They'll be talking about jurors at the Supreme Court today. The case is Uttecht v. Brown, and it may or may not give trial judges clearer rules to follow when potential jurors express doubt about the death penalty.
A little history
The cases were clearer back when the Court first started working on this issue, probably because the facts were starker. In 1968 in Witherspoon v. Illinois, a state trial court removed for cause every potential juror who "might hesitate to return a verdict" of death. By the time the purge was over, half the panel was gone. The Supreme Court called the resulting jury "a tribunal organized to return a verdict of death," and reversed the conviction with ringing words:
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.
But the Court still accepted that a juror could be so opposed to the death penalty as to no longer be impartial. In 1985 in Wainwright v. Witt (to which for some reason I can't link), the Court set out a standard for trial courts to decide whether to strike a juror on this ground. Under Witt, a judge may strike a juror for cause if his views “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”
A life-or-death sigh
Like many standards that sound firm when they're formulated, this one has been slippery in practice. A few weeks ago the South Carolina Appellate Law Blog noted a South Carolina case where the decision to strike the juror seemed to turn on a heavy sigh. The juror said he could impose the death penalty, but “took a very big deep [breath] and exhaled as if he were very uncertain as to whether or not he could do that."
This was the legal context in which Cal Brown was tried for rape and murder in Washington state court in 1993. A potential juror named Richard Dean, called Z in the Ninth Circuit opinion, was removed for cause. The prosecutor argued that Mr. Dean "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 trial judge granted the motion without explanation.
With no trial court findings, the Ninth Circuit (Judge Kozinski, for those who follow such things) looked at the voir dire transcript:
Z expressed no antipathy 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 . . . [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 happen 10 times a week either.” Z felt most comfortable imposing 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.
The court noted that "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 stating that he might not be able to."
Layers of questions may mean few answers
What should the trial court have done? It's a question of life and death, but this may not be the case where we find out. Uttecht v. Brown comes to the Supreme Court on a habeas corpus petition, not a direct appeal, so there are many layers of "can the federal courts do anything about it" before we get to "did the trial court do it right." Those procedural issues are ably (of course) summarized at SCOTUSblog, and the ABA has the parties' Supreme Court briefs here.
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Update: The Uttecht v. Brown opinion was issued June 4. It's discussed here.
(Photo by Jim Crossley at http://www.flickr.com/photos/raindog/436176848/; license details there.)
