witherspoon v. Illinois, 391 U. S. 510 (1968), it is clear that he was attempting to convince the court that these eight prospective jurors’ scruples about the death penalty were so strong that they would not merely heighten the jurors’ sense of responsibility, but rather would prevent them from acting in accordance with their oaths, Tr. 408, and thus, under Witherspoon, render them excludable for cause.

4 Our review of the transcript of the entire voir dire reveals that this problem had become apparent to the prosecutor before the judge uttered his admonition. During his earlier questioning of another venire member, who stated that he might have conscientious scruples against capital punishment, the prosecutor interrupted and said: “Let me tell you this, let me say this to you before you answer that. ... I need to know whether you believe in that or whether you want to get off the Jury. You’d just rather not serve.” App. 13. Another venire member’s response to the prosecutor’s Witherspoon question is equally telling: “I mean, the way the Jury is going now, what I’m saying is, I would, I would vote not guilty. ... I would, you know, I would vote not guilty on the Death Penalty.” Id., at 7-8.

5 The court questioned Bounds in an effort to clarify her position:

“BY THE COURT: In other words, you do not have any conscientious scruples against the imposition of the Death Penalty, if it’s authorized by law. Is that right?

“BY MRS. BOUNDS: No.

“BY THE COURT: No. Okay.” Id., at 18.

After further questioning by the prosecutor in an attempt to demonstrate that Bounds was excludable for cause, the court again acknowledged Bounds’ eligibility to serve:

“BY THE COURT: You could vote for the Death Penalty?

“BY MRS. BOUNDS: I think I could.

“BY THE COURT: All right. She says she can vote for the Death Penalty.” Id., at 22.

6 In response to questioning from this Court during oral argument here, counsel for the State said that in some Mississippi cases, the trial judge has allowed additional peremptory challenges. He went on to say, however, that he was unaware of any state-court decision on the issue. Tr. of Oral Arg. 35-37. He noted that, on the occasions of which he was aware, when additional peremptory challenges were granted, the opposing side also received an equal number. Id., at 36.

7 The court prefaced its conclusion with the following explanation:

“I’d hate to get a conviction and get it reversed because of this one woman. She can’t make up her mind.

“Well, let the record show that the Court is of the firm opinion that there was at least five, even though I think there’s around nine challenges been used by the District Attorney for cause, either eight or nine, all right, there was eight of them that had said that they were against Capital Punishment.

“And I think there was, uh, five of those that were unequivocally opposed to it and answered, in substance, if not even stronger language than the question set forth in the Witherspoon case, uh, from the United States Supreme Court, uh, that I should, at this point, allow him to challenge this lady for cause. She is totally indecisive. I think she is totally indecisive. She says one thing one time and one thing another.

“The Court is of the opinion that it cheated the State ... by making the District Attorney use his peremptory challenges in at least five instances. And I’m going to allow it in this particular case.”

“BY MR. STEGALL [defense counsel]: Excuse her for cause?

“BY THE COURT: I’m going to excuse her.

“BY MR. STEGALL: Let me ask the Court this, is the Court of the opinion that, uh, that there has been a sufficient record. . . .

“BY THE COURT: (Interposing) I’m not going to add any to his challenges.

“BY MR. STEGALL: Okay. All right.

“BY THE COURT: I’m not going to go back and give him five more. I’m going to excuse her for cause.” App. 26 (emphasis added).

8 During the two years following Witherspoon, the Court twice reaffirmed its holding in brief opinions demonstrating its correct application. See Boulden v. Holman, 394 U. S. 478, 481-484 (1969), and Maxwell v. Bishop, 398 U. S. 262, 264-266 (1970) (per curiam).

9 Some courts already had recognized, however, the full import of the constitutional mandate expressed in Witherspoon. In Marion v. Beto, 434 F. 2d 29 (1970), cert. denied, 402 U. S. 906 (1971), the Court of Appeals for the Fifth Circuit described the split among state and lower federal courts on the effect of Witherspoon violations. 434 F. 2d, at 31-32. It concluded that the improper exclusion of even a single prospective juror from a capital jury required reversal of a death sentence for the reason that it prejudiced a defendant’s right to an impartial jury, a right of particular significance in capital cases because of the magnitude of the decision and because jury unanimity was required. Id., at 32. The Supreme Court of California refused to find an erroneous exclusion harmless even though it was suggested that the prosecutor would have used his peremptory challenges to exclude all prospective jurors opposed to the death penalty. In re Anderson, 69 Cal. 2d 613, 618-620, 447 P. 2d 117, 121-122 (1968), cert. denied sub nom. Anderson v. California, 406 U. S. 971 (1972). It noted that Witherspoon held that exclusion of all such prospective jurors did not yield an impartial jury. 69 Cal. 2d, at 620, 447 P. 2d, at 122.

10 The State has devoted a significant portion of its brief to an argument based on the deference this Court owes to findings of fact made by a trial court. Such deference is inappropriate where, as here, the trial court’s findings are dependent on an apparent misapplication of federal law, Rogers v. Richmond, 365 U. S. 534, 547 (1961), and are internally inconsistent. We rest our reasoning on the one unambiguous finding made by the trial court and affirmed on appeal — that the court was not authorized under the Witherspoon-Witt standard to exclude venire member Bounds for cause. See n. 5, supra.

11 The Mississippi Supreme Court, in the present ease, explained that, under state law in a capital case, the trial judge should ask the venire members

“ ‘if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper eases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released.’” 472 So. 2d, at 421, quoting Armstrong v. State, 214 So. 2d 589, 593 (Miss. 1968).

12 The trial judge himself belatedly realized that he should have questioned the jurors more extensively, pursuant to state law, about their views on the death penalty. App. 23, 25. Furthermore, if he had intended to correct earlier errors, one would expect that he would have identified specifically the earlier rulings he considered erroneous and restored to the prosecutor enough peremptory challenges to compensate for the errors.

13 We do not suggest that, if the trial judge believed that he had applied an erroneous standard during voir dire, there was no way to correct the error. The Mississippi Supreme Court said that a trial court “should be afforded the opportunity to correct any errors at trial by way of a motion for a new trial.” 472 So. 2d, at 423. In the situation presented by this case, the equivalent action would have been to dismiss the venire sua sponte and start afresh. The parties agreed that a new special capital venire could have been compiled in less than a month. Tr. of Oral Arg. 34-35, 46. The time period might have been even shorter in this case because the parties waived any right to have a special venire called. Tr. 52.

14 In People v. Bernette, 45 Ill. 2d 227, 258 N. E. 2d 793 (1970), for example, the Supreme Court of Illinois had considered any Witherspoon violation to be harmless error because the State had 33 of its 40 peremptory challenges remaining that it otherwise might have used against the improperly excluded jurors. Id., at 232, 258 N. E. 2d, at 796. This Court summarily reversed the Illinois Supreme Court’s judgment. 403 U. S. 947 (1971). See also Wigglesworth v. Ohio, 403 U. S. 947 (1971), rev’g 18 Ohio St. 2d 171, 181, 248 N. E. 2d 607, 614 (1969).

15 Other opinions expressly rejecting the unexercised peremptory argument are numerous. In Moore v. Estelle, 670 F. 2d 56, 57 (CA5), cert. denied, 458 U. S. 1111 (1982), the court rejected the argument because it refused to “countenance what amounts to an attempt to exercise — retroactively and by affidavit in defense of a collateral attack — peremptory challenges reserved at the time.” See also Hance v. Zant, 696 F. 2d 940, 956 (CA11), cert. denied, 463 U. S. 1210 (1983) (existence of unexercised peremptory challenges does not render harmless exclusion of prospective alternate juror in violation of Witherspoon); Blankenship v. State, 247 Ga. 590, 277 S. E. 2d 505, 280 S. E. 2d 623 (1981) (see also specially concurring opinion on motion for reconsideration, id., at 597, 280 S. E. 2d, at 624, demonstrating that unexercised peremptory harmless-error approach is inappropriate because in the jury selection process “there are too many variables which may give rise to the non-use of a peremptory challenge”); Grijalva v. State, 614 S. W. 2d 420, 424-425 (Tex. Crim. App. 1981) (rejecting argument as matter of state law because allowing retrospective exercise of peremptory challenges on appeal transforms “a peremptory strike against a prospective juror” into “a peremptory strike against a ground of error”).

16 In State v. Adams, 76 Wash. 2d 650, 458 P. 2d 558 (1969), the Supreme Court of Washington reasoned that the incorrect exclusion of one potential juror did not require reversal of the death sentence because there was not an improper systematic exclusion of venire members. Id., at 680-681, 458 P. 2d, at 576. This Court summarily reversed. 403 U. S. 947 (1971). See also Wigglesworth v. Ohio, 403 U. S. 947 (1971), rev’g 18 Ohio St. 2d 171, 248 N. E. 2d 607 (1969), and Harris v. Texas, 403 U. S. 947 (1971), rev’g 457 S. W. 2d 903 (Tex. Crim. App. 1970).

17 The prosecutor made his goal very clear at one point:

“[Wlhat I am trying to do is to find twelve people who tells (sic) me that they have no conscientious scruples against Capital Punishment when imposed by the law.” App. 16.

18 Under our recent decision in Batson v. Kentucky, 476 U. S. 79 (1986), however, a prosecutor’s use of peremptory challenges is subject to judicial review when a defendant establishes a prima facie ease of purposeful discrimination based on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.

19 See Winiek, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1 (1982); Lindsay, Prosecutorial Abuse of Peremptory Challenges in Death Penalty Litigation: Some Constitutional and Ethical Considerations, 8 Campbell L. Rev. 71 (1986).