{"id":1036,"date":"2003-07-21T20:35:01","date_gmt":"2003-07-22T00:35:01","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/dbnews\/death-qualification-unbalances-juries\/"},"modified":"2003-07-21T20:35:01","modified_gmt":"2003-07-22T00:35:01","slug":"death-qualification-unbalances-juries","status":"publish","type":"page","link":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/death-qualification-unbalances-juries\/","title":{"rendered":"“Death Qualification” Unbalances Juries"},"content":{"rendered":"

<\/a><\/p>\n

Facing a Jury of (Some of) One’s Peers<\/strong><\/font> <\/strong>
\nBy ADAM LIPTAK in the New York Times<\/p>\n

The right to a trial by a jury of
\n one’s
\npeers
\nlies
\nat
\nthe
\nheart
\nof the American legal system except when it comes to the death penalty.  The
\n jury hearing the first capital trial in Puerto Rico in a generation, for example,
\ndoes not reflect the island’s population in two important ways.<\/p>\n

The case is in federal court, and potential jurors not fluent in English are
\nexcluded from all federal trials nationwide. In Puerto Rico, that means that
\ntwo-thirds to three-quarters of the island’s residents cannot serve.<\/p>\n

And because prosecutors are seeking to execute the two defendants, who are accused
\nof kidnapping and murder, potential jurors who said they would never impose the
\ndeath penalty were automatically rejected. That second requirement excludes,
\naccording to somewhat dated studies, 11 percent to 17 percent of potential jurors
\nnationwide. In Puerto Rico, which has no death penalty and where the federal
\ngovernment’s pursuit of capital charges in the pending trial has provoked widespread
\noutrage, the percentage is probably higher.<\/p>\n

The United States Court of Appeals for the First Circuit, in Boston, which hears
\nall federal appeals from Puerto Rico, has upheld the language requirement, finding
\nthat its importance outweighs the distortions in the jury pool it produces. It
\nis not clear, in any event, which side the distortions might favor in criminal
\ncases.<\/p>\n

But death qualification, as the second requirement is known, is a different matter.
\nIt has been shown to produce juries that are notably friendlier to prosecutors
\nthan jurors in murder cases where the death penalty is not sought.<\/p>\n

Studies have shown that juries in capital cases are more likely to believe that
\na defendant’s failure to testify indicates guilt, more hostile to the insanity
\ndefense, more mistrustful of defense attorneys and less concerned about the possibility
\nof convicting innocent people than a random sample of the population.<\/p>\n

Death qualification has other consequences, too. <\/p>\n

"
\nThere is a major bleaching of juries," said Samuel R. Gross, a law professor
\nat the University of Michigan. "Many more African-Americans are excluded
\nthan whites. The biggest demographic predictor of attitudes toward the death
\npenalty is race." <\/p>\n

The exclusion of jurors opposed to the death penalty, Justice Thurgood Marshall
\nwrote in a 1986 dissent, "allows the state a special advantage in those
\nprosecutions where the charges are most serious and the possible punishments
\nthe most severe."
\nThe Supreme Court took a tentative step toward forbidding such questioning in
\n1968. The court reversed a death sentence imposed by a jury selected by a judge
\nwho had excluded everyone who had any qualms about the death penalty.<\/p>\n

"
\nWhatever else may be said of capital punishment," Justice Potter Stewart
\nwrote for the majority, "it is at least clear that its imposition by a hanging
\njury cannot be squared with the Constitution."<\/p>\n

[note to my students: a "hanging jury" is an expression from the American
\n wild west which describes a jury predisposed to find an accused person gulty
\n and to impose the death penalty.  By definition, it is NOT impartial.]<\/p>\n

But the court still allowed the exclusion of jurors who categorically oppose
\nthe death penalty, citing the need for more research on the effect of such exclusions.<\/p>\n

"
\nThat was an invitation to go do empirical research, and it was an invitation
\nthat was met with a vengeance," said Franklin E. Zimring, a law professor
\nat the University of California at Berkeley, and the author of "The Contradictions
\nof American Capital Punishment" (Oxford University, 2003).<\/p>\n

The resulting studies showed a powerful correlation between attitudes toward
\nthe death penalty and receptiveness to evidence of defendants’ guilt. "It’s
\na situation where we were embarrassed by knowledge," Professor Zimring said. "It
\nwas a wonderful example of legal empirical research being too good for the court." <\/p>\n

In 1986, the court in essence withdrew its invitation. Justice William H. Rehnquist,
\nwriting for the majority, said that, on reflection, social science could add
\nnothing to the relevant legal analysis. The Constitution, he said, forbids only
\nthe exclusion of distinctive groups like blacks and women. Barring groups of
\npeople defined only by shared attitudes is permissible.<\/p>\n

Justice Rehnquist rejected alternatives that might have addressed some concerns,
\nlike separate juries for the guilt and penalty phases of a trial or a single
\njury with extra jurors who could be weeded out based on their attitudes toward
\nexecutions if a penalty phase was needed. The Supreme Court has since held that
\njurors who say they would automatically impose the death penalty for some crimes
\nmay also be excluded.<\/p>\n

The ability to screen jurors may invite prosecutorial gamesmanship, tempting
\nprosecutors to charge cases as capital crimes solely to produce a friendlier
\njury.<\/p>\n

"
\nIt’s a genuine dilemma," said Professor Zimring. "If you gave capital
\ndefendant a representative jury, you couldn’t produce a death penalty."<\/p>\n","protected":false},"excerpt":{"rendered":"

Facing a Jury of (Some of) One’s Peers By ADAM LIPTAK in the New York Times The right to a trial by a jury of one’s peers lies at the heart of the American legal system except when it comes to … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":299,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"open","ping_status":"open","template":"","meta":{"footnotes":""},"class_list":["post-1036","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/wp-json\/wp\/v2\/pages\/1036","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/wp-json\/wp\/v2\/users\/299"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/wp-json\/wp\/v2\/comments?post=1036"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/wp-json\/wp\/v2\/pages\/1036\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/dowbrigade\/wp-json\/wp\/v2\/media?parent=1036"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}