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.

Game within the Game: Despite strong case prosecutor may lose Wafer trial in jury selection

June 20, 2014

Friday, June 20, 2014

Good evening:

Judge Dana Hathaway granted a prosecution motion today in the Theodore Wafer murder case that will permit them to provide the jury with transcripts of statements he made during his 911 call and subsequent interrogation by police regarding shooting and killing 19-year-old Renisha McBride.

Armed with a 12 gauge shotgun, he unlocked, opened his front door, and shot her in the face through the locked screen door in response to her knocking on his door early one morning before sunrise. She was unarmed.

He was charged with second degree murder and is claiming self-defense, even though he initially said he fired the gun accidentally.

Game within the Game:

Wafer has a classic were-you-lying-then-or-are-you-lying-now predicament to credibly explain why he said accident when he meant to say self-defense. Since the prosecutor wants transcripts of what he said, there must be other inconsistencies and contradictions that the prosecutor wants to use to skewer him.

People are better at remembering what they read compared to what they see or hear and their recall improves substantially beyond that, if they simultaneously read what they see and hear.

In other words, ain’t nothing in those statements that will help Mr. Wafer.

The Detroit Free Press reported this afternoon that Judge Hathaway continued the hearing to next Thursday (6/26) regarding the defense motion to introduce bad character evidence about Renisha McBride.

The defense is claiming that her social media, including photos on her cell phone, and school records are admissible to show that she had an aggressive and violent disposition.

She will also take up the defense motion to introduce evidence that the character of the neighborhood was changing and McBride may have been knocking on his door by mistake thinking a marijuana dealer lived there.

I do not believe that any of that evidence is admissible.

I am concerned about one thing the prosecutor said today.

The prosecution asked for a jury pool of 200 people today, saying it only plans to ask prospective jurors a few questions: Do you know about this case? What do you know about it? And can you be fair?

Game within the Game:

Colossal mistake equivalent to going to bed at night leaving your back door wide open with an engraved invitation to burglars to come in and steal everything while you sleep.

The problem of jury nullification by racially prejudiced stealth jurors determined to acquit white defendants who murder unarmed black victims, regardless of the evidence, is painfully real. The answers to those three questions will not help the prosecutor determine whether any potential juror is a stealth juror.

The prosecutor who said that is inviting disaster.

Trial is scheduled to start July 21st.

A few words about me: I rely on my 30-year experience as a felony criminal defense attorney and my three years experience as a law professor to analyze the game within the game explaining the applicable rules of law and procedure and the reasons why the lawyers and judges do what they do.

My goal is to assist readers to see through to the heart of a case despite the confusing turmoil of words and phrases that often conceal it.

To educate is to liberate.

If you enjoy and appreciate what I do, please make a donation.

Thank you,


Zimmerman: To Sequester or Not to Sequester, That is the Question

September 21, 2012

I oppose juror sequestration and recommend that it be abolished. I believe many judges, prosecutors and defense attorneys agree. I write to support my recommendation and to solicit your views regarding this important matter.

I practiced law in Seattle for 30 years. I do not recall any trial during that time where jurors were sequestered. I am not saying it did not happen, but if it did, I do not recall it.

Judges, prosecutors, defense lawyers and jurors hate the idea. So do the people who have to police the jurors by screening all information that comes to them and redacting anything about the case.

The jurors might as well be locked up in jail and they never would have agreed to serve as jurors, if they knew what it was going to be like.

I have discussed this issue with other criminal defense lawyers from other parts of the country, whom I got to know through my involvement in the National Association of Criminal Defense Lawyers, and we all agreed that sequestration is a bad idea. We knew the jurors would hate it and we feared they would take out their frustrations on our clients.

As I devoted more of my time and efforts during my career to learning forensics and representing people potentially facing the death penalty, I found myself in more complex and lengthy trials.

For example, one death penalty trial went on for 9 months. The shortest trial lasted 3 months. The strain on everyone involved in the process, including the jurors, was incalculable.

If they had been denied access to the comforts of home and hearth during that time, I would not have been surprised if some of them had cracked and assaulted their keepers or just fled the madness and disappeared.

I knew one thing for certain. I would never have tolerated being sequestered, if I were a juror. For that reason alone, I would never ask for a jury to be sequestered and would oppose a prosecution request to sequester.

At some point, we have to get smart, acknowledge human nature, and stop trying to hold back the sea. Jurors are going to watch TV, read newspapers, listen to the radio, surf the internet and discuss the case with their domestic partners and close friends.

Rather than ban those activities and set them up to commit perjury by insisting they swear not to do those things, we should educate and warn them regarding the potential dangers of outside influences and remind them daily of their solemn duty and responsibility to base their decision on the evidence introduced in court.

Jurors should be encouraged to note and inform the judge and the lawyers when outside information about the case reaches them. Segregating that information into a category labeled with the word “Ignore,” reinforced by a jury instruction ,probably is the best way to limit, if not eliminate, the problem posed by outside information influencing the jury to reach an improper verdict.

Treating jurors with honesty and respect, instead of suspicion and distrust, as though they were naughty children requiring continuous adult supervision, is the mature, honorable and decent way to go.

Disregarding inadmissible evidence is a task judges are required to perform on a regular basis. Some take that obligation seriously and some do not. Some are better at it than others.

Some judges are so corrupt that they will invent evidence to support conclusions they intend to reach, despite the evidence.

The jury system was created to address this last category of judges by preventing the Crown from depriving people of their property, liberty and lives without just cause.

Since the jury system was created, judges and lawyers have attempted to control what jurors do and how they do it. The clearest example that comes to mind is the effort to outlaw jury nullification.

Jury nullification occurs when a jury decides to disregard the law as set forth in the instructions and return a verdict of “Guilty” or “Not Guilty,” according to what it decides to be the “right” decision, regardless of the law.

Here are two examples of jury nullification that illustrate opposite extremes.

In the first case, a jury acquits a young man of failing to register for the draft during an unpopular war despite evidence that he refused to register because he was opposed to the war.

In the second case, an all White jury convicts a Black defendant of the rape-murder of a White woman and sentences him to death, despite DNA evidence that exculpates him.

The fear of jury nullification is so strong that any lawyer who mentions it is likely to be summarily held in contempt, ordered to jail and a mistrial granted.

A reasonable possibility exists that a jury will be sequestered in the Zimmerman case, assuming Judge Nelson denies Zimmerman’s motion for immunity from civil and criminal liability and the case proceeds to a jury trial. Due to Florida’s Sunshine Law, we are familiar with most of the evidence that will be admitted at the trial, as well as evidence that will be excluded.

Assume that you have been selected as a juror in the Zimmerman case.

My questions:

(1) Having been exposed to inadmissible evidence, such as W9’s accusation that Zimmerman sexually abused her multiple times during a ten-year period that began when she was 6-years-old and he was 8-years-old, do you believe you could ignore her accusation and base your individual verdict only on the evidence admitted in court?

(2) Assuming your answer is “Yes,” why do you think you could ignore it?

Now let us expand the scope of the two questions to include all of the evidence and information you know and your opinion of Zimmerman’s guilt or innocence. Have your answers changed?

(3) Do you believe it is possible for you to presume Zimmerman innocent, given what you know?


(4) Knowing what you know, would you find him “Not Guilty,” if the prosecution fails to meet its burden of proof because it did not introduce evidence that you recall?

Aye, there’s the rub.

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