Mark Milton Moore v. W. J. Estelle, Jr.

670 F.2d 56, 1982 U.S. App. LEXIS 21050

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 12, 1982
• Docket: 81-1241
• Status: Published

Opinions

GEE, Circuit Judge:

Again, as we did in Burns v. Estelle,1 we confront a hideous and unprovoked murder; again, as in Burns, Witherspoon v. Illinois2 and its progeny are in play; and again, as in Burns, we are forced to hold invalid a capital sentence which, given the limits of our merely human understanding, this brutal shotgun slaying of a helpless victim seems clearly to merit.

In response to Moore’s habeas petition, the trial court held that three jurors were erroneously excluded under the Wither-spoon tests. We need go no further than to examine the testimony of Katherine C. Kearby, one of these three, to conclude that at least one was wrongly excluded. As the court below correctly found, Ms. Kearby did not wish to serve in such a case. She maintained, however, that while she was reluctant to be a part of the proceeding and her feelings would “affect” her deliberations, still she “would answer the questions truthfully but I don’t know that I would ever feel good about it.” Near the end of her lengthy questioning, she summed up her position as “[i]f you make me do it, I’ll do it right.” Her exclusion was improper. Burns v. Estelle, supra.

The state argues, however, that the exclusions, if improper, should be viewed as harmless error, since the state went to trial with unexercised peremptory challenges sufficient to have covered any improperly excused jurors. That these would have been used had the jurors in question not been excluded for cause was attested to the court below by affidavit of the attorney who had prosecuted Moore’s case some seven years earlier.

Tempted as we are to embrace the state’s contentions, we find ourselves unable to do so. In the first place, the Supreme Court has clearly held, in a case where the state arguably retained a peremptory challenge, that the exclusion of even one venireman on grounds broader than those of Witherspoon precludes the imposition of the death penalty. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). And though the Court’s reasoning escapes us,³ its holding, referred to by Justice Rehnquist in dissent as a per se rule, is clear and must be followed. In the second, and without in the least calling in question the sincerity of the former prosecutor’s affidavit assertions, we cannot countenance what amounts to an attempt to exercise — retroactively and by affidavit in defense of a collateral attack— peremptory challenges reserved at the time. The Court of Criminal Appeals of Texas has expressly rejected the state’s attempt to exercise leftover peremptions on direct appeal. Grijalva v. State, 614 S.W.2d 420, 424-5 (Tex.Crim.App.1980) (en banc). It would be anomalous for us to countenance it in this far more attenuated situation; indeed, considerations of fundamental fairness might be implicated. What would have happened is seldom a subject of satisfactory proof; and we conclude that if in a capital case Texas is in doubt as to whether the trial court has properly excused a juror for cause, the time to balance adding a peremptory challenge to that juror against the unknown exigencies that may arise from the serial file of veniremen yet to be questioned has likely arrived.

AFFIRMED.

1 . 592 F.2d 1297 (5th Cir. 1979), adhered to en banc, 626 F.2d 396 (5th Cir. 1980).

2 . 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

3 . That supplied by Judge Goldberg’s eloquent special concurrence goes far, however, to supply this.