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Why Finding A Jury For Death Penalty Cases Is Complicated


Jury selection continues today in the Boston Marathon bombing trial, as well as the Aurora, Colo., theater shooting case. The process in each case is expected to last months. That is in part because prosecutors in both cases are seeking the death penalty. Finding people who are considered qualified to decide a death penalty case and possibly vote for that penalty is not easy. Emily Green reports.

EMILY GREEN, BYLINE: If the prosecutor is seeking a death sentence, the law says you can't have on the jury people who would never vote for death. You also can't have people who would always vote for death. But those seemingly straightforward principles are anything but. In this country, views on the death penalty are complicated - really complicated. Take this interaction between a defense attorney and a potential juror in a Kentucky capital murder case.


UNIDENTIFIED WOMAN #1: I heard you say that you believed in the death penalty.


UNIDENTIFIED WOMAN #1: And why is that?

UNIDENTIFIED MAN: Well, probably because of the - of the victim's family.

GREEN: The attorney then asked the potential juror if he could impose a death sentence.


UNIDENTIFIED MAN: I just don't know. I really don't know. I think maybe I could, but I don't know for sure that I could. That's about the best answer I got.

GREEN: Because it's one thing to support the death penalty in theory. It's another to actually impose it. But the opposite is also true. In a different case, also in Kentucky, the judge asked a potential juror if she could consider voting for a range of sentences.


UNIDENTIFIED WOMAN #2: Well, I guess I would consider all of them.

UNIDENTIFIED WOMAN #3: There's no right or wrong answers here. We want to know what you honestly feel you would do under the circumstances.

GREEN: The juror finally says that if the defendant were found guilty, she would vote for the death penalty.


UNIDENTIFIED WOMAN #3: OK. So you wouldn't consider 20 years?

UNIDENTIFIED WOMAN #2: I don't think so.

GREEN: Though this interaction, by the way, occurs after 15 minutes of questioning in which the juror, up until this point, has repeatedly said she would consider sentences less than death. Ronald George is a former chief justice of the California Supreme Court. He says attorneys often ask hypothetical questions to test out the views of the potential jurors, such as a death sentence for Hitler.

RONALD GEORGE: That's not really the relevant test. It is could the prospective juror consider imposing a death penalty in the case at hand?

GREEN: And George says it's often over this issue that death penalty verdicts get reversed on appeal.

GEORGE: It does seem to be one of the areas where judges have had the greatest difficulty.

GREEN: Even when done just right, there are concerns that the jury selection process isn't fair. University of Miami law professor Scott Sundby says studies have shown that picking so-called death-qualified jurors creates a pro-prosecution panel.

SCOTT SUNDBY: Disproportionately, minorities and women are going to say that they would not be able to impose the death penalty.

GREEN: And as support for capital punishment has dropped to record lows, Sundby says the pool of qualified jurors has also become smaller.

SUNDBY: And the jurors who say that they could impose the death penalty are often attitudinally much more pro-prosecution. They are much more likely to believe police officers are telling the truth. They are more pro-government in their attitudes.

GREEN: And Sundby says that belief means juries are more likely to find defendants guilty as charged and sentence them to death. For NPR News, I'm Emily Green. Transcript provided by NPR, Copyright NPR.

Emily Green