The 'well-qualified' juror.

In Uttecht v. Brown, the Supreme Court ruled on an issue that seems so narrow--whether a court properly excused a prospective juror for cause in a capital murder case because he expressed ambivalence about the death penalty--that you could well wonder why the Court even bothered with it. But look at the subtext of the case--which concerns how a state's life-without-parole provision might affect juror bias in death penalty cases--and its importance becomes clear. (1)

During voir dire in Uttecht, a prospective juror known as "Z" affirmed his support for the death penalty several times, but he also suggested that it was appropriate only in cases where the defendant "wanted the death penalty" or when "a person ... would reviolate if released." (2) At one point, he reiterated that "it would have to be, in my mind, very obvious that the person would reoffend." (3)

The prosecutor explained that the defendant in the case had no possibility of release because life without parole was the only other sentencing option available and asked again whether Z could think of a scenario in which he could impose the death penalty. Z then an swered, "I would have to give that some thought."

When pressed about whether the state needed to show that a defendant would reoffend for the death penalty to be appropriate, Z said, "I do feel that way if parole is an option, without parole as an option. I believe in the death penalty." (4) (sic) Finally, the following colloquy ensued:

Q. But in the situation where a person is locked up for the rest of his life.... Do you think you could also consider and vote for the death penalty under those circumstances?

A. I could consider it, yes.

Q. Then could you impose it?

A. I could if I was convinced that was the appropriate measure. (5)

The state challenged Z for cause, claiming that he was confused about the conditions under which the death penalty could be imposed, and the defense did not object. The court excused juror Z.

A matter of perspective

Viewed from one perspective, Z might have been expressing perfectly reasonable concerns about the use of the death penalty in cases where there was no possibility of recidivism. The case for this view was made most strongly in a Ninth Circuit opinion by Judge Alex Kozinski, who--as Justice John Paul Stevens went out of his way to note in his dissent--was a former Burger clerk (6) and therefore not, by implication, some long-haired, Birkenstock-wearing, Clinton-appointed, Ninth Circuit hippie.

Kozinski wrote,

In essence, Z's views on whether to impose the death penalty mirrored Washington's death penalty statute itself: He believed a defendant should be put to death where his crime was appropriately severe but not otherwise, and was willing to take into account mitigating factors (mental health issues, for example), aggravating factors (likelihood of recidivism, for example), and the particular circumstances of the instant murder. Additionally, he was open to considering other types of mitigating circumstances, such as "somebody's childhood" or "emotional development," was welcoming of his fellow jurors' views, and was accepting of the heavy responsibility assigned to jurors by the state. Most importantly, he promised he would "follow the law" without reservation. (7)

Another way to view Z's responses is to consider him at least confused, and possibly unwilling to vote for the death penalty in a case like this where life without parole was the only alternative. The Supreme Court's majority opinion, by Justice Anthony Kennedy, took this view. The majority applied the standard laid out in Wainwright v. Witt, which requires the trial court to determine "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." (8)

The Court emphasized that Witt "instructed that, in applying this standard, reviewing courts are to accord deference to the trial court," (9) and "thus, where there is ambiguity in the prospective juror's statements, 'the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of the state.'" (10) The Court further noted that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) required similar deference. (11)

The Court pointed out that the defense attorney in Uttecht did not object to the striking of juror Z for cause, even though "for other jurors the defense objections were vigorous and, it seems, persuasive." (12) Accordingly, the Court deferred to the trial judge's decision to grant the prosecutor's motion to strike Z for cause.

The dissent--written by Stevens and joined by three others--viewed Z as "everyjuror":

   Millions of Americans oppose the death penalty. A cross-section of
   virtually every community in the country includes citizens who
   firmly believe the death penalty is unjust but who nevertheless are
   qualified to serve as jurors in capital cases. An individual's
   opinion that a life sentence without the possibility of parole is
   the severest sentence that should be imposed on all but the most
   heinous cases does not even arguably "prevent or substantially
   impair the performance of his duties as a juror in accordance with
   his instructions and his oath."

   Moreover, an individual who maintains such a position, or even one
   who opposes the death penalty as a general matter, "may not be
   challenged for cause based on his views about capital punishment."
   (13)

Stevens bolstered his opinion by quoting then-Justice William Rehnquist's opinion in Lockhart v. McCree, a quotation the Ninth Circuit also used:

   It is important to remember that not all who oppose the death
   penalty are subject to removal for cause in capital cases; those
   who firmly believe that the death penalty is unjust may
   nevertheless serve as jurors in capital cases so long as they state
   clearly that they are willing to temporarily set aside their own
   beliefs in deference to the rule of law. (14)

But Rehnquist would undoubtedly have agreed with the majority's view that Z's statements were not that clear and that, under the circumstances, it was appropriate to defer to the trial court's decision to strike him. So why do the four dissenting justices object so strongly to this deferral--one that both Witt and the AEDPA seem to demand--in a case where the juror's responses are ambiguous?

A deadly conundrum 

As University of Michigan Law Professor Samuel Gross has noted, when a capital jury has the option of life without parole, only about half of those jurors will choose the death penalty. (15) In those cases, excluding jurors who oppose the death penalty has the effect of excluding half the population. What's left is a population of jurors that is not representative of the country as a whole and is unduly likely to both convict the defendant and sentence him or her to death.

This is the Court's conundrum. It must allow prosecutors to strike for cause jurors who declare, "I would not vote for the death penalty if life without parole is an option," because those jurors are effectively declaring that they plan to ignore the law. And yet, as Eric Freedman, a constitutional law scholar at Hofstra University, has pointed out, "as a brute matter of statistics, the farther you go in death qualification, the more wrongful convictions you will get." (16) A jury as "well qualified" as the one in this case is likely to be dominated by white male Republicans--hardly a representative cross-section of the public, and a prosecutor's dream. (17)

This means that states like Washington, which have adopted life without parole as a humane alternative to the death penalty, have, ironically, made it more likely that some defendants will be wrongfully convicted and then sentenced to death. This unintended consequence is the end result of Uttecht.

If there is a way to avoid this result, it might be by adopting something similar to Stevens's approach. If a juror is ambivalent about the death penalty and seems unlikely to apply it when life without parole is an option but says, as Z did, that he or she could impose it "if I was convinced that was the appropriate measure," then that juror should be allowed to serve--even if the trial judge disbelieves him.

Does this mean accepting a lie? Consider that the law is willing to assume that jurors will disregard something they heard in court when the judge tells them to, even though we don't really believe that they can. In the same way, we should assume that when a juror says he could apply the death penalty in a case, he really is willing to--even if that assumption is not credible. The cost of such a fiction--that some people might get life without parole when they might have received the death penalty--seems small compared to the cost of the alternative.

Notes

(1.) 127 S. Ct. 2218 (2007).

(2.) Id. at 2227.

(3.) Id.

(4.) Id.

(5.) Id. at 2237-38.

(6.) Id. at 2244 (Stevens, J., dissenting).

(7.) Brown v. Lambert, 451 F.3d946, 949 (2006) (citation omitted).

(8.) 469 U.S. 412, 424 (1985).

(9.) Uttecht, 127 S. Ct. at 2223.

(10.) Id. (quoting Witt, 469 U.S. 412).

(11.) Id. at 2224.

(12.) Id. at 2225.

(13.) Id. at 2239 (quoting Witt, 469 U.S. 412).

(14.) Id. at 2240 (citation omitted).

(15.) Adam Liptak, Court Ruling Expected to Spur Convictions in Capital Cases, N.Y. Times A1 (June 9, 2007).

(16.) Id. at A12.

(17.) Id.

CRAIG M. BRADLEY is the Robert Lucas Professor of Law at Indiana University in Bloomington. He can be reached at [e-mail].