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Hig Court To Decide if Death Penalty Foes Should Be Excluded From Juries

January 13, 1986

WASHINGTON (AP) _ The Supreme Court is examining the way juries are chosen in death penalty cases in an appeal from Arkansas that could affect many of the more than 1,600 death row inmates nationwide.

At issue is whether it is fair to exclude all death penalty opponents from juries that determine guilt or innocence in capital cases.

The high court announced Oct. 7 it would review the question, and, possibly as a result, 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 occurrred 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 the present case, the court is expected to decide by July whether excluding from capital cases all potential jurors who say they could never vote for a death sentence creates a ″conviction-prone″ jury.

In 1968, the high court ruled that state prosecutors may exclude from such 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.

The 8th U.S. Circuit Court of Appeals ruled, 5-4, a year ago that there was substantial evidence to believe such juries are prone to convict.

The appeals court said a ″death-qualified″ jury violates the defendant’s constitutional right to be tried by a true cross-section of the community. It is similar, for example, to excluding all Democrats or all Republicans, or all those who favor or opposed abortion rights, the appeals court said.

It struck down the murder conviction of Arkansas death row inmate Ardia McCree for the killing of Evelyn Boughton, 54, a Camden, Ark., gift shop operator, during a 1978 robbery.

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

Thirty-three states, including Arkansas, of the 37 that have capital punishment require ″death-qualified″ juries.

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.

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