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THE NEW YORK TIMES
Facing A Jury of (Some Of) One's Peers
By ADAM LIPTAK
July 20, 2003
The right to a trial by a jury of one's peers lies at the heart of the American legal system except when it comes to the death penalty.
The jury hearing the first capital trial in Puerto Rico in a generation, for example, does not reflect the island's population in two important ways.
The case is in federal court, and potential jurors not fluent in English are excluded from all federal trials nationwide. In Puerto Rico, that means that two-thirds to three-quarters of the island's residents cannot serve.
And because prosecutors are seeking to execute the two defendants, who are accused of kidnapping and murder, potential jurors who said they would never impose the death penalty were automatically rejected. That second requirement excludes, according to somewhat dated studies, 11 percent to 17 percent of potential jurors nationwide. In Puerto Rico, which has no death penalty and where the federal government's pursuit of capital charges in the pending trial has provoked widespread outrage, the percentage is probably higher.
The United States Court of Appeals for the First Circuit, in Boston, which hears all federal appeals from Puerto Rico, has upheld the language requirement, finding that its importance outweighs the distortions in the jury pool it produces. It is not clear, in any event, which side the distortions might favor in criminal cases.
But death qualification, as the second requirement is known, is a different matter. It has been shown to produce juries that are notably friendlier to prosecutors than jurors in murder cases where the death penalty is not sought.
Studies have shown that juries in capital cases are more likely to believe that a defendant's failure to testify indicates guilt, more hostile to the insanity defense, more mistrustful of defense attorneys and less concerned about the possibility of convicting innocent people than a random sample of the population.
Death qualification has other consequences, too.
"There is a major bleaching of juries," said Samuel R. Gross, a law professor at the University of Michigan. "Many more African-Americans are excluded than whites. The biggest demographic predictor of attitudes toward the death penalty is race."
The exclusion of jurors opposed to the death penalty, Justice Thurgood Marshall wrote in a 1986 dissent, "allows the state a special advantage in those prosecutions where the charges are most serious and the possible punishments the most severe."
The Supreme Court took a tentative step toward forbidding such questioning in 1968. The court reversed a death sentence imposed by a jury selected by a judge who had excluded everyone who had any qualms about the death penalty.
"Whatever else may be said of capital punishment," Justice Potter Stewart wrote for the majority, "it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution."
But the court still allowed the exclusion of jurors who categorically oppose the death penalty, citing the need for more research on the effect of such exclusions.
"That was an invitation to go do empirical research, and it was an invitation that was met with a vengeance," said Franklin E. Zimring, a law professor at the University of California at Berkeley, and the author of "The Contradictions of American Capital Punishment" (Oxford University, 2003).
The resulting studies showed a powerful correlation between attitudes toward the death penalty and receptiveness to evidence of defendants' guilt. "It's a situation where we were embarrassed by knowledge," Professor Zimring said. "It was a wonderful example of legal empirical research being too good for the court."
In 1986, the court in essence withdrew its invitation. Justice William H. Rehnquist, writing for the majority, said that, on reflection, social science could add nothing to the relevant legal analysis. The Constitution, he said, forbids only the exclusion of distinctive groups like blacks and women. Barring groups of people defined only by shared attitudes is permissible.
Justice Rehnquist rejected alternatives that might have addressed some concerns, like separate juries for the guilt and penalty phases of a trial or a single jury with extra jurors who could be weeded out based on their attitudes toward executions if a penalty phase was needed. The Supreme Court has since held that jurors who say they would automatically impose the death penalty for some crimes may also be excluded.
The ability to screen jurors may invite prosecutorial gamesmanship, tempting prosecutors to charge cases as capital crimes solely to produce a friendlier jury.
In his 1986 dissent, Justice Marshall noted that it was all but impossible to prove that a prosecutor had engaged in this sort of "tactical ruse." Though facts suggesting the tactic have been present in at least a half-dozen cases, no court has overturned a conviction on this ground.
Juries are returning fewer death penalties these days. The number of people entering death row in 2001 was 155, the smallest since 1973. Final statistics for 2002 have not yet been compiled, but legal experts expect the trend to hold.
That does not, however, allay all concerns about the distorting effects of death qualification of a jury. To the contrary, said Jamie Orenstein, a former federal prosecutor, "one of the basic ideas about the death penalty is that it's supposed to reflect the moral judgment of the community." Excluding opponents of the death penalty from capital juries makes gauging that moral judgment more difficult.
"It's a genuine dilemma," said Professor Zimring. "If you gave capital defendant a representative jury, you couldn't produce a death penalty."