The history of Capital Punishment here and here. The process of death qualifying a jury here. The bias created by death qualifying a jury here and here. The State of Massachusetts Report of the Governor’s Council here.
The problem with the Council’s recommendation, absent a shadow jury, is that if the first jury finds the defendant guilty, then the second jury basically has to rehear the case in order to get all of the information to make a proper determination of sentence. Or, as Ms. King points out, there could be dual juries.129 The problem there is that accuracy may be an issue. “I cannot think of anything that might undermine the appearance of accuracy more directly than to have two juries who have seen the exact same evidence come to different conclusions.”130 Though, as has been shown, that is not at all out of the realm of possibility since a death qualified jury is much more likely to convict than a non-death qualified jury.
“The reason to have two juries would be to have a non-death qualified jury make determination as to guilt or innocence.”131 That only seems to be the logical conclusion. “The only reason to have a death-qualified jury would be predicated on the theory that a juror who opposes the death penalty – who would never give the death penalty and thus could not apply the law.”132 This only makes sense as the non-death qualified juror would have nothing to do with the actual decision making process of the sentence; just the guilt. Granted, the juror may feel that the defendant, upon a finding of guilt, would be sentenced to death by the subsequent jury so that juror would then vote not guilty so as to avoid a sentence of death, then we find ourselves right back at the nullification concern.
“The death penalty is such a watershed political issue that it allows for the identification of jurors who are sympathetic to the prosecution point of view, the pro-authoritarian point of view. It removes people who have experiences in their lives that cause them to just say, ‘hold on a minute, let’s compare these two police officers’ testimony and see if there are contradictions.’ These people get exposed and they’re removed. So you are most likely to have the most inaccurate false positives … in the most serious cases because everyone who is likely to question the facts has been removed for cause or peremptorily by the prosecution.”133
Ms. Lyon makes a valid point that those who question are quite easily removed from the jury. So, the Council may have been slightly off with its fourth proposal. Maybe it would have been better to include the idea that the guilt phase jury would be a non-death qualified jury. That may have been a better start.
Professors Kamin and Pokorak make several recommendations as to the adoption of the proposals laid out by the Council.134 The first proposal is to have no death qualification.135 Justice Douglas wrote a concurrence in Witherspoon in which he recommended no death qualification.
“A fair cross-section of the community may produce a jury almost certain to impose the death penalty if guilt were found; or it may produce a jury almost certain not to impose it. The conscience of the community is subject to many variables, one of which is the attitude toward the death sentence. If a particular community were overwhelmingly opposed to capital punishment, it would not be able to exercise discretion to impose or not impose the death sentence. A jury representing the conscience of that community would do one of several things depending on the type of state law governing it: it would avoid the death penalty by recommending mercy or it would avoid it by finding guilt of a lesser offense.
“In such instance, why should not an accused have the benefit of that controlling principle of mercy in the community? Why should his fate be entrusted exclusively to a jury that was either enthusiastic about capital punishment or so undecided that it could exercise a discretion to impose it or not, depending on how it felt about the particular case?
“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.”136
“For Douglas, then, the petit jury that is actually impaneled in a capital case ought to represent the fullness of views on capital punishment shared by the citizenry, even if those views would preclude some jurors from imposing the death penalty under any circumstances.”137 This only makes sense that a fair cross-section of the community is placed on the jury. However, the problem arises then, would anyone ever be sentenced to death? If a death sentence did not have to be unanimous, yes.
As Professors Kamin and Pokorak point out, the fact that some jurors would be incapable of rendering a sentence of death would mean that they would be violating their oath as a juror in not fulfilling their legal duty.138
The next proposal is for two juries; one death qualified jury and one non-death qualified jury.139 In this instance, both juries would hear the guilt phase of the trial.140 However, the non-death qualified jury would be the only jury determining the guilt or innocence of the defendant.141 Upon a finding of guilt by the non-death qualified jury, then the death qualified jury makes a determination as to sentence.142 This seems to be practical, leaving aside the economics of empanelling two juries. “The principal advantage of such a system, of course, is that a non-death-qualified jury decides the question of guilt or innocence.”143 However, the issue of nullification still arises here when someone on the non-death qualified jury votes not guilty to ensure that the death penalty not be imposed at sentencing.
The final proposal by Professors Kamin and Pokorak is a hybrid jury.144 This hybrid jury consists of both death qualified and non-death qualified individuals.145 Under this proposal, all of the prospective jurors could be questioned as currently allowed under Witt however, “no juror could be removed for cause from the guilt-phase on the basis of their answers.”146
In this situation, where a hybrid jury convicts the defendant, the non-death qualified jurors would be excused prior to the penalty phase of the trial and death qualified alternates would take their place.147 “For the capital defendant, the hybrid jury would permit him to be judged by a jury that has not been death-qualified, thus greatly increasing the chances of his acquittal or of his conviction on a non-capital charge.”148 This is a great step in the right direction as this allows for a jury comprised more closely to a fair cross-section of the community.
“From the state’s point of view, the hybrid jury has the advantage of a single voir dire; however such a voir dire will be incrementally more intensive (because more jurors would be needed than are currently used in the typical capital case).”149 This process, while definitely a positive idea, still creates a problem; there is still a single jury evaluating both the guilt phase and penalty phase of a capital trial, albeit, a hybrid jury comprised of a larger number and a better representation, at least in theory, of the community.150 Once again, there is still the issue of jury nullification where a non-death qualified juror will vote not guilty in the guilt phase so as to avoid a sentence of death.
131 Andrea D. Lyon, The Negative Effects of Capital Jury Selection, 80 Ind. U. L.J. 52 (2005).
133 Id. at 53.
134 Sam Kamin and Jeffrey J. Pokorak, Death Qualification and True Bifurcation: Building on the Massachusetts Governor’s Council’s Work, 80 Ind. U. L.J. 131 (2005).
135 Id. at 148.
136 391 U.S. at 528.
137 Kamin and Pokorak, 80 Ind. U. L.J. at 148.
138 Id. at 149.
143 Id. at 150.
149 Id. at 150-151.
150 Id. at 151.