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.
Later,
Dean