Facing a Jury of (Some of) One’s Peers
By ADAM LIPTAK in the New York Times
The right to a trial by a jury of
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
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."
[note to my students: a "hanging jury" is an expression from the American
wild west which describes a jury predisposed to find an accused person gulty
and to impose the death penalty. By definition, it is NOT impartial.]
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
It’s a genuine dilemma," said Professor Zimring. "If you gave capital
defendant a representative jury, you couldn’t produce a death penalty."