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.

We need to abolish the use of peremptory challenges in jury trials

Thursday, June 26, 2014

Good morning:

The SCOTUS prohibited the use of peremptory challenges, for which no reason must be given, to systematically exclude blacks from juries in criminal trials of black defendants in Batson v. Kentucky.

Batson permits the use of peremptory challenges to exclude blacks from juries so long as the party challenging the juror has a race neutral reason for asserting the challenge.

The Batson rule applies to all cases, whether criminal or civil, and it has been extended to prohibit the use of peremptory challenges to systematically exclude jurors based on gender or religious affiliation.

Unfortunately, a smart lawyer usually can come up with a race neutral “reason” to exclude a black juror, however unlikely, to pass judicial scrutiny.

The reverse side of that racial injustice is the acquittal by all white juries of guilty white defendants who murdered black victims.

We saw that in the Zimmerman trial.

Justice Thurgood Marshall realized games were being played in the aftermath of Batson. He wanted to solve the problem by getting rid of peremptory challenges.

Until recently I disagreed.

I quit practicing law ten years ago and it has taken me this long to finally change my mind and acknowledge that Justice Marshall was right.

We should not be excluding anyone from serving on a jury without a valid reason. By eliminating peremptory challenges, we would be requiring lawyers to present a convincing case for disqualifying a juror, convincing in the sense that opposing counsel would have an opportunity to rehabilitate a challenged juror.

This is how courts handle challenges for cause. Unless unopposed, each challenge for cause becomes a mini trial decided by the judge after each side gets an opportunity to question the challenged juror.

By forcing lawyers to support a challenge with an evidence based reason, instead of a hunch or a prejudice, we would do no more than subject them to the same standard to which we routinely hold police officers when they arrest a suspect. Such a rule would only improve our system of justice.

If you appreciate what we do, please make a donation.

Thank you,

Fred

Jury selection critically important in Dunn case

Saturday, February 1, 2014

Good afternoon:

The Michael Dunn trial starts Monday with jury selection, which will probably play the most significant role in determining the outcome of the trial.

In order to convict Dunn, the prosecution must avoid making the mistakes that it made during jury selection in the George Zimmerman trial.

That means stop preaching to the prospective jurors. Question them instead. Ask “Why?”

Let them talk and reveal themselves.

Be on the lookout for stealth jurors. Right-wing-gun-nut racists who believe that people like Dunn and Zimmerman are great American heroes who should be rewarded for killing black teenagers.

Most prosecutors are lousy at jury selection. Bernie de la Rionda conducted a clinic on how not to do it. Angela Corey should watch a recording of what he did. His failure to ask B-37 why she used the word “riots” to describe peaceful demonstrations and his failure to challenge her for cause or to use a peremptory challenge to get rid of her may have had more to do with the outcome of the trial than anything else.

She must avoid making his mistakes.

Unless, of course, she really wants to lose the case.

Welcome to Day 8 Liveblogging Jury Selection in Zimmerman Trial

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.

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

Court resumes at 9 am EDT.

See you in court.

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

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you

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.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you

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.

_________________________________________________

I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

Why would an Afro-Peruvian defendant want an all white jury

Saturday, March 2, 2013

Good morning.

I write today to warn everyone regarding a probable defense effort during jury selection to exclude all potential jurors who are black, notwithstanding the recent defense claim that the defendant is Afro-Peruvian, whatever the hell that means.

The simple truth is that this defendant self-identified as white until after he killed Trayvon Martin. When he was accused of racially profiling Trayvon, he rather conveniently decided that calling himself White Hispanic and more recently Afro Peruvian would dispel any suspicions that the killing was racially motivated.

Instead, given the convenient timing of his declarations and his confusion of race with nationality unintentionally showcases his intellectual limitations and the desperate lengths to which he will go to deny that he is a racist.

He doth protest too much, methinks.

Therefore, do not be surprised if the defense attempts to use its peremptory challenges to exclude black jurors from the jury.

Recall, that unlike a challenge for cause, a lawyer does not have to explain the basis for a peremptory challenge. Recall too, that the SCOTUS prohibited the use of peremptory challenges by prosecutors to systematically exclude blacks from serving on juries with black defendants in Batson v. Kentucky, 476 U.S. 79 (1986), because such systematic exclusion violates a defendant’s Fourteenth Amendment right to Equal Protection of the laws. See also Miller-El v. Dretke, 545 U.S. 231 (2005).

We have an interesting wrinkle in this case because, if it happens, the defendant will be the party systematically excluding jurors because they are black or non-white, whereas, in Batson and Miller-El the prosecution systematically excluded blacks violating the defendant’s right to equal protection of the laws.

The issue the prosecution must be ready to argue and Judge Nelson must be ready to decide before jury selection is whether the Batson and Miller-El prohibition against the prosecution’s discriminatory use of peremptory challenges applies equally to a defendant.

I believe the answer is “yes,” because to rule otherwise would constitute official judicial approval of discrimination against black jurors in jury selection, so long as the defendant is doing the discriminating. I do not see that happening, if for no other reason than blacks have just as much right to serve on juries as whites.

Consider this language from Justice Blackmun’s majority opinion in JEB v. Alabama ex rel. TB, 511 U.S. 127, 128-129 (1994), in which the Court extended the Batson rule to gender.

In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a `petit jury composed in whole or in part of persons of his own race,’ ” id. , at 85, quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,” 476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992).

Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases 129*129 defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.

(Emphasis added)

White defendants certainly do not have a right to an all white jury. As Justice Blackmun said, they have a right to a jury selected in a non-discriminatory manner.

Therefore, the selection process must be non-discriminatory and that must necessarily apply to all parties and to the Court.

A final thought to consider:

If the defendant is the race-blind Afro-Peruvian that he claims to be, then he ought to submit his case to an all black jury.

What do you think the odds are that he would agree?

If you like this post and the quality of this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.