UTTECHT, SUPERINTENDENT, WASHINGTON STATE PENITENTIARY v. BROWN

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2006
UTTECHT, SUPERINTENDENT, WASHINGTON
STATE PENITENTIARY v. BROWN
certiorari to the united states court of appeals for
the ninth circuit
No. 06–413. Argued April 17, 2007—Decided June 4, 2007
A Washington jury sentenced respondent Brown to death, and the state
appellate courts affirmed. Subsequently, the Federal District Court de
nied Brown’s habeas petition, but the Ninth Circuit reversed, finding
that under Witherspoon v. Illinois, 391 U. S. 510, and its progeny, the
state trial court had violated Brown’s Sixth and Fourteenth Amendment
rights by excusing “Juror Z” for cause on the ground that he could not
be impartial in deciding whether to impose a death sentence.
Held:
1. Courts reviewing claims of error under Witherspoon and Wain
wright v. Witt, 469 U. S. 412, especially federal habeas courts, owe defer
ence to the trial court, which is in a superior position to determine a
potential juror’s demeanor and qualifications. This Court’s precedents
establish at least four relevant principles. First, a criminal defendant
has the right to an impartial jury drawn from a venire that has not been
tilted in favor of capital punishment by selective prosecutorial chal
lenges for cause. Witherspoon, supra, at 521. Second, the State has
a strong interest in having jurors who are able to apply capital punish
ment within the framework state law prescribes. Witt, 469 U. S., at
416. Third, to balance these interests, a juror who is substantially im
paired in the ability to impose the death penalty under the state-law
1

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Syllabus
framework can be excused for cause, but if the juror is not so impaired,
removal for cause is impermissible. Id., at 424. Fourth, in determin
ing whether a potential juror’s removal would vindicate the State’s in
terest without violating the defendant’s right, the trial court bases its
judgment in part on the juror’s demeanor, a judgment owed deference
by reviewing courts. Id., at 424–434. The trial court is in a superior
position to assess demeanor, a factor critical in assessing the attitude
and qualifications of potential jurors. Id., at 428. The Antiterrorism
and Effective Death Penalty Act of 1996’s requirements provide addi
tional, and binding, directions to accord deference, creating an independ
ent, high standard to be met before a federal court may issue a habeas
writ to set aside state-court rulings. By not according the required
deference here, the Ninth Circuit failed to respect the limited role of
federal habeas relief in this area. Pp. 5–10.
2. In applying the Witherspoon-Witt rule, it is instructive to consider
the entire voir dire in Brown’s case and then turn to Juror Z’s question
ing. Pp. 10–15.
(a) Here, 11 days of voir dire were devoted to determining whether
potential jurors were death qualified. During that phase, 11 of the ju
rors the defense challenged for cause were excused. The defense ob
jected to 7 of the 12 jurors the State challenged for cause, and only 2 of
those 7 were excused. Before deciding a contested challenge, the court
allowed each side to explain its position and recall a potential juror. It
also gave careful and measured explanations for its decisions. Before
individual oral examination, the court distributed a questionnaire asking
jurors to explain their attitudes toward the death penalty and explained
that Brown was only eligible for death or life in prison without possibil
ity of release or parole. It repeated the sentencing options before Juror
Z’s group was questioned. Pp. 10–13.
(b) The transcript reveals that, despite the preceding instructions
and information, Juror Z had both serious misunderstandings about his
responsibility as a juror and an attitude toward capital punishment that
could have prevented him from returning a death sentence under the
facts of this case. He was told at least four times that Brown could not
be released from prison and stated six times that he could follow the
law. But he also gave more equivocal statements that he would con
sider the death penalty only if there was no possibility that Brown
would be released to reoffend. When the State challenged Juror Z on
the grounds that he was confused about the conditions under which
death could be imposed and seemed to believe it only appropriate when
there was a risk of release and recidivism, the defense volunteered that
it had no objection. Pp. 13–15.

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Syllabus
3. The Ninth Circuit erred in holding that both the state trial court’s
excusal of Juror Z and the State Supreme Court’s affirmance were con
trary to, or an unreasonable application of, clearly established federal
law. Pp. 15–22.
(a) Contrary to the Ninth Circuit’s conclusion, the State Supreme
Court explicitly found that Juror Z was substantially impaired. Even
absent this explicit finding, the only fair reading of the opinion is that
the state court applied the Witt standard in assessing his excusal. Re
gardless, there is no requirement in a case involving the Witherspoon-
Witt rule that a state appellate court make particular reference to each
juror’s excusal, for it is the trial court’s ruling that counts. Pp. 15–17.
(b) On this record, the trial court acted well within its discretion
in granting the State’s motion to excuse Juror Z. His answers, on their
face, could have led the trial court to believe that he would be substan
tially impaired in his ability to impose the death penalty absent the
possibility that Brown would be released and would reoffend. The trial
court, furthermore, is entitled to deference because it had an opportu
nity to observe Juror Z’s demeanor. The State’s challenge, Brown’s
waiver of an objection, and the trial court’s excusal of Juror Z support
the conclusion that the interested parties all felt that removal was ap
propriate under the Witherspoon-Witt rule. While there is no inde
pendent federal requirement that a state-court defendant object to the
prosecution’s challenge to preserve a Witherspoon claim, voluntary ac
quiescence to, or confirmation of, a juror’s removal can be taken into
account. The defense did not just deny a conscientious trial judge an
opportunity to explain his judgment or correct an error; it also deprived
reviewing courts of further factual findings to help explain the trial
court’s decision. The need to defer to the trial court’s demeanor deci
sion does not foreclose the possibility of reversal where the record
discloses no basis for a substantial impairment finding, but the record
here does not show the trial court exceeded its discretion in excusing
Juror Z. The State Supreme Court recognized the deference owed and,
contrary to the Ninth Circuit’s misreading of its opinion, identified
the correct standard required by federal law and found it satisfied.
Pp. 17–20.
(c) The Court is not persuaded by Brown’s additional arguments to
depart from the State Supreme Court’s determination of the state law
at issue or to ignore Brown’s failure to object to Juror Z’s excusal.
Pp. 20–22.
451 F. 3d 946, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Thomas, and Alito, JJ., joined. Stevens, J., filed a

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4 UTTECHT v. BROWN
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dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined,
post, p. 35. Breyer, J., filed a dissenting opinion, in which Souter, J.,
joined, post, p. 44.
John J. Samson, Assistant Attorney General of Washing
ton, argued the cause for petitioner. With him on the briefs
were Robert M. McKenna, Attorney General, Paul D. Weis
ser, Senior Counsel, and William Berggren Collins and Jay
D. Geck, Deputy Solicitors General.
Deputy Solicitor General Dreeben argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Solicitor General Clement, Assistant
Attorney General Fisher, and Sri Srinivasan.
Suzanne Lee Elliott, by appointment of the Court, 549
U. S. 1250, argued the cause for respondent. With her on
the brief was Gilbert H. Levy.*
Justice Kennedy delivered the opinion of the Court.
Respondent Cal Coburn Brown robbed, raped, tortured,
and murdered one woman in Washington. Two days later,
*A brief of amici curiae urging reversal was filed for the State of Ore
gon et al. by Hardy Myers, Attorney General of Oregon, Mary Williams,
Solicitor General, Rolf Moan, Assistant Attorney General, and Dan
Schweitzer, and by the Attorneys General for their respective States as
follows: Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of Califor
nia, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Law
rence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indi
ana, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana,
Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Kelly A.
Ayotte of New Hampshire, Gary G. King of New Mexico, Marc Dann of
Ohio, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of
Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long
of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Robert
F. McDonnell of Virginia, and Patrick J. Crank of Wyoming.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by John Holdridge, Brian W. Stull, Steven R.
Shapiro, and Larry Yackle; and for the National Association of Criminal
Defense Lawyers by Amy Howe, Kevin K. Russell, Thomas C. Goldstein,
Jeffrey L. Fisher, Pamela S. Karlan, and Susan Rozelle.

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he robbed, raped, tortured, and attempted to murder a sec
ond woman in California. Apprehended, Brown confessed
to these crimes and pleaded guilty to the California offenses,
for which he received a sentence of life imprisonment. The
State of Washington, however, sought the death penalty and
brought Brown to trial. Based on the jury’s verdicts in the
guilt and sentencing phases of the trial, Brown was sen
tenced to death. His conviction and sentence were affirmed
by the Supreme Court of the State of Washington. State v.
Brown, 132 Wash. 2d 529, 940 P. 2d 546 (1997) (en banc).
Brown filed a petition for writ of habeas corpus in the
United States District Court for the Western District of
Washington. The District Court denied the petition, App.
to Pet. for Cert. 77a–79a, 91a, but the United States Court
of Appeals for the Ninth Circuit reversed. Brown v. Lam
bert, 451 F. 3d 946 (2006). The Court of Appeals considered,
among other arguments for setting aside the capital sen
tence, the contention that under Witherspoon v. Illinois, 391
U. S. 510 (1968), and its progeny, the state trial court had
violated Brown’s Sixth and Fourteenth Amendment rights
by excusing three potential jurors—whom we refer to as Ju
rors X, Y, and Z—for cause. The State moved to excuse
these jurors due to the concern that they could not be impar
tial in deciding whether to impose a death sentence. The
Court of Appeals held it was proper to excuse Jurors X and
Y, but agreed with the defense that it was unconstitutional
to excuse Juror Z for cause. On this premise the court held
that Brown’s death sentence could not stand, requiring that
Brown receive a new sentencing trial more than a decade
after his conviction.
We granted certiorari, 549 U. S. 1162 (2007), and we re
verse the judgment of the Court of Appeals.
I
When considering the controlling precedents, Wither
spoon is not the final word, but it is a necessary starting

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point. During the voir dire that preceded William Wither
spoon’s capital trial, the prosecution succeeded in removing a
substantial number of jurors based on their general scruples
against inflicting the death penalty. The State challenged,
and the trial court excused for cause, 47 members of the 96
person venire, without significant examination of the individ
ual prospective jurors. 391 U. S., at 514–515; see also Brief
for Petitioner in Witherspoon v. Illinois, O. T. 1967, No. 1015,
p. 4. The Court held that the systematic removal of those
in the venire opposed to the death penalty had led to a jury
“uncommonly willing to condemn a man to die,” 391 U. S., at
521, and thus “woefully short of that impartiality to which
the petitioner was entitled under the Sixth and Fourteenth
Amendments,” id., at 518. Because “[a] man who opposes
the death penalty, no less than one who favors it, can make
the discretionary judgment entrusted to him by the State,”
id., at 519, the Court held that “a sentence of death cannot
be carried out if the jury that imposed or recommended it
was chosen by excluding veniremen for cause simply because
they voiced general objections to the death penalty,” id., at
522. The Court also set forth, in dicta in a footnote, a strict
standard for when an individual member of the venire may
be removed for cause on account of his or her views on the
death penalty. Id., at 522–523, n. 21.
In Wainwright v. Witt, 469 U. S. 412 (1985), the Court ex
plained that “Witherspoon is best understood in the context
of its facts.” Id., at 418. The Court noted that in Wither
spoon the trial court had excused half the venire—every
juror with conscientious objections to capital punishment.
469 U. S., at 416. Furthermore, the state sentencing scheme
under which Witherspoon’s sentence was imposed permitted
the jury “unlimited discretion in choice of sentence.” Id., at
421. When a juror is given unlimited discretion, the Court
explained, all he or she must do to follow instructions is con
sider the death penalty, even if in the end he or she would
not be able to impose it. Ibid. Rejecting the strict stand

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ard found in Witherspoon’s footnote 21, the Court recognized
that the diminished discretion now given to capital jurors
and the State’s interest in administering its capital punish
ment scheme called for a different standard. The Court re
lied on Adams v. Texas, 448 U. S. 38, 45 (1980), which pro
vided the following standard: “whether the juror’s views
would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.” Witt, 469 U. S., at 424 (internal quotation marks
omitted).
The Court in Witt instructed that, in applying this stand
ard, reviewing courts are to accord deference to the trial
court. Deference is owed regardless of whether the trial
court engages in explicit analysis regarding substantial im
pairment; even the granting of a motion to excuse for cause
constitutes an implicit finding of bias. Id., at 430. The
judgment as to “whether a venireman is biased . . . is based
upon determinations of demeanor and credibility that are pe
culiarly within a trial judge’s province. Such determina
tions [are] entitled to deference even on direct review; the
respect paid such findings in a habeas proceeding certainly
should be no less.” Id., at 428 (internal quotation marks,
footnote, and brackets omitted). And the finding may be up
held even in the absence of clear statements from the juror
that he or she is impaired because “many veniremen simply
cannot be asked enough questions to reach the point where
their bias has been made ‘unmistakably clear’; these venire
men may not know how they will react when faced with im
posing the death sentence, or may be unable to articulate, or
may wish to hide their true feelings.” Id., at 424–425.
Thus, when there is ambiguity in the prospective juror’s
statements, “the trial court, aided as it undoubtedly [is] by
its assessment of [the venireman’s] demeanor, [is] entitled to
resolve it in favor of the State.” Id., at 434.
The rule of deference was reinforced in Darden v. Wain
wright, 477 U. S. 168 (1986). There, the State had chal

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lenged a potential juror, and the defense had not objected
to his removal. Without further questioning from the trial
court, the juror was excused. Id., at 178. The petitioner
argued to this Court that the transcript of voir dire did not
show that the removed juror was substantially impaired be
cause the critical answer he had given was ambiguous. The
Court rejected this argument. “[O]ur inquiry does not end
with a mechanical recitation of a single question and an
swer.” Id., at 176. Even when “[t]he precise wording of
the question asked of [the venireman], and the answer he
gave, do not by themselves compel the conclusion that he
could not under any circumstance recommend the death pen
alty,” the need to defer to the trial court remains because so
much may turn on a potential juror’s demeanor. Id., at 178.
The absence of an objection, and the trial court’s decision not
to engage in further questioning as it had prior to excusing
other jurors, supported the conclusion that the juror was im
paired. Ibid.
In Gray v. Mississippi, 481 U. S. 648 (1987), the Court ad
dressed once more a case involving not the excusal of a single
juror but rather systematic exclusion. The State had lodged
for-cause or peremptory challenges against every juror who
“expressed any degree of uncertainty in the ability to cast
. . . a vote” for the death penalty, id., at 652, and quickly
exhausted all 12 of its peremptory challenges, id., at 653.
The prosecution then challenged a juror who had expressed
no opposition to the death penalty and had said many times
that she could return a death sentence. The trial court de
nied the challenge. Id., at 654–655. Arguing that the trial
court had erroneously denied certain earlier challenges for
cause, and thus had forced the State to waste peremptory
challenges, the prosecution sought to reopen those previous
challenges. The trial court refused to do so, but removed
the current juror, over objection from the defense. Id., at
655. On appeal all of the state judges agreed the juror could
not be excused for cause under either the Witherspoon or

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the Witt standard, but the majority held it was appropriate,
under the circumstances, to treat the challenge in question
as a peremptory strike. 481 U. S., at 656–657.
This Court reversed, holding that the juror had been re
moved for cause and that she was not substantially impaired
under the controlling Witt standard. 481 U. S., at 659. The
error was not subject to harmlessness review, and thus the
sentence could not stand. Ibid. Gray represents a rare
case, however, because in the typical situation there will be
a state-court finding of substantial impairment; in Gray, the
state courts had found the opposite, which makes that prece
dent of limited significance to the instant case.
These precedents establish at least four principles of rele
vance here. First, a criminal defendant has the right to an
impartial jury drawn from a venire that has not been tilted
in favor of capital punishment by selective prosecutorial
challenges for cause. Witherspoon, 391 U. S., at 521. Sec
ond, the State has a strong interest in having jurors who are
able to apply capital punishment within the framework state
law prescribes. Witt, 469 U. S., at 416. Third, to balance
these interests, a juror who is substantially impaired in his
or her ability to impose the death penalty under the state
law framework can be excused for cause; but if the juror is
not substantially impaired, removal for cause is impermissi
ble. Id., at 424. Fourth, in determining whether the re
moval of a potential juror would vindicate the State’s inter
est without violating the defendant’s right, the trial court
makes a judgment based in part on the demeanor of the
juror, a judgment owed deference by reviewing courts. Id.,
at 424–434.
Deference to the trial court is appropriate because it is in
a position to assess the demeanor of the venire, and of the
individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.
Id., at 428; Darden, supra, at 178. Leading treatises in the
area make much of nonverbal communication. See, e. g., V.

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Starr & M. McCormick, Jury Selection 389–523 (3d ed. 2001);
J. Frederick, Mastering Voir Dire and Jury Selection 39–56
(2d ed. 2005).
The requirements of the Antiterrorism and Effective
Death Penalty Act of 1996, 110 Stat. 1214, of course, provide
additional, and binding, directions to accord deference. The
provisions of that statute create an independent, high stand
ard to be met before a federal court may issue a writ of
habeas corpus to set aside state-court rulings. See 28
U. S. C. §§ 2254(d)(1)–(2); Williams v. Taylor, 529 U. S. 362,
413 (2000) (O’Connor, J., concurring in part and concurring
in judgment).
By not according the required deference, the Court of Ap
peals failed to respect the limited role of federal habeas relief
in this area prescribed by Congress and by our cases.
II
A
In applying the principles of Witherspoon and Witt, it is
instructive to consider the entire voir dire in Brown’s case.
Spanning more than two weeks, the process entailed an ex
amination of numerous prospective jurors. After the third
day of the voir dire, during which few jurors were ques
tioned, the trial court explained the process would “have to
go a little bit faster.” Tr. 1398. The next day, the court
reiterated this concern, for it had told the jury the trial
would take no more than six weeks in order not to conflict
with the Christmas holidays. Id., at 1426.
Eleven days of the voir dire were devoted to determining
whether the potential jurors were death qualified. During
that phase alone, the defense challenged 18 members of the
venire for cause. Despite objections from the State, 11 of
those prospective jurors were excused. As for the State, it
made 12 challenges for cause; defense counsel objected seven
times; and only twice was the juror excused following an
objection from the defense. Before deciding a contested

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challenge, the trial court gave each side a chance to explain
its position and recall the potential juror for additional ques
tioning. When issuing its decisions the court gave careful
and measured explanations. See, e. g., id., at 2601–2604 (de
nying the State’s motion to excuse a juror following an objec
tion for defense); App. 97–100 (granting the State’s motion
to excuse Juror X despite an objection from defense).
Before the State challenged Juror Z, the defense moved to
excuse a potential juror who had demonstrated some con
fusion. After argument from both counsel, the trial court
explained that it would be open to further questioning if one
of the parties felt the juror’s position could be clarified:
“I thought at first the both of you were wanting to excuse
[this juror] since he seemed kind of confused to both sides,
but if there really is a question, let me know and I don’t
have any hesitation about bringing the juror out here and
following up.” Id., at 26. Consistent with the need for an
efficient voir dire, the court also told counsel: “Let me point
something out to both sides. If you are going to agree on a
challenge, . . . we can shortcut some of what happens out
here.” Ibid.
Setting aside the disputed circumstances of Juror Z’s re
moval, the defense refrained from objecting to the State’s
challenges for cause only when the challenged juror was ex
plicit that he or she would not impose the death penalty or
could not understand the burden of proof. See Tr. 1457,
1912, 2261, 2940. For other jurors, the defense objections
were vigorous and, it seems, persuasive. The defense ar
gued that the jurors’ equivocal statements reflected careful
thinking and responsibility, not substantial impairment.
See, e. g., id., at 1791, 2111, 2815. The tenacity of Brown’s
counsel was demonstrated when, long after the trial court
had overruled the defense objection and excused Juror Y, the
defense moved in writing to have her returned for further
questioning and rehabilitation. Id., at 3151–3154. The trial

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court denied this motion after argument from both parties.
Id., at 3154.
The defense also lodged its own challenges for cause. In
defending them against the State’s objections, defense coun
sel argued, contrary to the position Brown takes in this
Court, that a trial court cannot rely upon a potential juror’s
bare promises to follow instructions and obey the law. See,
e. g., id., at 1713–1714, 1960–1961, 2772–2773, 3014–3016.
With regard to one juror, defense counsel argued:
“Any time this individual was asked any questions about
following the law, he will always indicate that he will.
But when we look to see . . . his view[s] on the death
penalty, . . . they [are] so strong that they would substan
tially impair his ability to follow the law and to follow
his oath as a juror.” Id., at 1960–1961.
In at least two instances this argument appears to have pre
vailed when the trial court overruled the State’s objection to
Brown’s challenge for cause.
A final, necessary part of this history is the instruction
the venire received from the court concerning the sentencing
options in the case. Before individual oral examination, the
trial court distributed a questionnaire asking jurors to ex
plain their attitudes toward the death penalty. When dis
tributing the questionnaire, the court explained the general
structure of the trial and the burden of proof. It described
how the penalty phase would function:
“[I]f you found Mr. Brown guilty of the crime of first
degree murder with one or more aggravating circum
stances, then you would be reconvened for a second
phase called a sentencing phase. During that sentenc
ing phase proceeding you could hear additional evidence
[and] arguments concerning the penalty to be imposed.
You would then be asked to retire to determine whether
the death penalty should be imposed or whether the

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punishment should be life imprisonment without the
possibility of parole.
“In making this determination you would be asked the
following question: Having in mind the crime with which
the defendant has been found guilty, are you convinced
beyond a reasonable doubt that there are not sufficient
mitigating circumstances to merit leniency? If you
unanimously answered yes to this question, the sentence
would be death. . . . [Otherwise] the sentence would be
life imprisonment without the possibility of release or
parole.” Id., at 1089–1090.
After the questionnaires were filled out, the jurors were pro
vided with handbooks that explained the trial process and
the sentencing phase in greater depth. Small groups of po
tential jurors were then brought in to be questioned. Be
fore Juror Z’s group began, the court explained once more
that if Brown were convicted, “there are only two penalties
that a jury could return, one is life in prison without possibil
ity of release or parole. And that literally means exactly
that, a true life in prison without release or parole.” Id.,
at 2016.
With this background, we turn to Juror Z’s examination.
B
Juror Z was examined on the seventh day of the voir dire
and the fifth day of the death-qualification phase. The State
argues that Juror Z was impaired not by his general outlook
on the death penalty, but rather by his position regarding
the specific circumstances in which the death penalty would
be appropriate. The transcript of Juror Z’s questioning re
veals that, despite the preceding instructions and infor
mation, he had both serious misunderstandings about his
responsibility as a juror and an attitude toward capital
punishment that could have prevented him from returning a
death sentence under the facts of this case.

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Under the voir dire procedures, the prosecution and de
fense alternated in commencing the examination. For Juror
Z, the defense went first. When questioned, Juror Z demon
strated no general opposition to the death penalty or scru
ples against its infliction. In fact, he soon explained that he
“believe[d] in the death penalty in severe situations.” App.
58. He elaborated, “I don’t think it should never happen,
and I don’t think it should happen 10 times a week either.”
Id., at 63. “[T]here [are] times when it would be appro
priate.” Ibid.
The questioning soon turned to when that would be so.
Juror Z’s first example was one in which “the defendant actu
ally came out and said that he actually wanted to die.” Id.,
at 59. Defense set this aside and sought another example.
Despite having been told at least twice by the trial court
that if convicted of first-degree murder, Brown could not be
released from prison, the only example Juror Z could provide
was when “a person is . . . incorrigible and would reviolate
if released.” Id., at 62. The defense counsel replied that
there would be no possibility of Brown’s release and asked
whether the lack of arguments about recidivism during the
penalty phase would frustrate Juror Z. He answered, “I’m
not sure.” Id., at 63.
The State began its examination of Juror Z by noting that
his questionnaire indicated he was “in favor of the death pen
alty if it is proved beyond a shadow of a doubt if a person
has killed and would kill again.” Id., at 69. The State ex
plained that the burden of proof was beyond a reasonable
doubt, not beyond a shadow of a doubt, and asked whether
Juror Z understood. He answered, “[I]t would have to be
in my mind very obvious that the person would reoffend.”
Id., at 70. In response the State once more explained to
Juror Z, now for at least the fourth time, that there was no
possibility of Brown’s being released to reoffend. Juror Z
explained, “[I]t wasn’t until today that I became aware that
we had a life without parole in the state of Washington,” id.,

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at 71, although in fact a week earlier the trial judge had
explained to Juror Z’s group that there was no possibility of
parole when a defendant was convicted of aggravated first
degree murder. The prosecution then asked, “And now that
you know there is such a thing . . . can you think of a time
when you would be willing to impose a death penalty . . . ?”
Id., at 71–72. Juror Z answered, “I would have to give that
some thought.” Id., at 72. He supplied no further answer
to the question.
The State sought to probe Juror Z’s position further by
asking whether he could “consider” the death penalty; Juror
Z said he could, including under the general facts of Brown’s
crimes. Ibid. When asked whether he no longer felt it was
necessary for the State to show that Brown would reoffend,
Juror Z gave this confusing answer: “I do feel that way if
parole is an option, without parole as an option. I believe
in the death penalty.” Id., at 72–73. Finally, when asked
whether he could impose the death penalty when there was
no possibility of parole, Juror Z answered, “[I]f I was con
vinced that was the appropriate measure.” Id., at 73.
Over the course of his questioning, he stated six times that
he could consider the death penalty or follow the law, see id.,
at 62, 70, 72, 73, but these responses were interspersed with
more equivocal statements.
The State challenged Juror Z, explaining that he was con
fused about the conditions under which death could be im
posed and seemed to believe it only appropriate when there
was a risk of release and recidivism. Id., at 75. Before the
trial court could ask Brown for a response, the defense vol
unteered, “We have no objection.” Ibid. The court then
excused Juror Z. Ibid.
III
On federal habeas review, years after the conclusion of the
voir dire, the Court of Appeals granted Brown relief and
overturned his sentence. The court held that both the state
trial court’s excusal of Juror Z and the State Supreme

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Court’s affirmance of that ruling were contrary to, or an un
reasonable application of, clearly established federal law.
451 F. 3d, at 953. The Court of Appeals held that the Su
preme Court of Washington had failed to find that Juror Z
was substantially impaired; it further held that the State Su
preme Court could not have made that finding in any event
because the transcript unambiguously proved Juror Z was
not substantially impaired. For these reasons, explained
the Court of Appeals, the trial court’s decision to excuse
Juror Z was contrary to the Witherspoon-Witt rule despite
Brown’s failure to object. Each of the holdings of the Court
of Appeals is wrong.
A
As part of its exposition and analysis, the Court of Appeals
found fault with the opinion of the Supreme Court of Wash
ington. It stated that although the State Supreme Court
had held that Jurors X and Y were substantially impaired,
the same “finding is missing from the state court’s discus
sion” of Juror Z’s excusal. 451 F. 3d, at 950. The Court of
Appeals therefore held “[t]he Washington Supreme Court in
this case applied the wrong standard with respect to Juror
Z.” Id., at 953, n. 10. This is an erroneous summary of the
State Supreme Court’s opinion. The state court did make
an explicit ruling that Juror Z was impaired. In a portion
of the opinion entitled “Summary and Conclusions,” the
court held: “The trial court properly exercised its discretion
in excusing for cause prospective jurors [X, Y, and Z] during
voir dire. Their views would have prevented or substan
tially impaired their ability to follow the court’s instructions
and abide by their oaths as jurors.” Brown, 132 Wash. 2d,
at 631, 940 P. 2d, at 598, 599. It is unclear why the Court of
Appeals overlooked or disregarded this finding, and it was
mistaken in faulting the completeness of the Supreme Court
of Washington’s opinion.
Even absent this explicit finding, the Supreme Court of
Washington’s opinion was not contrary to our cases. The

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court identified the Witherspoon-Witt rule, recognized that
our precedents required deference to the trial court, and ap
plied an abuse-of-discretion standard. 132 Wash. 2d, at 601,
940 P. 2d, at 584. Having set forth that framework, it
explained:
“[Brown] did not object at trial to the State’s challenge
of [Juror Z] for cause. At any rate, [Juror Z] was prop
erly excused. On voir dire he indicated he would im
pose the death penalty where the defendant ‘would revi
olate if released,’ which is not a correct statement of the
law. He also misunderstood the State’s burden of proof
. . . although he was corrected later. The trial court did
not abuse its discretion in excusing [Juror Z] for cause.”
Id., at 604, 940 P. 2d, at 585.
The only fair reading of the quoted language is that the
state court applied the Witt standard in assessing the excu
sal of Juror Z. Regardless, there is no requirement in a case
involving the Witherspoon-Witt rule that a state appellate
court make particular reference to the excusal of each juror.
See Early v. Packer, 537 U. S. 3, 9 (2002) (per curiam). It
is the trial court’s ruling that counts.
B
From our own review of the state trial court’s ruling, we
conclude the trial court acted well within its discretion in
granting the State’s motion to excuse Juror Z.
Juror Z’s answers, on their face, could have led the trial
court to believe that Juror Z would be substantially impaired
in his ability to impose the death penalty in the absence of
the possibility that Brown would be released and would reof
fend. And the trial court, furthermore, is entitled to defer
ence because it had an opportunity to observe the demeanor
of Juror Z. We do not know anything about his demeanor,
in part because a transcript cannot fully reflect that informa
tion but also because the defense did not object to Juror Z’s

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removal. Nevertheless, the State’s challenge, Brown’s
waiver of an objection, and the trial court’s excusal of Juror
Z support the conclusion that the interested parties present
in the courtroom all felt that removing Juror Z was appro
priate under the Witherspoon-Witt rule. See Darden, 477
U. S., at 178 (emphasizing the defendant’s failure to object
and the judge’s decision not to engage in further questioning
as evidence of impairment).
Juror Z’s assurances that he would consider imposing the
death penalty and would follow the law do not overcome the
reasonable inference from his other statements that in fact
he would be substantially impaired in this case because there
was no possibility of release. His assurances did not require
the trial court to deny the State’s motion to excuse Juror Z.
The defense itself had told the trial court that any juror
would make similar guarantees and that they were worth
little; instead, defense counsel explained, the court should
listen to arguments concerning the substance of the juror’s
answers. The trial court in part relied, as diligent judges
often must, upon both parties’ counsel to explain why a
challenged juror’s problematic beliefs about the death pen
alty would not rise to the level of substantial impairment.
Brown’s counsel offered no defense of Juror Z. In light of
the deference owed to the trial court the position Brown now
maintains does not convince us the decision to excuse Juror
Z was unreasonable.
It is true that in order to preserve a Witherspoon claim
for federal habeas review there is no independent federal
requirement that a defendant in state court object to the
prosecution’s challenge; state procedural rules govern. We
nevertheless take into account voluntary acquiescence to, or
confirmation of, a juror’s removal. By failing to object, the
defense did not just deny the conscientious trial judge an
opportunity to explain his judgment or correct any error. It
also deprived reviewing courts of further factual findings
that would have helped to explain the trial court’s decision.

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The harm caused by a defendant’s failure to object to a ju
ror’s excusal was described well by a Washington appellate
court in a different case:
“When a challenge for cause is made, opposing counsel
can object either on the grounds that it is facially insuf
ficient or that the facts needed to support it are not true.
[Defendant] did neither. Had [defendant] objected im
mediately to the State’s challenge for cause, the court
could have tried the issue and determined the law and
the facts. Because [defendant] did not timely object to
the excusal of Juror 30, the court had no opportunity to
remedy whatever factual questions were in the mind of
[defendant’s] counsel.” State v. Taylor, No. 16057–2–III
etc., 1998 WL 75648, *5 (Wash. App., Feb. 24, 1998) (un
published opinion) (citations omitted).
The defense may have chosen not to object because Juror
Z seemed substantially impaired. See 451 F. 3d, at 959
(Tallman, J., dissenting from denial of rehearing en banc).
Or defense counsel may have felt that Juror Z, a basketball
referee whose stepbrother was a police officer, would have
been favorable to the State. See App. 68, 74; 451 F. 3d, at
953, n. 9 (reasoning that “defense counsel declined to object
because he was glad to get rid of juror Z. After all, Z had
described himself as pro-death penalty . . . . Defense coun
sel must have thanked his lucky stars when the prosecutor
bumped Z”). Or the failure to object may have been an at
tempt to introduce an error into the trial because the defense
realized Brown’s crimes were horrific and the mitigating evi
dence was weak. Although we do not hold that, because the
defense may have wanted Juror Z on the jury, any error was
harmless, neither must we treat the defense’s acquiescence
in Juror Z’s removal as inconsequential.
The defense’s volunteered comment that there was no ob
jection is especially significant because of frequent defense
objections to the excusal of other jurors and the trial court’s

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request that if both parties wanted a juror removed, saying
so would expedite the process. In that context the state
ment was not only a failure to object but also an invitation
to remove Juror Z.
We reject the conclusion of the Court of Appeals that the
excusal of Juror Z entitles Brown to federal habeas relief.
The need to defer to the trial court’s ability to perceive ju
rors’ demeanor does not foreclose the possibility that a re
viewing court may reverse the trial court’s decision where
the record discloses no basis for a finding of substantial im
pairment. But where, as here, there is lengthy questioning
of a prospective juror and the trial court has supervised a
diligent and thoughtful voir dire, the trial court has broad
discretion. The record does not show the trial court ex
ceeded this discretion in excusing Juror Z; indeed the tran
script shows considerable confusion on the part of the juror,
amounting to substantial impairment. The Supreme Court
of Washington recognized the deference owed to the trial
court and, contrary to the Court of Appeals’ misreading of
the state court’s opinion, identified the correct standard re
quired by federal law and found it satisfied. That decision,
like the trial court’s, was not contrary to, or an unreasonable
application of, clearly established federal law.
IV
Brown raises two additional arguments that rely upon
Washington state law. He first contends we should not con
sider his failure to object because Washington state law does
not require a defendant to object to a challenge to a potential
juror. See Tr. of Oral Arg. 35 (“As to the . . . failure to
object . . . we have admitted that what [defense counsel] said
was I have no objection. . . . But [they] all knew that this
issue could be raised for the first time on appeal”). In addi
tion he asserts that even if Juror Z’s statements indicated
that he would base his decision upon the risk of Brown re

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offending, that requirement was consistent with the state
sentencing scheme.
For the reasons explained above the defense’s failure to
object in this case has significance to our analysis even on
the assumption that state law did not require an objection to
preserve an error for review in the circumstances of this
case. The Supreme Court of Washington, however, noted
Brown’s failure to object, suggesting it had significance for
its own analysis. Brown, 132 Wash. 2d, at 604, 940 P. 2d, at
585. This is consistent with Washington law, which permits
a party to “except” to the opposing party’s challenge of a
juror for cause, Wash. Rev. Code § 4.44.230 (2006), and gives
appellate courts discretion to bar “any claim of error which
was not raised in the trial court” unless that error is a “mani
fest error affecting a constitutional right,” Wash. Rule App.
Proc. 2.5(a) (2006). See also 13 R. Ferguson, Washington
Practice: Criminal Practice and Procedure § 4908, p. 432 (3d
ed. 2004) (“In general, issues not raised in the trial court
will not be considered for the first time on appeal. It is
the purpose of this general rule to give the trial court an
opportunity to correct the alleged error. Accordingly, it is
the duty of counsel to call the trial court’s attention to the
alleged error . . . ” (footnotes omitted)).
The Supreme Court of Washington also held that Juror Z
misstated Washington’s sentencing law. Brown, supra, at
604, 940 P. 2d, at 585. It is not for us to second-guess that
determination, and our conclusion is, in any event, the same
as that court’s. Juror Z did not say that the likelihood of
Brown’s harming someone while in prison would be among
his sentencing considerations. Rather, the sole reason Juror
Z expressed for imposing the death penalty, in a case where
the accused opposed it, was whether the defendant could be
released and would reviolate. That is equivalent to treating
the risk of recidivism as the sole aggravating factor, rather
than treating lack of future dangerousness as a possible
mitigating consideration. See Wash. Rev. Code § 10.95.020

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(2006) (setting forth aggravating factors); § 10.95.070 (set
ting forth future dangerousness as one of eight mitigating
factors).
For these reasons, we are not persuaded to depart from
the Supreme Court of Washington’s determination of the
state law at issue or to ignore Brown’s failure to object.
* * *
Capital defendants have the right to be sentenced by an
impartial jury. The State may not infringe this right
by eliminating from the venire those whose scruples against
the death penalty would not substantially impair the per
formance of their duties. Courts reviewing claims of
Witherspoon-Witt error, however, especially federal courts
considering habeas petitions, owe deference to the trial
court, which is in a superior position to determine the de
meanor and qualifications of a potential juror. The Court
of Appeals neglected to accord this deference. And on this
record it was error to find that Juror Z was not substantially
impaired. The judgment of the Court of Appeals is re
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
APPENDIX
Excerpts of Verbatim Report of Proceedings (Voir Dire)
(Nov. 3, 1993) in State v. Brown, Cause No. 91–1–03233–1
(Super. Ct. King Cty., Wash.), App. 57–75:
THE COURT: All right. [Juror Z]. (Prospective Juror,
[Juror Z], entered the courtroom.)
THE COURT: That’s fine, [Juror Z]. Good afternoon.
[JUROR Z]: Good afternoon.
THE COURT: Do you have any questions at all about any
of the preliminary instructions that you got this afternoon
and the format that we were talking about or the reasons

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why the attorneys have to discuss the penalty phase when
there may never really be a penalty phase.
[JUROR Z]: No, I think I understand the situation.
THE COURT: Did you answer or nod your head about
remembering something about having heard this crime
before?
[JUROR Z]: No, I did not.
THE COURT: Okay. We’ll start with the defense.
MS. HUPP: Thank you, your Honor.
VOIR DIRE EXAMINATION
BY MS. HUPP:
Q Good afternoon. My name is Lin-Marie Hupp, and
I’m one of Cal Brown’s attorneys.
I would like to start off asking you some questions about
your feelings about the death penalty. I want to reinforce
what the Judge has already told you, which is there are no
right or wrong answers. We just need to get information
about your feelings so we can do our job.
A Okay.
Q Can you tell me when it was you first realized this was
a potential death penalty case?
A Not until last Monday when I was here in the initial
jury information session.
Q Okay. Can you tell me when the Judge read that long
thing to you and basically told you that this was a potential
in the case, can you tell me what you were thinking when
you heard that?
A I guess I wasn’t surprised when I got the announce
ment for jury duty. And it was more than the standard two
weeks that most everybody else goes to. I thought it must
be a pretty substantial case. In my mind I tried to guess
what it might be, so this is one of the things that entered
into it.
Q Can you give me an idea of what your general feelings
about the death penalty are?

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A I do believe in the death penalty in severe situations.
A good example might be the young man from, I believe he
was from Renton that killed a couple of boys down in the
Vancouver area and was sentenced to the death penalty, and
wanted the death penalty. And I think it is appropriate in
severe cases.
Q And that case you’re talking about, that is the one
where he actually came out, the defendant actually came out
and said that he actually wanted to die?
A I believe that was the case.
Q Does that have any kind of bearing on your idea that
the death penalty was appropriate in his case?
A I believe that it was in that case.
Q If you removed that factor completely from it, is that
again the type of case that you think the death penalty would
be appropriate?
A It would have to be a severe case. I guess I can’t put
a real line where that might be, but there are a lot of cases
that I don’t think it’s where people would—
Q Okay. And let me kind of fill in the blanks for myself
here by just asking you a couple of questions about that.
I’m assuming that there would not be any case other than
murder that you would think the death penalty would be
appropriate?
A I think that is correct.
Q Okay. And the way the law is in Washington anyway,
in order to get to the point where you would even consider
the death penalty, the State would first have to prove that
you had committed a premeditate[d] murder and one that
had been thought about beforehand.
Do you have any kind of feeling that something other than
a premeditated murder, in other words, one that would have
been planned that would be appropriate for the death
penalty?
A No. I think it would have to be premeditated.

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Q In addition to that in Washington even premeditated
murders are not eligible for a potential death penalty unless
the State also proves aggravating circumstances. In this
case the State is alleging or is going to try and prove a num
ber of aggravating circumstances, four of them. Okay.
And the ones that they are going to try and prove are that
the murder was committed, a premeditated murder was com
mitted during a rape, a robbery, a kidnapping and that it was
done in order to conceal a witness or eliminate a witness.
Does that fall within the class of cases that you think the
death penalty is appropriate?
A I think that would be.
Q Okay. Now, how about other sentencing options in a
case like that, do you think that something other than the
death penalty might be an appropriate sentence?
A I think that if a person is temporarily insane or things
of that that lead a person to do things that they would not
normally do, I think that would enter into it.
Q All right. Other than—well, maybe what we should
do—the way that the law is in Washington, if the jury finds
beyond a reasonable doubt that somebody has committed a
premeditated murder with at least one aggravating circum
stance, and in this case you have a potential for the four,
then the jury reconvenes to consider whether or not the
death penalty should be imposed or whether or not a life
sentence without parole should be imposed.
One sort of aside here, life without parole is exactly what
it sounds like. It is a life sentence. You’re not ever eligible
for parole. You hear about it in the papers sometimes where
somebody has got a life sentence and they’re going to be
eligible for parole in 10 years or 20 years.
A I understand.
Q Were you aware before that Washington has got this
kind of sentence where it’s life without parole where you are
not ever eligible for parole?
A I did not until this afternoon.

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Q That is the two options that the jury has if they found
the person guilty of premeditated murder beyond a reason
able doubt plus aggravating circumstances beyond a reason
able doubt.
Do you think that you could consider both options?
A Yes, I could.
Q Could you give me an idea sort of have you thought
about sort of the underlying reason why you think the death
penalty is appropriate, what purpose it serves, that kind of
thing?
A I think if a person is, would be incorrigible and would
reviolate if released, I think that’s the type of situation that
would be appropriate.
Q Okay. Now, knowing that you didn’t know before
when you were coming to those opinions about the two op
tions that we have here obviously somebody who is not going
to get out of jail no matter which sentence you give them if
you got to that point of making a decision about the sentence,
does that mean what I’m hearing you say is that you could
consider either alternative?
A I believe so, yes.
Q Now, in your, I think in your questionnaire you sort of
referred to that also, what you kind of thought about was if
somebody had been killed and it had been proven to you that
they would kill again. Understanding that the two options
there are life without parole or the death penalty, there is
not a lot of likelihood that people are going to spend a lot of
time talking about whether or not they’re going to kill again
in the sentencing phase of this case. Is that going to make
you frustrated? Are you going to want to hear about things
like that, about people’s opinions in the penalty phase?
A I’m not sure.
Q Okay. That’s very fair. Do you have any kind of feel
ings about the frequency of the use of the death penalty in
the United States today? Do you think it’s used too fre
quently or not often enough?

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A It seemed like there were several years when it wasn’t
used at all and just recently it has become more prevalent in
the news anyway. I don’t think it should never happen, and
I don’t think it should happen 10 times a week either. I’m
not sure what the appropriate number is but I think in se
vere situations, it is appropriate.
Q It sounds like you’re a little more comfortable that it
is being used some of the time?
A Yes.
Q You weren’t happy with the time when it wasn’t being
used at all?
A I can’t say I was happy or unhappy, I just felt that
there were times when it would be appropriate.
Q Let me ask you, and we may have covered this already,
but let me ask you just to make sure I understand. If the
State were to prove beyond a reasonable doubt that the de
fendant had committed a premeditated murder with aggra
vating circumstances that I have laid out for you, rape, rob
bery, kidnapping, to conceal or eliminate a witness, at least
one of those, in addition another thing you might hear in this
trial is some evidence that the defendant deliberately in
flicted pain upon the victim before she died for some period
of time.
If that was the crime that you heard about and came to
a decision about guilty about, do you think you consider a
life sentence?
A I could consider it but I don’t know if I really have
enough information to make a determination.
Q Right. And it’s real tough to be asking you these
questions and even tougher for you to have to answer them
without any evidence before you. But you understand that
this is our only time to do that before you have heard all
the evidence?
A I understand, yes.
Q As a matter of fact, the law in this state after, even
after you have found somebody guilty of really hideous crime

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like that presumes that the sentence, the appropriate sen
tence is life without parole. The State has the burden of
proof, again, in the penalty phase. And they would have to
prove beyond a reasonable doubt that there are not sufficient
mitigating circumstances to merit a life sentence.
Are you comfortable with that idea that you start off pre
suming that, as a matter of fact, even for a hideous crime
that a life sentence is the appropriate sentence?
A It is or is not?
Q That it is an appropriate sentence.
A I guess I’m a little confused by the question. So, you
go into it with a life sentence is the appropriate sentence?
Q Right. If you look at the chart here, there’s almost a
mirror image to start off a trial presuming that somebody is
innocent and you start off a sentencing presuming that a life
sentence is appropriate?
A I see.
Q Okay.
A Yes.
Q Okay. Now, as far as mitigating circumstances, you
had mentioned the idea that maybe somebody was temporar
ily insane. The Judge is going to give you an instruction on
mitigating circumstances, and I will defin[e] it for you, but
the definition is real broad. The definition basically is, any
reason, not a justification, not an excuse for the crime and
not a defense to the crime, but a reason for imposing some
thing other than death. That’s pretty broad.
MR. MATTHEWS: I object to that question. I don’t be
lieve that is a question. I believe that’s a statement.
THE COURT: The objection will be sustained.
Q (BY MS. HUPP) The judge will instruct you about
what a mitigating circumstance is.
But what I want to be real clear about is that it’s not a
defense to the crime. Okay. In other words, if you believe
that somebody was really temporarily insane at the time he

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committed the offense, well, then it wouldn’t be premedi
tated. It would be an insanity defense, and that would all
get dealt with—
MR. MATTHEWS: Your Honor, again, I am going to ob
ject to the nature of the question.
THE COURT: [Juror Z], you were the one that actually
brought it up in terms of the mental status of the person.
You are the one who said temporarily insane when they com
mitted this kind of crime. You realize that there are partic
ular defenses that may be available in the actual criminal
case itself, the guilt phase.
But once you get to the penalty phase, we’re not talking
about the crime in any way, and you’re simply trying to de
termine what the appropriate punishment or sanction should
be for a crime that a person has been found guilty of. At
that point in time, something like all sorts of mitigating cir
cumstances come into it, and mental status can come into it.
But it would only be evaluated in the light of the mitigating
circumstances, not a defense. Do you understand that?
A Understand.
Q (BY MS. HUPP) To just sort of follow up on that, if
mental status came into play and you were presented with
some sort of evidence about mental status, is that the sort
of evidence you would consider?
A Yes, I could.
Q How about things like somebody’s childhood or their
emotional development?
A I could consider it. I don’t have strong feelings one
way or the other.
Q Okay. All right. And, also, when we talk about miti
gating circumstances, what might be mitigating to you might
not matter much to the person sitting next to you in juror’s
box. Do you think you could discuss your feelings about
those things?
A Yes.

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Q Could you, say the person next to you says something
is mitigating and you don’t think it’s very mitigating at all,
could you also discuss it in this situation?
A (Nodding head).
Q Could you respect that other person’s opinion?
A Everybody is entitled to an opinion, yes.
Q Another thing that happens at the sentencing phase of
the trial is that the jury would have to be unanimous, in
other words, everybody would have to agree if they were
going to impose a death sentence. If one person, four peo
ple, five people, how ever many people don’t agree with that,
then the sentence is life. Okay. So, it kind of strips away
that sort of comfort in numbers that some people get from
the idea of having a unanimous decision.
Do you think you can accept the responsibility for such an
important decision for yourself?
A I do.
Q Okay. Thank you.
MS. HUPP: I have no further questions.
THE COURT: The State.
VOIR DIRE EXAMINATION
BY MR. MATTHEWS:
Q [Juror Z], I’m Al Matthews. I’m one of two prosecu
tors in the case. I have got some very specific questions,
and perhaps we can clear them up real rapidly.
I see your step-brother is a policeman and you see him
about four times a year.
A (Nodding head).
Q Do you ever have any discussions about the death pen
alty, is this a subject that ever comes up?
A No.
Q Have you ever had occasion to discuss it at all within
the family circle?
A I don’t believe so.

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Q You mentioned on your questionnaire, and we do read
them, that you’re in favor of the death penalty if it is proved
beyond a shadow of a doubt if a person has killed and would
kill again. Do you remember making that statement?
A Yes.
Q First of all, have you ever been on a jury trial before?
A I have not.
Q Now, you made this statement before you read your
juror’s handbook I imagine?
A Yes.
Q So, I want to ask you, the thing that bothers me, of
course, is the idea beyond a shadow of a doubt. The law
says beyond a reasonable doubt, and it will be explained to
you what it actually means. But I want to assure you it
doesn’t mean, I don’t believe the Court would instruct . . .
you it means beyond all doubt or beyond any shadow of a
doubt. Knowing that, would you still require the State to
prove beyond a shadow of a doubt that the crime occurred
knowing that the law doesn’t require that much of us?
A I would have to know the, I’m at a loss for the words
here.
Q You can ask me any questions, too, if you need some
clarification.
A I guess it would have to be in my mind very obvious
that the person would reoffend.
Q Well, we’re not talking about that, sir.
A Or was guilty, yes.
Q So, we’re talking about that?
A Yes.
Q So, you would be satisfied with a reasonable doubt
standard? You would be willing to follow the law?
A Yes.
Q In other words, nothing, there is very few things in
life absolutely certain?
A I understand.

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32 UTTECHT v. BROWN
Appendix to opinion of the Court
Q And that is basically what we’re saying to you, and
that is what the term reasonable doubt means—
A (Nodding head).
Q —that we don’t have to prove it beyond all doubt.
Now, we get to the penalty phase and the question be
comes slightly different. It presumes life as a person is pre
sumed innocent in the guilt phase, it is presumed that the
proper penalty for the beginning point in the penalty phase
is life in prison without parole.
Now, you mentioned that you would have to be satisfied
that the person would not kill again. Now, you know that
the possible, that the only two penalties are life in prison
without parole or death. The person, if he is committed, if
he is convicted of aggravated murder, is not going to be out
on the streets again, not going to come in contact with the
people that he had a chance to run into before. So, the like
lihood of him killing someone out in the street is nil or practi
cally nil at that point.
I guess the reverse side of what you’re saying is, if you
could be convinced that he wouldn’t kill again, would you
find it difficult to vote for the death penalty given a situation
where he couldn’t kill again?
A I think I made that statement more under assumption
that a person could be paroled. And it wasn’t until today
that I became aware that we had a life without parole in the
state of Washington.
Q And now that you know there is such a thing and they
do mean what they say, can you think of a time when you
would be willing to impose a death penalty since the person
would be locked up for the rest of his life?
A I would have to give that some thought. I really, like
I said, up until an hour ago did not realize that there was an
option of life without parole.
Q And I realize this is put on you rather suddenly, but
you also recognize as someone who is representing the State

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in this case, we have made the election to ask that the jury
if he is found guilty, ask that the jury vote for the death
penalty.
And I’m asking you a very important thing and to every
one in here, whether you, knowing that the person would
never get out for the rest of his life, two things. And
they’re slightly different. One, whether you could consider
the death penalty and the second thing I would ask you is
whether you could impose the death penalty. I’m not asking
a promise or anything.
But I’m asking you, first, could you consider it, and if you
could consider it, do you think under the conditions where
the man would never get out again you could impose it?
A Yes, sir.
Q So, this idea of him having to kill again to deserve the
death penalty is something that you are not firm on, you
don’t feel that now?
A I do feel that way if parole is an option, without parole
as an option. I believe in the death penalty. Like I said,
I’m not sure that there should be a waiting line of people
happening every day or every week even, but I think in se
vere situations it’s an appropriate measure.
Q But in the situation where a person is locked up for
the rest of his life and there is no chance of him ever getting
out again, which would be the situation in this case, do you
think you could also consider and vote for the death penalty
under those circumstances?
A I could consider it, yes.
Q Then could you impose it?
A I could if I was convinced that was the appropriate
measure.
MR. MATTHEWS: I have no further questions.
THE COURT: All right. [Juror Z], there is something
that I want to clarify in response to some of the questions
that were asked of you.

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34 UTTECHT v. BROWN
Appendix to opinion of the Court
VOIR DIRE EXAMINATION
BY THE COURT:
Q In your questionnaire it talks about beyond a shadow
of a doubt, and the prosecutor here went into that a little
further. You realize that that is the standard that the law
imposes on the State to prove a case beyond a reasonable
doubt. And, obviously, that is a question of interpretation.
You officiate basketball games. That’s in your question
naire. You, even at the college level, knowing how fast that
game is, you have to make a call on some of those calls and
you have to decide whether to blow that whistle and make
that particular call. Do you think you understand the dif
ference between a reasonable call and beyond a shadow of a
doubt type call?
A I guess I do. The terminology beyond a shadow of a
doubt, when I wrote that I wasn’t even sure whether, I mean,
it’s just terminology that I have heard probably watching
Perry Mason or something over the years. But I guess the
point I was making that it has to be—
Q You would have to be positive?
A I would have to be positive, that’s correct.
Q The State has to convince you?
A Yes.
Q As they would have to convince any reasonable
person?
A Yes.
THE COURT: [Juror Z], let me have you step back into
the juryroom. The bailiff will excuse you from there in just
a few minutes. Thank you.
Counsel, any challenge to this particular juror?
MR. MATTHEWS: I would, your Honor, not on the term
beyond a shadow of a doubt, I think he would certainly stick
with the reasonable doubt standard. But I think he is very
confused about the statements where he said that if a person
can’t kill again, in other words, he’s locked up for the rest of
his life, he said, basically, he could vote for the death penalty

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Stevens, J., dissenting
if it was proved beyond a shadow of. And I am certainly
going to concede that he means beyond a reasonable doubt.
And if a person kills and will kill again. And I think he
has some real problems with that. He said he hadn’t really
thought about it. And I don’t think at this period of time
he’s had an opportunity to think about it, and I don’t think
he said anything that overcame this idea of he must kill again
before he imposed the death penalty or be in a position to
kill again. So, that is my only challenge.
MR. MULLIGAN: We have no objection.
THE COURT: Counsel, the request of the prosecutor’s of
fice, we will go ahead and excuse [Juror Z].
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
Millions of Americans oppose the death penalty. A cross
section of virtually every community in the country includes
citizens who firmly believe the death penalty is unjust but
who nevertheless are qualified to serve as jurors in capital
cases. An individual’s opinion that a life sentence without
the possibility of parole is the severest sentence that should
be imposed in all but the most heinous cases does not even
arguably “ ‘prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions
and his oath.’ ” Wainwright v. Witt, 469 U. S. 412, 420 (1985)
(emphasis deleted). Moreover, an individual who maintains
such a position, or even one who opposes the death penalty
as a general matter, “ ‘may not be challenged for cause based
on his views about capital punishment.’ ” Ibid. Today the
Court ignores these well-established principles, choosing in
stead to defer blindly to a state court’s erroneous character
ization of a juror’s voir dire testimony.1 Although this case
1 The Court opens its opinion with a graphic description of the underly
ing facts of respondent’s crime, perhaps in an attempt to startle the reader
or muster moral support for its decision. Given the legal question at
issue, and the procedural posture of this case, the inclusion of such a de

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36 UTTECHT v. BROWN
Stevens, J., dissenting
comes to us under the standard of review imposed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, the level of deference given by the
Court to the state courts in this case is completely unwar
ranted based on the record before us. Because I find no
justification in the record or elsewhere for the decision to
strike Juror Z for cause, I must dissent.
I
When the State challenged Juror Z, it argued that he was
“confused about the conditions under which [the death pen
alty] could be imposed and seemed to believe it only appro
priate when there was a risk of release and recidivism.”
Ante, at 15. A more accurate characterization of Juror Z’s
testimony is that although he harbored some general reser
vations about the death penalty, he stated that he could con
sider and would vote to impose the death penalty where ap
propriate.2 When asked for “an idea . . . of the underlying
scription is, in my view, both irrelevant and unnecessary. Cf. Witt, 469
U. S., at 440, n. 1 (Brennan, J., dissenting) (“However heinous Witt’s crime,
the majority’s vivid portrait of its gruesome details has no bearing on the
issue before us. It is not for this Court to decide whether Witt deserves
to die. That decision must first be made by a jury of his peers, so long
as the jury is impartial and drawn from a fair cross section of the commu
nity in conformity with the requirements of the Sixth and Fourteenth
Amendments”).
2 In contrast to Juror Z’s statements, those jurors who have been prop
erly struck under the Witherspoon-Witt rule have made much stronger
statements with regard to their inability to follow the law or to impose
the death penalty. See, e. g., Wainwright v. Witt, 469 U. S. 412, 416 (1985)
( juror confirming that her personal beliefs would interfere with her ability
to judge the guilt or innocence of the defendant); id., at 438, n. 7 (Stevens,
J., concurring in judgment) (discussing the two other jurors who were
properly dismissed for cause, one of whom stated that he would not be
able to “ ‘follow the law as instructed by the Court’ ” when the death pen
alty was in issue, and the other of whom stated that he could not “keep
an open mind as to whether to vote for the death penalty or life”); Wither
spoon v. Illinois, 391 U. S. 510 (1968). Cf. Gray v. Mississippi, 481 U. S.
648, 653–654, and n. 5, 659 (1987) (holding that a juror who seemed “some

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reason why you think the death penalty is appropriate [or]
what purpose it serves,” Juror Z responded that “the type
of situation” in which the death penalty would be appro
priate was “if a person [was] incorrigible and would reviolate
if released.” App. 62 (emphasis added). After it was ex
plained to Juror Z that the only two sentencing alternatives
available under Washington law would be life imprisonment
without the possibility of parole and a death sentence, Juror
Z repeatedly confirmed that even if he knew the defendant
would never be released, he would still be able to consider
and vote for the death penalty. Id., at 62, 72, 73. As for
any general reservations Juror Z may have had about the
imposition of the death penalty, it is clear from his testimony
that he was in no way categorically opposed to it. When
asked whether he was “a little more comfortable that it is
being used some of the time,” Juror Z responded in the af
firmative. Id., at 63.
While such testimony might justify a prosecutor’s peremp
tory challenge, until today not one of the many cases decided
in the wake of Witherspoon v. Illinois, 391 U. S. 510 (1968),
has suggested that such a view would support a challenge
for cause. The distinction that our cases require trial judges
to draw is not between jurors who are in favor of the death
penalty and those who oppose it, but rather between two
subclasses within the latter class—those who will conscien
tiously apply the law and those whose conscientious scruples
necessarily prevent them from doing so.3 As then-Justice
what confused” but who stated that she “could” vote for the death penalty
“ ‘was clearly qualified to be seated as a juror under the Adams [v. Texas,
448 U. S. 38 (1980),] and Witt criteria’ ”).
3 “The state of this case law leaves trial courts with the difficult task
of distinguishing between prospective jurors whose opposition to capital
punishment will not allow them to apply the law or view the facts impar
tially and jurors who, though opposed to capital punishment, will never
theless conscientiously apply the law to the facts adduced at trial.” Witt,
469 U. S., at 421.

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38 UTTECHT v. BROWN
Stevens, J., dissenting
Rehnquist explained in his opinion for the Court in Lockhart
v. McCree, 476 U. S. 162, 176 (1986):
“It is important to remember that not all who oppose
the death penalty are subject to removal for cause in
capital cases; those who firmly believe that the death
penalty is unjust may nevertheless serve as jurors in
capital cases so long as they state clearly that they are
willing to temporarily set aside their own beliefs in def
erence to the rule of law.”
Today’s opinion simply ignores the justification for this strict
rule. As we explained 20 years ago:
“The State’s power to exclude for cause jurors from capi
tal juries does not extend beyond its interest in re
moving those jurors who would ‘frustrate the State’s
legitimate interest in administering constitutional capi
tal sentencing schemes by not following their oaths.’
Wainwright v. Witt, 469 U. S., at 423. To permit the
exclusion for cause of other prospective jurors based on
their views of the death penalty unnecessarily narrows
the cross section of venire members. It ‘stack[s] the
deck against the petitioner. To execute [such a] death
sentence would deprive him of his life without due proc
ess of law.’ Witherspoon v. Illinois, 391 U. S., at 523.”
Gray v. Mississippi, 481 U. S. 648, 658–659 (1987).
In its opinion, the Court blindly accepts the state court’s con
clusory statement that Juror Z’s views would have “substan
tially impaired” his ability to follow the court’s instructions
without examining what that term means in practice and
under our precedents. Ante, at 16. Even AEDPA does not
permit us to abdicate our judicial role in this fashion.
The high threshold that must be crossed to establish the
kind of impairment that would justify the exclusion of a juror
under the rule of Wainwright v. Witt is illustrated by Justice
Powell’s opinion for the Court in Darden v. Wainwright, 477
U. S. 168 (1986). In that case, we assumed that a prospec

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tive juror’s affirmative answer to the following question
would not suffice to support his exclusion for cause: “ ‘Do you
have any moral or religious, conscientious moral or religious
principles in opposition to the death penalty so strong that
you would be unable without violating your own principles
to vote to recommend a death penalty regardless of the
facts?’ ” Id., at 178. We recognized that the juror’s answer
by itself did not compel the conclusion that he could not
under any circumstances recommend the death penalty. See
ibid. (“The precise wording of the question asked of [the
juror], and the answer he gave, do not by themselves compel
the conclusion that he could not under any circumstance rec
ommend the death penalty”). We nevertheless upheld his
exclusion because the trial judge had previously explained
that he wanted to know if “ ‘you have such strong religious,
moral or conscientious principles in opposition to the death
penalty that you would be unwilling to vote to return an
advisory sentence recommending the death sentence even
though the facts presented to you should be such as under
the law would require that recommendation?’ ” Id., at 176
(emphasis added). Our holding in Darden rested squarely
on the distinction between mere opposition to the death pen
alty—even when based on religious or moral principles—and
an inability to perform the legally required duties of a juror.
In contrast, in Gray, 481 U. S. 648, we reversed a death
sentence where a juror had been impermissibly struck for
cause. In that case, the trial court struck a juror who ap
peared confused and who at times seemed to equivocate, but
who eventually acknowledged that “she could consider the
death penalty in an appropriate case.” Id., at 653; cf. voir
dire testimony of Juror Z, App. 73 (“I could [impose the
death penalty] if I was convinced that [it] was the appro
priate measure”). The Court distinguishes Gray from the
case now before us solely on the basis that in Gray there was
no state-court finding of substantial impairment. Ante,
at 9. In the Court’s view, this distinction is grounded in the

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40 UTTECHT v. BROWN
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fact that, here, there was “an explicit ruling that Juror Z
was impaired.” Ante, at 16. That “ruling” consists of a
one-sentence conclusion included in the final summary sec
tion of the Washington Supreme Court’s opinion. That con
clusion is based on an earlier part of the court’s opinion, in
which it found that during voir dire, Juror Z “indicated that
he would impose the death penalty where the defendant
‘would reviolate if released,’ which is not a correct statement
of the law.” State v. Brown, 132 Wash. 2d 529, 604, 940 P. 2d
546, 585 (1997). Under our precedents, a juror’s statement
that he would vote to impose a death sentence where there
is a possibility that the defendant may reoffend, provided
merely as an example of when that penalty might be appro
priate, does not constitute a basis for striking a juror for
cause.4
In the alternative, and perhaps recognizing the tenuous
nature of the state court’s “ruling,” the Court relies on the
fact that the trial court’s judgment is entitled to deference
because it had the unique opportunity to observe Juror Z’s
demeanor during voir dire. A ruling cannot be taken at face
value when it is clear that the reasoning behind that ruling
is erroneous in light of our prior precedents.5 There is abso
4 To the extent the Washington Supreme Court deemed Juror Z “sub
stantially impaired” because he initially demonstrated a misunderstanding
of or confusion about the relevant law, that would also be an insufficient
basis to support his exclusion for cause, given that by the end of the voir
dire questioning, his confusion on that point had abated and he had made
clear that even if the defendant were never to be released, he could still
consider the death penalty. He also initially “misunderstood the State’s
burden of proof in a criminal case” but, as the Washington Supreme Court
itself explained, “he was corrected later.” 132 Wash. 2d, at 604, 940
P. 2d, at 585.
5 Although pre-AEDPA, we recognized in Gray that the deference tradi
tionally given to a trial court’s findings may not be due when those find
ings are based on a misapplication of federal law. See 481 U. S., at 661,
n. 10 (“The State has devoted a significant portion of its brief to an argu
ment based on the deference this Court owes to findings of fact made by
a trial court. Such deference is inappropriate where, as here, the trial

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lutely nothing in the record to suggest—even in light of the
trial court’s tendency to provide “careful and measured ex
planations” for its decisions, ante, at 11—that anything about
Juror Z’s demeanor would dull the impact of his numerous
affirmative statements about his ability to impose the death
penalty in any situation. In effect, the Court reads some
thing into nothing and defers to a finding that the trial court
never made, instead of relying on the finding on which the
Washington Supreme Court clearly based its own ruling and
which finds no support in our decisions.
In its analysis, the Court places great emphasis on defense
counsel’s failure to object to Juror Z’s exclusion for cause,
characterizing it as “voluntary acquiescence to, or confirma
tion of,” his removal. Ante, at 18. A closer look at the voir
dire transcript, which the Court has included as an appendix
to its opinion, reveals that the Court’s interpretation of de
fense counsel’s statement is not necessarily accurate. Upon
being asked by the judge if either party had any challenge
to Juror Z, the State provided that it did and the defense
responded to the judge that it had “no objection.” App. 75.
Although the Court reads defense counsel’s statement to
mean that defense counsel had no objection to Juror Z’s ex
clusion, it is more clearly read to mean that the defense had
no objection to Juror Z serving on the jury and therefore no
reason to challenge him.6
court’s findings are dependent on an apparent misapplication of federal
law”).
6 As the Court of Appeals recognized in its opinion, it could also cer
tainly be the case that “defense counsel declined to object because he was
glad to get rid of juror Z[, given that] Z had described himself as pro-death
penalty, and reiterated numerous times, under oath, that he would be will
ing and able to impose the death penalty.” Brown v. Lambert, 451 F. 3d
946, 953, n. 9 (CA9 2006); cf. Witt, 469 U. S., at 437 (Stevens, J., concurring
in judgment) (noting that in the case of one juror who stated unequivocally
that she “ ‘could not bring back a death penalty,’ ” the defense’s objection
to the prosecutor’s motion to excuse her for cause served to demonstrate
that defense counsel wanted the juror to remain on the jury).

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42 UTTECHT v. BROWN
Stevens, J., dissenting
Even if we were to interpret defense counsel’s statement
as the failure to provide an affirmative “defense of Juror Z,”
ante, at 18, it is important to recognize that Washington law
does not require an objection to preserve an error for re
view.7 Ante, at 20; see also State v. Levy, 156 Wash. 2d 709,
719, 132 P. 3d 1076, 1081 (2006) (“We have long held that even
if the defendant fails to object at trial, error may be raised
on appeal if it ‘invades a fundamental right of the accused’ ”
(quoting State v. Becker, 132 Wash. 2d 54, 64, 935 P. 2d 1321,
1326 (1997))).
In any event, whether defense counsel’s statement is taken
as a failure to provide a defense of Juror Z or as acquiescence
in his recusal, it is irrelevant to the ultimate disposition of
this case. We said in Witt that the failure to object “in a
situation later claimed to be so rife with ambiguity as to
constitute constitutional error” is a factor that should be con
sidered when assessing a defendant’s claims, 469 U. S., at 431,
n. 11, but in this case there was absolutely no basis for strik
ing Juror Z. Thus, counsel’s failure to provide an affirma
tive response to the State’s motion, though perhaps not stra
tegically sound, does not doom respondent’s constitutional
claim. Unlike Witt, in which there was arguably some ambi
guity in the juror’s voir dire responses, here Juror Z had
unambiguously asserted his full capability to follow the law.
See, e. g., App. 58 (“I do believe in the death penalty in se
vere situations”); id., at 62 (responding to whether he could
consider both available sentencing options, “Yes, I could”);
id., at 63 (“I just felt that there were times when [the death
penalty] would be appropriate”); id., at 72 (responding to
whether he could consider and impose the death penalty
where the defendant would otherwise never be released from
prison, “Yes, sir”); id., at 73 (responding to whether he could
7 In contrast, in Witt, we found it significant enough to note that since
it had decided the case, the Florida Supreme Court had “enforced a
contemporaneous-objection rule when dealing with Witherspoon chal
lenges.” Id., at 431, n. 11.

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consider and vote for the death penalty where the alterna
tive is a life sentence without the possibility of parole,
“I could [impose it] if I was convinced that was the appro
priate measure”); cf. Witt, 469 U. S., at 438 (Stevens, J., con
curring in judgment) (“Given . . . [the juror’s] somewhat tim
orous responses, it is entirely possible that her appearance
and demeanor persuaded trial counsel that he would prefer
a more vigorous or less reluctant juror”).
II
Even a juror who is generally opposed to the death penalty
cannot permissibly be excused for cause so long as he can
still follow the law as properly instructed. The Court recog
nizes this principle, see ante, at 5–6, and yet the perverse
result of its opinion is that a juror who is clearly willing to
impose the death penalty, but considers the severity of that
decision carefully enough to recognize that there are certain
circumstances under which it is not appropriate (e. g., that it
would only be appropriate in “severe situations,” App. 63),
is “substantially impaired.” It is difficult to imagine, under
such a standard, a juror who would not be considered so im
paired, unless he delivered only perfectly unequivocal an
swers during the unfamiliar and often confusing legal proc
ess of voir dire and was willing to state without hesitation
that he would be able to vote for a death sentence under any
imaginable circumstance. Cf. Adams v. Texas, 448 U. S. 38,
50–51 (1980) (“We repeat that the State may bar from jury
service those whose beliefs about capital punishment would
lead them to ignore the law or violate their oaths. But [the
Constitution does not allow the exclusion of] jurors whose
only fault was to take their responsibilities with special seri
ousness or to acknowledge honestly that they might or might
not be affected”).
Today, the Court has fundamentally redefined—or maybe
just misunderstood—the meaning of “substantially im
paired,” and, in doing so, has gotten it horribly backwards.

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Breyer, J., dissenting
It appears to be under the impression that trial courts should
be encouraging the inclusion of jurors who will impose the
death penalty rather than only ensuring the exclusion of
those who say that, in all circumstances, they cannot. The
Court emphasizes that “the State has a strong interest in
having jurors who are able to apply capital punishment
within the framework state law prescribes.” Ante, at 9.
But that does not and cannot mean that jurors must be will
ing to impose a death sentence in every situation in which a
defendant is eligible for that sanction. That is exactly the
outcome we aimed to protect against in developing the stand
ard that, contrary to the Court’s apparent temporary lapse,
still governs today. See Gray, 481 U. S., at 658 (explaining
that to permit the exclusion of jurors other than those who
will not follow their oaths “unnecessarily narrows the cross
section of venire members” and “ ‘stack[s] the deck against
the petitioner’ ” (quoting Witherspoon, 391 U. S., at 523)).
Judge Kozinski’s opinion for the Court of Appeals in this
case is solidly grounded on the entire line of our cases recog
nizing the basic distinction dramatically illustrated by Jus
tice Powell’s opinion in Darden and by Justice Rehnquist’s
statement in Lockhart. He surely was entitled to assume
that the law had not changed so dramatically in the years
following his service as a law clerk to Chief Justice Burger
that a majority of the present Court would not even mention
that basic distinction, and would uphold the disqualification
of a juror whose only failing was to harbor some slight reser
vation in imposing the most severe of sanctions.
I respectfully dissent.
Justice Breyer, with whom Justice Souter joins,
dissenting.
I join Justice Stevens’ dissent. I write separately to
emphasize that, in my opinion, the Court’s strongest piece of
evidence—defense counsel’s words “no objection” (uttered
in response to the court’s excusing Juror Z)—should play no

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45 Cite as: 551 U. S. 1 (2007)
Breyer, J., dissenting
role in our analysis. App. 75. The words “no objection”
meant in context at most what they say, namely that defense
counsel did not object to the judge’s excusing Juror Z for
cause. Often States treat such a failure to object as waiving
a point. But that is not so here. That is because the Wash
ington Supreme Court has told us that, under state law,
counsel’s failure to object is without significant legal effect.
Ante, at 20 (opinion of the Court); ante, at 42 (Stevens, J.,
dissenting); State v. Levy, 156 Wash. 2d 709, 719–720, 132
P. 3d 1076, 1080–1081 (2006). And that means we must treat
this case as if a proper objection had been made.
The majority continues to rely upon the statement, how
ever, not as proving an objection, but as helping to demon
strate courtroom “atmospherics,” such as facial expressions
or vocal hesitations or tones of voice sufficient to warrant
excusing Juror Z for cause. Ante, at 17–20, 21. But in my
view the majority reads too much into too little. What the
words “no objection” suggest is simply that defense counsel
did not have any objection. And to find more in those few
words treats them like a Rorschach blot, permitting a re
viewing judge to affirm (or to reverse) the trial judge on no
more than the subjective view of the written record that the
appellate judge may take. Or, it simply offers a backdoor
way to avoid the effect of Washington’s procedural rule.
The latter would wrongly ignore Washington law. The for
mer would too often make it impossible to obtain meaningful
review of silent records. There is no need, after all, to
stretch the significance of ordinary statements and thereby
to assume special atmospherics that support (or undercut) a
trial judge’s decision. Where special courtroom atmospher
ics matter, a lawyer (or the judge) can always make appro
priate remarks for the record.
Basing my conclusions, then, on the written record itself,
and in particular upon what Juror Z said in response to ques
tions, I believe, for the reasons Justice Stevens sets forth
(and applying the Antiterrorism and Effective Death Penalty

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46 UTTECHT v. BROWN
Breyer, J., dissenting
Act’s strict standard), that the trial judge’s decision to excuse
Juror Z was constitutionally erroneous and a new trial is
necessary.
For these reasons, I dissent.