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September 6, 2007

Back-to-school musings: sentencing note topics

I'm about to get on a plane to the coast (details here), but before I go off-line for awhile, I wanted to open a post where folks can suggest possible note topics for all the bright law students interested in writing about sentencing topics.  Of course, I think just about every post I do has the seeds of a good note topics, but some of these recent posts seem to provide especially rich possibilities:

Other suggestions, dear readers?

September 6, 2007 at 06:54 PM | Permalink


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Doug, interesting you should mention this because I was going to send you a motion in a capital trial I'm going to file Monday concerning a fair cross section challenge to either the death penalty or , alternatively, the practice of a death qualified jury sitting during the guilt phase. We questioned a large number of prospective jurors and , as usual , there were folks excused for cause for being either pro life or pro death. The interesting thing was , though , that 6 out of 7 black females were excused for cause because of their pro life views. I plan to ask the judge next week to strike the death penalty as a possible punishment, or empanel a second jury to hear guilt innocence and put those 6 jurors back in the pool.

In my view, death qualification is a culling of the venire, to which the fair cross section component of the Sixth Amendment applies, rather than a culling of the petit jury, to which the fair cross section guarantee does not apply. Since both blacks and women are a cognizable group for jury selection purposes, we are arguing that black females are being under-represented in the venire due to a practice which is facially neutral but in practice discriminates against a particular group. Our client is black and the victims are white.

Interestingly, the percentage of black females who made it past the death qualification process is almost identical to the percentage recognized in Duren v Missouri as constituting an under representation. So, the question for some bright student is whether a statute providing for one jury to hear both guilt innocence and sentencing violates the Sixth Amendment because of its discriminatory effect , despite it's facial neutrality.

I'll post the final motion. We anticipate concluding jury selection tomorrow so we will have final numbers on the process.

bruce cunningham

Posted by: bruce cunningham | Sep 6, 2007 10:43:13 PM

so you are arguing that eliminating prospective jurors based on their views on capital punishment indirectly weeds out women and african-americans because members of those demographics tend to be against the death penalty moreso than other demographics?

Posted by: | Sep 6, 2007 11:18:47 PM

yes. Death views are irrelevant to fitness to serve as a juror at the first phase, or guilt innocence phase where the jury decides if the def is death eligible. That is the actual "trial" for the offense of First Degree Murder. (the second phase is a pure sentencing determination during which , as Justice Scalia makes clear in Ring, the Sixth Amendment does not apply) A def, in my opinion, has a Sixth Amendment right to a fair cross section of the VENIRE at the guilt phase, (there is no right to a fcs on the 12 person petit jury). The process of death qualification under Witherspoon and Morgan appears on its face to be race neutral. But, in reality , the process itself renders a substantial number of a cognizable group, black females, unfit for jury service. In our case 6 out of 7 were eliminated for reasons that had nothing to do with the particular case being tried.

My argument is that such practice violates the black female's rights under equal protection, (Batson), violates the defendant's rights to equal protection, violates the juror's first amendment right to free speech because their opinion about an issue that has nothing to do with their fitness to sit on a jury at guilt phase has rendered them disqualified, and violates the public policy contained in the general statutes that the maximum number of eligible jurors should serve (we have no categorical exemptions for particular occupations)

It is very depressing to be representing a black def charged with killing a white victim and of 7 black females, we only talk to 1 because the rest are automatically excluded for reasons unrelated to guilt innocence. 2 out of 3 of the black males were also excluded for the same pro life views but I think that is too small a group to make a persuasive argument and I think black females, under Duncan and Batson is in and of itself a cognizable group for constitutional purposes. I will post the final motion that will have all the statistics.

Posted by: bruce cunningham | Sep 7, 2007 7:27:33 AM

I just reread the question to which I hastily responded and ,no, I am not claiming that the argument applies in general to all females, just black females. Likewise, I'm not claiming the argument applies to all blacks because we didn't get a statistically significant number of black males in the venire. The argument goes only to black females, who all based their death opposition on religious beliefs. (maybe that is another argument. The automatic exclusion offends the first amendment right to exercise of religious beliefs. Your religion should have nothing to do with your fitness to sit on the guilt phase, where religion has nothing to do with it.)

Posted by: bruce cunningham | Sep 7, 2007 7:37:56 AM

i see this as being a peoblem in capital trials in puerto rico as well, where most people do not speak english (a pre-req to be on a death jury, i think), and are catholic, which makes them against the DP. i dont know that its ever happened down there, but it make me think that a def would never get a fair cross-section of the venire for guilt innocence in a capital case

Posted by: | Sep 8, 2007 12:55:58 PM

will you post the motion? im interested in writing abuot this for my note topic.

Posted by: | Sep 12, 2007 10:31:11 PM

I am a law student. Currently, I am trying to write a paper on females being disproportionately disqualified from capital juries through the death qualifying process. I was wondering if anyone knew of any studies or statistics that show this occuring (either for all females or specifically African-American females)? I would greatly appreciate it.

Posted by: Amy Ganetis | Oct 1, 2009 11:54:55 AM

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