updated 2/18/2004 5:25:46 PM ET 2004-02-18T22:25:46

The debate never ends of the Abrams Report. Last night’s guest criminal defense attorney Jeralyn Merritt made assertions about the value of dual juries in capital cases. Today, she sent a follow-up email Dan Abrams and former prosecutor Dean Johnson (with whom she was debating with.) Below is her e-mail, as well as Johnson's reply:

From Jeralyn Merritt:

Dan:

Your guest [Dean Johnson] was dead wrong and I hope he apologizes.  Can you forward him these studies and I hope you mention them on your next show.  These are just a few.  It’s so basic, any death lawyer knows it.

44 Buffalo L. Rev. 469, 494 (1996)
The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases
by Samuel Gross

Page 494: bq.  Death Qualification. In capital cases, juries decide the sentence as well as determine guilt or innocence. As a result, the jury selection process includes a unique procedure, “death qualification,” that is designed to ensure that the jury is qualified for the sentence phase. Most jurors who are strongly opposed to the death penalty, and some who are strongly in favor, are excluded at the outset.108 Many studies have shown that these exclusions make the jury more likely to convict. 109 In addition, the process of questioning jurors about their willingness to impose the death penalty before the defendant has been convicted tends to create the impression that guilt is a foregone conclusion, and the only real issue is punishment.110

fn 109 (some studies):
Claudia L. Cowan et al., The Effects of Death Qualification on Jurors’ Predisposition to Convict and on the Quality of Deliberation, 8 LAW & HUM. BEHAV. 53 (1984);

Robert Fitzgerald & Phoebe C. Ellsworth, Due Process v. Crime Control: Death Qualification and Jury Attitudes, 8 LAW & HUM. BEHAV. 31 (1984).

See generally Hovey v. Superior Court, 616 P.2d 1301, 1315-1341 (Cal. 1980) and studies cited therein;

see also Grigsby v. Mabry, 569 F. Supp. 1273 (E.D. Ark. 1983), aff’d 758 F.2d 226 (8th Cir. 1985) (en banc), rev’d sub nom Lockhart v. McCree, 476 U.S. 162 (1986).


Thanks,
Jeralyn Merritt

Below is Dean Johnson’s reply:

Hi, Jeralyn. Thanks for sending the e-mail. It’s good to know that there are actually people who follow up on these things.

Since we are discussing a California case and California law, let me give you a little California“death penalty 101.” The case that you cite, Hovey, is the leading California case on death penalty jury selection. In fact, we refer to the DP jury selection process as “Hovey voir dire.” 

The argument that you raised on the show, that “death qualified” juries are more likely to convict, is one of the two common arguments raised by the defense in support of two juries. (The other being that the single jury process hamstrings defense voir dire. Both arguments have been uniformly and repeatedly rejected by the courts.

You are correct that Hovey examines a number of statistical studies that were offered by defendant in support of the contention that a death qualified jury is “nonneutral”-that is, more likely to convict that the jury pool or population as a whole.

However, the court specifically found the studies failed to make out a prima facie case of nonneutrality, and rejected Hovey’s arguments in this regard. While I am not a statistician, I can offer a laymen’s explanation of the court’s reasoning. Essentially, the court said that the studies cited took into account the exclusion of jurors who would decline to impose the death penalty, but failed to take into account the fact that voir dire also excluded those who would automatically impose the death penalty upon conviction of murder. If the size of this latter group is significant, and their bias as strong as that of the “automatic non-death penalty” group, the exclusion of all members of the two groups would, in effect, cancel each other out, leaving the remaining pool no more or less conviction prone that the population as a whole. (616 P. 2nd 1344.)

Subsequent cases in California have followed suit. You might want to take a look at the case that I mentioned on the show, People v. Rowland, (1992) 4 Cal. 4th 238, 268. This case is probably the strongest one for two juries, because the defense wanted to keep prior convictions from the guilt phase jury, while dealing with them before the penalty phase jury. The court rejected the claim that the single jury trial prejudiced defendant.

Another interesting case is also out of San Mateo. People v. Beardsley  53 Cal. 3d 68, 101-102. In that case, the People and the defendant stipulated to two juries. On appeal, defendant argued that he should have had one jury (and that once the guilt phase jury was discharged, the case should have come to a halt). The court noted that “The preference for a single jury is by no means a one-sided matter; such a procedure may provide benefits for both the defense and the prosecution...”

Interestingly, even though Beardsley got his two juries, he was convicted. He will probably be the next person to be executed in California, beating even Kevin Cooper to the executioner.

I must confess that I do not read the Buffalo Law Review (call me irresponsible). I assume that the quote reflects the opinion of the author. Given the myriad variables that go into jury deliberations, however, I find it difficult to believe that any scientifically valid study could be constructed that would prove the point that we were discussing, and, so far, California courts agree with me.

Don’t get me wrong. There is a reason that I am an ex-prosecutor. I believe that the death penalty in California is seriously flawed and would be happy to discuss how those flaws impact the Peterson case. In this regard, you might want to take a look at Santa Clara Law Review, Volume 44, number 1, p. 101. I also believe that the “truth finding process” in the criminal justice system in general is fundamentally flawed. My only point is that, whatever the problems may be, no one has yet convincingly shown that the lack of two juries in a DP case is one of them.

In any event, I think we can agree that this is an important and complicated issue. Much too important to be discussed on a street corner in a windstorm.

Dean Johnson

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