Miller-El v. Cockrell, 537 U.S. 322, 44 (2003)

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Cite as: 537 U. S. 322 (2003)

Thomas, J., dissenting

penalty." 9 Id., at 614. Nelson was struck for cause. Id., at 662-663. Linda Berk was "always" opposed to the death penalty, id., at 1449, and felt so strongly on the subject that the prosecutor remarked upon her discomfort, after which she stated, "[y]ou're going to have to excuse me because I'm getting a little emotional, okay?" Id., at 1445. Later, after she had begun crying, Berk was struck for cause. Id., at 1478. Gene Hinson stated curtly, "I put on the form there that I didn't agree with it," id., at 1648, and was struck for cause. Sheila White said, "I have always been against . . . the death penalty," id., at 2056, and was struck for cause.

Even those two not struck for cause had firm views. Margaret Gibson said: "I don't believe in the death penalty. I don't know why it was started. I don't think it solves anything," id., at 485, and was struck by the prosecution with a peremptory strike. And James Holtz thought the death penalty appropriate only if a policeman or fireman was murdered. Id., at 1021. I can apprehend simply no reason to fault the prosecution for failing to give a more graphic description of lethal injection to prospective jurors with such firm views against capital punishment.

I recognize that these voir dire statements only indirectly support respondent's explanation because the graphic script was typically given at the outset of voir dire—before the above quoted veniremen had the chance to give their stark answers. Nevertheless, all available evidence supports respondent's view that those who were unclear in their views on the death penalty in their juror questionnaires received the graphic formulation—and that those who were adamantly for or against the death penalty in their questionnaires did not.

The jury forms at issue asked two questions directly relevant to the death penalty. Question 56 asked, "Do you believe in the death penalty?," offered potential jurors the

9 Nelson was also a doctor and presumably did not need to have the lethal injection process described to him.

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