JURY SELECTION IN CAPITAL CASES

1. JURY SELECTION IN CAPITAL CASES

2. 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

3. A presumption of prejudice, our decisions indicate, attends only the extreme case.” (supra at 2915)

4. 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

5. 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

6. 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 articles and editorials and over 4 hours of video • 3 year long search for victim

7. 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.

8. “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

9. 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

10. “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)

11. Pretrial motion: • Monitor print and broadcast media, including radio • Monitor media websites, including comment sections • Monitor social websites, Twitter accounts, Facebook pages, etc.

12. Monitor social responses, e.g. memorials, fundraising efforts, meetings • Consider survey(s) • Make the motion before trial and again after questionnaires and again after voir dire

13. During voir dire • 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

14. 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

15. 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.

16. Changing the paradigm: • Presumption of prejudice • Jurors’ lack of ability to recognize and/or set aside biases • Thinking Fast and Slow, Daniel Kahneman

17. 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

18. 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)

19. 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

20. 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

21. The Colorado method of jury selection • 3 components: • Ranking • Stripping • Protection

22. Ranking • 1 – 7 • 1: 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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)

30. 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.”

31. 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

32. Ask about ability of juror to give appropriate weight to specific mitigation • Ask about ability of juror to give appropriate weight to specific aggravation

33. 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