The rigged death penalty jury

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.

To bust or not to bust the panel

Today I have a question on tactics. I think I made the right choice the other day but, despite my best efforts, I keep questioning my decision.

We were set to try an assault case. There was an altercation in a bar and my client was accused of hitting a bouncer on the back of the head with a beer bottle.

My case was far from being the oldest case on the trial docket. There were two DWI cases with blood tests that were much older than our case. However, we had a visiting judge on the bench who wanted to try a case that could be wrapped up in one day. And we were the lucky ones.

There were 24 people on the jury panel that was led into the courtroom. The judge was in such a rush to get things underway that I didn't even have time to go through all the juror information cards before the judge launched into his remarks.

The prosecutor then set to work with the typical Harris County DA voir dire presentation with the same PowerPoint template we've all come to know and love. But things got pretty hairy pretty damn quick. When the prosecutor asked the panel whether they thought it was important to try misdemeanor assault cases one juror in the front row told him she thought the whole process was a waste of time and money. And when he responded to her comments it only set her off even more. Then he asked what I'm sure he thought was a simple question about the elements of a misdemeanor assault.

One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel.

During the course of his presentation there were a couple of other jurors who indicated they had some issues with assault cases. Now I was faced with my first tactical question - should I aim to pick a jury from a panel that obviously had some issues with the case or should I bust the panel?

I chose the latter.

During my presentation I identified a couple more jurors who seemed a bit too biased to serve on the jury. One of the best questions to ask a panel to develop strikes for cause is whether they would require the defendant to testify in order to find him or her not guilty. That question eliminated two jurors.

After we finished questioning the panel the judge brought individual jurors up to the bench who were challenged for cause. I was now confronted with the question a second time. I was prepared to challenge at least 18 jurors for cause. Did I want to try the case or did I want to fight another day?

The judge called up about 15 or the first 20 panelists. Juror after juror told me that they would require the prosecutor to prove more than pain in order to convict. Juror after juror was dismissed. After a while the judge quit trying to rehabilitate them.

As soon as it became apparent that there wouldn't be enough people to form a jury the judge dismissed the entire panel. I felt the process served as an excellent screening procedure for the state's case. The fact that we couldn't seat a jury for a simple assault case should have sent a message to the prosecutor that his case had problems.

But I still wonder if we would have been better off seating a jury that would have, in all likelihood, been favorable to the defense. We certainly had a panel that was capable to finding my client not guilty because they didn't think someone should be convicted just because another person felt a little pain. Of course I have no idea what the hell might have happened back in that jury room after the evidence was presented. I have tried cases that I knew I had lost, yet won; and I've tried cases I knew I had won, but lost.

Is the wiser strategy to prolong the fight by busting a panel or to seat a jury that would appear to be favorable to the defense? Bust the panel and see if the state wants to make a better offer next time or take your chances with a jury who might just be willing to ignore the law to your benefit?

Staying on task

Earlier this week Amy Goodman was talking about the verdict in the trial of the man accused of killing Jordan Davis. She made a comment along the lines of there were a handful of jurors fighting for Jordan Davis during deliberations. The implication was that justice was not served in that case.

I must disagree with Ms. Goodman on this point. It wasn't the job of the twelve jurors to "fight" for justice for Jordan Davis. It was the job of the twelve men and women in the box to listen to the evidence presented and determine whether or not the government proved each and every element of its case beyond all reasonable doubt.

Jordan Davis wasn't on trial. He was the alleged victim. Michael Dunn, the man who shot Mr. Davis, wasn't on trial. What was on trial was the government's evidence in support of the charges.

If there were jurors in the jury room who were "fighting" for Jordan Davis, then those jurors were violating the oath they took when they were sworn in by the judge. They swore to uphold the law and to render a verdict - not a particular verdict, just a verdict.

I know there were some serious overtones and undertones in this case. I understand the vague similarities between the killing of Mr. Davis and the killing of Trayvon Martin made this case a lightning rod of sorts.

But whether or not Florida's "stand your ground" law is the underlying factor in both killings isn't the point of the trial. For those who think the stand your ground law is a bad idea and should be repealed, that is the function of the state legislature. Petition lawmakers. Vote for challengers to those who supported the stand your ground law. Picket the state capitol. But let's not confuse policy for justice.

You don't want jurors going back into the jury room and making policy decisions. Their job isn't to make the law - it's only to follow the law. Yes, jurors sometimes choose not to follow the law and render a verdict they think is fair. We call it jury nullification. It's discouraged, but it's an inherent part of allowing ordinary citizens to weigh the evidence and render a verdict.

But what Amy Goodman is talking about is not jury nullification. She's talking about ignoring the jury charge and ignoring the instructions given by the judge. She's talking about casting aside the presumption of innocence and shifting the burden of proof.

A jury cannot decide upon an outcome and work backwards to justify it. It's the very practice, carried out by appellate judges, that has resulted in the emasculation of the Fourth Amendment. It's that type of logic that has brought us the spectacle of police officers faxing in fill-in-the-blank search warrants to judges who volunteered to sign them so that we can strap down a motorist accused of a misdemeanor and jab a needle in their arm.

A juror's job, quite simply, is to answer one little, simple question -- did the government prove its case beyond all reasonable doubt. It's a yes-or-no question. Those folks in the box aren't there to send a message to anyone. They aren't there to support law enforcement or to support order in society. They aren't there to fight for the alleged victim. They aren't there to do anything but answer that one little question.

Poisoning the panel

The other day Scott Greenfield brought us the story of Erie (NY) County District Attorney Frank Sedita III whose biggest problem isn't wrongful convictions - it's "wrongful acquittals."

One thing Mr. Sedita failed to do was explain exactly how someone is "wrongfully acquitted." Has he never heard of the presumption of innocence? Has he never heard that the government must prove its case beyond all reasonable doubt? Does he not know what these terms mean?

I've never met Mr. Sedita, but I'm willing to bet that he's no dummy. I'm willing to bet he knows exactly what those terms of art mean. As buffoonish as the term "wrongful acquittals" may sound, that was just the smoke, or the sound or the scantily-clad girl that draws your attention away from the magician's hand.

Mr. Sedita is doing his best to poison the jury pool in Erie County without your even knowing it. While everyone's focused on his ridiculous statement, no one is paying attention to his real purpose in making it.

"I agree that the system is flawed, but in a manner that benefits the accused. I can accept that. Our system presumes a man innocent until he is proven guilty beyond a reasonable doubt. Ours is the greatest criminal justice system ever devised and I am proud to play a role in it. What I cannot accept is deliberate deception heaped upon an unsuspecting public. In my view, these so-called legislative reforms, offered under the pretense of preventing an injustice, are not intended to protect the innocent from wrongful conviction but are instead designed to shield the guilty from any conviction." -- Erie County DA, Frank Sedita III

Now, rather than focusing on whether or not the government has proven its case beyond all reasonable doubt, that Erie County jury panel is going to be wondering about just what the defendant did. Instead of holding the government to its burden of proof, that jury panel is going to be looking at the defendant and waiting for him to give them a reason to believe him.

Pretty sure he did it - but you got a nagging doubt in the back of your mind? Not a problem, vote guilty so we don't have another one of those "wrongful acquittals."

I could go on forever about how there's no such thing as a "wrongful acquittal." But y'all know that. What Mr. Sedita did was no different that what a prosecutor does when he asks a jury panel who just found a defendant not guilty whether it would have made any difference had they known about his prior criminal history. Or whether their verdict would have been different had they known about a certain piece of evidence the judge kept out.

The effect is the same either way. The only difference is that Mr. Sedita's remarks went out to the entire public and not just the twelve men and women in the jury box.

While Mr. Sedita might not like the fact that the government has such a high burden to overcome, the Founding Fathers made it so on purpose. Their greatest fear was the ability of the state to take away an individual's freedom. The founders believed that the power of the government came from the people; nowadays the government believes it's the other way around.

Mr. Sedita knows what he did was wrong. But he also knows that no one will ever do anything about it.