- The Washington Times - Monday, June 4, 2007


The Supreme Court reinstated the death sentence yesterday of a man convicted of carjacking, rape and murder who initially won a reprieve by arguing that a potential juror was wrongly excluded from his trial.

The court, in a 5-4 decision, said that the Washington state judge who presided over the trial of Cal Coburn Brown properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty.

The juror in question was challenged by prosecutors because he indicated he would impose the death penalty only if the defendant were in the position to kill again. Jurors’ options were limited: They could sentence Brown to death or life in prison with no parole.

Defense lawyers did not object at trial. When the issue was raised on appeal, Washington state courts and a federal judge affirmed the conviction.

But the 9th U.S. Circuit Court of Appeals said the juror should not have been excused because he said he would consider the death penalty in an appropriate case.

Justice Anthony M. Kennedy, the deciding vote in every death case the court has heard this session, said the appeals court should have deferred to the trial judge.

“But where, as here, there is lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful [examination], the trial court has broad discretion,” Justice Kennedy wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas joined the opinion.

Justice John Paul Stevens, reading a strong dissent from the bench, said the court wiped away earlier decisions that allow death-penalty opponents to sit on juries in capital cases, provided they demonstrate they can set aside their beliefs and follow the law.

Justice Stevens noted that in this case, “the juror struck for cause was not even an opponent of the death penalty.” Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter also dissented.

Brown carjacked Holly Washa, 21, and drove her to a hotel near Seattle-Tacoma International Airport. He held her at the motel before leaving her to die.

Brown turned himself in after he raped and tried to kill another woman in Palm Springs, Calif. He admitted to both crimes. In 1993, a King County jury convicted him and sentenced him to die.

A three-judge appeals court panel set aside the death sentence in December 2005.

In a separate death-penalty case, the high court without comment declined the appeal of a Kentucky man who was represented by a lawyer and convicted by jurors who didn’t know his real name.

A federal judge decided Jeffrey Devan Leonard’s lawyer was so bad that she granted him a new sentencing hearing. A panel of appeals court judges reversed that ruling, saying the lawyer’s performance was “deficient,” but not so bad it unfairly affected the jury’s decision or violated the Constitution.

The full 6th U.S. Circuit Court of Appeals voted 7-7 against rehearing the case. It takes a majority of the court to rehear a case.

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