Full opinion text
MEMORANDUM OPINION EISELE, Chief Judge. Pending before the Court are the habeas corpus petitions of James T. Grigsby, Dewayne Hulsey and Ardia McCree, who have been in the custody of the Arkansas Department of Correction since their convictions for capital murder. Each petitioner contends that his conviction must be set aside due to the exclusion for cause at the guilt determination phase of his trial of certain venirepersons who during voir dire professed adamant scruples against the death penalty. The Court concludes that the process, as used in these cases, of “death qualification” of prospective ■ petit jurors suffers from two serious constitutional defects: first, it denies the accused a trial by a jury representative of a cross-section of the community; and second, it creates juries that are conviction-prone. The death-qualification process as practiced under Arkansas law, being unconstitutional, the writ must issue, but only in Mr. McCree’s case for the reasons stated below. I. Background: Prior Proceedings and Facts. All three petitioners were convicted of capital murder. Mr. Grigsby was so convicted in Franklin County, Arkansas, in September 1976. Mr. Hulsey was convicted in Ouachita County, Arkansas, in November 1975. Mr. McCree was convicted in Ouachita County, Arkansas, in 1978. After Mr. Grigsby’s conviction, the State waived the death penalty, and he was sentenced to life in prison without parole. After Mr. Hulsey’s conviction, a penalty trial was held in front of the same jury. Mr. Hulsey was sentenced to die. After Mr. McCree’s conviction, he was sentenced to life in prison without parole. This Court, in an earlier opinion, concluded that one of the prospective jurors in Mr. Hulsey’s case was improperly excluded from the penalty phase of the trial because she did not unequivocally state that she could not impose the death sentence. This Court therefore ordered that the death sentence imposed upon Mr. Hulsey be vacated on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Mr. Hulsey’s trial, nine jurors were excused for cause because of their opposition to the death penalty. The State used all but four of its peremptory challenges in excluding other jurors. Mr. Hulsey’s trial attorney made no objection to the exclusion for cause of death-scrupled veniremen. This Court therefore concluded, in an earlier opinion, that Mr. Hulsey could not raise the “Grigsby” issue on Federal habeas corpus review because of the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (contemporaneous objection rule bars consideration absent cause and prejudice). See also Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Hulsey v. Sargent, 550 F.Supp. 179 (E.D.Ark.1981). The remainder of Mr. Hulsey’s claims in support of his habeas corpus petition have been set for hearing commencing on September 30, 1983. In petitioner McCree’s trial, eight prospective jurors were excused for cause from the guilt-innocence phase because they stated that they could not impose the death penalty. The State used three of its peremptory challenges in excluding other prospective jurors from the panel who had expressed less adamant opposition to the death penalty, i.e., persons who could not be excluded for cause under Witherspoon. Mr. McCree’s trial attorney made a timely objection to the exclusion of death-scrupled veniremen for cause. The remainder of Mr. McCree’s arguments for the issuance of a writ of habeas corpus were considered and rejected by the Honorable Elsijane T. Roy. McCree v. Housewright, No. PB-C-80-429 (E.D.Ark. Jan. 6, 1982). Judge Roy’s decision was affirmed by the Eighth Circuit Court of Appeals. McCree v. Housewright, 689 F.2d 797 (8th Cir.1982), cert. denied sub. nom., McCree v. Lockhart, - U.S. -, 103 S.Ct. 1782, 76 L.Ed.2d 352 (1983). The facts concerning the voir dire and challenges in the Grigsby capital murder trial are set forth in the earlier decision of this Court, Grigsby v. Mabry, 483 F.Supp. 1372 (E.D.Ark.1980). Based upon these facts, this Court on May 16, 1979, sent the Grigsby case back to the Franklin County Circuit Court so that Mr. Grigsby would have an opportunity to present evidence in support of his motion that potential jurors opposed to capital punishment not be excluded for cause during the guilt determination phase of his trial. It was further Ordered that the evidentiary hearing commence not later than May 31, 1980. Id. at 1391. Both parties appealed. By a two-to-one decision, the Eighth Circuit Court of Appeals affirmed the trial court’s decision to require an evidentiary hearing, but determined that the federal district court would be the appropriate forum therefor. In that connection Judge Lay stated: This court has recognized the broad discretion of the district court to “send a case back to the state courts to resolve issues more properly considered by the judge who experienced the trial first hand.” United States ex rel. McQueen v. Wangelin, 527 F.2d 579, 581 (8th Cir. 1975); see also Hart v. Eyman, 458 F.2d 334, 338-40 (9th Cir.), cert. denied, 407 U.S. 916 [92 S.Ct. 2441, 32 L.Ed.2d 691] (1972). The issues in this case, however, are not of the kind more properly considered by the judge who experienced the trial first hand. Cf. Jackson v. Denno, 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908] (1964); Boles v. Stevenson, 379 U.S. 43 [85 S.Ct. 174, 13 L.Ed.2d 109] (1964); Patterson v. Lockhart, 513 F.2d 579, 581 (8th Cir.1975); United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (3d Cir.1976). The issues here are (1) whether prospective jurors were disqualified because of their death penalty views, (2) if they were, whether the resulting death-qualified jury was more prone to convict Grigsby or to convict him of a higher degree of murder, and (3) if it was, what legal remedy should be accorded Grigsby. There are no special circumstances or relevant cases which indicate that the trial court is a more appropriate forum than the district court for resolution of these issues. Grigsby v. Mabry, 637 F.2d 525, 528-29 (8th Cir.1980). The district court, after the original hearing, had “hesitantly” concluded that petitioner Grigsby would be denied relief based upon his contention that his constitutional right to a jury drawn from a fair, representative cross-section of the community was violated. In a footnote to Judge Lay’s majority opinion, it is stated: We also vacate the district court’s finding that the defendant was not denied a jury composed of a cross-section of the community. Because the record is to be supplemented by further evidence and in view of the close relationship of petitioner’s claim on the cross-section issue to the guilt-proneness claim, the district court should, upon completion of all the evidence, enter its findings on both claims. In this way there can be a single appeal on both issues regardless of the outcome in the district court on either issue. Id. at 529 n. 5. As noted above this decision is made with respect to three different habeas petitions. James Grigsby, Dewayne Hulsey, and Ardia McCree filed separate habeas corpus petitions in which they challenge, among other things, the exclusion for cause by the State from the guilt determination phases of their capital murder trials of those prospective jurors who were adamantly opposed to the death penalty. The petitions were therefore consolidated for the determination of this issue only. An evidentiary hearing was held on July 13-17 and July 29-31, 1981, in this Court. The case was submitted much later after extensive briefing. As a result of the evidence introduced at the hearing scheduled after the remand of the case, and after further research, this Court has reconsidered its decision that petitioners not prevail on their claim that they were unconstitutionally denied a jury composed of a representative cross-section of the community. The Court now concludes, as stated above, that the petitioners must prevail, both on that contention and also upon their claim that juries death-qualified under the Witherspoon standard are more likely to convict than juries from which persons are not excused on the basis of their adamant feelings for or against the death penalty. An analysis of the substantive issues follows. II. Denial of a Jury Drawn From a Fair, Representative Cross-Section of the Community A. The History of This Issue in This Case: After a long discussion of the development of the principle that there is a constitutional right to a jury drawn from a group which represents a fair cross-section of the community, this Court stated that: [T]he exclusion on Witherspoon grounds of scrupled jurors from the guilt determination phase of a trial would seem to run afoul of the Sixth Amendment guarantees. Grigsby 483 F.Supp. at 1384. However, the Court concluded that there were two “roadblocks” to this conclusion: (1) Witherspoon itself, and (2) the argument that the two scrupled Witherspoon groups (that is, those adamantly opposed to the death penalty and those mildly opposed to the death penalty) are not “distinctive” one from the other and that, therefore, if you exclude only one of such groups, the presence of the other group on the jury panel will still ensure that the jury is “representative.” Cf. [United States v.] Olson, [473 F.2d 686 (8th Cir. 1973)], supra. $$$$$$ This Court is, of course, aware that the group barred in Witherspoon was larger than the group barred in this case. However, in view of cases decided subsequent to Witherspoon by the Supreme Court, it is not at all clear that the question concerning representation in the guilt determination phase of the trial would be answered the same way it appears to have been answered by the Witherspoon decision. See supra, p. 1380. But Wither-spoon has not been specifically overruled, and this Court, hesitantly, concludes that it must follow that precedent. This conclusion is reinforced by the Court’s belief that the Eighth Circuit and the Supreme Court might uphold Witherspoon, as here applied, even after, and in the face of Taylor [v. Louisiana, 419 U.S.?522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)], on the theory that no “distinctive” group has been excluded and that the State’s interest in having one jury determine guilt and sentence would justify the removal of those adamantly opposed to capital punishment by for-cause challenges. Grigsby at 1384-85. The Eighth Circuit case of United States v. Olson, 473 F.2d 686 (8th Cir.1973), set forth the rationale of the principal “roadblock.” In that case it was alleged that an identifiable community group, to wit, persons aged 18 to 20, were excluded, and that the effect of this was to deny the petitioner there his Sixth Amendment right to a representative jury. Judge Matthes stated: Accordingly, the dispositive question is whether persons aged eighteen to twenty compose an “identifiable group” which cannot be systematically excluded from jury service without rendering juries non-representative of community attitudes. But appellant has “failed to show that the attitudes of this group [18-20] are inadequately represented by those several years older than they, that is, that eighteen to twenty-one year olds are a distinct, cognizable group.” United States v. Deardorff, 343 F.Supp. 1033, 1043 (S.D. N.Y.1971). “The difference in viewpoint between ages [eighteen to twenty and twenty-one to twenty-five, for example] . .. would not seem to us of any great significance .... King v. United States, 346 F.2d 123, 124 (1st Cir.1965). Accordingly, we hold that persons aged eighteen to twenty are not an identifiable group the exclusion of which renders a jury list nonrepresentative of the community and violative of the Fifth and Sixth Amendments. Olson, 473 F.2d at 688 (emphasis added). It appears from the opinion that there was no evidence or empirical data from which the Court could determine whether the “decisional outlook” of persons between ages 18 to 20 differed from that of the 21 to 25 age group in any significant manner. The Court stated that it regarded it “as highly speculative whether the decisional outlook of such excluded persons would be different from that of persons a mere few years older.” Id. (quoting King v. United States, 346 F.2d 123, 124 (1st Cir.1965)). So in the Olson case the Eighth Circuit was confronted with a record from which it could not determine if the 18 to 20 year old group was a “distinctive, identifiable group.” This Court questions whether, as a general rule, a group, to qualify as a substantial, distinctive and identifiable class, must necessarily hold a “distinctive attitude” unrepresented by others on the jury. The theory of the representation cases is generally to the contrary. One has only to consider that contention in connection with the exclusion of women or blacks. The vice lies not in the assumption of the truth of the proposition that blacks or women hold distinct attitudes unrepresented by white males— although they might — but in the removal of any significant qualified group from the panel without some good cause. And, conceptually, no showing is required to establish that the removal of such a large “distinctive” group would result in a jury more guilt-prone or more likely to convict because we are dealing here with what, under the Sixth Amendment, is properly considered a “jury” — not the same question as what, under the Sixth Amendment, is an “impartial jury.” However, when a particular group is defined by its distinctive attitudes, as here, it is obviously necessary for the proponent to establish the existence of a group whose “decisional outlook” is different from that of non-excluded people. By the same token it is open to the opponent to attempt to show the contrary. Whether Olson might be wrong on the above analysis is beside the point. Here we must deal with “distinctive attitudes” and “decisional outlook” because such criteria are needed to define the group at issue. Before dealing with the specific “cross-section, representative” jury issue presented in this case, it will be useful to review the history of the development of that concept. B. The Pre-Duncan Development of the Cross-Section Principle: The right to a fair cross-sectional, representative, jury has been based upon the due process and equal protection clauses of the Fourteenth Amendnient and also upon the Sixth Amendment. The Sixth Amendment did not become applicable to state criminal prosecutions until Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Therefore, prior to 1968, the focus was upon the due process and equal protection clauses of the Fourteenth Amendment. The earliest cases dealt with the exclusion of blacks from jury service. In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), a West Virginia statute which permitted only white males above the age of 21 to serve as jurors was challenged by a black defendant. The Supreme Court ruled that under the Fourteenth Amendment, “. .. the Statute ... amounts to a denial of the equal protection of the laws to a colored man .... ” Id. at 310. Although the main thrust of the Strauder opinion is to vindicate the purpose of the Fourteenth Amendment to assure to blacks the enjoyment of all the civil rights that are enjoyed by white persons, the language of the opinion contained implications that went beyond that narrow thrust. The Court indicated that the exclusion of an entire class of people would violate the equal protection clause even if those excluded were white men or “naturalized Celtic Irishmen.” Id. at 308. The Court said: The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.... ” Id. In Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), the Supreme Court in a unanimous decision extended this doctrine to strike down the systematic exclusion of Mexican-Americans from jury service. As indicated above, prior to Duncan, the Supreme Court had no occasion to consider the importance of the Sixth Amendment in connection with state criminal trials since the jury trial requirement of the Sixth Amendment was deemed inapplicable to the state courts. The idea that juries should be reflective of our democratic form of government was advanced in the cases of Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), and Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). In Thiel the Court invalidated a jury selection system under which daily wage earners were systematically excluded from the venire. The Court said, “American tradition of trial by jury ... contemplates an impartial jury drawn from a cross-section of the community.” 328 U.S. at 220, 66 S.Ct. at 985. In Ballard, the Court reversed a conviction and dismissed an indictment because women had been systematically excluded from jury service. In Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), the Court stated, “it is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community ... . ” In Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757 (1959), the Court said, “[TJrial by jury cease(s) to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races — otherwise qualified to serve as jurors in a community — are excluded as such from jury service.” It must be remembered that, although the Witherspoon case was decided by the Supreme Court two weeks after its decision in the Duncan case, the Witherspoon trial had occurred years earlier. Indeed, the Witherspoon majority opinion does not mention Duncan and does not rest upon Sixth Amendment grounds. In Wither-spoon the Court held that the exclusion of death-scrupled persons to an extent unnecessary to obtain jurors who could obey their oath to decide impartially the issues submitted to them violated a capital defendant’s right to due process in the determination of penalty. The Court stated, “The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.” 391 U.S. at 523, 88 S.Ct. at 1778. Although Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), was decided after Duncan, the trial in Peters had occurred prior to Duncan. Therefore, the Peters decision was based upon the due process requirements of the Fourteenth Amendment. In Peters, Justice Marshall, in a plurality opinion, held that the systematic exclusion of blacks constituted a denial of the due process rights of any defendant, black or white: When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable .... It is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce. * * * In light of the great potential for harm latent in the unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few. Peters v. Kiff, 407 U.S. at 503-04, 92 S.Ct. at 2168-69 (footnote omitted). Finally, when the Supreme Court in Duncan first extended the protection of the Sixth Amendment to defendants in state criminal cases it reasoned: A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government .... Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge .... The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States. 391 U.S. 145, 155-56, 88 S.Ct. 1444, 1450-51, 20 L.Ed.2d 491 (1968). C. Post-Duncan Development: After Duncan, the Supreme Court had several occasions to deal directly with the Sixth Amendment requirements. It concluded that a “representative jury” was necessary, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), and that a criminal trial jury should consist “of a group of laymen representative of a cross-section of the community.” Finally, in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), representativeness became the central consideration: We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation .... Id. at 530, 95 S.Ct. at 697. On that predicate it declared that the exclusion of women was unconstitutional, stating: .. . jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof. Id. at 538, 95 S.Ct. at 701. D. Analysis: Courts have generally refused to deal with the question of representativeness or “fair cross-section” in the abstract. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court placed the burden upon the party challenging the jury selection process to disprove its representativeness; that is, to show that the jury panel fails in some significant way to reflect the community. And it must show that this result occurred because the group was systematically excluded by the selection procedure under attack. The court stated: In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. 439 U.S. at 364, 99 S.Ct. at 668. What is a “distinctive” group that may not systematically be excluded? First, it must be noted that if the exclusion of just any group were fatal, no practical jury system could survive. As a practical matter, one must first inquire whether the characteristic that defines the group is of any consequence to the proper functioning of the jury. For instance, some juries have been selected from lists composed of persons whose last names began with certain letters of the alphabet. Or a jury might be drawn from persons whose birthdays fall in odd or even months. Clearly, such systems would have the effect of excluding large numbers of people, but would those excluded be considered a “distinctive group” and would their exclusion be of any real consequence in terms of jury function? It should be noted from these examples that the identifying criteria used automatically prevents the group excluded from having any “distinctive” characteristics different from the group remaining. In fact, it is assumed in these cases that the method of exclusion is randomly based and, therefore, that both the group excluded and the group remaining would continue to be “representative cross-sections of the community.” Put another way, the method used prevents the removal of any “identifiably distinctive” group. In this connection it should be emphasized that such methods do not, directly or indirectly, have the effect of diminishing the representation on the panel of any “distinctive” group such as blacks or females. This is important here because, as will be noted below, the removal of “ Witherspoon excludables” does have the indirect effect of lessening the representation of certain groups such as the poor, women, blacks, and certain ethnic and religious groups. See Grigsby, 483 F.Supp. at 1384. Once a cognizable, distinctive group has been identified, the party making the challenge must show that this group is somehow systematically excluded. This exclusion need not be purposeful. It can result from either de jure exclusion by statute (e.g., Strauder), de facto exclusion by local practice (e.g., Thiel), or disproportionate exclusion resulting from the availability of exemptions (e.g., Duren). Here, the exclusion results from the voir dire process permitted. This particular process of exclusion has not been involved in prior cases. This is understandable when one realizes that death qualification is the only procedure in our criminal justice system which has the effect of systematically excluding an entire group of fair and impartial jurors because of a particular attitude that they possess upon a matter that is irrelevant to their service as jurors in the trial of the issue of the guilt or innocence of the accused. Once the challenging party establishes a prima facie case under Duren, the state must justify the procedure used. As stated in Duren the state must show that “a significant state interest ... [is] manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group.” 439 U.S. at 367-68, 99 S.Ct. at 670-71. And, as previously pointed out, once a violation of the fair cross-section requirement has been established, prejudice to the defendant is presumed. See Peters v. Kiff, 407 U.S. at 503-05, 92 S.Ct. at 2168-70. So this discussion brings us back to where we left off in this Court’s first opinion in Grigsby. Do the “ Witherspoon -excludables” constitute a “cognizable group,” the systematic exclusion of which during the guilt determination phase would constitute a violation of the Sixth and Fourteenth Amendments? Since Duncan, the Sixth Amendment focus has been upon the interposition between the accused and his accuser of the common sense judgment of a jury chosen from a group which truly represents the full range of community attitudes and perspectives that are relevant to the jury functioning process. The empirical approach to the problem of ascertaining the existence of cognizable groups can be seen developing in the cases. In dealing with groups other than racial minorities and women, the Supreme Court has hesitated to assume any automatic correlation between demographic characteristics and relevant jury-functioning attitudes. This explains the age group cases, such as United States v. Olson, i.e., in the absence of empirical data showing that young people between the ages of 18 and 20 possess distinctive attitudes relevant to the jury functioning process from those attitudes held by other young persons between the ages of 21 and 25, the Court was unwilling to assume that the exclusion of the 18-to-20 year old group would destroy the representativeness of the jury. Or, put another way, the Court was unwilling to assume that the 18-to-20 year old group was a “distinctive” cognizable group in relationship to pertinent jury functions. Likewise, courts have refused to assume that pertinent juror attitudes might be determined by place of residence. See United States v. Butera, 420 F.2d 564 (1st Cir.1979). And some courts have followed the same approach in dealing with the exclusion of economic groups. The case at hand is sui generis: persons otherwise qualified are being removed because of a shared attitudinal perspective, and it is clear that the shared attitude is distinctive, i.e., it is not held by those who are not so excluded. As stated in this Court’s first opinion: It cannot be doubted that .. . those excluded for cause pursuant to Witherspoon constitute an identifiable group. No one else will represent their strong viewpoint on the jury in their absence. Indeed, the United States Supreme Court itself has drawn the line to create the two, assumedly different, groups: those with mild scruples who may not be excused for cause and those who will never impose the death penalty who may be so excused. And the Supreme Court’s analysis clearly suggests that the difference is not merely quantitative. The first group simply does not represent the absolutist attitude of the more strongly scrupled group. Grigsby v. Mabry, 483 F.Supp. at 1382. But is this shared attitudinal perspective with respect to penalty significant at the guilt determination phase? Empirical data might show, for instance, that the 18-to-20 age group has a separate and distinct view with respect to a certain style of music or dress from the 21-to-25 age group. But would such distinction alone serve to make the 18-to-20 year old group “cognizable” for jury functioning purposes? Probably not. But it turns out that death penalty attitudes are at the opposite extreme. Those views are intimately tied to other attitudes and views which are directly implicated when jurors determine the guilt or innocence of a defendant in a criminal trial. The evidence shows that “Witherspoon excludables” generally share an amalgam of interrelated attitudes toward the criminal justice system which is distinct from that possessed by “death qualified” jurors. Indeed, the evidence has now demonstrated that such attitudes of the “ Witherspoon ex-cludables” are different and distinctive even as compared to those mildly scrupled persons, i.e., those who have some negative attitudes towards the death penalty, but nevertheless could impose it in some cases. Such evidence undercuts the idea that the mildly scrupled jurors who are not excluded under Witherspoon would adequately represent the attitudes of those who are excluded under Witherspoon. See discussion of studies, infra. Furthermore, the evidence establishes that one consistent and inevitable result of the death-qualification process is the disproportionate exclusion of blacks and women. See discussion of studies, infra. This particular finding might indeed make it redundant to note, as the Court has above, that the evidence shows that the mildly scrupled jurors do not adequately represent the perceptions and perspectives of the “Wither-spoon excludables.” In other words, since the death qualification process clearly impacts more heavily upon blacks and women, it can be argued that no further showing is necessary. As Judge Lay pointed out in the Eighth Circuit’s decision, the issues concerning representativeness and guilt-proneness, although different, are closely interrelated in this case. For convenience, the empirical studies relating to both of such issues will be discussed under “guilt proneness,” in Section II below. Prospective jurors who subjectively honestly believe, and swear, that they can fairly and impartially try the issues of fact relating to the guilt-innocence of the defendant should be permitted to serve even though we know that some prospective jurors are more likely to convict than others. The U.S. Supreme Court implicitly recognized this basic concept in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). It will be recalled that, under the “nullifier” prong of Witherspoon, the state could exclude persons whose death penalty views would prevent them from being impartial on the question of the defendant’s guilt. In Adams, however, the Court refused to permit disqualification for the unwillingness or inability of a prospective juror to swear, in accordance with a Texas statute, that the possibility that the defendant might be executed would not affect that person’s deliberations on any issue of fact. Why? Because the Court felt this would be permitting exclusion of capital punishment objectors on a “broader basis” than that permitted by Witherspoon. The court has apparently recognized that death penalty ideas (and perhaps other ideas) may unconsciously affect how a person views and interprets evidence, how he understands the ideas of “presumption of innocence” or of “proof beyond a reasonable doubt,” or the evidence relating to certain defenses. Yet that person may, in courtroom parlance, be a perfectly “good” juror — “good for the State” and “good for the defense” — because he honestly can, and honestly believes he can, try the issue of the defendant’s guilt-innocence solely upon the basis of the law and the evidence. The language of the Supreme Court in the Adams case is instructive: Such a test could, and did, exclude jurors who stated that they would be “affected” by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be “affected.” But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law. 448 U.S. at 49-50, 100 S.Ct. at 2528-29 (footnotes omitted). So it is recognized that each of us is the product of our genes and experience. Each of us views things from different perspectives. We simply see things differently. No jury system can survive which permits exclusion upon the basis of a showing of just any unconscious predilections which might tend to favor the defendant or the state. Once again we must start with the democratic premise of the inclusión of those who can honestly swear that they can, and will, try the case upon the basis of the law and the evidence. Although, as pointed out in Thiel, there can be no certainty that the broad spectrum of community views on economic, social, religious, racial, or political issues will be present on any particular jury, we can be certain that prospective jurors, “be selected by court officials without systematic and intentional exclusion of any of these groups.” 328 U.S. at 220, 66 S.Ct. at 985 (Emphasis supplied). Inclusion, not exclusion, must be the basic rule. Professor Winick makes the point this way: To subject jury challenges to scrutiny under the sixth amendment, however, is not to say that the absence or substantial underrepresentation of any particular group on a petit jury violates the cross-section requirement. A defendant is not entitled to “a jury of any particular composition,” or to a jury that mirrors the community. The random application of unobjectionable jury selection methods, or the legitimate exercise of challenges for cause or peremptory challenges, will often result in particular juries that do not even approximately mirror the community. Indeed, a jury of twelve could never reflect all the distinctive groups in the population. A defendant is entitled only to jury selection procedures which do not “systematically exclude distinctive groups in the community.” Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study And A Constitutional Analysis, 81 Mich.L.Rev. 1, 65-66 (1982) (footnote omitted) [hereinafter cited as Peremptory Challenges in Capital Cases ]. The Court readopts what it stated in its first “Grigsby” opinion concerning the size of the excluded group, adding only that the evidence presented at the hearing after remand reinforces the conclusion that the group is of substantial size both nationally and within the state of Arkansas, ranging between 11% and 17% of those eligible for jury service. So the group excluded is both distinctive and sizeable. To meet the second element of the Duren test for establishing a prima facie violation of the fair cross-section requirement, the petitioners must show that the representativeness of the group “in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community.” See 439 U.S. at 364, 99 S.Ct. at 668. The Court finds that the petitioners have made the requisite showing. However, before moving on the Court will deal with one of the arguments of the respondent on this point. The respondent suggests that the Sixth Amendment cross-section requirement should apply only to the pool or venires and not to actual juries. And the Fifth Circuit has recently made a similar suggestion. Smith v. Balkcom, 660 F.2d 573, 583 n. 26 (5th Cir.1981). Such a contention flies in the face of the policies underlying the cross-section requirement and, if accepted, would provide a device for avoiding the effect thereof. Professor Winick’s remarks in Peremptory Challenges in Capital Cases, supra, are again on target: The concept of the jury as representing a fair cross-section of the community serves not only the interest of the litigants in a fair trial, i.e., the assurance of at least some degree of what Mr. Justice Frankfurter called “diffused impartiality,” but significant societal goals as well. Community participation in the jury system comports with “our basic concepts of a democratic society and a representative government.” Moreover, it is also “critical to public confidence in the fairness of the criminal justice system.” These goals would not be accomplished if the representativeness requirement pertained only to jury pools, and if challenges systematically could be used in such a way that the juries actually selected are “made up of only special segments of the populace or if large, distinctive groups are excluded.” Moreover, the essential purpose of the jury — to interpose the “common sense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge” — is not achieved if the over-zealous prosecutor or over-conditioned judge can eliminate the representative character of the jury through the jury challenge process. The systematic use of jury challenges should thus be subject to scrutiny under the sixth amendment cross-section requirement. 81 Mich.L.Rev. at 64. Professor Winick goes on to point out that we do not need to rely on the inconsistency of the contention with the underlying constitutional policies at issue. Rather we can directly cite the U.S. Supreme Court in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) — -an extremely important case in so many ways — as clear precedent against the state’s contention. In Ballew, the effort was made to uphold a five-person jury in misdemeanor cases against an attack under the Sixth Amendment cross-section requirement. The Court invalidated the five-person jury because, inter alia, that size “prevents juries from truly representing their communities.... ” Id. at 239, 98 S.Ct. at 1038. As Professor Winick observes: No issue was raised concerning the representativeness of the jury pools from which Georgia selected five-person juries, or concerning the arbitrary exclusion of any particular class from five-person juries. Yet the Court noted that the absence of an equal protection problem did not dispose of “the question of representation,” which combined with other factors created “a problem of constitutional significance under the Sixth and Fourteenth Amendments.” If the cross-section requirement places limits on statutory reductions in jury size because resulting juries may not truly represent the community, then it should also be deemed to place limits on jury challenges which interfere with the representative character of resulting juries. 81 Mich.L.Rev. at 65 (footnote omitted). And of course, no one argues that it would be permissible under the Sixth Amendment to remove women or blacks by challenges for cause based solely on race or sex even though the pools or venires from which they were drawn were perfectly representative of the community. And, although Wither-spoon was not overtly a “Sixth Amendment” case, there is language therein with respect to the necessity of including mildly scrupled jurors in order to make the jury representative at the penalty phase of the trial. And, obviously all scrupled jurors were represented properly in the pool of venires. So the vice there as here was the destruction of representativeness through the challenge-for-cause process. So the petitioners have met the second test required by Duren: the representation of the excluded group after voir dire and the consequent challenges for cause, will not be fair and reasonable in relation to the number of such persons in the community. In fact, no representative of such group will remain after voir dire. And it is apparent to all that this under-representation (zero representation) is “due to systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364, 99 S.Ct. at 668. So petitioners have established their prima facie case. The only remaining question is: has the state justified its insistence upon the use of the challenged procedure? The Court will turn to this question after dealing with the “guilt-proneness” issue. However, before putting the “representative cross-section” issue behind us the Court will look at a “Witherspoon"argument that keeps cropping up despite the obviousness of the answer thereto. The argument is that the Supreme Court will never accept the petitioners’ cross-section Sixth Amendment contentions because of the position it took in Witherspoon itself. There the Supreme Court clearly permitted the removal at the penalty phase of the very group whose removal at the guilt-innocence phase of their trials, petitioners now contend destroys the cross-section or representativeness of the jury in violation of their constitutional rights. The argument goes: If petitioners have a constitutional right to a representative jury at the guilt-innocence phase of their trial they also have a right to such a jury at the penalty phase. The Supreme Court recognized that those with adamant views against the death penalty may be removed at the penalty phase. Since the Supreme Court obviously would not countenance an “unrepresentative” jury at the important penalty phase of the trial, it follows that it concluded in Witherspoon that a jury without those adamantly opposed to the death penalty would still be a “representative” jury under Sixth Amendment standards. Ergo, the logic runs, such a jury would also be representative at the guilt-innocence phase. It is not an adequate answer to simply state that Witherspoon was not a Sixth Amendment case. But there are two separate analyses that put such an argument to rest. First, the Witherspoon qualified jury at the penalty phase, considering its mission, is as representative as can be: It is composed of all of those, but only those, who can honestly swear that they are able and willing to try the penalty issue in accordance with law of the state and the evidence presented. If a prospective juror states “I don’t care what the law or the evidence is, I will never vote for the penalty of death,” i.e., if he is a Witherspoon Ex-cludable, or if a prospective juror states, “I don’t care what the law or the evidence might be, I will always vote to impose the death penalty for this type of crime,” i.e., if he holds Automatic Death Penalty views, then neither will be able to conscientiously take the oath to serve as a juror who will be both fair to the defendant and fair to the state at the penalty phase. Both are therefore “nullifiers” in this context and are being excluded for the most traditional and accepted of all reasons: They cannot swear to try the issues presented upon the law and the evidence. They are not being removed because they are members of a group or class. The “bigamy-Mormon” example cited in the first Grigsby opinion comes to mind. If the Court states that it is its understanding that all Mormons believe that bigamy should not be considered a crime and, on that basis proceeds to exclude all who state they are Mormons, it would be committing error by excluding a religious class without justification. But if the Court asked each juror if he could try the charge of bigamy in accordance with the law and the evidence and all of the Mormons on the panel answered, “no,” they could be properly excluded. But they would then be being excluded on the basis of their individual answers, not their group affiliation. Of course there might be one, more, or many Mormons who could honestly swear to put personal or religious values aside and to try the case on the law and the evidence. If so they should not be excluded. The Witherspoon death qualification rationale has implicit parallel considerations: not all prospective jurors who have scruples against the death penalty may be excluded at the penalty phase. Indeed, only those may be excluded who could never impose the death penalty, regardless of the evidence and the law, i.e., only those who could not conscientiously swear to try the penalty issue with a mind that is not already closed on that issue. A second answer to such an argument would focus on the state’s interest. The state has a strong and legitimate interest in having those penalty alternatives which have been established by its legislature considered by a jury that is capable of applying that law in a fair and impartial manner. This state interest can only be accommodated by permitting the removal for cause at the penalty phase of those who admit that they cannot try the penalty issues upon the law and the evidence. As stated in Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757 (1959): [Tjrial by jury cease(s) to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races — otherwise qualified to serve as jurors in a community are excluded as such from jury service. (Emphasis supplied.) III. Denial of a Fair and Impartial Jury: Guilt Proneness of Death Qualified Juries. A. Legal Principles and Terminology. No proposition is more fundamentally linked to our accepted notions of due process than that which declares that persons charged with serious crimes are entitled, as a matter of right, to trial by a fair and impartial jury. The litany which gives expression to that right is repeated in hundreds of jury cases daily throughout the nation. Indeed, the paramount objective of the entire voir dire process is to obtain a jury which will fairly and impartially try the issues of fact presented by the allegation in the indictment or information and the “Not Guilty” plea of the accused. This right arises from both the Sixth Amendment and the principles of due process. Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S.Ct. 1017, 1020 n. 6, 47 L.Ed.2d 258 (1976). To paraphrase Witherspoon, the decision whether a person is guilty or not guilty of a capital crime must be made on scales that are not tipped by state procedures toward guilt. See 391 U.S. at 521-22 n. 20, 88 S.Ct. at 1776 n. 20. Any procedure which might predispose the trier of fact to convict violates due process. This principle was firmly established in Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), which involved a challenge to an Ohio statute, that empowered a village mayor to act as judge in trials of offenses against the state’s prohibition laws, and that also entitled the mayor to recover $12 in costs if a defendant was convicted. The Court held the statute unconstitutional under the due process clause of the Fourteenth Amendment, even without a showing of actual prejudice. The court stated: Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law. Id. at 532, 47 S.Ct. at 444. The Court made it clear that even though the evidence showed that the defendant was clearly guilty, he was entitled to have an impartial trier of fact: No matter what the evidence was against him, he had the right to have an impartial judge. Id. at 535, 47 S.Ct. at 445. See also Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977); Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). The cases involving pretrial publicity are also pertinent since, in such cases, it is necessary to determine if information received preceding the actual presentation of evidence might impair the trier of fact’s ability to assess that evidence in a fair and objective manner. In Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), the Supreme Court stated: [T]he trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. The objective is to prevent even the possibility of unfairness. The majority in the Eighth Circuit Grigsby opinion directs this Court to resolve this issue: whether death-qualified jurors are more likely to convict than jurors selected without regard to their views on the death penalty. So the focus of our inquiry is upon the predisposition, if any, of death-qualified jurors. The Court now reviews the evidence bearing on this issue. To deal with the pertinent empirical data it is necessary to settle upon some terminology, although neither legal scholars nor social scientists are fully in agreement thereon. The Court is here concerned with a spectrum of penalty preferences based upon differing attitudes toward the death penalty. Dr. Robert M. Berry in his article, Death-Qualification and the “Fireside Induction,” 5 U.Ark. Little Rock L.J. 1, 2 (1982) [hereinafter cited as “Fireside Induction ”] has adapted the following useful table from the materials reported in Hovey v. Superior Court, 28 Cal.3d 1, 616 P.2d 1301, 168 Cal.Rptr. 128 (1980): Prior to Witherspoon many states permitted the prosecution to remove “for cause” during the voir dire of capital cases all persons who opposed the death penalty in any degree. See, e.g., Williams v. State, 32 Miss. 389, 392 (1856). This practice of “death qualifying” juries continued even when the guilt and penalty phases of capital trials were functionally separated. In the guilt phase the jury would determine the defendant’s guilt or innocence. If it found the defendant guilty of the capital offense, the same jury would then decide whether to impose death or some other permissible penalty — usually life imprisonment. See “Fireside Induction,” supra at 3. In Witherspoon the Supreme Court determined that it was “self-evident” that juries formed by excluding all those who had “general objections to the death penalty” could not “speak for the community” and “were uncommonly willing to condemn a man to die.” 391 U.S. at 518, 520, 521, 88 S.Ct. at 1775, 1776. The Court stated that only those “... who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt”, id. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21, could be excluded for cause. Of course there was nothing new in the second proposition since anyone, even in non-capital cases, will be excused for cause if, for any reason, he cannot swear that he will make an impartial decision on the guilt or innocence of the defendant. See discussion of “nullifiers” below. As a result of Witherspoon both those who are able to make an impartial decision on the defendant’s guilt and those who are not are excluded from participating in that decision if they, on voir dire, express adamant opposition to the death penalty, i.e., if they would, at any later sentencing phase, “automatically” vote against the death penalty without regard to the evidence in the case. Jurors possessing such strong scruples against the death penalty are referred to as “Wither-spoon Excludables” or “WEs.” In terms of the above table they could also be referred to as the “Automatic Life Imprisonment Group.” In Witherspoon it was also argued that to exclude jurors with scruples against the death penalty (groups 4 and 5 above) in the guilt-determination phase, as was done in that case, would result in creating a “tribunal organized to return a verdict of death” thereby depriving the defendant of a representative jury as well as of an impartial jury. 391 U.S. at 521, 88 S.Ct. at 1776 (citing Fay v. New York, 332 U.S. 261, 294, 67 S.Ct. 1613, 1630, 91 L.Ed. 2043 (1947)). The petitioner in Witherspoon attempted to persuade the Supreme Court on the basis of logic and intuition that those persons who expressed attitudes in favor of the death penalty would, as jurors, “favor the prosecution in the determination of guilt.” He argued that “ ‘no additional proof beyond ‘the facts ... disclosed by the transcript of the voir dire examination’ ” was needed to establish the unconstitutionality of a guilt determination by a death-qualified jury. See 391 U.S. at 517 n. 11, 88 S.Ct. at 1774 n. 11. In fact, the petitioner in Witherspoon expressly declined the “opportunity to submit evidence” on the guilt-proneness issue. It is true that at the appellate level the petitioner asked the Supreme Court to judicially notice summaries of some early social scientific research. More particularly, the Supreme Court was referred to: (1) W.C. Wilson, Belief in Capital Punishment and Jury Performance (1964) (unpublished manuscript, University of Texas) (2) F.J. Goldberg, Attitude Toward Capital Punishment and Behavior as a Juror in Simulated Cases (undated) (unpublished manuscript, Morehouse College) and (3) H. Zeisel, Some Insights into the Operation of Criminal Juries (Nov. 1957) (confidential first draft, University of Chicago), 391 U.S. at 517 n. 10, 88 S.Ct. at 1774 n. 10. The Supreme Court found this data “too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” Id. Indeed, those data were very “tentative and fragmentary.” The Supreme Court noted that in his brief, Witherspoon relied only upon the Wilson and Goldberg articles. The Zeisel fragment ■ referred to in Witherspoon’s petition for certiorari was apparently withdrawn. The Supreme Court noted in Witherspoon that the items which it was asked to judicially notice had not been introduced into evidence or subjected to the fact-finding process. Therefore, the Court was left to: “... speculate ... as to the precise meaning of the terms used in the studies, the accuracy of the techniques employed and the validity of the generalizations made.” Id. at 517 n. 11, 88 S.Ct. at 1774 n. 11. The Court ultimately refused to find, based upon the record or judicial notice, “that-the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt.... ” Id. at 517-18, 88 S.Ct. at 1774-75. By this determination the Supreme Court refused to adopt a per se guilt phase rule. Instead, it invited further study, leaving it open for future defendants to attempt to prove that juries death-qualified by Witherspoon standards were “less than neutral with respect to guilt.” See id. at 518, 88 S.Ct. at 1775. The petitioners in the case at bar have responded to the Supreme Court’s invitation with a plethora of well-documented scientific research that does not suffer from the numerous deficiencies attributed to the research in Witherspoon. The manuscripts of the Zeisel and Goldberg studies, relied upon by petitioners here are thorough and complete, whereas earlier versions of those studies, which the Supreme Court reviewed in 1968, were both unpublished and incomplete. And the record establishes that the Supreme Court had only a five-to-eight page fragment of what became a fifty-page monograph by Dr. Zeisel. More importantly, this fragment did not include Dr. Zeisel’s depiction and explanation of his data in what became Table 9 of that monograph. As has been noted in the first Grigsby decision, the group excludable after Wither-spoon (5 above) is a smaller subset of the group excluded in the Witherspoon’s trial itself (4 and 5 above). But the questions remained: (1) Are there among those in the group adamantly opposed to the death penalty (the WEs) persons who could fairly and impartially try the guilt/innocence issue if they did not have to participate in the sentencing phase, and (2), if so, does the exclusion of such persons deprive the defendant at the guilt phase of a representative jury (see discussion supra), or result in a jury that is more prone to convict than would be a jury from which such persons were not excluded? The term “nullifier” is used to describe a prospective juror who states that he would be unable to try the issue of the defendant’s guilt/innocence upon the basis of the evidence and the law. In the death-penalty context this is the person who would say, “I cannot vote a defendant guilty regardless of the evidence if I know that, should he be convicted, someone else [the court or some other jury] might impose the death penalty.” These nullifiers are described in Witherspoon as those persons who make it unmistakably clear that their attitude toward the death penalty “would prevent them from making an impartial decision as to the defendant’s guilt.” See 391 U.S. at 513, 88 S.Ct. at 1772. It is, of course, agreed by all that “nullifiers” are properly excluded from both the guilt/innocence phase and the sentencing phase of a capital case. But it is urged that no proper reason exists for the exclusion of the impartial WEs at the guilt/innocence phase. For this reason they are sometimes referred to as “Guilt-Phase Indudables.” Using this terminology all “Witherspoon Excludables” (WEs) may be divided into “Nullifiers” and “Guilt Phase Indudables.” This court must decide on the basis of the evidence presented if there are differences, material to jury performance, between those qualified to serve under Witherspoon standards and those who are excluded by such standards. B. The Evidence. Since 1968, the Zeisel and Goldberg studies have been completed and published. Both have been subjected to intensive peer review. In addition, to meet one of the objections stated by the Supreme Court, the petitioners here in Grigsby have offered extensive expert testimony explaining “the m