JURY SELECTION IN CAPITAL CASES

Pre-trial litigation - venue

Skilling v. United States (2010) ___ U.S. ___, 130 S.Ct. 2896Enron caseParticular impact on HoustonSaturation media coverageQuestionnaires revealed wide-spread negative

opinions about defendant

A presumption of prejudice, our decisions indicate, attends only the extreme case.” (supra at 2915)

No presumption of bias because of (1) size of community; (2) press coverage not “blatantly prejudicial;” (3) time lapse between alleged crime and trial; (4) defendant’s acquittal on several counts

Actual prejudice on part of sitting jurors not shown because they all said they could be fair and the jury acquitted the defendant of several charges

People v. Famalaro (2012) 52 Cal.4th 1Surveys showed 83% of participants knew about

case, 70% said defendant was definitely or probably guilty, and 72% said he should get death

289 articles and editorials and over 4 hours of video

3 year long search for victim

Per questionnaires, 81% of prospective jurors knew about case, half of those thought defendant was guilty and 46% of those could not set the opinion aside

In the hall, prospective jurors said that the defendant was guilty, that he was scum, that he should fry, that he should get the ax, and that they could not believe they were breathing the same air as he was.

“Here, all 12 jurors testified under oath that they could put aside outside influences and fairly try the case.” (supra at 31)

No presumption of prejudice despite post-trial statements by 3 jurors that they were urged by coworkers to vote for death

People v. Avila (2014) 59 Cal.4th 496

Massive publicity, including President Bush opining as to the defendant’s guilt

Public funeral for the victim, presided over by the sheriff

High percentages of knowledge and prejudgment shown in pretrial polling

Radio broadcasts during drivetime on Southern California’s top-rated talk show station advocating lying about prejudgment in order to get on the jury and reach a death verdict

“But even if we were to assume it was not reasonably likely defendant could receive a fair trial at the time of the motions, defendant has not shown that it is reasonably likely he did not in fact receive a fair trial…Defendant…contends the publicity was so pervasive and the John and Ken Show so poisonous, that prejudice must be presumed and need not be established. [citation omitted]. We disagree…In determining whether defendant in fact received a fair trial, `we consider the jury voir dire to determine whether the jurors may have been prejudiced by the pretrial publicity surrounding the case, bearing in mind that no presumption of a deprivation of due process of law arises from juror exposure to publicity concerning the case.’ [citation omitted].” (supra at 508-510)

Pretrial motion:Monitor print and broadcast media,

including radioMonitor media websites, including

comment sectionsMonitor social websites, Twitter accounts,

Facebook pages, etc.

Monitor social responses, e.g. memorials, fundraising efforts, meetings

Consider survey(s)Make the motion before trial and again

after questionnaires and again after voir dire

During voir direMake sure the record is completeArgue the credibility of each juror you seek

to excuse for cause because of biasDo a comparative analysis, if appropriate,

between jurors the trial court finds credible and those it does not

If appropriate, make record of judge’s failure to make credibility calls

Use all your peremptoriesAsk for additional peremptoriesDeclare your dissatisfaction with the

jury

Continue to monitor and make a record of publicity, and website and social media activity

If possible, monitor your jurors’ use of Twitter, Facebook, etc.

Changing the paradigm:Presumption of prejudiceJurors’ lack of ability to recognize

and/or set aside biasesThinking Fast and Slow, Daniel

Kahneman

Pretrial litigation – venire composition

3 components to fair cross-section claim:

Group alleged to be excluded is a distinctive group in the community

Representation of this group in venires from which juries are chosen is not fair and reasonable in comparison to the representation of the group in the community

The underrepresentation is due to systematic exclusion of the group in the jury-selection process

Duren v. Missouri (1979) 439 U.S. 357

United State Supreme Court has ducked the questions of what statistical tool to use to assess disparity in representation and of what disparity is constitutionally meaningful (Berghuis v. Smith (2010) 559 U.S. 314)

Questionnaires

General considerations:

Always use questionnaires

Read questionnaires from other trials to see how people answered questions

Never simply duplicate prior questionnaires

Ask as many open-ended questions as possible

Include as much information about your case as possible People v. Cash (2002) 28 Cal.4th 703

Ask stripping questions

Particular areas on which to focus in questionnaires: Publicity issues/prejudgment of facts Particularly problematic parts of your case (e.g.

gruesome murder, particularly attractive victim(s), defendant’s prior record)

Racial issues Views about role of mitigation in assessing

appropriate penalty

The Colorado method of jury selection

3 components:RankingStrippingProtection

Ranking 1 – 7 1: automatic life juror; 7: automatic death juror 2: automatic life juror who just misses saying it; 6:

automatic death juror who just misses saying it 3: juror who leans toward life; 5: juror who leans

toward death 4: genuinely neutral juror

Tips for effective use of ranking

Rank jurors based on questionnaires

Ranks based solely on views on death penalty

Group conversations about the rankings are useful

A juror’s score can go up based on voir dire, but never down

Keep track of how many people with each score remain in your jury pool to help you know how to tactically exercise peremptories

Pick for the hang

Stripping

Jury needs to understand that at penalty phase it will have decided that the crime was committed without justification or excuse, that the defendant was not insane, that the client had free will, and that the alleged special circumstance(s) are true

Jury needs to understand that penalty phase does not involve excusing the crime

Build in as many ugly facts about your case as possible

ProtectionTalk about the distinction between guilt

phase decisions and penalty phase decisions

Emphasize the individual nature of penalty phase decisions

Get buy-in from the jurors, especially the pro-death jurors, on the issue of juror rights

Jurors’ rights The right to individually assign moral weight to the

evidence presented at penalty phase The right to reach an individual moral decision

about the appropriate penalty The right to effectuate that decision, whether in

deliberation and in voting, without being criticized, pressured, or intimidated

Batson-Wheeler issues

3 step inquiry:

Defendant must make prima facie case by showing totality of relevant facts gives rise to inference of discriminatory purpose

Burden then shifts to prosecution to offer permissible group-neutral reasons for strikes

Court decides whether defendant has proved purposeful discrimination

People v. Wheeler (1978) 22 Cal.3d 258

Batson v. Kentucky (1986) 476 U.S. 79

Johnson v. California (2005) 545 U.S. 162

Practical tips: Make the record about the race/national

origin/sexual orientation of the jurors being struck, the jurors who remain in the pool, and the jurors who end up on the jury

Be aggressive in making Batson motions Do comparative analysis in 3d stage arguments

Witherspoon/Witt

Witherspoon v. Illinois (1968) 391 U.S. 510 “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” (supra at 521-523)

Wainwright v. Witt (1985) 469 U.S. 412 “[The appropriate standard for exclusion of a prospective juror] is whether the juror’s views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath…[D]eference must be paid to the trial judge who sees and hears the juror.” (supra at 424-426)

Morgan v. Illinois (1992) 504 U.S. 719, 729 “A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do….Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.”

During voir dire: Stripping Make sure the record is complete Argue the credibility of each juror you seek to

excuse for cause because of bias Do a comparative analysis, if appropriate, between

jurors the trial court finds credible and those it does not

Ask about ability of juror to give appropriate weight to specific mitigation

Ask about ability of juror to give appropriate weight to specific aggravation

Do a comparative analysis, if appropriate between pro-life jurors excused for cause and pro-death jurors against whom cause challenges are denied

If appropriate, make record of judge’s failure to make credibility calls