Cal Coburn BROWN, Petitioner-Appellant, v. John LAMBERT, Superintendent of Washington State Penitentiary, Respondent-Appellee, 451 F.3d 946

ORDER AND AMENDED OPINION KOZINSKI, Circuit Judge. ORDER The opinion filed December 8, 2005, and reported at 431 F.3d 661, is withdrawn, and is replaced by the Amended Opinion, 04-35998, filed concurrently herewith. The petition for rehearing is otherwise denied. A judge requested a vote on whether to rehear this case en banc, but a majority of the non-recused active judges did not vote in favor of en banc consideration. The petition for rehearing en banc is therefore DENIED. See Fed. R.App. P. 35. No further petitions for rehearing or rehearing en banc will be accepted.

OPINION We consider the exclusion of jurors for cause in a death penalty case. Facts Cal Brown is not a nice man. In May 1991, he carjacked Holly Washa and drove her to a motel near the Seattle-Tacoma airport. Brown robbed, raped and tortured Washa while holding her hostage for two days. He bound and gagged her, penetrated her with foreign objects, whipped her and shocked her with an electrical cord. Eventually, Brown put Washa in the trunk of her car, slit her throat, stabbed her and left her to bleed to death in a parking lot.

Brown then flew to Palm Springs, California, to rendezvous with his next victim, Susan Schnell, whom he had met on an airplane a few days earlier. While inside their hotel room, Brown similarly robbed and raped Schnell, bound and gagged her, tortured and penetrated her. After handcuffing Schnell to the bed, Brown slit her throat and left her to die. Amazingly, Schnell was able to call the front desk and summon the police, who arrived and arrested Brown in the hotel parking lot. Brown quickly confessed to both the rape and attempted murder of Schnell in California, and the rape and murder of Washa in Washington.

After pleading guilty in California and receiving a sentence of life imprisonment, Brown was tried in Washington. A jury convicted Brown of aggravated first-degree murder, and sentenced him to death. Brown exhausted his direct appeals and state habe-as proceedings. He then petitioned for a writ of habeas corpus in federal court, raising a number of constitutional claims regarding his trial and sentencing. The district court denied his petition after an evidentiary hearing, and Brown appeals three issues relating to his death sentence.

Facial Validity of Washington’s Death Penalty Statute Brown challenges the constitutionality of the Washington death penalty statute on its face, arguing that it gives the jury no guidance on how to consider evidence of collateral crimes. The Washington death penalty statute requires the jury to deliberate on one question only: “Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” Wash.

Rev.Code § 10.95.060(4); see also id. § 10.95.070 (setting forth a non-exhaustive list of factors the jury may consider). We have previously upheld the facial validity of the identical Washington statute against a challenge that it “fails to adequately channel and guide jury sentencing discretion.” Campbell v. Kinche-loe, 829 F.2d 1453, 1464 (9th Cir.1987) (“Campbell I ”). In Campbell I, we viewed the statute in light of the construction given to it by the Washington Supreme Court, see State v.

Bartholomew, 101 Wash.2d 631, 683 P.2d 1079, 1086-87 (1984) (en banc), and held that the defendant’s facial challenge was' “meritless.” See Campbell I, 829 F.2d at 1464; see also Campbell v. Blodgett, 978 F.2d 1502, 1513-14 (9th Cir.1992) (per curiam) (“Campbell II”). Brown’s argument in this case is merely a subset of Campbell’s facial challenge; he claims that the statute fails to adequately channel and guide jury sentencing discretion with respect to evidence of collateral convictions.

Thus, our broader holding in Campbell I — that the Washington statute does not fail to adequately guide jury discretion with respect to anything — necessarily precludes Brown’s claim. We have no occasion to reevaluate our earlier assessment of the statute. See Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir.2005) (en banc) (per curiam) (noting that rulings by three-judge panels are “law of the circuit,” and are binding on subsequent three-judge panels).

Jury Selection Brown next argues that three prospective jurors were erroneously dismissed for cause, and that he was therefore sentenced by a “tribunal organized to return a verdict of death.” Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). 1. Juror X was uncertain whether she would be able to impose the death penalty. Though she initially professed a willingness to follow the court’s instructions, she later expressed serious reservations: “Oh, yeah, I could follow the instructions.

I think that — actually making that decision, no.” When the court asked her about her ability to vote for death, she responded, “I don’t think I could. It would have to be so crystal clear. I would have to be — .” Based on these responses, the trial judge properly excused X for cause, finding that her views on the death penalty would “substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v.

Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)) (internal quotation mark omitted). Juror Y’s voir dire exposed even stronger antipathy toward the death penalty, bordering on moral outrage. She described the death penalty as “barbaric” and suggested that it “makes ... brutes of us all.” She expressed resentment toward the state of Washington for putting her in the position of choosing between life and death.

Finally, when asked by the court if she would be able to consider sentencing anyone to death, Y “crossed her arms, held her hand up ... and sat back.” The trial judge properly excused juror Y for cause as well, noting that her impairment was “obvious.” The voir dire examinations of jurors X and Y contrast sharply with the examination of juror Z. Z expressed no antipathy toward the death penalty; to the contrary, he stated that he “believe[d] in the death penalty.” In explaining his views, Z outlined a balanced and thoughtful position.

For example, Z was discomfited by an earlier era in which “[i]t seemed like ... [the death penalty] wasn’t used at all,” because he believed “there [a]re times when it would be appropriate [to impose the death penalty].” But he expressed caution that the death penalty be reserved for “severe situations”: “I don’t think it should never happen, and I don’t think it should happen 10 times a week either.” ,Z felt most comfortable imposing the death penalty where the defendant is “incorrigible and would reviolate if released,” and less comfortable where the defendant is found to have been “temporarily insane.” But he stated unequivocally that he could consider the death penalty as an option if told to do so.

In essence, Z’s views on whether to impose the death penalty mirrored Washington’s death penalty statute itself: He believed a defendant should be put to death where his crime was appropriately severe but not otherwise, and was willing to take into account mitigating factors (mental health issues, for example), aggravating factors (likelihood of recidivism, for example) and the particular circumstances of the instant murder. See Wash. Rev.Code §§ 10.95.060, 10.95.070.

Additionally, he was open to considering other types of mitigating circumstances, such as “somebody’s childhood” or “emotional development,” was welcoming of his fellow jurors’ views, and was accepting of the heavy responsibility assigned to jurors by the state. Most importantly, he promised he would “follow the law” without reservation.

Despite these assurances, the prosecutor protested that Z was too reluctant to impose the death penalty, and that he would only vote for death if convinced that the defendant would “kill again.” The prosecutor thus moved to excuse juror Z for cause, and the trial judge granted the motion without further inquiry. 2.

In 1985, and again in 1987, the Supreme Court explained that the “standard for determining whether prospective jurors may be excluded for cause based on their views on capital punishment ... is ‘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.” ’ ” Gray v. Mississippi, 481 U.S. 648, 658, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (quoting Witt, 469 U.S. at 424, 105 S.Ct. 844 (quoting Adams, 448 U.S. at 45, 100 S.Ct. 2521)).

The Supreme Court insisted that capital jurors not be struck for cause unless they are unable to follow the court’s instructions. Even jurors “who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital eases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Id. (quoting Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Edüd 137 (1986) (Rehnquist, J.)).

Further, the Supreme Court significantly circumscribed the state courts’ role in excusing jurors for cause in capital cases: It held that [t]he State’s power to exclude for cause jurors from capital juries does not extend beyond its interest in removing those jurors who would “frustrate the State’s legitimate interest in administering constitutional capital sentencing schemes by not following their oaths.” 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 process of law.” Id. at 658-59, 107 S.Ct. 2045 (alterations in original) (citation omitted) (quoting Witt, 469 U.S. at 423, 105 S.Ct. 844, and Witherspoon, 391 U.S. at 523, 88 S.Ct. 1770). Thus, it is — and was at the time of Brown’s trial in 1993 — clearly established that excusing a juror for cause in a capital case is unconstitutional, absent evidence that the juror would not follow the law.

When the Washington Supreme Court upheld the trial judge’s decision to excuse jurors X, Y and Z for cause, it found that both X and Y were “substantially impaired” in their ability to perform their duties as jurors. Brown, 940 P.2d at 585. Those findings are adequately supported by the record. But a similar finding is missing from the state court’s discussion of juror Z. The court’s entire review of Z’s exclusion from the jury is as follows: Appellant did not object at trial to the State’s challenge of [Z] for cause. At any rate, [Z] was properly excused.

On voir dire he indicated he would impose the death penalty where the defendant “would reviolate if released,” which is not a correct statement of the law. He also misunderstood the State’s burden of proof in a criminal case and understood it to be “beyond a shadow of a doubt,” although he was corrected later. The trial court did not abuse its discretion in excusing [Z] for cause. Id. Nowhere did the court find that Z would be unable to follow instructions.

Nor could the court have found this: Just like the juror at issue in Gray, juror Z “ultimately stated that [he] could consider the death penalty in an appropriate case.” Gray, 481 U.S. at 653, 107 S.Ct. 2045. Had there been a finding that Z was “substantially impaired” in his ability to follow the law, it would have been unreasonable. See 28 U.S.C. §§ 2254(d)(2), (e)(1). The reasons that the court did give for upholding Z’s exclusion are misplaced and insufficient.

Z’s statement that he would impose the death penalty where the defendant would be likely to kill again did not exclude the possibility that Z would vote to impose the death penalty in other circumstances as well. And the fact that Z misstated the law means nothing: If all prospective jurors who did not fully understand the law before the trial began were struck, only lawyers would be allowed to serve on juries (and only a handful of lawyers at that).

Z’s temporary misunderstanding of the prosecution’s burden of proof — he initially thought the prosecution needed to prove guilt “beyond a shadow of a doubt” — was also irrelevant; it would have been easily corrected by the jury instructions, which Z gave every indication he would follow. In fact, the prosecutor himself conceded he was unconcerned with Z’s confusion on this point: THE COURT: Counsel, any challenge to this particular juror? [PROSECUTOR]: I would, your Hon- or, not on the term beyond a shadow of a doubt, I think he would certainly stick with the reasonable doubt standard.

And when another juror expressed that she, too, thought the burden of proof was “to a point of a shadow of a doubt,” the trial judge dismissed her confusion as unil-luminating: She doesn’t know technically what the definition of beyond a reasonable doubt is. I doubt that anybody in this room knows technically what beyond a reasonable doubt really means and even in your own mind.... I was not so concerned with her responses of beyond a shadow of a doubt or crystal clear. I think that definitely could fit within the definition of a reasonable doubt.

Finally, Brown’s failure to object to juror Z’s removal at trial does not alter the Witherspoon error analysis in this case. Brown raised the juror Z claim on direct appeal, and the Washington Supreme Court did not find the claim to be waived or proeedurally barred. Nor does appellee allege that the claim is waived or barred, or that it was not exhausted in state court. In sum, excusing juror Z for cause was directly contrary to Supreme Court precedent, as was the Washington Supreme Court’s decision to uphold the juror strike on direct appeal. See 28 U.S.C. § 2254(d)(1). 3.

Having found that juror Z was erroneously excluded, it is unnecessary for Brown to demonstrate he was prejudiced by Z’s exclusion. Prejudice is presumed. The Supreme Court has been equally clear on this point: [TJhis Court in Davis surely established a per se rule requiring the vacation of a death sentence imposed by a jury from which a potential juror, who has conscientious scruples against the death penalty but who nevertheless under With-erspoon is eligible to serve, has been erroneously excluded for cause.... ...

The instant case presents yet another opportunity for this Court to adopt a harmless-error analysis and once again we decline to do so. Gray, 481 U.S. at 659-60, 107 S.Ct. 2045 (citing Davis v. Georgia, 429 U.S. 122, 123-24, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) (per curiam) (Rehnquist, J., dissenting)). Thus, Brown’s death sentence cannot stand. Ineffective Assistance of Counsel Brown’s final claim is that his attorney provided ineffective assistance in various ways during the sentencing phase of his trial.

Were we not granting habeas relief with respect to Brown’s sentence for the reasons set forth above, this claim would merit significant attention. Should the state choose to seek the death penalty again on remand, however, Brown will have a new opportunity to receive effective assistance of counsel. We therefore need not reach this claim. We also do not reach the newly certified issue subsumed within Brown’s ineffective assistance of counsel claim — whether the district court erred by refusing to consider certain reports in its habeas evidentiary hearing.

We are reversing the district court’s decision regardless of whether it should have admitted the evidence. We reverse the district court’s judgment denying the writ of habeas corpus and remand for issuance of a writ with respect to Brown’s sentence, unless within a reasonable time set by the district court the state conducts a new penalty phase trial or vacates Brown’s death sentence and imposes a lesser sentence consistent with law. REVERSED IN PART; REMANDED. . For a more detailed discussion of the facts, see the Washington Supreme Court's opinion in Brown's direct appeal, State v.

Brown, 132 Wash.2d 529, 940 P.2d 546, 555-59 (1997) (en banc). . Because Brown filed his habeas petition after April 23, 1996, we apply the "substantive review standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ('AEDPA')." Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir.), cert. denied, 543 U.S. 1007, 125 S.Ct. 626, 160 L.Ed.2d 471 (2004); see also Lindh v.

Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). .In his "Statement of Issues,” Brown also asks whether his "conviction [was] obtained in violation of the Due Process Clause of the Fourteenth Amendment....” (Emphasis added.) But the claims Brown raises in the remainder of his brief relate only to his death sentence, not his conviction. Thus, we will consider only whether Brown is entitled to habeas relief with respect to his death sentence. See Am. Int’l Enters, v.

FDIC, 3 F.3d 1263, 1266 n. 5 (9th Cir.1993) (holding that an issue mentioned in a statement of issues, but not addressed in the argument

section of the brief, may be considered abandoned). . It is unclear from the record how Y "held her hand up." Presumably, she was holding her hand up with her palm out, in a motion often associated with the exclamation, “Talk to the hand (because the ears ain’t listening),” a phrase later popularized by Fran Drescher in the movie Beautician and the Beast.

See Terms of the 90s, Slang of the Nineties, http:// www.inthe90s.com/generated/terms.shtml (defining "Talk to the Hand” as "[a]nother way of saying T don't want to hear what you are saying.' ”); see also Lynne Truss, Talk to the Hand: The Utter Bloody Rudeness of the World Today, or Six Good Reasons to Stay Home and Bolt the Door (2005). . In fact, during the course of his voir dire, juror Z stated six times that he could follow the law and impose the death penalty, while not once stating that he might not be able to: Q. Do you think that you could consider [the death penalty]? A. Yes, I could.

Q. [D]oes that mean what I’m hearing you say is that you could consider [the death penalty]? A. I believe so, yes. Q. You would be willing to follow the law? A. Yes. Q. [D]o you ’ think ... you could impose[the death penalty]? A. Yes, sir. Q. [D]o 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. .

The dissent from denial of rehearing en banc agrees that the juror in Gray was improperly struck because she “stated unequivocally that she could impose the death penalty without demurrer.” Dissent at 956. In fact, juror Z’s commitment to following instructions was far stronger than the juror improperly struck in Gray. When Z was asked if he could impose the death penalty, he responded with an unequivocal, “Yes, sir.” When the juror in Gray was asked if she could vote for the death penalty, she responded only, “I think I could.” Gray, 481 U.S. at 653 n. 5, 107 S.Ct. 2045. .

The dissent from denial also makes much of juror Z's indecisiveness, a term it uses repeatedly. According to the dissent, this indecisiveness connoted an "inability to properly follow the court’s instructions and apply the law.” Dissent at 958. The state has never suggested this novel theory and we do not find it persuasive.

If the juror in Gray was fit to serve despite her moral scruples against the death penalty, we see no basis for finding juror Z impaired because of his alleged "indecisiveness.'’ Indeed, keeping an open mind as to whether the death penalty is appropriate, before any evidence has even been presented, strikes us as a virtue in a juror, not a basis for disqualification. . Even after learning that life without parole was an alternative to the death penalty, Z unequivocally stated that he would be able to consider and impose the death penalty.

The dissent from denial makes the following incorrect statement: "Although both defense counsel and the prosecutor explained to him more than once during their voir dire questioning to qualify Juror Z that, if found guilty, Brown would never be released from prison, Juror Z's answers concerning his willingness to impose death in conformance with Washington law were nonetheless confused.” Dissent at 957. Putting aside the fact that being "confused” is hardly the same as being unwilling to follow the court's instructions, juror Z in fact stated unequivocally and repeatedly that he could impose the death penalty.

Rather than "[qjuoting selective portions of[the] voir dire transcript,” id. at 959, as the dissent does, see id. at 957-958 n. 2, we provide the entire relevant transcript of the defense’s voir dire: 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. Q. That is the two options that the juiy has if they found the person guilty of premeditated murder beyond a reasonable doubt plus aggravating circumstances beyond a reasonable doubt. Do you think that you could consider both options? A.

Yes, I could. Q. Could you give me an idea sort of [how] 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 options 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.

And here is the prosecutor’s voir dire on this subject: [Q.] 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 [the] 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 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 everyone 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 severe 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. It is true, as the dissent suggests, that we owe the trial judge deference because of his ability to observe demeanor, but demeanor can only shed light on ambiguous language; it cannot contradict the witness's clear words.

Here, juror Z's clear words were that he could impose the death penalty and would follow the court's instructions; he never said anything to the contrary. If appellate courts must defer to trial court findings on a transcript such as this because a witness may somehow have contradicted his spoken words through some unknown facial expression or body language, not only is Witherspoon a dead letter, but all substantial evidence review of trial court factual findings is obsolete. . The dissent from denial makes much of defense counsel's failure to object during voir dire to juror Z's dismissal.

See dissent at 955, 956, 959, 962. According to the dissent, defendant’s lawyer could not ethically object because even he must have recognized "that Juror Z was properly dismissed for cause.” Id. at 959. We find it hard to believe that our colleagues take such an ingenuous view of the realities of the courtroom. As the dissenters must surely understand, 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, and reiterated numerous times, under oath, that he would be willing and able to impose the death penalty.

Defense counsel must have thanked his lucky stars when the prosecutor bumped Z. We know for a fact that the dissent's "scrupulous defense counsel” theory has no basis in reality. As the dissent recognizes, defense counsel did object vigorously to juror Y’s dismissal for cause. See dissent at 958-959. Juror Y, of course, was the one who had described the death penalty as "barbaric” and as "mak[ing] ... brutes of us all,” and had crossed her arms and held her hand up when asked by the court whether she could sentence anyone to death. See p. 948 & n. 4 supra.

Y was a far better juror for the defense than Z, which is why defense counsel fought so hard to keep her on the jury and then to have her reinstated. But Y had also disqualified herself under Witherspoon. See p. 948 supra. Under the dissent’s contrived hypothesis, Brown’s lawyer would have felt morally compelled to acquiesce in Y’s dismissal. Of course, the fact that Brown's attorney was glad to see juror Z go would seem to make the trial judge’s error in this case harmless. But, as we explain below, Witherspoon error is structural. See

section 3 infra. . The dissent from denial intones the mantra of Rice v. Collins, — U.S. -, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), but forgets that in Collins, the state trial court made a factual finding that the juror had been dismissed for race-neutral reasons, and the California Court of Appeal upheld the dismissal based on that finding. See id. at 973. The Supreme Court reversed us because we "improperly substituted [our] evaluation of the record for that of the state trial court.” Id. That is not what happened here.

The Washington Supreme Court in this case applied the wrong standard with respect to juror Z; it nowhere found that juror Z could not follow his oath.

To compensate for the lack of a proper With-erspoon finding, the dissent would impute to the state trial court a finding it never made — ■ one that it, indeed, could not have made on this record — by suggesting that the trial judge must have incorporated the prosecutor's objection: "Excusing Juror Z was based upon the prosecutor's sole reason underlying the objection — a finding that Juror Z could not follow his oath and faithfully apply Washington’s capital sentencing law....” Dissent at 957. But the prosecutor's objection said nothing at all about juror Z's ability or willingness to follow the juror’s oath.

Here is exactly what the prosecutor said: THE COURT: ... Counsel, any challenge to this particular juror? [PROSECUTOR]: 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 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. As can readily be seen, the prosecutor says nothing about the juror's oath or whether juror Z will follow it.

Rather, the prosecutor concentrates (like the dissent) on the question of whether juror Z would be willing to impose the death penalty if the alternative were life without parole. And (like the dissent) he gets it wrong. See n. 8 supra. The prosecutor’s reason for striking juror Z comes only two pages after juror Z's statement, yet stands juror Z's words entirely on their head. If the trial judge uncritically incorporated the prosecutor’s statement into his ruling, as the dissent suggests, the trial judge simply nodded.

The undisputable fact is there is nothing whatsoever in juror Z’s voir dire that lends the least support for the finding — explicit or implicit — that he would not follow his oath. This is a juror who listed himself as pro-death penalty in his juror questionnaire and stated repeatedly under oath that he believes in the death penalty.

He did not perhaps show the kind of bloodthirsty eagerness for its imposition that the prosecutor may have preferred— juror Z did say he "would have to give [the matter] some thought’’ and reserved the right to impose the death penalty only when he "was convinced [it] was the appropriate measure” — but there is nothing in his testimony that could remotely support the view that he would not faithfully follow the court’s instructions.

No degree of deference, nor allowance for facial expressions and demeanor, can possibly fill in what isn’t there: the least indication that juror Z could not or would not follow the law. If it were there, we are confident the dissent would have quoted it. Curiously, our dissenting colleagues themselves seem to be confused about Washington’s death penalty jury instructions.

The dissent states: "There is no question that the aggravated circumstances of this case — kidnapping, torture, and the sadistic murder of the victim. — would clearly warrant application of the death penalty under Washington law.” Dissent at 960 (emphasis added). Despite the law’s insistence that juries consider only mitigating circumstances in deciding whether a defendant should be sentenced to death, see Wash. Rev.Code. § 10.95.060(4); see also p. 947-948 supra, the dissenters are transfixed by the unquestioned heinousness of Brown’s crime. See dissent at 960; see also id. at 955 ("The facts are sickening.”).

The dissent even states that "[t]he trial judge obviously had [the aggravated circumstances of this case] in mind when dismissing Juror Z....” Id. at 960. Were this true, of course, there would have been even more blatant Witherspoon error; nothing in Witherspoon allows a judge to take the atrociousness of the defendant's crime into account when deciding whether to dismiss a juror for cause. . We find no constitutional infirmity with Brown’s conviction. See Bumper v.

North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (holding that Witherspoon error requires setting aside a death sentence, but is insufficient to require setting aside a conviction); see also Gray, 481 U.S. at 668, 107 S.Ct. 2045 (finding that a juror was erroneously excluded from the jury in violation of Witherspoon and Witt, and holding that "[t]he judgment of the Supreme Court of Mississippi, insofar as it imposes the death sentence, is reversed” (emphasis added)).