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?' "
I'm with you on that!
In other words, does the presence of a rapist's DNA, properly tested and testified to by an expert witness meet the Biblical standard of "witness"? Likewise, does the presence of fibers from a murder victim's clothing, discovered in the automobile trunk of the alleged murderer, and properly tested and testified to by an expert witness qualify as a Biblical "witness"? Same for fingerprints, and other scientifically valid forensic evidence.
I am inclined to say that this type of scientific evidence does qualify as meeting that Scriptural standard, but recognizing that these tests did not exist in Moses' day I am disinclined to be more definitive in my answer. For example, I do not know whether I could vote for the death penalty in a case that hinged entirely on this type of evidence without supporting eye witness testimony. I do believe that I could find a person guilty, and sentence them to life without parole, but don't know if I could actually vote to have that person executed.
Your thoughts? (Or better yet, Scripture that I may have overlooked.)
IF DW had planned to take the little girl that night, why would he offered to take someone home?
And the dumbest thing I see is trying to pick a jury of people who have no knowledge of the case! Just what we need, a group of people who either don't have a clue what is happening around them or have a propensity for lying outright.
I agree.
It's a good question. For myself, I would tend to favor a restriction of the Death Penalty in capital cases to cases where the "two Eye-Witnesses" requirement could be fulfilled. Absent eye-witness testimony, Life Indenturement (I prefer work-camps to prisons) would be my preference. In short, I've ended up about where you are... I think you do have to punish someone who is proven Guilty beyond a reasonable doubt; and I favor the Death Penalty; but I don't support the employment of the Death Penalty in cases where eye-witness testimony has not been brought forward.
I really have to say this since I've been thinking it the whole time. Why did Brenda and friends accept drinks from DW if they weren't interested in having anything at all to do with him? They could have said "No, thank you."
hmmmmm
I agree.
Before I became a mom - back when I had a social life - sometimes a guy would want to buy a drink for me or one of my friends - I'm talking a stranger or maybe someone who I'd just met - anyway - I'd maybe accept one - but then I'd feel like I owed them something - like time and pleasant conversation - so a friendly decline was to me the best approach. On the other hand - I do have one male friend in particular who is always buying drinks for friends - men and women alike - he's just that way - a really nice guy - but sometimes I even feel guilty when I know he's forked out some cash on my account - even though I've known him forever and I know he doesn't expect anything in return - if you know what I mean. I also know a couple of gals who I consider to be users - by that I mean that they will gladly accept drinks, dinner, whatever from men (or women for that matter) and feel no sort of commitment to that person at all - not even reciprocating that other person's gesture with nice conversation. I hate those kind of people - that may have been how Brenda and her friends were. Or else she may have known Westerfield better than we know - like me and my male friend who likes to buy the drinks.
I don't know if I made much sense just now - but I've got it boiled down to: Brenda's a user - or - she's friendlier with Westerfield than we know - or - she was willing to reciprocate Westerfield's nice gesture with some gesture of her own.
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