trials in 14 death penalty states — established that: (1) Overview of the many pro-death jurors who are constitutionally impaired and subject to defense cause challenges nonetheless have Colorado Method of served on capital and, furthermore, (2) a large por - tion of the jurors who do serve fundamentally misunder - Capital Voir Dire stand and misapply the constitutional principles that gov - ern the sentencing decision-making process. These misun - derstandings significantly increase the likelihood jurors will vote for death. 1 The Colorado Method of capital voir dire, which was developed independently of the Capital Project research and findings, provides defense coun - sel with the skills and techniques to address many of the shortcomings identified by the Capital Jury Project and to conduct capital voir dire in a manner that maximizes the he Colorado Method of capital voir dire is a struc - opportunity to obtain life verdicts. tured approach to capital jury selection that is being The Colorado Method of capital voir dire works to Tused successfully in state and federal jurisdictions create a nonjudgmental respectful atmosphere during jury across the United States. Colorado Method capital voir selection that facilitates juror candor and allows defense dire follows several simple principles: (1) jurors are counsel to then learn the prospective jurors’ views about selected based on their life and death views only; (2) pro- punishment for a person guilty of capital and eli - death jurors (jurors who will vote for a death sentence) gible for imposition of a death sentence. Jurors are rated on are removed utilizing cause challenges, and attempts are a scale of 1 to 7: made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the 1. Witt Excludable (WE). The person who will never vote decisions of the other jurors, and potential life-giving for the death penalty and is vocal, adamant, and articu - jurors are questioned about their ability to bring a life late about it. result out of the jury room; and (4) peremptory chal - lenges are prioritized based on the prospective jurors’ 2. A person who is hesitant to say that he believes in the views on punishment. death penalty. This person obviously realizes the seri - The capital defense community traditionally has done ousness of being asked to sit on the capital jury and a remarkably poor job in voir dire and jury selection. takes seriously the value of human life. However, this Research conducted by the Capital Jury Project — based person says she can give meaningful consideration to upon interviews of more than 1,200 jurors who actually the death penalty. These people need to understand the made the life or death sentencing decisions in 350 capital power and responsibility each juror has to make the life

BY MATTHEW RUBENSTEIN

18 WWW.NACDL.ORG THE CHAMPION or death decision for himself or herself a group 7 member. A 5 is also more sus - neys then build a record of the juror’s (and each juror has the power to ceptible to residual doubt than a 6 or 7. verbal responses and written responses ensure a life sentence result) and that Likes the prosecutor. to the juror questionnaire to support a each juror’s individual, personal moral “cause” challenge against pro-death judgment is to be respected. They must 6. A strong pro-death juror. Escapes ADP jurors and to defend against a govern - understand how to bring a life result (automatic death penalty) challenge ment “cause” challenge against potential out of the jury room. Individuals in the because she can listen to a “perhaps” life-givers. Jury research tells us that in 2 category can be intelligent abstract mitigation scenario and the saves many instances pro-death jurors employ thinkers or less intelligent, but compas - her. Concrete backer of death penalty. coercive tactics and bullying against sionate, people. Only argument against the death penal - jurors favoring life during sentencing ty is that it is not used enough. Believes deliberations in an effort to force these 3. Basically pro-death penalty. Able to in the deterrence argument and believes jurors to give up their principled sen - quickly say, “I’m for the death penalty, that the economic burden of a life sen - tencing decision that had been arrived at and have been for quite a while.” They tence for defendant and others will per - after faithfully and conscientiously fol - are, however, unable to express why, in sonally affect her. Head-nodder with lowing the law. To address this, capital fact, they are for the death penalty. The the prosecutor. defense attorneys question the prospec - impression one gets from them is that tive pro-death jurors who may end up they are pro-death as long as someone 7. ADP. If your client is convicted of capi - on the jury about their ability to respect else is responsible for imposing the sen - tal murder, these jurors will impose the the views of the other (potential life-giv - tence. We call this a “kill problem.” death penalty. They believe in “an eye ing) jurors and question potential life- Individuals in group 3 do not necessar - for an eye.” Life imprisonment is not an giving jurors about their ability to bring ily propose the economic argument or adequate sentence, in their opinion. a life verdict out of the jury room. The the deterrence argument for death. Mitigation to them is manslaughter or attorney should confirm that the

They are more sensitive to mitigation self-defense. Hateful and proud of it. prospective jurors understand and are T and really wish to hear mitigation. They must be removed, preferably, for willing to be guided by the constitution - H Unlike people in categories 5, 6, and 7, cause, but at least with a peremptory. al principles that govern the juror sen - E

they may be able to make an argument tencing decision-making process. C

against the death penalty if asked and A person in group 1 is a conscien - The “Wymore Hanger” in Figure 1 is O are also readily willing to respect the tious objector and is impaired because a useful schematic of the Colorado L

views and individual assessments of she will never give meaningful consider - Method of capital voir dire. O those who are more hesitant about the ation to a death sentence. A group 7 A benefit of applying a systematic R death penalty. member is an ADP juror and is impaired approach to the voir dire process is that it A because she will not give meaningful identifies the goals of each step of the D 4. Pro-death. Comfortable and secure in consideration to life imprisonment process and facilitates clear team commu - the death penalty. People in group 4 can without release. During voir dire attor - nication and collaboration. O

tell you why they are for the death M penalty and feel it is a “good thing.” Figure 1 E

However, they wish to hear “both sides.” T

Members of group 4 are more fence- H

straddling in voir dire when it comes to O the penalty phase . They readi - D ly argue that there could be mitigation that calls for life even after conviction of first-degree, cold-blooded, after-delib - eration murder. They are different from group 3 members in their initial response of having a comfort level with the death penalty and the development of arguments in favor of it.

5. Pro-death, vocal, articulate in their sup - port for the death penalty; less sensitive to mitigation than a category 4 person, but more than a 6. A person in category 5 is a sure vote for death, but this person can formulate perhaps two or three mitigating factors she might think are significant. An individual in category 5 would allow a unanimous vote for life but would vote for death on the first ballot and remain with the majority. A group 5 member is more sensitive to the rights of other jurors in their assess - ments of mitigation and would be less prone to being a bully than a group 6 or

WWW.NACDL.ORG NOVEMBER 2010 19 Every Juror Has Right to to and evaluate this type of evidence. shift the questioning to the juror’s views Be Treated With Respect Furthermore, this line of questioning is about the death penalty and life imprison - effective in bringing the enormity and ment without the possibility of release, And With Dignity gravity of the criminal conduct alleged in they should reiterate that, in asking the It is advantageous to clearly commu - the case front and center. If we discuss the juror these questions, they do not want nicate to the prospective jurors early in the violent nature of the charges before we ask the juror to believe that they expect or process that they have the right to be jurors to share their feelings and views anticipate that the client will be convicted treated with respect and with dignity about the death penalty, we are more like - and that a sentencing trial will occur. throughout the voir dire and trial process. ly to get emotionally honest views and Defense counsel should tailor this This message helps to create an atmos - feelings and a more realistic assessment of “cart before the horse” introduction to phere that facilitates candor and honesty the jurors’ ability to give meaningful con - the strength and focus of the defense. and, ultimately, will help the jurors under - sideration to all sentencing options. They need to maintain credibility with stand and exercise the tremendous indi - the jurors, and they do not want to make vidual, personal moral responsibility they Cart Before the Horse absurd, strident, overly confident will be given at the end of a sentencing proclamations in a case in which the hearing to decide whether another human Research shows that jurors who are jurors will believe the defense was weak. being — the client — lives or dies. 2 questioned about their punishment views Nevertheless, even when defense attor - In order to maximize juror candor, before a trial even begins are more likely neys expect the jury will return a guilty attorneys should discourage the court to convict the defendant and to sentence verdict, it is useful to frame the culpabil - from using language that suggests the voir the defendant to death. 3 Defense counsel ity case in some manner that permits dire process is designed to identify jurors must ask the court to include language in them to argue for an acquittal or convic - who can be “fair” or “appropriate” for the an instruction given to prospective jurors tion on lesser noncapital charges. case and avoid language that conveys the prior to voir dire that addresses this “pro - Although most capital cases remain message that the jurors are being judged, cessing effect.” penalty phase cases, presenting a rea -

D “interviewed,” or otherwise evaluated. soned and vigorous defense theory at the

O This language encourages jurors to pro - I want to advise you in the guilt-innocence phase is useful because

H vide what they view as socially acceptable strongest possible terms that the it permits jurors to express (and relieve)

T rather than candid responses. It is better if fact that I (and the attorneys) their anger at the defendant prior to the

E the court simply uses language suggesting question you about your feelings start of the penalty phase, and it can

M that there are no “right” or “wrong” and opinions about punishment empower life-prone jurors to extract

answers and the court and parties are now certainly does not mean concessions from other jurors regarding

O interested in learning the jurors’ feelings that Mr. Defendant is guilty of a sentencing phase life verdict in

D and views on a variety of issues. The any . Mr. Defendant is pre - exchange for a guilty vote in the first

A instruction could include the following sumed by law to be innocent. phase. Ideally, the culpability trial

R language: “Before we begin, I would like to This questioning does not mean defense theory also lays the foundation

O explain that there are no ‘right’ or ‘wrong’ that I think Mr. Defendant is for the theory for life. The mitigating

L answers to any of the questions that will guilty, or that the attorneys or I evidence “front-loaded” in the culpabili -

O be posed to you today. Citizens in our expect him to be convicted. This ty trial helps pave the way for an effective

C community have and are entitled to hold questioning is required by law in and persuasive presentation of mitiga - different views and perspectives on many every trial in which the govern - tion in the sentencing trial. E topics, and the same holds true for jurors. ment is seeking the imposition H You will all be treated with dignity and of a death sentence. We will ask

T First Step: Learning respect, and I simply ask you to provide you about your feelings and honest and complete answers.” views concerning the possible Prospective Jurors’ Views sentences of life imprisonment About Life and Death Discussion of Indictment, without the possibility of release Defense attorneys use leading ques - and the death penalty before the tions to strip away extraneous defenses or Emotionally Difficult trial even starts, not because I irrelevant facts in order to gather mean - Nature of the Evidence, think this case will proceed to a ingful, relevant answers and information And Allegations sentencing trial, but because we from the prospective juror regarding her must ask questions of prospec - views of the death penalty and life impris - Before asking questions about a tive jurors at the beginning of a onment. The lawyer puts the prospective juror’s views on the death penalty and life case about all possible events no juror in the place of having been person - imprisonment without the possibility of matter how remote they may be. ally convinced that a hypothetical defen - release, it is helpful to use a poster sum - This is the only opportunity we dant is guilty of capital murder. The “strip marizing the charges in the indictment. have to ask jurors questions. You question” normally incorporates relevant This will give defense counsel an opportu - are not to draw any conclusions case-specific facts in a manner that avoids nity to inquire about the juror’s knowl - about the case or the evidence “staking out” and “precommitment.” 4 edge of the case and his or her ability to sit from the fact that we are asking Defense counsel says to the prospective as a juror in a case in which graphic evi - you about punishment before juror, “I would like you to imagine a hypo - dence will be presented about a violent there has even been a trial to thetical case. Not this case. In this hypo - event and a homicide victim. A small but determine whether the defen - thetical case, you heard the evidence and not insignificant number of prospective dant is “guilty” or “not guilty.” were convinced the defendant was guilty jurors ask for a hardship excusal when of premeditated, intentional murder. they are asked about their ability to listen When defense attorneys prepare to Meant to do it and did it. It wasn’t an acci -

20 WWW.NACDL.ORG THE CHAMPION dent, self-defense, defense of another, heat case here, e.g., a case involving the killing directly into the record-building stage and of passion, or . He meant to do it, of a correctional officer by an inmate], or use leading questions designed to prepare premeditated it, and then did it. For that is it reserved as a very last resort?” “Do you a cause challenge. If the defense attorney defendant, do you believe that the death believe that being merciful and sparing a asks this juror open-ended questions penalty is the only appropriate penalty?” defendant’s life — and punishing him about her views on the death penalty, the (If, for example, the case involved one with life imprisonment without the possi - attorney invites the risk that the juror will prisoner serving a life sentence who killed bility of release — is ensuring a severe make statements that qualify her or insu - a correctional officer, the question would punishment and not forgiving or excusing late her from a cause challenge. For exam - include this fact: “In this hypothetical his crime?” ple, rather than asking, “Are there any case, you heard the evidence and were Request a week or more to evaluate types of mitigation evidence you would convinced that the defendant, who was a and analyze the juror questionnaires prior consider in making your decision?” we prisoner serving a life sentence, - to individual sequestered voir dire. This should frame a leading question, “You ally killed a correctional officer.”) comprehensive analysis of the question - want to focus on what the person did and Based upon the preliminary rating naires will ultimately save court time the punishment must fit the crime. derived from the juror questionnaire, the because it increases the likelihood the par - Evidence that he suffered abuse as a child defense team may know it wants to ties can agree on the excusal of “extreme” is not relevant to you — it is not some - develop a cause challenge to a pro-death jurors who are impaired (thereby increas - thing you are going to consider — is it?” prospective juror. In this scenario, the ing the percentage of qualified jurors in The same issues arise with open- and defense avoids open-ended questions the pool of jurors who will be examined) closed-ended questions for a potential and moves down the “Wymore Hanger” and gives the parties time to prepare tai - life-giving juror. Open-ended questions to use leading questions to develop mul - lored and targeted questioning of the designed to elicit the juror’s views on pun - tiple legal impairments that will support jurors. A day or two before prospective ishment invite the juror to make a state - the cause challenge (or protect a poten - jurors are questioned, the team should ment that may support the government’s tial life-giving juror from a government discuss each prospective juror’s question - effort to remove the juror for cause. We T cause challenge). naire, develop a preliminary rating, and should avoid this risk and use leading H In many instances the defense does highlight relevant information for the voir questions to get the juror to commit to E

not know the juror’s views, or the defense dire. The team members will then modify considering all sentencing options, keep - C

needs additional information to be confi - their rating again based upon the juror’s ing an open mind and waiting until all of O dent about rating the juror, so counsel response to the court, government, and the evidence is presented before the juror L

asks open-ended questions to elicit these defense questioning. The decision about will decide or make any commitment O views. The lawyer should adopt a conver - whether the defense team has enough about how she may vote. R sational and nonjudgmental tone to elicit information to rate the juror, and the rat - A views about the death penalty, the types of ing itself, is best made collaboratively by D cases the prospective juror believes the entire team. (In an ideal situation, the deserve the penalty of death, arguments in-court team during voir dire consists of O P olygraph or policy reasons the juror finds com - two attorneys, a jury consultant, and an M pelling for or against capital punishment, assistant, paralegal, or law student.) E the length of time the juror has held these Prior to and during voir dire, the Exams T views, and the basis for these views team must decide when to shift from the H

(upbringing, religious conviction, person - information-gathering stage (open-ended O al moral code, concerns about appropriate questioning designed to identify and rate D use of government resources, etc.). the prospective juror) to the record-build - How does the juror feel about life ing stage (closed-ended leading question - imprisonment without the possibility of ing designed to obtain information to release (LWOR) for a guilty killer? Is this a prepare to assert or defend a cause chal - serious penalty for a guilty killer? (If the lenge). Members of the defense team must case involves eight homicides: “Is this a weigh the potential advantages of gaining serious penalty for a guilty killer of eight additional information utilizing open- innocent victims?”) Why? “Do you think ended questions (to confirm the rating or mercy is something that a person earns, or learn more about the juror to help the is it something that one bestows on team tailor its later trial presentation) another?” “Could you consider being against the potential risks that the addi - James A. Johnson, Jr. merciful to someone you believe had tional information gathered will interfere killed without justification or excuse?” In with the ultimate goal of removing or a case in which the defendant has con - keeping the juror. In addition, the team Attorney at Law veyed to others his absolute innocence, must be thoughtful about the manner in Lieutenant Colonel, ask: “Could you consider being merciful which information elicited from jurors to someone who continues to defend his may be exploited by the government in USAF, Retired actions and say they were justified?” “For the use of peremptory challenges. For Former OSI Special Agent you, if someone has committed a violent example, if a juror has stated on the juror crime, what information do you think questionnaire that she believes the death 11 Deerwood Drive would be important to learn if you were penalty should be imposed upon any Litchfield, NH 03052 going to pass judgment on the person?” defendant who intentionally kills (a 603-424-6365 “For you, is the death penalty an appro - prospective juror rated a 6 or 7), in most priate punishment for [the category of instances defense counsel should move www.johnsonpolygraph.com

WWW.NACDL.ORG NOVEMBER 2010 21 For prospective jurors preliminarily an accidental killing, I could give life. committing” a juror here. 8 Cases out of rated in the middle (category 3, 4, or per - the Northern District of Iowa and haps 5) or from whom the defense needs Q: That is a great point. Thank you for Vermont provide useful guidance for to obtain additional information, defense sharing that. If a defendant did an acci - questioning. “[T]he court … finds that it counsel questioning the juror should dental killing, it would be a defense to would be permissible for defense counsel consult with her team during the voir dire capital murder, and we wouldn’t have a to frame a ‘case-specific’ question as a ‘life- process. In particular, defense counsel capital sentencing hearing. I want you qualifying’ question … [and] also ask should inquire about two key decisions. to assume you were a juror, you heard ‘case-specific’ variants of the question First, the defense should discuss the rat - the evidence, and you were convinced approved in Morgan , such as the follow - ing of the juror. The rating developed by the defendant killed an innocent victim. ing: ‘If you found the defendant guilty of the team is more accurate than that of No accident. Did it and meant to do it. murdering children , would you automati - one counsel, and this rating then informs For that defendant — for that guilty cally vote to impose the death penalty, no the ultimate goal of the voir dire — killer — the only appropriate penalty is matter what the other facts are?’” 9 Review removal or retention of the juror. Second, death, correct? the Iowa case United States v. Johnson for a defense counsel should discuss the time - useful discussion distinguishing appropri - frame for moving forward from the A: Yes. ate case-specific and case-category ques - information-gathering phase utilizing tioning from inappropriate “stake-out” or open-ended questions to the record- Record Building: “pre-commitment” questions. building phase utilizing leading ques - When the defense attorney “strips” tions. In some instances, after the team Questioning to Challenge and then question pro-death jurors, the has decided to move forward to the Capital defense lawyers use leading attorney wants to avoid talking directly record-building phase, a juror makes a questions with the goal of building a about the client’s own case because statement that calls into question the ini - record that establishes the juror is doing so conditions the juror to vote for tial rating of the juror. The questioning of impaired under the standard of death in the client’s case. Rather, the 5 D the juror then moves back into the infor - Wainwright v. Witt. They seek to establish attorney should continue to indicate

O mation-gathering phase or jumps over to that the juror believes that the death that she is talking about a hypothetical

H record-building to prepare to defend a penalty is the only appropriate punish - case (albeit similar to the client’s case),

T cause challenge. For example, a juror ini - ment (“case-specific penalty bias”), can - and use leading questions to attempt to

E tially rated a “6” may clarify that if the not give meaningful consideration to life obtain responses to support her cause

M victim of the murder is not a child, the imprisonment without release, cannot challenge. Normally, the defense attor -

juror would be very reluctant to impose a give meaningful consideration and effect ney strives to create a relaxed, comfort -

O death sentence. If the victim in the case is to mitigating circumstances (“case-rele - able, and open atmosphere during voir 6 D an adult, this clarification would cause vant mitigating evidence bias”), will dire to facilitate candor, model mutually

A the defense team to reassess its voir dire “burden shift” on the life or death issue respectful communication and behavior,

R plan for this juror. The defense might and vote for death unless presented with and build the jurors’ sense of empower -

O revise its rating of the juror to a “3” on compelling evidence to do otherwise by ment. However, in some instances, 7 L this and additional information gathered the defense, and will impose a death sen - aggressive questioning of a pro-death

O and then work to protect this juror from tence based on an illegal basis (such as a juror is useful and necessary to provoke

C a government cause challenge. concern about the cost of incarcerating an the juror to disclose her honest feelings. offender for life). “If you were sitting as a juror in a differ - E Re-Stripping the The defense seeks to develop multi - ent case, you heard the evidence and H ple impairments to support the challenge were convinced the defendant was guilty T Prospective Juror for cause; however, the defense attorney of [category of case being tried; e.g., Often during the voir dire process, must consider the strategic implications rape-murder, killing in prison, murder- the defense needs to “re-strip” a prospec - of seeking to develop additional impair - for-hire, killing multiple victims, etc.], is tive juror, particularly a death-leaning ments if the attorney believes the effort it fair to say that, for you, the only juror. When a prospective juror qualifies may ultimately detract from the argument appropriate penalty would be a death an opinion about the propriety of a par - that the juror is impaired. For example, if sentence?” Or, “If you were convinced ticular punishment with language such a prospective juror has made statements that the defendant had previous violent as “it depends on the circumstances” or suggesting that the juror believes that a felony convictions, including first- otherwise indicates that she may be death sentence is the only appropriate degree murder, and that he had inten - answering questions about her views on sentence for a defendant who has com - tionally killed again, based on your value punishment in the context of a factual mitted the category of case charged in the system, the penalty should be a death scenario less than capital murder, we case (e.g., a kidnapping-murder, murder sentence, right? You feel pretty strongly must stop and “re-strip.” For example, for of two people, or murder in prison, etc.), about that, don’t you?” “For you, a life a juror rated “6,” we might have the fol - but the juror has made statements that sentence is not something you would lowing exchange. lead the defense to believe the juror may consider if the evidence showed x?” 10 indicate that he is interested in hearing “Where ‘the source of [a juror’s] bias Q: Based on your firmly held beliefs, as I about a defendant’s background, the [i]s not the death penalty in the abstract, understand them, a person who inten - defense avoids unnecessary risk and skips or in some irrelevant hypothetical case,’ tionally kills another deserves the death questioning designed to develop a “miti - but the juror’s inability ‘to overcome his penalty; it is the only appropriate penal - gation impairment.” bias and vote in favor of … [a life sen - ty. Correct? Moreover, defense counsel should tence] where [some specific facts are use case-specific and case-category ques - shown],” this court is ‘not required to A: Well, not in every case. I mean, if it is tioning that avoids “staking-out” or “pre - ignore this bias.’” 11

22 WWW.NACDL.ORG THE CHAMPION Record Building: found guilty of capital murder. Explain Principle Confirmation Phase Questioning to that the jurors evaluate the gateway intent issue and then statutory aggravating cir - Teaching Pro-Death Jurors Defend Against cumstances and that if either of these is Respect and Potential Life-Givers Government Challenge not found proven beyond a reasonable How to Leave Jury Here again, use leading questions doubt by all 12 jurors, then the process Room With Life Verdict with the goal of building a record that stops, and there is no consideration of a When using leading questions to establishes the juror is not impaired under death sentence. Explain that only if these build the record to challenge a pro-death the standard of Witt. Begin by validating things are found to have been proven will juror or save a potential life-giving juror the juror’s feelings and thanking her for the jurors then consider nonstatutory from challenge, the attorney questioning expressing her candid views. Emphasize aggravating circumstances and then miti - the juror should consult with the that no one is going to force the juror to gation. Explain that mitigation is any rea - defense team about whether the attorney change her mind and that she is not being son that supports, for any individual juror, should ask additional questions to con - judged. Convey that everyone respects a sentence of life imprisonment rather tinue building the record or accept the and values the juror’s reservations about than death. In addition, tell the juror that record and move forward to the final or opposition to capital punishment and in the federal system a juror considers any “Principle Confirmation” phase. In empathizes with her. Then use leading and all mitigation the juror believes has making this decision, the team must questions to transition the questioning to been established by a preponderance again consider the juror’s existing explain that the defense is going to want (“more likely than not”) of the evidence. responses, the potential benefit of gath - something different from the juror than Point out that the law is always satis - ering additional information from the her anti-death penalty feelings. fied with a life penalty; a juror is never juror to support the effort to remove or “Did you know that a person may required to impose a death sentence. (“Do save the potential juror, and the risk that hold very strong feelings that capital pun - you understand that the law never asking additional questions of the juror ishment is misguided or wrong — based requires a juror vote for a death sentence will risk inviting the juror to make state - T on personal, moral, philosophical or — in this case, in any case, in the worst ments counterproductive to the goal. H whatever reasons — and the person can case you can imagine?”) Many jurors do There are two common phenomena E

serve as a juror on a capital case?” Then not know this, and many jurors with that arise in voir dire that the team C

explain what the law requires. Many peo - reservations about capital punishment approach helps to combat. First, the O ple have personal, moral, or philosophical express appreciation and relief upon attorney conducting the questioning of a L

opposition to the death penalty yet serve learning this. Explain that the process prospective juror frequently misperceives O on a capital jury; people can only be requires the jurors to then consider the strengths and weaknesses of the juror R excluded if they cannot follow the law. whether the aggravating circumstances and her responses. Second, the attorney A Explain that the law cannot ask them to outweigh the mitigating circumstances. conducting the questioning frequently D make a decision now; they have not heard Each juror assigns the weight and signifi - any of the evidence. The law requires that cance he or she believes is appropriate to O

they agree, if the case ever reaches a sen - the aggravation and the mitigation. A M tencing trial, to give meaningful consider - juror has the lawful authority to assign the E

ation to all sentencing options. “weight of life” to any one mitigating cir - T

The next step is to provide an cumstance if he or she wants to do this. H

overview of the trial process. Confirm Confirm that the juror understands that O that the juror is confident she can listen one vote for life imprisonment means that D to the evidence in the culpability trial the death penalty will not be imposed. and decide whether the government Explain that the law never provides proved or failed to prove guilt. Explain the answer on the ultimate issue; each that if the result is “not guilty,” the case is juror makes a personal moral decision. over. Then explain that the juror deci - Confirm that the juror understands that sion-making in a sentencing trial — if it each juror will always be able to give life. ever occurs — is different than in the One mitigating fact can outweigh all of first “guilty / not guilty” trial in that the the aggravating circumstances. It is always jurors evaluate the mitigation individu - up to each individual juror. Confirm that ally and the ultimate life or death deci - the juror understands that a juror may sion is made by each juror individually. choose life even if there are many aggra - Each juror is called upon to make a vating circumstances and no mitigating unique, individual judgment about the circumstances. Make sure the juror sentence the defendant will receive and understands that this would be a valid, there is no legal or other requirement appropriate, and lawful result. that these decisions must be or even The defense attorney should let the should be unanimous. A sentencing juror know that the attorney would like decision that is not unanimous is lawful, her to serve, because the juror does not legitimate, and appropriate. 12 Confirm necessarily know this. “We would like you that the juror can be fair at the culpabil - to serve on this jury, and in order to do ity trial. Explain that the case may never that, you have to be able to follow the law proceed to a sentencing trial. and the judge’s instructions and not let Next, explain the process of a sentenc - your feelings get in the way of doing your ing trial in the event the defendant is job as a juror. Can you do that for us?”

WWW.NACDL.ORG NOVEMBER 2010 23 wants to end the questioning of a pro- ‘Insulation,’ ‘Isolation’ Applied — imposition of a sentence less than death juror prematurely because the With Different Emphasis death. 13 Defense counsel must obtain a questioning can become somewhat con - — To Pro-Death and Potential commitment from each pro-death juror frontational and because the attorney is Life-Giving Jurors that he or she will treat every other juror subjected to the court’s pressure to move In this “Principle Confirmation” in a respectful manner and will not per - things along. When the defense team is phase, the defense again relies on leading mit intimidation or bullying. working collaboratively, the other mem - questions to confirm that the jurors The goal in this “Principle bers of the team can provide support to understand and are willing to make their Confirmation” questioning phase is to the attorney conducting the voir dire to sentencing trial decisions in a constitu - ensure each juror understands three help her avoid these pitfalls. After the tionally appropriate and lawful manner. related concepts that apply to the life or record is made supporting the cause The data from the Capital Jury Project death decision-making process. David challenge on pro-death jurors, defense indicates that many jurors who have Wymore labeled these concepts isola - attorneys need to teach these jurors served on capital cases incorrectly tion, insulation, and respect. respect because some of them will sur - believe that they did not have ultimate Isolation involves the defense attor - vive the cause challenge and make it onto responsibility for determining the sen - ney making certain that jurors understand the jury. Finally, potential life-giving tence in a capital case. Interviews with the life or death decision that each juror jurors need to be taught how to bring a jurors also have established that many makes in a capital case is an individual, life result out of the jury room. The pro-death jurors employ coercive and personal moral judgment. This judgment defense accomplishes these tasks in the bullying tactics to intimidate potential is based upon each juror’s personal phi - third and final “Principle Confirmation” life-giving jurors to give up principled losophy, walk in life, and common sense. questioning phase. and lawful positions supporting the Neither the court nor the legal instruc - tions will provide the answer to this ulti - Figure 2 mate question, and the law never requires Sample Voir Dire Poster: Schematic of Federal Sentencing Trial Decision-Making Process a death sentence.

D Insulation requires that defense

O THE JURY’S ROLE IN A CAPITAL TRIAL counsel ensure that each juror under -

H stands that she makes her decision with

T TRIAL (Not Guilty, Guilty of Lesser Offense, Guilty) the knowledge and comfort that it will be

E respected, she will not be bullied or intim - Do you find, unanimously, that the government carried Not Proven

M idated by other jurors during her deci - Proven NEXT

its burden of proving beyond a reasonable doubt that Stop QUESTION sion-making process, and the court and the defendant committed capital murder? O parties will respect her decision. Also,

D counsel makes clear that the juror should

A not permit any other jurors to be disre -

R SENTENCING TRIAL spected in this manner.

O Respect entails defense counsel ensur - No Yes L Do you find, unanimously, that the government carried ing and extracting a commitment from its burden of proving beyond a reasonable doubt that Life NEXT O Imprisonment QUESTION every juror that she will respect the per - the defendant acted with the required intent? w/o Release C sonal moral judgment made by every other juror on the ultimate life or death E Do you find, unanimously, that the government carried No Yes decision — whether she personally agrees H its burden of proving beyond a reasonable doubt the Life NEXT with the other juror’s decision or not. T Imprisonment QUESTION existence of at least one statutory aggravating factor? w/o Release Exploring Unique Aspects of No Do you find, unanimously, that the government carried Yes Decision-Making its burden of proving beyond a reasonable doubt the Life NEXT Imprisonment QUESTION Process in Sentencing w/o Release existence of any nonstatutory aggravating factor? Trial (If There Is One) No Yes Each juror individually considers if mitigating factors One effective way of asking questions NEXT NEXT have been proven by a preponderance of the evidence. QUESTION QUESTION to confirm that a prospective juror under - stands the constitutional principles that Determination of Sentence guide the sentencing decision-making No juror is ever required to vote for death. and will comply with these principles is to No Do you find, unanimously, that the government carried Yes focus on two significant differences between the decision-making involved in its burden of proving beyond a reasonable doubt that Life NEXT Imprisonment QUESTION the culpability trial and a sentencing trial: the aggravating factors outweigh the mitigating factors? w/o Release (1) factual determination v. moral deci - sion, and (2) group decision v. individual, Do you find, unanimously, that the government carried No personal judgment. This questioning can its burden of proving beyond a reasonable doubt that Yes be facilitated by using posters (see Figure the aggravating factors, when weighed against the miti - Life 2) or computer-generated slides of a Imprisonment Death gating factors or in the absence of mitigating factors, are w/o Release schematic of the sentencing trial decision- sufficient to justify imposing a sentence of death? making process and a sample sentencing trial verdict form.

24 WWW.NACDL.ORG THE CHAMPION Factual Determination responsibility. I’d rather not have to make jurors make a group decision. It takes 12 v. Moral Decision this decision. to convict or 12 to acquit. Again, 12 Angry Men portrays the process of the This portion of voir dire may pro - Q: This individual personal moral judg - jurors arriving at a group factual deter - ceed as follows. ment a juror is called upon to make is mination. Are you familiar with this similar to the decision a person makes deliberation process? Q: In the “guilty / not guilty” trial, the about important personal matters such decision the jurors make is a factual deter - as one’s religious faith or whether or not A: Yes mination. Was the light green or was it to have children. These are intensely per - red? Was the shell casing from a .22 or a sonal decisions made based on the juror’s Q: If it is not unanimous it is a “hung .38? The jurors are working together to unique life experience, personal philoso - jury.” Are you familiar with this term? This determine what happened. They may dis - phy, and walk in life. There is no one is not a legitimate outcome. The jury did agree about these facts. One juror says she “correct” answer or single objective not complete its task. is right and that the other juror is wrong. truth. If jurors disagree, this doesn’t But then they discuss and debate the evi - mean that one juror’s personal moral Q: Unlike a normal trial, or 12 Angry dence to figure out who is right and to judgment is right and the other’s is Men , the decision in a sentencing trial is arrive at a factual determination that is wrong. Citizens may disagree about these not a group or collective decision. At the agreed upon by all the jurors. Are you issues, but we each have the right to make end of the day, each juror must decide confident you can participate in this type these types of moral decisions for our - the penalty for himself or herself. In this of deliberation process? selves. What may be the right decision for sentencing trial it is as if there were 12 a juror sitting next to you may be differ - separate , each arriving at the sen - A: Yes, I can do that. ent than what is right for you. This diver - tencing decision based on their personal sity — in our personal moral judgments, judgment. (Prosecutors may object and

Q: You may have seen the movie 12 Angry in our freedom and right to be respected assert that the defense is suggesting the T Men , a 1957 movie with Henry Fonda and in these judgments — was a principle jurors avoid deliberation. This is not the H Jack Klugman, among others, that por - held dearly by the founding fathers of case. A juror is always free to share his or E

trays the process of sifting through the this country. Will you respect the right of her views and to listen to the views of C

evidence to arrive at these factual determi - the other jurors to arrive at their own other jurors. But a juror is never O nations. The jurors may look at the physi - personal moral judgment, regardless of required to explain, justify, or put into L

cal evidence, or a photograph that has whether you agree or disagree with the words a vote for life or a vote for death.) O been introduced in evidence, or ask to ultimate decision? And the law does not provide the ulti - R have read back to them the of a mate answer. At the end of the process, A , and use this to determine the A: Yes, I certainly will. the court does not provide a check-the- D objective facts, the objective truth. Are you box form that a juror can fill out, and the familiar with this process? Are you confi - form then tells the juror the correct pun - O

Group Decision v.

dent you can make these types of factual ishment to impose. (This is a critical M determinations? Individual, Personal concept. Most prospective jurors do not Judgment E

understand that each juror actually T

A: Sure, I can do that. Each juror is required to make an makes the life or death decision. People H

individual determination about the exis - want to avoid or distance themselves O Q: The decision the jurors make in a tence of and weight to assign to mitigating from this moral responsibility. In order D capital sentencing trial, if we get there, factors. It is to be expected that when to intelligently exercise peremptory is very different from a normal trial or jurors then weigh the aggravating and challenges, defense counsel must learn the decision made in 12 Angry Men . mitigating factors and arrive at an indi - the prospective juror’s feelings and views Now, rather than a factual determina - vidual personal moral judgment regard - about the prospect of having this tion, the decision is ultimately an indi - ing the ultimate sentence — death or life responsibility as a juror if the case pro - vidual, personal moral decision each imprisonment without the possibility of ceeds to a sentencing trial.) Do you juror makes. The evaluation of mitigat - release — that the jurors may arrive at dif - understand this? ing factors is an individual decision ferent results. If the law is never going to each juror makes, and each juror then require that a juror do violence to his or A: Yes, I understand. assigns the weight she believes is appro - her conscience regarding this life or death priate to the mitigating and aggravating decision, the law must recognize that it is Q: Do you understand there is no such factors and weighs them. The law does lawful, appropriate, and legitimate that a thing as a “hung jury” in a sentencing not provide the ultimate answer on the sentencing jury may arrive at a nonunan - trial? life or death decision; each juror imous decision as to sentence. decides this for himself or herself. This These constitutional principles guide Q: Each juror decides the penalty based personal moral decision between life juror sentencing decision-making, and on the juror’s life experience, personal and death is made based upon each the government commits prosecutorial philosophy, and common sense. And it juror’s unique life experience, personal misconduct if it misinforms jurors that a takes 12 votes for death to be imposed. philosophy, and personal judgment. Do nonunanimous vote is an illegitimate This means that if any one juror chooses you understand this? Knowing this, can exercise in jury nullification. 14 life, based on that juror’s personal moral you make this decision based on your This portion of voir dire may pro - judgment, then the defendant will be sen - personal moral judgment? ceed as follows. tenced to life imprisonment without release. This means that each juror has the A: I think so, but it is a tremendous Q: In the “guilty / not guilty” trial, the authority, power, and lawful right to

WWW.NACDL.ORG NOVEMBER 2010 25 impose a sentence of life imprisonment. address mitigation themes to explore the juror to vote against his or her personal Do you understand this? juror’s level of receptivity and interest. moral judgment or personal conscience. This may help the defense refine its juror Do you understand this? A: Yes. It is a tremendous responsibility rating and use peremptory challenges the law gives to each juror. more effectively . A: Yes. Confirm Juror Q: Mitigating evidence is evidence that Q: If you got together with 11 strangers, supports, for any individual juror, a sen - you would be surprised, would you not, Understands Mitigation: tence less than death. Mitigating evi - if each of you followed the same reli - Definition, Burden, and dence is whatever is important to any gious faith, each of you disciplined your Nonunanimity individual juror. There is no require - children in the exact same way, and each ment that it be found by any other juror of you decided to marry or find a part - If the defense attorney has developed for it to be considered, and if it is found ner with identical character and person - a strong record for a cause challenge on a to exist by a preponderance (simply ality traits? We expect a group of people pro-death juror, the attorney should nor - more likely than not), then the juror to arrive at different decisions on these mally avoid discussing mitigation in this assigns the weight he or she believes is important topics because they involve final portion of voir dire because the appropriate to it. It can be such things as personal and moral judgments. And in defense does not want to give the juror the [tailor carefully and not too directly to fact here, in a capital murder case in opportunity to damage the record. For the mitigation themes] a person behaves which the penalty of life imprisonment other pro-death jurors, the defense well in the structured and secure envi - without the possibility of release or ensures the juror understands the concept ronment in prison, that he can have a death may be an option if Mr. Defendant of mitigation and focus on respecting the positive influence on family and friends is convicted, the law recognizes that the decision of other jurors regarding mitiga - even while living the rest of his life in jurors may arrive at different decisions tion. For potential life-giving jurors, the prison, or that others sharing responsi - about the penalty. If this occurs the

D defense also ensures an understanding of bility for the have not been held foreperson merely writes on the verdict

O mitigation, but broadens the focus to con - accountable or punished. It can be based form, “We respectfully agree to disagree”

H vey the power each juror has with respect on the concept of mercy alone. A juror and the law then provides that a sen -

T to mitigation. once mentioned that she saw a spark of tence of life imprisonment without any

E humanity in a defendant, a guilty killer, possibility of release will be imposed. Do

M Q: Do you understand that each juror when he smiled at his mother as she you understand that the law recognizes

assigns the weight or significance that the entered the courtroom, and this spark of that each juror must arrive at his or her

O juror feels is appropriate to any mitigating humanity can be a mitigating circum - own decision?

D circumstance that exists and may give any stance sufficient to choose life. Or a juror

A one mitigating circumstance sufficient believing the defendant — who will die A: Yes.

R weight or significance to outweigh the in prison — is not beyond redemption.

O aggravation and any other evidence in the It is whatever is important to each juror, Q: Do you understand that the law per -

L case? and it may even be based on a feeling mits you to agree to disagree, and the law

O For a potential life-giving juror, the that a juror cannot put into words. Will accepts that as a valid outcome resulting

C defense may also ask questions that you respect the right of every juror to in a sentence of lifetime imprisonment? consider and give effect to whatever mit - E igation he or she feels exists in the case, A: Yes, I do. H NACDL, Southern Center for and refrain from criticizing a juror with T Human Rights, the University of whom you disagree? The Law Never Requires Colorado Wolf Law School, and David Wymore co-sponsor an out - Q: If a fellow juror says he votes for a life A Juror Vote for Death standing two-and-a-half day penalty based on the mitigation he Many jurors erroneously believe Colorado Method voir dire semi - believes is present, and the juror says he that the death penalty is mandatory in nar once or twice a year. (Contact does not want to put these reasons into certain types of cases. 15 Defense counsel the Southern Center for Human words, will you promise to refrain from must inquire of the prospective juror if Rights at 404-688-1202 to obtain criticizing the juror, even if you disagree she holds this erroneous belief and then information about the seminar.) with this vote on mitigation or disagree obtain a confirmation from the prospec - Mastering this method of voir dire with the vote on life or death? tive juror the she understands that a requires practice. Defense attor - death sentence is never mandatory and neys in federal capital trial cases Respect Each Juror’s Right that the law never requires a juror vote can contact the Federal Death for death. Penalty Resource Counsel Project And Responsibility to “The law never requires a juror vote (www.capdefnet.org/fdprc/) or Make These Sentencing for death. The only parties in the court - Matthew Rubenstein to obtain Decisions Individually room seeking the death penalty are the additional materials and resources prosecutors. The judge has no interest to learn or implement this method Q: The law recognizes that the decision in any particular outcome; she will be of jury selection, for assistance in about whether another human being perfectly satisfied with whatever result tailoring the method to their lives or dies is a serious decision, and you decide.” cases, or for assistance in prepar - each juror is given the right and respon - ing for or conducting voir dire . sibility to decide this issue for himself or Q: It takes 12 votes for death for a death herself; the law never requires or forces a sentence to be imposed, and one vote for

26 WWW.NACDL.ORG THE CHAMPION life, for life imprisonment without can do so. By the same token, a juror is efficient and effective questioning release to be imposed. This may strike never required to put into words or about these principles and the prospec - some as unfair: the government has to explain her feelings, views, or vote. The tive juror’s willingness and ability to get 12 votes; the defense only needs one. law requires that jurors are entitled to apply them. Moreover, using a visual But this is the law. If you are a juror and always be treated with dignity and aid makes this final portion of the voir the case proceeds to a sentencing trial, respect — by each other, by the lawyers, dire move along more smoothly. are you confident you can serve your by the court — and justice requires, and Figure 3 shows an example of these function as a juror under this system? this process only works when the right sentencing trial principles for a federal and responsibility of each juror to make capital case. Jurors Never Have to these personal moral judgments are If an attorney is not permitted to honored and respected. Will you agree to use a poster listing these or similar Explain Their Feelings or avoid bullying or pressuring a fellow principles, the attorney must still ask Votes and Each Juror’s juror to justify his or her decision? questions designed to confirm the Decision Will Be Respected “From beginning to end, judicial jurors understand these principles and proceedings conducted for the purpose will apply them. In order to reduce the likelihood of of deciding whether a defendant shall be pro-death jurors employing unlawful put to death must be conducted with Conclusion coercive tactics in the sentencing trial dignity and respect.” 16 deliberations, the defense must inquire Many defense teams have used the of each juror if she will respect the prin - Q: In a penalty phase, if we get there, Colorado Method of capital voir dire cipled decisions arrived at by her fellow justice requires that all of us honor and effectively in state and federal courts jurors, regardless of whether or not she respect the individual, personal moral and obtained life verdicts in extremely agrees with the ultimate sentencing deci - judgment by which each juror makes the difficult cases tried in challenging juris - sion of the other jurors. “You will respect ultimate decision; the individual nature dictions. The most effective way for T the jurors even if you disagree with their of the decision-making process is what is defense counsel to learn these skills and H sentencing decision, correct?” critical. The decision each juror makes techniques is by attending a Colorado E

— whatever that decision may be — will Method voir dire seminar. These skills- C

Q: At a sentencing trial, if we get there, be respected. Do you understand this based seminars teach the Colorado O after the presentation of evidence and and will you abide by it? Method in small group sessions in L

argument, each juror makes an individ - which attorneys practice the language O ual, personal moral judgment about the Sentencing Trial Decision- and concepts with mock jurors. R aggravation and the mitigation. If a The author acknowledges David Making Principles Poster A juror wants to put into words or explain Using a poster or computer-gener - Wymore, the former chief trial deputy D why she voted a particular way on aggra - ated slide presentation containing sen - for the Colorado Public Defender vation or mitigation, or how she feels tencing trial juror decision-making System, and his colleagues who devel - O

about a life or death sentence, the juror principles in voir dire facilitates more oped the Colorado Method of capital voir M dire for training capital defenders across Figure 3 E

the United States (including this author). T Sentencing Trial Decision-Making Principles H

Notes O 1. See Bowers & Foglia, Still Singularly D v The law does not provide the v Each juror may lawfully vote for a Agonizing: Law’s Failure to Purge answer on the ultimate issue. life penalty based on a mitigating Arbitrariness From Capital Sentencing , 39 circumstance found to exist, CRIM . L AW BULLETIN 51 (2003), and The law is always satisfied with a v including mercy, or even if no miti - http://www.albany.edu/scj/CJPpubs.htm life penalty. gating circumstances exist. for additional publications based on Each juror assigns the weight or National Science Foundation-funded and v A juror is never required to justify, significance the juror feels is v peer reviewed Capital Jury Project explain, or put into words a reason appropriate to any mitigating cir - Research. to vote for a life penalty. 2. Wellons v. Hall , ___ U.S. ___, 130 S. Ct. cumstance that exists. 727, 728 (2010) (per curium) (“From begin - v One vote for life means a life penal - ning to end, judicial proceedings conduct - v Each juror is called upon to make ty will be imposed. an individual, personal moral judg - ed for the purpose of deciding whether a defendant shall be put to death must be ment in deciding life or death, and A nonunanimous decision on the v conducted with dignity and respect.”). there is no criticism of another life or death decision is legitimate 3. See Haney, On the Selection of juror’s personal moral judgment. and lawful and results in the impo - Capital Juries: The Biasing Effect of the sition of a life imprisonment sen - Death-Qualification Process, 8 LAW & H UM . v Even if all the jurors agree on the tence. facts, it remains for each juror to BEHAV . 121 (1984); Haney, Examining Death Qualification: Further Analysis of the decide which sentence is more Every juror is entitled to be treated v Process Effect , 8 LAW & H UM . B EHAV . 133 appropriate — life imprisonment with respect and dignity, and each (1984); Haney, Hurtado & Vega, ‘ Modern’ without any possibility of release juror’s vote will be respected. Death Qualification: New Data on Its or death. Biasing Effects , 18 LAW & H UM . B EHAV . 619 (1994); Cowan, Thompson & Ellsworth, The

WWW.NACDL.ORG NOVEMBER 2010 27 Effects of Death Qualification on Jurors’ life or death sentence. The first question is Jury Weighs the Death Penalty (2005), which Predisposition to Convict and on the an improper stake-out question. The sec - recounts a fascinating and harrowing capi - Quality of Deliberation , 8 LAW & H UM . B EHAV . ond question is not a stake-out question tal sentencing jury deliberation, the inter - 53 (1984). because it only asks whether the juror is personal dynamics and psychological 4. See note 9. able to fairly consider the potential penal - pressures and responses that influence the 5. 469 U.S. 412, 424 (1985) (“That stan - ties. To the extent that this question ‘com - life or death decision-making process, and dard is whether the juror’s views would mits’ a juror, it ‘commits a juror to no other the manner in which the sentencing deci - ‘prevent or substantially impair the per - position than fair consideration of the sion is framed by jurors. formance of his duties as a juror in accor - appropriate penalty in light of all of the 14 . See, e.g., Hooks v. Workman, 606 dance with his instructions and his oath.’”). facts and the court’s instructions.’” United F.3d 715, 742-43 (10th Cir. 2010) (prosecu - 6. “[A] juror might be excused for States v. Fell , 372 F. Supp. 2d 766, 771 (D. Vt. tor’s statement to capital sentencing jury cause if he or she would refuse to consid - 2005) (citations omitted). that (1) defense counsel’s argument that it er any mitigating evidence in a case 9. United States v. Johnson , 366 F. Supp. took the vote of only one juror to prevent involving the death of a child. Other jurors 822, 849 (N.D. Iowa 2005) (emphasis in imposition of the death penalty constitut - may have biases regarding particular original). ed a request for jury nullification, and (2) forms of mitigating evidence. For example, 10 . See Johnson at 849. that failure to deliberate in a manner lead - some jurors may be unable to fairly con - 11 . Id. at 848. ing to a unanimous verdict would amount sider any mitigating evidence relating to 12. In a case governed by the chal - to operating outside the law constituted the defendant’s background or upbring - lenging AEDPA review standards, the U.S. intentional misconduct designed to misin - ing. Such jurors must be excused for cause Court of Appeals for the Tenth Circuit form the jurors). as the Supreme Court has emphasized reversed and remanded to the district 15 . See note 1 at 72 (Approximately that the sentencer may not refuse to con - court to grant 18 U.S.C. § 2254 habeas sen - half of the jurors interviewed by the sider evidence relating to the defendant’s tencing relief on five state death sentences Capital Jury Project believed that the background or upbringing.” United States based upon a coercive Allen charge that, death penalty was required if either of two

D v. Fell , 372 F. Supp. 2d 766, 771 (D. Vt. 2005) when considered in the context of all sur - commonly found aggravating factors were

O (citations omitted). “Under the Eighth rounding circumstances, coerced the jury established.). See also John Blume,

H Amendment, a capital defendant is enti - into returning death sentences. “As set out Theodore Eisenberg & Stephen P. Garvey,

T tled to a sentencer who will consider any [below], it is clear the prosecutors’ miscon - Lessons From the Capital Jury Project , in

E relevant mitigating evidence. Accordingly, duct achieved its intended purpose: the BEYOND REPAIR ? A MERICA ’S DEATH PENALTY 144-

M the defendant can challenge a prospec - jury was misled to believe it was the obli - 77 (2003), Ronald C. Dillehay & Marla R.

tive juror for cause on the ground that the gation of a juror holding a minority opin - Sandys, Life Under Wainwright v. Witt: Juror

O juror would not consider certain kinds of ion to abandon that opinion if it was nec - Dispositions and Death Qualification , 20 LAW

D relevant mitigating evidence.” United essary for the jury to reach a unanimous & H UM . B EHAV . 147 (1996), William S. Geimer

A States v. Fell , 372 F. Supp. 2d 786, 791-92 (D. sentence. The coercion flowing from this & Jonathan Amsterdam, Why Jurors Vote

R Vt. 2005). misconduct, when combined with coer - Life or Death: Operative Factors in Ten

O 7. See, e.g., Anderson v. State , 196 cion flowing from the trial court’s Allen Florida Death Penalty Trials, 15 AM. J. C RIM . L.

L S.W.3d 28, 40 (Mo. 2006) (juror who indicat - charge, undoubtedly coerced the jury’s 1, 40 (1989).

O ed that he would put the burden on the death sentences.” Hooks v. Workman , 606 16 . Wellons, supra . n

C defense to convince him that the defen - F.3d 715, 746 (10th Cir. 2010). Numerous dant did not deserve the death penalty is district courts have instructed federal sen - E constitutionally impaired, amounts to tencing juries, in the main charge, that About the Author H structural error, and a death sentence nonunanimity would result in a life sen - Matthew Rubenstein is a full-time T imposed by a jury tainted with structural tence. In many of these cases, the court has National Capital error must be vacated, citing Gray , 481 U.S. also given jurors the explicit option of a Resource Counsel at 660, 107 S. Ct. 2045). nonunanimous verdict on the verdict form. and member of the 8. “[T]he court holds that, in this case, See, e.g., United States v. Sampson , 335 F. Federal Death ‘case specific’ questions are appropriate — Supp. 2d 166 (D. Mass. 2004) (court Penalty Resource indeed, necessary — during voir dire of informed jury of consequences of nonuna - Counsel Project. He prospective jurors to allow the parties to nimity because this emphasized individual has taught the Col - determine the ability of jurors to be fair responsibility of each juror and ensured orado Method at and impartial in the case actually before each was fully informed of consequences numerous semi - them , not merely in some ‘abstract’ death of his or her actions). nars, helped defense teams from juris - penalty case.” United States v. Johnson , 366 13 . See Scott Sundby, War and Peace in dictions across the United States pre - F. Supp. 2d 822, 850 (N.D. Iowa 2005) the Jury Room: How Capital Juries Reach pare to use the Colorado Method, and (emphasis in original). Unanimity , 62 HASTINGS L.J. __, *60-61, avail - conducted Colorado Method jury se - “There is a crucial difference between able at http://ssrn.com/abstract=1604572 lection in 11 capital cases . questions that seek to discover how a juror (2010) (providing numerous examples of might vote and those that ask whether a potential life-giving jurors being pressured Matthew Rubenstein juror will be able to fairly consider potential by a death majority and suggesting meth - Capital Resource Counsel aggravating and mitigating evidence. For ods for defense counsel to conduct voir Office of the Federal Public Defender example, a juror may not be asked whether dire and present argument to help poten - 101 SW Main St., Ste. 1700 evidence of rape would lead him or her to tial life-giving jurors remain true to their Portland, OR 97204 vote for the death penalty. However, a juror individual, personal moral judgment and 503-780-3535 may be asked if, in a murder case involving return life from the jury room); see also E- MAIL [email protected] m rape, he or she could fairly consider either a Scott Sundby, A Life and Death Decision: A

28 WWW.NACDL.ORG THE CHAMPION