Picking a Death Jury For Brian Nichols

Thomas Jefferson described the right to a jury trial as "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." So important was the jury trial to Jefferson that he said: "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative."

We elect presidents and legislators but not federal judges. Juries bring democracy to the third branch of government. In a criminal case, only the jury -- not law enforcement, not a paid representative of the government, but twelve randomly chosen members of the community -- can decide the fact of guilt. As Jefferson pointed out, juries even have the power to decide the law (or at least to decide whether it's fair or reasonable to apply the law as the judge explained it), although judges don't like to tell juries that they have that right.

As the embodiment of democracy in the courtroom, it is unconscionable that reasonable members of the community who have no reason to be unfair to the government are summarily removed from death penalty juries because they are philosophically opposed to capital punishment. How representative of the community is a group of people who represent only one side of a controversy that sharply divides the nation? [more ...]

Brian Nichols is about to go on trial in Atlanta, where he is charged with murder. Jeralyn described the crime here.

A defendant on trial for rape in Atlanta, Brian Nichols, stole a sheriff's gun and shot and killed the Judge and court reporter. He then kept shooting, left the Fulton County courthouse, mugged a reporter, hijacked his car, and is on the loose.

Nichols' lawyers are challenging the automatic disqualification of potential jurors who oppose the death penalty.

"Opposition to the death penalty — no matter how staunch — does not render a potential juror incapable of following the court's instructions and honoring the juror oath in a capital case," the attorneys wrote in a motion filed Saturday.

So far, 18 men and women out of more than 50 questioned have been qualified. Some of those told prosecution and defense attorneys during questioning that they oppose the death penalty. But they also said they could still consider death if the judge instructed them to.

More information about the undemocratic practice of "death qualifying" capital juries is available here and here and here.

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    Interesting idea (5.00 / 1) (#2)
    by dianem on Sat Jul 19, 2008 at 05:47:59 PM EST
    I can see having people on a jury who are personally opposed to the death penalty, but who would be willing to impose it. But not people who simply won't consider it. It would be hard to tell the difference, though. But putting somebody who would never consider the death penalty on a potential death penalty case would be on a par with putting a person who would never disbelieve a police officer on a case which depends on challenging such testimony. Again, the problem is determining what the biases are. The people who are the most likely to be honest are probably the most idealistic people who are also the most likely to hold strong opinions about the death penalty.

    simply put, (5.00 / 1) (#9)
    by cpinva on Sat Jul 19, 2008 at 09:36:31 PM EST
    I don't know how one can be personally opposed to it, but consider imposing it on someone else - that just makes no sense to me.

    it's called following the law. very similar to being personally opposed to choice, but not attempting to impose that on anyone else.

    Oh, I understand the law part - (none / 0) (#11)
    by Anne on Sat Jul 19, 2008 at 10:37:16 PM EST
    that conviction of a particular crime qualifies the defendant for the death penalty - I'm just saying that I don't believe I could impose that sentence - which is why I would not be welcome on a jury in such a case.

    For me, it would seem to be more like being opposed to abortion, but forcing someone else to have one, since you would be deciding for someone else something you would not decide for yourself.  The thing about the death penalty is that no one would choose that for him- or herself, so the whole thing is hard to analogize.

    It does seem a little to me like "the fix is in" if all members of a jury have stated that they can impose the death penalty; the law may be the law, but the rest of it carries the potential for so much subjectivity that the state ought not to be loading the dice against the defendant.  It just seems logical that a death-qualified jury might be more tilted toward the prosecution than the defense, and in a system that is based on innocent until proven guilty, one would think the playing field should be a little more level.


    I'm not a death penalty advocate, (5.00 / 1) (#10)
    by Steve Davis on Sat Jul 19, 2008 at 10:09:01 PM EST
    but you can't really have openly anti-death penalty folks show up in a death-penalty jury pool. It would basically be jury nullification. Just as you wouldn't seat someone who admitted that they would vote for the death penalty in any case, regardless of circumstance, you can't have a juror who will oppose the use of the death penalty, in all circumstances. The best you can get is a jury of folks who say that they would be willing to vote for it, if the facts as presented by the state warrant it.

    Right (none / 0) (#13)
    by Abdul Abulbul Amir on Sat Jul 19, 2008 at 11:23:04 PM EST

    The same goes for a juror that would refuse to vote for a prison sentence.  

    thanks for writing this and (none / 0) (#1)
    by Jeralyn on Sat Jul 19, 2008 at 05:37:54 PM EST
    it would be so much better if, as I wrote in one of the posts you linked to, we life-qualified jurors rather than death-qualified them:

    Jurors should be life-qualified, rather than death-qualified. The test should be whether they could impose a life sentence even if they find the defendant guilty. But, that's not the law. Nonetheless, skilled capital defense lawyers push the envelope during jury selection to try to do just that -- find the jurors who could give life, no matter how heinous the crime. They want jurors who will listen to their mitigation evidence and reach within themselves to a find a reason to save their client's life.

    Well put. It has always amazed me that I would (none / 0) (#3)
    by jawbone on Sat Jul 19, 2008 at 05:49:23 PM EST
    not be considered for a jury simply because I do not believe in the death penalty.

    Is there any other belief about a penalty which will result in a citizen being removed from consideration?


    Yes. Odd-ball jury pool. (none / 0) (#4)
    by wurman on Sat Jul 19, 2008 at 06:15:20 PM EST
    About 35 years ago I was on jury duty & the bailiff was taking potential jurors by twelves into the empaneling room.  Apparently, the insurance company lawyers had convinced the judge that jurors with dentures, various plates of false teeth, could not arrive at a "fair" verdict. I had all my teeth & was seated.

    The trial was a combination criminal prosecution for vehicular manslaughter & varying degrees of bodily harm--including 3 people who had most or all of their teeth knocked out by the auto accidents.  In the days before seat & shoulder belts, eating the steering wheel was a terrible occurence.

    I was the opinion-molder & convinced the other 11 that losing multiple teeth was as bad as losing an arm or leg & needing prosthesis.  I had served in the USMC with men who had teeth destroyed.  It's devestating in quality of life, personal appearance, & self-esteem.

    The defense was astonished at our verdicts, the damages, & the replies to the judges questions.

    I read later that the appeals were denied & the various decisions affirmed. The local papers described the case as a prime example of over-inflated jury awards for personal damages.  [Do any attornies know if the media narratives EVER change on any topic?]


    I dunno (none / 0) (#6)
    by gyrfalcon on Sat Jul 19, 2008 at 07:47:58 PM EST
    I'm totally opposed to the DP and as a juror who had to decide on penalty, could not under any circumstances vote for death.  As long as some states (and the feds) still legally have the DP, I can't see that it makes any sense for me to be on a jury that will have to consider it, since I'm an automatic vote against, no matter the crime.

    It makes no sense to me to be upset about this.  We need to be upset about the DP and work to get rid of it, as my state did many years ago.


    It does seem to be really biased (none / 0) (#7)
    by splashy on Sat Jul 19, 2008 at 07:49:05 PM EST
    Considering that those that are for the death penalty often bring a whole host of attitudes that those that are against would not, and vice versa.

    For instance, if I were on trial for something that could possibly bring the death penalty, wouldn't those that didn't believe in the death penalty be more my peers than those that do, considering I am against it? If they picked only those that were for the death penalty, then they would all have different attitudes on pretty much everything. They would not be my peers, IMHO.

    The thing about the death penalty is that (none / 0) (#8)
    by Anne on Sat Jul 19, 2008 at 07:56:07 PM EST
    I don't know how one can be personally opposed to it, but consider imposing it on someone else - that just makes no sense to me.

    I also do not understand empaneling a jury that, from the get-go, only consists of people who believe they will have no problem imposing the death penalty.

    And I don't understand why we put 12 citizens in the position of ordering another person's death - that it is state-sanctioned doesn't change what it is.

    It's time to eliminate the death penalty.

    solve the "bias" (none / 0) (#12)
    by diogenes on Sat Jul 19, 2008 at 11:08:55 PM EST
    If having twelve death-qualified jurors is really such a bad bias against a defendant, his lawyer could easily waive the right to a jury trial and let the judge decide.

    Yeah, right (none / 0) (#18)
    by txpublicdefender on Mon Jul 21, 2008 at 04:12:34 PM EST
    You're not being serious, right?  Leave the decision in the hands of an elected state judge instead of twelve people who the prosecution has to convince?  

    You're being sarcastic, I assume.


    But being pro-death penalty? (none / 0) (#14)
    by jefered on Sun Jul 20, 2008 at 07:10:35 AM EST
    Wouldn't a juror who is pro-death penalty bring an extrajudicial bias to the process too? Indicating support for the death penalty shows favoritism (dare I say desire) for a certain outcome long before evidence is heard.

    Jurors should be questioned on their neutrality toward application of the death penalty. If those vocally opposed are excluded, so should those vocally in favor.

    I dont think so (none / 0) (#15)
    by DaveOinSF on Sun Jul 20, 2008 at 01:20:48 PM EST
    The jurors will be asked to determine whether Defendant X is or is not guilty of Crime Y and whether that should result in Punishment Z.  If a juror uses anything other than trial testimony in determining whether Defendant X is guilty of Crime Y and should receive Punishment Z, that juror is tainted.

    What would you want for your jury? (none / 0) (#16)
    by Jef on Sun Jul 20, 2008 at 01:23:37 PM EST
    I can understand some of the comments, but you have to realize the bias that the State/Government always has.   This happens in NJ all the time.  For example, I had a case involving DNA.  The judge refused to ask jurors if they thought that DNA = guilty (paraphrasing here).  So if you were on trial, would you want to make sure it was at least possible to win before your lawyer even made one comment about the case?

    Not all states offer bench trials... (none / 0) (#17)
    by notime4lies on Sun Jul 20, 2008 at 08:15:50 PM EST
    In Virginia, second only to Texas in executions, district attorneys ALWAYS ask for a jury trial.  In order for a defendant to have a bench trial, prosecutors must first agree.

    bench trials (none / 0) (#19)
    by txpublicdefender on Mon Jul 21, 2008 at 04:14:55 PM EST
    In Texas, the state also has a right to a jury trial so you can only have a bench trial if the state agrees to waive.  As to punishment, though, the defendant gets to elect whether that is to be decided by judge or jury.  Other states only give the jury trial right to the defendant, so he or she can elect a trial by jury or judge.  

    The pro-DP bias (none / 0) (#20)
    by txpublicdefender on Mon Jul 21, 2008 at 04:20:38 PM EST
    The problem with death-qualified juries is that they tend to be more pro-state, pro-law enforcement, and less likely to give the full presumption of innocence to the defendant and to hold the state to their burden of proving the guilt/innocence case beyond a reasonable doubt.  There are some jurisdictions, like Harris County in Texas, where the prosecution has sought the death penalty so often that they have been accused of seeking death just so they could get a death-qualified jury for the guilt-innocence phase.  The first Andrea Yates trial was one of those.  After they got their conviction, the prosecutors didn't really even argue for death in the penalty phase--not at all like they normally do.  But then, when the case was retried and they could not seek the death penalty due to the first jury having made the factual findings rejecting it, they didn't get a death-qualified jury.  And what happened?  She was found not guilty by reason of insanity.  Now, I can't say that the fact that one jury was death-qualified and the other was not was the only difference maker between the first and second trials, but I certainly believe it was a strong factor.