Supreme Court: Not Unreasonable to Excuse Prospective Juror Who Was “Not Absolutely Certain” He Could Impose Death Penalty

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 [...]