Capital Jury Project Findings &Their Application

http://www.albany.edu/scj/13194.php

http://www.lawschool.cornell.edu/research/death-penalty-project/index.cfm

Marla Sandys

msandys@indiana.edu

What is the CJP? A continuing program of research on the

decision-making of capital jurors

Initiated in 1991 by consortium of university-based researchers

Funded by the National Science Foundation: independent federal agency created by Congress in 1950 “to promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense…”

3

How/why did the CJP get started?

Lockhart v. McCree, 476 U.S. 162, 171 (1986)

– All three of the [Post-Witherspoon death qualification] studies were based on the responses of individuals randomly selected from some segment of the population, but who were not actual jurors sworn under oath to apply the law to the facts of an actual case involving the fate of an actual capital defendant. We have serious doubts about the value of these studies in predicting the behavior of actual jurors. (footnote omitted)

McCleskey v. Kemp, 481 U.S. 279, 292-293 (1987):

Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study

Findings based on 3-4+ hour in-depth interviews

The interviews chronicle the jurors’ experiences and decision-making over the course of the entire trial

6

Capital Jury Project (CJPI) Sample

14 States– Type of Statute (Narrowing, Balancing, Special

Questions)– Region (Mid-Atlantic, Midwest, Southwest, and South)

353 Capital Murder Trials– 207 (58.8%) Death, 146 (41.2%) Life

1,198 Jurors– Randomly Selected Within Trials

6

Sample(s) to-date CJPI: 1991-1999

CJPII

CJPIII: 2007-2012 (2014)157 jurors 35 trials ~8 states (3 completed – TX,

DE, IN)

Final CJPI DatasetState # of Jurors # of Trials

AL 59 20

CA 148 35

FL 117 30

GA 77 25

IN 101 32

KY 113 31

LA 30 10

MO 61 19

NC 83 26

PA 78 29

SC 114 31

TN 49 15

TX 120 38

VA TOTAL

471,198

12353

Major Findings of the CJP(“Singularly Agonizing” and Seven Deadly Sins motion)

Premature Sentencing Decisions Jury Selection Bias –ADPs Failure to Understand/Follow Sentencing

Instructions Erroneous Belief that Death is Required Underestimation of non-death Alternative Evasion of Responsibility for Sentencing

Decision Racial Influence on Juror Decision-Making

Premature Sentencing Decisions

11

Instrument QuestionAfter the jury found (DEF) ______ guilty of capital

murder but before you heard any evidence or testimony about what the punishment should be, did you then think (DEF) _____ should be given . . .

___ a death sentence___ a life (OR THE ALTERNATIVE) sentence___ undecided

(IF A DEATH OR A LIFE SENTENCE,) a. How strongly did you think so?___ absolutely convinced___ pretty sure___ not too sure

Source: Capital Jury Project Survey Instrument, IIIB-12

11

12

Percentage of Capital Jurors Taking Each Stand on Punishment Before Sentencing Stage of the Trial in 13 States

States Death Life Undecided No. of Jurors Alabama 21.2 32.7 46.2 52 California 26.1 16.2 57.7 142 Florida 24.8 23.1 52.1 117 Georgia 31.8 28.8 39.4 66 Indiana 31.3 17.7 51.0 96 Kentucky 34.3 23.1 42.6 108 Missouri 28.8 16.9 54.2 59 North Carolina 29.2 13.9 56.9 72 Pennsylvania 33.8 18.9 47.3 74 South Carolina 33.3 14.4 52.3 111 Tennessee 34.8 13.0 52.2 46 Texas 37.5 10.8 51.7 120 Virginia 17.8 31.1 51.1 45 All States 30.3% 18.9% 50.8% 1,135 Source: Bowers, William J. and Wanda D. Foglia (2003). "Still Singularly Agonizing: Law's Failure to Purge Arbitariness from Capital Sentencing." Criminal Law Bulletin 39:51-86 . Table 1

12

Certainty of Early Decision

Death LifeAbsolutely convinced 67% 60%

Pretty sure 29% 34%

Not too sure 2% 5%

14

Source: Bowers, William J., Marla Sandys, Benjamin Steiner (1998). “Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decision Making.” Cornell Law Review 83:1476.

Reasons for Early Pro-Death

Convincing proof of guilt:FL: When I was convinced he was guilty,

when we were going through the hard evidence

TX: Uh, before we actually voted, before we went in there I was pretty sure, I mean, I was absolutely sure, because I truly believe in what the Bible says and I think I told them this when they chose me.

Gruesome nature of the crime:

MO: Um, I’d say probably right when the prosecutor made the statement, she was stabbed 22 times

SC: When they started to talk about the brutality of the crime.

Physical evidence, especially photographs or videotapes:

KY: After I saw picture and hair and semen analysis

NC: when we saw pictures of this woman’s body, burned… where her feet were burned off… Horrible, horrible pictures of this – That convinced me

CA: Just sitting there watching (the store monitoring videotape). I’ve seen a lot (of) stuff, but I never… Even Arnold Schwarzenegger movies didn’t affect me like that, you know? This wasn’t make-believe, watching that videotape. That videotape was very powerful.

Reasons for Early Pro-Life

Questions about the DEF’s role in or responsibility for the crime:

“I didn’t think about it too much during guilt, but just that I had such serious questions about the degree of murder. It was clear to me that this was not something for the death sentence” (CA juror).

“During the trial, forensic scientists described how the person was shot. I thought it was more he was scared, shot the guy accidentally” (AL juror).

“… when we were deciding guilt in the jury room because the codefendants plea bargained, there were too many people involved and it wasn’t a Ted Bundy type of thing” (FL juror)

DEF’s background/character…

“the boy had a rough life. To me, it would not be right to kill him because of his family, his peers’ actions” (KY juror)

“After all the evidence of his abusive upbringing was brought out” (SC juror)

When facts were presented of his condition mentally and not being physically capable of being in society (AL )

21

Implications Jurors who make a premature decision in favor

of a death sentence are significantly (Brewer, 2005) less receptive to mitigation evidence during penalty-phase deliberations

Jurors who took a premature stance for death were more likely – to think death was the only acceptable

punishment,– to express stronger support for the death penalty, – to believe the defendant was guilty, and – to have inappropriate discussions during guilt

deliberations.

21

Jury Selection Bias - ADPs

23

Instrument QuestionDo you feel that the death penalty is the only acceptable punishment, an unacceptable punishment, or sometimes acceptable as punishment for the following specific kinds of murder and other crimes?

1 only acceptable 2 unacceptable 3 sometimes acceptable

___ a planned, premeditated murder___ a killing that occurs during another crime___ murders in which more than one victim is killed___ murder by someone previously convicted of murder___ murder by a drug dealer___ killing of a police officer or prison guard

Source: Capital Jury Project Survey Instrument, VIII-4

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24

Percentages of Jurors Considering Death the Only Acceptable Punishment for Six Types of Murder by State

Source: Bowers, William J. and Wanda D. Foglia (2003). "Still Singularly Agonizing: Law's Failure to Purge Arbitariness from Capital Sentencing." Criminal Law Bulletin 39:51-86 . Table 2

States

By defendant with prior murder conviction

Planned premeditated murder

Murder with multiple victims

Killing police/ prison guard

Murder by drug dealer

Murder during another crime N

Alabama 66.7 54.4 57.9 37.5 46.4 36.8 56 California 58.6 41.4 41.1 41.4 33.6 17.8 151 Florida 77.6 64.1 62.1 51.3 52.6 19.7 115 Georgia 70.8 54.8 46.6 51.4 47.2 23.6 72 Indiana 74.7 54.5 55.6 44.4 52.5 23.2 99 Kentucky 71.2 56.7 50.5 46.6 48.5 18.1 103 Missouri 75.4 54.1 52.5 45.9 38.3 19.7 61 North Carolina 73.8 68.8 55.0 58.8 45.0 21.5 79 Pennsylvania 71.8 65.4 62.8 55.1 47.4 28.2 78 South Carolina 76.3 61.4 54.4 43.0 49.1 26.5 113 Tennessee 78.3 67.4 58.7 54.3 43.5 30.4 46 Texas 76.9 57.3 59.5 58.6 48.7 35.3 116 Virginia 55.6 46.7 40.0 48.9 42.2 15.6 45

All States 71.6% 57.1% 53.7% 48.9% 46.2% 24.2% 1,164

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Kentucky CJP jurors ONLY

Ability To Detect Automatic Death Penalty Voters (ADPs)

Morgan ADPs

If you were sure, beyond a reasonable doubt, the defendant was guilty of a crime for which s/he could receive the death penalty, would you be able to consider a sentence of less than death? (KY only)

Percent

#

Yes 79 52

No 21 14

Traditional vs. Latent ADPs

Narrative

Account

Morgan ?

Non-ADP

ADP Not enough info

Total Number

Non-ADP

19 12 21 52

ADP 3 8 3 14

Traditional ADPs

“There was nothing, once I decided he was guilty, I didn’t need to hear any more evidence”

“you wouldn’t have changed my mind” (after certainty of death at guilt stage)

“he was guilty of a hideous crime and he wasn’t going to make any[thing] in his life”

Latent ADPs

“the actual crime itself… the murder. It was premeditated and it wasn’t an act of self-defense or temporary insanity”

“… we didn’t think that he just lost control of his temper… he thought about it before he did it and it was somewhat planned”

Mitigation Impairment

Traditional ADP there were two that just

felt like [defendant’s abuse] had a big factor in the person that he was. But then the rest of us said that there comes a time in everybody’s life when you have to take care of your own responsibilities and you know right from wrong, and we just thought that he did

Latent ADP

“it boils down to the crime, the act, the appropriate punishment for the act of the crime. Not on yesterday and not on what could happen tomorrow. Just boom, boom, there, there, and that’s it. I can’t picture anything else.”

Process Effect(Haney, 1984)

3131

Haney (1984a)

(1 of 2)

32

(2 of 2)

33

Haney (1984)

Implications

Individuals who would be death qualified are significantly different than excludables as they are

– More conviction prone Less supportive of due process More prosecution oriented

– More punishment prone See fewer problems with death

penalty Less likely to see evidence as

mitigating More likely to see evidence as

aggravating

ADPs continue to serve AND having jurors sit through numerous panels of voir dire => process effect

Failure to Understand Instructions

36

Among factors in favor of a life or lesser sentence, could the jury consider . . .

___ any mitigating factor that made the crime not as bad

___ only a specific list of mitigating factors mentioned by the judge

___ (DON'T KNOW)

Source: Capital Jury Project Survey Instrument, V-6

Instrument Question

36

37

For a factor in favor of a life or lesser sentence to be considered, did . . .

___ all jurors have to agree on that factor___ jurors did not have to agree unanimously

on that factor ___ (DON'T KNOW)

Source: Capital Jury Project Survey Instrument, V-8

Instrument Question

37

38

For a factor in favor of a life or lesser sentence to be considered, did it have to be . . .

___ proved beyond a reasonable doubt ___ proved by a preponderance of the

evidence___ proved only to a juror's personal

satisfaction___ (DON'T KNOW)

Source: Capital Jury Project Survey Instrument, V-7

Instrument Question

38

39

For a factor in favor of a death sentence to be considered, did it have to be . . .

___ proved beyond a reasonable doubt ___ proved by a preponderance of the

evidence proved only to a juror’s personal satisfaction

___ (DON'T KNOW)

Source: Capital Jury Project Survey Instrument, V-3

Instrument Question

39

40

Percentages of Jurors Failing to Understand Guidelines for Considering Aggravating and Mitigating Evidence

*The number of subjects answering each question varied slightly, and the number (N) for each state is the lowest number of subjects answering any of the questions. ** The number of Texas jurors is reduced in this table because these two questions were replaced with others while the interviewing in Texas was underway Source: Bowers, William J. and Wanda D. Foglia (2003). "Still Singularly Agonizing: Law's Failure to Purge Arbitariness from Capital Sentencing." Criminal Law Bulletin 39:51-86 . Table 3

States

Could consider any mitigating evidence

Need not be unanimous on mitigating evidence

Need not find mitigation beyond a reasonable doubt

Must find aggravation beyond a reasonable doubt N*

Alabama 54.7 55.8 53.8 40.0 52 California 24.2 56.4 37.6 41.7 149 Florida 49.6 36.8 48.7 27.4 117 Georgia 40.5 89.0 62.2 21.6 73 Indiana 52.6 71.4 58.2 26.8 97 Kentucky 45.9 83.5 61.8 15.6 109 Missouri 36.8 65.5 34.5 48.3 57 North Carolina 38.7 51.2 43.0 30.0 79 Pennsylvania 58.7 68.0 32.0 41.9 74 South Carolina 51.8 78.9 48.7 21.9 113 Tennessee 41.3 71.7 46.7 20.5 44 Texas 39.6 72.9 66.0 18.7 47 Virginia 53.3 77.3 51.2 40.0 43

All States 44.6% 66.5% 49.2% 29.9% 1,185

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A slight detour into KY jurors’ understanding of instructions… trying to understand why they’re so confusing…

“It was in the outline, you know, if we found the defendant guilty, we had to go by KY state law. If we found him guilty on certain counts, and we found him guilty of capital murder, and we had to weigh some other things too but, you know, we had to give him capital punishment by state law”

…possibility of parole weighs heavily

“The judge didn't explain what life meant. He told us later that he would be eligible for parole in 10 years.”

“He enumerated the kinds of punishment. He explained what they all meant for instance he said (either the judge said it or someone else told us). If you just gave him life, parole would be 7-10 years. We knew when parole would occur.”

“Well, there wasn't a whole lot of instructions. We had to take each count, and it was in writing. If we found him guilty of each individual count, okay, then it was written there how many years, what we could give him, years, life sentence, or whatever. And we had sent a question to the judge about how many years we could give him and he came back and said "read your instructions". So at that point our concern was well we definitely don't want the dude on the street no more, so we gave him 95 on each count.”

“A big question was how long before parole and we weren't given that answer. Bothered several jurors—[For example] if we give 300yrs. How long will he serve-big question. … What was difficult and that we were not allowed to know was, regardless of the sentence, what amount of time could the defendant spend before parole -- not given that info.”

Kentucky’s Instructions: Aggravation

“In fixing a sentences for the defendant, you shall consider the following aggravating circumstances which you may believe from the evidence beyond a reasonable doubt to be true…”

Kentucky’s Instructions: Mitigation

“You shall consider such mitigating or extenuating facts and circumstances as have been presented to you in the evidence and you believe to be true, including but not limited to such of the following as you believe from the evidence to be true… [statutory list]”

“…any other circumstance or circumstances that you, the jury, deem to have mitigating value.”

“…you shall consider also those aspects of the DEF’s character, and those facts and circumstances of the particular offense of which you have found him guilty, about which he has offered evidence in mitigation of the penalty to be imposed upon him and which you believe from the evidence to be true.”

Examples from other States

FL: “A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant…”

ID: “A mitigating factor is any fact or circumstance, relating to the crime or to the defendant’s state of mind or condition at the time of the crime, or to [his/her] character, background or record, that tends to suggest that a sentence other than death should be imposed…”

IN: “Mitigating circumstances are different than aggravating circumstances in a number of ways… Second, your finding that any mitigating circumstance exists does not have to be unanimous. Each juror must consider and weigh any mitigating facts he or she finds to exist without regard to whether other jurors agree with that determination…”

Readability

Flesch Reading Ease test

“This test rates text on a 100-point scale. The higher the score, the easier it is to understand the document. For most standard files, you want the score to be between 60 and 70.”

Flesch-Kincaid Grade Level test

“This test rates text on a U.S. school grade level. For example, a score of 8.0 means that an eighth grader can understand the document. For most documents, aim for a score of approximately 7.0 to 8.0.”

Formula based on:ASL = average sentence length (the number of words divided by the number of sentences)ASW = average number of syllables per word (the number of syllables divided by the number of words)

Education Level of Kentucky Citizens:Census Data 2007-2011

High School graduate or more: 81.7%

Bachelor’s degree or more:20.6%

Readability: Introductory Instructions

Flesch Reading Ease: 40.1Flesch-Kincaid Grade Level: 15.9

Readability: Mitigating Circumstances

Flesch Reading Ease: 42Flesch-Kincaid Grade Level: 14.2

Readability: Aggravating Circumstances

Flesch Reading Ease: 30.8Flesch-Kincaid Grade Level: 12.6

Readability: Authorized Sentences

Flesch Reading Ease: 15.7Flesch-Kincaid Grade Level: 23.8

Pattern of findings from the research/Implications

1) Overestimation of standard of proof for mitigating circumstances

2) Unclear about appropriateness of using unenumerated mitigators

3) Belief that unanimity on mitigators is required

4) Uncertainty on how to weigh aggravators and mitigators

5) Comprehension CAN BE improved, especially when ‘debunking’ and case-specific instructions are used

Erroneous Beliefs Regarding Mandatory

Death Sentences

57

Instrument Question

After hearing the judge's instructions, did you believe that the law required you to impose a death sentence if the evidence proved that . . .

___ (DEF) _____'s conduct was heinous, vile or depraved

___ (DEF) _____ would be dangerous in the future

Source: Capital Jury Project Survey Instrument, IIIC-17

57

58

Percentages of Jurors Thinking Law Required Death if Defendant’s Conduct was “Heinous, Vile or

Depraved”, or Defendant “Would be Dangerous” in Future by State

Source: Bowers, William J. and Wanda D. Foglia (2003). "Still Singularly Agonizing: Law's Failure to Purge Arbitariness from Capital Sentencing." Criminal Law Bulletin 39:51-86 . Table 4

States

Death Required if Defendant’s Conduct is Heinous, Vile, or Depraved

Death Required if Defendant Would be Dangerous in the Future N

Alabama 56.3 52.1 48 California 29.5 20.4 146 Florida 36.3 25.2 111 Georgia 51.4 30.1 72 Indiana 34.4 36.6 93 Kentucky 42.7 42.2 109 Missouri 48.3 29.3 58 North Carolina 67.1 47.4 76 Pennsylvania 56.9 37.0 73 South Carolina 31.8 28.2 110 Tennessee 58.3 39.6 48 Texas 44.9 68.4 117 Virginia 53.5 40.9 43

All States 43.9% 36.9% 1,136

58

Underestimation of Non-death Alternative

60

Instrument Question

How long did you think someone not given the death penalty for a capital murder in this state usually spends in prison?

______ # of years

Source: Capital Jury Project Survey Instrument, IV-7

60

61

Capital Jurors’ Estimates and Mandatory Minimums of Time Served Before Release from Prison by Capital Murderers Not Sentenced to Death by State

* Median estimates exclude “no answers” and unqualified “life” responses indicating “life without parole” or “rest of life in prison” ** These are the minimum periods of imprisonment before parole eligibility for capital murderers not given the death penalty at the time of the sampled trials in each state *** Kentucky gave capital jurors different sentencing options with 12 years and 25 years before parole eligibility as the principle alternatives Source: Bowers, William J. and Wanda D. Foglia (2003). "Still Singularly Agonizing: Law's Failure to Purge Arbitariness from Capital Sentencing." Criminal Law Bulletin 39:51-86 . Table 7

State Median Estimate* (N)

Mandatory Minimum**

Alabama 15.0 (35) LWOP California 17.0 (98) LWOP Florida 20.0 (104) 25 Georgia 7.0 (67) 15 Indiana 20.0 (75) 30 Kentucky 10.0 (74) 12, 25*** Missouri 20.0 (47) LWOP North Carolina 17.0 (77) 20 Pennsylvania 15.0 (63) LWOP South Carolina 17.0 (99) 30 Tennessee 22.0 (42) 25 Texas 15.0 (106) 20 Virginia 15.0 (36) 21.75

All States 15.0 (943) ----

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Implications of Perceptions of Early Release

Final vote0-9 Years 10-19 Years 20+ Years

Death 68.5% 65.1% 43.1%

Life 31.5% 34.9% 56.9%

(Number) (127) (238)

(248)

KY juror: “At that time there was a law they weren't allowed to know but some of us already knew it: the law was w/life parole in 12 yrs. If given life in prison main factor if we could just give him life in prison and he would be kept behind bars for the rest of his life w/o ever having chance of parole, that's what we'd go for cause even though we believed in the death penalty, we really hate to. Some of us knew of that law and we said would you feel comfortable if you knew he was going to get paroled in 12 yrs., Would you want it on your conscience if he got out and carried out some of those threats that he made and he killed somebody else, would you want it on your conscience and know that you helped him get out to do that? And undoubtedly we all said no. We wouldn't want that on ourself. So, that was the main factor that made us make the death decision. They didn't tell us that life in prison meant parole in 12 yrs. We knew there had to be some reason that the commonwealth attorney was begging us to bring back the death sentence. We knew from the tone of his voice and his closing arguments We sensed that he was trying to tell us something that he couldn't say."

Evasion of Responsibility for Sentencing Decision

65

Instrument QuestionRank the following from "most" through "least"

responsible for (DEF) _____'s punishment.

Give 1 for most through 5 for least responsible___ the law that states what punishment applies

___ the judge who imposes the sentence___ the jury that votes for the sentence___ the individual juror since the jury's decision

depends on the vote of each juror___ (DEF) _____ because his/her conduct is what

actually determined the punishmentSource: Capital Jury Project Survey Instrument, IV-13

65

66

Percentages of Jurors Considering Themselves Primarily Responsible for the Sentence by State

*The number of subjects answering each question varied slightly, and the number (N) for each state is the lowest number of subjects answering any of the questions. ** The number of Texas jurors is reduced in this table because these two questions were replaced with others while the interviewing in Texas was underway Adapted from: Bowers, William J. and Wanda D. Foglia (2003). "Still Singularly Agonizing: Law's Failure to Purge Arbitariness from Capital Sentencing." Criminal Law Bulletin 39:51-86 . Table 3

States

The jury that votes for the sentence

The individual juror since the jury's decision depends on the vote of each juror N*

Alabama 11.1 6.4 45 California 10.6 8.8 132 Florida 5.4 2.6 111 Georgia 7.7 20.3 65 Indiana 8.3 9.0 84 Kentucky 13.7 9.2 102 Missouri 11.9 6.7 59 North Carolina 11.6 10.1 69 Pennsylvania 9.5 11.1 63 South Carolina 4.5 10.6 111 Tennessee 8.7 4.3 46 Texas 5.2 5.8 116** Virginia 15.0 9.1 40

All States 8.9 5.6 1071

66

% saying “most responsible”*

Defendant 49.2

Law 32.8

Jury 8.9

Individual Juror

5.6

Judge 3.5

*percentages based on 1,095 jurors who ranked all 5 options

Racial Influence on JurorDecision-Making

1. White Male Dominance

No. of White Male Jurors

Percent of Cases that Result in Death

0-3 35.3

4 23.1

5 63.2

6+ 78.3

2. Black Male Presence

Number of Black Male Jurors

Percent of Cases that Result in Death

0 71.9

1 42.9

2 36.4

3 + --- (3/8)

Examples of Where Differences Occur by Race of the Juror

Black Defendant/White Victim Cases

When the first jury vote on guilt was taken, how did you vote?

Black Jurors

White Jurors

guilty capital murder 57.6% 90.6%

guilty of a lesser charge

12.1% 5.7%

not guilty 9.1% 1.9%

undecided 21.2% 1.9%

(No. of jurors) (33) (53)

How well does “sorry for what s/he did” describe the defendant?

Black Jurors White Jurors

Very well 38.2% 13.5%

Fairly well 26.5% 3.8%

Not so well 11.8% 36.5%

Not at all 23.5% 46.2%

(No. of jurors)

(34) (52)

Did you imagine yourself in the defendant’s situation?

Black Jurors White JurorsYes 41.2% 27.3%

No 58.5% 72.7%

(No. of jurors)

(34) (55)

Black Jurors White Jurors

Yes 61.8% 38.2%

No 32.4% 54.5%

Not sure 5.9% 7.3%

(No. of jurors) (34) (55)

Did you imagine yourself in the defendant’s family’s situation?

76

Race affects process

Regardless of race of Defendant and Victim Black jurors are - More likely to have lingering doubt- More likely to think defendant was sorry

When Defendant is Black and Victim is White:

- 5 or more white male jurors dramatically increased chances of death sentence (63.2 v. 23.1%)

- 1 or more black male jurors reduced chances of death penalty (42.9 v. 71.9%)

- Black male jurors saw same case very differently than white males – Black males were

- 7x more likely to have lingering doubt- 6x more likely to think def. was not most responsible- 5x more likely to think def. was sorry- 2x as likely to identify with def. or family- ½ as likely to say dangerous described def. very well- 1/3 as likely to give extremely low estimates of early release

Example of Black Male Juror’s view of Jury Experience

In deciding guilt, did jurors talk about whether or not the defendant would or should receive the death penalty?

Juror: They wanted to burn both of them black boys. I’m serious, that’s the impression I got. I felt like, I was the only black male on the jury. There was one other Black woman. I felt like they didn’t give a shit one way or the other. They wanted to go to the football game and they wanted to go home to their husbands and all this type of stuff, and not worry about whether these people were gonna die or not… What I’m saying is that they had no respect for a Black male and they didn’t know how to really judge him. They wanted the death penalty, give him the death penalty, ‘cause he killed a white man. Boom, that was it.

Example of White Female Juror’s View of Jury Experience

Is there anything about this case that sticks in your mind, that you keep thinking about?

Juror: We had two Black guys that came in one day and they just didn’t sit down, they stood at the back of the courtroom, and it was like they were staring at possibly the Blacks on the jury. And they just stood there. Shortly after that , we went to lunch, there were three of us jurors in this particular car, and I said, I know we’re not supposed to discuss this case but I said I have a feeling of something that happened… my question to you is, did [you] feel the same that I did? And both the other jurors said yes, we did. And so as soon as we got back after lunch, our [court agent] said, “I’ll take care of it” and so soon as we got back, these two gentlemen came back in and did the same thing. And by that time, the judge had been informed, and they [were] dismissed… I’ve never seen it before, or never been part of it before until then, and I didn’t ever think about it until then, but I’ve always heard that Black people will take care of Black people. You know what I mean? And I got the feeling that they were there to remind this man, he’s our brother, so hold out as long as you can, and damned if he didn’t do it; he’s the one that hung us up for so long. Yea, that’s what really sticks out in my mind.

Summary of Errors/Mistakes by

jurors, from CJP

Half or more jurors are not following constitution in six areas

discussed 49.1% are making premature punishment decisions

50.2% believe death penalty is mandatory

58.5% underestimate death penalty alternative

80.8% express predisposition for death penalty

82% don’t feel responsible for sentence 83.1% misunderstand death penalty

instructions (NOT including “Don’t Know” or no answer)

80

NOT ONE juror understood law on all six issues

# of errors % of jurors making that many errors

0 0%

1 1.9%

2 7.1%

3 20.1%

4 34.4% (median and modal number of mistakes is 4)

5 28.6%

6 7.9%81

Other Lessons Learned from CJP

1. Qualification ?s (CJPIII-IN)

  

Death

Qualificatio

n

 

Life

Qualificatio

n

 

ADP

Status

Consideration

of

Mitigation

Jury 1 (D)12 9 0 9

Jury 2 (D)12 10 10 12

Jury 3 (L)12 5 12 3

Jury 4 (D)12 8 3 1

Jury 5 (L)12 3 12 2

N

(%)

60 jurors

100%

35 jurors

58.3.6%

37 jurors

61.6%

27 jurors

45.0%

2. Tactics used by Pros. to disable juror receptivity to

mitigation (CJPIII-TX)

a) Flipping: convert mit into agg:

“Some people feel that way about mental illness. Some people think that takes some blame off. Some people say no, that that makes it even worse”. (Death case)

b) Dismissing: Encouraging jurors to dismiss mit as irrelevant to sentencing

“Do you believe no matter where you came from or your background that at some point in life, no matter whether you came from a good background or a bad background, though, you have to be held responsible for your actions at some point in time?” (Death)

c) Linking: argue that mit needs a nexus to crime to be relevant:

“Another person might say, well, I heard evidence of the defendant's background, that he had an impoverished upbringing, that he didn't have a good education, that he doesn't have a high IQ. All those things I consider to be mitigating. Another juror might say, person sitting right next to him, I don't. There are many, many people in this world that have had less than great upbringings and backgrounds and those people are not out committing capital murder. I don't consider it sufficiently mitigating. I don't consider that circumstance to be connected in such a way to the crime that it reduces the defendant's moral blameworthiness”. (Death case)

d) Distracting: provide examples of mit that will not be part of the case:

“I mean, you may hear in the punishment phase of the trial also that the defendant was an altar boy, was a straight-A student, served with distinction in the military, was the pillar of his society, his neighborhood, was always doing good acts. And this act of capital murder might stand out like a sore thumb on an otherwise perfect life. Those are the kinds of things you can hear in punishment”. (Death)

3. Defense Response?

Frontload mitigating evidence– start talking about it, in context, during voir dire

Reframe sentencing (moral decision; what instructions really mean… and take turns going first)

Empower jurors by discussing their rights and responsibilities

4. Conveying Mitigation: Telling your client’s story

Just because you say it, doesn’t make it so

Jurors respond more to examples and stories than to “factual” statements

Don’t forget the positive – why is your client worth saving?

Family/friends CAN BE effective witnesses: seen as biased yet can tell compelling

stories that support the theory of your case:

Example of Impact of Family/Friends’ Testimony

Juror: “It was an exceptionally horrid upbringing… severe, acute child abuse, child neglect, child torture… His father, this was essentially the reason why I decided for life… The child abuse stories were from his sisters and neighbors… [The father] raped all the daughters and we heard graphically about the daughters’ experiences with their father… The only thing [the defendant] ever loved was a dog and a rabbit. One day the father killed the rabbit and tried to make the dog eat the rabbit. The dog wouldn’t do it so he killed the dog. He was drunk all the time…”

Lay Witnesses

“As a general rule, it was the lay experts – the teacher, the prison guard, the Marine colonel – whom the jurors remembered in detail as being credible and helping them understand the context of the defendant’s background and character.”

Source: Sundby, Scott E. (1997). “The Jury as Critic: An Empirical Look at how Capital Juries Perceive Expert and Lay Testimony.” Virginia Law Review 83:1109-1188.

Expert Witnesses

Viewed negatively in a significant portion of the cases, especially experts called by the defense

Changes the dynamics of the penalty phase:

More vigorous cross examination by prosecutor

Question of whether mitigation is true, rather than whether it should matter

Three themes emerged:

i. Expert as Hired Gun

Juror: “when [the experts] were being cross-examined they were very evasive. Because they want to collect their fee, you know. They get paid for doing it. One guy, it was his full time job. He was terrible. It’s just, his main source of income was being a part-time-worker at a university and a professional witness.”

ii. Jurors as Skeptics

“… we felt manipulated by the defense attorneys because of their so-called expert… They tried and failed to cast doubt on the [store] clerk [witness] by having this guy say you can’t trust yourself to identify anybody. And so, because of that, because they failed so miserably, and it was such a miserable thing, several of us felt manipulated by them and didn’t believe them much… That one was an incredible, blatant stupidity on their part.”

iii. The Importance of bringing it back to the Client’s Life Story The expert should be in a supporting role, rather than the

leading role, helping to explain, integrate, and provide context to evidence presented by others:

Juror: [Dr. A. who] was a child abuse expert and then some, [said] that [this is] one of the worst cases of child abuse and neglect she had ever seen…

Interviewer: Why did you find [Dr. A’s] testimony more influential than the prosecution’s expert?

Juror: Because we had all the other witnesses plus her.

Compared with:

Juror: I think they were trying to paint a picture of getting our sympathy for this defendant because he had this traumatic experience in his life. But it was sort of like, okay, well, what do we do with that?

5. Common themes that jurors want addressed

a) Same/similar experience, different outcome:

Whether the similarity is with the defendant and the juror (both grew up in poverty) or defendant’s siblings, must explain how the defendant’s situation was different

b) Ultimately, we all make choices and the defendant must be held responsible for his actions:

What was it in the client’s background/ upbringing that prevented him from making different choices?

How was that background related to his ability to make choices?

And why did the “choice” make sense to the defendant?

c) Future Dangerousness

The best predictor of future behavior is past behavior in the same situation.

How will your client NEVER BE in the same situation?

Does your client have experience behaving well in structured environments?

e) No such thing as sure-thing mitigation:

We know from CJP that there is not one single circumstance for which every juror who was so exposed interpreted it as mitigation.

Evidence becomes mitigating in context, as it helps to explain how your client ended up facing a sentence of death.

How to Use/Apply CJP Findings…

Requests for… individual sequestered voir dire expanded voir dire/Colorado

methoduse of questionnaire

expanded jury instructions instructions on lack of parole separate guilt and punishment

juries

Using CJP in Pre-Trial Motion(s)

Convince defendant to accept offer of life Educate judge Educate jurors during voir dire, e.g. necessity to keep open mind about sentence required to be open to mitigation help to explain instructions Influences Trial Strategy, e.g. emphasize lack of parole “early and often” frontload mitigation into merits phase use lay witnesses to “tell mitigation story” OTHER POSSIBILITIES???? Up to you --

Other uses

Pretrial Publicity and Ward

http://caselaw.findlaw.com/in-supreme-court/1190878.html