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    Delma Banks, Jr. v. Texas, 464 U.S. 904 (1983)

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    Justice Marshall dissented from the denial of certiorari in the case of Delma Banks Jr. v. Texas. In his dissent, Justice Marshall makes three key points: 1) He believes the death penalty is unconstitutional in all circumstances. 2) He argues that the trial court improperly excluded potential jurors who were not unambiguously opposed to the death penalty as required by Supreme Court precedent. 3) Excerpts from the trial transcript show that at least one excluded juror expressed a willingness to consider the facts of the case impartially and follow the judge's instructions, so their exclusion violated the defendant's rights.

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    Delma Banks, Jr. v. Texas, 464 U.S. 904 (1983)

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    Justice Marshall dissented from the denial of certiorari in the case of Delma Banks Jr. v. Texas. In his dissent, Justice Marshall makes three key points: 1) He believes the death penalty is unconstitutional in all circumstances. 2) He argues that the trial court improperly excluded potential jurors who were not unambiguously opposed to the death penalty as required by Supreme Court precedent. 3) Excerpts from the trial transcript show that at least one excluded juror expressed a willingness to consider the facts of the case impartially and follow the judge's instructions, so their exclusion violated the defendant's rights.

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    Filed: 1983-10-11 Precedential Status: Precedential Citations: 464 U.S. 904 Docket: 82-6498

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    Justice Marshall dissented from the denial of certiorari in the case of Delma Banks Jr. v. Texas. In his dissent, Justice Marshall makes three key points: 1) He believes the death penalty is unconstitutional in all circumstances. 2) He argues that the trial court improperly excluded potential jurors who were not unambiguously opposed to the death penalty as required by Supreme Court precedent. 3) Excerpts from the trial transcript show that at least one excluded juror expressed a willingness to consider the facts of the case impartially and follow the judge's instructions, so their exclusion violated the defendant's rights.

    Copyright:

    Public Domain
    Download as COURT, PDF, TXT or read online from Scribd
    Download as court, pdf, or txt
    71 views4 pages

    Delma Banks, Jr. v. Texas, 464 U.S. 904 (1983)

    Uploaded by

    Scribd Government Docs
    Justice Marshall dissented from the denial of certiorari in the case of Delma Banks Jr. v. Texas. In his dissent, Justice Marshall makes three key points: 1) He believes the death penalty is unconstitutional in all circumstances. 2) He argues that the trial court improperly excluded potential jurors who were not unambiguously opposed to the death penalty as required by Supreme Court precedent. 3) Excerpts from the trial transcript show that at least one excluded juror expressed a willingness to consider the facts of the case impartially and follow the judge's instructions, so their exclusion violated the defendant's rights.

    Copyright:

    Public Domain
    Download as COURT, PDF, TXT or read online from Scribd
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    of 4

    464 U.S.

    904
    104 S.Ct. 259
    78 L.Ed.2d 244

    Delma BANKS, Jr.


    v.
    TEXAS
    No. 82-6498

    Supreme Court of the United States


    October 11, 1983

    On petition for writ of certiorari to the Court of Criminal Appeals of


    Texas.
    The petition for writ of certiorari is denied.
    Justice BRENNAN, dissenting.
    Adhering to my view that the death penalty is in all circumstances cruel
    and unusual punishment prohibited by the Eighth and Fourteenth
    Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950,
    49 L.Ed.2d 859 (1976), I would vacate the death sentence in this case.
    Justice MARSHALL, dissenting from denial of certiorari.

    Adhering to my view that the death penalty is under all circumstances cruel and
    unusual punishment forbidden by the Eighth and Fourteenth Amendments, I
    would vacate the judgment of the Texas Court of Criminal Appeals insofar as it
    left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428
    U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (MARSHALL, J.,
    dissenting). However, even if I believed that the death penalty could be
    imposed under certain circumstances, I would grant certiorari and vacate the
    death sentence imposed here because the holding below is inconsistent with
    this Court's decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
    L.Ed.2d 776 (1968).

    In Witherspoon v. Illinois, this Court held that in a case in which the state seeks

    In Witherspoon v. Illinois, this Court held that in a case in which the state seeks
    the death penalty, members of the venire cannot be excluded for cause simply
    because they voice general objections to the death penalty or express moral or
    religious scruples against its infliction. The only members of the venire who
    can properly be excluded for cause based upon their attitude toward the death
    penalty are those who make "unmistakably clear (1) that they would
    automatically vote against the imposition of capital punishment without regard
    to any evidence that might be developed at the trial of the case before them, or
    (2) that their attitude toward the death penalty would prevent them from
    making an impartial decision as to the defendant's guilt." Id., at 522, n. 21, 88
    S.Ct., at 1777 n. 21 (emphasis in original). This Court has noted that the logic
    of Witherspoon would invalidate the exclusion for cause of members of a
    venire who indicate that there are some kinds of cases in which they would
    refuse to recommend capital punishment. Ibid. This Court has also noted that
    the logic of Witherspoon would invalidate the exclusion for cause of
    prospective jurors in the penalty phase of a capital trial simply because such
    jurors aver frankly that while they will honestly find facts and answer
    interrogatories based on their findings, the prospect of the death penalty may
    affect their honest judgment of the facts or what they may deem to be a
    reasonable doubt. Adams v. Texas, 448 U.S. 38, 50, 100 S.Ct. 2521, 2529, 65
    L.Ed.2d 581 (1979).

    At petitioner's trial, the judge excluded several members of the venire on the
    ground that their opposition to the death penalty was so irrevocable, automatic
    and unbending that they could properly be excused under the Witherspoon
    standard. The record indicates, however, that the trial court and the Texas Court
    of Criminal Appeals which affirmed the trial court's imposition of the death
    penalty committed clear error in the application of the Witherspoon standard.

    The Texas Court of Criminal Appeals justified the exclusion of one prospective
    juror by reference to a single exchange between this juror and the prosecuting
    attorney:

    "Q. Is this feeling on your part so firm that you would automatically vote
    against the death penalty, regardless of what the facts of the case might be?

    "A. Yes, sir." Banks v. State, 643 S.W.2d 129, 133 (Tex.Crim.App.1982).

    This one exchange, however, is part of a complicated colloquy the ambiguous


    character of which is hidden by the Texas court's selective quotation. Certain
    responses of the potential juror in question indicate that she was apprehensive
    about the prospect of serving on a jury in a capital case and was, in general,

    strongly opposed to capital punishment. Other responses indicate, however, that


    this juror was not so unalterably opposed to the death penalty that she would
    either automatically vote against the imposition of capital punishment without
    regard to the evidence developed at trial or allow her general attitude toward
    the death penalty to prevent her from making an impartial decision as to the
    defendant's guilt.* For example, the excluded member of the venire stated the
    following in a colloquy with the petitioner's attorney:
    8

    "Q. [L]et me ask you if selected as a juror, would you follow the court's
    instructions and answer the questions from the evidence that you heard?

    "A. I sure would, to the best of my ability.

    10

    "Q. All right, and then you would let the law take its course. Then the Judge
    and his job come into play after you answer questions. Would you do that.

    11

    "A. Right; I sure would.

    12

    "Q. All right, and regardless of the death penalty or life sentence, you would
    answeryou would follow the Judge's instructions to you, would you not?

    13

    "A. Well, I would feel like I had to, you know.

    14

    "Q. All right, and you would answer any questions asked of you from the
    evidence that you heard in this trial. Would you do that?

    15

    "A. Yes, sir.

    16

    "Q. I submit, Your Honor, she is qualified." Pet. for Cert., exhibit B, at 498499.

    17

    Indeed, the question and answer sequence immediately prior to this potential
    juror's exclusion by the trial judge shows that she expressed a positive
    conviction that she was willing to set aside her personal antipathy toward
    capital punishment and find facts solely on the basis of evidence presented at
    trial.

    18

    "Q. Mrs. Rogers, being a conscien[t]ious citizen of our county, you would, if
    chosen as a juror in this case or any case follow the Judge's instructions, and
    you would answer any questions that the Judge gives you from the evidence

    that you heard in the courtroom, wouldn't you?


    19

    "A. I certainly would." Id., at 507.

    20

    These statements clearly indicate that the trial court plainly erred in excluding
    this potential juror. If a member of the venire is mistakenly exluded, any
    subsequently imposed death sentence cannot be allowed to stand. See, e.g.,
    Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) (per
    curiam ). This Court should review this case in order to enforce the standards
    established by Witherspoon and Adams. I therefore dissent from the denial of
    certiorari.

    Under Texas law, upon a finding that a defendant is guilty of a capital offense,
    the court conducts a separate sentencing procedure to determine whether the
    defendant shall be sentenced to death or to life imprisonment. At this
    proceeding, the state and the defendant are permitted to present evidence in
    support of arguments for and against a sentence of death. At the conclusion of
    these presentations, the court submits to the jury three questions: (1) whether
    the conduct of the defendant that caused the death of the deceased was
    committed deliberately and with the reasonable expectation that the death of the
    deceased or another would result; (2) whether there is a probability that the
    defendant would commit criminal acts of violence that would constitute a
    continuing threat to society; and (3) if raised by the evidence, whether the
    conduct of the defendant in killing the deceased was unreasonable in response
    to the provocation, if any, by the deceased. If the jury finds that the state has
    proved beyond a reasonable doubt that the answer to each of the three questions
    is yes, the court imposes the death sentence. If the jury finds that the answer to
    any question is no, the court imposes a sentence of life imprisonment. See
    Tex.Code Crim.Proc.Ann., Art. 37.071 (Vernon 1981 and Supp.1982).

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