We were doing a debate on MSNBC's Dan Abrams Report today on the Scott Peterson case, and in particular, the request of the defense for two juries, one for the guilt phase and one for the punishment phase. A prosecutor on the show did not believe us when we said there were numerous studies showing that death-qualified jurors are more likely to convict in the guilt phase. Upon returning to our computer, it took less than five minutes to find the following:

The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases by Samuel Gross, 44 Buffalo L. Rev. 469, 494 (1996)

Page 494:

Death Qualification. In capital cases, juries decide the sentence as well as determine guilt or innocence. As a result, the jury selection process includes a unique procedure, "death qualification," that is designed to ensure that the jury is qualified for the sentence phase. Most jurors who are strongly opposed to the death penalty, and some who are strongly in favor, are excluded at the outset. fn 108 Many studies have shown that these exclusions make the jury more likely to convict. fn 109 In addition, the process of question- ing jurors about their willingness to impose the death penalty before the defendant has been convicted tends to create the impression that guilt is a foregone conclusion, and the only real issue is punishment. fn 110

fn 109 (some studies)

Claudia L. Cowan et al., The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 LAW & HUM. BEHAV. 53 (1984);

Robert Fitzgerald & Phoebe C. Ellsworth, Due Process v. Crime Control: Death Qualification and Jury Attitudes, 8 LAW & HUM. BEHAV. 31 (1984).

See generally Hovey v. Superior Court, 616 P.2d 1301, 1315-1341 (Cal. 1980) and studies cited therein;

see also Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), aff'd 758 F.2d 226 (8th Cir. 1985) (en banc), rev'd sub nom Lockhart v. McCree, 476 U.S. 162 (1986).

Someday we hope the Supreme Court revises the jury selection process in death cases and holds that jurors must be life-qualified instead of death qualified. Until then, we hope and expect that lawyers in Mark Geragos' situation continue to make the motion for separate juries.