Tsarnaev: Death penalty cases are won or lost during jury selection

December 29, 2014

Monday, December 29, 2014

Good evening:

Most death penalty lawyers will tell you that a death penalty case is won (i.e., LWOP) or lost (i.e., death sentence) during jury selection. That is because we have seen and done it all and have generally mastered the art of trying cases so that we know to a reasonable certainty whether the jury will convict or acquit the client.

Today we are going to learn about and discuss jury selection in a federal death penalty trial. As you will soon discover, jury selection is more aptly described as deselection. Each side attempts to get rid of the prospective jurors they do not want by challenging them for cause or by peremptory challenge.

1) Challenge for Cause: No limit to the number of challenges, but you have to satisfy the judge that the prospective juror whom you challenge cannot fairly and impartially try the case or follow the court’s instructions. Your challenge will be denied, if you fail to convince the judge.

2) Peremptory Challenge: Each side gets 20 challenges. You don’t have to give a reason to support your challenge, but you cannot use your challenges to exclude prospective jurors solely on the basis of race, gender or religion. For example, the prosecution cannot use peremptory challenges to exclude Muslims. They would have to genuinely have other reasons or the challenge would be denied. The defense has a pending motion to increase the number of peremptory challenges to 30 per side because of extensive pretrial publicity. The government opposes the motion and it will likely be denied since the rule is quite specific about 20.

Jurors will be questioned in three ways. First, they will be asked to fill out a questionnaire. Then they will questioned together as a group and thereafter individually, depending on their answers to some of the questions on the questionnaire or during group voir dire. BTW, voir dire means to question. Attorney voir dire occurs when the lawyer do the questioning.

1,000 prospective jurors have been summoned in the Tsarnaev case. The goal is to seat a jury of 12, plus alternates who will well and truly try the case according to the instructions given by the court.

The first task in the selection process is to go through the questionnaires and excuse people who cannot serve because of the length of the trial, economic hardship, poor health, bias (related to or know victims, witnesses, lawyers or court personnel), prepaid vacations, etc. This usually reduces the pool of prospective jurors by about 50% or more.

Since this is a highly publicized death penalty case, the two major areas of inquiry during voir dire will be: (1) effect of pretrial publicity on ability to fairly and impartially try the case based only on the evidence introduced in court and, assuming the defendant is found guilty, (2) effect of opinions about the death penalty on a juror’s ability to follow the jury instructions that require weighing the aggravating evidence and mitigating evidence in deciding whether to sentence the defendant to death or to LWOP. Jurors will be questioned individually out of the presence of the others to avoid influencing them with their responses regarding these topics and possibly religious beliefs, since Dzhokhar Tsarnaev is allegedly a Muslim jihadist.

More specifically,

1) Pretrial publicity: The test is not whether someone has heard or read about the case. The test is whether they have formed an opinion about the guilt or innocence of the accused such that they would not be able to fairly and impartially try the case. They will be excused for cause, if the answer is “Yes.” If the answer is, “No” they will be questioned individually out of the presence of the others for more information to challenge or pass the juror for cause on the subject of pretrial publicity. If a challenge for cause is denied, the party asserting the challenge likely will use a peremptory challenge later on to get rid of that person.

2) Opinions about the death penalty: Jurors are told that they have to be questioned regarding their opinions about the death penalty before the trial starts because there will not be an opportunity to question them later, if the defendant is convicted. Therefore, they are told to assume guilt when they are questioned. Invariably, a majority of the time spent selecting a jury involves the death qualification process. The test is whether the prospective juror could weigh the aggravating and mitigating evidence and render a verdict according to the jury instructions. Anyone who would automatically vote for the death penalty, if the defendant is convicted as charged, will be excused for cause, Same is true for anyone who would automatically vote for LWOP because they are opposed to the death penalty. This is called death qualifying a jury and it inevitably produces conviction prone jurors because so-called scrupled jurors (who oppose the death penalty) are more likely to vote not guilty than guilty. This feature is another major reason why it’s so difficult to win a death penalty trial.

The goal will be to get a panel of probably 75 or more people who have been passed for cause by both sides. The size of the panel has to be large enough so that there will be enough people left to seat a jury of 12, plus the alternates. If each side uses its full complement of 20 peremptory challenges, that would reduce the panel by 40 people, and possibly a few more, if one side or the other successfully challenges the other side’s improper use of a peremptory challenge to get rid of people based solely on race, gender or religion. Each side also gets a peremptory challenge to assert for each alternate.

It’s OK to end up with a few too many. It’s not OK to end up without enough because then you have to bring in another group of people to question.

One of the extremely bizarre aspects of the death qualification process is the effort by defense counsel to save scrupled jurors from being excused for cause by getting them to admit that they could follow the instructions and impose the death penalty despite their opposition to it, if the aggravating circumstances outweighed the mitigating circumstances. Similarly, prosecutors befuddle jurors who would automatically vote for the death penalty by attempting to get them to admit that they could vote LWOP despite their support for the death penalty, if the mitigating circumstances outweighed the aggravating circumstances.In either case, the object is to force the opposing counsel to use one of their precious silver bullets (i.e., peremptory challenges). The hope is they will run out of ammo before you do and you’ll get some scrupled jurors on the jury.

That is more likely to happen in Massachusetts where a majority of the voters are against the death penalty than would be the case in Texas or Florida where you would be lucky to find a scrupled juror in a group of 1,000 people.

Last but not least, both sides will be on the lookout for possible ‘stealth jurors.’ They are agenda driven people who will lie to sneak on a jury and vote for a particular outcome, regardless of the evidence. This is called jury nullification when the stealth juror votes contrary to the evidence and the instructions. Both sides are likely to have support staff checking social media for potential stealth jurors.

It took 3-4 weeks for me to select a jury in every death penalty case that I tried. Then it took 6-9 months to try the cases.

Since federal court does not allow cameras or audio recordings in the courtroom, we will not be able to watch this fascinating process that is so critically important to the outcome of every trial.

And there you have it.


We need to abolish the use of peremptory challenges in jury trials

June 26, 2014

Thursday, June 26, 2014

Good morning:

The SCOTUS prohibited the use of peremptory challenges, for which no reason must be given, to systematically exclude blacks from juries in criminal trials of black defendants in Batson v. Kentucky.

Batson permits the use of peremptory challenges to exclude blacks from juries so long as the party challenging the juror has a race neutral reason for asserting the challenge.

The Batson rule applies to all cases, whether criminal or civil, and it has been extended to prohibit the use of peremptory challenges to systematically exclude jurors based on gender or religious affiliation.

Unfortunately, a smart lawyer usually can come up with a race neutral “reason” to exclude a black juror, however unlikely, to pass judicial scrutiny.

The reverse side of that racial injustice is the acquittal by all white juries of guilty white defendants who murdered black victims.

We saw that in the Zimmerman trial.

Justice Thurgood Marshall realized games were being played in the aftermath of Batson. He wanted to solve the problem by getting rid of peremptory challenges.

Until recently I disagreed.

I quit practicing law ten years ago and it has taken me this long to finally change my mind and acknowledge that Justice Marshall was right.

We should not be excluding anyone from serving on a jury without a valid reason. By eliminating peremptory challenges, we would be requiring lawyers to present a convincing case for disqualifying a juror, convincing in the sense that opposing counsel would have an opportunity to rehabilitate a challenged juror.

This is how courts handle challenges for cause. Unless unopposed, each challenge for cause becomes a mini trial decided by the judge after each side gets an opportunity to question the challenged juror.

By forcing lawyers to support a challenge with an evidence based reason, instead of a hunch or a prejudice, we would do no more than subject them to the same standard to which we routinely hold police officers when they arrest a suspect. Such a rule would only improve our system of justice.

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Thank you,

Fred


Open Thread

February 3, 2014

Monday, February 3, 2014

Good afternoon:

Day 1 of jury selection in Michael Dunn case ended today with 36 people excused for cause with 46 reporting back tomorrow at 1 pm and 30 new people will be brought in at 8:30 am to fill out a questionnaire and be individually questioned by counsel and the court.

The public and the media have been prohibited from being in the courtroom until after jury selection is concluded and counsel are ready to make their opening statements.

The reporters have been placed in a separate room with audio of the hearing piped in. The audio did not work very well. At times counsel’s questions could not be heard and at other times juror responses were inaudible.

All in all, this was exactly the wrong way to dispel suspicions that the outcome of this trial is rigged.

After the dreadful result in Trayvon’s case that was due in no small part to screwed up jury selection by the prosecution regarding B37, I expected Angela Corey would insist on openness to defend her reputation and the reputation of her office.

For those who are inclined to believe that the fix in, you probably do not need any additional evidence.

Nevertheless, there is additional evidence. I refer to Dunn’s jailhouse phone calls.

Corey has effectively buried them for the time being, despite an order from the Court of Appeals to disclose them.

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Fred


Jury selection critically important in Dunn case

February 1, 2014

Saturday, February 1, 2014

Good afternoon:

The Michael Dunn trial starts Monday with jury selection, which will probably play the most significant role in determining the outcome of the trial.

In order to convict Dunn, the prosecution must avoid making the mistakes that it made during jury selection in the George Zimmerman trial.

That means stop preaching to the prospective jurors. Question them instead. Ask “Why?”

Let them talk and reveal themselves.

Be on the lookout for stealth jurors. Right-wing-gun-nut racists who believe that people like Dunn and Zimmerman are great American heroes who should be rewarded for killing black teenagers.

Most prosecutors are lousy at jury selection. Bernie de la Rionda conducted a clinic on how not to do it. Angela Corey should watch a recording of what he did. His failure to ask B-37 why she used the word “riots” to describe peaceful demonstrations and his failure to challenge her for cause or to use a peremptory challenge to get rid of her may have had more to do with the outcome of the trial than anything else.

She must avoid making his mistakes.

Unless, of course, she really wants to lose the case.


All Female Jury to decide Zimmerman case, Opening Statements Monday at 9 am

June 20, 2013

Thursday, June 20, 2013

Good evening:

We have a jury, an all female jury.

B-29
B-76
B-37
B-51
E-6
E-40

The four alternates:

E-54
B-72
E-13
E-28

Two males and two females.

Here’s a link to fauxmccoy’s chart on the jurors.

Those in green made the jury. Those in red were stricken.

I tried hundreds of cases during my 30 year career and never had an all female or an all male jury.

5 of the 6 women are white. One is Hispanic.

5 of the 6 women are mothers.

I would be very worried, if I were George Zimmerman, because I believe those mothers are not going to believe him. I think they are going to hold him accountable for killing an unarmed teenager.

I am unhappy that none of the jurors are black, but I do not believe that is going to affect the final outcome of this case.

I predict GZ will testify because Mark O’Mara did not voir dire the panel of jurors regarding a defendant’s right to remain silent and not testify. When my clients decided not to testify, I always made sure that the jurors understood that my clients were not required to testify and no one could assume that their silence was evidence of guilt.

Judge Nelson announced that counsel will give their opening statements beginning at 9 am EDT on Monday morning.

After she dismissed the remainder of the panel and swore in the jurors, Judge Nelson excused the jury and completed the evidentiary part of the Frye hearing.

Assistant State Attorney Manthei summed up the situation when he said there was nothing novel or new about the methodologies used by the State’s experts. What is new is a move across several different scientific disciplines to establish a universal set of standards to use when attempting to match a recording of an unknown voice to a database of recorded voices of known individuals in order to declare a match.

That is a far more complicated task than listening to a known voice and excluding that known individual as the source of a voice on a recording. There are only two possible sources of the terrified shriek that ends with the shot and it’s not difficult to exclude the armed defendant who admitted firing the fatal shot as the source of that scream.

Manthei added that the State was not responsible for the recent news reports that the defense had an expert who identified GZ as the source of the scream.

And some PJs mentioned hearing that in the news before reporting for jury service.

However, as it turned out, the defense could find no expert to testify to that opinion and the reports were false.

If I were Judge Nelson, I would rule that the State’s experts may testify and express their opinions. The defendant’s objections go to the weight of the evidence, not its admissibility.

Judge Nelson will issue her ruling after court reconvenes at 9 am tomorrow.

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Welcome to Day 9 Liveblogging Jury Selection in Zimmerman Trial

June 20, 2013

Thursday, June 20, 2013

Good morning to the last day of Spring and the 9th day of liveblogging jury selection.

Here is your link to Fauxmccoy’s fabulous spreadsheet of the prospective jurors (PJs).

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/

Court resumes at 9 am EDT with the defense voir dire of the panel of 40.

See you in court.

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Zimmerman: Day 8 Liveblogging Jury Selection Completed

June 19, 2013

Wednesday, June 19, 2013

Good afternoon:

We have completed liveblogging the 8th day of jury selection.

Bernie de la Rionda spent the day teaching and indoctrinating the panel of 40 prospective jurors (PJs) with the legal foundation of the case that he will present to them in opening statement. Judging by their reaction, he succeeded in building rapport and trust.

The defense has a big mountain to climb tomorrow.

Bernie used a mixture of one-at-a-time voir dire as to the entire group and then switched to what we used to call the Donahue Method after the former TV host, Phil Donahue.

We would never have been allowed to conduct a classroom style multiple-hour education of the panel regarding legal principles as Bernie did.

Judges instruct on the law, not lawyers.

Voir dire means to question.

During his initial questioning of the panel, he asked each individual juror how long they had lived in Seminole County and Florida, their marital status and children, and what they liked to do with their spare time.

Then he used the Donahue Method to question the panel of 40 as a group on the following subjects:

1. Knowledge of the defendant, lawyers, court personnel and witnesses to be called;

2. Familiarity with TV programs about forensics, cops and the law;

3. Difference between direct and circumstantial evidence;

4. Whether anyone was arrested and prosecuted for a crime;

5. Victims of crime, particularly violent crime;

6. Experience with Neighborhood Watch programs;

7. Whether anyone believes they have the right to take the law into their own hands;

8. Whether anyone believes any person by reason of wealth, education, employment, gender, race, ethnicity, religion, age, language or dress should be treated differently under the law;

9. Whether anyone has been a witness before or served on a jury;

10. Member of law enforcement or knows someone who is;

11. Whether anyone has medical experience or knowledge;

12. Owns a gun, has a license to carry concealed, NRA membership;

13. Whether people who own guns have a responsibility to learn how to use them;

14. Whether anyone is a fitness freak or trained fighter or been in a fight;

15. Whether anyone has special knowledge or training in cell phones, phonetics, linguistics, or DNA testing; and

16. Whether anyone would not be able to look at gruesome photographs for their evidentiary value.

No one was excused today although I believe 2 PJs should be excluded for financial and familial hardship, especially since the trial is expected to last 2-4 weeks and the jury will be sequestered. Both are Hispanic.

B-29 is a married mother with 8 children at home. The oldest is 22. She works as a CNA. She is juror #2 in the box and would be replaced by B-51, a retired white female from Oviedo with a dog and 20-year-old cat. Knows a good deal about the case, but said “I’m not rigid in my thinking.” She moved to Florida from Atlanta and was the Director of a call center for 1,200 employees.

P-67 is an auto mechanic whose job might not be there after the trial. He is 22nd on the list of 40.

The defense will voir dire tomorrow starting at 9 am EDT.

If the defense has not completed questioning the PJs by 2 pm, Judge Nelson will excuse them for the day in order to resume and complete at least the evidentiary portion of the Frye hearing. The prosecution will be presenting one rebuttal witness, Tom Owen.

I doubt she will be ready to issue her decision at the conclusion of the hearing, so look for it early next week, probably Monday.

I will see you all tomorrow morning at 9 am EDT.

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