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Juries & Evidence - dov bobker -. Witherspoon v. Illinois – US Supreme Court (1968) Hovey v. Superior Court – Ca. Supreme Court (1980) Mabry v. Gribsby – 8 th Circuit (1983) Lockhart v. McCree – US Supreme Court (1986). Introduction. - PowerPoint PPT Presentation


  • Juries & Evidence- dov bobker -Witherspoon v. Illinois US Supreme Court (1968)Hovey v. Superior Court Ca. Supreme Court (1980)Mabry v. Gribsby 8th Circuit (1983)Lockhart v. McCree US Supreme Court (1986)

  • IntroductionOf the over three thousand people on death row in America (the overwhelming majority of whom are guilty), not a single one has received a trial before a jury representative of the community in which they were tried. In each and every case, the juries who tried these prisoners were biased against them. (Clay S. Conrad)

  • Introduction1st I will go through the progression of the cases through the courtsThen I will return to some of the particular studies that the decisions were based uponBackground informationMany states where the death penalty is a statutory option juries render verdicts in a bifurcated/split trial.First verdict is whether the D is guilty.Second verdict is whether D should get the death penalty.Most states require that the same jury do bothWhen choosing the jury, jurors can be eliminated for cause. This means the judge feels that they wont be able to render a fair verdict. Eg relative or friend of the D or the victimOne for cause elimination is the potential jurors attitude about the death penalty. If the juror says that there is no way he will ever give the death penalty (ALS automatic life sentence) or if he says life in prison is a waste of time and money and he will automatically give the DP (ADP), he will be stricken for cause.

  • Witherspoon v. Illinois Supreme Court case - 1968Illinois statute took this one step further not only will ALSs be stricken but whoever has conscientious scruples against the death penalty should be stricken for cause. Appellant argues that any jury that is made up of solely people who have no scruples about giving the death penalty, might also be too quick to convict, and therefore it is not an impartial jury.Appellant brings three social science studies to prove this point.Court says the studies are too tentative and fragmented to establish that jurors anti death penalty are more likely to find guilty.We will come back to some of these studies.But Court says Witherspoon still wins. When it comes to choosing guilt, we have no evidence that the persons attitude towards the death penalty matters, but when it comes to the 2nd half of the bifurcated trial, when they decide whether to impose the death penalty, you cant have a jury made up of people who have no scruples against it.You are stacking the jury with a bunch of people uncommonly willing to condemn a man to die. Therefore you must include people who have scruples against the Death penalty but are willing to consider it in certain situations. But you cant include people who say that in no circumstance would they be willing to impose the death penalty.

  • The Witherspoon Challenge The decision ended with a challenge to the social science community:The court was convinced that attitudes about the DP at the penalty phase can affect the jurors findings, and therefore to only have jurors willing to give the DP is unconstitutional.But do attitudes about the DP also play a role in the guilt phase of the trial? Meaning, is a person who is more in favor of the DP at the penalty stage, more likely to find the defendant guilty at the guilt stage? The Court found the studies that were presented to be too tentative and fragmented so it basically asked the Social science community to go back to the drawing board.

  • Post Witherspoon VocabularyWitherspoon Excludable people who are unwilling to impose the death penalty under any circumstances, cannot sit on the jury.Even though we bifurcate the trial, the general practice is to use the same jury for both stages. Therefore a Witherspoon excludable will also be excluded from the guilt stageDeath Qualified Jury a jury that is qualified to hear death cases as all the Witherspoon excludables have been excluded

  • Social Science Responds to the ChallengeTwo cases were brought to meet the Supreme Courts challengeHovey v. Superior Court of Ca. Mabry v. Gribsby

  • Hovey v. Superior CourtHovey presented 11 different surveys all of which (except one which both sides admitted was done incompetently) concluded that a DQ juror is more likely to find a defendant guilty than a WE juror. Ill go through some of them later.Judges opinionThe judges opinion is a textbook social science case as he goes through each and every one of the studies their methods and their merits and he comes out that the studies present overwhelming evidence to proving the theory; but, all of them suffer from one fatal flaw.The studies concludes that DQ jurors are more likely to find D guilty. But in California not all DQ jurors are allowed on a case. Any potential juror that is automatic death penalty (ADP) is excluded for cause. So it could be that the studies only found DQs more likely to convict, because the studies included these ADPs.My own personal feelings is that the judges opinion is slightly paradoxal. If the studies are skewed because ADPs are included, that is admitting that ADPs are more likely to vote guilty. Which is admitting that a persons opinion regarding the death penalty can affect his propensity to find Defendants guilty. The judge would probably say that this only proves that people with strong emotional feelings about the giving the DP but it doesnt tell us anything about people who are more middle of the road and just favor the DP. Another interesting question brought up by the case: If the studies are mistaken because Ca. also excludes ADPs, why cant ADPs and ALSs (automatic life sentence) cancel each other out?The judge explains that the case here is not whether or not the Hovey jury was biased per se and you can say that the two extremes cancel each other out. Rather, a Defendant has a right to a jury of his pears made up of a cross section of the community representing the different viewpoints.

  • Mabry v. GribsbyThis is an 8th Circuit case that relied heavily on the lower courts decision, so Illl focus on Gribsby v. Mabry which was decided in the US district court, eastern district of Arkansas (can be found in casebook p. 286)Gribsby was found guilty of murder and brought a habeas petition based on the fact that because the jury was DQ it was biased towards finding him guilty.Council presented to the court 15 different studies, all of which say that DQ = a jury more likely to convictMany of the studies were the same as the ones in Hovey court finds that that the studies prove the fireside induction already held by trial lawyers and judges alike that of course DQ = a jury more likely to convictThe studies prove what we have known all alongThis case was appealed and approved by the 8th circuit and appealed again to the US Supreme Court Lockhart v. McGee

  • Lockhart v. McCreeCourt says no; it will not find a DQ jury to be a violation of the constitutionEven if the social science evidence was convincing, it wouldnt pose a constitutional issueAn impartial jury made up of a cross section of the community requires all segments of the community to be represented, it does not mean that we will try to cancel out and match up all the different types of viewpoints within the community. So to only allow white males on a jury would be unconstitutional as it excludes major sections of the community, but to only allow DQers on the jury, might stifle a certain viewpoint but doesnt exclude a segment of the communityThe social science evidence is not convincingSupreme Court used the divide and conquer method in dealing with the 15 studies presented to it.

  • The Zeisel Study by Professor Hans ZeiselSpoke to actual jurors and asked them whether they had conscientious scruples against the death penalty? (the study took place before Witherspoon decided that this was not the measure for death qualificationAsked them how they voted on the first pre-deliberation ballot?The problem with these two questions is that it doesnt control for the fact that some cases have stronger evidence than others, so Zeisal asked a third question: What was the jury split after the first ballot? The assumption being that if a jury was 11/1 guilty, the prosecution probably had pretty clear evidence of guilty. With this Zeisel was able to control the weight of the evidence. And didnt even bother with unanimous first ballots as we can assume that personal conviction would be overwhelmed by the evidence.Data of 463 first ballot votesZiesels found that in 10 out of 11 constellations of evidence strengths jurors with scruples against capital punishment voted to acquit more often than jurors without. And in 9 out of 11 constellations of evidence strength jurors without such scruples voted to convict.Zeisel stated that his conclusions were statistically significant at the .04 levelThis was one of the studies that Witherspoon threw out as being fragmented but the SC only had a preliminary unpublished summary of the results of his survey. Dr. Zeisel himself testified that Witherspoon was right in throwing it out as at the time it was only fragmented and the conclusion seems liked a leap from the data presented.Lockhart threw this out because Witherspoon threw it out, even though Lockhart had the complete recordStrength of this study it was done in a realistic settingWeakness of this study it asked the pre witherspoon questionMy thoughts this study with a little refining has the potential of being the strongest one. You can redo it with post witherspoon standards, you can exclude the ADPs and the nullifiers and it wont have any of the problems identified by the supreme court

  • The Goldberg study and the Wilson studyThese two studies use similar methodologiesTook a bunch of college students, asked them about whether they had scruples against