481 U. S. 648
May 18, 1987
David Randolph Gray kidnapped and murdered a man by stabbing. During jury selection, the judge erroneously did not exclude five unqualified jurors, forcing the prosecutor to ultimately use all his peremptory challenges. When one potential juror, H. C. Bounds, expressed some trepidation about imposing the death penalty, the prosecutor asked for one of his peremptory challenges back so he could strike her. The judge instead removed her for cause, even though the judge had no legal authority to exclude her. After his death sentence was imposed, Gray appealed, claiming that the exclusion of Bounds rendered the jury verdict unlawful.
The Court ruled 5-4 that the exclusion of Bounds meant that Gray’s death sentence must be overturned. Blackmun said that her exclusion could not be treated as harmless error. He was unmoved by the argument that the judge should have excluded some other jurors and thus saved the prosecution some peremptory challenges, and argued that those jurors might have been found qualified had the judge questioned them further. Citing some precedent, he continued that any improper exclusion for cause, no matter what the intention, was simply not something susceptible to harmless error analysis. Finally, Blackmun suggested that it was improper for a prosecutor to use peremptory challenges on death penalty opponents anyway.
Powell concurred in all but the last argument. He thought that using peremptory challenges to exclude jurors who might obstruct a death sentence was a proper technique. Scalia, joined by Rehnquist, White, and O’Connor, dissented. He showed that at least five jurors the judge did not exclude were clearly unqualified to serve on the jury. Thus, the judge could have given a peremptory challenge back to the prosecution, and had this occurred the jury would have been identical. Since the judge’s mistake in striking Bounds did not actually change the jury’s composition, Scalia felt the error must be considered harmless.
This holding is an unadulterated abomination. It represents a sick and twisted perversion of justice. Never in all my study of law have I seen a death sentence be set aside for such a total non-issue. If this was not harmless error, then that term means nothing at all. By this ruling, five justices mocked and debased the spilled innocent blood of Gray’s victim, Ronald Wojcik. Effectively, they said that heartless murder was a lesser sin than excusing a juror from service for the wrong reason. It is only in a desperately disordered nation that more weight in the process of meting out punishments is given to the guileless error of a bumbling judge than the wickedness of a murderer.