One of the most important questions you can ask a prospective juror is whether or not they can consider the entire range of punishment in a case. Lay out a scenario and ask that panelist whether they could even consider the minimum punishment. If they say no, you've got a challenge for cause (at least until the judge intimidates them into recanting their answer and giving the "right" one).
But what if that juror couldn't consider the upper range of punishment in a given case? The prosecutor has the right to challenge that juror for cause -- and the defense attorney damn sure isn't going to try to rehabilitate the juror by urging him to consider the max. That problem is even more apparent in a capital murder case.
In order to sit on a capital murder jury, a prospective juror has to be able to consider imposing the death penalty should the jury convict the defendant. Just think about that for a second.
In order to qualify for the jury, the prospective juror has to assume that the defendant is convicted (meaning all twelve jurors find him guilty) and has to be willing to recommend that the defendant be put to death.
Therefore a person on trial for capital murder is facing a jury that is both predisposed to convict him and to order him murdered by the hand of the state. The jury is rigged against the defendant before the trial even begins.
Where this becomes particularly problematic is the constitutional requirement that a defendant be tried by a jury of his peers. If you live in a rural, bible-thumping area, chances are you would be facing a jury that would only be to happy to put you to death because no one has ever actually read and understood either the Ten Commandments nor the New Testament. But, take a trip to any urban area and you are much more likely to find folks who are opposed to the death penalty for a myriad of reasons.
If you are tried in Harris County, some of your peers may be adamantly opposed to the death penalty in all circumstances, some might be opposed to it except for the most heinous crimes and others may be supporters of state-sponsored murder. But when that jury is picked, the only folks you're going to see are the third group - the ones who are most likely to convict you.
If we really want folks tried by a jury of their peers, then we need to stop striking panelists because they are opposed to the death penalty. We must stop pretending that every community across this state ardently supports the ability of the state to exercise its most coercive power - the power to kill.
The point of our criminal (in)justice system is supposed to be to protect the rights of the accused. That being the case, "justice" doesn't require that the members of the jury in a capital case be "qualified" by their support of the death penalty.
The deck is already stacked against a criminal defendant. The state has the resources and manpower of the police, crime lab personnel and the courts to coerce defendants into pleading guilty. The state has the benefit of judges who will do what they can to rehabilitate jurors for the state in the name of judicial efficiency.
A "qualified" capital jury is just one more tool in the arsenal of the state to bring a defendant to his knees. It is time to change the rules so that a defendant in a capital murder case has the benefit of being tried by a jury of his peers - those who oppose the death penalty as well as those who support it.