As its 2017-2018 term came to a close, the U.S. Supreme Court declined to review two Mississippi cases that presented significant challenges to capital punishment as implemented in that state and across the country. Over the dissent of Justice Stephen Breyer (pictured), who renewed his call for the Court to review the constitutionality of the death penalty as a whole, the Court on June 29 denied certiorari in the cases of Timothy Evans and Richard Jordan. Reiterating concerns he first voiced in his landmark dissent three years ago in Glossip v. Gross (2015), Justice Breyer wrote: “the death penalty, as currently administered, suffers from unconscionably long delays, arbitrary application, and serious unreliability.” Two Mississippi cases, he wrote, illustrate the first two of those factors. Evans and Jordan were both sentenced to death in Mississippi’s Second Judicial District, which—according to death sentencing data maintained by Mississippi’s Office of the State Public Defender—has imposed more death sentences than any of the 21 other judicial districts in the state and nearly 1/3 of all the death sentences imposed in the state this century. Evans’s petition for writ of certiorari had argued that his death sentence was unconstitutionally arbitrary because of the geographic disproportionality in the way in which the death penalty was imposed and carried out across the state. Jordan had asked the Court to review the constitutionality of his more than forty-year tenure on Mississippi’s death row for a crime committed in 1976. Jordan’s death sentence was overturned three separate times because of different constitutional violations in each of his sentencing trials. In 1991, after his sentence had been overturned for the third time, a special prosecutor agreed that Jordan should be sentenced to life without parole. However, the Mississippi Supreme Court vacated the life sentence saying the sentence was invalid because it had not been authorized by Mississippi law in effect at the time of the murder. The state then sought and obtained the death penalty against Jordan for a fourth time. “Jordan has lived more than half of his life on death row,” Breyer wrote, living most of that time “in isolated, squalid conditions.” Breyer said the cruelty of the conditions of Jordan’s imprisonment constitute an “additional punishment” that warrants review by the Court to address whether the lengthy delay, in and of itself, violates the Eighth Amendment. The geographically arbitrary death-sentencing practices in the Second District also warranted review, Breyer wrote. “This geographic concentration reflects a nationwide trend. Death sentences, while declining in number, have become increasingly concentrated in an ever-smaller number of counties,” he wrote. This arbitrariness, Justice Breyer explained, “is aggravated by the fact that definitions of death eligibility vary depending on the state.” As a result, in Mississippi, unlike most states, a defendant may be sentenced to death for a felony robbery-murder, which does not require that the defendant actually intended to kill someone. Justice Breyer also found evidence in Mississippi that the death penalty was not reliably administered. He noted that just “[f]our hours before Willie Manning was slated to die by lethal injection, the Mississippi Supreme Court stayed his execution,” and in April 2015, Manning became the fourth Mississippi death-row prisoner to be exonerated. With six more death-row prisoners exonerated throughout the U.S. since January 2017, the unreliability of the death penalty, Justice Breyer argued, provides a third reason for the Court to review the constitutionality of capital punishment. “[M]any of the capital cases that come before this court,” Justice Breyer wrote, “involve, like the cases of Richard Jordan and Timothy Evans, special problems of cruelty or arbitrariness. Hence, I remain of the view that the court should grant the petitions now before us to consider whether the death penalty as currently administered violates the Constitution’s Eighth Amendment.”
Two men charged with killing Philadelphia Police Sgt. Robert Wilson III have been sentenced to life without possibility of parole, plus an additional term of 50 to 100 years, as prosecutors in one of the nation’s largest death-penalty counties agreed not to seek the death penalty in exchange for the defendants’ guilty pleas. Philadelphia District Attorney Larry Krasner (pictured) appeared in court on June 25 to personally explain the rationale behind the plea deal that ensures brothers Carlton Hipps and Ramone Williams will spend the rest of their lives in jail. Krasner told the court that the mothers of Sgt. Wilson’s two young children “do not want the death penalty” and that the plea deal would “minimize the re-traumatization” that would occur if they were exposed to a capital trial and lengthy appeals. Krasner said “[t]he death penalty in Pennsylvania is not what people think it is. The reality is people are not executed in Pennsylvania. They die in custody on death row.” The plea deal drew highly publicized criticism from the Philadelphia Fraternal Order of Police and other members of Wilson's family who wanted the death penalty to be pursued. It also provoked opposition from activists who said that Krasner’s use of the death penalty as leverage for the guilty pleas violated his campaign promise never to seek death sentences. The Philadelphia lodge of the FOP—who, along with former prosecutors who were fired from or left the DA’s office, have engaged in a prolonged public relations war against Krasner’s proposals for criminal-justice reform—called the plea deal “despicable.” On social media, it urged its members to attend the sentencing to “show support” for the Wilson family. Krasner said that the mothers of Wilson’s children had received threatening messages, which they believed were from the FOP, pressuring them to ask Krasner to seek the death penalty. Only family members who opposed the deal came to the court hearing. Krasner’s decision not to seek the death penalty comes in the wake of a twenty-year decline in Philadelphia’s use of capital punishment. The city imposed 99 death sentences in the 1990s, 21 in the first decade this century, and fewer than one every other year in the 2010s. Nearly 150 death sentences imposed in the city since the 1970s have been overturned, and there has been only a single execution. After highlighting the high cost of capital punishment, Krasner said, “A choice to waste money may be a choice to endanger police officers. And frankly, if you really want to get down to it, when did the death penalty prevent this outcome? The death penalty has not stopped it here. The death penalty has not stopped it in the past. And, every bit of scientific evidence indicates that it’s not going to stop it in the future.” A Death Penalty Information Center analysis of FBI murder data has shown that over the last three decades, police officers have been killed at a rate that is 1.37 times higher in states that currently have the death penalty than in states that have long abolished it.
Justice Anthony Kennedy (pictured) announced on June 27, 2018, that he will retire from the U.S. Supreme Court. During Kennedy’s thirty years on the Court, he became known as a swing vote, siding with both the conservative and liberal wings of the Court. His role as the Court's swing vote extended to some crucial death-penalty cases, including Roper v. Simmons (2005), in which the justices struck down the death penalty for juvenile offenders under age 18, and Kennedy v. Louisiana (2008), in which the justices barred the death penalty for child rape and other offenses that did not result in death. He also provided the decisive fifth vote against a challenge to lethal-injection practices brought by Oklahoma death-row prisoners in Glossip v. Gross. In his opinion for the five-member majority in the Kennedy case, Justice Kennedy wrote: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. For these reasons we have explained that capital punishment must ‘be limited to those offenders who commit a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’” Justice Kennedy was a leading architect of caselaw decided under the Eighth Amendment’s “evolving standards of decency.” Under that doctrine, the Court looked to various measures of contemporary American values to determine whether a national consensus had evolved against a penal practice. Justice Kennedy authored numerous decisions for the Court applying or interpreting that doctrine, including Roper and Kennedy, as well as 5-4 decisions that struck down statutes or practices that risked execution of defendants with intellectual disability (Hall v. Florida (2014)) or would have permitted the execution of individuals whose extreme mental illness caused them to become mentally incompetent after having been sentenced to death (Panetti v. Quarterman). In declaring unconstitutional Florida’s use of a strict IQ threshold in determining whether defendants were intellectually disabled and therefore ineligible for the death penalty, Justice Kennedy wrote: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.” Vann R. Newkirk II, writing about Kennedy's civil rights legacy in The Atlantic, said, “The Eighth Amendment has been invoked often by Kennedy and the four liberal justices as a legal weapon in the nation’s highest court in order to curb the most draconian impulses of the criminal-justice system.” In his resignation letter to the President, Justice Kennedy wrote, “Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises.”
Tennessee could save an estimated $1.4–1.89 million per year by adopting a ban on capital punishment for defendants with severe mental illness, according to a new report by the American Bar Association Death Penalty Due Process Review Project. The report said a severe mental illness death-penalty exclusion “could result in cost savings [because] a subset of individuals who currently could face expensive capital prosecutions and decades of appeals would become ineligible” for capital prosecution. As a result, “their trials and appeals would be significantly truncated, while still resulting in guilty verdicts.” The study projected statewide costs based upon its review of the death-row population from Shelby County, Tennessee, the nation's 13th largest county death row, and the results of comprehensive cost studies from other jurisdictions. Based on the 67 death sentences imposed in Shelby County between 1977 and 2017, the study estimated that approximately 15% of death-row prisoners had been diagnosed with a severe mental illness, which includes schizophrenia, schizoaffective disorder, bipolar disorder, delusional disorder, or major depression. If the same percentage of death-sentenced prisoners across the state had severe mental illness, the study said, 28 prisoners would have been exempted from Tennessee’s death penalty since 1977. The report based its cost estimates on a 2008 Urban Institute cost study of Maryland’s death penalty—considered one of the most rigorous of the state death-penalty cost studies conducted across the country. That study found that death-penalty cases cost about $1.9 million more than non-capital murder cases. Using that estimate, the report said, eliminating the 28 capital prosecutions of severely mentally ill defendants would have saved Tennessee $54.8 million over the last 40 years, or an average of $1.4 million per year. Mental Health America estimates that 20% of death-row prisoners have serious mental illness, the report said, and using its estimate of the prevalence of severe mental illness, Tennessee’s average annual savings would be even higher, at $1.89 million. Because no data were available on capital prosecutions in which seriously mentally ill defendants were not sentenced to death, the report did not calculate the potential additional cost savings from decapitalizing those cases. Tennessee is one of several states considering a mental illness exemption from the death penalty, and was selected for the study because it provides detailed information on all first-degree murder cases since 1977. In 2017, former Tennessee Attorney General W.J. Michael Cody expressed his support for a mental illness exemption, saying, “[a]s a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ... But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole.”
Pennsylvania’s death-penalty system is seriously flawed and in need of major reform, according to a report released June 25, 2018, by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. The bipartisan task force and advisory committee—which consisted of legislators, prosecutors, defense attorneys, police chiefs, judges, and victims’ advocates—began work in 2012 and examined 17 issues related to the Commonwealth’s death penalty. Their years-long examination of topics such as costs, bias, innocence, proportionality, mental illness and intellectual disability, quality of representation, and impact on victims' families resulted in numerous policy reform recommendations. Ultimately, however, the committee concluded that certain problems are intractable: “There is no way to put procedural safeguards in place that will guarantee with 100% certainty that the Commonwealth will not execute an innocent person,” the report states. To address disparities in the quality of capital representation, the report recommends creating a state-funded capital defender office, which would represent capital defendants both at trial and on appeal. It also recommended exempting people with serious mental illness from being sentenced to death and having the court determine in advance of trial whether a capitally-charged defendant is intellectually disabled and therefore exempt from the death penalty. State Senator Daylin Leach, who served on the current task force and has sponsored death-penalty repeal bills, said, “The report concludes that our death penalty system is very expensive and lacks a way to ensure that innocent people will not be executed. Further, too many people on death row are economically or intellectually disadvantaged. And finally, there is no substantial evidence that capital punishment actually deters violent crime.” Marc Bookman, a defense attorney and co-director of the Atlantic Center for Capital Representation, said, “Many people will conclude that having a death penalty in Pennsylvania simply doesn't make sense for moral, practical, or financial reasons. For those who still think it's worthwhile to keep it in place, the study documents the extensive work necessary to satisfy the constitutional requirements of fairness and due process, while minimizing the chances of error.” Pennsylvania District Attorney’s Association President John Adams attacked the report as “reflecting predetermined findings that restate the usual litany of opinions long-held by death penalty opponents and the majority of the commission’s members.” In a statement, he said: “Absent a broad perspective, intellectual honesty or a balanced approach to justice, the report will become nothing more than another political tool used in smear campaigns by those determined to dismantle the criminal justice system.” Governor Tom Wolf, who imposed a moratorium on executions in 2015, said he will review the report and its recommendations before taking action.
A Board of Inquiry appointed by former Missouri Gov. Eric Greitens will convene on August 22, 2018 to consider the fate of Marcellus Williams (pictured), one year to the day after Williams received a last-minute reprieve from execution based on evidence of his innocence. Citing “new information” from DNA testing made possible by a prior stay of execution, Greitens issued an executive order on August 22, 2017 just hours before Williams was to be put to death, staying his execution and creating a Board of Inquiry that would review the DNA evidence and “any other relevant evidence not available to the jury” and make recommendations on Williams’s application for executive clemency. However, the Board’s first meeting, which had been scheduled for June 4, was abruptly canceled after Greitens resigned in disgrace on June 1 as a result of a lurid sex scandal and allegations that he had misused a charity’s donors list to raise campaign funds. Former federal district court judge Carol Jackson, who was chairing the board of inquiry said the board had canceled the meeting because “Governor Greitens’ resignation ... called into question whether our authority would continue after he left office.” She said the board “needed to just put this on pause for a minute” until it could determine whether newly sworn in Gov. Mike Parson would want to continue the inquiry. Parson had equivocated earlier in the month when asked by CBS News how the case would proceed. “I would assume they would [meet],” Parson said. “I heard they're not going to. So I think once they make that recommendation, if they do meet, then we'll discuss that at the time.” Judge Jones had said the Board of Inquiry suspended its work “pending guidance from Governor Parson.” Williams’s lawyer, Kent Gipson, confirmed in a June 25 phone call with the Death Penalty Information Center that he has received notification from the Board that it will convene in August for its first meeting. Details about the Board's decision-making process remain unavailable. Williams was convicted and sentenced to death by a nearly all-white St. Louis County jury in the highly publicized stabbing death of former St. Louis Post-Dispatch reporter Felicia Gayle, based on the testimony of a jailhouse informant and a prostitute who was an admitted crack addict. No physical evidence links Williams to the murder, and neither footprints from the murder scene nor DNA from the victim’s clothing and under her fingernails match Williams. He obtained a stay of execution in 2015 to permit DNA testing of the killer’s knife. According to reports submitted by two DNA experts, the DNA on the knife did not match Williams or Gayle, but came from an unknown third person. Nonetheless, Missouri prosecutors sought a new execution date and the Missouri Supreme Court summarily denied Williams a new stay, without any court hearing on the DNA claim. In halting the execution and creating the board of inquiry, Greitens said, “To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt.” In earlier federal habeas corpus proceedings, the district court had overturned Williams’s death sentence, finding that his trial lawyer had failed to investigate and present significant mitigating evidence relating to Williams’s history of mental deficiencies and chronic abuse throughout his childhood. That decision, however, was reversed by the Eighth Circuit in a split 2-1 decision. Williams had alleged that St. Louis County prosecutors had a pattern and practice of striking black prospective jurors, including 6 of the 7 African Americans it had the opportunity to empanel in his case. “This process is so broken and steeped in patterns of systemic racism and prosecutorial misconduct that an innocent man came within just hours of execution by lethal injection,” NAACP Missouri conference President Nimrod Chapel said. Innocence Project co-founder Barry Scheck said “[t]here's enough doubt in this case that [Williams’s] sentence should at least be commuted. The skin cells on the handle of the knife that was used in this murder are not from him.”
New Hampshire Governor Christopher Sununu (pictured) has vetoed a bill that would have abolished the state's death penalty. Surrounded by law enforcement officers as he vetoed the bill on June 21, 2018, Sununu said, “[w]hile I very much respect the arguments made by proponents of this bill, I stand with crime victims, members of the law enforcement community and advocates for justice in opposing it. New Hampshire does not take the death penalty lightly and we only use it sparingly.” New Hampshire has only one person on death row, Michael Addison, who was sentenced to death for killing police officer Michael Briggs. No one has been executed in New Hampshire since 1939. The death-penalty repeal bill, which applied only to future cases, passed the state Senate by a 14-10 vote in March, and passed the House by a 223-116 vote in April. It received bipartisan support in both legislative houses. While Sununu invoked the views of crime victims and law enforcement in opposition to repeal, Rep. Renny Cushing, a repeal supporter whose father was murdered, said not all crime victims agree. “Many murder victim family members in our state paid a very painful, harsh price for the right to tell Gov. Sununu that we don't want killing in our name. The reality is that the death penalty does not do the one thing we wish it would do: bring our loved ones back.” When the repeal bill passed, Rep. Richard O’Leary, a former deputy police chief in Manchester, said he voted for the bill because “I don’t believe we have the right under any circumstances, except immediate self-defense, to take a life. Once the criminal has been subdued, arrested, segregated from society and rendered defenseless, I cannot see where the state has any compelling interest in executing him. It’s simply wrong.” This is the third time since 2000 that New Hampshire has come close to abolishing capital punishment. In 2000, Governor Jeanne Shaheen vetoed a repeal bill that had passed both houses of the legislature, and in 2014, a bill passed the House and garnered the support of Governor Maggie Hassan, but failed on a tie vote in the Senate. A DPIC study of 29 years of FBI homicide data found no discernible relationship between state murder trends and the presence or absence of the death penalty, and provided evidence that the death penalty has not made police officers or the public safer. The study found that murder rates in general and murders of police officers are consistently higher in states that have the death penalty and that police officers were killed at a rate 1.37 times higher in current death-penalty states than in states that had long abolished capital punishment. All six states in New England have murder rates well below the national average. Five New England states are among the ten safest states in the country for police officers. However, in New Hampshire—the only New England state with the death penalty—officers are killed at a rate higher than the national average.
Harvard Law Professor Carol Steiker (pictured), co-author of the highly acclaimed book, Courting Death: The Supreme Court and Capital Punishment, joins DPIC’s Robin Konrad for a provocative discussion of the past and future of America’s death penalty. In the latest episode of Discussions with DPIC, Professor Steiker—who served as a clerk for Supreme Court Justice Thurgood Marshall—takes us inside the walls of the Court for insights on the justices’ approaches to capital-punishment jurisprudence and the impact of Justice Marshall’s legacy on the Court today. She describes her experience with death-penalty cases as a U.S. Supreme Court clerk, and talks about the recurring evolution of the justices’ views on the death penalty as they experience years of failed attempts to redress its systemic flaws. In putting the modern death penalty in context, Professor Steiker focuses particularly on the relationship between race and capital punishment. “Today’s death penalty,” she says, “is inextricably tied to a history of slavery, of lynching, of progressive anti-lynching support of the death penalty. Those are the waves of history that are still lapping at the shore of the present.” The legacy of that history, she says, continues to be felt in the overwhelmingly disproportional use of capital punishment by the states of the former Confederacy, as compared to the rest of the country, and the disparate pursuit and imposition of the death penalty in cases involving White victims. Steiker identifies systemic problems in today’s death penalty that she says could some day lead the U.S. Supreme Court to declare it unconstitutional, including the politicization of judges and prosecutors and the “abysmal” state of capital representation. When and if abolition occurs, she says, will depend ultimately on the composition of the Court.
Louisiana Prisoner Alleges Prosecutor Got Death Verdict By Coercing Witness, Presenting Fabricated TestimonyPosted: June 20, 2018
Michael Wearry, a Louisiana prisoner whose conviction and death sentence were overturned by the U.S Supreme Court in 2016 because prosecutors withheld exculpatory evidence, has filed suit against Livingston Parish District Attorney Scott Perriloux (pictured) and former Sheriff's Deputy Marlon Kearney Foster based upon new evidence that they deliberately fabricated testimony against him. Wearry's complaint charges that the Louisiana officials "knowingly and deliberately fabricated" testimony from a troubled adolescent, Jeffery Ashton and coerced Ashton "to falsely implicate Wearry in the homicide of Eric Walber." The lawsuit says Wearry first learned that Perriloux and Foster had fabricated Ashton's testimony during the course of preparing for Wearry's re-trial, when his defense team located and interviewed Ashton and "Ashton told Wearry’s lawyers about the falsification of his witness accounts." Wearry was convicted and sentenced to death in 2002, although no physical evidence linked him to the murder. His alibi witnesses testified that he was at wedding reception 40 miles away in Baton Rouge at the time of the murder. The U.S. Supreme Court has described the case against Wearry as "a house of cards." The prosecution case relied heavily on the testimony of Sam Scott, a jailhouse informant, whose story changed so dramatically over the course of four different statements that, according to the Supreme Court, by the time of trial "his story bore little resemblance to his original account." Police records that prosecutors withheld from the defense at trial revealed that Scott had may have had a personal vendetta against Wearry, having told another prisoner he wanted to "make sure [Wearry] gets the needle cause he jacked over me." Prosecutors also failed to disclose that they had offered another witness a reduced sentence for an unrelated conviction in exchange for his testimony against Wearry, and then lied to the jury that the witness had "no deal on the table." Wearry's lawsuit concerns allegations of misconduct involving the testimony of Jeffrey Ashton, who was ten years old at the time of the murder and fourteen when he testified at Wearry's trial that he had seen Wearry throw the victim's cologne bottle into a ditch and get into the victim's car. He now says he was attending a festival on the night of the murder and had never seen Wearry before the trial. "Ashton was subject to juvenile court proceedings at the time, and was vulnerable to intimidation by authorities such as Perrilloux and Foster," the lawsuit says. In an affidavit, Ashton says he was "forced" to provide false testimony. "I went along with it because I was just ten years old. I was scared," he said. Jim Craig, Wearry's attorney, called the alleged misconduct "very disturbing," and said, "[t]he abuse of power by District Attorney Perrilloux and Mr. Foster is an outrage that should disturb anyone who believes in justice." He added that he believes the case may have implications for other cases handled by Perriloux, saying, "I think the integrity of this and other cases in that district is at stake and we expect this to be a very hard fought case. We are confident that what we have filed is correct and truthful." District Attorney Perrilloux called the allegations that he coerced testimony from Ashton "ridiculous."
Florida Supreme Court Reverses Death Sentence, Orders Hearing for Prisoner Convicted by Anti-Gay JurorPosted: June 19, 2018
The Florida Supreme Court has overturned the death sentence imposed on Eric Kurt Patrick (pictured) and ordered the lower court to conduct a hearing on the failure of Patrick’s lawyer to adequately question a juror who admitted his belief that gay people are “morally depraved” might affect his judgment of guilt or innocence. Patrick was convicted of the 2005 murder of Steven Schumacher, a gay man who had brought Patrick home after meeting him in a park, and was sentenced to death after a bare 7-5 majority of jurors voted to recommend the death penalty. The court on June 14, 2018, reversed Patrick’s death sentence based upon its 2016 decision in Hurst v. State, which declared that death sentences based upon a non-unanimous jury recommendation for death violated the state and federal constitutions. The appeals court directed the trial court to conduct an evidentiary hearing to determine whether Patrick’s lawyer’s handling of jury selection was ineffective. During jury selection, one juror admitted he “would have a bias if [he] knew the perpetrator was homosexual.” When asked about his ability to evaluate guilt based only the evidence proven beyond a reasonable doubt, he said, “Put it this way, if I felt the person was a homosexual, I personally believe that person is morally depraved enough that he might lie, might steal, might kill.” The juror then answered “yes” when asked if this bias might affect his deliberations. Patrick, who does not identify as gay, was homeless and acknowledged that he had engaged in sexual activity with other men to support himself. On the night of the murder, the men were in bed together after Patrick had given Schumacher a massage, when Schumacher attempted to initiate anal sex and Patrick “cut loose on” the victim, beating him to death. Patrick’s appeal lawyers argued that defense counsel should have struck the juror because of his clear bias; prosecutors argued that Schumacher, not Patrick, was gay and that Patrick’s trial lawyer accepted the juror for strategic reasons. The court wrote that “[a]pplying this evidence to the juror’s voir dire answers establishes that, by the juror’s own acknowledgement on the record, he was predisposed to believe that Patrick is morally depraved enough to have committed the charged offenses. Although Patrick does not identify as homosexual and indicated in his confession that his sexual activity with men was for material support rather than personal fulfillment,” the opinion said, “these points do not eliminate the bias that this juror said he would feel based on the evidence that trial counsel and the trial court knew the jury would hear during trial.” However, the court said it did not have enough evidence to decide the issue. Remanding the case for an evidentiary hearing, it wrote, “[o]n this record, we can neither ignore the possibility that counsel’s failure to challenge this juror was strategic nor conclude that it was.”