The Brief

[marlene]

LACurry -- I don't read that as license for the judge to dismiss based only on the questionnaire. I think a reasonable reading is that after his review, the Judge would determine which jurors he would object to even if they passed muster by the defense and state. I base this on "prospective jurors" in the last sentence is used in the same manner as in the first sentence. I would expect that if the judge had the right under this rule to eliminate based ONLY on the questionnaire as a routine matter of fact, the last sentence would read "the remaining prospective jurors." Or "upon completion of the court's initial examination and removal of prospective jurors for cause, counsel for each party . . ." Therefore, I think this rule is not an automatic permission for the judge to dismiss based only on the questionnaire.

In a criminal case, the court shall conduct an initial
examination of prospective jurors. The court may submit to the
prospective jurors additional questions requested by the parties as
it deems proper. Upon completion of the court's initial examination,
counsel for each party shall have the right to examine, by oral and
direct questioning, any or all of the prospective jurors.

So, I think the judge must have unequivocal evidence that a juror is not suitable to be on the jury -- he can't just peremptorily dismiss without cause, like the defense counsel and DAs can. So we're back to whether the questionnaires for those dismissed jurors justified the dismissals.

[mschulter]

Isn't the problem that only death qualified
jurors were subjected to voir dire?

I think the problem is that he
excused from service 30 some jurors that he did not believe we're death
qualified. I really don't know if he kept any that he didn't think were
qualified. His interpretation of qualified, however, differs greatly from
abundant case law and even by his actions in all the other death penalty
cases that went to appeal.

Quickly, LACurry, you're absolutely right, as the very useful guide to death
qualification posted in this thread confirms. And even a fairly permissive
case about disqualification based on questionnaire replies alone like
_People v. Thompson_ (2010) 49 Cal.4th 79 which I learned about here
addresses replies indicating that people would _never_ impose death in the
penalty phase, or convict of a death-eligible crime in the guilt phase,
classical disqualifications since _Witherspoon v. Illinois_ (1968).

"This person said they're opposed to the death penalty, so they wouldn't
meet _Wainright v. Witt_, and we don't need to waste time on them in voir
dire" -- a fair paraphase of what Judge Delucchi was ruling some of the time
in the Peterson case -- is exactly what _Witherspoon_ and _Witt_ prohibit.

In fact, I'd say that a California Supreme Court justice who actually wants
to resolve gray areas in favor of the prosecution might reverse the death
sentence in Scott's case to show what's impermissible, leaving open the
conclusion that almost everything short of that might stand on appeal.

An important bit of good news, at least under the traditional law of
_Witherspoon_ and _Witt_ as applied by the United States Supreme Court: an
improper challenge for cause of a juror who has simply indicated general
opposition to the death penalty is what's called "structural error." It
isn't necessary to ask whether the penalty decision might have really come
out otherwise if the error hadn't occurred, or whether there are unexhausted
preemptories: one erroneous exclusion for cause is enough! Two classic cases
on this theme are _Davis v. Georgia_ (1976) 429 U.S. 122; and _Gray v.
Mississippi_ (1987) 481 U.S. 648.

Over the last day I've been focusing on a sketch of some arguments for a
possible amicus brief, but this discussion is very valuable, and I totally
agree that the kind of jury selection error we're talking about here was
both evidently unprecedented for Judge Delucchi, and contrary to some
precedents which might almost be called "black letter law" -- that is,
textbook stuff that anyone studying death penalty law today would become
aware of very quickly.

[mschulter]

LACurry -- I don't read that as license for the judge to dismiss based only on the questionnaire. I think a reasonable reading is that after his review, the Judge would determine which jurors he would object to even if they passed muster by the defense and state. I base this on "prospective jurors" in the last sentence is used in the same manner as in the first sentence. I would expect that if the judge had the right under this rule to eliminate based ONLY on the questionnaire as a routine matter of fact, the last sentence would read "the remaining prospective jurors." Or "upon completion of the court's initial examination and removal of prospective jurors for cause, counsel for each party . . ." Therefore, I think this rule is not an automatic permission for the judge to dismiss based only on the questionnaire.

In a criminal case, the court shall conduct an initial
examination of prospective jurors. The court may submit to the
prospective jurors additional questions requested by the parties as
it deems proper. Upon completion of the court's initial examination,
counsel for each party shall have the right to examine, by oral and
direct questioning, any or all of the prospective jurors.

So, I think the judge must have unequivocal evidence that a juror is not suitable to be on the jury -- he can't just peremptorily dismiss without cause, like the defense counsel and DAs can. So we're back to whether the questionnaires for those dismissed jurors justified the dismissals.

[mschulter]

LACurry -- I don't read that as license for the judge to
dismiss based only on the questionnaire. I think a reasonable reading is
that after his review, the Judge would determine which jurors he would
object to even if they passed muster by the defense and state. I base this
on "prospective jurors" in the last sentence is used in the same manner as
in the first sentence. I would expect that if the judge had the right under
this rule to eliminate based ONLY on the questionnaire as a routine matter
of fact, the last sentence would read "the remaining prospective jurors." Or
"upon completion of the court's initial examination and removal of
prospective jurors for cause, counsel for each party . . ." Therefore, I
think this rule is not an automatic permission for the judge to dismiss
based only on the questionnaire.

In a criminal case, the court shall conduct an initial
examination of prospective jurors. The court may submit to the
prospective jurors additional questions requested by the parties as
it deems proper. Upon completion of the court's initial examination,
counsel for each party shall have the right to examine, by oral and
direct questioning, any or all of the prospective jurors.

So, I think the judge must have unequivocal evidence that a juror is not
suitable to be on the jury -- he can't just peremptorily dismiss without
cause, like the defense counsel and DAs can. So we're back to whether the
questionnaires for those dismissed jurors justified the dismissals.

Here's where there's a real distinction between _Witherspoon_ (1968) and the
later _Witt_ (1985) -- but not a distinction that makes a difference for the
13 jurors dismissed in Scott's case simply for being "opposed" or "strongly
opposed" to the death penalty, and nothing more.

Under the original _Witherspoon_, to be dismissed for cause the juror had to
make it _unmistakably_ clear that he or she could _never_ impose death; or
would be unable impartially to decide the defendant's guilt of a
death-eligible crime ("death-eligible" is a more modern term, but that the
gist).

Under _Witt_, however, the evidence no longer has to be "unmistakable" or
"unequivocal." A lot of _Witt_ is along the lines that there are lots of
jurors who are either unable or unwilling to pin down their own views.
Where the answers are conflicting or unclear, e.g. "I don't think I would be
able to impose death, but I'm not sure," the judge has a free hand to decide
if the juror would really be capable of following the law and considering
both possible penalties.

However, there still needs to be some specific evidence that a juror isn't
just "opposed," or even "strongly opposed," but also is unwilling or unable
to put aside those views to the extent of fairly considering both penalties.
And since Judge Delucchi didn't question those particular 13 jurors, there's
no evidence at all! So this is the rare case where _Witt_ has been blatantly
violated, and reversal of the death sentence should be automatic.

As an aside, if by some fluke the California Supreme Court actually uphold
the death sentence (a nightmare!), I wonder if the U.S. Supreme Court might
grant certiorari and write a quick reversal, in the spirit of _Davis_ and
_Gray_, just to make clear that even under _Witt_ there are some things, to
recall Winston Churchill, up with which they will not put.

There's a view that the USSC is there to develop new law and resolve serious
conflicts between lower courts (e.g. different U.S. Circuit Courts of
Appeals taking clashing positions on a given constitutional question), not
to correct obvious goofs which lower federal courts could tidy up on habeas
corpus. (Usually challenging a trial judge's death qualification decisions
on federal habeas is really tough, but here it would be a breeze.) But from
time to time, the Court seem to take the opportunity to remind state courts
that at least some semblance of _Witherspoon_ is still the law.

[marlene]

As noted several times, Delucchi specifically cites Wainright v. Witt as his justification, over Geragos's objections, so he has put himself under the burden of meeting that standard.

mschulter, writing an amicus brief is a great idea. What can we do to help?

[marlene]

one other thing -- the brief did not mention Geragos's requests to 1) have 2 juries, one for guilt and one for penalty, and 2) to sequester the jury for the duration of the trial. I thought especially since the media coverage was brought up, that the brief would specifically mention Delucchi's denial to sequester the jury as a remedy. Or did I miss that in the brief?

[LACurry]

The number of jurors dismissed due to answers on the questionnaire is far greater than what was mentioned in the appeal!

http://articles.cnn.com/2004-03-09/just ... ?_s=PM:LAW

Peterson judge to hear new change of venue motion

The judge in Scott Peterson's murder trial will delay jury selection to consider a new motion for a change of venue from Peterson's attorney.

Attorney Mark Geragos asked for the high-profile trial to be moved again because jury questionnaires show a large percentage of potential jurors have "prejudged" the guilt of his client.

"I need to bring to the court's attention the prejudgment rate, which I believe is at a level that the Supreme Court said the court needs to take some action," Geragos said.

Judge Alfred Delucchi scheduled oral arguments on the motion for March 22 and said he will rule from the bench.

If Delucchi does not agree that there needs to be a change of venue, said Geragos, he should reconsider a defense request that there be two separate juries in the Peterson trial -- one to decide Peterson's guilt or innocence and another to decide his punishment if the verdict is guilty.

If Delucchi rules against both those motions, said Geragos, he should grant the defense extra jury challenges "to compensate for the high level of prejudgment."

Geragos also asked for more time for the defense to go over the lengthy questionnaires being filled out by prospective jurors. Delucchi granted that request.

Delucchi also said next week's scheduled individual interviews with potential jurors will have to be postponed. Those interviews had been scheduled for March 17-18. They will be delayed to allow the defense and prosecution to file arguments over the change of venue motion.

Geragos said of the first 100 potential jurors to fill out questionnaires, 61 were dismissed because of their responses.

Delucchi has said he believes an impartial jury can be found in San Mateo County. He said the court will need to qualify 70 jurors for the pool to accommodate 20 pre-emptory challenges for each. The goal, he said, is to choose 12 jurors and six alternates.

The judge also mentioned he had received a letter from a group of news organizations, including CNN, telling him that the news organizations will appeal his decision to deny putting a camera in the courtroom for the trial.

Peterson, 31, is charged with two counts of murder in the deaths of his wife, Laci, and their unborn son. The former fertilizer salesman has pleaded not guilty.

His trial has already been moved once, from Modesto to Redwood City, because of fears that an impartial jury could not be found in his hometown.

[mschulter]

As noted several times, Delucchi specifically cites Wainright v. Witt as his justification, over Geragos's objections, so he has put himself under the burden of meeting that
standard.

Yes, indeed, as is noted and quoted on p. 73 of the brief, for example.

The main thing I'd add is that since _Witherspoon_ and _Witt_ are the law of
the land as to who _cannot_ constitutionally be excluded for cause in
capital case, Judge Delucchi would be under the burden of meeting those
cases in any event -- or, in practice, as long as Geragos objects or submits
a juror under his standing objection to disqualification merely on the
judge's ground that "Under _Wainwright v. Witt_, if you are opposed to the
death penalty, you are not qualified to serve as a trial juror in this type
of a case." (Brief, p. 74) And Geragos did just that.

mschulter, writing an amicus brief is a great idea. What can we do
to help?

Thank you for the encouragement! One question is which attorney, group of
attorneys, or organization would file the brief. As a nonlawyer, I obviously
wouldn't try to do it myself, and often these briefs are filed by various
advocacy groups, legal societies, or sometimes religious organizations like
the Florida Conference of Catholic Bishops and a former Justice of the
Florida Supreme Court for one brief I did help draft.

Another is what ground the brief should cover. The facts of this case raise
some general issues about California's death penalty system in a very
forceful way. The idea that almost anything can be a "circumstance of the
crime" usable as aggravation to justify the death penalty is carried to its
full absurdity in Scott's case, not as the result of a jury going out of
control on its own, but as a very deliberate prosecution strategy. Reading
the final penalty argument of David Harris had me absolutely outraged!

Trial by media is bad enough, but deliberately asking a jury to use this
method to decide life or death is unconscionable! Actually that might have
been a better argument not before an early 21st-century California jury, but
in the English Parliament in the 15th or 17th century, say, to justify a
bill of attainder by which someone could be sentenced to death without being
convicted of any common law or statutory crime! Just as Parliament could
vote for some new tax or regulation, it could vote to kill someone, being
free to invent the "offense" on the spot. And our Constitution notably
prohibits bills of attainder.

And while the use of victim impact evidence in a capital penalty trial has
long been a controversial area (the U.S. Supreme Court actually reversed
itself in _Payne v. Tennessee_ in 1991, overturning earlier cases barring
such prosecutorial evidence), the prosecution's tactics here went beyond all
limits. Scott's main capital crime was presented not so much as the murders,
but as the "116 days" of uncertainty for the survivors, and for his alleged
imperfect skills as an undertaker. In politics, the coverup can be a worse
offense than the original crime, as was famously true with Watergate. But in
the penalty phase of a capital case, such reasoning is sheer arbitrariness!

My Mom is now in the hospital, and it looks like I'll be going down to Santa
Monica to see her and help with some other family affairs this Wednesday or
so. I should be back by early next month. Let's think this out together.

[mschulter]

one other thing -- the brief did not mention Geragos's
requests to 1) have 2 juries, one for guilt and one for penalty, and 2) to
sequester the jury for the duration of the trial. I thought especially
since the media coverage was brought up, that the brief would specifically
mention Delucchi's denial to sequester the jury as a remedy. Or did I miss
that in the brief?

Hi, Marlene! You didn't miss it: indeed my reading over of the table of
contents with its list of the claims confirms that it isn't there.

And it's actually about as strong an argument in the peculiar circumstances
of this case: Geragos presented these circumstances well when he argued
before Judge Delucchi, although in that same session he committed an
absolute no-no in a capital case (next post)!

The short of it is that _Lockhart v. McCree_ (1986) 476 U.S. 162 is the
classic case holding that full death-qualification of guilt-phase jurors
doesn't violate any constitutional right of the defendant, and so separate
jurors for guilt and penalty aren't required. A State is free to do it in
some or all cases, but doesn't have to under the federal Constitution.

What would be interesting would be more recent studies of jury dynamics.
Actually _Hovey v. Superior Court_ (1980), 28 Cal.3d 1, seems to invite such
studies, and it might be good to use more up-to-date ones than the set that
impressed a lower federal court but failed to carry the day in _Lockhart_
when the case got to the U.S. Supreme Court.

It's been a theme of law review articles over the year, and one sees various
proposals, like maybe having 12 jurors who are only qualified as to
impartiality on guilt (the possible death penalty wouldn't stop them from
_convicting_ of first-degree murder with special circumstances), plus
alternates who are fully death qualified. Then, if a capital conviction
takes place, the 12 main jurors can be qualified as to penalty issues, and
any who are excused for cause can be replaced by alternates.

This is probably about as fair and economical as it gets, with the main
drawback for the Peterson case being that you'd have to find lots of people
willing to serve for five months or whatever. But it gives you a jury where
the people deciding guilt aren't disqualified based on issues only relevant
to deciding the penalty; and everyone who does decide penalty has already
heard the guilt phase of the trial, so that evidence doesn't have to be
repeated in order for the penalty jurors to be fully informed.

Note that the California Supreme Court _could_ decide that the State
Constitution requires more protection against possible bias on guilt from
death qualification than the federal Constitution requires. In the period
leading up to _Hovey_, the Court reached decisions of that kind on issues
like giving an "_Allen_ charge" (pressuring holdout jurors a bit to give in
if their consciences permitted so that there could be a verdict) or the
discriminatory use of preemptory challenges. However, to put things
delicately and avoid getting into a lot of history (unless people want to
go there), the California Supreme Court has a different membership today
than in those days of _Hovey_ that I so vividly remember.

Geragos' big "no-no" is my next post, as promised.

[jane]

LACurry -- I don't read that as license for the judge to dismiss based only on the questionnaire. I think a reasonable reading is that after his review, the Judge would determine which jurors he would object to even if they passed muster by the defense and state. I base this on "prospective jurors" in the last sentence is used in the same manner as in the first sentence. I would expect that if the judge had the right under this rule to eliminate based ONLY on the questionnaire as a routine matter of fact, the last sentence would read "the remaining prospective jurors." Or "upon completion of the court's initial examination and removal of prospective jurors for cause, counsel for each party . . ." Therefore, I think this rule is not an automatic permission for the judge to dismiss based only on the questionnaire.

In a criminal case, the court shall conduct an initial
examination of prospective jurors. The court may submit to the
prospective jurors additional questions requested by the parties as
it deems proper. Upon completion of the court's initial examination,
counsel for each party shall have the right to examine, by oral and
direct questioning, any or all of the prospective jurors.

So, I think the judge must have unequivocal evidence that a juror is not suitable to be on the jury -- he can't just peremptorily dismiss without cause, like the defense counsel and DAs can. So we're back to whether the questionnaires for those dismissed jurors justified the dismissals.

Marlene, does this answer your question? pp. 106-107 of the Brief:

Here, as to each of the 13 jurors discharged by the trial court, it cannot be said that
the record “leave[s] no doubt . . . that [the] prospective juror’s views about the death
penalty would satisfy the Witt standard . . . and that the juror is not willing or able to set
aside his or her personal views and follow the law.” To the contrary, the record shows
the Witt standard was not satisfied as to any of these jurors.

Thus, although each of these 13 jurors was opposed to the death penalty, they each
went on to make clear they had no moral, religious or philosophical beliefs which would
make them “unable to impose the death penalty regardless of the facts.”30 Each of these
jurors stated that their religious and philosophical views would not impede their ability to
serve as jurors.31 In short, the questionnaires of these 13 jurors show only that they were
opposed to the death penalty, nothing more. Moreover, not only did defense counsel
object to each of the discharges, but the trial court made clear there would be no voir dire
of any of the jurors. Discharging these 13 prospective jurors over repeated defense
objection was patently improper. A new penalty phase is required. (Gray v. Mississippi,
supra, 481 U.S. at p. 660 [improper exclusion of a single juror based on opposition to
death penalty warrants reversal].)