Brown v. Lambert

¶4ORDER AND AMENDED OPINION

¶5KOZINSKI, Circuit Judge.

¶6ORDER

¶7The opinion filed December 8, 2005, and reported at 431 F.3d 661, is withdrawn, and is replaced by the Amended Opinion, 04-35998, filed concurrently herewith.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.

¶8*947A 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.

¶9OPINION

¶10We consider the exclusion of jurors for cause in a death penalty case.

¶11Facts1

¶12Cal 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.

¶13Brown 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.

¶14Brown 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.2 The district court denied his petition after an evidentiary hearing, and Brown appeals three issues relating to his death sentence.3

¶15Facial Validity of Washington’s Death Penalty Statute

¶16Brown 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.

¶17The Washington death penalty statute requires the jury to deliberate on one *948question 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”).

¶18Brown’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).

¶19Jury Selection

¶20Brown 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).

¶211. 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).

¶22Juror 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.”4 The trial *949judge properly excused juror Y for cause as well, noting that her impairment was “obvious.”

¶23The 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.5

¶24In 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.

¶25Despite 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.

¶262. 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 *950their 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.)).

¶27Further, 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.”

¶28Id. 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.

¶29When 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.

¶30Id. 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. 2045.6*951Had 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).7

¶31The 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.8 And the fact that Z misstated the law means nothing:

*952If 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).

¶32Z’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.

¶33And 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.

¶34Finally, 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.9

¶35*953In 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).10

¶36*9543. 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.

¶37Gray, 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.11

¶38Ineffective Assistance of Counsel

¶39Brown’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.

¶40We also do not reach the newly certified issue subsumed within Brown’s ineffective *955assistance 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.

¶41We 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.

¶42REVERSED IN PART; REMANDED.

¶61TALLMAN, Circuit Judge,

¶62with whom O’SCANNLAIN, KLEINFELD, CALLAHAN, and BEA, Circuit Judges, join,

¶63dissenting from denial of rehearing en banc:

¶64Contrary to the provisions of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 U.S.C. § 2241, et seq.), our court overturns a fitting punishment for a just aggravated murder conviction. To do it, our panel impermissibly substitutes its own evaluation of the trial judge’s discretionary ruling to dismiss a prospective juror for cause during jury selection in this capital case, notwithstanding the inherent limitations of a written transcript and the fact that defense counsel stated immediately before the court excused the prospective juror, “We have no objection.” The opinion fails to give appropriate AEDPA deference to the determination of the Washington Supreme Court which approved the trial judge’s reasonable and more informed approach to jury selection in qualifying the venire. I respectfully dissent from the denial of rehearing en banc.

¶65Rice v. Collins, — U.S. -, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), reiterates our limited role and authority under AEDPA by recognizing the need for highly deferential review of a trial court’s decisions in jury selection because of the constraints of a printed record, which may not adequately portray what happened in the courtroom during voir dire. Even under the standard developed in Gray v. Mississippi 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), for reviewing jury selection in death penalty cases, we still must afford deference to the trial court’s determination that a potential juror would be “substantially impair[ed in] the performance of his duties as a juror in accordance with his instructions and his oath.” Id. at 658, 107 S.Ct. 2045 (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). The defense expressly declared that it had no objection when the prosecutor moved to dismiss the venireman for cause. Nor did the defense later ask the court to reconsider his dismissal as it did for another prospective juror, who was also excused from jury service for cause. Overturning the appropriate sentence in this heinous case is legally unwarranted and nonsensical.

¶66I

¶67The facts are sickening. Brown kid-naped at random a woman who had just finished her shift as a hotel desk clerk near the Seattle-Tacoma International Airport. He stripped, bound, and gagged her, then proceeded to rape, sodomize, and slowly torture her over a two-day period before killing her in a manner which was anything but quick and painless. He was captured in Palm Springs, California, where he had continued his sadistic crime spree by taking captive yet another victim. The Palm Springs victim escaped her bonds to summon police and lived to testify against Brown.

¶68*956During jury selection in Washington’s King County Superior Court an experienced trial judge dismissed a prospective juror, Juror Z, for cause after he equivocated on whether he could impose the death penalty in conformance with Washington law by suggesting that he thought the punishment should be limited to those cases where the defendant was likely to re-offend. Juror Z was examined about that view. After both sides took the opportunity to lead the venireman through the questioning of his views, and after the judge had also asked questions of him, the prosecutor challenged Juror Z’s qualification to serve based on his erroneous beliefs about the death penalty under Washington law. The defense answered, “We have no objection.” The trial judge then excused Juror Z for cause. On appeal, the Washington Supreme Court rejected the argument that Juror Z should not have been excused and affirmed the ruling of the trial court.

¶69Our court’s opinion labels the Washington Supreme Court’s reasons for affirming the dismissal “misplaced and insufficient.” Opinion at 950. But the panel determined solely by reading the transcript, and contrary to the findings of both state courts, that Juror Z was in fact able to follow the law and could impose the death penalty in proper situations. Id. at 950, 952-953. In doing so, our opinion erroneously holds that the Washington Supreme Court made a decision that was both contrary to clearly established federal law, as determined by the Supreme Court in Gray, and was based on an unreasonable determination of the facts in light of the record. Id.; see 28 U.S.C. § 2254(d). Yet to reach this result under AEDPA, the dismissal must have been both objectively unreasonable in that “the state court was not merely wrong, but actually unreasonable,” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004), and the “state court [must have] confront[ed] a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrive[d] at a result different from [Supreme Court] precedent,” Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Neither is the case.

¶70II

¶71In Gray, the Supreme Court reversed a Mississippi Supreme Court decision which held that it was harmless error for a state court to dismiss a potential juror for cause after the juror said she could impose the death penalty notwithstanding her views in opposition to it. 481 U.S. at 667-68, 107 S.Ct. 2045. The Court concluded that, unless “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[,]” the trial court may not dismiss a potential juror in a death penalty case for cause. Id. at 658, 107 S.Ct. 2045 (internal quotation marks and citation omitted). This determination is not subject to harmless error review. Id. at 660, 107 S.Ct. 2045.

¶72Unlike here, the trial judge in Gray explicitly found that the potential juror, Mrs. H.C. Bounds, was capable of voting to impose the death penalty, but granted the dismissal anyway. Id. at 653-55, 107 S.Ct. 2045. Bounds stated unequivocally that she could impose the death penalty without demurrer. See id.at 653 n. 5, 107 S.Ct. 2045. Nevertheless, even if Bounds had expressed hesitation, the Supreme Court held that a death penalty verdict must be vacated when “a potential juror, who has conscientious scruples against the death penalty but who nevertheless ... is eligible to serve, has been erroneously excluded for cause.” Id. at 659, 107 S.Ct. 2045.

¶73Still, under Gray, it is permissible to remove from the venire “those jurors who would frustrate the State’s legitimate in*957terest in administering constitutional capital sentencing schemes by not following their oaths.” Id. at 658, 107 S.Ct. 2045 (quoting Wainwright, 469 U.S. at 423, 105 S.Ct. 844) (internal quotation marks omitted). Since judges of the Washington Superior and Supreme Courts and a United States District Judge all found that Juror Z articulated an erroneous standard for imposing a sentence of death under state law, how can three federal judges on appeal now say, on this record, that it was objectively unreasonable for those courts to conclude that he could not follow the juror’s oath? 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, primarily because of his confusion and uncertainty, as reflected throughout the entire voir dire, about when he should appropriately consider the death penalty.1

¶74While our opinion cites to the guidelines set forth in Gray, it fails to accord those guidelines the AEDPA deference due to a state court’s determination as to which jurors are “substantially impaired.” On the record before our panel, the trial judge’s dismissal of Juror Z could not be interpreted as “objectively unreasonable,” nor is the factual situation in Gray sufficiently similar to conclude that the trial court’s dismissal was contrary to the rule announced in Gray. The dismissal was simply a reasonable judgment call made by the only judge who actually saw and heard Juror Z during voir dire. There is no showing on the record that the trial judge or the Washington Supreme Court misapplied United States Supreme Court precedent. As the United States district judge so aptly observed in denying habeas relief on this ground, “Even if this Court would not have dismissed the jurors for cause, it cannot substitute its judgment for that of the state courts.” Yet our panel does just that. The real question then is whether the Washington Superior and Supreme Courts made an objectively unreasonable determination of the facts in light of the record. They did not.

¶75Juror Z stated several times that his ability to impose the death penalty was dependent on whether the defendant was likely to re-offend, which is not the standard for imposition of the death penalty in an aggravated murder case under Washington law. See Wash. Rev. , Code § 10.95.060(4). 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.2 The trial judge ex*958plained twice to potential jurors, prior to Juror Z’s voir dire, that life without parole was an option that the jury could consider.3 However, even after multiple explanations by the judge, prosecutor and defense counsel, Juror Z did not grasp, nor could he be certain about, the appropriate circumstances in which as a juror he would consider imposing the death penalty. The prosecutor correctly summarized his answers, saying, “I think he is very confused about the statements.... ” Juror Z stated at times that he could follow the law, but also stated he would “have to give it some thought” once he knew that Brown would not be paroled if found guilty. It was not unreasonable for the trial judge to conclude that, unlike juror Bounds in Gray, Juror Z was unfit to serve because of his indecisiveness, suggesting his inability to properly follow the court’s instructions and apply the law.

¶76Washington law does not ask the jury during the sentencing phase of a death *959penalty case to consider whether the defendant would re-offend. Instead, it asks the jury whether it is convinced “beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit le-niencyU” Wash. Rev. Code § 10.95.060(4). This standard says nothing about proclivity to reoffend. It was not error for the judge to decide that Juror Z could not honestly abide by his oath to follow the law as instructed. The panel ignores the deferential AEDPA standard of review it must accord the Washington courts when it declares that any finding that Juror Z was impaired would be unreasonable.

¶77Ill

¶78Conspicuous by its absence is any motion by the defense during voir dire to challenge or reconsider the determination to remove Juror Z. Defense counsel did move in writing for reconsideration of the trial court’s dismissal for cause of Juror Y, an attorney who had expressed strong reservations about the death penalty, although stating that she thought she could consider it if required. Brown filed his mid-voir dire motion to recall Juror Y or declare a mistrial and qualify a new jury panel because Brown felt that Juror Y was erroneously dismissed for cause. A few days later, Brown also filed a motion to reconsider the trial court’s denial of challenges for cause regarding two other venireman who favored imposition of the death penalty. But there was no motion regarding Juror Z. Nor has Brown ever claimed defense counsel’s actions during voir dire in letting Juror Z be excused from service constituted ineffective assistance of counsel.

¶79Quite clearly those who had the opportunity to watch Juror Z’s testimony, including the trial judge, the prosecution, and defense counsel, both during and after questioning him on voir dire, felt that Juror Z was properly dismissed for cause. Our panel nonetheless has held, after reviewing only the written record of Juror Z’s oral voir dire, that such a determination is or would be objectively unreasonable. Given the substance of the entire record, and the constraints of our limited role as a federal habeas court, the panel has overstepped its authority under AED-PA. Congress surely intended through enacting AEDPA to end the practice by some federal judges of granting habeas relief to overturn state capital cases on rulings that even the parties did not urge to be erroneous when trying their case.

¶80IV

¶81Quoting selective portions of a voir dire transcript to support a particular view of the trial court’s performance ignores the reality of jury selection. The voir dire process is far more complex than a simple reading of a transcript. In some cases, it will be crystal clear that a particular venireman is eligible to serve on a jury, but this is not one of those cases. Experienced trial lawyers know that there are intangible factors that influence the decision to accept or reject prospective jurors which cannot be reduced to written text in a cold record. There is no question that the aggravated circumstances of this case — kidnaping, torture, and the sadistic murder of the victim — would clearly warrant application of the death penalty under Washington law. The trial judge obviously had this in mind when dismissing Juror Z after his repeated statements that he would impose the death penalty only if convinced that Brown would likely re-offend, a condition Washington law does not require to impose a sentence of death.

¶82Juror Z wavered back and forth between claiming to understand what he was being told about when the Washington capital sentencing law applied, yet he reiterated his erroneous belief that death was applicable only for recidivists. The tran*960script reflects that he seemed easily led by both the prosecution and defense counsel into declaring an understanding that everyone in the courtroom recognized he simply did not have. This is why deference to the trial court and the fact that neither party wanted this juror are important considerations in applying AEDPA’s “objectively unreasonable” standard of review. A trial judge will note pauses, hesitations, and non-verbal expressions (body language) that will factor into his decision to dismiss a potential juror:

The way they use their hands, their eyes, their facial expression, their frankness or hesitation in answering, are all matters that do not appear in the transcribed record of the questions and answers. They are available to the trial court in forming its opinion of the impartiality and fitness of the person to be a juror.

¶83State v. Noltie, 116 Wash.2d 831, 839, 809 P.2d 190 (1991), quoting 14 L. Orland & K. Tegland, WASH. PRAC., Trial Practice § 202, at p. 332 (4th ed.1986). In denying Brown’s motion to reconsider dismissing for cause Juror Y, the trial judge explained how he analyzed potential jurors to determine whether they are substantially impaired:

[T]here is not any one particular response from any one of these jurors I think that is definitive for the most part. It’s more of a total overall impression from everything that they have said. With [Juror Y] I guess what was most convincing was her body posture, the things that were unsaid because of the fact of the way she crossed her arms, sat back and what she was telling us at that point in time.

¶84The “determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism,” Wainwright, 469 U.S. at 424, 105 S.Ct. 844, yet our Brown panel does just that. Rather than respecting the trial judge’s more informed interpretation of Juror Z’s demeanor, tone, and words, our panel substitutes its view, based solely on the written record, to form its own interpretation. There is a reason AEDPA requires that appellate courts give appropriate deference to trial courts during voir dire:

Despite [the] lack of clarity in the printed record ... there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law____ [T]his is why deference must be paid to the trial judge who sees and hears the juror.

¶85Id. at 425-26, 105 S.Ct. 844. This case trenchantly illustrates the need for such deference.

¶86■ Rice v. Collins reiterates that such deference is required when a trial court finds cause for juror bias. In Collins, the petitioner brought a Batson challenge to a peremptory strike of a young African-American woman, Juror 16, who the prosecutor believed did not have sufficient ties to the community because of her youth, and who may have been too tolerant of the crime with which the respondent was charged. 126 S.Ct. at 973. The California Court of Appeal upheld the trial court’s ruling on the peremptory challenge to credit the prosecutor’s race-neutral explanations for striking Juror 16. Id.The district court dismissed Collins’s habeas petition with prejudice. Id.We reversed, concluding that the state appellate court made an unreasonable factual determination in crediting the prosecutor’s race-neutral reasons for striking Juror 16. Id.

¶87In a unanimous decision, the Supreme Court reversed us. It held that, although we recited the proper standard of review under 28 U.S.C. § 2254(d)(2), “the panel majority improperly substituted its evalúa*961tion of the record for that of the state trial court.” Id.“State-court factual findings ... are presumed correct [and] the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Id. at 974 (quoting 28 U.S.C. § 2254(e)(1)). Juror 16 replied affirmatively when asked whether she believed that the crime with which the respondent had been charged should be illegal, and disclaimed any other reason she could not be impartial. Id. at 975. However, the Court determined that even if “the prosecutor [still] claimed to hold [race-neutral] concerns despite Juror 16’s voir dire aver-ments[, this] does not establish that she offered a pretext.” Id.In other words, the prosecutor did not have to accept the voir dire statements of Juror 16 when there were other race-neutral grounds for the peremptory challenge.

¶88Here, the Brown panel seizes upon Juror Z’s statement that he would be able to consider the option of the death penalty as a basis for its determination that the prosecutor’s reason for striking Juror Z, and the trial court’s willingness to credit that reason, was objectively unreasonable. But Juror Z’s willingness to impose the death penalty was accompanied by his indecisiveness and an expressed viewpoint which, if followed, would result in the misapplication of Washington law. Rather than examining piecemeal the individual statements of Juror Z, the trial judge could appropriately consider Juror Z’s inconsistent statements and his uncertainty as reflected throughout the entire voir dire process as a reasonable basis for his exclusion. Under Collins, the trial judge did not have to accept Juror Z’s isolated declarations that he could follow the law if the totality of Juror Z’s voir dire examination reflected his general confusion and indecisiveness about the proper application of the death penalty.

¶89“Reasonable minds reviewing the record might disagree about the prosecutor’s credibility, but on habeas review that does not suffice to supersede the trial court’s credibility determination.” Id. at 976. Although some might find that Juror Z had eschewed and rejected his prior improper basis for application of the death penalty, a reasonable mind could just as easily find that he had not eschewed and rejected that basis. The trial judge, as trier of fact on challenges during voir dire, is entitled to the same latitude as a jury determining the credibility of trial witnesses when judging whether a potential juror is able to serve. The superior court judge had the responsibility of weighing Juror Z’s various inconsistent statements to determine Juror Z’s true ability to faithfully perform his duties as a juror by applying Washington law. He had the opportunity to watch the prospective juror testify; we did not.

¶90V

¶91Finally, the Washington Supreme Court need not explicitly declare that Juror Z was “substantially impaired” for its affir-mance to count under AEDPA. True, the appellate court did not incant the words “substantially impaired.” But based upon the rulings of both the trial and appellate courts, and the record in this case, we can certainly conclude that the Washington courts found appropriate the decision to excuse Juror Z on the only ground proffered by the prosecutor — that he could not discharge his oath as a juror to follow state death penalty law. While the record may be susceptible to different interpretations by reasonable jurists, AEDPA demands that we must be able to conclude that the decision was “objectively unreasonable” to grant relief. That standard is simply not met here.

¶92By listening to the voir dire statements of Juror Z, watching how he answered *962specific questions during voir dire, considering the prosecutor’s reason for wanting to dismiss Juror Z for cause, and hearing the defense state that it had no objection to the motion, the trial judge implicitly found that Juror Z was “substantially impaired” by excusing him for cause. Nothing more is required. See Wainwright, 469 U.S. at 430, 105 S.Ct. 844. The Supreme Court in Wainwright said that in making rulings on voir dire objections, the judge is not “required to announce for the record his conclusion that [the potential juror] was biased, or his reasoning,” when “[t]he finding is evident from the record.” Id.It is especially telling when the defendant does not object to the dismissal, as was the case when Brown’s lawyer rose before the court and expressly stated that she had no objection to excusing Juror Z.

¶93We must afford the same presumption of correctness to the Washington Supreme Court in reviewing the trial court’s factual determination of juror bias. See Tinsley v. Borg, 895 F.2d 520, 526 (9th Cir.1990) (“Even though the state appellate court is, in a sense, in no better position than we are to evaluate the state trial court record, [the habeas statute] requires us to accord the same presumption of correctness to its factual findings.”). Specifically, the Washington Supreme Court concluded in reference to Juror Z’s voir dire:

Appellant did not object at trial to the State’s challenge of [Juror Z] for cause. At any rate,[Juror 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 [Juror Z] for cause.

¶94Washington v. Brown, 132 Wash.2d 529, 940 P.2d 546, 585 (1997).

¶95Whether or not the Washington Supreme Court intoned the magic words, “substantially impaired,” it affirmed the trial court because of Juror Z’s erroneous belief about when the death penalty should be applied under Washington law. By doing so, it impliedly determined Juror Z would be substantially impaired in his duties as a juror to follow the law by holding that he was properly dismissed for cause.

¶96VI

¶97This opinion unfairly rids the trial court of the discretion it must necessarily possess in determining juror bias in death penalty cases. Ostensibly, Brown stands for the proposition that if the written record is not absolutely and explicitly clear as to whether a dismissed juror could not correctly deliberate on imposition of the death penalty, we must vacate the death sentence if that juror was nonetheless dismissed by the judge who watched him respond to the questions on voir dire without defense objection. That is simply not the way the Supreme Court has directed us to review jury selection under AEDPA, even after Gray. See Collins, 126 S.Ct. at 973-75; supra, § IV. Indeed, Wainwright declared prior to Collins that deciding to dismiss a potential juror “does not require that a juror’s bias be proved with unmistakable clarity.” 469 U.S. at 424, 105 S.Ct. 844 (internal quotation marks omitted). While we do not and will not rubber stamp on habeas review juror dismissals in death penalty cases, AEDPA surely requires more deference to the Washington courts than that paid by our court in this one.

¶98Finally, this opinion impermissibly lowers the level of deference which comity demands that we as a federal habeas court afford state courts in reviewing their deci*963sions and findings of fact. Brown’s lower standard of “reasonableness review” severely handicaps a trial judge’s ability to go beyond the scope of mere words and phrases taken piecemeal from the entire voir dire process. This new standard ignores the need for litigants and the trial judge to interpret the prospective venireman’s answers, considering them along with body language and demeanor. Because AEDPA, as reinforced by the Supreme Court, commands greater comity when federal courts review these kinds of practical decisions by experienced state judges in capital cases, I respectfully dissent from our court’s unwillingness to rehear this case en banc.