Deliberations

Who Is Qualified For Death?

It's an odd, morbid term, "death-qualified."  It's the shorthand we use for the Supreme Court's rulings, in Witherspoon v. Illinois and Wainwright v. Witt, that a juror can be struck for cause if his religious views on the death penalty "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."  (The quote is from Wainwright.)

Fair and balanced?

The words of this standard sound like it should work both ways, allowing strikes of death penalty proponents and opponents alike.  But it often doesn't work that way in practice.  Instead, as in the Louisiana trial of LaDerrick Campbell, you often see this guy staying:

I think of the death penalty as necessary to the degree that the murder was unnecessary. . . . [I could vote for a life sentence based on mitigating circumstances,] [b]ut it’s going to be very difficult. Again, I once said during the mitigating, if you use mitigating circumstances  with me, you’re going to have to prove them beyond a really reasonable  doubt. I mean, I hear a doctor come in and say the person is mentally ill,  you’re going to have to make me understand that really good for me to  accept that.   . . . [Asked whether he could accept a mitigating circumstance even if it were not proved beyond a reasonable doubt,] I’d just have to see the situation, I don’t know that I could do that.

while this lady goes home:

... it's against my religion. I don't believe you should take a person's life. I think they should be put up in a place where they can be rehabilitated or life in prison.  [I would] have to really pray about it and see the evidence before I could vote to take a man's life or a woman's life.

Campbell's lawyers are asking the Supreme Court to review this issue, and Scotusblog calls it a "petition to watch."  Here's their rundown:

Docket: 08-399 (capital case)
Title: Campbell v. Louisiana
Issue: Whether, under Wainwright v. Witt (1985), the trial judge improperly removed a juror despite a willingness to consider the death penalty in some circumstances while permitting a juror who reportedly had difficultly not imposing the death penalty.

• Opinion below (Supreme Court of Louisiana)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply (awaiting from counsel)
• Brief amicus curiae of academics (in support of petitioner)

_________________

Related post here:

• Collision Course? The "Judge Not" Juror And The Supreme Court 

(Photo by upturnedface at http://flickr.com/photos/upturnedface/2928309180/; license details there.)

A Narrow, Broad Opinion In Snyder

Back when Snyder v. Lousiana was argued, I wondered whether the opinion might be Justice Breyer's chance "to reconsider Batson's test and the peremptory challenge system as a whole," as he has put it.  The Court decided Snyder today (the opinion is here, thanks to ScotusBlog), and far from reconsidering tests and systems, Snyder is one of the most conscientiously narrow decisions you'll ever read. 

The result is striking, though, even if the reasoning is not.  In an opinion written by one of its most conservative members, the Supreme Court has reversed a state court death penalty conviction, in a case with almost unreadably horrible facts, because it didn't accept the prosecutor's asserted justification for striking a single black juror. 

O.J. Who?

Snyder was the case where the prosecutor struck every African-American in the venire, four successfully for cause and five with peremptory strikes.  He then argued to an all-white jury that the case was reminiscent of the O.J. Simpson prosecution.  The briefs before the Court raised issues of interconnectedness:  whether and to what degree each strike should be considered in light of the others, and whether the O.J. Simpson reference intensified the alleged Batson error. 

The Court's opinion doesn't get to any of this; indeed, unless I missed it, the word "Simpson" isn't used in either the majority or the dissenting opinion.  Instead, Justice Alito's opinion considers a single juror, a college student whom the prosecutor had claimed looked "nervous" and might miss some time at his student teaching job.  Justice Alito said the trial judge made no finding as to whether the juror was nervous, and so deserved no deference; and the student teaching conflict didn't hold up either on its own or in comparison to white jurors who served on the jury in spite of similar conflicts.  Thus Justice Alito found no need to consider the reasons asserted for striking another juror, no need to consider whether the purported reasons for the two strikes shed light on each other, and no need to even mention O.J. Simpson.  Only Justice Thomas and Justice Scalia dissented.

The opinion reads straightforwardly, as though Batson analysis always goes like this.  It doesn't, although this opinion may help.  Batson cases in the courts of appeals often seem like a steady stream of acceptance of purportedly neutral reasons for strikes, reasons that sometimes don't even sound neutral.  Against that background, the Snyder opinion feels like real change.

Race matters

Of course there's a bigger issue here -- one that, as sentencing guru Doug Berman points out, is particularly powerful in light of Barack Obama's brave and candid race speech yesterday.  Can I just say it?  What the Snyder prosecutor did was ugly, but racist lawyers aren't the only ones who strike black -- or white -- jurors.  Responsible lawyers think about race when they're making peremptory strikes.  They think about it because, as Senator Obama and many others have explained, a juror's race is an enormous factor in shaping her experiences and her attitudes, just as my race shaped mine and your race shaped yours.  It isn't the only thing that shaped us, but no one can say it doesn't matter.

Even Batson itself doesn't claim race is irrelevant.  Batson instead is based on a different and bigger principle, that striking jurors based on race deprives not only defendants but also those jurors of a fair, nondiscriminatory jury system.  This tension, between the ideal of nondiscrimination and the reality of race in shaping jurors' attitudes, has made lower courts struggle with Batson ever since it was decided.  Snyder may help them struggle more bravely, but they'll still struggle.

_________________

Discussion of Snyder elsewhere so far (I'll try to update this list): 

• ScotusBlog
• Sentencing Law & Policy
• Court-O-Rama
• How Appealing
• TalkLeft

(Photo by Photocapy at http://www.flickr.com/photos/photocapy/301093262/; license details there.)

Challenging The Peremptory Challenge: Snyder v. Louisiana

The Supreme Court is hearing argument today on Snyder v. Louisiana, another case where a prosecutor struck all the black jurors in a death penalty trial.  Batson v. Kentucky says the prosecutor needed racially neutral reasons for rejecting these jurors, and the Court will decide whether the purported reasons are good enough, especially after the prosecutor invoked the O.J. Simpson case in closing argument after having promised he would not do so. 

There's a larger question looming, though:  whether peremptory strikes will survive at all.  "I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole," said Justice Breyer in his 2005 Miller-El v. Dretke concurrence.  In Rice v. Collins in January 2006 he concurred again, repeating that sentence, this time joined by Justice Souter.  It seems unlikely that three more justices have come to this view in the almost-two years since Rice, but the issue isn't going away.

"The most famous murder case, and all of you have heard about it"

Whatever you think of peremptory challenges in general, the Snyder case makes them look pretty bad.  Scotuswiki's terrific essay on the case explains what happened:

After Snyder had been charged with murder, the prosecutor, before the trial began, made a number of public comments comparing the case to the O.J. Simpson case, in which the former pro athlete was charged with murdering his wife and a friend of hers; Simpson was acquitted. Snyder’s defense lawyer filed a motion to bar such comparisons in future comments by the prosecutor, and was turned down, but the prosecutor said he would not mention the Simpson case during the trial itself – a vow he reportedly broke.

In the jury selection process, there were nine blacks in a pool of 85 eligible potential jurors. The state removed four for stated causes, and the remaining five by peremptory challenge – with the defense objecting to some of those strikes on Batson grounds. One of the results: an all-white jury.

The O.J. Simpson case was not mentioned by the prosecutor during the guilt phase. In closing argument during the death-sentencing phase, the prosecutor said this case “made me think of something. Made me think of another case, the most famous murder case in the last, in probably recorded history, that all of you are aware of... " At that point, the defense objected, unsuccessfully. The prosecutor went on: “The most famous murder case, and all of you have heard about it, happened in California, very, very, very similar to this case. The perpetrator in that case claimed that he was going to kill himself as he drove in a Ford Bronco and kept the police off of him, and you know what, he got away with it.” The jury returned with a sentence of death.

Use it well or lose it

This isn't just about criminal trials of black defendants, though.  If trial lawyers ever do lose the right to strike jurors without giving a reason, the stereotypes and errors that make up a lot of the "common wisdom" about jury selection may have to share the blame with prosecutorial racism.  Justice Breyer collected citations in his Miller-El concurrence:

[T]he use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before. See, e.g., Post, A Loaded Box of Stereotypes: Despite 'Batson,' Race, Gender Play Big Roles in Jury Selection., Nat. L. J., Apr. 25, 2005, pp. 1, 18 (discussing common reliance on race and gender in jury selection). For example, one jury-selection guide counsels attorneys to perform a "demographic analysis" that assigns numerical points to characteristics such as age, occupation, and marital status--in addition to race as well as gender. See V. Starr & A. McCormick, Jury Selection 193-200 (3d ed. 2001). Thus, in a hypothetical dispute between a white landlord and an African-American tenant, the authors suggest awarding two points to an African-American venire member while subtracting one point from her white counterpart. Id., at 197-199.

For example, a bar journal article counsels lawyers to "rate" potential jurors "demographically (age, gender, marital status, etc.) and mark who would be under stereotypical circumstances [their] natural enemies and allies." Drake, The Art of Litigating: Deselecting Jurors Like the Pros, 34 Md. Bar J. 18, 22 (Mar.-Apr. 2001) (emphasis in original).

For example, materials from a legal convention, while noting that "nationality" is less important than "once was thought," and emphasizing that "the answers a prospective juror gives to questions are much more valuable," still point out that "[s]tereotypically" those of "Italian, French, and Spanish" origin "are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;] [p]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense"; African-Americans "have always been considered good for the plaintiff," and "[m]ore politically conservative minorities will be more likely to lean toward defendants." Blue, Mirroring, Proxemics, Nonverbal Communication and Other Psychological Tools, Advocacy Track--Psychology of Trial, Association of Trial Lawyers of America Annual Convention Reference Materials, 1 Ann. 2001 ATLA-CLE 153, available at WESTLAW, ATLA-CLE database (June 8, 2005).

For example, a trial consulting firm advertises a new jury-selection technology: "Whether you are trying a civil case or a criminal case, SmartJURY™ has likely determined the exact demographics (age, race, gender, education, occupation, marital status, number of children, religion, and income) of the type of jurors you should select and the type you should strike." SmartJURY Product Information, http://www.cts-america.com/smartjury_pi.asp (as visited June 8, 2005, and available in Clerk of Court's case file).

"Only weakly and inconsistently related"

"The 'scientific' use of peremptory challenges," Justice Breyer concluded, "may also contribute to public cynicism about the fairness of the jury system and its role in American government." 

It may and often does, and the sad part is that broad demographic stereotyping of jurors is almost always factually mistaken.  Despite half a century of assiduous research into juror demographics, "juror demographic characteristics have been only weakly and inconsistently related to juror verdict preferences," say Dennis Devine and the other authors of "Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups," a comprehensive literature review in the March 2000 issue of Psychology, Public Policy, and Law.  The sole exception is the simple fact at issue in Batson and Snyder:  "jury demographic factors interact with defendant characteristics to produce a bias in favor of defendants who are similar to the jury in some salient respect."  Jurors' experiences and attitudes are highly relevant to trial lawyers, but tossing jurors into demographic categories alone sheds little light on those.

______________

Notes: 

1. Among the best resources on Snyder v. Louisiana are Scotuswiki, an amazing new resource; the amicus brief for the Constitution Project at Wilmer Hale's web site; the ABA's preview; the Los Angeles Times article pointed to in Sentencing Law and Policy Blog; yesterday's USA Today article; and How Appealing's link to the Christian Science Monitor.  More certainly will be said. 
2. Prior discussion on the peremptory strike on this blog is, or is linked to, here.

Updates:

1. ScotusBlog recap of oral arguments.
2. Transcript of oral arguments, also via ScotusBlog.

(Photo by dbking at http://www.flickr.com/photos/bootbearwdc/20109566/; license details there.)

The Pros And Cons Of Death: The Bible In The Jury Room

Juries rely all the time on their personal experience and knowledge -- but they're not allowed to rely on authority or evidence beyond what they hear in trial.  A Ninth Circuit opinion today shows that sometimes the line between the two means life itself.

For and against

It's the sentencing phase of Stevie Fields's 1979 death penalty murder trial in California.  The jury foreman's name is Rodney White.  After the first day of deliberations, White goes home, pulls out his Bible, and starts making notes.  The next day, he shares with other jurors the handwritten"For" and "Against" list he has made.  "For" death, that is, and against death.  His notes list these pros:

• “placate gods”
• “eye for eye”
• “deterrence”
• “Fitting punishment to crime”
• “Rights of victim”
• “Duty of the state to protect citizens”
• “Biblical”
  • “Genesis 9:6 ‘Whoso sheddeth man’s blood by man shall his blood be shed, for in the image of God made He man’ ”
  • “Exodus 21:12 ‘He that smiteth a man, so that he dies, shall surely be put to death’ ”
• “Possibility of Repeated offenses”
• “Murder = a rejection of the values of society”
• “New Test”
  • “Romans 13:1-5 ‘Let everyone be subject to the higher authorities, for there exists no authority except from God, and those who exist have been appointed by God. Therefore, he who resists the authority, resists the ordinance of God; and they that resist bring on themselves condemnation
  • ‘For rulers are a terror not to the good work but to the evil. Dost thou wish, then, not to fear the authority?
  • ‘Do what is good and thou will have praise from it. For it is God[’s] minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry  he sword. For it is God’s minister, an avenger to execute wrath on him who does evil. Wherefore you must needs be subject, not only because of the wrath, but also for conscience’s sake.’ ”
  • “Luther, Calvin, Aquinas felt this to be supportive of capital punishment” and
  • “Per Paul’s letter to Romans: State has power for two reasons — 1. Satisfy demand’s [sic] of God’s service [and] 2. Protect society by deterring future crime.”

And these cons: 

• “No real deterrent value—mostly because murderers not normal”
• “Question of ‘Just’—There is no simple, ‘just,’ penalty”
• “Discriminatory selection”
• “Human fallibility—Perhaps wrong chap convicted.”
• “Rehabilitation”
• “ ‘Popular’ feelings”

The jury sentenced Fields to die.  Eighteen years later, the en banc Ninth Circuit Court of Appeals says that was okay.  The opinion is Fields v. Brown, decided today.

Majority:  it's just like memory

The court's majority, in an opinion by Judge Pamela Rymer, didn't directly decide the question, since they found that "the foreman's notes had no substantial and injurious effect or influence in determining the jury’s verdict."  But they were clearly untroubled by the pro-and-con list:

White’s notes are not like these examples [of impermissible extrinsic evidence]. They are a mix of ideas “for” and “against” capital punishment. Both the Biblical verses and the other concepts contained in the notes are notions of general currency that inform the moral judgment that capital-case jurors are called upon to make. As Justice Stevens put it, “[w]hile the question of innocence or guilt of the offense is essentially a question of fact, the choice between life imprisonment and capital punishment is both a question of underlying fact and a matter of reasoned moral judgment.” White’s “for” notes all exposit well-known themes. So do his “against” notes. In effect he marshaled general, commonly known points in favor of the death penalty — “eye for eye,” “deterrence,” “fitting punishment to crime,” “rights of victim,” and the Bible says so — along with general, commonly known points in opposition   “no real deterrent value,” “there is no simple, ‘just,’ penalty,” “discriminatory selection,” “rehabilitation,” and “perhaps wrong chap convicted.” Fields nowhere suggests that White was not free to recite these points, including those from the Bible, or to resort to their reasoning. It is difficult to see how sharing notes can be constitutionally infirm if sharing memory isn’t.

(Citations are omitted in all these excerpts; somehow they seem to make blog posts unreadable.)  It's not, the majority went on, as though the prosecutor had invoked the Bible:

Fields correctly points out that we have held it is improper and prejudicial for the prosecution to invoke God or to paraphrase a Biblical passage in closing argument in the penalty phase of a capital case. However, the prosecutor is constrained in ways that a juror is not. In Sandoval [the court's 2000 opinion on this topic], as we explained, the prosecutor’s argument frustrated the purpose of the closing argument, which is to review the evidence presented at trial that is relevant to the jury’s decision as defined by the instructions given by the court. Also, the prosecution’s invocation of “higher law” or extra-judicial authority violated the Eighth Amendment principle of narrowly channeled sentencing discretion. Further, we noted that  argument involving religious authority undercuts the jury’s own sense of responsibility for imposing the death penalty.  None of these considerations applies in similar fashion to a juror; what may be improper or prejudicial when said by a prosecutor may not be so when said by a juror.

Dissent:  it's an "extrajudicial code"

The two dissenting opinions focus on the Bible's role as a code of law, not a source of common sayings.  Judge Ronald Gould wrote: 

The “use by deliberating jurors of an extrajudicial code (not already embodied in their own characters) cannot be reconciled with the Eighth Amendment’s requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction.” California’s death penalty statute provides specific factors the jury is to consider to distinguish “the few cases in which [the death penalty] is imposed from the many in which it is not.” Here, White introduced to the jury deliberations only Bible quotations that were pro death penalty, and left out  Bible quotations that spoke to mercy. Moreover, the passages from which White quoted “explicitly reject[ ] the drawing of distinctions in murder cases,” and directed the jury to impose death in any case involving murder. These Bible passages, commanding death, inserted “higher law” into the jury deliberations and unconstitutionally relieved the jury from their individual responsibility to determine whether to commit Fields to death or sentence him to life imprisonment. . . . The Bible’s presence in the jury room as a focus of deliberations, if I may borrow a phrase from Judge Wilkinson, crossed “the constitutional line.”

Judge Marsha Berzon listed cases from other jurisdictions which treat the Bible as extrinsic reference material, and pointed out that the Biblical references were hardly just like memory for White, since he had to look them up:

[I]t is undisputed that White’s notes were the product of overnight Biblical research, rather than of familiarity with the Bible that White already had at the outset of deliberations. The case law proscribing importation of external information places its all on the proposition that this distinction matters: After we choose jurors, we want the decision made on the basis of what went on in the courtroom, filtered through the personalities, background information, and reasoning ability the jurors brought with them to court. But we do not approve of, and regard as misconduct, affirmatively gathering outside information. Further, the lengthy quotations, written down and passed around, conveyed a sense of authority quite different from a paraphrase or one line quotations spoken from memory, not least because they could be consulted repeatedly and outside of White’s immediate presence. The written, lengthy quotations introduced tangibly an external exhortation, that God, or the authors of God’s book — not just juror White — encouraged jurors to disregard the judge’s instructions and vote for the death penalty no matter what. The majority, therefore, is wrong to portray this case as similar to “sharing memory,” and this case does not raise the question of whether jurors act impermissibly by referring to their faith during deliberations.

Death at random

The case looks Supreme-Court-bound, then, on this issue of the line between inner morals and outer authority.  But even if the high court were able to draw that line unmistakably -- and it won't be able to -- Fields's case would cast a disturbing shadow.

The problem isn't just that smart judges can differ on whether jurors can cite the Bible.  The problem is the random way we found out what this jury did.  In the end, it's only coincidence that White wrote his notes down, that he showed the written notes to other jurors instead of simply talking to them about his findings, and that defense counsel somehow found out about it.  In another case, a juror might easily consult the Bible (or any other source), invoke its authority to other jurors, and no one would know.  Fields may live, and someone else may die, because these coincidences fall one way in one trial and a different way in another.  Of all the reasons to leave the death penalty behind, these meaningless variations seem among the most meaningful.

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Notes:

1.  This opinion is 99 pages long and I've left out a lot -- like an entirely different issue, even more startling.  Judge Berzon summarized it this way, and it's really what happened:

The majority also concludes that we must accept as dispositive  a juror’s assertions that he was able to disregard the close resemblance between the unsolved kidnapping and rape of his wife not long before the trial and the crime with which Fields was charged. It does so even though the resemblance was so marked that the juror’s wife became convinced that Fields could have been her assailant and tried repeatedly during the trial to convince her husband to let her attend the trial so she  could tell whether he was.

2.  Robert Loblaw again covered this case almost instantly in Decision of the Day.  (How does he do that?)

(Photo by Dave Bullock at http://www.flickr.com/photos/archangel11/659176288/; license details there.)

The Peremptory Strike As Broom And Dustpan

There was a time when courts treated the peremptory strike like fans treat a football star.  These days it's more like the guy who sweeps up the stadium after the game. 

Yesterday's Dorsey v. Quarterman, a habeas opinion from the Fifth Circuit flagged on the Decision of the Day blog, is an example.  At Dorsey's Texas death penalty trial, his lawyer moved to strike four potential jurors for cause because of their views on the death penalty.  One juror "initially indicated a bias in favor of the death penalty, saying that he would automatically assess the death penalty after a verdict of guilty," but after the trial court explained the law, he agreed that he could follow it.  The other three jurors said they would not consider Dorsey's youth as a mitigating factor in sentencing.

The Fifth Circuit denied the required "certificate of appeal" on this issue, listing familiar reasons:  the trial judge was in the best position to judge the first juror's sincerity, and the decision on the other three jurors had not been raised on direct appeal.  And there was another reason.  Dorsey's lawyer had used his peremptory strikes to remove these jurors from the panel -- so, essentially, no harm done:

In addition, Dorsey used peremptory challenges to remove the four venire persons from the jury. Accordingly, even if the court erred in denying his challenges for cause, there was no constitutional violation because the jurors were removed from the jury by his use of peremptory challenges and he has not alleged that the jury that sat in his capital murder trial was not impartial. Ross v. Oklahoma, 487 U.S. 81, 88 (1988). 

It's true:  1988's Ross v. Oklahoma does hold that there is "nothing arbitrary or irrational" about "the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause."  The requirement simply "subordinates the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury," the Ross court said.

When peremptory strikes ruled the Earth

It wasn't always this way.   In Swain v. Alabama in 1965, the Supreme Court lauded the peremptory challenge, tracing its historic roots back to something called the Ordinance for Inquests in 1305.  The court explained: 

The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way the peremptory satisfies the rule that "to perform its high function in the best way, 'justice must satisfy the appearance of justice.'"

The problem with that deference to peremptory strikes, though, is apparent in Swain's holding:  it's the case that said it was fine for prosecutors to strike black jurors, and it was overruled in Batson v. Kentucky.  The Batson court said nice things about the peremptory challenge, but demoted it all the same:

While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice.

How's it going?

From the moment of the Batson opinion itself, some were predicting that the balance it struck would not work.  Justice Marshall, concurring, was ready to get rid of peremptory strikes altogether:  "The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system."  In 2005's Miller-El v. Dretke, Justice Breyer's concurrence repeated that call:  "I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole."

Looking at how Batson plays out today, it's easy to understand the temptation of a baby-and-bathwater solution to the interwoven problems of biased challenges and biased jurors.  The race-neutral justifications Batson requires for peremptory strikes are often themselves racially charged.  We're heading inevitably for a line of cases asking whether different ethnic backgrounds, religion, disability, and sexual orientation are acceptable grounds for peremptory strikes.  Defense lawyers like Scott Greenfield agree that prosecutors shouldn't be allowed racial strikes but wonder why, with so much of the system aligned against them, defendants can't do it.  And then a case like Dorsey reminds us that we're supposed to use peremptory strikes to correct judges' errors and doom clients' appeals. 

Not too soon for many jurors

If peremptory strikes do disappear altogether, it will be good news to many jurors, who often can't understand why lawyers get to pick and choose at all.  I got a note recently from a reader that echoes many juror blogs I've seen:

A jury of peers? No way. If an engineer or a tech company is being sued, no engineer will be chosen for the jury. If a doctor is being sued, no health care professional will ever see the inside of that jury room. If a person knows anything about or understands the issues being litigated, they are automatically considered 'tainted' and unsuitable for a jury. . . I understand excluding potential jurors who personally know the parties, or who have any other clear conflict. But to exclude someone who followed the story in the media? Where does that compute? . . . When jurors are picked at random, and questioned only about their conflicts with the case at hand[, I will] answer a summons with pleasure.

___________

State law note:  Some states still place more value on the peremptory challenge.  Robert Kelley's Florida Jury Selection Blog recently detailed this aspect of Florida's May opinion in Kopsho v. State.

(Photo by J. Samuel B. at http://www.flickr.com/photos/lobsterstew/109196638/; license details there.)

Voir Dire Questions That Could Have Been Better

"Ladies and gentlemen, this next question is another one of those two-part questions, okay, so listen carefully," the trial judge began, in one of two cases decided Friday demonstrating unhelpful ways to conduct voir dire.  You can picture the jurors looking up.  The judge continued:

If your answer to the first question is yes, don’t raise your hand right away, but listen very carefully to the second question. If your answer to that question is yes, you must raise your hand and come up and talk to the Court about the issue. Okay?

Okay . . .

Now, here is the first question. And, again, you don’t need to raise your hand. Listen carefully. This is a question about you personally, you personally as well as any close family member or close personal friend. Is there anyone in that group, either you personally, close family member or close personal friend, who is either presently or previously employed by any law enforcement agency?

Good question.  But of course no one is raising a hand yet.

Now, if the answer to that is yes, listen very carefully to this question. As a result of that experience that either you had personally or are having right now as an employee, as a result of that experience or as a result of the experience of a close family member or a close friend, . . . do you believe that you, that you personally would be unable to be fair and impartial to both sides if selected as a juror in this case?

Do you mean . . .

Wait a minute.  One of those people could be a career police officer and the lawyers would never know it?  That's right -- and once the compound voir dire questions were finished, the lawyers also had to rely on jurors' assessment of their own bias to learn whether prospective jurors knew the other jurors; were involved in criminal defense work; were lawyers; had served as grand jurors; or had served as jurors in a criminal case before.

The D.C. Circuit agreed that "[t]he defect in that question is obvious," and vacated the conviction on Friday in U.S. v. Littlejohn.  The court matter-of-factly recognized the reality of unconscious bias, citing its own recent case, U.S. v. West:

“[W]hether a juror can render a verdict based solely on evidence adduced in the courtroom should not be adjudged on that juror’s own assessment of self-righteousness without something more.” And as West recognizes, such self-evaluation is particularly troublesome when jurors are asked about the potential bias caused by their employment history. Even the most scrupulous juror may not recognize that “lingering loyalty [to a past employer], friendship of persons still employed there, or knowledge of agency procedures” may color his or her judgment.

(I omitted citations in the excerpt.) 

The Littlejohn opinion is carefully limited; in fact, the defendant in West lost on appeal, despite similarly flawed compound voir dire questions.  But under the “particular circumstances of this case,” the D.C. Circuit said, "the district court’s compound questions denied Littlejohn 'a full and fair opportunity to expose bias or prejudice on the part of the veniremen.'”

On the other hand

The defendant didn't do as well in Friday's other confusing-voir-dire case, Nicklasson v. Roper, a death penalty habeas case from the Eighth Circuit.  In the "death qualification" phase of voir dire (what a phrase to have to use), the trial court explained the allegations asked the jurors, if they found Nicklasson guilty:

(1) whether they would automatically vote for the death penalty, (2) whether they would automatically vote for life without probation or parole, and (3) whether they would be able to follow the court’s instructions and consider both the imposition of the death penalty or the imposition of life without probation or parole.

Apparently no one explained that these were alternative choices:

Sixteen venirepersons responded that they would both automatically impose the death penalty and would automatically impose life imprisonment if they convicted the defendant of first-degree murder. Despite this contradiction, the court refused to ask additional death qualification questions or allow counsel to do so.

Not pretty, but this is habeas.  "Were we reviewing this case on direct appeal, we might have come to a different conclusion," the Eighth Circuit said.  But it held that the Missouri Supreme Court wasn't "objectively unreasonable" -- the federal habeas standard -- in upholding the conviction.  The case is one of the first to cite the Supreme Court's latest death-penalty-juror case, Uttecht v. Brown, stressing the importance of the trial court's ability to observe jurors first-hand. 

(Image by Tall Chris at http://www.flickr.com/photos/tallchris/14288097/; license details there.)

The Details Of Unanimity: Classroom And Courtroom

Does your jury have to be unanimous?  It sounds like an simple question if you know what kind of case it is, in what court.  But it isn't simple.  A University of Michigan scholar and the New Jersey Supreme Court are among the latest to tackle what unanimity really means.

Is it A, B, or C?

The trick is, unanimous about what?  What if jurors agree, for example, that a crime was committed, but not on how it was done?  Michigan's Peter Westen and Boalt Hall law student Eric Ow lay out one version of the problem in logic terms in their new paper, "Reaching Agreement On When Jurors Must Agree," in the spring 2007 issue of the New Criminal Law Review and on SSRN here:

[I]t often arises under statutes that make it an offense to commit one or another of various acts, say, acts A, B, and/or C, thereby leading to evidence at trial that a defendant committed one act or another or even all of them. Depending upon how jurors assess the evidence, it can happen that one-third of the jurors find that the defendant committed act A and not either B or C, that one-third finds that he committed act B and not either A or C, and that one-third finds that he committed act C and not either A or B. The constitutional question is whether the Fifth, Sixth and/or Fourteenth Amendments permit a defendant to be found guilty when, although every juror agrees that he used one of the various means, and although every juror may have a view as to which means he used, a majority of jurors do not agree upon which means it was.

The Supreme Court has struggled (in Schad v. Arizona and Richardson v. United States) to articulate a rule for unanimity in these situations, Westen and Ow explain.  In fact, they argue, the problem is easier than the Court makes it look.    If you shift your attention from broad rules to the facts of the case, they contend -- in constitutional terms, from the right to trial by jury to the reasonable doubt standard -- the problem sorts itself out:

[T]he issue of juror concurrence is about the integrity of juror judgments in the aggregate.  The issue arises whenever juror judgments of guilt in the aggregate leave a reasonable doubt as to whether a defendant did in fact do what a statute prohibits. Aggregate juror judgments of guilt leave a reasonable doubt as to whether a defendant did in fact do what a statute prohibits whenever:

1. there is evidence at trial of two or more alternative ways in which the defendant might in fact have done what a statute prohibits, say, factual alternative A and factual alternative B;
2. the jurors, for all that is known, may have divided fifty-fifty on whether the defendant did A or whether he did B, thereby leaving each juror with a counterpart juror who denies the truth of the factual finding (whether it is A or B) on which the first juror rests his judgment; and
3. each juror is convinced that, if his counterpart is correct in denying that the defendant employed the means that the juror believed the defendant used, then the defendant did not commit the offense at all.

The paper is elegantly written and full of fact scenarios with names like "Rare Map" and "John Hancock's Watch" that make the logic much easier to follow and make the whole thing read like a game of "Clue."

Unanimity in reverse:  how many jurors must agree on mitigating factors?

Yesterday in a case called State v. Jimenez, the New Jersey Supreme Court tackled the flip side of this problem:  not how the jurors must agree to convict a defendant, but how they must agree not to sentence him to death. 

After the U.S. Supreme Court ruled in 2001 that states could not execute the mentally retarded, state courts had to figure out how to change their rules to make it so.  In an earlier appeal of Mr. Jimenez's case, New Jersey held that mental retardation was something the defendant had to prove, not something the prosecution had to disprove. 

But prove to how many jurors' satisfaction?  The earlier case didn't say, so the case went up again.  The answer, said the court yesterday, flows from the U.S. Supreme Court's Mills v. Maryland holding that jurors don't have to agree on mitigating factors in death cases.  (If they did, you could end up with jurors who all agreed the defendant should not die, but he would die anyway because they disagreed on why he shouldn't.)  Mental retardation is a "conclusive mitigating factor," the New Jersey court said, meaning it's enough by itself to bar execution.  So if even one juror is satisfied the defendant is mentally retarded, that's enough to save his life.

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Organizational note:  I'm starting a "death penalty" category for past and future posts on that topic.  I hope it's helpful.

(Photo by Kirsty Andrews at http://www.flickr.com/photos/sleep_guitarist/292992375/; license details there)

Announcing The Deliberations Library Of Sample Juror Questionnaires

I know you're out there.  I see your searches.

They come in steadily all week, then surge on the weekend.  "Voir dire questions murder case."  "Illinois personal injury voir dire."  "Voir dire questions in a fraud trial."  "Sexual abuse case voir dire."  "Jury voir dire in a civil rights case."  Sometimes you spell it "voire dire," but you still end up here.

Maybe you're working ahead, because you know that thinking early about the jury makes you think about the case in new ways.  Or maybe your trial is Monday morning; your jury instructions and motions in limine and exhibits are in, and you're turning to voir dire because you finally can.   You may already have an outline and are looking for a checklist to see what you missed, or you may be starting from scratch.

Whereever you are in the project, you're not looking for a bunch of musing, occasionally amusing essays that may or may not add up to something helpful.  You're looking for one list, all in one place, something you can use. 

Announcing . . .

For you, voir dire question searcher, Deliberations announces its new Sample Juror Questionnaires library.  (There's a link on the sidebar.)  On this page is a growing collection of jury questionnaires, either given or proposed, from actual cases.  Use them to brainstorm or cross-check your own voir dire questions; as source material in asking your judge to allow a jury questionnaire; or just as a way to think about how an individual juror's background and experiences might shape the way she hears your case. 

Please feel free to submit questionnaires for this page, whether approved by the court or merely proposed, and ask your friends to do the same.  If you send one, I'll credit you as author or contributor, and link to your website if you'd like.  You can E-mail submissions to me at areed@reinhartlaw.com; please tell me a little about the case as well, so I can describe it helpfully.  Likewise if you're the author of something I've already posted and would like credit, let me know.

(Photo by Korean Resource Center at http://www.flickr.com/photos/krcla/362137815/; license details there.)

Juror Disqualification: The Role Of The Ask

The last few days have turned into a juror disqualification series.  Friday listed some issues that might disqualify jurors; Monday talked about ways to prepare for those moments; and Tuesday looked at Monday's death-doubting-juror decision in Uttecht v. Brown. 

There's another point that pulls it all together, a critical factor -- maybe the critical factor -- in juror disqualification.  Over and over, cases seem to turn not on what the juror actually said or did, but instead on how extensively the trial judge questions, or allows questioning of, the juror and the rest of the panel.  To borrow a phrase from fundraising circles, it's all about The Ask.

The Ask in Uttecht v. Brown

Karl Keys at Capital Defense Weekly points out that the Uttecht v. Brown opinion relies heavily on the quality of the trial judge's voir dire:

Justice Kennedy need not have set out number of days in voir dire, appended the jury selection, mentioned the use of questionaires, or even that the jury panel was told repeatedly that life meant life without parole; none of those facts were necessary for the Court to reach its decision. Those details, however, are important if you are trying to send a message to those courts where such procedural safeguards are not taken. The processes Brown received at his trial were substantially more than you get in 80-90% of capital trials nationally. Justice Kennedy’s chambers reviews those same cases and he knows Brown received more process than almost all the hundreds of men the Court has sent to their deaths.

The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like.

Guess the reversals

Whether or not Uttecht v. Brown will end up limited to strong voir dire performances by trial courts, it's not the only recent case to turn on the quality of the trial court's questioning.  It's hard to rank the last several weeks' cases by how egregious the juror's conduct was.  Try it:  which of these trial court decisions do you think would stand up on appeal?

1. In a death-penalty case, to the question whether anyone had a problem with the idea of the defendant not testifying, one juror responded, "I do.  I think he should have to.  I know the law is not that way, but I think so."  Defense counsel asked whether the juror could set aside those thoughts, and he responded, "I don't know."  The trial court refused to dismiss the juror.
2. A trial judge dismissed a juror after she recognized the defendant and "although she was unsure, she had some recollection that he was fired for an incident involving a gun."  She had said she could be fair and wouldn't tell the others.
3. A juror complained that the defendant was "eyeballing" him.  Noting that the jury had been “repeatedly admonished not to make up its mind about any issue,” the trial judge left him on the jury.
4. In a death-penalty case, a white juror told African-American co-workers -- at his workplace, away from the other jurors -- that he was “going to the hardware store to buy rope to hang this man with.”  The defendant was African-American.  Questioned later by the trial judge, the juror insisted he was only saying what he thought his co-workers expected him to say, and he had not really made up his mind.  The trial judge left him on the jury but made him an alternate, so he did not deliberate.
5. In a death penalty case, the trial court refused to strike for cause ten jurors who remembered seeing publicity, including one who "related that she knew others who felt he was probably guilty and that she felt the same," one who said "that most of the people in the community at that time believed" the defendant was guilty, one who "was not sure if she could remove all information from her mind during the trial and deliberations," and one, the eventual foreman, who said in voir dire "that he wanted evidence from Appellant to prove his innocence."

And the answer is . . .

Only one of these cases affirmed the trial judge, and it's the one with the most egregious facts.  It's Case No. 5, where the ten tainted jurors remained (and nine deliberated.)  The opinion is Foley v. Parker, decided by the Sixth Circuit on May 17.  Granted, it's the only federal habeas case on the list, but the turning point in the opinion is The Ask:  "[T]he trial court conducted a thorough voir dire and was satisfied from the responses of the ten challenged jurors that they could set aside what they had heard about the case and decide it based upon the evidence presented in court."

Each of the other cases is different from the rest, of course -- different facts, jurisdictions, procedural postures, legal standards, and appellate judges.  What they all have in common, though, is that the trial court didn't ask enough:

1. Case No. 1 is Kopsho v. State, a death-penalty direct appeal in Florida decided May 24.  "Neither the State nor the trial court attempted to rehabilitate Mullinax after this exchange with defense counsel" in which Mullinax said he thought the defendant should testify.
2. Case No. 2, where the juror recognized the defendant, is People v. Dukes, decided by New York's highest court on May 1 and discussed in this blog here.  In Dukes the trial judge asked the juror what she remembered, and then reflexively dismissed her even though defense counsel objected.  The Court of Appeals reversed, saying the trial judge should have inquired whether she could still be impartial.
3. Case No. 3, the eyeballing case, is U.S. v. Simtob, a direct appeal decided by the Ninth Circuit on May 11 and a favorite of this blog.  (I know I keep bringing up Simtob, but it keeps being relevant.)  The Ninth Circuit sent the case back to the trial court to "determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially," since the trial judge didn't do that the first time.
4. Case No. 4, where the juror talked about lynching, is State v. Loftin, decided yesterday by the New Jersey Supreme Court on postconviction review, not direct appeal.  (The case is discussed here at Capital Defense Weekly.)  The trial judge should have dismissed the juror immediately because his comments were so heavy with racism, the court said -- but more than that, the trial judge should have questioned the other jurors: 

[T]he trial court had to voir dire the jury and satisfy itself either that Juror No. 4 did not express predetermined or biased views to other jurors or that if he did, the jurors were not influenced by those views. Therefore, the trial court first should have dismissed Juror No. 4 and then voir dired the jury. In cases in which a jury has been potentially exposed to external influences that could undermine jury impartiality, our courts have not hesitated to make inquiry of the jurors to ensure that they have not been fatally tainted.

The lesson is easy here.  If you're a judge, ask and ask and ask.  If you're trial counsel, be ready, and object precisely.

(Photo by Jilligan86 at http://www.flickr.com/photos/gillian_m/448800043/; license details there.)

The Unsure Death Penalty Juror Goes Home

Who gets to sit on a death penalty jury?  You'll need sturdy walking shoes to research the question.  We started here, in Witherspoon v. Illinois in 1968:

A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it.

And we ended up here, in Uttecht v. Brown yesterday:

Juror Z's assurances that he would consider imposing  the death penalty and would follow the law . . . did not require the trial court to deny the State's  motion to excuse Juror Z.

That's quite a journey.

No objection, but to what?

This blog is about what trial lawyers need to know next time, so I can leave most of the policy analysis to more capable others, a few of whom are listed in the note below.  That's good news for me, because on a policy level (I humbly submit) this opinion only highlights the Court's jurisprudential death penalty mess, but a post on the take-home lesson is easy to write.  The lesson is:  Object clearly. 

The Court summarized the moment of Juror Z's dismissal as follows:

Counsel, any challenge to this particular juror?

MR. MATTHEWS: I would, your Honor, not on the term beyond a shadow of a doubt, I think he would certainly stick with the reasonable 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 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.

MR. MULLIGAN: We have no objection.

THE COURT: Counsel, the request of the prosecutor's office, we will go ahead and excuse [Juror Z].

What did "no objection" mean?  Was defense counsel "thank[ing] his lucky stars when the prosecutor bumped Z," one of several interpretations Justice Kennedy considered?  Or was he instead saying he had "no objection" to Z remaining on the jury, as Justice Stevens supposed in dissent? 

There are paragraphs of discussion in the opinion about what the precise legal impact of that "no objection" should be, and Justice Breyer's entire dissent is based on it.  Defense counsel didn't have to object to preserve the error, but the Court had to struggle with how to weigh an affirmative "no objection," if indeed that's what was meant. 

But that's for the policy bloggers.  For us, there's only one point:  object clearly.  It isn't easy; we've all been shocked to see how what seemed like a plain oral statement took on a dozen different meanings in the transcript.  But it's worth striving for.

Beyond habeas?

Two other points.  First, when I wrote about the Uttecht oral argument in April, I warned that the opinion might not offer much guidance on how trial courts should handle unsure death penalty jurors, because the analysis might end in the maze of federal habeas corpus requirements.  Reading the opinion now, I think I may have been wrong.  At the beginning and end of his Uttecht opinion, Justice Kennedy does recite that federal courts defer to state trial courts on habeas.  But like many a trial lawyer's supposed "theme," the idea never really connects to the argument itself.  When he gets to the point, Justice Kennedy chooses words that say "we agree," not "we defer":

From our own review of the state trial court's ruling, we conclude the trial court acted well within its discretion in granting the State's motion to excuse Juror Z.

What's next?

Finally, what will death penalty juries look like, at least until the next time the Court changes course?  Justice Stevens predicts:

the perverse result of its opinion is that a juror who is clearly willing to impose the death penalty, but considers the severity of that decision carefully enough to recognize that there are certain circumstances under which it is not appropriate (e.g., that it would only be appropriate in "severe situations"), is "substantially impaired." It is difficult to imagine, under such a standard, a juror who would not be considered so impaired, unless he delivered only perfectly unequivocal answers during the unfamiliar and often confusing legal process of voir  dire and was willing to state without hesitation that he would be able to vote for a death sentence under any imaginable circumstance.

A panel of jurors like that would look a lot like the one that convicted Mr. Witherspoon in Illinois so long ago.

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Notes:

Some of the discussion elsewhere: 

1. Capital Defense Weekly is more optimistic than Justice Stevens: "Although some want to see larger trends at play here, I don’t." The post concludes, "The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like. It may also well be the template of what the Court will expect from here forward."  More on that here tomorrow. 
2. Blawgletter notes the emotional opening of both this opinion and the Carhart partial abortion case:  "The law aspires to decide cases through logic.  Stirring up passions seems an odd way to promote public confidence in the system." 
3. SCOTUSblog's analysis is here. 
4. How Appealing has a round-up of news stories here.

I've omitted record cites in the opinion excerpts in this post.

(Photo by Jim Crossley at http://www.flickr.com/photos/raindog/436176848/; license details there.)