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Yesterday's diary by Meteor Blades titled Chandra Levy's Dad: No Death Penalty for Her Murderer conveyed the news that Chandra's parents prefer a life sentence for her killer, rather than the death penalty, as well as the reasoning for their opinion.  While I won't comment on their reasoning, the idea of having a reason for one's opinions is something I find compelling, particularly when the reason is supported by fact.

In that spirit, I offer for the community's consideration this piece in which the inherent unfairness of jury selection in capital cases is explored.  I wonder - how can any of us support the death penalty when a primary mechanism for its application is, itself, so very flawed?

    Supreme Court Justices William Brennan and Thurgood Marshall never recognized as valid the decision in Gregg v. Georgia by which the constitutionality of the death penalty was reaffirmed after a short moratorium from 1972-76.  These Justices faithfully wrote dissenting opinions in all cases where capital punishment was upheld by their fellow jurists, unequivocally stating that they viewed it as cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to our Constitution.  It's curious to me that the entitlement to hold such opinion should be allowed to judges passing judgment, but not to private citizens who are impaneled jurors in capital cases - yet that is the result of methods, known colloquially as "witherspooning" the jury, for selecting "death qualified" juries in capital cases.

    Witherspooning takes its name from the 1968 Supreme Court case Witherspoon v. Illinois where the decision to execute William Witherspoon was reversed after the Court determined that 47 potential jurors had been improperly excluded from serving because their opposition to capital punishment had only been assumed during voir dire questioning.  The Court concluded that the exclusion of persons who merely expressed reservations about capital punishment tilted the jury toward those persons "uncommonly willing to condemn a man to die" - an illegality in itself.  The Court further clarified that "unless a veniremen (potential juror) states unambiguously that he would automatically vote against the imposition of capital punishment no matter what a trial might reveal, it cannot be assumed that this is his position."

    As a result of Witherspoon, potential jurors began to be questioned during voir dire with more particularity and, after much misapplication and confusion during the intervening years on the part of judges, prosecutors and jurors alike, Witherspoon was revisited by the Supreme Court in the 1985 case Wainwright v. Witt.  In essence, the Witt decision held that the

proper standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror's views would prevent or substantially impair performance of his duties as a juror in accordance with his instructions and oaths...

The Witt standard further provides that the trial judge's determination prevails with "a presumption of correctness as a factual issue" with regard to whether the standard has been met.  Effectively then, the Witt decision allows prosecutors and judges wider latitude than Witherspoon, since the decision of whether a potential juror holds an opinion that is "substantially impaired" is often a matter of opinion.

    Consequently, over time Witt has been applied in disparate ways - in some courts, jurors who express any hesitancy at all regarding capital punishment are successfully challenged by the prosecution, deemed "substantially impaired," and excluded.  Conversely, unless a juror blatantly states his preference for execution in all cases, he may be qualified as long as it is determined he is likely to consider all aspects of the case.  Sometimes, technicalities may prevent even that much from happening. Consider, for instance, the Louisiana case of Daniel Blank: "two jurors who clearly said they would always impose the death penalty under the facts of the case were ultimately seated on the jury" after the defense had exhausted all of its peremptory strikes on other potential jurors, a result which clearly infringed on Daniel Blank's Sixth Amendment guarantee to an impartial jury.

    In any event, the application of Witherspoon and Witt, which form the foundation for modern capital punishment jurisprudence, has been shown through numerous studies to "have confirmed three empirical hypotheses:"

(1) jurors excluded because of their inability to impose the death penalty are more attitudinally disposed to favor the accused than are non-excluded jurors; (2) excluded jurors are more likely to be black or female than non-excluded jurors; and (3) excluded jurors are more likely to actually acquit the accused than non-excluded jurors.

Such findings do little to allay concerns that due process rights of the defendant aren't being infringed upon.  In fact, these findings collide with the very standard by which the Supreme Court, itself, has determined any jury should be selected.  In this regard, it relies upon Trop v. Dulles:

One of the most important functions any jury can perform in making selection of punishment is to maintain a link between contemporary community values and the penal system, a link without which the determination of punishment could hardly reflect the evolving standards of decency that mark the progress of a maturing society.

    In my opinion, Witherspoon and Witt violate this tenet by severing the link between community values and the penal system in three ways.  First, the Witt decision admits that "many veniremen simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear."  By establishing a standard where the trial judge's determination regarding a potential juror's bias is presumed "correct," Witt allows the composition of the jury to be restricted to reflect, to a certain extent, one person's opinion and values.  Secondly, because any juror who admits an opposition to apply capital punishment in all instances is automatically excluded, it is entirely possible that an assembled jury may not reflect community values whatsoever!  It could be reasonably concluded in Witherspoon, for instance (reversal aside), that because 47 potential jurors had expressed some degree of reservation about capital punishment, community values would not have supported the death penalty at all had the jury been truly representative.  Third, as the empirical hypotheses mentioned above clearly exhibit, distinct portions of the community are being disproportionately excluded as jurors and the resulting juries are obviously not representative, as our Constitution requires.

    I agree entirely with Justice Douglas, who dissented in the Witherspoon decision, when he laid out a fairer standard:

I see no constitutional basis for excluding those who are so opposed to capital punishment that they would never inflict it on a defendant.  Exclusion of them means the selection of jurors who are either protagonists of the death penalty or neutral concerning it.  That results in a systematic exclusion of qualified groups, and the deprivation to the accused of a cross-section of the community for decision on both his guilt and his punishment.

    To those who would say Justice Douglas and I construct an impossible standard under which capital punishment could not be administered, I would reply that the primary consideration in a just society must be whether that society infringes on the rights of its citizens in order to exact its punishment.

Originally posted to dharmafarmer on Sun Feb 22, 2009 at 04:51 PM PST.

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