The Brief

[LACurry]

News247, the rationale given for keeping in it one of the Bay area counties was to limit the costs to the prosecution and the inconvenience for the Rocha family and all of the witnesses coming from Modesto. I think the prosecution could have kept its own costs down by not calling so many irrelevant witnesses.

I agree 100%

[LACurry]

Regarding the jurors dismissed who stated they were opposed to the DP - IIRC, Delucchi (sp? been so long to remember!) handled numerous DP cases during his career. I wonder if this same argument was brought up by others during their appeal process, and if Delucchis' rulings were upheld?

The way Mr. Gardner has it all spelled out is very convincing (to me, anyway).

Found this article ... Let's just say Delucchi's record is pretty good

http://www.sfgate.com/news/article/THE-PETERSON-TRIAL-Profile-Trial-judge-no-2826196.php#page-2

In addition to his personal attributes, Delucchi has shown a remarkable skill for getting it right on the law. Of the seven published appeals-court decisions involving Delucchi's cases, none reverses his rulings.

"He takes some pride in not having been reversed much, and he has been known to mention that," Cole says with a chuckle.

Well, he's overdue, isn't he.

YUP....lol

[LACurry]

http://www.capitalpunishmentincontext.org/resources/deathqualification

Interesting article on death qualified juries. Personally, I don't see how this alone won't cause a reversal.

[News247]

Regarding the jurors dismissed who stated they were opposed to the DP - IIRC, Delucchi (sp? been so long to remember!) handled numerous DP cases during his career. I wonder if this same argument was brought up by others during their appeal process, and if Delucchis' rulings were upheld?

The way Mr. Gardner has it all spelled out is very convincing (to me, anyway).

Found this article ... Let's just say Delucchi's record is pretty good

http://www.sfgate.com/news/article/THE-PETERSON-TRIAL-Profile-Trial-judge-no-2826196.php#page-2

In addition to his personal attributes, Delucchi has shown a remarkable skill for getting it right on the law. Of the seven published appeals-court decisions involving Delucchi's cases, none reverses his rulings.

"He takes some pride in not having been reversed much, and he has been known to mention that," Cole says with a chuckle.

Well, he's overdue, isn't he.

YUP....lol

haha - yes! very overdue i have been lost somewhere deep in the internet trying to find any other appeals filed by gardner or any others filed about this particular juror issue - no luck, but i DID find 'justia' - gosh, you can read for hours - i need toothpicks for my eyes now

[News247]

http://www.capitalpunishmentincontext.org/resources/deathqualification

Interesting article on death qualified juries. Personally, I don't see how this alone won't cause a reversal.

umm- i don't know - this part doesn't sound so good (??)

Wainwright v. Witt (1985)

The Supreme Court replaced the death qualification standards of Witherspoon with the standards of Wainwright v. Witt. The Witt standard gave more discretion to the judge in death qualification. The judge decides whether the jurors’ attitudes toward the death penalty would “prevent or substantially impair” their ability to decide on sentence fairly. This decision broadened the range of people who could be excluded by death qualification.


good info there though - thanks for the link - going to go sleep a while before i try to make sense of it, lol

[News247]

News247, the rationale given for keeping in it one of the Bay area counties was to limit the costs to the prosecution and the inconvenience for the Rocha family and all of the witnesses coming from Modesto. I think the prosecution could have kept its own costs down by not calling so many irrelevant witnesses.

I agree 100%

marlene - my thinking is, if it's just gonna be moved across the street, why not stay home and save all the money? But i do see what you are saying - it just never made any sense at all to me.

[marlene]

News247, the rationale given for keeping in it one of the Bay area counties was to limit the costs to the prosecution and the inconvenience for the Rocha family and all of the witnesses coming from Modesto. I think the prosecution could have kept its own costs down by not calling so many irrelevant witnesses.

I agree 100%

marlene - my thinking is, if it's just gonna be moved across the street, why not stay home and save all the money? But i do see what you are saying - it just never made any sense at all to me.

I totally agree, News247 -- might as well have kept it in Modesto.

[LACurry]

http://www.capitalpunishmentincontext.org/resources/deathqualification

Interesting article on death qualified juries. Personally, I don't see how this alone won't cause a reversal.

umm- i don't know - this part doesn't sound so good (??)

Wainwright v. Witt (1985)

The Supreme Court replaced the death qualification standards of Witherspoon with the standards of Wainwright v. Witt. The Witt standard gave more discretion to the judge in death qualification. The judge decides whether the jurors’ attitudes toward the death penalty would “prevent or substantially impair” their ability to decide on sentence fairly. This decision broadened the range of people who could be excluded by death qualification.


good info there though - thanks for the link - going to go sleep a while before i try to make sense of it, lol

Well, as outlined in The brief, I believe there are requirements as to how one goes about qualifying the prospective juror and I do not believe that was done...the judge just struck them off the list without asking them if they could follow the lae even though they were against DP

[marlene]

http://www.capitalpunishmentincontext.org/resources/deathqualification

Interesting article on death qualified juries. Personally, I don't see how this alone won't cause a reversal.

umm- i don't know - this part doesn't sound so good (??)

Wainwright v. Witt (1985)

The Supreme Court replaced the death qualification standards of Witherspoon with the standards of Wainwright v. Witt. The Witt standard gave more discretion to the judge in death qualification. The judge decides whether the jurors’ attitudes toward the death penalty would “prevent or substantially impair” their ability to decide on sentence fairly. This decision broadened the range of people who could be excluded by death qualification.


good info there though - thanks for the link - going to go sleep a while before i try to make sense of it, lol

But Witt repeatedly says the judge makes the decision based on questioning the jurors. That's the point in the appeal -- Delucchi made his decisions based solely on their questionnaires.

edited to add: oops, I see LaCurry had already made the same point.

[mschulter]

When I read the portions of the brief regarding the
jury selection and penalty phase issues, I was
astounding that a trial judge would be quite so crude
in ruling that a juror could be excluded for cause
simply for checking an item on a questionnaire
indicating general opposition to the death penalty!
I'd call it plain error.

A clever "hanging judge" would have permitted the
defense to question at least those jurors who
indicated that they were "opposed" but could follow
the law; and then lean toward disqualifications for
cause in close causes where a juror was arguably
"indecisive" or "ambivalent" about his/her ability to
follow the law. Concluding that a juror would
"probably" be "substantially impaired" under
_Wainwright v. Witt_ (1985), where there's some reasonable
basis for doing so, could exclude lots of jurors
tending toward life (and maybe also acquittal), and
would be hard to challenge on appeal -- especially in
federal habeas corpus proceedings, where a double
deference both to the correctness of state court
factfinding and to the trial judge's evaluation of a
juror comes into play under current law.

However, this judge read _Witt_ not merely to water
down _Witherspoon v. Illinois_ (1968), but to overrule
its whole point: that a trial judge can't simply
dismiss prospective jurors wholesale because of
general scruples or opinions against capital
punishment. The test is whether the juror could follow
state law as instructed by the court.

Under the original _Witherspoon_ decision, this was a
very strict standard: the juror had to make it
unmistakeably clear that he/she couldn't consider
returning a death verdict. _Witt_ and other decisions
of the 1980's indeed loosened things up a bit: the
test is one of whether the juror would be
"substantially impaired" in following state law, and
in cases where the juror is ambiguous or noncommital
as to her/his ability to follow the law, the trial
judge has lots of scope to find probable "impairment"
and dismiss for cause. But this judge simply carried
_Witt_ too far, and misread it in a really egregious
way.

Traditionally in California law as under _Hovey v.
Superior Court_ (1980), and more recently under
federal law as well, e.g. _Morgan v. Illinois_
(1992), there's a delicate balance. Jurors unable
fairly to consider a decision in either direction,
for life or for death, are excludable for cause.
But some leaning, even a strong one, in either
direction, is no disqualification -- as long as the
juror is willing to follow the instructions of the
court and the law of the state.

As the brief makes clear, we can appreciate the
absurdity of the error committed in this case by
imagining that a trial judge were to strike all jurors
who checked an item on the questionnaire to show that
they were in "support" of the death penalty -- since
some of them might be substantially impaired in
considering and acting upon mitigating factors which
might call for a life verdict, and thus excludable
under _Morgan v. Illinois_!

Usually these _Witherspoon_-_Witt_-_Morgan_ issues are
a bit more subtle: a juror who may be unable to
consider the death penalty for a specific type of
crime where it's available under state law (e.g. first
offense, no torture, only one victim, questionable
intent to kill by an accomplice in a felony-murder
case), or a specific type of mitigating evidence (e.g.
history of being a victim of child abuse, mental
illness or brain injury, good previous record). And
under decisions like _Uttecht v. Brown_ (2007), the
trial judge has lots of scope for discretion.

But here, to borrow a phrase from Charles L. Black, a
great attorney, we don't need to count the number of
molecules of air between the ball and the bat to know
that this judge has struck out in interpreting
_Wainwright v. Witt_.