CT Blue

Does there come a point when death qualification deprives a defendant of a jury of his or her peers. In Today’s Times we learn that 60% of the people in this country may now be effectively disqualified from sitting on death penalty juries. All a prosecuter has to do to disqualify someone with the slightest qualms about the death penalty is to get them to express a preference for life without parole (a position that 60% of us take), and then get them to make some “equivocal statements”, not a tall order for a reasonably skilled prosecutor. In fact, I would venture to say that in the hands of a skilled questioner another 10% of the population could be led to express a preference for life in prison. So, what do you have left:

Jurors eligible to serve in capital cases are “demographically unique,” said Brooke Butler, who teaches psychology at the University of South Florida. Professor Butler has interviewed more than 2,000 potential jurors over the past seven years and has written several articles on the topic.

“They tend to be white,” she said. “They tend to be male. They tend to be moderately well-educated — high school or maybe a little college. They tend to be politically conservative — Republican. They tend to be Christian — Catholic or Protestant. They tend to be middle socioeconomic status — maybe $30,000 or $40,000” in annual income.

In a study to be published in Behavioral Sciences and the Law, a peer-reviewed journal, Professor Butler made an additional finding. “Death-qualified jurors,” she said, “are more likely to be prejudiced — to be racist, sexist and homophobic.”

Not only are they bloodthirsty little devils, but as you might expect, death qualified jurors are not troubled by ideas like presumption of innocence, or legal standards like “beyond a reasonable doubt:

The jurors who remain after people with moral objections to imposing the death penalty are weeded out, studies uniformly show, are significantly more likely to vote to find defendants guilty than jurors as a whole.

There’s a silver lining around every cloud. At least here in the rational states, there is a better than even chance that, sooner or later, the state judiciary will recoil with disgust at our bloodthirsty Supreme Court and its insistence on gaming the system in favor of the prosecution and in favor of death.

A death penalty supporter is quoted as follows in the article:

“We don’t have jury nullification in this country,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. “If you have jurors who cannot look at the evidence fairly given their moral and philosophical beliefs, the state is not going to receive a fair trial.”

The problem with this argument is that the people who can look at the “evidence fairly” on the penalty phase don’t seem to be able to look at it fairly on the underlying question of guilt or innocence. If the evidence shows that we have created a system in which the state gets a “fair trial” only if the defendant gets a rigged trial, then, of course, there is no fair trial at all. If it is impossible to guarantee a fair trial to both sides if the death penalty is at issue, then the obvious solution is to take the death penalty off the table, since it is impossible to impose it without tilting the balance toward the state. Parenthetically, I always thought the core value in our system was to provide a fair trial to the defendant, not the state, but I suppose that’s pre-911 thinking. Also parenthetically, we do have juror nullification in this country.

If only a minority of people in this country can sit in judgment in a capital case, isn’t the defendant deprived of a jury of his or her peers. Isn’t there a point beyond which you can’t go before the “death qualification” system becomes incompatible with the constitutional guarantee of the right to a trial by jury, which has always (maybe until now) been assumed to imply a jury broadly representative (or at least potentially representative) of the community. Can it be constitutional for the state to vest the right to sit as a juror in an ever smaller minority of individuals? At some point might it not be possible to argue that the death penalty is unconsittutional because the jury selection system it requires deprives the defendant of his or her right to a constitutionally chosen jury. The Supreme Court will not buy this argument, but some state courts might.