Tsarnaev: Death penalty cases are won or lost during jury selection

December 29, 2014

Monday, December 29, 2014

Good evening:

Most death penalty lawyers will tell you that a death penalty case is won (i.e., LWOP) or lost (i.e., death sentence) during jury selection. That is because we have seen and done it all and have generally mastered the art of trying cases so that we know to a reasonable certainty whether the jury will convict or acquit the client.

Today we are going to learn about and discuss jury selection in a federal death penalty trial. As you will soon discover, jury selection is more aptly described as deselection. Each side attempts to get rid of the prospective jurors they do not want by challenging them for cause or by peremptory challenge.

1) Challenge for Cause: No limit to the number of challenges, but you have to satisfy the judge that the prospective juror whom you challenge cannot fairly and impartially try the case or follow the court’s instructions. Your challenge will be denied, if you fail to convince the judge.

2) Peremptory Challenge: Each side gets 20 challenges. You don’t have to give a reason to support your challenge, but you cannot use your challenges to exclude prospective jurors solely on the basis of race, gender or religion. For example, the prosecution cannot use peremptory challenges to exclude Muslims. They would have to genuinely have other reasons or the challenge would be denied. The defense has a pending motion to increase the number of peremptory challenges to 30 per side because of extensive pretrial publicity. The government opposes the motion and it will likely be denied since the rule is quite specific about 20.

Jurors will be questioned in three ways. First, they will be asked to fill out a questionnaire. Then they will questioned together as a group and thereafter individually, depending on their answers to some of the questions on the questionnaire or during group voir dire. BTW, voir dire means to question. Attorney voir dire occurs when the lawyer do the questioning.

1,000 prospective jurors have been summoned in the Tsarnaev case. The goal is to seat a jury of 12, plus alternates who will well and truly try the case according to the instructions given by the court.

The first task in the selection process is to go through the questionnaires and excuse people who cannot serve because of the length of the trial, economic hardship, poor health, bias (related to or know victims, witnesses, lawyers or court personnel), prepaid vacations, etc. This usually reduces the pool of prospective jurors by about 50% or more.

Since this is a highly publicized death penalty case, the two major areas of inquiry during voir dire will be: (1) effect of pretrial publicity on ability to fairly and impartially try the case based only on the evidence introduced in court and, assuming the defendant is found guilty, (2) effect of opinions about the death penalty on a juror’s ability to follow the jury instructions that require weighing the aggravating evidence and mitigating evidence in deciding whether to sentence the defendant to death or to LWOP. Jurors will be questioned individually out of the presence of the others to avoid influencing them with their responses regarding these topics and possibly religious beliefs, since Dzhokhar Tsarnaev is allegedly a Muslim jihadist.

More specifically,

1) Pretrial publicity: The test is not whether someone has heard or read about the case. The test is whether they have formed an opinion about the guilt or innocence of the accused such that they would not be able to fairly and impartially try the case. They will be excused for cause, if the answer is “Yes.” If the answer is, “No” they will be questioned individually out of the presence of the others for more information to challenge or pass the juror for cause on the subject of pretrial publicity. If a challenge for cause is denied, the party asserting the challenge likely will use a peremptory challenge later on to get rid of that person.

2) Opinions about the death penalty: Jurors are told that they have to be questioned regarding their opinions about the death penalty before the trial starts because there will not be an opportunity to question them later, if the defendant is convicted. Therefore, they are told to assume guilt when they are questioned. Invariably, a majority of the time spent selecting a jury involves the death qualification process. The test is whether the prospective juror could weigh the aggravating and mitigating evidence and render a verdict according to the jury instructions. Anyone who would automatically vote for the death penalty, if the defendant is convicted as charged, will be excused for cause, Same is true for anyone who would automatically vote for LWOP because they are opposed to the death penalty. This is called death qualifying a jury and it inevitably produces conviction prone jurors because so-called scrupled jurors (who oppose the death penalty) are more likely to vote not guilty than guilty. This feature is another major reason why it’s so difficult to win a death penalty trial.

The goal will be to get a panel of probably 75 or more people who have been passed for cause by both sides. The size of the panel has to be large enough so that there will be enough people left to seat a jury of 12, plus the alternates. If each side uses its full complement of 20 peremptory challenges, that would reduce the panel by 40 people, and possibly a few more, if one side or the other successfully challenges the other side’s improper use of a peremptory challenge to get rid of people based solely on race, gender or religion. Each side also gets a peremptory challenge to assert for each alternate.

It’s OK to end up with a few too many. It’s not OK to end up without enough because then you have to bring in another group of people to question.

One of the extremely bizarre aspects of the death qualification process is the effort by defense counsel to save scrupled jurors from being excused for cause by getting them to admit that they could follow the instructions and impose the death penalty despite their opposition to it, if the aggravating circumstances outweighed the mitigating circumstances. Similarly, prosecutors befuddle jurors who would automatically vote for the death penalty by attempting to get them to admit that they could vote LWOP despite their support for the death penalty, if the mitigating circumstances outweighed the aggravating circumstances.In either case, the object is to force the opposing counsel to use one of their precious silver bullets (i.e., peremptory challenges). The hope is they will run out of ammo before you do and you’ll get some scrupled jurors on the jury.

That is more likely to happen in Massachusetts where a majority of the voters are against the death penalty than would be the case in Texas or Florida where you would be lucky to find a scrupled juror in a group of 1,000 people.

Last but not least, both sides will be on the lookout for possible ‘stealth jurors.’ They are agenda driven people who will lie to sneak on a jury and vote for a particular outcome, regardless of the evidence. This is called jury nullification when the stealth juror votes contrary to the evidence and the instructions. Both sides are likely to have support staff checking social media for potential stealth jurors.

It took 3-4 weeks for me to select a jury in every death penalty case that I tried. Then it took 6-9 months to try the cases.

Since federal court does not allow cameras or audio recordings in the courtroom, we will not be able to watch this fascinating process that is so critically important to the outcome of every trial.

And there you have it.

All Female Jury to decide Zimmerman case, Opening Statements Monday at 9 am

June 20, 2013

Thursday, June 20, 2013

Good evening:

We have a jury, an all female jury.


The four alternates:


Two males and two females.

Here’s a link to fauxmccoy’s chart on the jurors.

Those in green made the jury. Those in red were stricken.

I tried hundreds of cases during my 30 year career and never had an all female or an all male jury.

5 of the 6 women are white. One is Hispanic.

5 of the 6 women are mothers.

I would be very worried, if I were George Zimmerman, because I believe those mothers are not going to believe him. I think they are going to hold him accountable for killing an unarmed teenager.

I am unhappy that none of the jurors are black, but I do not believe that is going to affect the final outcome of this case.

I predict GZ will testify because Mark O’Mara did not voir dire the panel of jurors regarding a defendant’s right to remain silent and not testify. When my clients decided not to testify, I always made sure that the jurors understood that my clients were not required to testify and no one could assume that their silence was evidence of guilt.

Judge Nelson announced that counsel will give their opening statements beginning at 9 am EDT on Monday morning.

After she dismissed the remainder of the panel and swore in the jurors, Judge Nelson excused the jury and completed the evidentiary part of the Frye hearing.

Assistant State Attorney Manthei summed up the situation when he said there was nothing novel or new about the methodologies used by the State’s experts. What is new is a move across several different scientific disciplines to establish a universal set of standards to use when attempting to match a recording of an unknown voice to a database of recorded voices of known individuals in order to declare a match.

That is a far more complicated task than listening to a known voice and excluding that known individual as the source of a voice on a recording. There are only two possible sources of the terrified shriek that ends with the shot and it’s not difficult to exclude the armed defendant who admitted firing the fatal shot as the source of that scream.

Manthei added that the State was not responsible for the recent news reports that the defense had an expert who identified GZ as the source of the scream.

And some PJs mentioned hearing that in the news before reporting for jury service.

However, as it turned out, the defense could find no expert to testify to that opinion and the reports were false.

If I were Judge Nelson, I would rule that the State’s experts may testify and express their opinions. The defendant’s objections go to the weight of the evidence, not its admissibility.

Judge Nelson will issue her ruling after court reconvenes at 9 am tomorrow.


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Welcome to Day 9 Liveblogging Jury Selection in Zimmerman Trial

June 20, 2013

Thursday, June 20, 2013

Good morning to the last day of Spring and the 9th day of liveblogging jury selection.

Here is your link to Fauxmccoy’s fabulous spreadsheet of the prospective jurors (PJs).

Here’s the link to the livestream coverage.


Court resumes at 9 am EDT with the defense voir dire of the panel of 40.

See you in court.


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Zimmerman: Day 8 Liveblogging Jury Selection Completed

June 19, 2013

Wednesday, June 19, 2013

Good afternoon:

We have completed liveblogging the 8th day of jury selection.

Bernie de la Rionda spent the day teaching and indoctrinating the panel of 40 prospective jurors (PJs) with the legal foundation of the case that he will present to them in opening statement. Judging by their reaction, he succeeded in building rapport and trust.

The defense has a big mountain to climb tomorrow.

Bernie used a mixture of one-at-a-time voir dire as to the entire group and then switched to what we used to call the Donahue Method after the former TV host, Phil Donahue.

We would never have been allowed to conduct a classroom style multiple-hour education of the panel regarding legal principles as Bernie did.

Judges instruct on the law, not lawyers.

Voir dire means to question.

During his initial questioning of the panel, he asked each individual juror how long they had lived in Seminole County and Florida, their marital status and children, and what they liked to do with their spare time.

Then he used the Donahue Method to question the panel of 40 as a group on the following subjects:

1. Knowledge of the defendant, lawyers, court personnel and witnesses to be called;

2. Familiarity with TV programs about forensics, cops and the law;

3. Difference between direct and circumstantial evidence;

4. Whether anyone was arrested and prosecuted for a crime;

5. Victims of crime, particularly violent crime;

6. Experience with Neighborhood Watch programs;

7. Whether anyone believes they have the right to take the law into their own hands;

8. Whether anyone believes any person by reason of wealth, education, employment, gender, race, ethnicity, religion, age, language or dress should be treated differently under the law;

9. Whether anyone has been a witness before or served on a jury;

10. Member of law enforcement or knows someone who is;

11. Whether anyone has medical experience or knowledge;

12. Owns a gun, has a license to carry concealed, NRA membership;

13. Whether people who own guns have a responsibility to learn how to use them;

14. Whether anyone is a fitness freak or trained fighter or been in a fight;

15. Whether anyone has special knowledge or training in cell phones, phonetics, linguistics, or DNA testing; and

16. Whether anyone would not be able to look at gruesome photographs for their evidentiary value.

No one was excused today although I believe 2 PJs should be excluded for financial and familial hardship, especially since the trial is expected to last 2-4 weeks and the jury will be sequestered. Both are Hispanic.

B-29 is a married mother with 8 children at home. The oldest is 22. She works as a CNA. She is juror #2 in the box and would be replaced by B-51, a retired white female from Oviedo with a dog and 20-year-old cat. Knows a good deal about the case, but said “I’m not rigid in my thinking.” She moved to Florida from Atlanta and was the Director of a call center for 1,200 employees.

P-67 is an auto mechanic whose job might not be there after the trial. He is 22nd on the list of 40.

The defense will voir dire tomorrow starting at 9 am EDT.

If the defense has not completed questioning the PJs by 2 pm, Judge Nelson will excuse them for the day in order to resume and complete at least the evidentiary portion of the Frye hearing. The prosecution will be presenting one rebuttal witness, Tom Owen.

I doubt she will be ready to issue her decision at the conclusion of the hearing, so look for it early next week, probably Monday.

I will see you all tomorrow morning at 9 am EDT.


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Welcome to Day 8 Liveblogging Jury Selection in Zimmerman Trial

June 19, 2013

Wednesday, June 19, 2013

Good morning:

Trained Observer posted the following comment yesterday at 6:28 pm. I have decided to use it as a scorecard for the next round of voir dire.

I recommend we use it as a starting point for our discussions during the day about the various prospective jurors. Feel free to agree or disagree with her recommendations. By actively involving yourselves in the process of selecting and exercising challenges while witnessing the lawyers doing the same thing, you will be participating in a unique learning experience.

I do not believe this has ever been done before, so celebrate and learn.

The selection process is described below the scorecard.

My recommendations for next round, hoping hardship rids line-up of some “iffy” candidates, and strikes can be saved for a final shaping after defense squanders its share. (Admittedly, there’s so very much we don’t know about these PJs.)

B-12: Middle-aged white female; works late shift. Likes CSI, says she’d heard Fogen followed Trayvon. KEEP FOR NOW

B-29: Hispanic female nurse on an Alzheimer ward with 7 kidsl lived in windy Chicago at time of shooting. WEED OUT ON HARDSHIP

B-76: White middle-aged female who says Fogen had an “altercation with the young man. There was a struggle and the gun went off.” TRY TO WEED OUT

B-7: Middle-aged white male; NPR listener. Recalls when Florida implemented “stand your ground” and debate over whether needed.KEEP

B-35: Middle-aged black male owning a vending biz. Critical of Sharpton & Jackson; says this case not racial. KEEP

B-37: Middle-aged white female who works for a chiropractor and has a ton of of pets. Described protests in Sanford as “rioting.” STRIKE-OLA

B-51: Retired white female from Oviedo with a dog and 20-year-old cat. Knows a good deal about the case, but said “I’m not rigid in my thinking.” KEEP

B-86: Middle-aged white female working at middle school. Says if Trayvon had not been “expelled” from school in Miami — she oughta know the diff between expelled and suspended — “this could have been prevented.” DUH, WEED OUT

E-6: A young white female and mother who used to work in financial services. Used case as teaching moment for her kids, warning them to not go out late. KEEP

E-40: White female in 60s living in Iowa at shooting; heard about on national news and recalls shooting in a gated community and a teen killed. KEEP

E-54: Middle-aged white male with teenage stepson who wears hoodies. Saw photos of Fogen’s head and face with boo-boos. KEEP

E-73: Middle-aged white female from Sanford’s artsy community, raising late brother’s 15- and 18-year-olds. Says media interjected race in case. KEEP FOR NOW

M-75: Young AA female says many friends have opinions on case, but claims she doesn’t.KEEP

B-61: Young white female; remembers “after the protesters, it seemed to turn more into a racial issue…I don’t think it’s a racial issue.” KEEP

B-72: Young male doing maintenance at a school and competes in arm wrestling. Avoids news because he does not want to be “brainwashed.” TRY TO WEED OUT

E-22: Middle-aged AA female; says after shooting Sanford police should have booked Fogen and asked more questions. KEEP

E-13: Young white female collegiate who works two jobs; Heard shooting was a “racial thing.” KEEP FOR NOW.

E-28: Middle-aged white female nurse; claims she knows little about case and has no opinion about Fogen’s guilt. KEEP

K-80: Middle-aged white female with kids who has not followed case; Cconsiders “racial undertones” in case “disturbing.” WEED OUT ON HARDSHIP

K-95: Middle-aged woman who’s a full-time student and “IT geek” with two kids; Critical of protests calling for Fogen’s arrest. TRY TO WEED OUT

P-67: Native Mexican wants to serve on the jury, describing civic duty. “Some people think it is a racist thing,” he said of the shooting. A KEEPER

G-14: Middle-aged white female who recalls a “lot of anger, a lot of people upset” that Fogen was not arrested immediately. KEEP

G-29: Young black female has lived in Seminole County for eight months. Cites racial tension build-up, but claims she “stayed away from it.” KEEP

G-47: Young white male assistant restaurant manager says Fogen appears to be “stuck in the worst situation” possible. KEEP FOR NOW

?-63: Young, unemployed apparently mixed race male. Knows a little about case but pans stereotyping and says people sometimes interject race into cases . KEEP FOR NOW

G-66: Retired white female who cares for toddler grandson and moved to Central Florida in 2011. Saw photos of Fogen injuries and, “I felt sorry for him.” STRIKERAMA

G-81: Tall black male lives less than a half mile from shooting. Cites Sanford’s racial divide, but says media has misportrayed the city. KEEP

H-6: Young white male who heard call Fogen made to cops before shooting. “He sounded like he was concerned for his neighborhood.” TRY TO WEED OUT

H-7: Red-haired 50s male in a biz suit citing a “big brouhaha in Sanford,” describesd protesters as “a nuisance” and says “I still don’t know why it became a high profile case.” STRIKOLA

H-18: A dark-skinned looker in his 20s with accent who’s a mechanic, owns his shop with a partner and moved here from Kuwait. Avoids discussing certain topics. “When it’s politics, religion or race, I just don’t get involved.” KEEP

H-29: White-haired male calls national civil rights leaders who led protests in Sanford “a little circus come to town.” Says “negative for the city,” … “That honestly turned me off.” TRY TO WEED OUT

H-35: Young female who said she knows little about case. She “liked” a photo of Trayvon on Facebook. Needs to move by and of June, claiming hardship. WEED OUT ON HARDSHIP

H-81: Middle aged male (a lawyer? What kind of lawyer? Does he sit around all day looking at real estate contracts … or does he do trial work?) describes shooting as an “incident” between Fogen and Trayvon; calls shooting a “very tragic situation.” He has two pending civil cases before Nelson. KEEP FOR NOW

H-69: Preggers PJ who saw news about case on TV at work. Mentions several times that she recalled seeing pictures of Trayvon as “a young child.” WEED OUT ON HARDSHIP

H-86: Young white female says she knows almost nothing about the case. Says she keeps up with current events, but “certain cases and things I don’t follow.” KEEP

I-5: Middle-aged AA male says he heard self-defense was involved with case, at one point referring to Fogen as “gentleman that was defending himself.” KEEP

I-19: Young white female says she hasn’t followed case and knows only basics: “I don’t watch the news, I don’t read the news,” she, who lies or is really stupid, said. STRIKE

I-24: Older white woman who followed case at first, but then “just kinda tuned out.” Says “a young man lost his life and another man is fighting for his life.” STRIKE

I-33: Older white male, saying “more I heard, the less I wanted to hear.” Heard a 911 call involved in case, and “some controversy as to who was doing the screaming” heard. TRY TO WEED OUT

I-44: Dad of 3 says he’s skeptical of media and its “negativity.” Calls himself a “sports nut.” KEEP FOR NOW

I have previously described the process of group voir dire as follows:

When she gets to 40, she will gather that group together seating the PJs in the jury box, and subsequently the benches, in the order in which they were called and likely instruct them to raise their hands indicating an affirmative answer as she asks a series of questions, pausing to record each PJ’s affirmative answer to each question.

For example, she might ask for a show of hands by each PJ who has been a victim of a crime and write down each PJs number who raises their hand.

After she completes her list of questions, the lawyers, starting with Bernie de la Rionda, will question the first PJ on the list (B12) regarding each question she answered affirmatively. After both lawyers have finished with B12, they will pass or challenge her for cause. If she is excused, she will be replaced in the box by PJ B51 (she is 7th in the order).

This process will be repeated with B51 until she is passed or excused for cause. If she is excused, her seat will be taken by B55. If she is passed, the lawyers will question B29, the PJ in the second seat in the box.

This procedure likely will be followed until 30 PJs have been passed for cause.

Then the lawyers will exercise their peremptory challenges, which is usually done secretly with the lawyers passing back and forth a sheet of paper alternately listing a PJ number until one or both sides exhaust their allotment of peremptory challenges.

If one side accepts the jury of 6 before exhausting their peremptories, they retain the right to use a peremptory challenge to excuse the PJ who replaces a member of the jury struck by their opponent after they accepted the jury.

Here’s the link to the livestream coverage.


Court resumes at 9 am EDT.

See you in court.

(H/T to Trained Observer for the excellent list)


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Please consider making a donation to keep independent journalism alive.

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