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

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.

Zimmerman: Day 7 of Jury Selection Completed

Tuesday, June 18, 2013

Good afternoon:

We have reached the magic number of 40 prospective jurors (PJ) passed for cause on the issues of hardship and exposure to pretrial publicity.

1. B-12
2. B-29
3. B-76
4. B-7
5. B-35
6. B-37
7. B-51
8. B-86
9. E-6
10. E-40
11. E–54
12. E-73
13. M-75
14. B-61
15. B-72
16. E-22
17. E13
18. E-28
19. K-80
20. K-95
21. P-67
22. G-14
23. G-29
24. G-47
25. G-63
26. G-66
27. G-81
28. H-6
29. H-7
30. H-18
31. H-29
32. H-35
33. H-81
34. H-69
35. H-86
36. I-5
37. I-19
38. I-24
39. I-33
40. I-44

As I have previously described the likely process:

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.

Judge Nelson announced in court that she intends to begin at 9 am EDT and recess at 3:45 pm EDT, if jury selection has not been completed.

She will reconvene court at 4 pm EDT for the State’s rebuttal case in the Frye Hearing.

The State is going to call one witness: Tom Owen.

Jury selection will resume Thursday morning and continue until completed.

Opening statements will follow jury selection.

I estimate Friday morning for opening statements.

See you in court tomorrow morning at 9 am EDT.

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Welcome to Day 7 of Jury Selection in Zimmerman Case

Tuesday, June 18, 2013

Good morning:

We now have a pool of 33 prospective jurors (PJs) passed for cause on the issues of pretrial publicity and hardship. Judge Nelson wants to enlarge the pool to 40 and then switch to group voir dire on other subjects.

There is a slight chance that will happen today, but it is more likely to happen tomorrow, possibly during the morning session.

Here is the updated list of 33 PJs for your scorecard:

1. B-12 F 40s-50s White
2. B-29 F 40s Black
3. B-76 F 50s-60s White
4. B-7 M 40s-50s White
5. B-35 M 40s-50s Black
6. B-37 F 50s White
7. B-51 F 60s-70s White
8. B-55 F 20s E. Indian
9. B-86 F 50s White
10.E-6 F 20s-30s White
11.E-40 F 50s-60s White
12.E-54 M 60s-70s White
13.E-73 F 60s White
14.M-75 F 30s Black
15.B-61 F 20s White
16.B-72 M 20s White/Bi-racial
17.E-22 F 50-60 Black
18.E-13 F 20s White
19.E-28 F 50s-60s White
20.K-80 F 40s-50s White
21.K-95 F 40s-50s White
22.P-67 M 40s-50 Hispanic
23.G-14 F 40s-50s White
24.G-29 F 30s Black
25.G-47 M 20s White
26.G-63 M 20s Mixed
27.G-66 F 50s White
28.G-81 M 30s-40s Black
29.H-6 M 30s-40s White
30.H-7 M
31.H18 M
32.H29 M
33.H35 F

As I have previously described the likely process:

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.

We have a little less than an hour before court resumes.

Here’s a little video that brought back a lot of memories about what it’s like to be a criminal defense attorney.

Warning: Remove liquids or be prepared to sacrifice your laptop.

Note: The Frye hearing will resume tomorrow at 4 pm with the prosecution’s rebuttal.

Here’s the link to the livestream coverage.

http://wildabouttrial.com/george-zimmerman-live-stream.html

Court resumes at 9 am EDT.

See you in court.

Zimmerman trial and the strategic use of peremptory challenges UPDATED

Saturday, June 15, 2013

Good morning:

I write today to explain another jury selection rule that is important for a lawyer to consider when deciding whether to exercise a peremptory challenge.

The order in which the PJs (prospective jurors) were called determines the order in which the PJ’s fill in as PJs are excused for cause and peremptory challenge.

For example, let us suppose that we have 10 PJs numbered 1-10.

Let us also suppose that PJs 1, 5, 6, and 9 are excused either for cause or by peremptory challenge.

The new order is 2, 3, 4, 7, 8 and 10.

If we have a jury of 4 with 1 alternate, the jury will be composed of former PJs 2, 3, 4 and 7. They will now be known as jurors 1, 2, 3 and 4.

Former PJ 8 will become the alternate and PJ 10 will be excused.

Therefore, the order in which the PJs have been called is important. They were called in this order. The strike-throughs have been excused.

Monday 4 (B12, B29, B30, B76)

Tuesday 10 (B7, B35, B37, B51, B55, B65, B86, E6, E40, E54)

Wednesday 10 (E73, M75, R39, B61, B72, E22, B87, E7, E13, E28)

Thursday 10 (E50, E75, E81, K80, K95, N18, B34, B67, P67, G14)

Friday 7 (G29, G47, G63, G66, G81, G87, H6)

We now have 29 PJs passed for cause on the issues of hardship and pretrial publicity. This is the new order after removing the excused PJs:

B-12 F 40s-50s White
B-29 F 40s Black
B-76 F 50s-60s White
B-7 M 40s-50s White
B-35 M 40s-50s Black
B-37 F 50s White
B-51 F 60s-70s White
B-55 F 20s E. Indian
B-86 F 50s White
E-6 F 20s-30s White
E-40 F 50s-60s White
E-54 M 60s-70s White
E-73 F 60s White
M-75 F 30s Black
B-61 F 20s White
B-72 M 20s White/Bi-racial
E-22 F 50-60 Black
E-13 F 20s White
E-28 F 50s-60s White
K-80 F 40s-50s White
K-95 F 40s-50s White
P-67 M 40s-50 Hispanic
G-14 F 40s-50s White
G-29 F 30s Black
G-47 M 20s White
G-63 M 20s Mixed
G-66 F 50s White
G-81 M 30s-40s Black
H-6 M 30s-40s White

If the 6-person jury and 4 alternates were to be selected from this group, the jury would be composed of:

B12, B29, B76, B7, B35 and B37.

The four alternates would be:

B51, B55, B86 and E6.

The rest of the PJs would be excused:

We are still a long way from exercising peremptory challenges because Judge Nelson wants to create a pool of 40 PJs passed for cause on the issues of hardship and pretrial publicity. She has 17 to go after 5 days of individual voir dire.

When she gets to 40, she will bring all 40 together in the original order in which they were called and the lawyers will question them one at a time on other subjects asserting challenges for cause when they think they have established a proper basis to support it.

Examples of other subjects are, whether a PJ has ever been a victim of a violent crime or knows someone who has been, whether they are employed in law enforcement or know someone who is, whether they know any of the witnesses to be called during the trial. There are many other subjects, obviously.

Voir dire will reduce the group of 40 to some lesser number, hopefully not below 30, because at least 30 are needed to select 6 jurors and 4 alternates, assuming both sides use their full complement of 10 peremptories each, 6 for the jury and 4 for the alternates. (30 – 20 = 10)

When the lawyers begin to exercise their peremptories, they will be focusing on the first 6 in the order in which the PJs are then aligned. The 6 will be seated in the jury box. As 1 of the 6 is excused, he or she will be replaced by the PJ in the 7th position. When the next one is excused, and it could be the 7th PJ that moved into the box, he or she will be replaced by the PJ in the 8th position and so on until each side accepts the jury or uses its full complement of 6 peremptories.

The selection of alternates will proceed in the same fashion beginning with the first alternate and proceeding to the second, etc.

Key Point to Remember: A lawyer must know the order in which the PJs are advancing toward a seat on the jury when deciding whether to use a peremptory challenge. You don’t want to use your last challenge only to have someone worse replace the PJ you just eliminated.

Another Key Point to Remember: Jury selection is not about selecting who you want on the jury. It is about selecting who you do not want. In tomorrow’s post I will discuss the classification system that I used to decide who I did not want on a jury.

UPDATE: This article has been updated with information obtained from the Orlando Sentinel regarding the PJs who have been passed into the next round of questioning.

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News about the site, jury selection process and latest news in Zimmerman and Arias cases

Thursday, May 23, 2013

Good afternoon:

Crane-Station and I are combining our websites, so you will be seeing her articles on a regular basis.

We are putting together a plan to live-blog each morning and afternoon session of GZ’s trial similar to the way we covered the last motion hearing. We will do the same for the hearing on May 28th.

I will post an article 30 minutes before each session to preview it and update everyone. The article will have a link to livestream coverage.

We are soliciting your comments and recommendations, so please let us know what you would like us to do.

We will use the hearing next Tuesday, May 28th, to fine tune our approach.

I do not yet know whether jury selection will be livestreamed. Hopefully, it will so that we can share our thoughts regarding each juror.

I have much to teach regarding the art of jury selection.

I hope the Court permits the public to link to the juror questionnaires for easy reference during individual voir dire, but privacy concerns may prevail over our desire to know as much as possible about each juror and make informed choices about cause and peremptory challenges. This also would allow us to more accurately evaluate the performance of the lawyers.

Individual voir dire, as the name implies, involves questioning prospective jurors individually out of the presence of the others in order to prevent their answers from potentially influencing or poisoning the minds of other jurors. For example, this is the only way to effectively question prospective jurors regarding what information about the case they have been exposed to, from what sources, and whether they have formed an opinion about the case, the guilt or innocence of the accused, and the lawyers representing each side.

Personal questions regarding whether anyone has been a victim of a crime or accused of a crime also should be asked out of the presence of other jurors. Whether we will be permitted to observe that process remains to be seen.

Keep in mind that there is no limit to the number of challenges for cause that each side may assert. A challenge for cause is a formal request to the Court to excuse a prospective juror on the ground that they cannot or will not follow the jury instructions, which will be the law of the case. For example, a prospective juror who says she cannot presume the defendant innocent, given what she knows about the case, would be challenged for cause by the defense and excused for cause by the judge. The same result would happen to a prospective juror challenged for cause by the State, if he said that he had already decided that the defendant was innocent because TM was the aggressor and he had a right to kill him.

On the other hand, if either or both prospective jurors expressed less certainty and said they could put aside their personal beliefs and base their verdict only on the evidence admitted by the Court, the challenge for cause would be denied.

This unhappy result for the party that lost the challenge for cause would probably result in the use of a peremptory challenge to excuse the prospective juror. With three important exceptions, the party exercising a peremptory challenge does not have to give a reason to support or justify the challenge. The three exceptions are race, gender and religion.

You can reasonably expect the State will object to the defense using a peremptory challenge against a Black prospective juror. To survive the challenge, the defense will have to convince Judge Nelson that they have a reason independent of the prospective juror’s race to support the challenge.

Unless Judge Nelson increases the number of peremptory challenges, each side will get 3. A 6-person jury will decide the case.

For more information, click on Jury Selection in the Categories column on the right side of the web page or click here.

Finally, here’s a link to the latest from the Orlando Sentinel: New evidence in George Zimmerman case: Trayvon texted about being a fighter.

Rene Stutzman and Jeff Weiner breathlessly write:

The text messages about fighting may be the most damaging to the state.

Zimmerman says he acted in self-defense when he shot Trayvon, an unarmed black 17-year-old, in Sanford, Feb. 26, 2012.

Zimmerman described Trayvon to police as an aggressive young man who punched him, knocking him to the ground then climbed on top and began hammering his head onto a sidewalk.

In one text message Trayvon sent Nov. 22, 2011, he wrote about his unnamed opponent, “he got mo hits cause in da 1st round he had me on da ground an I couldn’t do ntn.”

In another text send Dec. 12 he acknowledged earning a reputation in the neighborhood – although because words were blacked out, it’s not clear what his reputation was. His reputation came, he wrote, because of “Duh way I fight nd duh golds (teeth) I had last year.”

Trayvon’s text messages also show that he was interested in guns. A few days before the shooting, he wrote an unidentified friend, “U wanna share a .380”

And about a week before that, he texted a young Miami woman who’s been described as his girlfriend, “U gotta gun?”

Her response: yes, although she did not have possession of it. “It my mommy but she buy for me,” the young woman wrote.

On November 22, 2011, three months before he was killed, he wrote a friend that his mother had ordered him to move out and that he had gotten in trouble for cutting classes.

“I promise my mom just told me I gotta move,” he wrote. Two minutes later, he wrote, “Da police caught me outta school.”

Circuit Judge Debra S. Nelson must now decide whether to allow jurors to learn about the text messages and photos. In paperwork filed earlier this month, Assistant State Attorney Bernie de la Rionda asked her to ban them, describing them as irrelevant.

Latest word on Jodi Arias: Jurors resumed deliberations this morning after reporting yesterday that they were deadlocked.

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How to Nullify Jury Nullification and Obtain Justice for Trayvon Martin

Wednesday, January 2, 2013

I was inspired by Xena to write this article today to warn the prosecution and all of my readers to take the defense seriously in the Travon Martin murder case

She said,

“In GZ’s case, O’Mara would need 6 jurors and the required number of alternates, ALL who believe in GZ’s innocence before they are sworn in as jurors. Nullification in GZ’s case would require all six jurors to find him innocent. That— ain’t — gonna— happen.”

I hope you are right, Xena, but I am not certain that you are.

I prefer to evaluate the case in terms of potential strategies and probable outcomes. I am compulsive by nature and always evaluated my cases in this fashion. There is no downside to being prepared.

I think the defense is focused on the only argument that it believes has any probability of success and that is jury nullification.

Every effort and every public statement appears to be focused on poisoning the pool of prospective jurors in Seminole County by appealing to racism demonizing Trayvon Martin as a crazed Black Gangsta who deserved to die and portraying the prosecution and the Florida Department of Law Enforcement as outsiders who overruled the local authorities and bypassed a local grand jury to prosecute the defendant for political purposes to appease Black “racist rage.” That is, the defense is attempting to maximize the probability of success through the use of sleazy character assassination and grotesque propaganda in a highly focused way that I have only seen in used in elections.

Keep in mind that the defense does not necessarily need to have convinced all six jurors to vote “not guilty” before the trial starts. They just need to convince one or two strong personalities who will serve as their voices during deliberations refusing to vote guilty and pushing the same buttons that O’Mara, West and Robert Jr., are pushing until they finally achieve consensus.

Whether this strategy will succeed in the face of an extremely unlikable defendant and a veritable mountain of evidence of his guilt is unknown and difficult for me to estimate at this time.

I can only do what is within my power to do and that is to illuminate and publicize what I see hoping that my efforts to warn will inspire others to act in ways that will reduce the probability that the defense strategy will succeed.

I believe this case will be won or lost in jury selection.

I firmly believe that an unbiased and unprejudiced jury of reasonable people will reject this defendant’s claim off self-defense and convict him of murder in the second degree. I do not believe there is a reasonable probability that such a jury will acquit this defendant.

However, I believe there is a statistically significant probability that a biased and prejudiced jury will acquit this defendant despite overwhelming evidence of guilt.

If for no other reason than to avoid overconfidence, the prosecution needs to focus on jury selection now to develop a strategy to identify and excuse potential pro-defendant stealth jurors willing to lie in order to get on the jury and wreak havoc.

The prosecution should consider retaining one or more jury consultants familiar with the demographics of Seminole County and polling residents regarding their knowledge and opinions of the case. Careful consideration should be given to developing a comprehensive juror questionnaire that exposes not only bias or prejudice but efforts to conceal bias or prejudice. The prosecution should request additional peremptory challenges since they may be the only means it has to strike dishonest stealth jurors. The use of individual attorney-conducted voir dire is critically important as is cultivating the art of asking open-ended questions, carefully listening to the answers and following-up with insightful and respectful questions to discover and reveal possible biases or prejudices.

I recommend against sequestering the jury because sequestration is equivalent to being imprisoned and that will cause juror hostility to the court to no good end.

This team of prosecutors is on unfamiliar ground and should not assume that they will be regarded with the usual degree of respect to which they have become accustomed on their home turf. They must do everything possible to avoid being seen as an outsider seeking to convict and imprison a decent local citizen to serve the governor’s political agenda.

The defendant’s supporters do not fight fair. They have no respect for the truth and will use any tactic to discredit and intimidate. I know what I am talking about because they have been impersonating me, including using my photograph as an avatar at the Huffington Post and other sites, spreading false and malicious information to discredit me and my efforts to seek justice for Trayvon.

What they have done and continue to do to me pales into insignificance when compared to what they have done to demonize Trayvon and intimidate Dee Dee, Sybrina Fulton, Tracy Martin, the Martin family, Benjamin Crump, Natalie Jackson and others who support justice for Trayvon.

The prosecution is not only on unfamiliar ground in Seminole County, it’s on unfamiliar ground in a propaganda war.

The sooner it acknowledges the potential danger and develops a comprehensive strategy to deal with it the more likely it will obtain a just result and convict this defendant.

Zimmerman: Motion for a Change of Venue

The Sixth Amendment, which is applicable to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Impartial Jury Clause is at issue in the Zimmerman case because of:

(1) The tsunami of outrage nationwide in reaction to State’s Attorney for Seminole County, Norm Wolfinger’s decision not to charge Zimmerman with a crime for killing Trayvon Martin;

(2) Governor Scott’s decision to replace Wolfinger with State’s Attorney Angela Corey;

(3) Wolfinger’s decision to retire;

(4) Angela Corey’s decision to charge Zimmerman with second degree murder;

(5) The firing of Chief Bill Lee of the Sanford Police Department for his handling of the investigation into Trayvon Martin’s death;

(6) The release of much of the evidence in the case to the public before trial; and

(7) the conduct and various miscues of Zimmerman, Mark O’Mara, and Zimmerman’s friend Mark Osterman, who have attempted to try the case in the media to generate sympathy and financial support for Zimmerman’s defense effort.

What we now have is an extraordinary mess in which it seems that everyone in the country, never mind Seminole County, has a strong opinion about Zimmerman’s guilt or innocence.

The question is whether it is possible for Zimmerman to get a fair trial by an impartial jury in Seminole County or anywhere else in Florida and, if not, whether and to what extent should Zimmerman’s conduct by publicizing his case, including going on the Sean Hannity Show and pouring gasoline on the fire by proclaiming that he had no regrets for killing the unarmed teen because it all happened according to “God’s Plan,” should play a role in deciding what should be done about the mess.

Before anyone attempts to answer my two questions, please consider something that I know to be true from personal experience. I have represented clients in high visibility cases where it seemed impossible that any sentient being in the state did not have a strong opinion about the guilt or innocence of my client and in each case we were able to select a jury of twelve people, plus alternates, who claimed to know very little about the case and not to have formed an opinion about the guilt or innocence of my client. That happened in the Casey Anthony case and I predict it will happen in the Zimmerman case too.

The point is there are many people who have no interest in the crime news and never read, watch or listen to it.

There are two potential solutions.

One is for the Court to grant a defense motion for a change of venue, which will likely be forthcoming soon, and follow the procedure used in the Anthony case. Pick the jury in an adjoining county, sequester them for the trial, and try the case in the Seminole County Circuit Court.

The second solution is to wait and see what happens during jury selection. Have all the prospective jurors fill out a questionnaire that asks them to write down what they’ve read, heard or seen about the case and state whether they have formed an opinion about Zimmerman’s guilt or innocence. Then you bring them in and question them individually until you are able to seat a six-person jury, plus alternates.

I favor a mixture of both options.

The Court and both parties have a common interest in doing what they can to assure a fair trial by an impartial jury. They should join together to hire a polling firm and have them design a questionnaire or series of questionnaires to poll citizens in Seminole and Orange County as well the larger urban communities in Miami, Tampa and Jacksonville. Have them tabulate the results and chart any changes over time.

The results of the poll should provide a statistically valid estimate of the probability that Zimmerman can receive a fair trial from an impartial jury in any of those communities.

Without a poll, the Court would not have a sufficient basis to make a decision.

We know from experience that jurors hate being sequestered and their rising anger can affect how they decide the case in unpredictable ways. It’s also extremely expensive. Therefore, sequestration should be avoided, if at all possible.

If the Court is going to allow the jurors to go home, home cannot be somewhere on the far side of the Moon. The poll should help select the proper venue and the best solution might involve trying the case in a distant venue rather than transporting and sequestering the jury in Sanford.

For all of these reasons, I recommend using a poll to select the venue, non-sequestration of the jury, and the use of questionnaires with individual voir dire to select the jury.

Zimmerman: How to Select a Jury Despite the Child Molestation Allegation

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

To keep it simple, we are going to focus on W9’s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?

First, let’s back up. We would have spent the past week developing a juror questionnaire. A section of that questionnaire covered pretrial publicity.

We would have prepared a short summary of the case telling the prospective jurors the names of the defendant who is White/Hispanic and the alleged victim who is Black, the date and location of the incident, a brief statement of what allegedly happened, and a statement that the defendant has admitted shooting the victim to death, but claims he did so in self-defense when the victim attacked and attempted to beat him to death. The victim was unarmed and the incident was extensively reported by the media and discussed over the internet.

Each prospective juror was then asked on the form, if they recalled anything about the incident, and if so, to write down everything they could recall about it.

Then they were asked if they had formed an opinion about the case and, if so, what it was (i.e., guilty or not guilty), whether they had ever expressed it to anyone, and how often they had expressed it.

They also were asked if they had ever argued with anyone about the case.

After the jurors reported to court, they were instructed to fill out the form. They identified themselves by juror number, rather than name, and told the forms would be destroyed after the case.

They also were instructed that they had to be truthful and sign and declare under penalty of perjury that the information they provided was true and correct to the best of their knowledge and belief.

The forms were collected and copied. The prosecution, defense, and the judge each have a set.

We have reviewed our set. We set aside all of the jurors who have no recollection of the case and sorted those who do into two categories: those with opinions and those without.

Now, we aside everyone without an opinion and sort those who do have opinions into two categories: those who believe the defendant is not guilty and those who believe he is guilty.

Since we are representing the defendant, our category of best jurors will include everyone who said he was not guilty.

We are not interested in this group at this time, so we also set them aside

Question: Why do we do that?

Answer: Because jury selection is a process of choosing the prospective jurors we want to eliminate. The final product will be whomever is left after each side eliminates the prospective jurors they do not want. There is a limit to how many prospective jurors we can eliminate, however, so we have to choose carefully.

Therefore, we are going to focus on the category of prospective jurors who believe our client is guilty and rank them according to how strong their opinions are and how much they know about the case.

Those with the strongest opinions based on the most knowledge of the case will be our targeted set of prospective jurors to eliminate. Some portion of these prospective jurors will have commented to the effect that the defendant is a child molester.

We will want the judge to excuse these people.

Individual voir dire: We will question the prospective jurors individually out of the presence of the others to avoid infecting the others with prejudicial information.

Challenges for Cause: We have an unlimited number of challenges for cause. To successfully challenge a prospective juror for cause (i.e., persuade the judge to excuse the prospective juror), we have to show that the prospective juror cannot be fair and impartial.

Establishing that the prospective juror believes our client is guilty is only half the battle. The critical question is whether we can persuade the prospective juror to admit that his or her opinion is so strong that he or she cannot honestly presume our client is innocent.

Peremptory Challenges: We have a limited number of peremptory challenges. When selecting a 12 person jury, each side gets 6 peremptory challenges. Unlike a challenge for cause when we have to convince the judge that the prospective juror cannot be fair and impartial, with only one exception we do not have to provide any reason to support or justify a peremptory challenge. This is why there is a limitation on the number of peremptory challenges.

Exception to the Rule: Neither side can use peremptory challenges to systematically exclude prospective jurors based on race, gender, or religion.

Basis for this exception: To stop the routine prosecution practice in the South of using its peremptory challenges to disqualify all Black prospective jurors in cases where the defendant was Black. Since then, the prohibition has been extended to apply equally to the defense and to cover gender and religion.

What this exception means for us: We cannot use our 6 peremptory challenges to systematically exclude Blacks from the jury.

This does not mean we cannot exclude some Black people, but we have to have a reason unrelated to race and we had better be consistent in excluding White prospective jurors for the same reason.

If we do not, our peremptory challenges will be denied and we will likely be held in contempt of court.

How do we get a prospective juror to admit he or she cannot be fair or impartial?

Answer: We start by asking the prospective juror to explain why he or she believes they can disregard their opinion and presume our client is innocent.

If the prospective juror mentioned the child molester factor, get it out on the table and ask them how they could presume our client innocent, despite believing he is a child molester.

When they finish their explanation, ask them if they had to vote now, without having heard any evidence, what their verdict would be.

The typical response will be, “I can’t do that.”

Why not? you respond.

“Because I don’t have any evidence upon which to base a verdict.”

“Would you want the prosecution to introduce evidence to prove its case?

“Yes, of course.”

“How about the defense. Would you want the defense to introduce evidence to prove self-defense?”

Would you want the defense to introduce evidence to prove he is not a child molester?”

“Yes.”

“What happens if the defense doesn’t change your opinion?”

“I would vote guilty.”

At this point, you thank the prospective juror and say, “Your Honor, I respectfully challenge the prospective juror for cause because he has demonstrated that he cannot presume my client innocent and he would expect us to change his opinion that our client is guilty.”

The prosecution would be permitted to attempt to rehabilitate the prospective juror.

If successful, the judge would deny the challenge for cause and we would have to use one of our precious peremptory challenges to excuse him.

One down, five to go.

If unsuccessful, the judge would excuse the juror for cause and we would still have our 6 peremptory challenges.

In this manner, we would proceed through the panel of jurors until we have passed 24 jurors for cause, plus 3 for 1 alternate. (Total: 27)

If both sides exercise all of their peremptory challenges, there will be 17 left.

If both sides exercise their 1 peremptory challenge each against a potential alternate juror, there will be 12 jurors left, plus one alternate.

Key points to remember:

1. Sort the prospective jurors according to the order in which you want to get rid of them.

2. Keep asking open ended why-type questions and follow-up on the answers.

3. Every time you fail to get a potential juror excused for cause, you will have to use a peremptory challenge to get rid of them.

4, You have only 6 peremptory challenges.