The Supreme Court issued a per curiam opinion yesterday, reversing the Sixth Circuit in a capital case. The opinion doesn’t necessarily break new doctrinal ground but it is an interesting application of existing law, and it provides a window into an ongoing dispute between two federal appellate courts.
Background. The case is White v. Wheeler. The opinion is here. The case arose in Kentucky, where the defendant was charged with murdering two people – one a pregnant woman – by stabbing and strangulation.
Jury selection. At the beginning of the defendant’s capital trial, the parties questioned prospective jurors about their ability to consider a death sentence. One prospective juror stated that he was “contemplative on the issue of taking a life and . . . whether or not we have the right to take that life.” When a prosecutor asked whether the prospective juror was saying that he was “not absolutely certain whether [he] could realistically consider” the death penalty, the juror indicated that was accurate. However, at other times, the juror indicated that he could consider all the penalty options.
The prosecution moved to strike the juror for cause, arguing that he could not fairly consider the death penalty and so was subject to removal under Wainwright v. Witt, 469 U.S. 412 (1985) (ruling that a prospective juror may be removed for cause if his or her views about the death penalty would “prevent or substantially impair the performance of his [or her] duties as a juror”). The trial judge removed the juror.
Appeals. The defendant was convicted and sentenced to death. His conviction and death sentence were affirmed on direct appeal, in state post-conviction proceedings, and in federal district court. However, the Sixth Circuit granted relief, ruling that the trial judge had unreasonably applied the relevant law. Wheeler v. Simpson, 779 F. 3d 366 (6th Cir. 2015).
Supreme Court ruling. The Supreme Court reversed, finding that the Sixth Circuit had not been sufficiently deferential to the trial judge. Such deference, the Court stated, is due whenever a court is reviewing “a trial court’s ruling on whether to strike a particular juror,” and is doubly due on federal habeas review under the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. §2254(d)(1) (allowing habeas relief only if a state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”). In this case, the Court found, the prospective juror’s responses were ambiguous and the trial judge was entitled to resolve that ambiguity in favor of the state.
Comment. Prosecutors and defense lawyers often ask prospective jurors whether their beliefs about the death penalty would “prevent or substantially impair” them from considering a death sentence, tracking the phrasing the Supreme Court used in Witt. Wheeler shows that a juror may be removed for cause even if he or she is never asked a “prevent or substantially impair” question. In other words, that’s a standard for the judge to apply, not necessarily one that needs to be put to the juror. And if a judge determines that the standard has been met, that decision is not likely to be disturbed on appeal. I don’t think any of this is ground-breaking, but it’s a good refresher. Other cases regarding the Witt standard are discussed on pages 83 through 85 of the Capital Case Law Handbook.
The aspect of the case that has attracted the most attention is the Court’s admonition to the Sixth Circuit. The Supreme Court wrote that it “again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty,” then cited a string of recent per curiam reversals of the Sixth Circuit in capital habeas cases. For the staid world of the federal judiciary, this amounts to quite a kerfuffle. For more on the ongoing conflict between the Supreme Court and the Sixth Circuit, see this short piece at the Volokh Conspiracy and this post at Crime and Consequences.