                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

CAL COBURN BROWN,                        No. 04-35998
             Petitioner-Appellant,          D.C. No.
               v.
                                        CV-01-00715-JCC
JOHN LAMBERT, Superintendent of           ORDER AND
Washington State Penitentiary,             AMENDED
            Respondent-Appellee.
                                           OPINION

       Appeal from the United States District Court
         for the Western District of Washington
       John C. Coughenour, Chief Judge, Presiding

                  Argued and Submitted
           July 14, 2005—Pasadena, California

                 Filed December 8, 2005
                 Amended June 19, 2006

       Before: Stephen Reinhardt, Alex Kozinski and
             Marsha S. Berzon, Circuit Judges.

               Opinion by Judge Kozinski;
      Dissent from Denial of Rehearing En Banc by
                     Judge Tallman




                           6735
6738                 BROWN v. LAMBERT


                        COUNSEL

Suzanne Elliott and Gilbert H. Levy, Seattle, Washington, for
the petitioner-appellant.

Rob McKenna, Attorney General, and John J. Samson, Assis-
tant Attorney General, Criminal Justice Division, Olympia,
Washington, for the respondent-appellee.


                          ORDER

   The 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F.3d 661, is withdrawn, and is replaced by the Amended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.

  A judge requested a vote on whether to rehear this case en
banc, but a majority of the non-recused active judges did not
                        BROWN v. LAMBERT                       6739
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.


                            OPINION

KOZINSKI, Circuit Judge:

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

                              Facts1

   Cal 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.

   Brown 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.
  1
   For a more detailed discussion of the facts, see the Washington
Supreme Court’s opinion in Brown’s direct appeal, State v. Brown, 940
P.2d 546, 555-59 (Wash. 1997) (en banc).
6740                       BROWN v. LAMBERT
   Brown 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 habeas proceedings. He then peti-
tioned for a writ of habeas corpus in federal court, raising a
number of constitutional claims regarding his trial and sentenc-
ing.2 The district court denied his petition after an evidentiary
hearing, and Brown appeals three issues relating to his death
sentence.3

 Facial Validity of Washington’s Death Penalty Statute

  Brown 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.

   [1] The Washington death penalty statute requires the jury
to deliberate on one question only: “Having in mind the crime
of which the defendant has been found guilty, are you con-
vinced beyond a reasonable doubt that there are not sufficient
mitigating circumstances to merit leniency?” Wash. Rev.
  2
     Because Brown filed his habeas petition after April 23, 1996, we apply
the “substantive review standards of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(‘AEDPA’).” Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir.), cert.
denied, 543 U.S. 1007 (2004); see also Lindh v. Murphy, 521 U.S. 320,
327 (1997).
   3
     In his “Statement of Issues,” Brown also asks whether his “conviction
[was] obtained in violation of the Due Process Clause of the Fourteenth
Amendment . . . .” (Emphasis added.) But the claims Brown raises in the
remainder of his brief relate only to his death sentence, not his conviction.
Thus, we will consider only whether Brown is entitled to habeas relief
with respect to his death sentence. See Am. Int’l Enters. v. FDIC, 3 F.3d
1263, 1266 n.5 (9th Cir. 1993) (holding that an issue mentioned in a state-
ment of issues, but not addressed in the argument section of the brief, may
be considered abandoned).
                      BROWN v. LAMBERT                     6741
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 Washing-
ton statute against a challenge that it “fails to adequately
channel and guide jury sentencing discretion.” Campbell v.
Kincheloe, 829 F.2d 1453, 1464 (9th Cir. 1987) (“Campbell
I”). In Campbell I, we viewed the statute in light of the con-
struction given to it by the Washington Supreme Court, see
State v. Bartholomew, 683 P.2d 1079, 1086-87 (Wash. 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”).

   [2] Brown’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 sub-
sequent three-judge panels).

                        Jury Selection

   Brown next argues that three prospective jurors were erro-
neously dismissed for cause, and that he was therefore sen-
tenced by a “tribunal organized to return a verdict of death.”
Witherspoon v. Illinois, 391 U.S. 510, 521 (1968).

  [3] 1. 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
6742                       BROWN v. LAMBERT
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, find-
ing that her views on the death penalty would “substantially
impair the performance of [her] duties as a juror in accor-
dance with [her] instructions and oath.” Wainwright v. Witt,
469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S.
38, 45 (1980)) (internal quotation mark omitted).

   [4] Juror 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 judge properly excused juror Y for cause as
well, noting that her impairment was “obvious.”

   The voir dire examinations of jurors X and Y contrast
sharply with the examination of juror Z. Z expressed no antip-
athy 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
  4
   It is unclear from the record how Y “held her hand up.” Presumably,
she was holding her hand up with her palm out, in a motion often associ-
ated with the exclamation, “Talk to the hand (because the ears ain’t listen-
ing),” a phrase later popularized by Fran Drescher in the movie Beautician
and the Beast. See Terms of the 90s, Slang of the Nineties, http://
www.inthe90s.com/generated/terms.shtml (defining “Talk to the Hand” as
“[a]nother way of saying ‘I don’t want to hear what you are saying.’ ”);
see also Lynne Truss, Talk to the Hand: The Utter Bloody Rudeness of the
World Today, or Six Good Reasons to Stay Home and Bolt the Door
(2005).
                            BROWN v. LAMBERT                           6743
. . . [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 hap-
pen 10 times a week either.” Z felt most comfortable impos-
ing 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
  5
   In fact, during the course of his voir dire, juror Z stated six times that
he could follow the law and impose the death penalty, while not once stat-
ing that he might not be able to:
      Q.   Do you think that you could consider [the death penalty]?
      A.   Yes, I could.
      ....
      Q. [D]oes that mean what I’m hearing you say is that you could
      consider [the death penalty]?
      A.   I believe so, yes.
      ....
      Q.   You would be willing to follow the law?
      A.   Yes.
      ....
      Q.   [D]o you think . . . you could impose [the death penalty]?
      A.   Yes, sir.
      ....
      Q. [D]o you think you could also consider and vote for the
      death penalty under those circumstances?
      A.   I could consider it, yes.
      Q.   Then could you impose it?
      A.   I could if I was convinced that was the appropriate measure.
6744                   BROWN v. LAMBERT
   In essence, Z’s views on whether to impose the death pen-
alty 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. Addi-
tionally, he was open to considering other types of mitigating
circumstances, such as “somebody’s childhood” or “emo-
tional 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.

   Despite 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.

   [5] 2. In 1985, and again in 1987, the Supreme Court
explained that the “standard for determining whether prospec-
tive jurors may be excluded for cause based on their 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 (1987) (quoting Witt,
469 U.S. at 424 (quoting Adams, 448 U.S. at 45)). 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 cases 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 (1986)
(Rehnquist, J.)).
                       BROWN v. LAMBERT                      6745
   [6] Further, 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 constitu-
    tional 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 sec-
    tion 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.”

Id. at 658-59 (alterations in original) (citation omitted) (quot-
ing Witt, 469 U.S. at 423, and Witherspoon, 391 U.S. at 523).
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.

   [7] When 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 discus-
sion 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 chal-
    lenge 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 revio-
    late if released,” which is not a correct statement of
6746                       BROWN v. LAMBERT
      the law. He also misunderstood the State’s burden of
      proof in a criminal case and understood it to be “be-
      yond a shadow of a doubt,” although he was cor-
      rected later. The trial court did not abuse its
      discretion in excusing [Z] for cause.

Id. Nowhere did the court find that Z would be unable to fol-
low 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 653.6 Had 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

   [8] The 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:
  6
     The dissent from denial of rehearing en banc agrees that the juror in
Gray was improperly struck because she “stated unequivocally that she
could impose the death penalty without demurrer.” Dissent at 6757. In
fact, juror Z’s commitment to following instructions was far stronger than
the juror improperly struck in Gray. When Z was asked if he could impose
the death penalty, he responded with an unequivocal, “Yes, sir.” When the
juror in Gray was asked if she could vote for the death penalty, she
responded only, “I think I could.” Gray, 481 U.S. at 653 n.5.
   7
     The dissent from denial also makes much of juror Z’s indecisiveness,
a term it uses repeatedly. According to the dissent, this indecisiveness con-
noted an “inability to properly follow the court’s instructions and apply
the law.” Dissent at 6761. The state has never suggested this novel theory
and we do not find it persuasive. If the juror in Gray was fit to serve
despite her moral scruples against the death penalty, we see no basis for
finding juror Z impaired because of his alleged “indecisiveness.” Indeed,
keeping an open mind as to whether the death penalty is appropriate,
before any evidence has even been presented, strikes us as a virtue in a
juror, not a basis for disqualification.
   8
     Even after learning that life without parole was an alternative to the
death penalty, Z unequivocally stated that he would be able to consider
                           BROWN v. LAMBERT                            6747
If all prospective jurors who did not fully understand the law
before the trial began were struck, only lawyers would be

and impose the death penalty. The dissent from denial makes the follow-
ing incorrect statement: “Although both defense counsel and the prosecu-
tor 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.” Dissent at
6759. Putting aside the fact that being “confused” is hardly the same as
being unwilling to follow the court’s instructions, juror Z in fact stated
unequivocally and repeatedly that he could impose the death penalty.
Rather than “[q]uoting selective portions of [the] voir dire transcript,” id.
at 6762, as the dissent does, see id. at 6759-60 n.2, we provide the entire
relevant transcript of the defense’s voir dire:
    Q. Were you aware before that Washington has got this kind of
    sentence where it’s life without parole where you are not ever eli-
    gible for parole?
    A.   I did not until this afternoon.
    Q. That is the two options that the jury has if they found the
    person guilty of premeditated murder beyond a reasonable doubt
    plus aggravating circumstances beyond a reasonable doubt. Do
    you think that you could consider both options?
    A.   Yes, I could.
    Q. Could you give me an idea sort of [how] you thought about
    sort of the underlying reason why you think the death penalty is
    appropriate, what purpose it serves, that kind of thing?
    A. I think if a person is, would be incorrigible and would revio-
    late if released, I think that’s the type of situation that would be
    appropriate.
    Q. Okay. Now, knowing that you didn’t know before when you
    were coming to those opinions about the two options that we
    have here obviously somebody who is not going to get out of jail
    no matter which sentence you give them if you got to that point
    of making a decision about the sentence, does that mean what I’m
    hearing you say is that you could consider either alternative?
   A. I believe so, yes.
And here is the prosecutor’s voir dire on this subject:
6748                      BROWN v. LAMBERT
allowed to serve on juries (and only a handful of lawyers at
that).

   [Q.] I guess the reverse side of what you’re saying is, if you
   could be convinced that he wouldn’t kill again, would you find
   it difficult to vote for the death penalty given a situation where
   he couldn’t kill again?
   A. I think I made that statement more under [the] assumption
   that a person could be paroled. And it wasn’t until today that I
   became aware that we had a life without parole in the state of
   Washington.
   Q. And now that you know there is such a thing and they do
   mean what they say, can you think of a time when you would be
   willing to impose a death penalty since the person would be
   locked up for the rest of his life?
   A. I would have to give that some thought. I really, like I said,
   up until an hour ago did not realize that there was an option of
   life without parole.
   Q. And I realize this is put on you rather suddenly, but you also
   recognize as someone who is representing the State in this case,
   we have made the election to ask that the jury if he is found
   guilty, ask that the jury vote for the death penalty.
   And I’m asking you a very important thing and to everyone in
   here, whether you, knowing that the person would never get out
   for the rest of his life, two things. And they’re slightly different.
   One, whether you could consider the death penalty and the sec-
   ond thing I would ask you is whether you could impose the death
   penalty. I’m not asking a promise or anything.
   But I’m asking you, first, could you consider it, and if you could
   consider it, do you think under the conditions where the man
   would never get out again you could impose it?
   A.   Yes, sir.
   Q. So, this idea of him having to kill again to deserve the death
   penalty is something that you are not firm on, you don’t feel that
   now?
   A. I do feel that way if parole is an option, without parole as
   an option. I believe in the death penalty. Like I said, I’m not sure
   that there should be a waiting line of people happening every day
                           BROWN v. LAMBERT                            6749
   [9] Z’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 irrele-
vant; it would have been easily corrected by the jury instruc-
tions, 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 par-
     ticular juror?

        [PROSECUTOR]: I would, your Honor, not on
     the term beyond a shadow of a doubt, I think he
     would certainly stick with the reasonable doubt stan-
     dard.

    or every week even, but I think in severe situations it’s an appro-
    priate measure.
    Q. But in the situation where a person is locked up for the rest
    of his life and there is no chance of him ever getting out again,
    which would be the situation in this case, do you think you could
    also consider and vote for the death penalty under those circum-
    stances?
    A.   I could consider it, yes.
    Q.   Then could you impose it?
    A.   I could if I was convinced that was the appropriate measure.
   It is true, as the dissent suggests, that we owe the trial judge deference
because of his ability to observe demeanor, but demeanor can only shed
light on ambiguous language; it cannot contradict the witness’s clear
words. Here, juror Z’s clear words were that he could impose the death
penalty and would follow the court’s instructions; he never said anything
to the contrary. If appellate courts must defer to trial court findings on a
transcript such as this because a witness may somehow have contradicted
his spoken words through some unknown facial expression or body lan-
guage, not only is Witherspoon a dead letter, but all substantial evidence
review of trial court factual findings is obsolete.
6750                       BROWN v. LAMBERT
And 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 unilluminating:

      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 rea-
      sonable 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.

   [10] Finally, 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 procedurally barred. Nor does appellee allege that
the claim is waived or barred, or that it was not exhausted in
state court.9
  9
    The dissent from denial makes much of defense counsel’s failure to
object during voir dire to juror Z’s dismissal. See dissent at 6755, 6756,
6762, 6767. According to the dissent, defendant’s lawyer could not ethi-
cally object because even he must have recognized “that Juror Z was prop-
erly dismissed for cause.” Id. at 6762. We find it hard to believe that our
colleagues take such an ingenuous view of the realities of the courtroom.
As the dissenters must surely understand, defense counsel declined to
object because he was glad to get rid of juror Z. After all, Z had described
himself as pro-death penalty, and reiterated numerous times, under oath,
that he would be willing and able to impose the death penalty. Defense
counsel must have thanked his lucky stars when the prosecutor bumped Z.
   We know for a fact that the dissent’s “scrupulous defense counsel” the-
ory has no basis in reality. As the dissent recognizes, defense counsel did
object vigorously to juror Y’s dismissal for cause. See dissent at 6761-62.
Juror Y, of course, was the one who had described the death penalty as
“barbaric” and as “mak[ing] . . . brutes of us all,” and had crossed her
arms and held her hand up when asked by the court whether she could sen-
tence anyone to death. See p. 6742 & n.4 supra. Y was a far better juror
for the defense than Z, which is why defense counsel fought so hard to
                            BROWN v. LAMBERT                             6751
   [11] In sum, excusing juror Z for cause was directly con-
trary 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
                                                (Text continued on page 6753)

keep her on the jury and then to have her reinstated. But Y had also dis-
qualified herself under Witherspoon. See p. 6742 supra. Under the dis-
sent’s contrived hypothesis, Brown’s lawyer would have felt morally
compelled to acquiesce in Y’s dismissal.
   Of course, the fact that Brown’s attorney was glad to see juror Z go
would seem to make the trial judge’s error in this case harmless. But, as
we explain below, Witherspoon error is structural. See section 3 infra.
   10
      The dissent from denial intones the mantra of Rice v. Collins, 126
S. Ct. 969 (2006), but forgets that in Collins, the state trial court made a
factual finding that the juror had been dismissed for race-neutral reasons,
and the California Court of Appeal upheld the dismissal based on that
finding. See id. at 973. The Supreme Court reversed us because we “im-
properly substituted [our] evaluation of the record for that of the state trial
court.” Id. That is not what happened here. The Washington Supreme
Court in this case applied the wrong standard with respect to juror Z; it
nowhere found that juror Z could not follow his oath.
   To compensate for the lack of a proper Witherspoon finding, the dissent
would impute to the state trial court a finding it never made—one that it,
indeed, could not have made on this record—by suggesting that the trial
judge must have incorporated the prosecutor’s objection: “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 Wash-
ington’s capital sentencing law . . . .” Dissent at 6758. But the prosecutor’s
objection said nothing at all about juror Z’s ability or willingness to follow
the juror’s oath. Here is exactly what the prosecutor said:
    THE COURT: . . . Counsel, any challenge to this particular juror?
    [PROSECUTOR]: I would, your Honor, not on the term beyond
    a shadow of a doubt, I think he would certainly stick with the rea-
    sonable doubt standard. But I think he is very confused about the
    statements where he said that if a person can’t kill again, in other
    words, he’s locked up for the rest of his life, he said, basically,
    he could vote for the death penalty if it was proved beyond a
    shadow of. And I am certainly going to concede that he means
    beyond a reasonable doubt. And if a person kills and will kill
    again. And I think he has some real problems with that. He said
6752                       BROWN v. LAMBERT
    he hadn’t really thought about it. And I don’t think at this period
    of time he’s had an opportunity to think about it, and I don’t think
    he said anything that overcame this idea of he must kill again
    before he imposed the death penalty or be in a position to kill
    again. So, that is my only challenge.
As can readily be seen, the prosecutor says nothing about the juror’s oath
or whether juror Z will follow it. Rather, the prosecutor concentrates (like
the dissent) on the question of whether juror Z would be willing to impose
the death penalty if the alternative were life without parole. And (like the
dissent) he gets it wrong. See n. 8 supra. The prosecutor’s reason for strik-
ing juror Z comes only two pages after juror Z’s statement, yet stands
juror Z’s words entirely on their head. If the trial judge uncritically incor-
porated the prosecutor’s statement into his ruling, as the dissent suggests,
the trial judge simply nodded.
   The undisputable fact is there is nothing whatsoever in juror Z’s voir
dire that lends the least support for the finding—explicit or implicit—that
he would not follow his oath. This is a juror who listed himself as pro-
death penalty in his juror questionnaire and stated repeatedly under oath
that he believes in the death penalty. He did not perhaps show the kind of
bloodthirsty eagerness for its imposition that the prosecutor may have
preferred—juror Z did say he “would have to give [the matter] some
thought” and reserved the right to impose the death penalty only when he
“was convinced [it] was the appropriate measure”—but there is nothing in
his testimony that could remotely support the view that he would not faith-
fully follow the court’s instructions. No degree of deference, nor allow-
ance for facial expressions and demeanor, can possibly fill in what isn’t
there: the least indication that juror Z could not or would not follow the
law. If it were there, we are confident the dissent would have quoted it.
   Curiously, our dissenting colleagues themselves seem to be confused
about Washington’s death penalty jury instructions. The dissent states:
“There is no question that the aggravated circumstances of this case—
kidnapping, torture, and the sadistic murder of the victim—would clearly
warrant application of the death penalty under Washington law.” Dissent
at 6763 (emphasis added). Despite the law’s insistence that juries consider
only mitigating circumstances in deciding whether a defendant should be
sentenced to death, see Wash. Rev. Code. § 10.95.060(4); see also p.
6740-41 supra, the dissenters are transfixed by the unquestioned heinous-
ness of Brown’s crime. See dissent at 6763; see also id. at 6755 (“The
facts are sickening.”). The dissent even states that “[t]he trial judge obvi-
ously had [the aggravated circumstances of this case] in mind when dis-
                           BROWN v. LAMBERT                           6753
  [12] 3. 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:

     [T]his 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 con-
     scientious scruples against the death penalty but who
     nevertheless under Witherspoon is eligible to serve,
     has been erroneously excluded for cause. . . .

        . . . The instant case presents yet another opportu-
     nity for this Court to adopt a harmless-error analysis
     and once again we decline to do so.

Gray, 481 U.S. at 659-60 (citing Davis v. Georgia, 429 U.S.
122, 123-24 (1976) (per curiam) (Rehnquist, J., dissenting)).
Thus, Brown’s death sentence cannot stand.11

                Ineffective Assistance of Counsel

   Brown’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

missing Juror Z . . . .” Id. at 6763. Were this true, of course, there would
have been even more blatant Witherspoon error; nothing in Witherspoon
allows a judge to take the atrociousness of the defendant’s crime into
account when deciding whether to dismiss a juror for cause.
   11
      We find no constitutional infirmity with Brown’s conviction. See
Bumper v. North Carolina, 391 U.S. 543, 545 (1968) (holding that Wither-
spoon error requires setting aside a death sentence, but is insufficient to
require setting aside a conviction); see also Gray, 481 U.S. at 668 (finding
that a juror was erroneously excluded from the jury in violation of Wither-
spoon and Witt, and holding that “[t]he judgment of the Supreme Court of
Mississippi, insofar as it imposes the death sentence, is reversed” (empha-
sis added)).
6754                  BROWN v. LAMBERT
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.

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

                        *      *     *

   We 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.

  REVERSED IN PART; REMANDED.



TALLMAN, Circuit Judge, with whom O’SCANNLAIN,
KLEINFELD, CALLAHAN, and BEA, Circuit Judges, join,
dissenting from denial of rehearing en banc:

   Contrary to the provisions of the Antiterrorism and Effec-
tive 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 substi-
tutes its own evaluation of the trial judge’s discretionary rul-
ing to dismiss a prospective juror for cause during jury
selection in this capital case, notwithstanding the inherent
                       BROWN v. LAMBERT                     6755
limitations of a written transcript and the fact that defense
counsel stated immediately before the court excused the pro-
spective 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 selec-
tion in qualifying the venire. I respectfully dissent from the
denial of rehearing en banc.

   Rice v. Collins, 126 S. Ct. 969 (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 (1987), for reviewing jury selec-
tion 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 (quoting Wainwright v. Witt, 469 U.S. 412, 424
(1985)). The defense expressly declared that it had no objec-
tion 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 appro-
priate sentence in this heinous case is legally unwarranted and
nonsensical.

                                I

   The facts are sickening. Brown kidnaped 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
6756                   BROWN v. LAMBERT
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.

   During jury selection in Washington’s King County Supe-
rior 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 Wash-
ington 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.

   Our court’s opinion labels the Washington Supreme
Court’s reasons for affirming the dismissal “misplaced and
insufficient.” Opinion at 6746. 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 6746, 6749-51. 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] confron-
t[ed] a set of facts that are materially indistinguishable from
                       BROWN v. LAMBERT                      6757
a decision of [the Supreme Court] and nevertheless arrive[d]
at a result different from [Supreme Court] precedent,” Wil-
liams v. Taylor, 529 U.S. 362, 406 (2000). Neither is the case.

                                II

   In 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. 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 (internal quotation marks and citation
omitted). This determination is not subject to harmless error
review. Id. at 660.

   Unlike 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. Bounds stated unequivocally that she could
impose the death penalty without demurrer. See id. at 653 n.5.
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 scru-
ples against the death penalty but who nevertheless . . . is eli-
gible to serve, has been erroneously excluded for cause.” Id.
at 659.

   Still, under Gray, it is permissible to remove from the
venire “those jurors who would frustrate the State’s legitimate
interest in administering constitutional capital sentencing
schemes by not following their oaths.” Id. at 658 (quoting
Wainwright, 469 U.S. at 423) (internal quotation marks omit-
ted). Since judges of the Washington Superior and Supreme
Courts and a United States District Judge all found that Juror
6758                        BROWN v. LAMBERT
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 unrea-
sonable for those courts to conclude that he could not follow
the juror’s oath? Excusing Juror Z was based upon the prose-
cutor’s sole reason underlying the objection—a finding that
Juror Z could not follow his oath and faithfully apply Wash-
ington’s capital sentencing law, primarily because of his con-
fusion and uncertainty, as reflected throughout the entire voir
dire, about when he should appropriately consider the death
penalty.1

   While 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 “sub-
stantially impaired.” On the record before our panel, the trial
judge’s dismissal of Juror Z could not be interpreted as “ob-
jectively 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.
  1
    What the prosecutor said to support the motion to excuse Juror Z was,
in relevant part:
      I don’t think he said anything that overcame this idea of he must
      kill again before he imposed the death penalty or be in a position
      to kill again. So, that is my only challenge.
                            BROWN v. LAMBERT                           6759
   Juror 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 Wash-
ington 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 explained twice to
  2
    Defense counsel explained to Juror Z that the jury would consider two
sentencing options should Brown be found guilty—life without parole and
the death penalty. At this point, Juror Z stated that he could consider both
options. However, Juror Z then explained that he believed the death sen-
tence would be appropriate if a person “would be incorrigible and would
reviolate if released.” Defense counsel once again explained the idea of
life without parole, and Juror Z again said he could consider both options.
  Shortly thereafter, this exchange occurred between defense counsel and
Juror Z:
      Q. Understanding that the two options there are life without
      parole or the death penalty, there is not a lot of likelihood that
      people are going to spend a lot of time talking about whether or
      not they’re going to kill again in the sentencing phase of this
      case. Is that going to make you frustrated? Are you going to want
      to hear about things like that, about people’s opinions in the pen-
      alty phase?
      A.   I’m not sure.
   Even after defense counsel explained that Brown would receive either
life without parole or the death penalty if found guilty, and after Juror Z
claimed he could consider both options, he still misstated Washington law.
While the prosecutor was questioning Juror Z about his incorrect percep-
tion of the standard of review (“beyond a shadow of a doubt” instead of
“beyond a reasonable doubt”), the following exchange occurred:
      Q. So, I want to ask you, the thing that bothers me, is the idea
      beyond a shadow of a doubt. The law says beyond a reasonable
      doubt, and it will be explained to you what it actually means. But
      I want to assure you it doesn’t mean, I don’t believe the Court
6760                       BROWN v. LAMBERT
potential jurors, prior to Juror Z’s voir dire, that life without
parole was an option that the jury could consider.3 However,

    would instruct you it means beyond all doubt or beyond any
    shadow of a doubt. Knowing that, would you still require the
    State to prove beyond a shadow of a doubt that the crime
    occurred knowing that the law doesn’t require that much of us?
    A.   I would have to know the, I’m at a loss for the words here.
    Q. You can ask me any questions, too, if you need some clarifi-
    cation.
    A. I guess it would have to be in my mind very obvious that the
    person would reoffend.
  A little while later, the prosecutor once again explained that life without
parole was a sentencing option should Brown be found guilty. The prose-
cutor asked, “[C]an you think of a time when you would be willing to
impose a death penalty since the person would be locked up for the rest
of his life?” Juror Z responded:
    “I would have to give that some thought. I really, like I said, up
    until an hour ago did not realize that there was an option of life
    without parole.”
   Contrary to the panel’s assertion that Juror Z “unequivocally stated that
he would be able to consider and impose the death penalty,” Juror Z in
fact exhibited quite a bit of confusion and equivocation through his uncer-
tain answers as to when he would be willing to impose the death penalty.
Juror Z saying in one breath that he could follow the law, and then in the
next breath misstating the law, is not an unequivocal declaration that “he
would be able to consider and impose the death penalty” as required under
Washington law.
   3
     On October 25, 1993, the trial judge instructed half the potential jury
pool, including Juror Z, on Washington death penalty law. Specifically,
the judge explained that the jury “would . . . retire to determine whether
the death penalty should be imposed or whether the punishment should be
life imprisonment without the possibility of parole.” He further stated that,
“[i]n making that determination, [each juror] would be asked the following
question: Having in mind the crime of which the defendant has been found
guilty, are you convinced beyond a reasonable doubt that there are not suf-
ficient mitigating circumstances to merit leniency?”
  Furthermore, on November 3, 1993, when Juror Z was brought back for
individual questioning, the trial judge informed all potential jurors that
                            BROWN v. LAMBERT                             6761
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.

   Washington law does not ask the jury during the sentencing
phase of a death penalty case to consider whether the defen-
dant would re-offend. Instead, it asks the jury whether it is
convinced “beyond a reasonable doubt that there are not suffi-
cient mitigating circumstances to merit leniency[.]” 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.

                                     III

  Conspicuous by its absence is any motion by the defense
during voir dire to challenge or reconsider the determination

“[i]t is the State’s burden to prove to [the jury] beyond a reasonable doubt
the appropriate penalty, since there are only two penalties a jury could
return, one is prison without the possibility of release or parole.” He reiter-
ated, “that literally means exactly that, a true life in prison without release
or parole, or the penalty of death.”
6762                   BROWN v. LAMBERT
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 dis-
missed 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.

   Quite 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 writ-
ten record of Juror Z’s oral voir dire, that such a determina-
tion is or would be objectively unreasonable. Given the
substance of the entire record, and the constraints of our lim-
ited role as a federal habeas court, the panel has overstepped
its authority under AEDPA. Congress surely intended through
enacting AEDPA to end the practice by some federal judges
of granting habeas relief to overturn state capital cases on rul-
ings that even the parties did not urge to be erroneous when
trying their case.

                               IV

   Quoting selective portions of a voir dire transcript to sup-
port 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. Experi-
                      BROWN v. LAMBERT                        6763
enced 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 pen-
alty 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.

   Juror Z wavered back and forth between claiming to under-
stand what he was being told about when the Washington cap-
ital sentencing law applied, yet he reiterated his erroneous
belief that death was applicable only for recidivists. The tran-
script reflects that he seemed easily led by both the prosecu-
tion 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 nei-
ther 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 answer-
    ing, are all matters that do not appear in the tran-
    scribed 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.

State v. Noltie, 116 Wn. 2d 831, 839, 809 P.2d 190 (1991),
quoting 14 L. Orland & K. Tegland, WASH. PRAC., Trial Prac-
tice § 202, at p. 332 (4th ed. 1986). In denying Brown’s
motion to reconsider dismissing for cause Juror Y, the trial
6764                  BROWN v. LAMBERT
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 pos-
    ture, 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.

   The “determinations of juror bias cannot be reduced to
question-and-answer sessions which obtain results in the man-
ner of a catechism,” Wainwright, 469 U.S. at 424, 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 appropri-
ate 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.

Id. at 425-26. This case trenchantly illustrates the need for
such deference.

   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 pros-
ecutor believed did not have sufficient ties to the community
because of her youth, and who may have been too tolerant of
                        BROWN v. LAMBERT                       6765
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 prose-
cutor’s race-neutral reasons for striking Juror 16. Id.

   In 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 evaluation of the record for that of the state trial
court.” Id. “State-court factual findings . . . are presumed cor-
rect [and] the petitioner has the burden of rebutting the pre-
sumption by ‘clear and convincing evidence.’ ” Id. at 974
(quoting 28 U.S.C. § 2254(e)(1)). Juror 16 replied affirma-
tively 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 prose-
cutor [still] claimed to hold [race-neutral] concerns despite
Juror 16’s voir dire averments[, 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 chal-
lenge.

   Here, 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 willing-
ness 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
6766                   BROWN v. LAMBERT
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.

   “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 deter-
mination.” Id. at 976. Although some might find that Juror Z
had eschewed and rejected his prior improper basis for appli-
cation 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 credi-
bility of trial witnesses when judging whether a potential juror
is able to serve. The superior court judge had the responsibil-
ity 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.

                                V

   Finally, 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 Wash-
ington 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 “objec-
                       BROWN v. LAMBERT                      6767
tively unreasonable” to grant relief. That standard is simply
not met here.

   By listening to the voir dire statements of Juror Z, watching
how he answered specific questions during voir dire, consid-
ering the prosecutor’s reason for wanting to dismiss Juror Z
for cause, and hearing the defense state that it had no objec-
tion 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.
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.

   We must afford the same presumption of correctness to the
Washington Supreme Court in reviewing the trial court’s fac-
tual 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 evalu-
ate 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 con-
cluded in reference to Juror Z’s voir dire:

    Appellant did not object at trial to the State’s chal-
    lenge 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 under-
    stood it to be “beyond a shadow of a doubt,”
    although he was corrected later. The trial court did
6768                   BROWN v. LAMBERT
    not abuse its discretion in excusing [Juror Z] for
    cause.

Washington v. Brown, 940 P.2d 546, 585 (Wash. 1997).

   Whether 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 substan-
tially impaired in his duties as a juror to follow the law by
holding that he was properly dismissed for cause.

                               VI

   This 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 with-
out 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 decid-
ing to dismiss a potential juror “does not require that a juror’s
bias be proved with unmistakable clarity.” 469 U.S. at 424
(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.

   Finally, this opinion impermissibly lowers the level of def-
erence which comity demands that we as a federal habeas
court afford state courts in reviewing their decisions and find-
ings of fact. Brown’s lower standard of “reasonableness
                      BROWN v. LAMBERT                     6769
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 pro-
spective venireman’s answers, considering them along with
body language and demeanor. Because AEDPA, as reinforced
by the Supreme Court, commands greater comity when fed-
eral courts review these kinds of practical decisions by experi-
enced state judges in capital cases, I respectfully dissent from
our court’s unwillingness to rehear this case en banc.
