IN THE SUPERIOR COURT OF DOUGLAS COUNTY
STATE OF GEORGIA
STATE OF GEORGIA,
Plaintiff,
v.
NICHOLAS JASON BRYANT,
Defendant.
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Indictment No. 04-CR-579
NICHOLAS JASON BRYANT’S MEMORANDUM OF LAW REGARDING THE
SCOPE OF APPROPRIATE VOIR DIRE IN A CAPITAL CASE
NICHOLAS JASON BRYANT, by and through counsel, submits this memorandum to
summarize the relevant legal principles governing voir dire in capital cases in Georgia, including
the proper standards for challenges for cause and appropriate methods of questioning.
Specifically, this memorandum proceeds from the fundamental Constitutional principle that any
juror who would automatically vote for the death penalty if the defendant is found guilty of
murder must be disqualified for cause. U.S. Const. Amend. VI, XIV; Ga. Const. Art. I, § I, Para.
XI, (a); O.C.G.A. § 15-12-164 (2007); Skipper v. State, 257 Ga. 802 (1988); Collier v. State, 244
Ga. 553 (1979); Morgan v. Illinois, 504 U.S. 719, 728 (1992); Ross v. Oklahoma, 487 U.S. 81,
85 (1998).
SUMMARY OF THE ARGUMENT
In order to uncover bias that would rise to the level of constitutional impairment pursuant
to Morgan v. Illinois, counsel must be permitted to explore the potential jurors’ understanding of
the relevant legal framework in a capital case. Potential jurors must, in other words, understand
the context in which they would ultimately be called upon to decide among the three possible
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sentences in a capital trial before they can meaningfully answer the question of whether they
would, in fact, be willing to consider all three. Experience and common sense teaches us that
jurors often misunderstand the complex legal framework involved. For example, potential jurors
often respond that they would be willing to consider a sentence of life with parole only where the
“murder” was provoked or was an accident. Such a view on the part of the potential juror – once
fully explored by the parties – would plainly render the juror unfit to serve pursuant to Morgan.
Such a juror would never meaningfully consider the sentence in the relevant context – the
context of a person convicted of malice murder with aggravation. The questioning precluded by
this Court is designed solely to address this issue in the most direct and efficient manner
possible. Counsel requests leave of this Court merely to explain that in order to reach the
sentencing stage of a capital case, the jury would have necessarily determined that the killing
was not justified by accident, provocation, self-defense, insanity, or mental retardation. Counsel
has no intention whatsoever of running “hypothetical” cases by these jurors and asking them how
they would vote. Counsel agrees that pursuant to the law on voir dire in this state, such questions
would be improper, but there is nothing “hypothetical” about informing the jurors of the findings
they would have necessarily made prior to being faced with the question of sentencing in this
case.
I.
THE FEDERAL AND STATE CONSTITUTIONS DEMAND THAT MR.
BRYANT BE TRIED BEFORE A JURY COMPOSED OF INDIVIDUALS WHO
CAN GIVE MEANINGFUL CONSIDERATION TO ALL THREE POSSIBLE
PUNISHMENTS FOR SOMEONE CONVICTED OF MALICE MURDER.
A capital defendant is guaranteed the right to a fair trial before a panel of impartial and
indifferent jurors. U.S. Const. Amend. VI, XIV; Ga. Const. Art. I, § I, Para. XI, Sub-section (a);
Morgan v. Illinois, 504 U.S. at 728; Ross v. Oklahoma, 487 U.S. at 85; DeYoung v. State, 268
Ga. 780, 782-783 (Ga. 1997). In Morgan v. Illinois, the Supreme Court of the United States
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confirmed, as it had previously suggested in Ross v. Oklahoma, that in order to protect a capital
defendant’s right to a fair trial a juror is properly removed for cause at any stage of the
proceedings if it becomes clear that the juror’s views in favor of the death penalty would
“prevent or substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath.” Morgan, 504 U.S. at 728-729 (quoting Wainwright v. Witt, 469 U.S.
412, 424 (1985)).
In Morgan, the Court reiterated that a juror who would “automatically” impose a death
sentence following conviction for murder is properly excluded under the substantial impairment
standard. Id. at 736. Such automatic death penalty jurors are properly excluded because they
“obviously deem mitigating evidence to be irrelevant to their decision to impose the death
penalty; they not only refuse to give such evidence any weight but are also plainly saying that
mitigating evidence is not worth their consideration and that they will not consider it.” Id.; see
also Nance v. State, 272 Ga. 217, 224 (2000) (finding reversible error where a prospective juror,
who would automatically vote for a death sentence for all convicted murderers was permitted to
serve); DeYoung, 268 Ga. at 783. Put more plainly, a juror is not qualified to serve under
Morgan if he or she cannot follow the law.
II.
MR. BRYANT IS ENTITLED TO A MEANINGFUL VOIR DIRE, WHICH
ALLOWS INQUIRY SUFFICIENT TO ENSURE THAT THE JURY IS
COMPOSED OF INDIVIDUALS WHO ARE, IN FACT, OPEN TO
CONSIDERING ALL THREE PUNISHMENTS FOR A DEFENDANT WHO HAS
BEEN CONVICTED OF MALICE MURDER.
It is obviously impossible to know whether a prospective juror is able to follow the law in
Georgia governing death penalty cases without asking appropriate questions on voir dire. The
Court in Morgan specifically held that general questions about a juror’s ability to “follow the
law” or to be “fair and impartial” are insufficient to determine whether a potential juror could
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actually follow the law. The relevant language, directly applicable to our present situation, is as
follows:
It may be that a juror could, in good conscience, swear to uphold the law and yet
be unaware that maintaining such dogmatic beliefs about the death penalty would
prevent him or her from doing so. A defendant on trial for his life must be
permitted on voir dire to ascertain whether his prospective jurors function under
such misconception. The risk that such jurors may have been empaneled in this
case and ‘infected petitioner’s capital sentencing [is] unacceptable in light of the
ease with which that risk could have been minimized.” Petitioner was entitled,
upon his request, to inquiry discerning those jurors who, even prior to the State’s
case in chief, had predetermined the terminating issue of his trial, that being
whether to impose the death penalty.
Morgan, 504 U.S. at 735-36 (quoting Turner v. Murray, 476 U.S. 28, 36 (1986)) (internal
citations and footnotes omitted). A “defendant is deprived of due process and his right to an
impartial jury if the voir dire procedure is so limited that it cannot uncover prejudice.” Jordan v.
Lipman, 763 F. 2d 1265, 1281 (11 Cir. 1985). Thus, the trial court is required to “conduct voir
dire of sufficient scope and depth to ascertain any partiality.” Kim v. Walls, 272 Ga. 177, 178-79
(2002).
Much like general questions about a prospective juror’s ability to “follow the law” or be
“fair and impartial,” a general question about a prospective juror’s ability to consider all three
punishments for a defendant who has been convicted of malice murder is similarly unlikely to
get at a juror’s true ability to follow the law. A person cannot truthfully know whether he can
follow the law unless he knows what that law is, and the term “malice murder” has a specific,
technical definition that no juror can reasonably be expected to know or understand.
Specifically, as the transcripts attached to this motion as Exhibit A make clear, potential
jurors often do not understand that if a defendant has been convicted of malice murder, it means
that it was not an accident and that the defendant did not act in self-defense. Indeed, we need
look no further than the voir dire that has already been conducted in this case to find a juror who
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has labored under an honest, but ultimately incorrect, belief that she could consider all three
punishments. Potential Juror #29, Virginia Wester initially indicated that she could follow the
law and consider all three punishments, but upon learning what it actually meant for someone to
be convicted of murder, she stated that under the “technical, legal definition” of murder that she
could never consider a sentence of life with parole eligibility.
It is also important to view Mr. Bryant’s request to ascertain prospective jurors’ true
ability to consider all three punishments in light of the ease with which this can be accomplished.
It will take literally 30 seconds per juror to inform them that the jury necessarily will have
determined that the killing was not justified by accident, provocation, self-defense, insanity, or
mental retardation if they determine that Mr. Bryant is convicted of malice murder in this case.
III.
MERELY INFORMING POTENTIAL JURORS ABOUT THE CORRECT
LEGAL DEFINITION OF MALICE MURDER DOES NOT CALL FOR THEM
TO PREJUDGE THE EVIDENCE
In questioning potential jurors about their ability to follow the law under the governing
legal framework, the defense will in no way be asking potential jurors to prejudge the evidence
in the case. The questioning would only go to establish whether the potential juror could truly
consider all three punishments, and would not be an inquiry into how he or she would vote in any
particular case. The defense fully acknowledges that the latter approach, often termed “staking
out,” is prohibited. Blakenship v. State, 258 Ga. 43, 45 (Ga. 1988). (“Neither the Defendant nor
the State has the right to simply outline evidence and then ask a prospective juror his opinion of
that evidence”). The former approach, however, is not only appropriate, it is constitutionally
mandated by Morgan.
The reason that the defense’s proposed question does not impermissibly call on potential
jurors to prejudge the evidence in this case is because the set of circumstances referenced by the
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defense would apply in literally every single capital trial that reaches the penalty phase. In other
words, the absence of accident, provocation, self-defense, insanity, and mental retardation is not
a hypothetical circumstance, but a necessary precondition in order for this case to proceed to the
penalty phase. Riley v. State, 278 Ga. 677 (2004) (it is not “prejudgment” for counsel in a death
penalty case to question potential jurors if they are “predisposed to a particular sentence for a
defendant [not the particular defendant on trial] convicted of murder”). By pursuing the line of
questioning herein proposed, the defense is therefore attempting to ferret out potential jurors who
would be unqualified to serve in every capital case, not some hypothetical subset of cases.
An adequate voir dire enables a capital defendant to exercise his constitutional right to an
impartial jury. Without an adequate voir dire, the trial judge’s responsibility to remove
prospective jurors who will not be able impartially to follow the court’s instructions and evaluate
the evidence cannot be fulfilled. Berryhill v. Zant, 858 F. 2d 633, 640-641 (11th Cir. 1988)
(stating that, “[a] thorough voir dire examination is perhaps the most important device to ensure
that a jury is impartial.”) (citing Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981)); see
also Morgan, 504 U.S. at 729-730; Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). Further, “[a]
trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate,
biased jurors because, in reality, the judge is the only person in a courtroom whose primary
concern, indeed primary duty, is to ensure the selection of a fair and impartial jury.” Foster v.
State, 258 Ga. App. 601, 608 (2002); Ivey v. State, 258 Ga. App. 587, 591 (2002); Mulvey v.
State, 250 Ga. App. 345, 348 (2001); Walls v. Kim, 250 Ga. App. 259, 260 (2001).
IV.
CONCLUSION
For the forgoing reasons Nicholas Bryant respectfully requests that the Court permit
meaningful voir dire so that both the Court and counsel may identify all potential jurors who may
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harbor any bias with respect to either the guilt-innocence or the penalty phase of the trial. This
requires voir dire sufficient to determine whether jurors are predisposed to give the death
penalty.
Respectfully Submitted,
___________________________________
Josh D. Moore, State Bar No. 520028
Office of the Georgia Capital Defender
225 Peachtree Street, NE
Suite 900, South Tower
Atlanta, Georgia 30303
(404) 739-5156
__________________________________
S. Boyd Young, State Bar No. 142098
Office of the Georgia Capital Defender
225 Peachtree Street, NE
Suite 900, South Tower
Atlanta, Georgia 30303
(404) 739-5156
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EXHIBIT A
Transcript #1
Transcript #2
Transcript #3
Transcript #4