July 13, 1996

Column 11

Picking a jury in a Death Penalty trial is obviously a macabre exercise, but it is also one that has flaws. But, before I get into that, I want to talk about the way that courtrooms are laid out. I think that by their design, it already puts the defendant at a disadvantage when he goes to trial. Maybe you think that it is ridiculous to claim that the way a courtroom is laid out has an impact on a trial, but let me explain.

When you walk into a courtroom in California, the floorplan is basically the same with all of them. Since most people have seen at least part of the OJ trial on TV, you can probably visualize what I am describing. If you sit in the jury box and look out over the courtroom, here is what you will see. Closest to the jury is a witness stand where the witnesses sit when they testify. On the other side of the witness stand is the Judges bench, sitting high above everything else, so as to give a air of authority. Facing the Bench and witness stand is the tables where the prosecutor and defense sit during the course of the trial. In between the prosecutor and defense table is a podium that the lawyers stand at when they address the court and the jury. Sitting closest to the jury box is always the prosecutors table, then the podium, and on the other side of that is the defense table. The person on trial is as far away from the jury as is possible. When I was in trial, I couldn't even see half of the jury, unless I leaned out over the table to look at them. So, this set up seems to make the person on trial distant, and not even a real part of the proceedings, which in my opinion, makes it easier for the jury to depersonalize you when you are on trial. Meanwhile, the prosecutor is damned near sitting in the juries lap all through the trial and the jury has the tendency to relate with the prosecutor a lot easier. This might sound like a trivial thing, but consider this. A witness for the defense is on the witness stand and giving their testimony, but all through the witnesses testimony, the prosecutor is sitting right next to jury and reacting to everything the witness says by facial expressions and body language. And, if you are saying that this doesn't have an impact on a jury, then you are very naive . . . or a prosecutor.

It is in this sort of an environment that a jury for a death penalty trial is selected. The process is called, "Voir Dire", which is a Latin term that means "to truly speak". The purpose of voir dire is to determine how the prospective jurors feel and think about a wide range of topics. The charming term used to describe this process is, "to death qualify" the jury. It seems that if the premise of our legal system is, everyone is presumed innocent until proven guilty, then the proper term should be less presumptuous. In theory, this process is supposed to select a jury that can serve as a fair and impartial one, then if the defendant is found guilty, give as much consideration to a sentence of life in prison without the chance of parole, as it does to sentencing the person to die. It's a nice theory, but that is all it is.

At the very beginning of the jury selection, all of the potential jurors are given a form of questions to fill out. Once they complete the questions, copies are given to the Judge, prosecutor and to the defendants attorney. They go over each form carefully to see if there are any answers given by the jurors that need to be addressed. Each juror is then brought into the courtroom and questioned by the prosecutor, defense and the judge. This is where the biggest flaw in the process comes into play. If a juror states, in the questionnaire, they are opposed to the death penalty, they will be excused from serving on the jury in almost all of the cases. But if the prospective juror says that they favor the death penalty, the prosecutor will question this juror. (It is called rehabilitating the juror) All that the prosecutor has to do is get the the juror eliminated is to say that they "could" consider a life sentence , if the defendant is found guilty. Since most people like to consider themselves open minded, of course the juror is going to say that they "could" consider life in prison, even though they would be unlikely to do so . . But long as they say they can consider it, they are qualified. On the other hand, when people say that they are opposed to the death penalty and the defense try's to rehabilitate them, they are usually honest and say that they could never consider death and would always give a life sentence. If the defense can rehabilitate the juror by getting them to say, "even though they don't believe in the death penalty, they could consider it" the judge will eliminate that person as a juror, saying that the person couldn't be "unbiased".

Out of these"death qualified" jurors, the actual jury who will sit through the trial are picked. But because of the process, the majority of these are strongly in favor of the death penalty and even worse, they are usually strongly pro-prosecution. People who think that the police and prosecutors would never charge someone unless they are guilty. So, they come into the trial with the attitude that the trial is "just a formality" to go through before they can sentence the person to death. To be fair, I'm sure that this is not true in every case, but oddly enough, it seems to be the case with most of the people sitting here on death row. Go figure, eh?

That's it for this time. I'm sure that most of what I talk about in this is dry and boring, but I felt that it was important to talk about it. Sorry.