Ten Principles for Individualized Voir Dire on the Death Penalty

The declaration by the United States Supreme Court "death is different" regarding the singular nature of capital cases has dramatically affected the evolution of death penalty litigation. Woodson v North Carolina, 428 U.S. 280 (1976). Every aspect of a death penalty trial is both different and complex, particularly the dynamics of jury selection. In capital cases, most courts allow some form of individualized sequestered voir dire on prospective juror's beliefs concerning the death penalty. Jury questionnaires are not uncommon in these cases, especially the high profile ones. Jurors themselves often express ambivalence about their own views concerning capital punishment. Moreover, years of litigation have further complicated the way the law measures and evaluates if a potential juror is legally qualified or substantially impaired to fulfill the duties and responsibilities necessary to consider the question of whether a fellow human being lives or dies.

In this article, we suggest and explain ten principles that could be of use to the death penalty practitioner who must overcome barriers that prosecutors and judges construct which hinder a fruitful and effective questioning process. We illustrate these principles through examples taken from transcripts of two capital cases. The first one, State of Alabama v. Randal Padgett, involved a retrial of Mr. Padgett who had been on death row for four years for allegedly raping then stabbing his estranged wife forty-six times. The trial judge denied individual sequestered voir dire, but allowed individual voir dire in panels of fourteen. The other case, State of Alabama v. Ardragus Ford, also involved a second trial of a capital defendant who was accused of killing a law enforcement officer in the line and scope of duty. His first case mistried with a hung jury. In the Ford case, the judge permitted individual sequestered voir dire in chambers. In both cases, we relied upon these principles to successfully rehabilitate or challenge jurors. Both cases resulted in acquittals. This discussion is framed by Supreme Court caselaw articulating guidelines to evaluate the qualifications of death penalty jurors.

PERTINENT CASE LAW

The United States Supreme Court allows a jury to be "death qualified." Witherspoon v. Illinois, 391 U.S. 510 (1968), Wainwright v. Witt, 469 U.S. 412 (1985). The Witherspoon/Witt rule permits the State to challenge for cause any potential juror who possesses views on the death penalty that would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Witt, 469 U.S. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). On the other hand, the defense can strike for cause any juror who would automatically vote for the death penalty regardless of the facts and circumstances. "Any juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law. It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so." Morgan v. Illinois, 504 U.S. 719, 735 (1992); Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000).

The Supreme Court in Morgan, supra, stated "any juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law ... It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so." 504 U.S. 719, 735. Further, the Court expressed "a juror's belief that death should be imposed ipso facto upon conviction in a capital offense reflects directly on that individual's ability to follow the law." See also, State v. Ball, 685 P.2d 1055, 1058 (Utah 1984) ("The most characteristic feature of prejudice is its inability to recognize itself. It is unrealistic to expect that any but the most sensitive and thoughtful jurors [frequently those least likely to be biased] will have the personal insight, candor and openness to raise their hands in court and declare themselves biased.") Thus "a trial court must, upon a capital defendant's request, inquire whether a potential juror would automatically impose the death penalty on the defendant's conviction." Fero v. Kirby, 39 F.3d 1462, 1481 (10th Cir. 1994), cert. denied, 515 U. S. 1122 (1995). "Part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U. S. 729. "Inadequacy of voir dire" is a basis for a reversal. Morgan, 504 U.S. at 739.

Like many legal principles, those espoused above are easy to memorize but difficult to apply. The complexity in the ways that perspective jurors think, as well as respond, can be seen by the examples of actual voir dire illustrated below.

CHALLENGES FOR THE DEFENSE
It is against this backdrop of United States Supreme Court litigation that the capital defense practitioner must fight the battles in individual sequestered voir dire relative to the prospective juror's beliefs about the death penalty. Unfortunately, the process favors the prosecution; jurors who conscientiously oppose the death penalty rarely retreat from their position. By contrast, jurors who initially say they would vote for the death penalty for anyone convicted of murder can often be easily rehabilitated by prosecutors soliciting assurances that they can be fair and follow the law, regardless of their beliefs. Also, in minority communities, there has historically been a higher percentage of individuals against capital punishment, resulting in the exclusion of a higher percentage of minority jurors.

Accordingly, the capital defense lawyer should consider a number of questioning paths to expose the fixed opinions of the truly biased juror for the death penalty, as well as to attempt to rehabilitate those jurors who express strong opinions against it. Each prospective juror presented for potential challenge is worth fighting for; every juror the defense successfully rehabilitates results in another peremptory strike by the prosecutor and every juror the defense successfully challenges under Morgan represents one less peremptory strike to expend. When it comes to the punishment phase, the vote of one or two jurors will often be the deciding factor between life and death.

Another defense challenge evolves from the concept of questioning jurors about punishment before there is any finding of guilt. In the Padgett case, the Court granted our request to instruct the jury not to infer guilt in any way from the process. The prospective jurors also heard it from us.

Mr. Jaffe: Ladies and gentlemen, Mr. Drennan [co-counsel] has asked me to remind you that we are required to ask questions about the death penalty. And the Judge [has been] kind enough to read an instruction to you that we have to ask from the defendant's point of view; they have to ask. And while asking, we certainly do not in any way mean for you to think that Mr. Padgett will be found guilty. We have to ask these questions now in case it ever gets there. We certainly don't mean for you to think that we think Mr. Padgett is guilty. I want to make that real clear. We just have to ask these questions if we ever get there. The sentencing, it's putting the cart before the horse, but we have to ask that. (Padgett, TR. 29)

IDENTIFICATION OF POTENTIAL JURORS

It is essential in the jury selection process to identify the mind-sets of the prospective jurors. Therefore, it is crucial that before questioning any juror in sequestered voir dire that she be asked about her feelings about the death penalty, how strong they are and the basis for them. One method to aid identification is a ranking system. By ranking potential jurors based upon the strength of their feelings about the death penalty, the lawyer can identify those jurors (not struck for cause) upon which to exercise a preemptory strike. In addition, a ranking system helps to protect against reverse Batson challenges. David Wymore of the Colorado State Public Defender's Office has developed an excellent system. It ranks jurors, using a scale of 1 to 7, in terms of their feelings on the death penalty.

Also, we should convey that the decision concerning the death penalty is not a group decision, but an individual moral decision; and decisions and thought processes must be respected at all times during the deliberation. Finally, each perspective juror should know that it would not be tolerable for any juror to berate, criticize or disrespect the position of any other juror.

QUESTIONING THE ANTI-DEATH PENALTY JUROR

The simple truth is that it will be the exception when we can successfully rehabilitate the prospective juror who initially states that he or she is irrevocably and/or conscientiously opposed to the death penalty. When attempting to rehabilitate, we should first inform the juror that it is not necessary, nor even possible, to make the decision then and there. She has not yet heard the evidence nor the mitigating and aggravating circumstances that may be presented in the event of a conviction. The law requires only that she be willing to consider both forms of punishment at the appropriate time. If a prospective juror is truly conscientiously opposed to the death penalty under all circumstances, she will not be rehabilitated. However, if she believes that the death penalty is simply an undesirable form of punishment, she may potentially be rehabilitated. If a potential juror perceives a place for capital punishment but would rather not personally participate in its administration, she, too, may be rehabilitated. On rare occasions, testing her views against extremely horrific cases or scenarios may cause the prospective juror to agree to consider both forms of punishment.

QUESTIONING THE AUTOMATIC DEATH PENALTY JUROR

Some jurors believe that death is the only appropriate punishment for anyone convicted of murder, defined in most jurisdictions as an intentional killing without legal justification or excuse. The task of the capital defense lawyer is to expose any prospective juror who would always vote for the death penalty under such circumstances. If we ask appropriate and skillful questions, a number of jurors will admit these beliefs.

We cannot give up when a prospective juror, upon questioning by the prosecutor, reverses her position and states that she could be fair, follow the law, and put aside personal opinions after having previously expressed views of automatic death for intentional killings. The true feelings of the juror, and the true positions belied by the surface answers, must be exposed. We should clarify to the prospective juror that answers to these questions have nothing to do with being fair or whether she can follow the court's instructions. We must pose questions so as to leave no room for any other position than that which the prospective juror initially maintained.

TEN PRINCIPLES

The following represent ten general principles for maximizing the sometimes restrictive voir dire afforded counsel in death penalty cases. Number 10 is applicable only to Morgan inquiries. The ten principles are as follow:

(1) Listen to what the jurors are really saying.

(2) Let them know you hear them.

(3) Show that you respect their position.

(4) Find out the basis for their position.

(5) Reward candor.

(6) Explain that there is no wrong answer.

(7) Make them confront their own principles.

(8) Commit the jurors to their position.

(9) Close all gaps in their position.

(10) Rule out self-defense, accident, insanity.

(1) Listen to what the jurors are really saying.

Psychologists have been saying for years that only a small percentage (less than 10%) of communication results from the actual words stated in verbal communication. The other ninety-plus percent comes from body language; facial expressions; and the voices' tone, volume, speed and inflection. Therefore, for us to understand and perceive what jurors are actually trying to say, we must hone our listening skills to uncover an unstated philosophical belief or position which may be deeply held, and even vigorously defended, when questioned. We need to focus carefully on what the potential juror's words really mean. In the following example taken from the 1997 trial of State of Alabama v. Padgett, Prospective Juror G initially expresses open-mindedness:

Prospective Juror G: I could consider both alternatives but I have to look at the situation and all of the evidence. (TR. 22)

Prospective Juror G had already answered, in a jury questionnaire, that he strongly supports the death penalty. He is actually expressing only his desire to be open-minded. However, his support for the death penalty is so historically overwhelming, that if presented with strong evidence of conviction, he would never consider any other alternative but death. In addition, when he says "all of the evidence," he is more than likely alluding to evidence of guilt, not the type of evidence that he would be forced to listen to at the penalty phase. Accordingly, it is necessary that we (7) make them confront their own principles (8) commit the jurors to their position and (9) close all gaps in their position.

Mr. Jaffe: Okay. I would like you to assume that the victim was an innocent person at their home, and the person that killed her intentionally did it. Raped her. Could you consider any other punishment ... other than death?

Prospective Juror G: No.

...................

Mr. Jaffe: ... And, again, that is ingrained in you too, isn't it?

Prospective Juror G: Yes, sir.

Mr. Jaffe: And you're clear on that?

Prospective Juror G: Yes.

Mr. Jaffe: No doubt in your mind?

Prospective Juror G: No.

Mr. Jaffe: And this is not something you've thought about for the first time? You've been a pro- - been a very pro death penalty person for a long time?

Prospective Juror G: Yes. (TR. 22-23)

Similarly, another prospective juror stated, " ... I am unfamiliar with the case. ... I'll just have to look at both sides before I make up my mind." However, he understood that he would face the issue of punishment if, and only if, the defendant was convicted of murder, the juror quickly stated, "If it's done through malice then I'll have to go the other way." (TR. 25) This prospective juror would consider both sides only in the context of guilt. Once guilt was established, to him there could only be one side. This juror was, in fact, excused under Morgan.

As can be seen from the responses of Prospective Juror G, he says one thing but actually means another. For the sake of judicial economy and expediency, judges will quickly accept the juror's words at face value. Prosecutors, too, for obviously self-serving reasons, resoundingly take the position that no further inquiry need be made to prospective jurors once they state they would not make up their mind until they look at "all the evidence" or "both sides." These answers contain meaning only if the prospective jurors understand the bifurcated process of consideration of guilt before punishment. Even after hearing the usually cryptic explanation of the process, some prospective jurors still do not fully comprehend it. Accordingly, we must frame questions that clarify the inquiry and focus entirely upon whether the prospective juror can consider any punishment but death for someone who intentionally, without legal justification, takes the life of another person. It is only when we carefully listen to what is said and meant, that we can question them in a manner that clarifies the questioning process, so that their answers will be linked to the inquiry.

The same principles apply to questioning anti-death penalty jurors in an attempt to rehabilitate them. Prospective Juror F, in another death penalty trial, State of Alabama v. Ford, responds as follows when questioned about her beliefs in the death penalty:

Prospective Juror F: I believe God judges. I believe, you know, if you do a crime you gotta pay for it, but I don't believe in me personally being the one to put them up to death, I don't believe in that.

...................

Prospective Juror F: ... You know, I have to think about myself and my feelings, and I don't, me, personally, I don't want to be the one who has to put somebody to death; you know, my vote being - - you know, I have to put somebody to death for something they did. No, I don't want to do that. (TR. 3,4)

Although Prospective Juror F, in other portions of her voir dire, expresses strong anti-death penalty views, taken in context, what is she really saying? Careful listening reveals a very strong pro-law enforcement leaning. " ... [I]f you do a crime you gotta pay for it ... ." This strong pro-law enforcement stance is evident not only in her words but in the manner she expresses her conviction. Prospective Juror F also says she doesn't believe in her personal participation in the death penalty. These two statements taken together indicate that she is equivocal about the death penalty, to the extent that she has a very strong competing belief that people who commit criminal acts must be held accountable. By carefully listening, we formulate questions and receive answers that keep her from being successfully challenged for cause by the prosecution.

(2) Let them know you hear them.

(3) Show that you respect their position.

Unquestionably, the more comfortable the lawyer is when questioning prospective jurors, the more comfortable the jurors become. Many do not want to be there, and most are extremely uncomfortable with interacting in large groups. Whether we admit it or not, lawyers pry into their personal lives, especially in death penalty cases. We inquire into many deep-seated beliefs or beliefs that bring discomfort to the extent they are ambivalent. The measure of our success then depends in large part on our ability to draw these prospective jurors out by disarming or relaxing them, as well as by motivating them to come out of their shells and disclose personal and sometimes private information. The following examples also came from the 1999 capital murder trial of State of Alabama v. Ford. We attempt to rehabilitate the following prospective jurors after they express what appear to be strong anti-death penalty positions:

Prosecutor: ... Let's suppose you're that juror and you're sitting there and you've concluded that under the law and the facts of the case that death is the appropriate punishment. Could you vote for death?

Prospective Juror F: Nope.

Prosecutor: Not ever? I'm not talking about necessarily this case. Any case.

Prospective Juror F: I just don't want no part of that.

...................

Prosecutor: What if you were a juror in the Jeffery Dahmer's case? Do you remember him?

Prospective Juror F: ... I just say he should have gotten life in prison, and let God judge him. ... (TR. 5-6)

It appears Prospective Juror F, while voicing general objections to the death penalty, is not so substantially impaired to be beyond rehabilitation. Accordingly, we question the juror in a manner that causes her to confront her refusal to take personal responsibility:

Mr. Jaffe: Okay. Anarchy means that we've got no society, we've got no order, we have no way to enforce the law. Okay? You with me?

Prospective Juror F: I'm with you.

Mr. Jaffe: All right. You wouldn't want to live in a society where there's anarchy, would you?

Prospective Juror F: No. Nobody would.

Mr. Jaffe: Exactly. And so, in order to have a society that's the opposite of anarchy, which means an orderly society, sometimes we as citizens have to do things that we just don't want to do. Would you agree with that?

Prospective Juror F: I agree with that.

Mr. Jaffe: If everybody took the position that you took, then we wouldn't be able to try this case. You understand that? Because nobody would be qualified to sit as jurors.

Prospective Juror F: Yeah, I understand.

...................

Mr. Jaffe: ... [The prosecutor] just told you that he doesn't want to be here, and I don't want to be here, nobody wants to be here. Because we're taking oaths, we're doing our civic duty; we don't want anarchy, we want a society that's safe. Okay?

Prospective Juror F: Okay.

Mr. Jaffe: And the death penalty is something that the legislature, the Alabama Supreme Court, United States Supreme Court, said is legal. And even though uncomfortable, distasteful, maybe even wrong, but it is the law. You understand that?

Prospective Juror F: I understand.

...................

Mr. Jaffe: ... And then the judge is not going to tell you, "Well you've got to vote one way or the other," all he's going to say is, "You have to consider both before you vote." The operative word that I said was "consider." If the judge told you that the law was that you had to consider both aggravating circumstances, that is, all kinds of circumstances that might indicate that death was the right sentence, and all kinds of mitigating circumstances indicate that life without parole is the right sentence, would you consider both and follow the law as instructed by [the] judge?

Prospective Juror F: Yes, I would consider it. (TR. 8-11)

In the above example, Prospective Juror F equivocates between her personal moral responsibility to participate in a democratic system and her discomfort with the idea of capital punishment. In this instance, the questioning exposes her conflicting principles. Yet she is shown respect for her position.

In that same case, another prospective juror seems equally predisposed but expresses similar ambiguity:

Prosecutor: ... I think what you're telling me is that you would not, I guess, ever vote to impose the death penalty if you were a juror.

Prospective Juror C-N: No, I wouldn't.

Prosecutor: Never?

Prospective Juror C-N: Never. Maybe if you'd asked me this a year ago ... (TR. 39)

Prosecutor: What about Jeffery Dahmer?

Prospective Juror C-N: No. He has a soul, too. ... (TR. 40)

Although apparently predisposed against capital punishment, this prospective juror indicates that a year ago she underwent a religious conversion. Prior to that, she was for capital punishment. We examine her further:

Mr. Jaffe: ... What are your thoughts on war, defending the United States of America?

Prospective Juror C-N: Personally, I don't believe that we should be at war, but, you know, it does happen. I mean, I personally don't have any control over it. I would not like to be a participant in it.

Mr. Jaffe: Would that be the same thing, also, that you certainly would not like to be on a jury in a case involving the death penalty? That'd be fair, wouldn't it?

Prospective Juror C-N: Basically. I mean, if it came to that, I couldn't sit here and tell you that I would vote for the death penalty, I can't say that.

Mr. Jaffe: Right. And would it be fair to say that you can't say that you would or wouldn't? You don't know, because you haven't heard all the evidence and circumstances, have you?

Prospective Juror C-N: I just find it hard to believe that I would say yes to the death penalty.

Mr. Jaffe: But you haven't ever been in that situation.

Prospective Juror C-N: No, I've never been in that situation. (TR.41-42)

At this point, we are raising with this prospective juror the logical extension of what would occur if everyone took her position - in other words, who would defend democratic principles and whose responsibility is it? However, the questioning continues in a gentle, non-threatening manner through a soft voice and considerable eye contact that implies a non-judgmental framework on the part of the questioner. Also, we asked her to implicitly link her position on juror participation to the defense of a democratic society in general. Concurrently we ask questions in a manner to build rapport by letting her know that we hear, understand and respect her position. We acknowledge that these are difficult questions to ask of people who suddenly find themselves in her position.

Mr. Jaffe: But is does sound like to me that you understand the value of living in a society in which the laws are enforced for the protection of all human beings. Correct?

Prospective Juror C-N: Yes.

Mr. Jaffe: And as unpleasant as it is, laws can't be enforced to protect society without the good, honest dedications of societies' members; correct?

Prospective Juror C-N: Correct.

Mr. Jaffe: And sometimes we've got to do thing we really don't want to do for the protection of all of us. ...

Prospective Juror C-N: That's true.

Mr. Jaffe: Old folks like me. And my family and your family. So as unpleasant as it would be, if called upon to serve on a jury in which the basic issues involve around the protection of society, because we can't have a society without police officers that protect us; right?

Prospective Juror C-N: That's true.

Mr. Jaffe: And if someone kills a police officer or deputy sheriff, then, under certain circumstances, they deserve the most severe punishment, because society needs protection; correct?

Prospective Juror C-N: That's true. (TR. 42-44)

Mr. Jaffe: So if called upon, even though it'd be unpleasant for you, you'd still do your duty and listen to the judge's instructions and follow the law as best you could, wouldn't you?

Prospective Juror C-N: As best I could. (TR. 44)

Again, as can be seen from the above colloquy, a rapport is established and maintained with the prospective juror. The prospective juror's ambiguity is clear in her answers. When she recognizes that her conscientious objection to the death penalty conflicts with her desire to participate in the democratic process - the jury system - she realizes that she could consider both forms of punishment. It is only through listening carefully and encouraging her to reveal her ambiguity, while acknowledging and respecting her position, that we successfully rehabilitate her.

(4) Find out the basis for their position.

(5)Reward candor.

(6)Explain that there is no wrong answer.

It is especially important when attempting to challenge jurors for cause under Morgan that we find out the basis for their pro-death penalty position. This requires someone - the judge, the prosecutor or the defense attorney - to ask open-ended questions designed to get the juror to reveal the "whys" and "wherefores" of her pro-death penalty position. Also, the jurors need to know that the only wrong answer is an untruthful one, and that the judge and all the lawyers are only interested in absolute candor. Whenever possible, we must encourage and motivate these jurors to open up as to where they stand on this life or death issue.

In the panel of fourteen during the Padgett voir dire, we begin questioning one juror who we know had stated a firm anti-death penalty position. During questioning, we, in effect, reward her for being candid by acknowledging the courage it takes to be honest.

As soon as that exchange occurs, another prospective juror immediately realizes that it is okay to be candid, open and honest with her feelings which are very much against the death penalty.

Mr. Jaffe: ... I'm not even going to ask you. Because you're clear that you could only consider life without parole, would that be fair?

Prospective Juror L: Not the death penalty.

Mr. Jaffe: Would that be fair?

Prospective Juror L: Yes, sir.

Mr. Jaffe: That's who you are?

Prospective Juror L: That's who I am.

...................

Mr. Jaffe: (Speaking to all fourteen.) And, if that's where you are on either side, tell us. We'll accept that. ... this is potentially a life or death situation. And it involves a lot on both sides. It really does. ... And y'all are great to tell us candidly how you feel, what you can do and what you can't do. Be who you are. That's all we want. Appreciate it. Ma'am?

Prospective Juror H: No, I could not consider [a life sentence].

Mr. Jaffe: ... That's something you're sure of.

Prospective Juror H: That's the way I feel.

...................

Mr. Jaffe: ... would that be no matter what the circumstances are, is it just something you couldn't consider?

Prospective Juror H: I don't believe so. (TR.20-22)

Relative to the above, the other jurors hear the acceptance of Juror L's belief as well as the respect for it. We also reward her for her candor. When jurors begin to realize that there is no wrong answer and that the truth is what everyone is seeking, they begin to open up and freely talk about the basis of their positions, as well as the extent and strength of their views. The trial judge ultimately struck several for cause when it became clear that they would always vote for the death penalty whenever an intentional killing was proven beyond a reasonable doubt.

(7) Commit the jurors to their position.

(8) Close all gaps in their positions.

Whether we question a prospective juror in an attempt to rehabilitate her under Witherspoon/Witt or strike her under Morgan, we must be able to successfully commit the juror to her position, then close all gaps during the questioning process.

When a prospective juror answers, "I would try" or "I would do the best that I could," she has not revealed whether she is capable of considering both forms of punishment. In other words, those answers reveal nothing. It then becomes incumbent on us, to the extent that we are allowed, to delve more deeply and obtain an answer that truly reflects the juror's beliefs. And then after obtaining that answer, we need to seal in their position so that, in essence, it is concrete.

Prospective Juror M: Yes, sir, I could. I mean, you know - -

Mr. Jaffe: This is a hard question.

Prospective Juror M: Yeah. Yeah, I could consider both. Life without parole - -

Mr. Jaffe: Could you consider voting for life without parole for someone who has intentionally taken the life of another person, raped them and burglarized them? Could you do that?

Prospective Juror M: That particular incident, I would have to go with the death penalty.

Mr. Jaffe: Is that pretty ingrained?

Prospective Juror M: Yes.

Mr. Jaffe: Regardless of what - - regardless of the childhood, regardless of what happened to him, it's just the death penalty, like Mr. H. who said that if he killed someone else, intentionally killed somebody else during the course of a robbery or a rape?

Prospective Juror M: Yeah. I would have to say the death penalty, yeah. I would have to go with the death penalty.

Mr. Jaffe: Appreciate your candor. (Padgett TR.42-43)

In that same panel of fourteen jurors in the Padgett case, Prospective Juror K had previously answered that she could follow the law and the judge's instructions, keep an open mind and consider both forms of punishment. However, on her jury questionnaire, she had stated that the basis for her belief in capital punishment was imbedded in Biblical scripture. Still, she was not technically disqualifiable under Morgan insofar as she seemed to indicate that she could put her beliefs aside. Accordingly, the gap was closed and she was committed to her position as follows:

(To the panel of fourteen)

Mr. Jaffe: ... But the question I have for you is, you still have to get past the fact that you've already found him guilty of intentional murder .... That's what you have to get past before you can then consider the other factors that might have influenced this person. My question to you is, Mrs. K, I think that I wrote down that [you believe] an eye for an eye.

Prospective Juror K: Yes. That's what the Bible says.

Mr. Jaffe: Right. And that translation of the Bible is literal and one that's in your heart and soul?

Prospective Juror K: I believe if you take a life, then you should lay your[s] down. It wouldn't be hard for me to do that.

Mr. Jaffe: Certainly. And as a result of that I take it that you would follow that literal script to the letter?

Prospective Juror K: Yeah, I would try.

Mr. Jaffe: And that if a person had intentionally killed another person during a rape or a robbery that you would vote for the death penalty?

Prospective Juror K: Right.

Mr. Jaffe: You'd follow that scripture regardless of what other law there might be.

Prospective Juror K: Well, I would go with the law, but God is my judge.

Mr. Jaffe: Exactly. Right. So if the scripture tells you an eye for an eye, you're going to follow that?

Prospective Juror K: Right.

Mr. Jaffe: Regardless of what the other circumstances there might be?

Prospective Juror K: Right. Because my God has more power than this whole court. (Padgett TR. 48-49)

Even Prospective Juror K, who is an extremely strong proponent of capital punishment, still wants to say, and did say, that she would follow the law as the judge instructed. However, as is seen from her follow-up answers, she is completely incapable of doing so. Further questioning closes all gaps and commits her to that position.

(10) Rule out self-defense, accident, insanity.

A number of automatic death penalty potential jurors are still unwilling to state that they would always impose the death penalty for murder because they remain focused on extenuating circumstances such as self-defense, insanity or accident. Even though the jurors have heard the judge say "intentional killing," they do not know what intentional means, at least legally. We must clarify to these potential jurors that an intentional killing precludes that the defendant was legally insane, acted in self-defense or accidentally killed the victim. We also must stress that before they can consider the question of punishment, jurors must already be satisfied beyond a reasonable doubt that the killing was intentional. Confusion often arises when the prospective juror fails to conceive that the punishment stage represents a separate trial in which they will decide solely whether the aggravating factors outweigh the mitigating ones. The intentional killing has already been proven.

Many prospective jurors walk into the jury room having never been exposed to the legal distinction between simple murder and capital murder. They never knew that the death penalty only applies to an intentional killing coupled with an aggravator. They are often surprised to hear that an intentional killing, in and of itself, is not a death penalty case. It is not surprising then that these prospective jurors would be confused upon hearing for the first time that an intentional killing without aggravators is not sufficient for death penalty consideration. We need to identify those jurors and clear up any confusion in the process. As long as they remain confused, we will not be able to obtain accurate information from them. In the examples below, we question the prospective jurors by acknowledging the difficulties they are experiencing during, and because of, the questioning process.

Prospective Juror M: Yes, sir, I could [consider both]

Mr. Jaffe: This is a hard question.

Prospective Juror M: Yeah. Yeah, I could consider both. Life without parole -

Mr. Jaffe: Could you consider voting for life without parole for someone who has intentionally taken the life of another person ...

Prospective Juror M: That particular incident, I would have to go with the death penalty.

Mr. Jaffe: Is that pretty much ingrained?

Prospective Juror M: Yes. (Padgett, TR. 42-43)

Another example can be seen from the colloquy with Juror R:

Mr. Jaffe: ... Okay. Is that because of the literal translation of the Bible, an eye for an eye and a tooth for a tooth?

Prospective Juror R: More or less, yeah.

Mr. Jaffe: Okay. I appreciate you telling us because that's what this is all about, is being candid and telling us where you are. Because that's what we all deserve to know, the State -

Prospective Juror R: Intentionally does mean without reason -

Mr. Jaffe: Absolutely.

Prospective Juror R: No reason whatsoever.

Mr. Jaffe: Intentionally means that it was an intentional thing. That was the design, the plan.

Prospective Juror R: Right.

Mr. Jaffe: In that case you couldn't consider anything but the death penalty?

Prospective Juror R: That's right.

Mr. Jaffe: That's clear to you?

Prospective Juror R: It's clear.

Mr. Jaffe: No question about it?

Prospective Juror R: No. (TR. 57-58)

Immediately after that exchange, Prospective Juror S states as follows:

Mr. Jaffe: It's a tough question.

Prospective Juror S: It is a tough question. And if the evidence - - in my opinion if the evidence was strong enough that this person that had killed somebody in premeditation, I would have a problem of life. I would have a problem with that.

Mr. Jaffe: Let me see if I heard you. I want to make sure. If I understood what you said, you would have a problem in giving any other sentence other than the death penalty?

Prospective Juror S: Yes, sir.

...................

Mr. Jaffe: Give me your thoughts on that. ...

Prospective Juror S: That's the way I feel in my heart. (TR. 66)

As can be seen from the above examples, once prospective jurors realize there is no wrong answer, there is value in being candid, and they are not confused as to any extenuating circumstances, they can then confront their principles and deep-seated beliefs about the death penalty and be challenged via Morgan. It is important, however, that the juror's position be clarified, not only to the lawyers and the judge during the questioning process, but sometimes to themselves.

CONCLUSION
While the jury selection process varies among the states, the United States Supreme Court has provided standards for the qualification of jurors to serve in death penalty cases. It is the goal of the attorney to obtain as much individual sequestered voir dire as possible. During that process, we must learn to ask open-ended questions so that we can identify those jurors whom we can effectively challenge for cause. We must learn the techniques that will enable us to challenge for cause those who would automatically vote for death in any intentional killing. We must learn effective methods of "saving" from state challenge those jurors who have strong feelings against the death penalty. And we must identify those jurors who are appropriate for preemptory strike. Finally, when permissible, we must educate jurors as to their rights to be free from harassment and disrespect so that they can exercise their individual judgment, regardless of the group dynamics.

Reprinted by permission of The Champion Magazine, January/February 2001.

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