Obviously biased juror does not bar execution; Tenth defers to state court determination on issue
Eizember v. Trammell, 2015 WL 5332960 (9/15/15) (Okl.) (Published) - A divided 10th gives the go-ahead to yet another Oklahoma execution. The 10th defers to the state courts' juror-bias assessments. One juror, D.B., indicated on her written questionnaire: she believed if you take a life you should lose yours; she had no reservations about seeing someone put to death; the death penalty saves taxpayers the expense of supporting a criminal for the rest of his life; the Oklahoma death penalty is "definitely not used too often";if she were one of the parties she would not want her to be a juror because she would not hesitate to impose the death penalty. During voir dire she said: "If they're in prison for the rest of their lives without parole, why not the death penalty?" She also indicated she would probably automatically vote for death, given the choice between that and life with or without the possibility of parole. Nonetheless, the trial court found D.B. to be qualified to be a juror and the Oklahoma Court of Criminal Appeals ("OCCA") found support for that conclusion. The 10th concedes some of D.B.'s responses "do seem to suggest a bias." But the 10th notes D.B. filled out the questionnaire before she received instructions on the law and she did say some things that indicated she could be fair. For example, she suggested a willingness to consider all aggravating and mitigating circumstances, to follow the court's instructions and to keep an open mind. Still, the 10th admits, D.B.'s statements remain a "mixed bag" and maybe the trial court could have lawfully excused her for cause or the OCCA could have reversed the trial court's decision to keep her. But this doesn't add up to an unreasonable decision by the OCCA or a necessarily wrong decision by the trial court that had the benefit of observing D.B. in person. The Supreme Court has left considerable room for trial court discretion and AEDPA magnifies that discretion, the 10th says. For similar reasons, the 10th is okay with another juror, J.S., who wasn't as obviously biased as D.B. He was in favor of the death penalty except in a few appropriate cases and, if he were one of the parties, he would not want him as a juror because "If guilty, he will be on death row and eventually executed."
Judge Gorsuch, not joined by the other two, insists the OCCA applied the correct standard, i.e., whether a juror's views prevented or substantially impaired her or him from the performance of her/his duties. The OCCA expressed that standard, but also said things indicating it thought the standard was whether the juror would automatically vote for death. But, given the presumption that state courts know the law, the judge finds the OCCA applied the right standard. The majority finds Mr. Eizember had not claimed the OCCA used the wrong standard, thus forfeiting the argument. The 10th also says, even if the OCCA did use the wrong standard and so AEDPA deference doesn't apply, affording significant deference to the trial court, which is also presumed to know the law, still requires denial of habeas relief.
In other issues, the 10th rejects Mr. Eizember's contention that the jury was confused about how long he would have to serve in prison before being eligible for parole if he got life with the possibility of parole. AEDPA precludes relief, the 10th holds, because Simmons only requires a correct explanation of the meaning of life without the possibility of parole, which happened here. AEDPA precludes extending Supreme Court cases beyond their holdings. The 10th also rejects Mr. Eizember's argument that a concededly-wrong, "depraved mind" murder instruction deprived him of his right under Beck v. Alabama to afford the jury a lesser-included offense option. There was such an option for felony murder, the 10th observes, and that is enough to satisfy Beck. It doesn't require the best option for the defendant, just any option that fits the circumstances, which felony murder did [where Mr. Eizember beat the victim with a gun during the course of a burglary, but contended he did not intend to kill him]. And, besides, a correct depraved mind murder verdict was not a real option under state law since the jury found beyond a reasonable doubt that Mr. Eizember intentionally killed the victim.
Judge McHugh concurs in the result. She explains that she agrees with the dissent that the OCCA applied the wrong standard. But she agrees with Judge Gorsuch that Mr. Eizember forfeited the wrong-standard argument and that the significant deference to the trial court requires denial of relief.
Judge Briscoe dissents from the juror-bias ruling. She thinks Mr. Eizember did raise the wrong standard issue sufficiently. She also believes the OCCA applied the wrong automatic-vote standard. In addition, she thinks the trial court also used the wrong standard based on the trial court's voir dire questions. Finally, she concludes D.B. was biased due to her strong preference for the death penalty. D.B. could not be trusted to abide by the law.
Judge Gorsuch, not joined by the other two, insists the OCCA applied the correct standard, i.e., whether a juror's views prevented or substantially impaired her or him from the performance of her/his duties. The OCCA expressed that standard, but also said things indicating it thought the standard was whether the juror would automatically vote for death. But, given the presumption that state courts know the law, the judge finds the OCCA applied the right standard. The majority finds Mr. Eizember had not claimed the OCCA used the wrong standard, thus forfeiting the argument. The 10th also says, even if the OCCA did use the wrong standard and so AEDPA deference doesn't apply, affording significant deference to the trial court, which is also presumed to know the law, still requires denial of habeas relief.
In other issues, the 10th rejects Mr. Eizember's contention that the jury was confused about how long he would have to serve in prison before being eligible for parole if he got life with the possibility of parole. AEDPA precludes relief, the 10th holds, because Simmons only requires a correct explanation of the meaning of life without the possibility of parole, which happened here. AEDPA precludes extending Supreme Court cases beyond their holdings. The 10th also rejects Mr. Eizember's argument that a concededly-wrong, "depraved mind" murder instruction deprived him of his right under Beck v. Alabama to afford the jury a lesser-included offense option. There was such an option for felony murder, the 10th observes, and that is enough to satisfy Beck. It doesn't require the best option for the defendant, just any option that fits the circumstances, which felony murder did [where Mr. Eizember beat the victim with a gun during the course of a burglary, but contended he did not intend to kill him]. And, besides, a correct depraved mind murder verdict was not a real option under state law since the jury found beyond a reasonable doubt that Mr. Eizember intentionally killed the victim.
Judge McHugh concurs in the result. She explains that she agrees with the dissent that the OCCA applied the wrong standard. But she agrees with Judge Gorsuch that Mr. Eizember forfeited the wrong-standard argument and that the significant deference to the trial court requires denial of relief.
Judge Briscoe dissents from the juror-bias ruling. She thinks Mr. Eizember did raise the wrong standard issue sufficiently. She also believes the OCCA applied the wrong automatic-vote standard. In addition, she thinks the trial court also used the wrong standard based on the trial court's voir dire questions. Finally, she concludes D.B. was biased due to her strong preference for the death penalty. D.B. could not be trusted to abide by the law.
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