The qualification process itself can become extremely contorted and bizarre. Once potential jurors have expressed opposition to the death penalty, the defense attorney -- seeking to salvage that person for the panel or at least force the prosecutor to use up a peremptory challenge -- often postulates particularly heinous murder scenarios so they will concede that under some extreme circumstances they might indeed consider voting for death.

Take Betty Brown. The 67-year-old black Philadelphia woman was thrown off the panel of prospective jurors in the Abu-Jamal trial after she said she opposed the death penalty. Trying to keep her on the jury panel, a defense attorney asked how she would feel about the death penalty if one of her two sons had been murdered. "'I don't even like to think about something like that happening to my boys,'" she recalls saying. "But I told the judge, 'Killing a murderer wouldn't bring back my son'"

Brown says she thinks it is "simply wrong" for people like her to be excluded from juries for their beliefs. But given her firm opposition to the death penalty, might she have been unable to find the defendant in that capital case guilty? "No, no," she says flatly. "If he's guilty, he's guilty, and I'd say it. And I was willing to serve."

While many potential jurors are kept off panels because of their anti-death-penalty beliefs, Haney reports that some impaneled jurors who are squeamish about imposing the death penalty can end up having their earlier comments thrown back at them during the penalty deliberations.

"A lot of jurors we've interviewed after trials have told us when they'd object to death other jurors would tell them, 'You promised the judge that you'd be willing to impose the death penalty,'" says Haney. "The hypothetical argument that they could conceivably impose death in some particular situation is later treated like a pledge to do it."

Given the inherent problems in death-qualifying juries, why has there been so much focus on possible moratoriums, DNA testing, poor defense lawyering and other factors and so little concern expressed about the very fairness of the jury-selection process?

Probably the main reason is that the Supreme Court has already ruled the matter -- in favor of the prosecution. Before 1968, it was routine for all those opposed to the death penalty to be excluded from juries in capital cases. That year, in Witherspoon vs. Illinois, which dealt specifically with the process of vetting potential jurors for their death-penalty views, the Supreme Court imposed strict limits on how easily they could be excluded.

After hearing about the higher conviction rates found in the Berkeley study and other research, it ruled that only those who absolutely, under no imaginable circumstances, could ever vote for death, could be excluded. The court held that by excluding all death penalty opponents the state had "crossed the line of neutrality" and created "a tribunal organized to return a verdict of death."

But in 1986, a reconstituted high court under Chief Justice William Rehnquist broadened the permissible grounds for excluding jurors. In Wainwright vs. Witt, the court basically granted prosecutors free rein to excuse any potential juror who expressed any qualms at all about imposing the death penalty, since that would "impair the performance of his duties as a juror in accordance with his instructions and his oath." Under this standard, salvaging a juror through "witherspooning" -- getting death-penalty opponents to acknowledge that under particularly heinous circumstances they would vote for death -- has become much tougher.

The high court also made state courts the final arbiters of the fairness of jury selection, making it extremely difficult to obtain federal review of convictions on jury-selection grounds.

"The problem is that once the Supreme Court decides something, Americans have a tendency to assume that it means it is a good thing, not just an allowable thing, so they just stop thinking about it," says South Carolina attorney Bruck. "But in this case, the court didn't say it was a good thing, just that they'd allow it unless more studies came along to show it was a really serious problem."

A major difficulty in addressing the issue is that -- short of eliminating the death penalty -- there's no easy fix. And though some members of Congress would like to reform the death-penalty system at the federal level, a Bush presidency does not augur well for change.

Neither does the composition of the Supreme Court. Even if the courts found the practice to be unconstitutional because it ends up biasing a jury, it could cause monumental nightmares by potentially opening up the door to a new trial for nearly every one of the 3,600 inmates on death row -- not to mention many more who, like Reasonover, received less than capital sentences but were judged by a death-qualified jury.

Nor is simply allowing defendants' attorneys the unfettered right to dismiss death-penalty proponents the answer. Assuming we maintain the death penalty, as is clearly the popular inclination at the moment, that approach would make it difficult to impanel jurors who would convict in capital cases -- a politically untenable solution in death-penalty states.

Some have suggested using unscreened jurors for the guilt phase of a trial and then screening and seating a new panel for the penalty phase. But the new pro-death-penalty jurors would have heard none of the nuances of the trial evidence and would clearly be prejudiced against a defendant already found guilty of the crime.

A modified reform being proposed by some critics, including Haney and Bruck, is to wait until the penalty phase of a trial to death-qualify the jurors; those expressing strong objections to the death penalty could be replaced with alternate jurors who had attended the entire trial. But in order to have enough alternates on hand, there would have to be many more of them than usual to avoid the chance of a mistrial. Given the difficulty courts are already having filling jury boxes, this would be a major challenge.

A third possibility suggested by death-penalty advocate Cassell would be to grant the judge the authority to impose the sentence without a jury's direction, as happens in Colorado and Arizona. But for the most part both sides oppose such a move -- prosecutors because it deprives them of the benefits of death-qualifying, and defenders because they generally would rather bet on convincing at least one juror to vote against death than on having to convince a judge.

The public's opposition to the death penalty is not likely to increase dramatically anytime soon. So unless new studies prove that qualifying juries is so discriminatory that even the current conservative Supreme Court feels compelled to reexamine the issue, we're stuck with a process that is clearly flawed -- and flawed in a way many experts agree increases the likelihood of mistaken convictions and executions.

"Nowadays more people believe in the death penalty, so I don't think there's much chance there will be a change in the way we pick death-penalty case juries," says Haney. "But my philosophy is that you have to keep collecting the data and making the case until some court is willing to look at it again and do something about it."

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