We, the jury

...Citing two decades of tainted evidence, prosecutorial and police corruption, and grossly inept defense-all of which undermine jury trials-the chagrined Republican governor of . 10 ~ f Illinois declared a moratorium on executions in January...

...fusing to inquire whether potential jurors would automati- The legal point of voir dire-the selection process that cally impose the death penalty upon conviction...

...ways-as voters in the executive and legislative branches Writing for the Supreme Court, Justice Potter Stewart said and as jurors in the judiciary...

...In Morgan, defense lawyer-contends otherwise...

...ecutions, combined with the national decline in violent crime, Yet the case also became the source of the term "Witherhas dimmed American enthusiasm for capital punishment...

...cases...

...It may look tors and executives may lag behind public opinion, jurors like a New York City jury, but it's not because disproporshould not, since they embody the ultimate direct partici- tionate numbers of African Americans, women, Jews, and pation by the public in government...

...We do this both to the sentence...

...Commonweal 10 June 2, 2000...

...that jurors could not be excluded simply because they had The legislatures of thirty-eight states have passed death- reservations about capital punishment unless they said they penalty laws-and 613 inmates have been executed-since would automatically vote against the death penalty, no matthe Supreme Court reinstated capital punishment in 1976...

...So im- two-part capital proceedings-the first to establish guilt or portant was the right to a jury trial that it was guaranteed innocence, the second to determine sentencing...

...Stacking the deck to ensure University of St...

...hood of being found guilty...

...When they had trouble reaching agreement, deepen the vocational commitment of managers and to the judge removed a black juror for "racial bias" and a develop Catholic social thought within management Catholic juror for his religious views...

...Excluding "those who cannot and will not conscien- The result is that capital defendants are routinely tried in tiously obey the law" did not bias a jury...

...Death-qualification is also a serious interference with the jury's role as a reflection of the community...

...Virtually no one-prosecutor or case-Morgan-came before the Supreme Court...

...El e-mail: minaughton@stthomas.edu 651-962-5712 Julia Vitullo-Martin, a senior fellow at the Vera Institute of Justice, is writing a book on the American jury...

...He didn't capital cases, 14.4 percent were excused for death-penalty believe the sociological data, but even if he had, he said, the opposition while only 0.5 percent were excluded because Constitution did not bar "death qualification" in capital they always favored execution...

...Are such practices either what Americans want or what the Founders intended...

...But how accurately...

...Further, country is that it reflects the will of the people...

...Universidad Iberoamericana °B I Even when "scrupled jurors" have made it through voir Puebla, Mexico dire, they may find the challenges aren't over...

...Thomas the death penalty does neither...

...The nation's Founders envisioned precisely this repre- Nor is the story finished with Witherspoon...

...Statistical studies have shown that the vast citing sociological studies showing that death-qualified juries majority of excused jurors are those who oppose the death were more likely to convict...

...While hard-core opponents of the Another 85 inmates on death row have been found not death penalty could be culled, jurors with mere scruples guilty-well after their trials-and released...

...This isn't Illinois's first starring death-penalty role...

...In some jurisdictions, July 1996, according to an ABC News poll of more than one such as liberal Northern cities, Witherspoon excludables thousand adults...

...Take the experience of the State of Illinois, which is playing a starring role in the death-penalty drama because it had convicted thirteen of those now-exonerated inmates...

...In practice, a shrewd was not required to include in the jury-selection process a voir dire lawyer can go far toward determining the outcome "life qualifying" or "reverse-Witherspoon" question upon re- of the case...

...And while elected legisla- "You think you have, say, a New York City jury...

...opposed to capital punishment could be excluded from a jury...

...Had they been had to be allowed to serve...

...William Witherspoon killed a Chicago policeman while fleeing arrest in September 1959...

...After the sentative role for the jury, which they saw as the chief means Supreme Court struck down the then-existing state deathof ensuring that the morals and standards of the communi- penalty statutes in 1972, many states passed new laws with ty would be heeded in both criminal and civil trials...

...An Illinois case (Witherspoon) that made it to the Supreme Court in 1968 "I hear the jury selection for this environmental case had raised the immensely serious question of whether citizens has the defense lawyers worried...

...He was tried by a jury, Julia Vitullo-Martin convicted of murder, and sentenced to death...

...Many studies The Fourth International Symposium on have shown that death-qualified jurors are distinct from the Catholic Social Thought and Management Education larger community on substantive grounds, tending to be more distrustful of defense attorneys, more likely to be susRethinking Wealth Creation and picious of a defendant's failure to testify, and more prone to Distribution in the Jubilee convict...

...been improperly excluded, unfairly increasing his likeli- The playing field was leveled...

...This system three times in the Bill of Rights-the only right so honored...

...In March a July 1 I-14, 2000 r~ Riverside, California, jury announced its conviction of a man z6,o 0 accused of a heinous kidnapping and torture-murder...

...Supreme Court disagreed, saying that ju- Death-qualification hands the prosecutor the ability to serors had to be willing to consider "mitigating" evidence that lect a hanging jury, to use Justice Stewart's phrase...

...Morgan was a comfort to many death-penalty advocates, In 1986, Arkansas inmate Ardia McCree, sentenced to life who could now argue that both extremes were eliminatwithout parole for robbery-murder, challenged his convic- ed-those who would always impose the death penalty as tion, arguing that jurors opposed to the death penalty had well as those who would never impose the death penalty...

...The U.S...

...The practical problems rogatives by both the legislative branch and the judiciary itself has constrained the ability of the jury-particularly the capital jury-to reflect the morals of the community...

...quest...

...could constitute a large cross section of the community...

...could insulate the underlying conviction of guilt from chalYet a century-and-a-half of encroachments on the jury's pre- lenges based on a death sentence...

...Michael J. Naughton The Founders saw the jury as both a needed protection John A. Ryan Institute for Catholic Social Thought of for individual rights and a means of ensuring communal the Center for Catholic Studies at the support for judicial procedures...

...With those two removed, the jury past symposia please visit our web page: voted the death sentence...

...penalty...

...A study reported in the Howard University Law jourWhen Lockhart v. McCree reached the Supreme Court, Jus- nal concluded that of all the jurors surveyed in forty-one tice William Rehnquist essentially asked So what...

...juries were what defense attorneys call "conviction-prone...

...front of death-qualified juries selected for their willingness This is how things stood until 1992, when another Illinois to impose the death penalty...

...As In theory a decline in public support will eventually be re- Kevin Doyle, the State of New York's capital defender, says, flected in elections and in juries...

...1~ But in April the Illinois Supreme Court trumped him, ruling that two executions could go forward...

...Witherspoon "effectively enlarged the jury's role in blocking There is little doubt that public horror about these near-ex- the death penalty...

...A juror who view-that juries from which death-penalty opponents were would automatically send a defendant to the chair could be excluded tended to be friendlier to the prosecution...

...His jury had been selected under an Illinois law that perWE, THE JURY mitted the exclusion of any juror who admitted having "conBut not in capital cases scientious scruples against capital punishment...

...Catholics have been excluded...

...spoon excludables," meaning those persons who could inSupport for the death penalty in murder cases, for exam- deed be dropped from a jury because of their adamant ple, fell to 64 percent this January, down from 77 percent in opposition to capital punishment...

...Vivian Berger, the Nash Professor of For more information see the Conference Web site at Law at Columbia Law School, notes that "the court is now httpJ/www.sttkomas.edu/cathstudies/cst/mgmt!puebla/ ruling out of the jury precisely those influences that should Or Contact come to bear in a criminal case...

...Witherspoon contended that such exclusion was too broad, and that the dismissal of "scrupled jurors," as they are often he justification for the death penalty in this called, left a jury biased in favor of the prosecution...

...httpJ/www.stthomas.edu/cathstudies/ cst/mgmt/research.htm...

...ter what the evidence...

...Commonweal 9 June 2, 2000 were many, not the least being-from a defendant's point of might result in a lesser sentence than death...

...he argued, such a jury no longer represented a fair section of But does it...

...Under our republican system, the community as required by a long line of cases prohibitAmericans make their will known in two ing the exclusion of any significant, definable group...

...Under Conference Theme: On the occasion of this Jubilee, we California's two-part system, the jurors then deliberated on gather to reexamine the role of business organizations in wealth creation and distribution...

...Is this compatible with the defense contended that the trial court had erred in re- American democratic principles...

...To view papers from spare the murderer's life...

...Litigator Evan Davis summaexecuted, the innocent would have constituted nearly 9 per- rized the decision's significance a year later by noting that cent of the total...

...The Illinois produces the jury of twelve citizens-is to ensure a fair trial Supreme Court had agreed with the trial court, ruling that it by eliminating those who cannot be fair...

...A federal district court agreed, But was it...

...Both had voted to education at Catholic universities...

...Such excluded...