Texas v. Mead

Ct. Crim. App. Tex. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Justice Stevens,

respecting the denial of certiorari.

The question that Justice Rehnquist now believes merits review—the proper standard of review concerning a Witherspoon ruling—was extensively analyzed by the Court of Appeals and presented in the petition for certiorari in O’Bryan v. Estelle, 714 F. 2d 365 (CA5 1983), cert. denied sub nom. O’Bryan v. McKaskle, ante, p. 1013.1 That question is not, however, presented by the State of Texas in its certiorari petition in this case.2 *1042 Since the question Justice Rehnquist has discussed at such length “was neither presented to the [Texas] cour[t] nor presented to this Court in the petition for certiorari,” Eddings v. Oklahoma, 455 U. S. 104, 120 (1982) (Burger, C. J., joined by White, Blackmun, and Rehnquist, JJ., dissenting),3 and since Jus *1043 tice Rehnquist, by not discussing the question that is presented, apparently agrees that it does not merit review, see, e. g., United States v. Johnston, 268 U. S. 220, 227 (1925) (“We do not grant a certiorari to review evidence and discuss specific facts”); see also Torres-Valencia v. United States, 464 U. S. 44 (1983) (Rehnquist, J., dissenting), I simply note that the Court’s decision to deny the petition for a writ of certiorari in this case is demonstrably consistent with the principles which inform our exercise of certiorari jurisdiction.

Indeed, Justice Rehnquist discusses O’Bryan, post, at 1046, and n. 8. Justice BRENNAN and Justice MARSHALL dissented from the denial of cer-tiorari in O’Bryan on the basis of their continuing belief that the death penalty constitutes cruel and unusual punishment. No other Justice recorded a dissent from that denial. Moreover, had The Chief Justice, Justice Rehnquist, and Justice O’Connoe, who today find the question warranting an exercise of certiorari jurisdiction, voted to grant in that case, under our Rule of Four the question would now be before us, and hence there would presumably be no need for today’s dissenting opinion.

Of course, if the petition in this case had been granted, the parties would naturally have briefed the question that is presented and argued in Texas’ petition. Texas presumably would have had to have waited until oral argument to discover that the question Justice Rehnquist finds in this case is the one it presented.

The only question raised in the certiorari petition reads as follows:

“WHETHER THE TEXAS COURT OF CRIMINAL APPEALS CORRECTLY APPLIED WITHERSPOON V. ILLINOIS, 391 U. S. 510 (1968) AND ADAMS V. TEXAS, 4[4]8 U. S. 38 (1980), WHEN IT REVERSED A TRIAL COURT’S EXCLUSION FOR CAUSE OF ONE VENIREMAN WHO UNAMBIGUOUSLY STATED THAT HE WOULD AUTOMATE *1042 CALLY VOTE TO PRECLUDE IMPOSITION OF THE DEATH PENALTY.” Pet. for Cert. i.

More specifically, Texas contends that the defense failed to rehabilitate the venireman excused for cause after the venireman had initially expressed an unequivocal opposition to the death penalty, arguing that the “voir dire examination, as a whole, demonstrates a juror who would automatically vote against the imposition of the death penalty . . . .” Id,., at 9. Given the nature of the question presented, the petition primarily consists of a transcript of the voir dire examination of the excused venireman. In other words, Texas asks that this Court conduct a de novo review on the Witherspoon issue.

The dissent’s reasoning in attempting to suggest that the “deference” question was even decided below, much less presented in the petition, is quite difficult to follow. Justice Rehnquist finds “no support in our case law for the utter absence of deference paid to the trial court’s judgment in this case," post, at 1048, but somehow concludes that the Texas Court of Criminal Appeals apparently felt that it was required to disregard totally the trial court’s judgment on the basis of our case law, post, at 1044, n. 2, notwithstanding the fact that in Hughes v. State, 563 S. W. 2d 581, cert. denied, 440 U. S. 950 (1979), the Texas Court of Criminal Appeals explicitly stated with respect to a Witherspoon issue before it:

“We must be mindful that where we only have a cold record before us the trial judge in passing on the answers of the ‘equivocating veniremen’ has the opportunity to observe the tone of voice and demeanor of the prospective juror in determining the precise meaning intended.” 563 S. W. 2d, at 585 (dictum).

The dissent below in this case quoted this language, and argued that the majority had erred in not following Hughes in this case. App. to Pet. for Cert. A-22. In light of the fact that the only statement ever made by the Texas Court of Criminal Appeals on the “deference” question is favorable to the prosecution, it is no wonder that Texas did not present this question in its petition.

The dissenting opinion below, it should be noted, was filed regarding the court’s denial without opinion of the State’s second motion for rehearing. One perhaps could speculate on the basis of the papers we have before us that the State attempted to raise the “deference” issue in its second motion for rehearing, since the issue was discussed at the close of the dissenting opinion. Id., at A-21 to A-22. It would appear, however, from the dissenting opinion that the propriety of the arguments presented in the State’s second motion was in some doubt, and the dissent was quite prepared to reconsider the case sua sponte. Id., at A-l to A-2. There was no response to the dissent, *1043 the language in Hughes was not disapproved by the majority, and hence there are two reasonable conclusions: (1) the majority below, even after giving deference to the trial court’s ability to observe the demeanor of the venireman, nevertheless concluded that his excusal for cause was erroneous; or (2) the State had waived whatever arguments it raised in its second motion for rehearing as a matter of state practice by failing to raise them earlier. Of course, since Texas is not raising the “deference” question in its petition, it is understandable that it has not attempted to show that the question was properly raised below.