Stacking the Jury

I spent the day reading through jury questionnaires in a capital case. What depressing reading. I still find it stunning every time I am confronted with some of the pro-death penalty opinions out there. Some folks don't think mental retardation is a mitigating factor that should result in a life sentence. After all, if the defendant knew what he did was wrong, there can be no lame excuse like IQ! Just because you have the mental capacity of an 8 year-old, that doesn't mean we shouldn't hold you responsible for your actions to the fullest extent possible. My personal favorite is a juror who answered the question of "could you impose the death penalty" by inquiring when the execution would be, because he would have to check his schedule to see if he was available to inject fatal fluids into the defendant that day.

On the questionnaire, prospective jurors are asked to rank themselves on a scale of 1 to 7: 1 is strongly opposed to the death penalty and 7 is strongly supporting it.

In the end, capital juries are entirely comprised of people who rank themselves a 4 and above. In one of the greatest farces in the whole justice system, someone decided that people who oppose the death penalty need to be disqualified from capital juries. Courts have totally fallen for it. As a result, any prospective jurors who would not impose the death penalty or who have strong moral opposition to it are stricken for cause. Meaning the trial judge removes those people from the jury panel so the state doesn't have to use any of their peremptory strikes. But people who would always impose capital punishment are just fine on juries. Defense attorneys can hardly ever get them struck for cause because all the state has to do is prompt that juror, "But you would consider all the factors before making your decision, right?"

The theory goes that people with moral opposition to the death penalty couldn't follow the law, so allowing them onto juries would allow those few jurors to overcome the will of the majority by not imposing the penalty authorized by law. But even those who totally oppose the death penalty aren't refusing to follow the law. The law requires them to hear all of the evidence relevant to a sentencing decision and then consider whether the aggravating factors proved by the state outweigh the defendant's mitigators. Any juror is also always free to consider his or her own sense of mercy. So an anti-dp juror is not failing to follow the law. The anti-dp juror just places a lot more weight on mercy as a factor in making the sentencing decision. As is completely allowed by law.

The pro-dp juror, a 6 or a 7 for example, often leans strongly towards imposing death on any defendant convicted of capital murder. Indeed, many jurors do not understand how capital trials work. They don't realize that a finding of guilt on capital murder does not end the jury's work. Those prospective jurors would vote for death for anyone, regardless of mitigators because anyone convicted of capital murder should be sentenced to death. Mercy carries no weight with them. Even though the law says they can always show a defendant mercy, no matter how bad the aggravators are. They would impose death in all cases even though the law requires juries to make individualized sentencing decisions about the defendant, which doesn't seem to go along with voting death for any capital defendant.

But those jurors aren't failing to follow the law. Those prospective jurors never get stricken for cause, and no defense attorney has enough peremptory strikes to get them all of the jury. According to courts, it's ok for a prospective juror to go into jury duty with a predisposition to impose death. That wouldn't be subverting the will of the majority. We just don't want any jurors who have serious moral qualms that would keep them from killing defendants.

I am incredibly frustrated about this current state of capital jury selection. Courts get rid of all the 1 jurors without making the state sweat at all, so all the state has to do is use its peremptories to get rid of the few 2s and 3s who get past the cause challenges. I don't think I'm being paranoid when I say that I do believe courts are far more pre-disposed to weed out the anti-dp jurors than they are to get rid of the killers. A killer juror can always be rehabbed just by saying that yes, he or she would listen to and consider the defendant's sentencing evidence. That's kinda like me saying I would consider voting for a Republican for president... I'd consider it for about a nanosecond before filling in the circle next to the Democrat's name. But it's good enough to keep a killer in the jury pool.

In his Baze concurrence, Justice Stevens bemoaned this fact that capital defendants are screwed from the start of their trials. They're denied a jury made up of a fair-cross section of their peers because the roughly 30% of Americans who oppose capital punishment can't get on the juries. Justice Scalia willfully misunderstood Stevens' concern, making it clear that Scalia isn't likely to help correct the imbalance in capital juries anytime soon.

Here's my solution: let's just stop asking prospective jurors their feelings on the death penalty at all. It really can't get any worse for defendants than it is right now. They're already getting stuck with jurors leaning towards death before they've even heard the evidence of guilt. So let's go back to the days when prospective jurors' opinions on the death penalty were irrelevant to their ability to serve on a capital jury. Maybe then a few anti-dp folks can get onto a jury here or there. How refreshing that would be, instead of having a jury filled with people who just can't wait to kill the defendant before they've heard a shred of evidence.