Cute 'n Fuzzy Bunny said:
However as you note, someone who merely seems uncomfortable with the death penalty will usually be excused for that reason by the DA,…
As does the defense practice of striking people who they think are too comfortable with the death penalty. If you want to include someone who has a problem with the death penalty then you would have to include the guy who says “hang him – what did he do anyhow?”
Cute 'n Fuzzy Bunny said:
…leading to the situation Caroline has been good enough to provide data regarding.
And many thanks to Caroline, and no offense to her, but I feel compelled to point out some problems I have with that information. The excerpt she posted only gives us a glance at the underlying data and does not paint the complete picture. In fact, and I know my progressive friends here hate it when I do this, there is serious risk that the information was cherry picked long before Caroline ran across it. Not casting any aspersion towards Caroline here, I think she found something interesting and threw it into the pot, but for any of us to actually rely on it without some investigation would be wrong. I do think that the trail of sources that existed before she made that post should be examined for bias in general, as well as Constitutional and scientific validity. But, I’ll return to my opnions on that after I allow the Supreme Court to get their say..
The original studies cited were done in 1984 and were part of a number of studies presented by the defense of a convicted murderer in his appeal before the 8th Circuit Court of Appeals. The defendant in that case, Ardia McCree, shot and murdered the owner of a combination gift shop and service station in Camden, Arkansas.
During McCree’s trial, the judge at voir dire removed for cause, over defense objections, those prospective jurors who stated that they could not under any circumstances vote for the imposition of the death penalty. The jury found McCree guilty, but during the punishment phase they rejected the prosecution’s request for the death penalty and he was sentenced to life in prison.
When his case came before the 8th circuit, McCree claimed
… violated his rights under the Sixth and Fourteenth Amendments to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community. The District Court ruled that "death qualification" of the jury prior to the guilt phase of the bifurcated trial violated both the fair-cross-section and the impartiality requirements of the Constitution. The Court of Appeals affirmed on the ground that removal for cause of "Witherspoon-excludables" violated respondent's Sixth Amendment right to a jury selected from a fair cross section of the community.
McCree’s appeals was reversed because the Supremes found that his rights had not been violated. They said that none of the social science studies presented “…were adequate to establish that "death qualification" in fact produces juries somewhat more "conviction-prone" than "non-death-qualified" juries.”
But it wasn’t the quality of McCree’s science that doomed him. Rather it was the Constitution. The Supremes said that the right to a jury that fairly represents a cross section of the community means the Grand Jury that indicted him and the veniremen from which his jury was selected.
Even if the requirement were extended to petit juries, the essence of a fair-cross-section claim is the systematic exclusion of a "distinctive group" in the community - such as blacks, women, and Mexican-Americans - for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case. Groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the "Witherspoon-excludables" at issue here, are not "distinctive groups" for fair-cross-section purposes. "Death qualification" is carefully designed to serve the State's legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.
Also, they found that…
An impartial jury consists of nothing more than jurors who will conscientiously apply the law and find the facts. Respondent's view of jury impartiality is both illogical and impractical. Neither Witherspoon, supra, nor Adams v. Texas, 448 U.S. 38 , supports respondent's contention that a State violates the Constitution whenever it "slants" the jury by excluding a group of individuals more likely than the population at large to favor the defendant. Here, the removal for cause of "Witherspoon-excludables" serves the State's entirely proper interest in obtaining a single jury (as required by Arkansas law) that could impartially decide all of the issues at both the guilt and the penalty phases of respondent's trial.
His claims were denied because they had no basis in the Constitution. They were charitable in reviewing his appeal in light of the social science studies he had put forth before they came back and said they were worthless:
Before turning to the legal issues in the case, we are constrained to point out what we believe to be several serious flaws in the evidence upon which the courts below reached the conclusion that "death qualification" produces "conviction-prone" juries. McCree introduced into evidence some 15 social science studies in support of his constitutional claims, but only 6 of the studies even purported to measure the potential effects on the guilt-innocence determination of the removal from the jury of "Witherspoon-excludables." Eight of the remaining nine studies dealt solely with generalized attitudes and beliefs about the death penalty and other aspects of the criminal justice system, and were thus, at best, only marginally relevant to the constitutionality of McCree's conviction. The 15th and final study dealt with the effects on prospective jurors of voir dire questioning about their attitudes toward the death penalty, an issue McCree raised in his brief to this Court but that counsel for McCree admitted at oral argument would not, standing alone, give rise to a constitutional violation.
Of the six studies introduced by McCree that at least purported to deal with the central issue in this case, namely, the potential effects on the determination of guilt or innocence of excluding "Witherspoon-excludables" from the jury, three were also before this Court when it decided Witherspoon. There, this Court reviewed the studies and concluded:
"The data adduced by the petitioner . . . are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors [476 U.S. 162, 171] opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was." 391 U.S. at 517-518 (footnote omitted).
It goes almost without saying that if these studies were "too tentative and fragmentary" to make out a claim of constitutional error in 1968, the same studies, unchanged but for having aged some 18 years, are still insufficient to make out such a claim in this case.
You may note that in the piece that Caroline posted for us that all of the citations involved studies and cases from the 1980’s. The most recent study being 1986, which is the same year that the Supremes heard and decided McCree. The same year that the court said the studies were crap in not so few words. Since that time the folks at Law and Human behavior stopped studying that particular anti-death penalty “science” and have moved on to slightly different approaches.
Which got me curious as to who it was that drug this stuff up 10 years later and made a book of it and who then put it on the internet years later. It looks like Caroline lifted her piece from something called TalkLeft.Com. And as I’m being charitable I’ll just agree (for this one time) that because someone goes to all the trouble to so clearly identify their political beliefs to the world by naming their website talk
left does not necessarily mean they're biased. But who was the middle guy – this Samuel Gross – that wrote the book from which all this came?
A former defense attorney in San Francisco, who received his JD at UCLA Berkley whose list of clients and associations with which he has worked since he became a law professor read like the Who’s Who of the death penalty abolition movement. His research projects all center around finding fault with all things used to invoke the death penalty. Maybe I’m just totally wrong, but to me this sounds like the guy who pretty much made up his mind before he started typing the introductory paragraph. IF there was a guy who knew the secret handshake used by the highest levels of death penalty opponents it would be Sam Gross. So, maybe he's a fervently honest guy whose examined this issue thoroughly and came up with what he thinks is the truth. If that is the case, why use old studies that have been repeatedly discredited and have zero legal value?
Perhaps because it has nothing to do with what the Constitution says or what the rules of science allow. Maybe its just about having an opinion and making up crap until somebody falls for it.
