FACDL

DEATH IS DIFFERENT XII
FEBRUARY 17-18, 2006 FT. LAUDERDALE, FLORIDA
BEGINNER JURY SELECTION IN CAPITAL CASES

BY
BARRY M. WAX, ESQUIRE
BARRY M. WAX, P.A.
BRUCE H. FLEISHER, ESQUIRE
BRUCE H. FLEISHER, P.A.

MIAMI, FLORIDA

The following materials are to assist you in selecting a jury as a first time capital litigator.   Enclosed is a sample questionnaire which was drafted and utilized in my last Federal Capital case, as well as several Miami Dade County cases.  You should file a motion to use this in preparation for Voir Dire.  You may request that the trial judge send it out to the prospective venire in advance of their date to report, but we have found that the jurors are more candid and honest in answering the questions when they report for their service.  When they answer this questionnaire in the confines of the jury room, they have much less of a chance of contamination and outside influence from family or friends.  Please feel free to modify or change it.

Depending on the nature of the case, “high profile”, etc., you may request individual Voire Dire on publicity and Death Qualification issues.

Illustration

Introduction

“All the world’s a stage, and all the men and women

are merely players.   They have their exits and their

entrances, and one man in his time plays many parts.” 

Shakespeare’s As You Like It, Act II, ii, 139.

Your Objective

To transmit the imagery and essence of the spoken word to the most important audience in the world, the capital jury.

Your Tools and Skills

Your tools; the only ones we possess for this task are the voice and the body. You must explore, develop, and utilize their potential to the fullest.   To do so, sometimes requires a sublimation of our egos.  We are not all blessed with the voice of a Burton; the polished presence of an Olivier; the spell bounding sincerity of a Darrow; or the rapier like wit of a Will Rogers.  However, working within the confines of our physical being, we can all create our own style.  Most of all, be your confident self and project your presence before this group of strangers in the venire.

To do so, we must realize that impressions are critical to the tasks at hand.   The art of persuasion.  Jurors all have preconceived notions of what a lawyer should look and sound like.  They come to a courtroom expecting to be guided, entertained, directed and ultimately persuaded.

Comparing the Adversaries

The old adage “You never get a second chance to make a first impression” is as, if not more important in the trial of a capital case than in any other facet of life.   Being able to meet twelve complete strangers in the formal setting of a courtroom and to be able to get, and hold their attention is the key to winning in the criminal arena.  Persuasion starts when jurors begin to formulate their opinions of you as a person and as a lawyer.  In order to do that, we first need to understand the dynamics of what things impact on jurors, what captures their imagination, what evokes a response, what lingers in their memories, and creates a memory of your work.

The lawyer who does not grasp the premise that a jury is an audience waiting to be entertained, caressed, wooed, and thereby persuaded, does a disservice to his or her client, and to the profession as a whole.

Your Persona

Whether your opposing counsel is male or female, the jurors are continuously going to compare you to your opponent.   They will compare the way you look, the way you handle yourself, and the way you dress.  Do not dress so conservatively that it looks like you are getting ready for your client’s funeral.  Death penalty cases are somber enough, without you looking like an undertaker!

Your Goal

Give the jury something they can relate to and believe in.   When you discuss the law, speak plain English.  All too often attorneys fall into the trap of reciting law which holds no meaning for jurors.  Countless jury interviews confirm the fact that jurors have very little recall or understanding of legal precepts.  Make the law come alive.  Use anecdotes, analogies, common life experiences, anything which reduces the law to understandable terms.  Jurors will appreciate your coming to their aid in explaining and simplifying what the law really means.  

MOST IMPORTANTLY, TELL THE JURY WHAT THEY HAVE BEEN LONGING TO HEAR.   TELL THEM THAT YOUR CLIENT IS INNOCENT.

Use the innocence statement throughout the Voir Dire process.   Get them used to your position.  Let them know you are going to be a formidable adversary to the prosecution.

The Reality of the Case

As soon as the Judge informs   the prospective panel that this is a death penalty case, the jurors reactions will be obvious.  Heavy sighs, groans, eye rolls, insecurity, change in body language.  Most of all, the phrase Death Penalty will get their attention.

Some of the best trial lawyers do not handle capital cases for obvious reasons.   The stakes are too high, and they do not want an execution on their conscience, no matter how well prepared they are and how well they defended their client.  Imagine how a juror feels to sit in judgment over a person’s life.  You need to bring them into a comfort zone to talk with them to get honest responses.

Loosen up the Panel

By the time it is your turn to speak, the jury will have already been interviewed by the Judge and the prosecutor.   They will be tired, bored, and perhaps thinking of a way to get excused.  You need to get their attention focused on you.  This is your first and best opportunity to open up a dialogue.

What to Ask and Tell Them

Tell them that we have no system of justice without them.

Make them feel that they are the center of attention.

Tell them they are the judges of facts, but they wear no robe.

The one with the robe rules on the law.

Ask them what their reaction was to the jury summons when they opened up their mail.

Ask them how they felt when the Judge announced that this was a first degree murder case, and the State was seeking the death penalty.

Discuss general basic principles/Burden of Proof, Reasonable Doubt, Presumption of Innocence.   Can they follow the court’s instructions.  Do they disagree with these legal concepts?  Do they understand them?  Can they explain to you what they mean?

Discuss the State’s Burden of Proof and the issue of the Defendant Testifying.

Do they promise to follow the law?

Can they be independent evaluators of the facts and the law?

Ask them if you have to prove anything to them, going back to the Burden of Proof.

Let them know that First Phase is very important, and that there may never be a Second Phase.

Your Opening on Penalty Phase Issues

Advise them that the penalty for First Degree Murder is life in prison with no parole/release, or death, if the State can properly meet their burden after a conviction for First Degree Murder in the First Phase.  Assure them that life in prison is life, and that the Court will confirm that as well.  If convicted of First Degree Murder, your client will never be released from custody.

Tell them again that your client is innocent, and convey to them that those death penalty issues are a long way off, and may never come into existence.

Explain to them the Bifurcated Two Phase system in a capital case.

Tell them that we all have jury service obligations, and that this voir dire process is akin to an interview for a job that they may not want, be qualified for, or be able to accept for a number of reasons.

Explain to them that, penalty phase is an “unknown” at this time, and this is a backwards process.   Tell them again that this process is backwards, since they are being interviewed for a job that they may never get to do.  This is because of an acquittal, or a verdict on a lesser charge.  Nevertheless, we need to find out their true feelings about the death penalty.

For example, tell them to assume that if the defendant is found guilty as charged, we need to discuss your feelings about the death penalty.  Can you keep an open mind after the end of First Phase?

Advise them that their job as jurors involves making very important decisions. 

Impress on them that these crucial decisions that they will be making are equally or more important than family or job related decisions, or any other decision that they will make in their lives.

Never use the term Guilt Phase.  Always refer to it as First Phase.

Let the Questions Begin

Throw out the following questions for their consideration with the proviso that there are no right or wrong answers.   This is an important concept to repeat.  We need to know how they really feel.  You cannot emphasize this enough.

  1. How neutral and fair can you be?
  2. Do you think the death penalty is appropriate in all murders?
  3. Is religion a factor in this decision making process?
  4. Are you pre-disposed to one penalty?  If so, why?
  5. Is the defense on equal footing with the prosecution?  Are we on a level playing field with the state?  Are we behind the proverbial eight ball since the defendant is sitting here?
  6. Do you have any negative feelings about the court system?  About defense attorneys?  Does anything concern you about sitting here in judgment?
  7. Would graphic crime scene or Medical Examiner photos effect your judgment?
  8. How does violence on T.V., movies, and media effect you?
  9. What do you read, what do you watch for entertainment?
  10. Do they agree that the defendant is presumed innocent?

Aggravators v. Mitigators (Florida Statutes 921)

Open your discussion of Aggravators versus Mitigators.   Define mitigators in your own words for them.  You cannot say the word mitigation too many times.  Advise them that mitigation is part of Florida law.

Tell them this is not a numbers game, it is using their good sound judgment in weighing and evaluating the aggravators and the mitigators.

Tell them that the defendant must be convicted of First Degree Murder, that aggravators must be proven beyond a reasonable doubt by the State, before the defendant is required to present any mitigation.

Tell them that mitigators do not need to be proven beyond a reasonable doubt, that they only have to be raised for their consideration in arriving at their verdict.

Tell them that anything about a defendant’s life can be considered as mitigation.

Since mental health issues are crucial to the presentation of mitigation, address the issues of psychology, psychiatry, drug abuse/alcohol abuse/domestic and sexual abuse, and dysfunctional family life.   All mitigation is developed through these areas, and anything else you can be creative with.

Determine who has had personal or family experiences with these subjects.   Get them to open up before other jurors about these issues.

Get them used to the concept of mitigation, and it is an acceptable norm in our court system.

If they want to discuss personal matters privately, the trial judge will conduct a private inquiry.   This will assist you in challenges for cause.

If a juror has not had any contact with these “life experience” subject matters, ask them if they believe in mental health professionals, the validity of their profession, and the service that they provide.

Get them to acknowledge that people have these problems, and that these problems could effect or change a person’s life.

Get them to discuss the subject matter of whatever is pertinent to your case in First and Second Phase, without specifically disclosing that it is related to your case. 

ADVISE THEM THAT THEIR VERDICT IN A SECOND PHASE IS AN ADVISORY ONE, AND THAT THE JUDGE WILL GIVE “GREAT WEIGHT” IN SENTENCING YOUR CLIENT.   FLORIDA STILL DOES NOT FOLLOW RING V. ARIZONA 122 S. CT. 2428, (2002).

Followup

Now that you have gotten them to open up to discuss these crucial issues, ask them these followup questions:

a) Now that we have discussed mitigation, do you believe in mitigation?   Ask              them to define it in their own words.  You cannot get them to say it enough.

b) Will you consider any mitigation that we present?

c) Where do we begin?   Do you start with voting for life or vice versa, and that           we have to convince you otherwise?

d) Would you compromise your verdict in First Phase so you do not have to      reach a possible Second Phase?

e) If we get that far, do you agree that life is a proper sentence unless the State         proves all aggravators beyond a reasonable doubt, and we present no             mitigation?

f)   Will you promise to carefully examine the case facts and crime, your client,         and his character?

g) Will you promise to follow the law that the court gives to you?

h) Will you promise to give this case your utmost and undivided attention?

i)   Are you ready to serve?  Are you up for this job?  Please tell me if you are not.

j)   Is there something that you may have forgotten to tell us during this selection        process?

k) Is there any bias you would have against the defendant?

l) Tell them that prejudice is an ugly word, but it is even more prejudicial not to disclose their true feelings about anything that relates to the defendant or the case.   Get everything out in the open.  Remember to tell them again that there are no right or wrong answers.  Get them to promise that they will be fair,      impartial, and follow the law.

Go pick/Good luck!

Bruce H. Fleisher, Esquire

Acknowledgment

We greatly acknowledge with many thanks the “script” on Acting for Lawyers (Welcome To The Theatre Of The Absurd) authored for the NACDL by my friend and colleague Dale. T. Cobb, Jr., Esquire, Charleston, South Carolina, and Terry MacCarthy, Esquire, Federal Public Defender, Chicago, Illinois.