JUST when many of the opponents of the death penalty were ready to throw in the towel, a new issue has arisen that could substantially slow the recently hastened rate of executions in the United States. It involves the composition of a jury in a capital trial -- specifically, the right to excuse those on a panel who are philosophically opposed to legally mandated killings by the state.
US Supreme Court action in an Arkansas case before it this term could bring about a reversal of hundreds of capital punishment sentences across the US and effect a moratorium of executions in many states.
The question the high court must decide is whether dismissal of jurors who categorically oppose the death sentence violates a defendant's right to a fair trial -- and whether this action results in a ``conviction prone'' jury.
The case in question, Lockhart v. McCree, will likely clarify a Supreme Court ruling of 17 years ago in Witherspoon v. US, in which the justices held that jurors could be excused from duty if their consciences prevented them from following the court's instructions.
Until recently, most states interpreted the Witherspoon ruling to mean that jurors with such philosophical reservations about the death penalty should be excluded from the guilt-or-innocence phase of a capital trial as well as from the separate deliberations that assess punishment.
In the Lockhart case, however, the Eighth US Circuit Court of Appeals now has interpreted the Supreme Court's 1968 decision to apply only to that part of a hearing which decides on whether the death penalty should be meted out. The circuit tribunal held that jurors' moral qualms should not prevent them from participating, and following instructions, during the initial trial phase.
Pending resolution by the Supreme Court, some courts are ordering new judicial reviews for death-row inmates whose convictions came from juries that excluded capital punishment opponents.
And defense lawyers are framing pleas -- with marked success -- for stays of execution for their clients until the Lockhart case is resolved.
Just last week, in fact, the high court unanimously voted to postpone the execution of a convicted Atlanta murderer specifically for this reason. The defendant's lawyer called the Arkansas matter a ``quintessential test case.'' And he predicted similar stays for condemned prisoners across the nation -- with the effect of a wholesale temporary freeze on executions.
Does this mean the beginning of the end of capital punishment in the US -- and a permanent reprieve for the country's more than 1,500 death-row residents? The mood of the nation and the courts would seem to indicate not. Although the Supreme Court struck down most death-penalty laws in 1972 on the basis that they were vague and discriminatory, the high court began to reinstate them four years later as states penned stricter guidelines.
Since that time, the justices have shied away from any broad invalidations of capital punishment on philosophical bases, reversing individual sentences only in cases where improper courtroom procedures or lawyer misconduct had, in the Supreme Court's opinion, prejudiced a jury.
At the same time, the Justice Department, prodded by a White House that is pro-capital punishment, has strongly advocated this case-by-case disposition in matters that involve the death penalty.
Meanwhile, civil libertarians and others opposed to capital punishment are exploring another avenue -- racial bias -- in an attempt to stem the tide of executions. Some studies show that black defendants whose victims are white receive the death sentence proportionately more than blacks who kill blacks or whites who are convicted of murdering anybody.
The Supreme Court has not yet agreed to take a case that focuses directly on race discrimination as a factor in who gets the death penalty, although a Georgia matter encompassing this issue is being urged on it.
But the court has accepted a Kentucky case for argument this term which challenges the right of prosecutors in noncapital crimes to use peremptory challenges (those that allow exclusion of jurors for no stated reasons) to procure all-white juries in a trial of a black. A black defendant has held that he has a constitutional right to a jury composed of a ``cross section'' of his community.
A state supreme court rejected this argument. If it washes with federal jurists in an appeal, however, the door will almost certainly be opened soon to a high court airing of a death penalty case involving the same issue. A Thursday column