In the murder trial of Cal Brown, the prosecution challenged for cause juror Richard Deal. When asked, defense counsel said, "We have no objection" to the juror's dismissal. (21:13-16; 37:14-18)  Yet Washington has no contemporaneous objection rule for challenges, so the defense can still raise the issue on appeal. (35:14-17)

The absence of an objection to the dismissal of this juror resulted in a record devoid of an explanation of the trial judge's reasoning and of any indication of facts not apparent from the record as to why the juror was dismissed. A juror's body language and tone of voice can be a better indication of his true attitude than the words he speaks, but only the words are transcribed. On the words alone, the case for excusing this juror looks weak, as Justice Kennedy notes. (7:17-22)  However, the trial judge knew the correct standard. (4:4; 20:1-7)  His decision to excuse the juror may be considered an implicit finding of facts that meet the standard. On federal habeas corpus, the petitioner has the burden of rebutting a state court finding of fact by clear and convincing evidence. (17:16-17; 28 U.S.C. § 2254(e)(1))

Time and again during the argument, various justices come back to the question of how a federal court should treat a failure to object when state law does not consider that failure to be a default of the claim, but the effect is to deplete the record of express factual findings that would otherwise be there. (10:16-25 (Stevens); 15:17-22 (Souter); 23:17-21 (Breyer); 34:15-20 (Kennedy); 35:22-36:6 (Scalia); 40-41 (Ginsburg); 43-44 (Stevens & Kennedy); 50:14-16 (Stevens)) Justices Stevens and Kennedy are both concerned about sandbagging the trial judge here, a good sign for the state. This case is unlikely to make a significant change in the Witt standard for challenges, but it may tell us a lot about the burden of proving that a challenge was improper, at least on federal habeas corpus.

A couple of other points came out in argument that would be interesting to see in the opinion. At 50-51, Justice Kennedy notes that Witt is structural error, meaning that once error is found reversal must follow; the error cannot be found harmless. He asks whether appellate courts should be especially deferential to trial court fact-finding on such claims. Classification of an error as structural may be a double-edged sword.

Justice Ginsburg notes on 53-54 that the cursory nature of the state supreme court's disposition of the challenge to Mr. Deal is likely the result of the very large number of points raised by appeal counsel. The Supreme Court said in Murray v. Carrier, 477 U.S. 527, 536 (1986) that "'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." That advice has generally not been heeded by the capital appeal bar, where throwing in everything including the kitchen sink is the prevailing norm. Justice Ginsburg seems to be implying that the cursory nature of the state opinion on a point should not result in any less deference, at least where it is the result of such tactics.

Looks like a majority is leaning toward the state in this case. It could even be a lopsided win. We'll see in June, probably.