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Court Hears Arguments About Jury Selection in Capital Punishment Cases

January 13, 1986

WASHINGTON (AP) _ With the fate of death row inmates at stake, the Supreme Court was urged Monday to rule that excluding all death penalty opponents from juries in capital cases stacks the deck against defendants.

Samuel R. Gross of Stanford, Calif., representing an Arkansas man, said systematic exclusion of capital punishment foes violates defendants’ rights by producing a jury more likely to convict than to acquit.

″There is no serious question about the facts,″ Gross said. ″The exclusion produces less deliberative, less impartial juries.″

Gross is representing Ardia McCree, sentenced to life in prison without parole for the killing of Evelyn Boughton, 54, a Camden, Ark., gift shop operator, during a 1978 robbery.

″The jury he seeks is an ordinary jury in 99 percent of the criminals cases,″ when capital punishment is not an issue, Gross said.

McCree’s conviction was thrown out a year ago by a 5-4 ruling of the 8th U.S. Circuit Court of Appeals. The appellate court said that excluding death penalty opponents violates the defendant’s constitutional right to be tried by a true cross-section of the community and by an impartial jury.

The appeals court ordered a new trial for McCree, and Arkansas officials appealed to the Supreme Court.

The Supreme Court’s ruling in the case, expected by July, may affect most of the more than 1,600 death row inmates nationwide, said Attorney General John Steven Clark of Arkansas.

Clark said there may be as many as 5,000 additional convicted criminals - who did not receive the death penalty in capital cases - who would have to be retried if the Supreme Court rules for McCree.

McCree could have been sentenced to death, but was given life instead.

Clark said there was no evidence any jurors were biased against McCree.

He said the Supreme Court should retain the system now used nationwide in which the same jury that determines guilt or innocence in capital cases later decides whether to impose the death penalty.

Such juries ″act as a safeguard protecting the defendant against the criminal justice system,″ he said.

Justice John Paul Stevens asked whether it would be constitutional, for example, to ″have an all-Republican jury″ even if no jurors were proven to be biased.

Gross agreed that would not be permissible.

Of the 37 states with capital punishment, 33 - including Arkansas - permit the automatic exclusion of death penalty opponents.

If the Supreme Court upholds the 8th Circuit court ruling, it could mean the states will have to empanel separate juries in capital cases.

The first jury would determine guilt or innocence and could include death penalty opponents. If the defendant were convicted, a second jury could be picked - with death opponents excluded - to decide punishment.

Several justices raised the possibility Monday that an alternative would be to pick extra jurors, who have no opposition to capital punishment. They would not vote on the guilt or innocence of the defendant, but then would replace the death penalty opponents in deciding on punishment.

Since the high court announced Oct. 7 that it would review the McCree case, the pace of executions in the United States slowed dramatically.

Since then there have been only three executions. And only James Terry Roach, who died Friday in South Carolina’s electric chair, challenged the sentence up until the end.

Prior to Oct. 7, executions in the nation during 1985 occurred on the average of about twice a month. There have been 51 executions since the Supreme Court allowed states to reinstate the death penalty in 1976.

In 1968, the high court ruled that state prosecutors may exclude from capital case juries anyone with absolute scruples against the death penalty but may not bar those with only general reservations about capital punishment.

The ruling left unanswered whether such ″death-qualified″ juries - those from which absolute opponents to capital punishment are excluded - are biased toward convicting defendants.

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