Miller-El v. Cockrell, 537 U.S. 322, 31 (2003)

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352

MILLER-EL v. COCKRELL

Scalia, J., concurring

defendants' use of psychiatric testimony to establish incompetency. Id., at 17a. As for Mazza, her stated views on the death penalty were as follows: "It's kind of hard determining somebody's life, whether they live or die, but I feel that is something that is accepted in our courts now and it is something that—a decision that I think I could make one way or the other." App. 519.

Compare those statements with the sentiments expressed by the challenged African-American veniremen. Kennedy supported the death penalty only in cases of mass murder. "Normally I wouldn't say on just the average murder case— I would say no, not the death sentence." Id., at 216. Bozeman supported the death penalty only "if there's no possible way to rehabilitate a person . . . I would say somebody mentally disturbed or something like that or say a Manson type or something like that." Id., at 79. When asked by the prosecutors whether repeated criminal violent conduct would indicate that a person was beyond rehabilitation, Bozeman replied, "No, not really." Ibid. Warren refused to give any clear answer regarding his views on the death penalty despite numerous questions from the prosecutors. Id., at 139-140 ("Well, there again, it goes back to the situation, you know, sometimes"); id., at 140. When asked whether the death penalty accomplishes anything, Warren answered, "Yes and no. Sometimes I think it does and sometimes I think it don't [sic]. Sometimes you have mixed feelings about things like that." Ibid. When asked, "What do you think it accomplishes when you feel it does?," Warren replied, "I don't know." Ibid. Boggess referred to the death penalty as "murder," id., at 197, and said, "whether or not I could actually go through with murder—with killing another person or taking another person's life, I just don't know. I'd have trouble with that," ibid. Rand is a closer case. His most ambivalent statement was "Can I do this? You know, right now I say I can, but tomorrow I might not." Id., at 161 (internal quotation marks omitted). Later on

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