Ronald Clark O'Bryan v. W.J. Estelle, Jr., Director, Texas Department of Corrections, Respondent

My dissent is presumptuous.

A district judge — one who has never before considered a death penalty case, much less the frustrating problems under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) — is urging this Court to make it “unmistakably clear” just what standard of review the Fifth Circuit will apply in this and future cases involving Witherspoon challenges.

In the fifteen years since Witherspoon, this has not been done. And, the Fifth Circuit decisions in this area are becoming confusing and inconsistent. This diss.ent, therefore, argues that the Court should…