Jury selection in death penalty cases is a time-consuming and costly undertaking. The Supreme Court held in Witherspoon v. Illinois that deciding whether a man should live or die is not something that can be entrusted to a jury “organized to return a verdict of death.” Jurors cannot be excluded for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” To ensure this standard, prospective jurors are questioned at length about their views on the death penalty. They are asked to confirm that they will be able to set aside any personal convictions and follow the law in the case before them. The process consumes days, sometimes weeks.
In People v. Whalen, a recently decided death penalty appeal, California Supreme Court Justice Goodwin Liu noted in a concurring opinion that “the record from voir dire alone consumed more than 1,000 pages of the approximately 2,500 total pages in the trial court transcript.” Most of the voir dire was focused on “reviewing [jurors’ responses to the] written questionnaires and conducting individual questioning of the 158 members of the jury pool who remained after hardship excusals.” That case is discussed in greater detail below.
Jury selection issues often comprise the bulk of the California Supreme Court’s legal analysis on appeal. In Whalen, for example, the court devoted over half of its opinion—73 of its 127 pages—to the defendant’s claims of error related to jury selection. And in People v. Riccardi, another recent case, the court dedicated a full one third of its opinion to analyzing jury selection issues raised on appeal.
Such painstaking voir dire is necessary in capital cases for a variety of reasons. The issue is so significant for purposes of appeal because a trial court’s erroneous excusal of a prospective juror for cause based on their views concerning the death penalty requires automatic reversal of the death sentence. The rule applies even if the error did not actually prejudice defendant’s penalty phase determination.
Appellants frequently raise the claim that the trial court treated jurors disparately based on their views of the death penalty—that the trial court was quick to excuse for cause prospective jurors who appeared ambiguous about their ability to follow the court’s instructions due to their personal opposition to the death penalty, but went to great lengths to “rehabilitate” during voir dire those jurors who expressed ambiguity about their ability to follow the court’s instructions due to their personal views favoring capital punishment.
The issue was raised successfully by defendants in two recent death penalty appeals decided by the California Supreme Court. In Riccardi, the court reversed a death sentence where the trial court erroneously excused a prospective juror for cause based only on her written responses to the juror questionnaire. The juror wrote that she favored the reinstatement of capital punishment in California and believed the death penalty “is not used enough.” But she also wrote, “I’m afraid I could not feel right in imposing the death penalty on someone even though I feel it is nessasary [sic] under some circumstances.” Rather than questioning the juror about her conflicting answers, the trial court excused her based only on her written responses. In vacating the death sentence, the court concluded that the responses she provided raised sufficient ambiguity as to her views on the death penalty that further examination by the court was required.
In People v. Pearson, the court reversed a death sentence where the trial court erroneously granted the prosecutor’s challenge for cause—over the defense’s objection—of a prospective juror who declined to state that she was categorically either “for” or “against” the death penalty. The juror who was excused for cause indicated on her written questionnaire that she wished to serve and thought she could be an impartial juror because she was unbiased and believed in “[f]airness to the defense and prosecution.” As to her general feelings about the death penalty, she wrote that she had none and had thought about the “negatives & positives but I came to no conclusions.”
The prosecutor pressed the juror to state whether she was “for or against the death penalty.” The juror replied that she would “have to be an actual juror to see what’s presented for me. I’m not saying that I can’t vote for it or that I wouldn’t vote for it, but I think that I have to have all of the evidence before I can say anything concerning this case itself.” The trial court granted the prosecution’s request to excuse her for cause, finding that she had given “equivocal” and “conflicting” responses about capital punishment. On appeal, the court reversed, holding that the juror’s views regarding the death penalty would not have prevented or substantially impaired the performance of her duties as a juror.
These are not isolated cases. In the last ten years, the court has reversed several death sentences on similar grounds. See, for example, People v. Stewart, People v. Heard, and People v. Wilson (Wilson involved improper excusal of holdout juror).
People v. Whalen: An Illustration
These issues played out in People v. Whalen. In that case, the appellant claimed that “the trial court exhibited a pro-death-penalty bias in questioning prospective jurors, erroneously refused to excuse for cause 15 prospective jurors based on their views regarding the death penalty, and erred by excusing for cause two prospective jurors based primarily on their written answers to a questionnaire.”
Whalen argued that these errors resulted in a jury composed of pro-death and otherwise biased jurors and violated his rights to a fair and impartial jury, to a fair trial, to the presumption of innocence, to freedom from self-incrimination, to the effective assistance of counsel, to due process of law, and to a reliable guilt and penalty determination guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and parallel provisions of the California Constitution.
The Supreme Court of the United States has held that the Due Process Clause of the Fourteenth Amendment requires the sentencing jury in a capital case to be impartial to the same extent required at the guilt phase. Voir dire is intended to determine prospective jurors’ views about capital punishment. The court must sustain a challenge for cause as to any prospective juror whose “views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”
Prospective jurors who express personal opposition to the death penalty are not excused for cause so long as “they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.”
The Supreme Court recently summarized the applicable principles as follows:
First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Fourth, in determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.
In Whalen, the California Supreme Court addressed at length the claim that the trial court erred when it refused to excuse for cause prospective jurors based on their views regarding the death penalty. A majority concluded that Whalen’s claims were without merit. His conviction and sentence were affirmed.
In a concurring opinion, however, Justice Liu “joined the court’s opinion except as to the issue of the trial court’s disparate treatment of a small number of prospective jurors whose written questionnaires showed ambiguity concerning their ability to follow the court’s instructions despite their personal views on the death penalty.”
Justice Liu agreed that the record did not support defendant’s claim of systematic bias in the trial court’s conduct of voir dire. But after comparing the trial court’s questioning of two pro-death penalty jurors with that of one of the anti-death penalty jurors, Justice Liu concluded that “it is apparent that the trial court made more extensive efforts to rehabilitate some jurors who supported the death penalty than it did to rehabilitate at least one juror who opposed the death penalty, even though the written questionnaires of those jurors show the same degree of ambiguity concerning their ability to set aside their personal view and follow the law.”
At the end of his concurring opinion, Justice Liu included the responses provided by three jurors to Questions 9 through 32 of the written questionnaire, which asked directly about the death penalty, as well as the transcript of the trial court’s questioning of each juror during voir dire. Justice Liu did this “[s]o that readers can come to their own conclusions regarding the trial court’s treatment of these jurors.” The questions and answers set forth on the juror questionnaire and related colloquy with the trial judge concerning the jurors’ views on the death penalty offer an interesting glimpse into just how tedious the voir dire process is in death penalty cases.
The voir dire that troubled Justice Liu concerned three prospective jurors known as Y.C, C.Pa., and B.H. Jurors Y.C. and C.Pa. stated that they support the death penalty, while B.H. did not support the death penalty.
Questionnaires of Jurors Who Support the Death Penalty
On the juror questionnaire, Y.C. indicated that: she “stongly support[s]” the death penalty; her views have “always been the same.” C.Pa.’s responses indicated that he was an even stronger supporter of the death penalty; he stated that he “[w]ould always impose [the death penalty] regardless of the evidence” and that his views have never changed over time. Both Y.C. and C.Pa. indicated that with the knowledge that the defendant was charged with murder for killing an elderly man with a shotgun, they believed “everyone convicted of such a murder committed during a robbery should receive the death penalty, regardless of the evidence regarding penalty” (emphasis added).
Y.C. believed that the death penalty should be “mandatory” for “[m]urder/special circumstance” and that it should be a “possible sentence” for “[a]ny murder” and if the defendant was convicted of first degree murder with a special circumstance she would “automatically vote for the death penalty and against [LWOP].” Both Y.C. and C.Pa. believed in “[a]n eye for an eye” and knowing that “California law has not adopted the ‘eye for an eye’ principle” they both indicated that they would not be “able to put the ‘eye for an eye’ concept out of [their] mind[s] and apply the principles the Court [provides].”
And, finally, in response to the question: “Are your feelings about the death penalty such, that if there was a penalty phase of a trial, you would in every case automatically vote for the death penalty rather than life in prison without the possibility of parole?” Both Y.C. and C.Pa. replied, “Yes.”
Questionnaire of Juror Who Opposed the Death Penalty
Conversely, B.H.’s questionnaire indicated that she “oppose[d]” the death penalty and did not believe “everyone convicted of . . . murder committed during a robbery” (as defendant in this case was charged), “should receive the death penalty, regardless of the evidence regarding penalty.”
B.H. equivocated in her responses to the questions concerning whether the death penalty should be mandatory for any particular crime and whether it should be a possible sentence for crimes other than first degree murder with special circumstances by responding: “No. ?” Similarly, in response to the question: “Under what circumstances, if any, do you believe that the death penalty is appropriate?” she responded “None. ?” And she responded to the question: “Under what circumstances, if any, do you believe that the death penalty is inappropriate?” by writing “Under no circumstances.” She again wrote down “No. ?” in response to the question about whether she would automatically vote against the death penalty and for [LWOP]” if a defendant was convicted of first degree murder and a special circumstance. She did not believe in the adage: “An eye for an eye.” Finally, she indicated that she would “hesitate to vote for first degree murder . . . just to avoid the task of deciding the death penalty,” adding that she was “against the death penalty” and that she would “automatically vote against the death penalty” even if she found the defendant guilty of first degree murder with a special circumstances.
In response to the question: “If you were selected as a juror in this case and if the jury got to a penalty phase, would you agree to listen open-mindedly to any evidence submitted about the penalty, and base your decision about the penalty solely on such evidence and instructions?” all three prospective jurors–Y.C., C.Pa., and B.H.–responded, “Yes.”
Voir Dire: Y.C. and C.Pa.
The trial court told Y.C. that it wanted to “explore” with her some of her questionnaire responses concerning her views on the death penalty and asked her a long series of leading questions regarding her understanding of the guilt and penalty phases of the trial, and what aggravating and mitigating factors are, among other things.
The court asked Y.C. whether she wanted to change her answer about her inability to put the concept of “an eye for an eye” out of her mind. She changed her answer. Finally, the court asked one last leading question: “Then on answer to 31 you said, ‘If you found the defendant guilty of first-degree murder and found special circumstances to be true, would you regardless of the evidence because of your feelings about the death penalty automatically vote against the death penalty.’ And you said yes. Is that a wrong answer?” Y.C. replied, “I believe so.”
The court walked C.Pa. through a similar series of leading questions concerning his views on the death penalty that appeared to be designed to “rehabilitate” the juror.
Voir Dire: B.H.
By contrast, the trial court made no attempt to “explore” with B.H. any of her responses concerning her views on the death penalty and did not employ the same method of asking leading questions in an attempt to rehabilitate B.H. as a death-qualified juror.
The court did not ask B.H. any questions regarding her understanding of the guilt and penalty phases of the trial or explain how aggravating and mitigating factors are considered as it did with Y.C. and C.Pa. Instead, the court asked B.H. eight short questions about her opposition to the death penalty and then excused her for cause.
Justice Liu concluded that “even though the written questionnaires of [these three] jurors showed the same degree of ambiguity concerning their ability to set aside their personal views and follow the law,” the trial court made more extensive efforts to rehabilitate Y.C. and C.Pa., who supported the death penalty, than it did to rehabilitate at B.H., who opposed the death penalty.
Justice Liu stated in his concurrence that “the problem here is . . . with the lack of symmetry in the court’s voir dire of the pro- and anti-death-penalty jurors whose written questionnaires presented the same degree of ambiguity.” He wrote “separately to underscore the obligation of trial courts to proceed ‘evenhanded[ly]’ when exercising their broad discretion to conduct death-qualification voir dire.” He asked readers to come to their own conclusions regarding the fairness of the voir dire process in the case.