Juries

Death Penalty Voir Dire

I recently attended the Capital Voir Dire Training: Theory & Intense Practice CLE sponsored by the University of Colorado, NACDL and the Southern Center for Human Rights.  I highly recommend this course to anyone who has an interest in juries or the death penalty.  The course uses a hands-on approach to teach attorneys the Colorado Death Penalty Voir Dire method.  The structured classroom component was, at times, a little disorganized; however, the actual application of the course material in the small sections was excellent. This was due primarily to the fact that the instructors who run the small sections are top-notch and arguably the best in their field.  For a link to the course go here.  For more background on the Colorado method go here.

Unanimous Juries in Death Penalty Cases

Here is an interesting op-ed article (Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril) in the Miami Herald advocating for unanimous juries in Death Penalty cases.  Apparently, Florida is the only state in the union that allows someone to be put to death based on a non-unanimous recommendation from the jury.  According to the article, written by former Florida Supreme Court Justice Raoul Cantero and Florida State University law professor Mark R. Schlakman,

Florida is an outlier insofar as allowing capital-case juries to find aggravating circumstances and recommend a death sentence by a simple majority, e.g., 7-5. All 33 other death penalty states require some form of unanimity

The entire article can be accessed here.

Judges Trumping Jurors in Capital Cases

New York Times: Overriding the Jury In Capital Cases

Alabama allows judges to reject sentencing decisions from capital juries, which sounds like a sensible idea. You might want a mature and dispassionate jurist standing between a wounded community’s impulse toward vengeance and a defendant at risk of execution...to continue reading go here.

 

Capital Juries: Law Review Article

Scott E. Sundby, War and Peace in the Jury Room: How Capital Juries Reach Unanimity,  62 Hastings L. J. 103 (2010).

Abstract:

Using data from the Capital Jury Project, this article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The process proves to be a fascinating one. The article first examines the relationship between first ballot voting patterns and the ultimate sentence, and then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case-to-case in how they convert holdouts to the majority position (the striking differences are between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole). Using the closing argument in the death penalty case of Susan Smith (the mother who had done the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the article concludes by examining how a closing argument might address many of the pressures that affect holdouts.

Death Penalty Jurors and Post-Trial Interviews

The articles below discuss the case of Miguel "Mickey" Soto who recently had his 2000 Death Penalty sentence overturned because of post-trial statements made by jurors.  The statements were revealed in 2005 when an attorney handling Mr. Soto's appeal interviewed several former jurors.  A few of those jurors made it quite clear that they had not considered mitigating evidence when sentencing Mr. Soto to death.  Here is a sample of the statements made by one juror.

 "I decided that Soto should get a death sentence as soon as I decided he was guilty."

"Yes, I based my decision to impose the death penalty on the crime itself,"

In deciding to void Mr. Soto's sentence, the court stated that had this juror made his thoughts known during voir dire he would have been removed for cause.  The Soto case illustrates the value of conducting post-trial juror interviews, especially in Death Penalty cases where jurors must consider mitigating evidence.

Louisville Courier Journal: Oldham death sentence tossed

AP:  Death sentence tossed in slaying

 

SCT Declines to Hear Death Penalty Case Involving Juror Misconduct

AP: High Court Turns Down Appeal in Rogue Juror Case

WASHINGTON — The Supreme Court on Tuesday rejected an appeal from a federal death row inmate who said his death sentence should have been thrown out because of a juror's misconduct.

The justices did not comment in turning down Brandon Basham, who was sentenced to death for kidnapping and killing 44-year-old Alice Donovan in 2002. The foreman on Basham's jury was held in contempt of court by the trial judge after it was learned that she called five news organizations and made 71 other calls to two fellow jurors, despite repeated warnings from the judge to refrain from discussing the case with anyone.

In the case from South Carolina, U.S. District Judge Joseph F. Anderson Jr. found that the behavior of juror Cynthia Wilson, was so outrageous that he held her in contempt of court, ordering her to return $2,500 of her juror's pay and perform 120 hours of community service. Anderson said he would have put Wilson in jail for six months if she did not have four children at home.

But when Basham asked for his death sentence to be thrown out as a result of Wilson's conduct, Anderson refused, and the 4th U.S. Circuit Court of Appeals in Richmond, Va., backed him up.

And when Basham took his plea to the Supreme Court, then-Solicitor General Elena Kagan agreed that the judge had made the correct call.

SCT to Consider Impact of Juror Misconduct in Death Penalty Case

AP: Kagan: No Need for Court Review of Rogue Juror (Basham v. U.S., 09-617)

A federal judge warned jurors in a death penalty trial 41 times not to discuss the case with anyone, not even each other, until they were sent off to deliberate on a verdict.

That didn't stop Cynthia Wilson, the jury foreman, from calling five news organizations and placing 71 other telephone calls to two fellow jurors.

U.S. District Judge Joseph F. Anderson Jr. of South Carolina found Wilson's behavior so outrageous that he held her in contempt of court, ordering her to return $2,500 of her juror's pay and perform 120 hours of community service. Anderson said he would have put Wilson in jail for six months if she did not have four children at home.

But when the defendant in the case, Brandon Basham, asked for his death sentence to be thrown out as a result of Wilson's conduct, Anderson refused and the 4th U.S. Circuit Court of Appeals in Richmond, Va., backed him up.

And when Basham took his plea to the Supreme Court, Solicitor General Elena Kagan agreed that the judge had made the correct call. The high court, to which Kagan has since been nominated, could say as early as Tuesday whether it will hear Basham's case...to continue reading go here.

Is the Bible Prejudicial?

That is the question before the Mississippi Supreme Court this week in the death penalty case of Kristi Fulgham who was convicted in 2006 of murdering her husband.  During the sentencing phase of Ms. Fulgham's trial, the bailiff left his Bible in the jury room.  When the bailiff returned for the Bible one of the jurors asked if they could keep it and he agreed.  Less than 15 minutes later the jury voted to sentence Ms. Fulgham to death.

Upon learning about the Bible, the judge assembled the jury and asked them collectively whether or not the presence of the Bible affected their verdict. They said no.

At the Mississippi Supreme Court hearing, the attorney representing Ms. Fulgham argued that the procedure followed by the trial judge with regards to the Bible was incorrect and that he should have individually questioned the jurors to determine whether any one juror read the Bible while conducting juror deliberations.  The attorney went on to say that “Prejudice is presumed with the Holy Bible...We don’t know the Bible was used. We don’t know that the Bible wasn’t used. We can assume it was used.”

In response, the prosecutor stated that “There’s no evidence that it improperly influenced the jury,” Davis said. “You don’t check your morals at the door; you can certainly bring them in the jury room.”

Due to the unique nature of the Bible and the fact that it is commonly known and prevalent in everyday society, courts have struggled to determine whether or not it should be deemed extrinsic evidence or presumed prejudicial when in the presence of jurors.  What makes this issue even more confusing is that the U.S. Supreme Court despite opportunities has refused to take up the issue.  The most recent chance was last year in Texas v. Lucero.

The following cases demonstrate the different approaches taken by the courts on this subject:

Fields v. Brown(9th Cir. 2007); Romine v. Head(11th Cir. 2001); and Jones v. Kemp 706 F. Supp. 1534 (N.D. Ga. 1989)  

 

Post-Trial Contact with Capital Jurors

Below are two interesting articles discussing post trial contact with jurors that serve on capital cases.  In one article, you have the Virginia Bar attempting to stop the state attorney general's office from sending warning letters to former capital jurors that in no uncertain terms discourages those jurors from meeting with defense attorneys or their representatives.  In the second article, an AP reporter tracks down jurors from the 1991 Troy Davis case and asks them whether they still believe in their death sentence in light of new evidence calling into question the testimony of numerous witnesses who testified at trial.   

Va. Bar Protests Letters to Jurors as Harmful to Defense Efforts

The Virginia State Bar is trying to stop the state attorney general's office from distributing warning letters for jurors in capital cases that it says might discourage them from talking to defense lawyers.

The office represents the state in all appeals by condemned murderers, including civil challenges once criminal appeals are exhausted. For a decade, the office has supplied local prosecutors with a letter to send to jurors once a civil case starts, advising them that they might be contacted by someone representing the convicted killer who "may try to give the false impression that they are working on behalf" of the prosecution or the courts ...Read in full

 '91 death verdict splits Ga. jurors

Inside the jury room, seven men and five women huddled around a table to discuss a parade of witnesses in the case of an off-duty police officer shot and killed outside a fast-food restaurant.

In just two hours they found Troy Anthony Davis guilty. In another seven, they said he deserved to die. Both times they were unanimous.

Since then, Davis' attorneys have delayed his execution three times — less than 24 hours before he was to be executed, in one instance — by raising doubts about those witnesses.

Davis has drawn support from the Vatican to the European parliament, from former President Jimmy Carter to Archbishop Desmond Tutu. The NAACP has launched an "I am Troy" campaign.

While the U.S. Supreme Court is expected to decide soon whether to hear Davis' latest appeal, one thing is clear: Those who convicted Davis in 1991 no longer agree on whether they did the right thing.

The Associated Press set out to find the 12 jurors, some of whom are speaking publicly for the first time since the verdict. In interviews or affidavits, at least four said they were having second thoughts, based on claims by Davis' attorneys that key witnesses have backed away from their court testimony. At least two others, including Raleigh W. Powers, stand by the verdict and say Davis should be executed in the killing of police officer Mark MacPhail...Read in full

Jurors and the Death Penalty

This article highlights the growing trend of North Carolina jurors to opt for life in prison rather than the death penalty.  According to the article:

N.C.'s Death Row is up by 1

Standards of decency have evolved somewhat," said Danielle Carmen, the assistant director of Indigent Defense Services. "I just think there's been this national movement, just toward being more and more selective in identifying what is the ‘worst of the worst' and which cases should even be exposed to the death penalty."

Last week Time ran a similar article noting that in Texas and nation-wide death penalty verdicts are down.

Is Texas Changing Its Mind About the Death Penalty?

"The tide has changed," Hirschorn says. "It used to be fashionable to say, 'I support the death penalty.' It used to be unfashionable to say, 'I am against the death penalty.'"