Posted on 05/26/2002 4:27:57 PM PDT by MizSterious
Pro-capital-punishment jury sought
By Alex Roth
STAFF WRITER
May 26, 2002
By seeking the death penalty against David Westerfield, prosecutors have done more than just raise the stakes in the high-profile case. They've also helped shape the philosophical outlook of the jury.
Because the Westerfield trial is a capital case, all the jurors ? whether they're CEOs or janitors, retirees or recent college grads ? will have one thing in common: A stated belief that the death penalty is appropriate under certain circumstances.
Under state law, a jury in a capital case must be "death-qualified." That is, anyone who is morally opposed to capital punishment must be excused from a death-penalty case during jury selection.
"What you get is a jury full of people saying, 'Yeah, I can kill him,' " San Diego criminal defense lawyer Marc Carlos said. "Which is always a problem for the defense."
Westerfield is charged with kidnapping and murdering his Sabre Springs neighbor, 7-year-old Danielle van Dam. On Tuesday, a judge and lawyers in San Diego Superior Court are scheduled to begin interviewing prospective jurors in groups of 20, and among the issues the parties will be sure to probe are the potential jurors' feelings about capital punishment.
Because any juror in a capital case must agree that execution is sometimes an appropriate punishment, these juries are inevitably more conservative than they otherwise might be. It is a demographic, legal experts say, that usually benefits the prosecution.
Prosecutors in the Westerfield case will also be seeking jurors with several other basic characteristics, these legal experts predicted.
They'll look for people who hold positions of power and are good at making decisions ? people who "tend to think linear," according to San Diego attorney Mike Still, a former prosecutor.
"You want people who are able to look at a set of facts, a set of circumstances, and make a decision," Still said.
The defense, on the other hand, wants people who look at life in shades of gray, who are suspicious of authority, who are comfortable holding a minority opinion ? people who "have a different reference group," according to David Graeven of Trial Behavior Consulting Inc., a San Francisco firm that helps pick juries.
Opponents of capital punishment have long criticized the process of death-qualifying juries for capital cases, arguing that it tends to stack a jury with law-and-order types.
"The argument is that a death-qualified jury is a more conviction-prone jury," said Professor Gerald Uelmen of Santa Clara University School of Law.
The U.S. Supreme Court has twice rejected the argument that excluding death-penalty opponents from sitting as jurors in capital cases is unconstitutional, Uelmen said.
There are some benefits to the defense of having a death-qualified jury, some legal experts say. The process also weeds out pro-prosecution extremists who believe that all convicted murderers should be executed, regardless of the circumstances.
That's because in addition to being willing to impose the death penalty under appropriate circumstances, jurors in capital cases also must be open to the possibility of voting for life prison terms without parole.
San Diego attorney Dan Williams, a former prosecutor who won a death sentence against convicted killer David Lucas, said he thinks juries in death cases hold prosecutors to a higher standard than they otherwise might.
While they're willing to impose the death penalty if the facts call for it, these juries won't tolerate any sloppiness or ambiguity with the prosecution's case, Williams said.
It's unclear how long jury selection in the Westerfield case will take. On May 17, 263 jurors filled out questionnaires that asked a variety of questions about their personal lives and their attitudes about criminal justice.
The lawyers have spent the last week reviewing these responses. Tuesday will mark the beginning of what is known as voir dire, in which these potential jurors are brought into the courtroom to face direct questioning from the lawyers and Judge William Mudd.
In addition to removing potential jurors who oppose capital punishment, the judge can also remove them for a variety of legal reasons, such as the potential juror expresses or demonstrates an inability to be fair and impartial.
In capital cases, the prosecution and the defense each have 20 challenges they can use to remove any potential juror for almost any reason they want. It is unconstitutional to use these challenges to remove a juror based on race, gender or several other factors.
Williams, the former prosecutor, predicted that Westerfield's lawyers will be looking for people who are offended by the lifestyle of Danielle's parents, both of whom admitted smoking marijuana on the night in February that their daughter vanished. Westerfield's lawyers have also suggested the couple was involved in spouse-swapping.
The danger for the defense is that these same jurors might also be offended by Westerfield's alleged lifestyle. The 50-year-old twice-divorced design engineer, who lived two doors away, is also charged with possessing child pornography. Prosecutors said they believe he sexually assaulted Danielle before killing her.
The conventional wisdom is that accountants, engineers and retired military people tend to be good prosecution jurors, while social workers, college professors and artists are good for the defense.
But broad generalities are often misleading. When it comes to picking jurors, most lawyers simply trust their gut.
"In the end," said Carlos, the defense lawyer, "you look at these people straight up and say, 'Is this a person I can trust and is this a person I want sitting on my jury?' "
That is, suspicious of authority that abides in the precept that murder is wrong and apply the ardant position that the only just consequence is capital punishment.
Furthermore, these people must see things in "shades of gray" and be "comfortable holding a minority opinion." The interpretation here is, these people must not believe in absolutes, have the ability to deliberately dismiss facts, and be so deluded to think that their stupidity is actually virtue and therefore be considered a "minority opinion."
Any idea when they will start picking jurors? As I understand it, they are still in the interviewing phase...?
On Tuesday, a judge and lawyers in San Diego Superior Court are scheduled to begin interviewing prospective jurors in groups of 20.
Interesting because I do not think in shades of grey..and I do not think the man is guilty (unless there is LOTS we have not heard yet!)
The most that can be hoped for is the truth, that will be the only avenue to true justice.
I think she was part of the evenings activities and they are all guilty. Westerfield is just the fall guy.
But sexual abuse would not surprise me seeing the parents hedonism and drug use
The Biblical Standard.
If a false witness rise up against any man to testify against him that which is wrong; Then both the men, between whom the controversy is, shall stand before the LORD, before the priests and the judges, which shall be in those days; And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother; Then shall ye do unto him, as he had thought to have done unto his brother:
so shalt thou put the evil away from among you. And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you. (Deuteronomy 19: 15-20)
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