Saturday, Sep 6, 2008
When prosecutors eliminate jurors opposed to capital punishment, they also weed out women and minorities and stack the deck against defendants.
Jan 2, 2001 | Ellen Reasonover found out the hard way that no good deed goes unpunished. When the St. Louis resident approached police with information she thought might help them catch the killer of a gas-station attendant, they arrested her instead, based on highly circumstantial evidence.
Constructing a case against her by relying on the testimony of two jailhouse snitches, the state sought the death penalty. An all-white jury convicted the young black woman, and all but one member of the panel voted to have her executed. Earlier this year, a federal judge threw out her conviction, ruling that the witnesses -- with the knowledge of the prosecutor -- had fabricated their testimony. So after serving 18 years in prison, Reasonover was released.
Reasonover's jury was ready and willing to believe the prosecutor's case at least partly because, as in all capital cases, the jury pool had been carefully, and legally, purged of anyone who had doubts about the death penalty -- a category that conveniently and disproportionately includes African-Americans and women. The very people many experts say are most likely to question prosecutors' arguments and hold to a presumption of innocence -- death-penalty opponents -- had been systematically kept out of the jury box.
A majority of Americans still back the death penalty, but polls have shown a steady erosion in support. A Gallup poll done in February, for example, indicated that 66 percent support it, down from 80 percent in 1984. Moreover, with growing numbers of people exonerated in the past few years after long prison stays, many people are apparently also losing confidence in the integrity and fairness with which it is administered.
The fairness issue became a leitmotif in the presidential campaign. Although both presidential candidates said they supported capital punishment, the media focused on Bush's record of presiding over more executions than any previous Texas governor, including 40 just this year, and on the apparent inequities in the state's judicial system. During the second debate, Bush seemed to grin when discussing the death penalty -- an action that prompted a pointed question from a member of the audience during the third and last debate.
The questions about capital punishment have prompted some states to take some precautionary steps. In Illinois, where more than a dozen death-row inmates have been proven innocent since 1977, the Republican governor, George Ryan, announced a moratorium earlier this year. Other states are studying the issue and facing growing calls for similar moratoria and for automatic access by condemned convicts to DNA testing, which in some cases has conclusively exonerated inmates.
Yet despite this new concern, a major and controversial element of the system is being largely ignored: the right of prosecutors and judges to eliminate, "for cause," any potential jurors who say they might not be willing or able to vote for death during the penalty phase of a murder trial.
Whatever one might think about the death penalty itself, the trouble with screening out death-penalty skeptics -- a process known as "death-qualifying" the jury -- is that it does a lot more than simply eliminate jurors opposed to capital punishment. It makes for juries that tend to be white, male and significantly more likely to convict the person accused of the crime in the first place. In a 1968 landmark study, Hans Zeisel, a law professor at the University of California at Berkeley, found that death-qualifying juries led to an 80 percent increase in the conviction rate.
"When you excuse all the people who are opposed to the death penalty, it's a kind of law-and-order screening device," says Craig Haney, a professor of psychology and sociology at the University of California at Santa Cruz who has been polling jurors and studying jury selection for 35 years. "You end up with a group of people who evaluate evidence a little differently, who are more likely to find evidence to be incriminating, and who generally don't even understand or accept the concept of presumption of innocence."
But proponents of death-qualifying say that if there were no such procedure, nearly every jury would likely include one or more members who would veto any death-penalty conviction, essentially rendering void the capital punishment statutes of 31 states and the federal judicial system. Moreover, they add, defense attorneys get to excuse any potential juror who publicly admits to an inflexible intent to impose death on anyone convicted of murder, regardless of mitigating circumstances or the instructions of a judge.
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