The State of Massachusetts tackled the issue of death qualification. According to the Report of the Governor’s Council, Governor Romney stressed two main issues: first, “capital punishment should be limited to a narrowly defined subset of first-degree murders, so that only the ‘worst of the worst’ murders, and murderers, will be eligible for the ultimate punishment” and second, “the death penalty should be administered with a strong emphasis on the use of scientific evidence to help establish the defendant’s guilt, which will ensure – as much as humanly possible – that no innocent person will ever wrongly be condemned to death.”120 The Council recommended ten proposals:
(1) a narrowly defined list of death-eligible murders;
(2) appropriate controls over prosecutorial discretion in potentially capital cases;
(3) a system to ensure high-quality defense representation in potentially capital cases;
(4) new trial procedures to avoid the problems caused by the use of the same jury for both stages of a bifurcated capital trial;
(5) special jury instructions concerning the use of human evidence to establish the defendant’s guilt;
(6) a requirement of scientific evidence to corroborate the defendant’s guilt;
(7) a heightened burden of proof to enhance the accuracy of jury decisionmaking;
(8) independent scientific review of the collection, analysis, and presentation of scientific evidence;
(9) broad authority for trial and appellate courts to set aside wrongful death sentences; and
(10) the creation of a death-penalty review commission to review claims of substantive error and study the causes of such error.121
This is the best and most thought provoking idea on the reform of capital punishment. The fourth proposal is most on point. “At the end of the guilt-innocence stage of the capital trial, if the defendant is convicted of capital murder, the defendant should have the right to request the selection of a new jury for the sentencing stage.”122 This is a good idea, however, it still leaves open the issue of death qualifying the jury for the guilt phase and, as has been shown, that process creates a jury that is more likely to convict. “I thought the point of bifurcation was to provide the defendant a guilt-innocence decision by a jury that had not been death qualified.”123
The Council explicitly rejected the idea of eliminating the death qualification process prior to the guilt phase of the trial.124 The Council said that there were other safeguards in place and there was no need to remove the death qualification process from the guilt phase jury selection.125 In order to prevent the bias discussed previously, removing the death qualification process from the selection of the guilt phase jury would be a great step in the right direction. It is, however, undisputed that the penalty phase jury would still need to be death qualified in order to properly follow the law in applying a sentence.
The Council determined that it would be impractical to death qualify the penalty phase jury after the guilt phase jury has rendered a verdict of guilt.126 This problem is easily resolved by death qualifying a second, shadow jury at the same time that the guilt phase jury is selected.127 Not only does this allow the expeditious transfer from the guilt to penalty phases, it also eliminates the need, during the penalty phase, for the case to be, in essence, retried in front of the death qualified, penalty phase jury because the penalty phase jury has already seen and heard the evidence during the guilt phase of the trial.128 This does create some redundancy, especially if the guilt phase jury finds the defendant not guilty and the penalty phase jury never gets a chance to render a sentence. However, a non-death qualified jury is more likely to accurately weigh the evidence and render a more accurate verdict. Even though this may create some redundancy, it seems that, in the pursuit of accuracy, this process may have more advantages than drawbacks.
120 Report of the Massachusetts Governor’s Council on Capital Punishment, 80 Ind. U. L.J. 1 (2005).
121 Id. at 3-4.
122 Id. at 16.
123 Nancy J. King, The Problem of Death Qualification, 80 Ind. U. L.J. 59 (2005).
124 Joseph L. Hoffman, Welcoming Remarks, 80 Ind. U. L.J. 29 (2005).
125 Id. at 31.
127 King, 80 Ind. U. L.J. at 60.