Juries & Evidence - dov bobker -

1. 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)

2. Introduction “Of 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)

3. Introduction • 1st I will go through the progression of the cases through the courts • Then I will return to some of the particular studies that the decisions were based upon • Background information • Many 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 both • When choosing the jury, jurors can be eliminated “for cause.” This means the judge feels that they won’t be able to render a fair verdict. • Eg relative or friend of the D or the victim • One for cause elimination is the potential juror’s 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.

4. Witherspoon v. Illinois • Supreme Court case - 1968 • Illinois statute took this one step further – not only will ALS’s 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 can’t 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 can’t include people who say that in no circumstance would they be willing to impose the death penalty.

5. 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.

6. Post Witherspoon Vocabulary • Witherspoon 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 stage • Death Qualified Jury – a jury that is qualified to hear death cases as all the Witherspoon excludables have been excluded

7. Social Science Responds to the Challenge • Two cases were brought to meet the Supreme Courts challenge • Hovey v. Superior Court of Ca. • Mabry v. Gribsby

8. Hovey v. Superior Court • Hovey 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. I’ll go through some of them later. • Judges opinion • The 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 DQ’s more likely to convict, because the studies included these ADP’s. • My own personal feelings is that the judges opinion is slightly paradoxal. If the studies are skewed because ADP’s are included, that is admitting that ADP’s are more likely to vote guilty. Which is admitting that a person’s 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 doesn’t 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 ADP’s, why can’t ADP’s and ALS’s (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.

9. Mabry v. Gribsby • This is an 8th Circuit case that relied heavily on the lower courts decision, so I’lll 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 convict • Many 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 convict • The studies prove what we have known all along • This case was appealed and approved by the 8th circuit and appealed again to the US Supreme Court – Lockhart v. McGee

10. Lockhart v. McCree • Court says no; it will not find a DQ jury to be a violation of the constitution • Even if the social science evidence was convincing, it wouldn’t pose a constitutional issue • An 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 doesn’t exclude a segment of the community • The social science evidence is not convincing • Supreme Court used the divide and conquer method in dealing with the 15 studies presented to it.

11. 15STUDIES PRESENTED BY THE DEFENDANT 8DEALT WITH GENERALIZED ATTITUDES AND BELIEFS ABOUT THE DEATH PENALTY 1 DEALT WITH AFFECT OF QUESTIONING POTENTIAL JURORS ABOUT THE DEATH PENELATY. AN ISSUE D CONCEDED THAT IT ALONE SHOULD NOT AFFECT CONSTITUTIONALITY 6 DEALT WITH WHETHER DEATH QUALIFIED JURIES = CONVICTION PRONE JURIES 3 WERE OLD STUDIES THAT THE WITHERSPOON COURT CONSIDERED AND HELD UNCONVINCING AS THEY WERE TOO TENTATIVE AND FRAGMENTED ONLY 3 STUDIES WE HAVE TO DEAL WITH

13. The Zeisel Study by Professor Hans Zeisel • Spoke 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 qualification • Asked them how they voted on the first pre-deliberation ballot? • The problem with these two questions is that it doesn’t 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 didn’t even bother with unanimous first ballots as we can assume that personal conviction would be overwhelmed by the evidence. • Data of 463 first ballot votes • Ziesels 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 level • This 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 record • Strength of this study – it was done in a realistic setting • Weakness of this study – it asked the pre witherspoon question • My 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 ADP’s and the nullifiers and it won’t have any of the problems identified by the supreme court

14. The Goldberg study and the Wilson study • These two studies use similar methodologies • Took a bunch of college students, asked them about whether they had scruples against the death penalty and then presented them with short summaries of various cases. • Both found that that DQ’s were about 6-7% more likely to find defendant guilty • Goldberg – P value = .08 (marginally significant) • Wilson – P value = .02 • Both researchers admitted that it wasn’t the most methodologically sophisticated. • Bunch of problems • The case descriptions are sparse • There was no jury instructions • There isn’t an actual Defendant • They only used college students • There’s no deliberation

15. Ellsworth Study • Probably the most respected of the studies was done by Professor Ellsworth • 288 jury eligible adults from California • Most responded from add in newspaper - 218 • Some from jury lists – 37 • Some referred by friends – 33 • Researchers questioned the subjects as to where they stand on the death penalty. Nullifiers were thrown out (they ended up with 288 after the nullifiers were thrown out) • 258 – Witherspoon qualified • 30 – guilt phase excludable • Subjects were shown a 2 ½ hour video reenactment of a trial • Video was created by Harvard Professor Reid Hastie to use in his class • Spent a lot of work making it as real as possible • Actors didn’t just read off a script • Attorneys were played by attorneys • Judge was played by a retired judge • Police witness was played by a retired police officer • The only non real thing is that by the jury instructions since it gave Mass. Law, the portion of the video was recreated with a law school dean acting as a judge and giving the instructions • After the tape, each juror was asked how they would vote

16. First Degree Murder • WE - 3.3% (1) • DQ - 7.8% (20) • Second Degree Murder • WE - 23.3% (7) • DQ - 21.3% (55) • Manslaughter • WE - 26.7% (8) • DQ - 48.9% (126) • Acquittal • WE - 46.7% (14) • DQ - 22.1% • Ellensworth concluded that if you just look at guilty v. non guilty • DQ = 77.9% guilty • WI = 53.3% guilty • 24% difference with a P value < .01

17. Afterwards they were split up into juries and allowed to deliberate for one hour and were again asked how they would vote • The differences were still pronounced • she then went back to the data and used multiple regression analysis to determine whether the differences can be attributed to factors other than attitude towards the death penalty. Eg • prior jury service • age • gender • source from which subject was chosen; ie newspaper or prior jury service • non of which correlated with voting behavior.

18. Prof Zeisel testified that this study comes as close to the ideal experiment as one can ever come by. There is no better way of doing it. • Cons presented by the Attorney General in Hovey • Only one case • A simulated case can never be the same as a real case • Ellsworth defended herself that the subjects got “very, very into deliberations”. And the subjects that had prior jury experience reported that it corresponded well • Furthermore the judge in Hovey pointed out that if you look at the studies, the more real the simulated case became, the wider the difference between the DQ’s and the WE’s • Questioners – 6% • Audio tape – 13% • Videotape – 25% • All the people are from Ca. • Only deliberated for an hour • Does deliberation really matter? Ziesel and Kalven in “The American Jury” found that 90% of the time the jury will reach an unaminous decision in line with its original majority decision. This indicates that the critical factor in jury decision making is not the process of the juror interaction but the jurors’ original views of the case. • Ignores the fact that a jury can be swayed depending on a bunch of other factors like ego of a particular juror, that wasn’t accounted for.

19. Supreme Courts Problems with the three studies • were not actual jurors who were sworn under oath to apply the law to the facts of an actual case involving an actual defendant. • Dissent – until we allow two juries to sit in on a real trial this will always be impossible • Two of the studies did not even attempt to stimulate the process of jury deliberation • This is an interesting observation that you can’t predict what a group will do based on knowing what each individual would do. • Studies did not take into account what would happen if a Witherspoon excludable – meaning someone who is anti the death penalty – would do when faced by a guilt phased jury. Would this person really be able to alter the outcome of the guilt determination. • Most importantly, only 1 of the 6 relevant studies attempted to account for and identify so called “nullifiers” – individuals who, because of their deep seated opposition to the death penalty would be unable to decide a capital defendant’s guilt or innocence fairly and impartially.

20. J. Marshall’s Dissent • The courts haphazard jabs at the individual studies cannot obscure the essential unanimity of the results obtained by the researchers using diverse subjects and varied methodologies. • The majority says that a jury does not have to represent all the view points of the community, just all the different sections of the community. The research shows that the death qualification process throw out a disproportionate amount of blacks and women, whom studies have shown tend to be more anti the death penalty than white males. • Why rely on Witherspoon to say that the original three studies are tentative and fragmented if even after they had been subject to the adversarial process in the lower courts, they have been found to be convincing. • The APA (American Psychological Association) submitted an amicus curiae brief saying that “the research clearly satisfies the criteria for evaluating the methodological soundness reliability and utility of empirical research,” but the court finds fault.

21. Post Lockhart • Because the court found no constitution problem even if the studies were correct the case is closed. • But what is driving the Supreme Court to throw out evidence that is intuitively correct and has been proven in every manner and from every angle? • I spoke to my criminal law professor, James Liebman, and he actually argued and won the case in the 8th circuit. He said, as was said in the beginning of the semester, the supreme court is just not willing to accept social science evidence.

22. As I mentioned earlier there was one study that found that there was no correlation between DQ and conviction proneness. • This was not done by social scientist but by two Stanford law students, probably taking a class in law and social sciences. • They looked at conviction rates from a LA court over 6 months and found that juries convicted for 1st degree murder less often than in burglary and robbery cases. • It was a nice idea but both sides admitted that it “has no probative value whatsoever.” • Dr. Zeisel called it incompetent • Cons • Didn’t control for weight of evidence • Didn’t control for experience of the lawyers • Didn’t even found out whether the juries were being DQ • Bunch of other problems