Colorado Method

Capital Jury Selection:Strip, Identify, Rate : Capital Jury Selection:Strip, Identify, Rate Created by David Wymore

Let’s here from him : Let’s here from him http://vimeo.com/6469369 4 – 14 minutes

SELECT BASED ON DEATH VIEWS ONLY : SELECT BASED ON DEATH VIEWS ONLY Not on Your Defense Not Based Upon Race Not Because They Like You

PRINCIPLES OF VOIR DIRE IN DEATH CASES : PRINCIPLES OF VOIR DIRE IN DEATH CASES STRIP, IDENTIFY, RATE (without conceding guilt) Remove The Worst killers via Challenge for Cause Insulate and isolate potential life jurors Teach respect to killers who remain so as to get life verdict or some life votes out of jury room Always pick jurors on death penalty views Exhaust all peremptories based on death view ratings

6 Steps:1. Say this is hypothetical(don’t concede guilt)2. Strip3. Identify & Rate 4. Challenge for Cause: not fit to sit5. Teach respect to killers left on6. Insulate life givers left on : 6 Steps:1. Say this is hypothetical(don’t concede guilt)2. Strip3. Identify & Rate 4. Challenge for Cause: not fit to sit5. Teach respect to killers left on6. Insulate life givers left on

Slide 6 : STRIP IDENTIFY RATE bob

Step 1Say it is hypothetical –assuming that D is found guilty – only doing this so can ask prospective jurors re penalty views. : Step 1Say it is hypothetical –assuming that D is found guilty – only doing this so can ask prospective jurors re penalty views. je

Step 2: Strip Cut through ignorance of the law &/or subversive answers. Get to the guts of what the juror feels is the right penalty for an intentional aggravated murder. : Step 2: Strip Cut through ignorance of the law &/or subversive answers. Get to the guts of what the juror feels is the right penalty for an intentional aggravated murder.

The Unstripped Juror is usually a Wolf in Sheep’s Clothing : The Unstripped Juror is usually a Wolf in Sheep’s Clothing

STRIPPING : STRIPPING Hypothetically put the juror at the point of conviction of aggravated murder & then ask the identification question, “What are your feelings about the death/life penalty?” Failure to strip allows ADP jurors to get on the jury who should have been cause challenges due to belief that DP is required for all homicides, not just aggravated murder je

STRIPPING (continued) : STRIPPING (continued) Use strong language to describe the conviction Cold-blooded Meant to do it, premeditated Murder w/ at least one aggravating circumstance Strip away not guilty Strip away self-defense or defense of another Strip away mental & alcohol abuse defenses Strip away mistake & I.D. defenses Strip away accidental killings

A Stripped Juror is your only chance at getting a Life Juror : A Stripped Juror is your only chance at getting a Life Juror

Step 2:IDENTIFYING THE JUROR : Step 2:IDENTIFYING THE JUROR What are your views about the death penalty How long held? Whether views have changed and how? Reasons for? Discuss them? With whom, content? Strength of view? See LWOP as real punishment? bob

IDENTIFYING THE JUROR (CONTINUED) : IDENTIFYING THE JUROR (CONTINUED) What kind of cases/circumstances? Additional stripping needed? ADP? ADP on your case?

IDENTIFYING THE JUROR (continued) : Can you think of anything about a D’s life/background after having found him guilty of aggravated murder that you would want to consider when deciding whether to give him a life sentence? Morgan challenge? (mitigation impaired) IDENTIFYING THE JUROR (continued)

IDENTIFYING THE JUROR (continued) : “Shop” your mit = See if juror will buy IDENTIFYING THE JUROR (continued) Would you be able to consider and give effect to whether a D suffered from mental illness when deciding the penalty in this case? Would you consider that as a mitigating factor for life? Morgan on your case?

Is it just a “hearing test?” Is it enough to merely “listen to” the mitigation?NO!! : Is it just a “hearing test?” Is it enough to merely “listen to” the mitigation?NO!!

“…it is not simply enough to allow the defendant to present mitigating evidence to the sentencer. The sentencer must be able to consider and give effect to that evidence….”Penry v. Lynaugh, 492 U.S. 302, 319 (1989) : “…it is not simply enough to allow the defendant to present mitigating evidence to the sentencer. The sentencer must be able to consider and give effect to that evidence….”Penry v. Lynaugh, 492 U.S. 302, 319 (1989)

Mitigation as a matter of law: : Mitigation as a matter of law: Tennard v. Dretke, 124 S.Ct. 2562 at 2569-2572 (2004): “ impaired intellectual functioning is inherently mitigating” Morgan, 504 U.S. 719, 729 at n.3; Scalia, dissenting: “Presumably, under today’s decision a juror who thinks a “bad childhood” is never mitigating must also be excluded.” bob

Mitigation as a matter of law:Eddings v. OK, 455 U.S. 104, 114 (1982):“[j]ust as the state may not by statute preclude the sentencer from considering a D’s unhappy upbringing, emotional disturbance and turbulent family history as relevant mitigating circumstances, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” : Mitigation as a matter of law:Eddings v. OK, 455 U.S. 104, 114 (1982):“[j]ust as the state may not by statute preclude the sentencer from considering a D’s unhappy upbringing, emotional disturbance and turbulent family history as relevant mitigating circumstances, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.”

Under the 8th & 14th Amendments, the sentencer “must not be precluded from considering, as a mitigating factor, any aspect of a D’s character or record any any of the circumstances of the offense that the D proffers as a basis for a sentence less than death.” Lockett v. Ohio 438 U.S. 586, 604 (1978). : Under the 8th & 14th Amendments, the sentencer “must not be precluded from considering, as a mitigating factor, any aspect of a D’s character or record any any of the circumstances of the offense that the D proffers as a basis for a sentence less than death.” Lockett v. Ohio 438 U.S. 586, 604 (1978).

Unless you IDENTIFY THE JUROR’S PENALTY VIEWS… : Unless you IDENTIFY THE JUROR’S PENALTY VIEWS…

Step 3: THE RATING SYSTEM : Step 3: THE RATING SYSTEM je

Step 3: THE RATING SYSTEM : Step 3: THE RATING SYSTEM All team members use the same system and rate separately Write all responses verbatim -Quote the juror exactly

Slide 25 : The Rating System 1 = Witt Excludables (WE) _________________________________________________________________________________________ 2 = Reluctant Supporters 3 = Ambivalence 4 = Pro-Death Listeners 5 = Pro-Death Skeptics 6 = Killers ____________________________________________________________________________________________________ 7 = Morgan Excludables (ADP)

Trade off when tired… : Trade off when tired…

Step 3: THE RATING SYSTEM : Step 3: THE RATING SYSTEM Scale is from #1 - #7 #7 = ADP: the worst for us, an automatic death vote #1 : WE: the best for us: an automatic life vote May get rid of #1s & #7s by striking from questionnaire (or may decide to do this in court to educate other jurors if no ISVD [still object] The jury will likely be made up of jurors whose death views are #2s - #6s.

Jurors on the Extremes : Jurors on the Extremes #1 is a “WE” or a Witt Excludable – which means a juror who will never vote for the death penalty. A good prosecution challenge for cause [but still object] #7 is an “ADP” or automatic death penalty voter – also known as a “Morgan excludable” A good defense challenge for cause.

#7: ADP: Killing Machine: Pro-Death & Proud of It : #7: ADP: Killing Machine: Pro-Death & Proud of It bob

#6 Almost ADP:Burden on Defense to prove otherwise, Lip service to mit : #6 Almost ADP:Burden on Defense to prove otherwise, Lip service to mit

#5: Pro-death but, respects other jurors who are pro-life, worried that Life doesn’t really mean Life : #5: Pro-death but, respects other jurors who are pro-life, worried that Life doesn’t really mean Life

#4 Pro-Death Listeners – pro death, but will really look at mitigation.Eye for an eye is outdated : #4 Pro-Death Listeners – pro death, but will really look at mitigation.Eye for an eye is outdated je

#3: Weak pro-death – But “kill problem” – doesn’t want to be a juror in a capital case – therefore, a Life Giver : #3: Weak pro-death – But “kill problem” – doesn’t want to be a juror in a capital case – therefore, a Life Giver

#2 Pro-Life Except for EXTREMES : #2 Pro-Life Except for EXTREMES

#1: WE: Automatic Life Giver : #1: WE: Automatic Life Giver

THE RATING SYSTEM : THE RATING SYSTEM Always pick your jury by removing the highest numbers first Always exhaust your peremptories Select based on death views only bob

Step 4: CHALLENGING THE KILLERS: Not Fit to Sit : Step 4: CHALLENGING THE KILLERS: Not Fit to Sit Stacking challenges: make a big pile Doesn’t see life as a real punishment Burden shifters: thinks D has a burden of proof To negate aggravation Or to prove mitigation Or to prove LWOP is appropriate

Step 4: CHALLENGING KILLERS : Mitigation Impaired Hardship Publicity Defense Impaired Illegal Basis for Death Penalty: Call these “Nonstatutory Aggravators” see Bivins Deterrence, Economics, Retribution Step 4: CHALLENGING KILLERS Not Fit to Sit

CHALLENGE FOR CAUSE: JUROR WHO BELIEVES IN Nonstatutory Aggs, for example: : CHALLENGE FOR CAUSE: JUROR WHO BELIEVES IN Nonstatutory Aggs, for example: Pro-death because LWOP costs too much Pro death because believes death penalty is a general deterrent

Slide 40 : $$$$$$$

Step 4: CHALLENGING KILLERS : Information impaired Impaired on Constitutional rights Presumption of innocence Right to not testify No burden Proof beyond a reasonable doubt Step 4: CHALLENGING KILLERS Not Fit to Sit

FUNDAMENTAL STEPS OF LIFE QUALIFICATION TO CHALLENGE KILLERS : FUNDAMENTAL STEPS OF LIFE QUALIFICATION TO CHALLENGE KILLERS Identification of juror as Pro-Death - #4 or higher Cause voir dire on impairments to life verdict (i.e. can’t give reasonable consideration to an LWOP or lower verdict) je

STEPS OF LIFE QUALIFICATION : Stripping (the law is always satisfied with life but the juror may not be) Life penalty not a real penalty or a sufficient penalty in that situation Burden shifter Mitigation impaired (either statutory or case specific) STEPS OF LIFE QUALIFICATION

STEPS OF LIFE QUALIFICATION : Aggravation would make it unlikely that LWOP would be a sufficient penalty, etc. (although the law is always satisfied with life) STEPS OF LIFE QUALIFICATION

STEPS OF LIFE QUALIFICATION : Mitigation phase requires juror mind set that 1. all types of mit exists; 2. juror is not biased against any type of mitigation and is 3. ready, willing, and able to give real consideration to mit, regardless of any previous finding of guilt or aggravation STEPS OF LIFE QUALIFICATION

STEPS OF LIFE QUALIFICATION : Aggravation outweighing mitigation does not require the death penalty. State must convince Juror that the death penalty, not the life penalty, is the only appropriate sentence using that individuals own unique, moral assessment of the facts of the case, the background the client, and their own assessment of who ought to live and who ought to die. STEPS OF LIFE QUALIFICATION bob

the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime." California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring) (emphasis in original). : the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime." California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring) (emphasis in original).

Object to Judge/Prosecutor Rehab of ADP by use of leading Q re ability to follow the lawor follow the judge’s instructions : Object to Judge/Prosecutor Rehab of ADP by use of leading Q re ability to follow the lawor follow the judge’s instructions Morgan, 504 U.S. 719 at 734-735 (1992): “Illinois suggests that general fairness and ‘follow the law’ questions, of the like employed by the trial court here, are enough to detect those…[who are ADP]. The State’s own request for questioning under Witherspoon and Witt of course belies this argument.” je

Morgan, 504 U.S. at 735. “As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed.” : Morgan, 504 U.S. at 735. “As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed.”

Morgan, 504 U.S. at 738-9 : Morgan, 504 U.S. at 738-9 “[a] juror [who] will not give mitigating evidence the consideration that the statute contemplates…” is not merely a “ merciless” juror, he is a “LAWLESS” juror.

Step 5: STEPS OF LIFE QUALIFICATION : Teach Respect: … All jurors are required to give respect to each other’s views Step 5: STEPS OF LIFE QUALIFICATION bob

Step 6: INSULATION/ISOLATION OF POTENTIAL LIFE JURORS : Step 6: INSULATION/ISOLATION OF POTENTIAL LIFE JURORS

SAVING THE LIFE GIVERS (#s 1 – 3) : Need for jurors from all walks of life May disagree with a law but can follow Our system of justice works when people are willing to abide by laws even if they do not agree with them all the time. Analogy: presidential election – may well have known who you’d vote for, but did meaningfully consider views of opponent SAVING THE LIFE GIVERS (#s 1 – 3)

FORCING PROSECUTOR TO USE A PEREMPTORY ON LIFE GIVERS (#s 1-3) : May disagree for a variety of reasons with the death penalty but willing to consider it if evidence sufficient to move YOU to consider it as an appropriate punishment. FORCING PROSECUTOR TO USE A PEREMPTORY ON LIFE GIVERS (#s 1-3)

SAVING THE LIFE GIVERS (#s 1 – 3) : SAVING THE LIFE GIVERS (#s 1 – 3) Not required or asked to make decision now Can’t possibly make decision now without having heard evidence Only need to commit to being willing to consider the full range of penalties je

“[A] State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentenced of death cannot be carried out if the jury was chosen by excluding veniremen for cause : “[A] State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentenced of death cannot be carried out if the jury was chosen by excluding veniremen for cause Morgan, 504 U.S. at 732, quoting Witherspoon v. Illinois, 391 U.S. 510, 520-523 (1968): bob

simply because they voiced general objections to the death penalty or expressed conscientioius or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” : simply because they voiced general objections to the death penalty or expressed conscientioius or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.”

Takeaway Lesson:Prevent or Substantially Impaired?A juror who is -hesitant to vote death is fit to sit -conscientiously opposed to imposing death is still fit to sit. -has religious objections to death is still fit to sit. -has general objections to death is still fit to sit. : Takeaway Lesson:Prevent or Substantially Impaired?A juror who is -hesitant to vote death is fit to sit -conscientiously opposed to imposing death is still fit to sit. -has religious objections to death is still fit to sit. -has general objections to death is still fit to sit. je

TEACH LIFEGIVERS HOW TO GET OUT OF THE JURY ROOM WITH LIFE : TEACH LIFEGIVERS HOW TO GET OUT OF THE JURY ROOM WITH LIFE How to walk out with life at each step Floating mitigation: internal compass No obligation to explain Respect required Ask for judge’s assistance if pressured

Juror Bill of Rights : Juror Bill of Rights The right to have your vote respected by other jurors, the prosecution, the judge.