DEFENDER ASSOCIATION OF PHILADELPHIA
BY: ELLEN GREENLEE, DEFENDER,
MARC BOOKMAN, ASSISTANT DEFENDER,
KARL SCHWARTZ, ASSISTANT DEFENDER,
Identification No. 00001
1414 Sansom Street
Philadelphia, PA 19102
(215) 568-3190
Attorney for Mustafa Ali
_______________________________
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: CRIMINAL TRIAL DIVISION
v.
MUSTAFA ALI
:
: CP-51-CR-0000683-2008
: CHARGES: Murder, etc.
MEMORANDUM OF LAW IN OPPOSITION TO THE COMMONWEALTH’S REQUEST
TO DISMISS THE JURY PANEL AND DISCONTINUE USE OF THE JURY
QUESTIONNAIRE
Prior to jury selection in the above-captioned matter, counsel for Defendant drafted a jury
questionnaire to be filled out by all prospective jurors prior to individual voir dire. After
numerous discussions and several revisions, the Commonwealth agreed to all of the questions as
phrased in the jury questionnaire. The assigned district attorney wished to add three of his own
questions. These three questions - without any revision - were consented to by the defense, and
added to the questionnaire.
On January 6, 2009, the mutually agreed upon Jury Questionnaire was presented to the
first panel of 100 jurors. The answered questionnaires were copied and made available to both
counsel late in the afternoon on January 6, 2009. On January 7, 2009, the assistant district
attorney informed defense counsel that after review of the answers, it was his opinion that too
many prospective jurors were answering the questions in such as way as to make them ineligible
to serve in a death penalty case. He further informed counsel that he would be filing a brief to
dismiss the jury panel and discontinue the use of the Jury Questionnaire in jury selection.
The matter was listed for argument on January 8, 2009. The district attorney filed his
letter brief that morning, and this court heard argument on the matter. This court deferred its
decision on the Commonwealth’s motion to the next business day (January 11, 2010) and
provided counsel an opportunity to respond in writing.
The Commonwealth alleges that the questions contained within the jury questionnaire are
improper, because some of the questions contain a summary of facts that will be presented at
trial (both guilt and penalty phases) and also inform the potential jurors of a potential aggravator
- that Defendant has five prior convictions for bank robbery. The Commonwealth contends not
only that these questions are improper, but that the trial court is precluded from allowing these
questions during any part of voir dire in a capital homicide case.
The Commonwealth’s position is simply wrong. Far from being prohibited areas of
inquiry, Defendant is constitutional entitled, under both the state and federal Constitutions, to ask
these questions. The questions at issue are necessary to give meaningful effect to the “life
qualification” of jurors required under Morgan v. Illinois, 504 U.S. 719 (1982).
However, this Court, if it so chooses, need not even reach the Constitutional question of
whether or not these voir dire questions are required by law, because the decision to allow the
jury questionnaire as written and filed, as well as the scope of voir dire, is within the discretion
of this Court; there exists no prohibition on these question and indeed, many other courts have
allowed voir dire questions much more expansive than proposed here.
Thus, there exists absolutely no reason to discontinue the use of the jury questionnaire;
nor is there any reason to bar inquiry into the areas covered by the specific questions at issue.
The Commonwealth’s motion should be denied.
1. The questions contained within the jury questionnaire are constitutionally required
to effectuate and give meaning to Morgan.
In Morgan v. Illinois, 504 U.S. 719 (1992), the Supreme Court recognized that a capital
defendant is constitutionally entitled to voir dire prospective jurors about their support for the
death penalty and to remove, for cause, any prospective juror who would be inclined to impose a
death sentence without considering mitigation evidence or who would otherwise not follow the
law in determining the appropriate punishment. This “life qualification” seeks to ensure that
prospective jurors can fairly and impartially consider a life sentence at the penalty phase of a
capital trial.
In order to select a fair and impartial jury, voir dire may not be limited to jurors’ views of
the death penalty in the abstract. Rather, life and death qualification must focus on the
prospective juror’s willingness and capacity to properly discharge his sentencing obligations
based on the facts of the case before him.
A recent decision of the United States Supreme Court confirms that it is appropriate and
necessary to specifically reference case-specific facts when a juror is being life and/or death
qualified. In Uttecht v. Brown, 551 U.S. 1 (2007), the sole issue decided by the Supreme Court
was whether or not a prospective juror was unconstitutionally struck “for cause” because he
expressed some hesitation about being able to impose the death penalty under the specific facts
of the given case.
The juror in question indicated on at least six separate occasions throughout voir dire,
that although he had some general hesitations about the death penalty, he could follow the law
and the judge’s instructions, and vote for death in an appropriate case. However, the juror was
voir dired about the specific aggravating and mitigating factors of the particular case, and in the
face of this further voir dire, the juror expressed more ambivalence about his ability to consider
both penalties. Uttecht, 551 U.S. at 27-28 (Appendix to the Opinion of the Court, Verbatim
Transcript of the Voir Dire Proceeding)1. The trial court ultimately struck this juror, for cause,
based on his inability to sit fairly, based on the facts of the particular case. The Circuit Court
reversed, holding that he was improperly struck “for cause,” since he expressed an ability to
impose a death sentence.
The Supreme Court reversed the Circuit Court, upholding the dismissal of the juror by
the trial judge. The Supreme Court could not have been clearer that a juror’s answers as to life
and death qualification questions were only meaningful when given in reference to the nature of
the case before that juror. And the Court said so, stating that the juror was impaired “under the
facts of this case” (emphasis added). Uttecht at 13. The Supreme Court Opinion makes it clear
that the appropriate focus of the voir dire inquiry is whether under the particular facts of a case,
rather than under abstract general principal, a person can consider both a death and life
sentence.2 Although the juror in Uttecht expressed an ability and willingness to impose either life
1
The specific voir dire, notably without objection from the prosecutor or comment from the United States Supreme
Court, is as follows: Q: In addition to that in Washington even premeditated murders are not eligible for a potential
death penalty unless the State also proves aggravating circumstances. In this case the State is alleging or is going to
try and prove a number of aggravating circumstances, four of them. Okay. And the ones that they are going to try
and prove are that the murder was committed, a premeditated murder was committed during a rape, a
robbery, a kidnapping and that it was done in order to conceal a witness or eliminate a witness. Does that fall
within the class of cases that you think the death penalty is appropriate?
2
As the Court stated:
The State argues that Juror Z was impaired no tby his general outlook on the death penalty, but
rather by his position regarding the specific circumstances in which the death penalty would be
or death in a given case, in practicality, after being questioned about case-specific aggravating
and mitigating factors, he was not able to be an impartial juror. The Supreme Court looked at
the totality of the voir dire and determined that the juror was “substantially impaired” because he
could not realistically consider a sentence of death, based on the particularized facts of the
instant case. Thus, the proper inquiry into whether or not a juror is qualified to sit depends not
on whether or not that juror could abstractly consider both life and death, but on whether, given
the particular facts and circumstances of the case, the juror can meaningfully consider both
options. This concept was specifically addressed in People v. Harris, 98 N.Y. 2d 452 (2002). In
upholding the “for cause” dismissal of jurors who could not impose the death penalty, the
appellate court held that the proper inquiry was whether or not the potential juror could impose
death based on the facts of the particular case:
Defendant questions the prosecution’s tactic of focusing on the aggravating facts
of this particular case and the trials court’s granting of the People’s for-cause
challenges against jurors who had expressed that, while they could conceive of a
case warranting the imposition of the death penalty, they would be unable to
impose the death penalty under the circumstances of this particular case. Because
the entire statutory and constitutional line of inquiry is directed toward
determining whether a juror’s attitude for or against the death penalty would
affect that person’s capabilities to sit fairly in the case at hand, it necessarily
follows that the inquiry properly focused on the jurors’ views as they related to
the case at hand, not merely in the abstract. Thus, the trial court properly required
the jurors to be able to impartially consider the penalty “in this case.”
Harris, 98 N.Y.2d 484-485 (emphasis added).
appropriate. The transcript of Juror Z’s questioning reveals that, despite the preceding instructions
and information, he had both serious misunderstandings about his responsibility as a juror and an
attitude toward capital punishment that could have prevented him from returning a death sentence
under the facts of this case.
Uttrecht, 551 U.S., at 13(emphasis added).
Therefore, since a juror’s suitability depends upon the particular facts and circumstances
of any given case, a defendant has the constitutional right to inform those jurors of the basic legal
and factual elements of the charged capital offenses, such that their capacity to sit impartially,
under the facts of the specific case, is legitimately tested in voir dire. This is all Defendant
seeks in the instant case.
Mr. Ali wishes to discern whether or not potential jurors could still consider and impose a
life sentence after learning the most basic facts of the case (a double murder, caught on video,
involving two retired police officers), and the fact that Mr. Ali had previously committed five
bank robberies. In light of United States Supreme Court law over the last ten years, this request
is nothing more than a wish to voir dire on the elements of the offense on which the jury must
decide. Jones v. United States, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466
(2000), and Ring v. Arizona, 536 U.S. 584 (2002), establish that aggravating factors are in fact
elements of the offense of capital murder. Thus, in the instant case the allegation that Defendant
has a significant history of violent convictions, i.e. the five bank robberies, is an element of the
offense of capital murder, and as such must be alleged in the indictment and proven to a jury
beyond a reasonable doubt. The defense simply requests voir dire on the elements of the offense,
i.e. if these elements are proven beyond a reasonable doubt, can a potential juror still consider a
life sentence? Surely Morgan and Uttecht demand no less. If a juror would be unable to consider
a life sentence under these particular circumstances, that juror is not able to sit as a fair and
impartial juror in this case and must be struck for cause under Morgan and Uttecht. Therefore,
the questions contained within the Questionnaire are constitutionally required3 to effectuate and
give meaningful effect to the purposes underlying Morgan.
3
Although there is no constitutional requirement that this court use the written jury questionnaire, the questions
contained in this questionnaire are constitutionally required, whether done in the written form or in individual voir
The Commonwealth, in support of its proposition that these questions are prohibited,
relied solely on three Pennsylvania cases that did not discuss the issue in terms of constitutional
rights, and had absolutely nothing to do with informing potential jurors about the factual
predicate of the case or about how potential aggravating factors might impact their decision to
automatically impose death.
The primary case cited by the Commonwealth is Commonwealth v. Bomar, 573 Pa. 426,
826 A.2d 831 (2003). In Bomar, the defendant raised the issue that he was denied a fair trial
when the trial court refused to voir dire on specific aggravating circumstances. The Court did
not reach this issue, because it found that the defendant failed to establish that counsel ever
attempted to ask any questions pertaining to the aggravating factors. Bomar, 573 Pa. at 453.
The Bomar Court did go on to hold that the defendant was not entitled to ask open-ended
questions regarding particular pieces of mitigation during voir dire, briefly holding that “voir
dire is not to be utilized as a tool for the attorneys to ascertain the effectiveness of potential trial
strategies.” Bomar, 573 Pa. at 456. The other cases by the Commonwealth, Commonwealth v.
Carson, 559 Pa. 460 (1999) and Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439 (1995)
(which are also cited in Bomar) are directed at the defense attorneys’ attempts to preview their
specific mitigation – something all sides must concede the defense is not attempting to do in this
Questionnaire.
dire. The jury questionnaire is simply an expedient and standard way to obtain these constitutionally required
answers. Questionnaires are common practice in death penalty cases in all federal jurisdictions and most states. (A
routine national Lexis search of “questionnaire /20 ‘death penalty’” came up with 482 cases!). Indeed, a
questionnaire was used in Uttecht, as well as Miller-El v. Dretke, 545 U.S. 231 (2005) and Miller-El v. Cockrell,
537 U.S. 322 (2003), the two other United States Supreme Court cases in the Lexis search. In each instance the
Court referenced the questionnaire routinely.
Here, Defendant is not attempting to ask any questions about specific pieces of
mitigation4, nor is he attempting to “test out” potential trial strategies. Therefore, the three cases
cited by the Commonwealth are not on point, do not address the compelling state and federal
constitutional issues, and are not controlling of the issue present here.
Although the Pennsylvania Supreme Court has never addressed this issue, other courts
around the country have. Not surprisingly, these courts analyze the issue as our Supreme Court
did in Uttecht, emphasizing fairness and transparency in the voir dire process. In People v. Cash,
28 Cal. 4th 703 (2002), the Supreme Court of California addressed an issue nearly identical to
that present in the instant case. Mr. Cash was charged with capital murder for shooting his
landlord, and attempting to kill the landlord’s girlfriend. Mr. Cash had previously been
convicted of two counts of murder, for killing his grandparents. During voir dire, counsel for the
defendant sought to ask the potential jurors whether or not they could return a life verdict if
evidence established that the defendant had previously committed murder, a fact that would not
normally be presented during the guilt phase of the trial. The trial court refused to allow any
voir dire on this aggravator. The California Supreme Court reversed on both state and federal
constitutional grounds:
Defendant contends that by preventing all voir dire on the issue of prior murder,
the court denied him his rights under our federal and state Constitutions to an
impartial penalty jury. We agree. Prospective jurors may be excused for cause
4
Although not at issue here, there is significant support for the proposition that mitigation questions are
appropriate and constitutionally required during voir dire. Federal courts have permitted not only questions about
generic categories of mitigation, but even specific mitigators. See e.g., United States v. Quinones , 511 F.3d. 289,
298 (2nd Cir.2007)(jurors were asked if they would support a life sentence for a person who “had an abusive,
neglectful or chaotic childhood’ or “has below normal intelligence’); United States v. Sampson, 486 F.3d 13, 40 (1st,
Cir. 2007)(juror was questioned about ability to balance mitigating evidence of defendant’s “severe emotional
disturbance”); United States v. Hall, 152 F.3d 381, 408 (5th cir.1 1998)(“jurors were asked whether they “could
consider the fact that a defendant grew up in a dysfunctional, abusive family as a mitigating factor”); United States
v. Flores, 63 F.3d 1342, 1354 (5th Cir. 1995)(“Both the government and Garza asked the venire about their feelings
toward specific aggravating and mitigating factors.”). These types of mitigation-specific questions are appropriate
because they elucidate potential jurors who might not give any weight to the potential mitigating evidence of the
particular case, and thus be “substantially impaired” under Morgan.
when their views on capital punishment would prevent or substantially impair the
performance of their duties as jurors. The real question is whether the juror’s
views about capital punishment would prevent or impair the juror’s ability to
return a verdict of death in the case before the juror.
Cash, 28 Cal. 4th 719-720(emphasis in original).
In the instant case, like Cash, Defendant simply seeks to voir dire on an aggravating
factor that is part of the Commonwealth’s case and that might have an impact on whether or not
a juror would automatically impose the death penalty, rendering that person ineligible to serve.
As the Cash Court went on to note:
Here, the trial court’s ruling prohibited defendant’s trial attorney from inquiring
during voir dire whether prospective jurors would automatically vote for the death
penalty if the defendant had previously committed another murder. Because in
this case defendant’s guilt of a prior murder (specifically, the prior murders of his
grandparents) was a general fact or circumstance that was present in the case and
that could cause some jurors invariably to vote for the death penalty, regardless of
the strength of the mitigating circumstances, the defense should have been
permitted to probe the prospective jurors’ attitudes as to that fact of circumstance.
In prohibiting voir dire on prior murder, a fact likely to be of great significance to
prospective jurors, the trial court erred.
Cash, 28 Cal. 4th at 720.
The New Jersey Supreme Court also has held that voir dire on the aggravating factor of
prior crimes is constitutionally required. In New Jersey v. Biegenwald, 126 N.J. 1 (1991), the
defendant was on trial for capital homicide and had previously been convicted of two prior
murders. The trial court refused defense counsel’s request to voir dire the potential jurors on
whether or not they could still consider a life sentence if they were informed that the defendant
had committed two prior murders. The Supreme Court reversed the defendant’s death sentence,
holding that it was unconstitutional not to allow voir dire into the aggravator of prior murder
convictions:
[W]e are convinced that knowing a defendant had killed before could cause an
otherwise fair-minded person to disregard evidence offered in support of
mitigating factors. The reasoning of Williams II is not limited to circumstances
surrounding the murder for which a defendant is being prosecuted. Under the
United States Constitution and our system of capital punishment, the sentencer
must consider not only “the circumstances of the particular offense” but also the
“character and record of the individual offender.” Hence, the voir dire should
include questioning about evidence of aggravating factors that will be presented
during the sentencing proceeding and that may with reasonable likelihood have
such an effect on a prospective juror as to render him or her “substantially
impaired” under the Adams-Witt standard.
Biegenwald, 126 N.J. 45-46.
Thus, the proposed areas of voir dire inquiry contained within the jury questionnaire
are both proper and constitutionally required. Therefore, the Commonwealth’s motion must be
denied.
2. This Court has discretion to use the proposed questionnaire and allow the proposed
questions.
As indicated above, this Court, if it so chooses, need not even reach the Constitutional
question presented by the proposed questions. Voir dire is within the sound discretion of the trial
court and for which the trial court has extremely broad discretion. United States v. Fell, 372 F.
Supp. 2d 766 (Vermont, 2005). Jury questionnaires and the specific questions here are well
within the discretion of this Court. These exact types of questions have been asked in many
courts throughout this country and are certainly not prohibited.
In Fell, supra., the district court allowed both the prosecution and defense to ask casespecific questions regarding both the potential aggravating and mitigating factors. As the Court
stated;
In fact, the Court concludes that the Supreme Court’s reasoning in Morgan
supports the use of case-specific questions in some circumstances. The entire
premise of the Morgan decision is that highly general questions may not be
adequate to detect specific forms of juror bias.
Fell, 372 F.Supp. at 769.
Likewise, in United States v. Johnson, 366 F. Supp. 2d 822 (N. Dist. Iowa, 2005), Chief
Judge Bennett thoroughly discussed the issue of case-specific voir dire, gave a historical
overview of its use subsequent to Morgan, and summarized the current state of the case law in
this area. Ultimately, he held that case-specific voir dire was necessary to give meaningful effect
to Morgan. He allowed both sides to ask case-specific questions about mitigation and
aggravation during the voir dire process.
Upon consideration of the applicable case law and the court’s own experience, the
court finds that, while Morgan does not require ‘case-specific” questioning of
prospective jurors to satisfy constitutional requirements for life and deathqualifying prospective jurors, “case-specific” questions are nevertheless
appropriate—indeed, necessary—to empanel a fair and impartial jury in this
particular case. Indeed, the constitutionality of “case specific” questions was not
at issue in Morgan, because the Court was only presented with the question of
whether or not the defendant was entitled to ask an “abstract” life-qualifying
question, “If you found (the defendant) guilty, would you automatically vote to
impose the death penalty no matter what the fact are?” See Morgan, 504 U.S. at
723. On the other hand, this Court believes that “case-specific” questions may
well be constitutionally required in order to impanel a fair and impartial jury,
because a prohibition on “case-specific” questions may unconstitutionally impede
a party’s “ability to exercise intelligently a challenge for cause against those
biased persons on the venire who as jurors would unwaveringly impose” either a
life or death sentence after a finding of guilt.
.
.
.
.
[E]ither party is entitled to ask prospective jurors questions that are specific
enough to determine if those jurors harbor bias, as to some fact or circumstance
shown by the trial evidence, that would cause them not to follow an instruction
directing them to determine penalty after considering aggravating and mitigating
evidence.
Johnson, 366 F. Supp. 2d 848 (emphasis in original).
Thus, even if this Court does not find that the questions proposed in the jury
questionnaire are constitutionally required, they are certainly appropriate given the facts and
circumstances of the instant case5. The defense seeks to ask very limited case-specific questions
that will help identify those jurors who could not fairly sit as jurors in this particular case. As
such, it is well within this court’s discretion to permit these questions as part of the written and
oral voir dire process.
For all the foregoing reasons, this Court is respectfully requested to deny the
Commonwealth’s motion to dismiss the jury panel and discontinue use of the jury questionnaire.
Respectfully Submitted,
_________________________
Lori Mach, Assistant Defender
Marc Bookman, Assistant Defender
Karl Schwartz, Assistant Defender
Ellen Greenlee, Defender
Defender Association
5
This Court is well aware that the instant case garnered significant publicity when it happened and for some time
afterwards. Much of that publicity centered on Defendant’s history of bank robbery convictions (samples attached as
Exhibits). For the Commonwealth to attempt to prevent fair vetting of these convictions in a capital case, knowing
the attention said convictions have been given by the media, is disingenuous at best.