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Finding that the fair cross section requirement applies to the jury venire, not petit juries, and that Witherspoon excludables (those who would be impaired by their unequivocal rejection of imposing a death penalty) were not a distinctive group for fair cross section purposes. The United States Supreme Court further found that a defendant being jointly tried with his Capital co-defendant before a death qualified jury was not deprived of his Sixth and Fourteenth Amendments’ right to an impartial jury drawn from a representative cross-section of the community.

Buchanan v. Kentucky, 483 US 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987) (holding that although death qualified jury might be more conviction prone, said court, those excluded do not constitute a cognizable class for fair cross section purposes).

But see   Cannon v. Gibson, 259 F.3d 1253, (10th Cir. 2001) (holding that the due process clause of the Fourteenth Amendment and the Sixth Amendment’s guarantee of an impartial jury operating together, prohibit the imposition of the death penalty if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.)

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