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Friday, July 13, 2007

My Last Death Trial Journal

July 13, 2007
I’ve been in trial now for about a week. It’s been about as I pre-experienced; that is, I’m just as miserable as I thought. All the analogies I’ve used to describe death trials proved as applicable as always — like brain surgery, bomb disposal, or jumping from a skyscraper without a parachute...

We’re still in voir dire. We started with 100 in the panel who were pre-screened for availability for 25 court days up to ‘unlimited.’ There were some ‘hardships’ anyway and 3 who couldn’t find their way to the courtroom the first day.

About 97 filled out the questionnaires and I spent all last weekend reading them and categorizing them according to the system I’ve used for all my trials.

First, I decide which will be challenged by the DA because they refuse to vote for death in any case (PCC’s). On the opposite side are the few who assert they would always vote death, those I will challenge (DCC’s). Then I rate each on a 1 to 5 scale: 1 = worst for defense; 5 = best. The hope is to wind up with no 1's or 2's, at least one 5 or 4. 3's are acceptable and those usually make up the vast majority of jurors who are accepted. (As I question them orally in court, watch body language, reactions to others, I add + or - and up or downgrade).

It’s very fatiguing for me, and very subjective. Oh and very uncertain.

The problem is that 3's are those who claim neutrality. They promise to keep an open mind, consider all options. By definition, they are mostly people who don’t think very much about serious things and that makes them dangerous. It is very much at the heart of what is wrong with the system — the very qualities that make someone a “fair” juror also makes the system impossible to predict. Even the DA (this is his first capital trial, so he is enjoying each revelation) called it a crapshoot.

It’s been about four years since my last capital trial and my first impression from the questionnaires is surprise at the number of ‘PCC’s’ I’ve noted — about 20% of the total say they are ‘opposed’ and could not vote death in any case. Another 5 or 6 are opposed, but could consider it in ‘some rare cases.’ Seems to me that the pendulum of public opinion is swinging against the death penalty — to the extent that this panel is representative of the community. Sure, you have to consider that these people are looking to avoid serving on a 5 week murder trial in the middle of the summer and the responsibility of deciding the punishment.

Which brings up an interesting issue for me. It’s always irked me that those opposed to the death penalty are so willing to hand the job to others who are willing (and in some cases, eager) to kill. It’s frustrating to try to ‘save’ one of these decent, scrupled people. I lecture them on the procedure, which allows them to avoid voting for death by using any one of many rationales — it’s a purely subjective opinion and nothing will force them to vote for death (another flaw in the system, actually, because it makes the process random — pick five different juries and you might get some death and some life verdicts).

So, I lay into this one woman. A nice Westside lady with a BA, who is about to escape. She’s unmoved by my lecture, says, “I can’t vote for someone’s execution. I couldn’t live with myself.”

“So what you’re saying, then, is that you’d rather hand the chore to someone who is more than happy to do it. Does that make your conscience rest any easier?” It’s like being assigned to a firing squad and handing your gun to someone else to do the dirty work.

She’s not happy with me. The hell with her. She’ll go to her comfy home and talk about the wonderful experience she had on jury duty on a death penalty case and her husband and friends will tell her how lucky she was to avoid the stress.

At some point, I had to let them know what the case was really about, without euphemisms, so that when the evidence came — with the bloody photos and all — they wouldn’t form a lynch mob. So I describe the crimes to them ... a woman is beaten to death and robbed ... two month later a 72 year old man is stomped to death and robbed .... “Can you still keep an open mind?” The juror I’m talking to blinks, gulps “Sure.”

Later, a couple of jurors take seats and say things like “On my questionnaire I said could be fair, but now that you explained the details of the crime, I don’t think I can.”

Good job, Mort. You’ve turned a 3 into a 1. What the hell, they would have screwed you anyway. But maybe not. In the past, some jurors who said they ‘favored’ death got on and voted life. When it came down to it, they just couldn’t do it.


  1. Though I certainly don't claim any expertise on the matter, I really felt some of your frustration this summer while reading voir dire transcripts. It seemed like there were far more people willing to say that they would never vote for the death penalty than those who would always vote for it. Even if a juror said that he would always vote for death, it seemed a lot easier for the DA to rehabilitate him than for defense counsel to rehab the anti-death person (Juror: "If a person causes another person's death, he should always die." DA: "As a reasonable person, couldn't you imagine some scenario in which death wouldn't be appropriate?" Juror: "Well, I don't want to seem unreasonable, so yes." Judge: "He has an open mind."). The other issue that stood out to me was that during voir dire you spend all this time asking the jurors to imagine that the defendant committed all these horrible crimes, and then once the trial starts they are supposed to clear all that away and not prejudge the evidence.
    Do you think that a different jury should decide the penalty? Do you think that we would get fairer juries if they were made up of the first twelve people through the door, excepting financial hardships?

  2. Reid, Everything you observed is true and has been a source of frustration and discussion for 25 years. Yes, its not an even field - few people are cold enough to insist automatic death -an eye for an eye. There are some, but they are either religious fanatics or just want off. It is awkward to focus on death in v.d., presuming guilt. The other problem is that death qualified juries are more biased toward guilt. The 2 jury solution was tried and shot down by the courts. Even when proposed, it was dangerous because a jury which didn't vote on guilt is relieved of some responsibility and it is easier to vote for death. Every step in the system has its pitfalls. But the Cal. Supremes find all errors "harmless" and insist you're not entitled to a "perfect" trial, just a "fair" one - in this sense, "fair" is like a "C-," barely passable.