JURY SELECTION IN
CAPITAL CASES
Pre-trial litigation - venue
 Skilling
v. United States (2010) ___ U.S. ___, 130
S.Ct. 2896
 Enron
case
 Particular impact on Houston
 Saturation media coverage
 Questionnaires revealed wide-spread negative opinions
about defendant
A
presumption of prejudice, our
decisions indicate, attends only the
extreme case.” (supra at 2915)
 No
presumption of bias because of (1) size of
community; (2) press coverage not “blatantly
prejudicial;” (3) time lapse between alleged
crime and trial; (4) defendant’s acquittal on
several counts
 Actual
prejudice on part of sitting jurors not
shown because they all said they could be fair
and the jury acquitted the defendant of
several charges
 People
v. Famalaro (2012) 52 Cal.4th 1
 Surveys
showed 83% of participants knew about
case, 70% said defendant was definitely or probably
guilty, and 72% said he should get death
 289
3
articles and editorials and over 4 hours of video
year long search for victim

Per questionnaires, 81% of prospective jurors knew about case, half
of those thought defendant was guilty and 46% of those could not
set the opinion aside

In the hall, prospective jurors said that the defendant was guilty, that
he was scum, that he should fry, that he should get the ax, and that
they could not believe they were breathing the same air as he was.
 “Here,
all 12 jurors testified under oath that they
could put aside outside influences and fairly try the
case.” (supra at 31)
 No
presumption of prejudice despite post-trial
statements by 3 jurors that they were urged by
coworkers to vote for death

People v. Avila (2014) 59 Cal.4th 496

Massive publicity, including President Bush opining as to the defendant’s guilt

Public funeral for the victim, presided over by the sheriff

High percentages of knowledge and prejudgment shown in pretrial polling

Radio broadcasts during drivetime on Southern California’s top-rated talk
show station advocating lying about prejudgment in order to get on the jury
and reach a death verdict

“But even if we were to assume it was not reasonably likely defendant could receive a fair
trial at the time of the motions, defendant has not shown that it is reasonably likely he did
not in fact receive a fair trial…Defendant…contends the publicity was so pervasive and the
John and Ken Show so poisonous, that prejudice must be presumed and need not be
established. [citation omitted]. We disagree…In determining whether defendant in fact
received a fair trial, `we consider the jury voir dire to determine whether the jurors may
have been prejudiced by the pretrial publicity surrounding the case, bearing in mind that no
presumption of a deprivation of due process of law arises from juror exposure to publicity
concerning the case.’ [citation omitted].” (supra at 508-510)
 Pretrial
motion:
 Monitor
print and broadcast media, including radio
 Monitor
media websites, including comment
sections
 Monitor
social websites, Twitter accounts,
Facebook pages, etc.
 Monitor
social responses, e.g. memorials,
fundraising efforts, meetings
 Consider
 Make
survey(s)
the motion before trial and again after
questionnaires and again after voir dire
 During
 Make
voir dire
sure the record is complete
 Argue the credibility of each juror you seek to
excuse for cause because of bias
 Do a comparative analysis, if appropriate, between
jurors the trial court finds credible and those it does
not
If
appropriate, make record of judge’s failure to
make credibility calls
Use
all your peremptories
Ask
for additional peremptories
Declare
your dissatisfaction with the jury
Continue
to monitor and make a record of
publicity, and website and social media activity
If
possible, monitor your jurors’ use of Twitter,
Facebook, etc.
 Changing the
paradigm:
Presumption
of prejudice
Jurors’
lack of ability to recognize and/or set
aside biases
Thinking
Fast and Slow, Daniel Kahneman
Pretrial litigation – venire composition

3 components to fair cross-section claim:

Group alleged to be excluded is a distinctive group in the community

Representation of this group in venires from which juries are chosen is not
fair and reasonable in comparison to the representation of the group in the
community

The underrepresentation is due to systematic exclusion of the group in the
jury-selection process

Duren v. Missouri (1979) 439 U.S. 357
 United
State Supreme Court has ducked the
questions of what statistical tool to use to
assess disparity in representation and of what
disparity is constitutionally meaningful
(Berghuis v. Smith (2010) 559 U.S. 314)
Questionnaires

General considerations:

Always use questionnaires

Read questionnaires from other trials to see how people answered questions

Never simply duplicate prior questionnaires

Ask as many open-ended questions as possible

Include as much information about your case as possible


People v. Cash (2002) 28 Cal.4th 703
Ask stripping questions

Particular areas on which to focus in questionnaires:
 Publicity
issues/prejudgment of facts
 Particularly
problematic parts of your case (e.g. gruesome
murder, particularly attractive victim(s), defendant’s prior record)
 Racial
issues
 Views
about role of mitigation in assessing appropriate penalty
The Colorado method of jury selection
3
components:
Ranking
Stripping
Protection

Ranking
1
 1:
–7
automatic life juror; 7: automatic death juror
 2:
automatic life juror who just misses saying it; 6: automatic
death juror who just misses saying it
 3:
juror who leans toward life; 5: juror who leans toward death
 4:
genuinely neutral juror

Tips for effective use of ranking

Rank jurors based on questionnaires

Ranks based solely on views on death penalty

Group conversations about the rankings are useful

A juror’s score can go up based on voir dire, but never down

Keep track of how many people with each score remain in your jury pool to
help you know how to tactically exercise peremptories

Pick for the hang

Stripping

Jury needs to understand that at penalty phase it will have decided that the
crime was committed without justification or excuse, that the defendant was
not insane, that the client had free will, and that the alleged special
circumstance(s) are true

Jury needs to understand that penalty phase does not involve excusing the
crime

Build in as many ugly facts about your case as possible

Protection
 Talk
about the distinction between guilt phase decisions
and penalty phase decisions
 Emphasize
the individual nature of penalty phase
decisions
 Get
buy-in from the jurors, especially the pro-death
jurors, on the issue of juror rights

Jurors’ rights
 The
right to individually assign moral weight to the evidence
presented at penalty phase
 The
right to reach an individual moral decision about the
appropriate penalty
 The
right to effectuate that decision, whether in deliberation and
in voting, without being criticized, pressured, or intimidated
Batson-Wheeler issues

3 step inquiry:

Defendant must make prima facie case by showing totality of relevant facts gives rise to
inference of discriminatory purpose

Burden then shifts to prosecution to offer permissible group-neutral reasons for strikes

Court decides whether defendant has proved purposeful discrimination

People v. Wheeler (1978) 22 Cal.3d 258

Batson v. Kentucky (1986) 476 U.S. 79

Johnson v. California (2005) 545 U.S. 162

Practical tips:
 Make
the record about the race/national origin/sexual
orientation of the jurors being struck, the jurors who remain in
the pool, and the jurors who end up on the jury
 Be
aggressive in making Batson motions
 Do
comparative analysis in 3d stage arguments
Witherspoon/Witt

Witherspoon v. Illinois (1968) 391 U.S. 510 “Specifically, we hold that a sentence
of death cannot be carried out if the jury that imposed or recommended it was
chosen by excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or religious scruples
against its infliction. No defendant can constitutionally be put to death at the
hands of a tribunal so selected.” (supra at 521-523)

Wainwright v. Witt (1985) 469 U.S. 412 “[The appropriate standard for
exclusion of a prospective juror] is whether the juror’s views would `prevent or
substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath…[D]eference must be paid to the trial judge who sees
and hears the juror.” (supra at 424-426)

Morgan v. Illinois (1992) 504 U.S. 719, 729 “A juror who will automatically vote
for the death penalty in every case will fail in good faith to consider the evidence
of aggravating and mitigating circumstances as the instructions require him to
do….Therefore, based on the requirement of impartiality embodied in the Due
Process Clause of the Fourteenth Amendment, a capital defendant may challenge
for cause any prospective juror who maintains such views. If even one such juror
is empaneled and the death sentence is imposed, the State is disentitled to execute
the sentence.”

During voir dire:
 Stripping
 Make
sure the record is complete
 Argue
the credibility of each juror you seek to excuse for cause
because of bias
 Do
a comparative analysis, if appropriate, between jurors the
trial court finds credible and those it does not
 Ask
about ability of juror to give appropriate weight to
specific mitigation
 Ask
about ability of juror to give appropriate weight to
specific aggravation
Do
a comparative analysis, if appropriate
between pro-life jurors excused for cause and
pro-death jurors against whom cause challenges
are denied
If
appropriate, make record of judge’s failure to
make credibility calls