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August 2002

Deadly Decisions

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Juror Responsibility

Every day, in courthouses around the country, tens of thousands of Americans are called for jury duty. It's generally not something most Americans look forward to. It's an inconvenience. It means interrupting our normal routines, missing work, and getting paid next to nothing to sit around a courthouse, hoping you won't be seated on some trial that will last for the next month and a half.

Surprisingly, most Americans who serve as jurors find it a positive experience by the time it's over. But jury service can also be extremely stressful, even traumatic. This is especially true in violent criminal cases, and above all, in death penalty cases. In the 38 states that have the death penalty, jurors who reach a guilty verdict must also decide if the defendant will live or die.

For this American RadioWorks special report, correspondent Alan Berlow examines cases in which death penalty jurors misunderstood, even disobeyed the laws designed to guide their decisions over life and death. And he found that jurors may be influenced by their own fears and prejudices when they sentence people to death.

Jurors' Trauma

Brenda Barrett, a gentle, soft-spoken woman, and her husband Jim, a leather-skinned former Marine officer who did two tours in Vietnam, live on an idyllic patch of Virginia farmland 50 minutes south of Washington, D.C. Mr. Barrett boards, breaks and trains horses at his Oak Leaf Stables.

"I'm gonna let you ride the palomino," explains Jim, " the new palomino that I got. But when you first get on her, you gotta take a deep seat and a long rein... Just sit there calmly and talk to her. She don't know the word walk. She just trots."

Mrs. Barrett, an obstetrical nurse, delivers babies. In 1993, she and 11 other jurors sentenced 27-year-old Lonnie Weeks to death for murdering a Virginia trooper, Jose Cavazos. To this day, Mrs. Barrett finds it difficult to talk about the trial.

"I don't think there's anything you can compare it to, because I've never been asked to take the life of someone else," says Brenda Barrett.

Simply stated, this is the fundamental reality of a capital murder trial. There is, in fact, nothing more onerous that an ordinary citizen is asked to do, by his or her government, than to contemplate taking the life of another human being.

"You know when you're on a case like this," explains Brenda Barrett, "you see the blood, you see the photographs of the dead body and where the bullets entered, you see a layout of the crime scene. It becomes a reality to you. It's not something you just read in the paper, but it's something you pick up, you touch, you look at, you see you smell, you know, you become part of it."

Other jurors who have served in capital cases express similar feelings. David Dobyns builds houses in Northern Virginia. He was the foreman of Brenda Barrett's jury.

"It was an emotional roller coaster basically, for a full week," says Dobyns. "I consider myself a Christian. I don't want to put anyone to death, but this was just a very tough decision. It's one of the hardest things I've had to do."

But what happens to ordinary citizens when they're operating under that kind of pressure? Charged by their government with this momentous decision, do they think clearly? Do they follow the law? Do they get it right?

The Cruz Case

Audio from a TV Newscast: "A jury in Rockford tonight sentenced 26-year-old Rolando Cruz to death, despite the pleas of his mother. It was the same jury that found Cruz guilty yesterday of the abduction, rape and murder seven years ago of Jeanine Nicarico of Naperville."

The 1983 murder of 10-year-old Jeanine Nicarico in Illinois precipitated a classic case of a capital murder prosecution gone awry. Two separate juries found Rolando Cruz guilty of the murder, and Cruz was twice sentenced to death. But the police had no physical evidence implicating Cruz, and DNA largely excluded him as a suspect. On top of that, a police officer lied under oath while testifying, and the prosecution suppressed a confession from a man who very well might have been the killer.

Michael Callahan, an insurance broker in Lombard, Illinois, lives about 10 miles east of where the little girl's body was found. Callahan was a member of the first jury that found Cruz guilty and led to his death sentence by a judge. Callahan says this trial— in which Cruz was tried with two co-defendants—was a "gut-wrenching" experience, and that the jury deliberations got off to a particularly bad start.

"There were probably eight jurors that I was satisfied made up their minds, before the trial started, that someone's going to pay for what they did to this little girl," describes Callahan. "As a matter of fact, the first recess, the first day of the trial, the gentleman who was elected subsequently as the jury foreman, he said, 'Well, they're here, they sure must have done something.' And I thought, you know, that's the wrong way to start out a trial."

Callahan says these preconceived notions about the guilt of the defendants were carried into the jury room two months later— at the conclusion of the trial.

"We go into the jury room," recalls Callahan, "we get the instructions from the judge, we take the vote to elect the jury foreman, this guy's elected foreman, the first words out of his mouth are, 'Well I guess this will just be a mere formality.' He kind of thought, hey fine, they're guilty, let's sign it and be on our way. And I said, what do you mean a mere formality? I said, we just spent two months listening to a whole bunch of people and as far as I'm concerned, this isn't an open and shut deal. We need to discuss the evidence."

Callahan says the state's evidence was very weak, "I can remember vividly when the state's attorney rested his case, the thought in my mind was, 'This is all we're going to hear? I mean, this is it? This is the evidence? I was just aghast. And I really started to feel uncomfortable."

Plagued by doubts about the guilt of the defendants, determined to stand up against those jurors who'd presumed the defendants had killed little Jeanine Nicarico, what did Callahan do? Well, he went into the jury room and voted to find Cruz guilty of first-degree murder.

But why? Why would a juror with such serious reservations about the guilt of the defendants risk allowing them to be sentenced to death? What about establishing guilt, as the law requires, "beyond a reasonable doubt"?

Callahan explains, "My thoughts were, OK, I know what's going to happen. There's going to be an appeal. So I'm going to find these guys guilty. OK? I'm not totally happy with that. But I wasn't happy letting them go. I'm not totally satisfied that they were involved. However, there's enough evidence— if it were to be believed— that, yeah, maybe, maybe, maybe there's something there. So on that basis, I thought, yeah, I'll find 'em guilty. Not going to give them the death penalty. Never do that. But sooner or later the truth is going to come out."

Callahan may have been unwilling to sentence Cruz and the other defendants to death, but it didn't matter, because the elected judge in this highly politicized, high profile case showed no such reservations. Callahan was right about one thing, however. The truth did come out— about a decade later. Cruz had nothing to do with the murder. He had lost nearly 12 years of his life, most of it on death row.

The Milgram Experiments

Of course, jurors are not supposed to assume that someone else will somehow sort out the mess they're presented with when a case is appealed. In fact, the law is supposed to make jurors feel a huge weight of moral responsibility for these life or death decisions. No doubt, many jurors do. When they don't, however, the result can be catastrophic— as the Cruz case suggests. Why they don't assume responsibility may be explained, in part, by one of the classic experiments in social psychology.

Sound from an old audio recording: "Let me out of here. You have no right to keep me here. Let me out. Let me out. Let me out."

In 1961, Stanley Milgram, an assistant professor of psychology at Yale University, conducted what have become known as the "Obedience Experiments." Milgram persuaded ordinary people to give painful electric shocks to people they had only just met.

The subjects, known as "teachers" were told to increase the strength of an electric shock given a so-called "learner" each time he made a mistake in memorizing a series of word pairs. The subjects believed they were part of a study to ascertain whether negative reinforcement could motivate learning. In reality, Milgram wanted to test whether ordinary people would obey an authority figure even to the point of being sadistic and cruel. To make the experiment even more provocative, the "teachers" were led to believe that the "learner" they were shocking had a heart condition.

Sounds from the Milgram experiment: A buzzer.
Learner: "Ohh! I can't stand the pain, let me out of here."
Teacher: "He can't stand it. I'm not going to kill that man in there. You hear him hollering.
What if something happens to him?"

In reality, the "learner" was not being shocked, and was deliberately giving wrong answers. But the subject or "teacher" didn't know this. Eventually the "learner" with his heart condition would stop screaming or banging on the wall and fall silent, leading the "teacher" to believe he'd lost consciousness.

Sounds from the Milgram experiment:
Teacher: "Something's happened to that man in there. You better check in on him, sir. He won't answer me or nothing."
Experimenter (Authority figure): "Please continue. Go on please."
Teacher: "You accept all the responsibility?"
Experimenter: "The responsibility is mine, correct. Please go on."

Although the "teacher" was clearly uncomfortable giving the electric shocks, goaded by the experimenter and assured that he was not personally responsible, the teacher eventually gave the unconscious "learner" more than 400 volts. In fact, half of the subjects in Milgram's experiment administered the maximum punishment. Nearly all the subjects gave the maximum voltage—if they were part of a group, and led to believe that they were simply going along with a majority or unanimous decision.

Skirting Responsibility

Indiana University Law Professor Joseph Hoffman says jurors confronted with the "anguishing moral dilemma of a death sentencing decision" seek to avoid personal moral responsibility for the decision— much as the subjects in Milgram's experiment did. A former clerk to Chief Justice William Rehnquist, Hoffman researched this phenomenon for the Capital Jury Project, a consortium of law professors, psychologists, criminologists and other social scientists. The project has interviewed more than 1200 capital jurors during the past decade. Hoffman says some jurors he interviewed simply denied that the death sentence they handed down was their responsibility at all.

Hoffman explains, "We've had jurors say, for example, that they believed that the judge had told them that they should come back with a death sentence when, in fact, we have transcripts of the trial and no such thing was actually said. But the jury members, for whatever reason, interpreted the judge's instructions in that way."

In the case of Virginia cop-killer Lonnie Weeks, juror Ted Trynock, says several women jurors became highly emotional during discussions over the death sentence, and the judge repeatedly reassured them that they were not responsible for the sentence.

"Whenever the ladies were crying," recalls Trynock, "the judge came back into the quarters, where we were at, and the judge, he told them that 'your job is just to find him innocent or guilty, OK. I do the sentencing.'"

The judge said that?

"Yeah. Uh huh," says Trynock.

If the judge actually said that, his behavior was not only highly unethical, but also entirely misleading. Virginia judges have never had authority over death sentencing. Yet taking that burden off the jurors may have made it easier for some of them to vote for death. Weeks was executed two years ago.

In the past quarter century, 120 people were executed in states where judges rather than juries were allowed to make critical sentencing decisions. In June, the Supreme Court ruled that the laws in five of those states violated the constitutional right to a trial by jury. Yet three states still allow juries to recommend death sentences, leaving a final decision to the judge. Whether these statutes will also be found unconstitutional remains to be seen.

Professor Hoffman says that the experience of being asked to "kill someone" is so "alien and so overwhelming" that jurors will frequently shift responsibility to the defendant, the appeals process, the judge or the law itself.

"Jurors will say things like, well, I think the law basically was pointing us in the direction of a death sentence in this case," says Hoffman. "Or in some cases, the other way: the law was telling us that we should come back with life in this case. That's not what the law is supposed to do. It's not what the law is trying to do. But it's how the jurors interpret that legal guidance."

Hoffman says the law should make jurors feel responsible and behave responsibly. But, he says, to have a functioning capital punishment system, jurors cannot be made to feel that they are entirely responsible for the "violence" they tell the state to carry out. Hoffman says that if the law goes too far in emphasizing that the defendant's life rests in the jurors' hands: "You may produce a situation in which no jury would ever impose a death sentence."

Defense lawyers have long argued — unsuccessfully as it turns out — that capital jurors should be given graphic details of the execution process itself to drive home the weight of their decision and of their moral responsibility.

Juror Confusion

In 1976, the Supreme Court handed down a landmark decision known as Gregg v. Georgia, reinstating the death penalty, which it had found unconstitutional only four years earlier. In the Gregg decision, the justices predicted that new state laws would eliminate the arbitrary and unprincipled death sentences that the Court had found were commonplace only four years earlier when it ruled that the death penalty was unconstitutional. In a 7-2 opinion the justices offered this optimistic pronouncement. "No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines."

A quarter century later, the United States has executed more than 780 people. Another 3700 are on death rows across the country. But while the states have adopted new instructions to guide jurors in making life or death decisions, many jurors appear to be just as confused about the law as they were when the high court put the death penalty on hold.

Death Row - Bobby Moore

The nation's busiest death row, the 2900-inmate Allan B. Polunsky Unit, is in Livingston, Texas, an hour north of Houston. The sprawling, gray two-story complex sits behind multiple razor wire fences overlooking a broad, open plain of buttercups. Visitors are led through an electronically operated door along an immaculately tended, flowered path.

A second security checkpoint guards a long room where shackled death row inmates— their shirt backs marked "DR" in ten-inch black letters— are led into phone-booth-size steel cages with thick plexi-glass windows.

"My name is Bobby Moore. Having been on death row for 22 years now, I have witnessed many men being carried away to the execution chamber. Many here do not want the time to be up— and some do."

Bobby Moore, now 42, was sentenced to die 22 years ago for the shooting death of James McCarble in the course of a bungled robbery at a Houston supermarket. Like other men and women who have spent years on death row, Moore insists the experience has affected him profoundly.

"Any person that believes in God, I think, would agree that people do change," says Moore. "And I'm no longer the person I was 20-some years ago. I have changed. I regret what I did in the past and I learn from my mistakes every day of my life here."

Similar claims of change and redemption have invariably been dismissed by the Texas parole board and governors, among them George W. Bush, who signed off on 152 executions.

Moore is only alive today because a federal court ruled he would probably not have been sentenced to death except for the "gross incompetence" of his trial attorneys. That 1995 ruling led to a "re-sentencing trial," a trial in which jurors were told Moore was guilty and that they were only to determine his sentence. This new jury also voted for death. Fred Baca, the jury's foreman, describes what he calls a "horrific" crime.

"Two people went in and were holding people, were taking money, with Bobby seemingly a lookout guy with a shotgun," explains Baca. "A woman screams, things get out of hand, Bobby goes over to the cashier, the shotgun goes off. It literally blew this man's head off."

Baca was never comfortable with Moore's death sentence. A self-described conservative Republican businessman, he says jurors didn't understand some of the language in their instructions— the term "culpability," for example, and the meaning of the phrase "continuing threat to society." They also asked the judge to tell them which evidence could be considered "mitigating," that is, which evidence lessened Moore's responsibility for the crime. But Baca says questions to the judge went unanswered so often that they finally stopped asking.

"We were drowning, and we wanted some kind of help. And when it's that serious, for God's sakes, when you're pleading for help, you have to give us something. We were reasonable people, intelligent people, making a very difficult decision, asking for help."

What most confused the jurors was whether Moore could be paroled if given a life sentence. But Baca says Texas law prohibited jurors from discussing parole.

The jurors concluded they had only two choices.

"The options came down to death or, in our minds, release to the general public," says Baca.

Would Moore ever be paroled? Extremely unlikely. To get out, he would need the approval not only of the state's highly political Board of Pardons and Paroles, which has never granted parole at the request of a death row inmate— but the governor as well. In the end, Moore's jury did what many juries do; they ignored the judge's instructions. Believing that Moore might be paroled in 15-20 years, they voted to execute him.

Fred Baca was so disturbed by his trial experience that he went to the judge and asked to meet the man he'd just condemned to death. Today Baca is one of Moore's most outspoken advocates.

"An injustice is about to occur," says Baca. "The truth is, executing Bobby Moore today is as senseless as the killing of the store clerk in 1981. It doesn't make any sense."

Baca says Texas needs a clear 'life without parole' statute, so jurors will know that dangerous men they don't want to execute will never be released. And he says, citizens who are asked to hand down death sentences have a right to an explanation of things they don't understand.

Judges Don't Want to Retry Cases

But why did Moore's judge refuse to answer the jury's questions? And why was the jury forbidden from discussing parole?

Paula Hannaford of the National Association of State Courts is one of the country's leading authorities on juries. She says judges often refuse to answer jurors' questions because they fear any deviation from standard, well-rehearsed instructions could open a verdict or a sentence to reversal on appeal. Judges don't want to have to retry cases. And, in states where judges are elected, they don't want their opponents harping on their reversal rates.

Hannaford says most jurors take their jobs extremely seriously. And she believes denying them information about the meaning of basic legal concepts undermines the integrity of the justice system.

"It's not fair," says Hannaford, "to the jurors to ask them to be making these kind of decisions without providing them with an opportunity to truly understand what the law is and what the criteria are that they are supposed to be making their decisions (with). And if they are fundamentally misunderstanding concepts, it is only an arbitrary decision. The justice system that is supposed to be meting out justice, is not in fact doing that at all."

Hannaford believes people are being wrongly sentenced to death because jurors don't understand the law. She says courts often refuse to allow discussions of parole because parole is an executive branch decision, and courts can't predict when or if a defendant may be released. But she believes, sentencing would be fairer if jurors were told, based on the law and experience, what the likelihood is of release.

Misconstruction of the Law

In the spring of 1999, Sandra Day O'Connor received an enthusiastic welcome from an audience of lawyers, judges and court administrators gathered in Washington for a National Conference on Public Trust in the Justice System. In her remarks, which went largely unreported, the Associate Supreme Court Justice said that jurors were handing down verdicts without a clue as to what was going on.

"Too often, jurors are allowed to do nothing but listen passively to the testimony," said Justice O'Connor, "without any idea what the legal issues in the case are, because they aren't told at the beginning of the case. And at the end of the case, they are finally read a virtually incomprehensible set of instructions and sent into the jury room to reach a verdict in a case they may not understand much better than they did before the trial began."

But six months after that speech, O'Connor joined Chief Justice Rehnquist in a 5-4 opinion which stated quote: "A jury is presumed to follow its instructions and to understand a judge's answer to its question."

Beatrice Hayward didn't understand the instructions. She wanted to know if the law required a death sentence. But the judge refused to answer her question.

Hayward said, "We wanted to make sure if we were doing the right thing, and if this was the only way we could go was the death penalty."

That was no small matter, because the court's 1976 Gregg decision reinstating the death penalty ruled that automatic death sentences were unconstitutional. But Hayward wasn't told that. She and two other jurors believed they were required to sentence Virginia cop-killer Lonnie Weeks to death. Ted Trynock, a union official, was one of them.

"We either had to find him guilty or innocent," says Trynock. "If he was innocent, he walked. If he was guilty he was gonna die. And that's it. We weren't there to discuss the penalty. We were there just to find out whether he was guilty or innocent. And we all understood that it was the death penalty if he was guilty."

But the Gregg decision says the jurors were there to discuss the penalty and that they were required to consider a life sentence. By the time Trynock's misconstruction of the law became known, Weeks had already been put to death by lethal injection.

But the Weeks case is not some weird aberration. The Capital Jury Project, which has interviewed more than 1200 jurors in 350 capital murder trials, found that more than half of the jurors it interviewed thought death was mandatory for premeditated murder, multiple victim murders, and for repeat murderers. All of those jurors made life or death decisions. And all of them misunderstood the law.

Bobby Lee Ramdass

In 1993, a Pakistani immigrant, Mohammed Kayani, was murdered at 7-Eleven number 10775 on Beulah Street in Alexandria, Virginia. The murderer, Bobby Lee Ramdass, had previously been convicted of two armed robberies, had pistol-whipped a hotel clerk and shot a cab driver in the head, leaving him for dead. When his case went to the Supreme Court, the issue was, once again, juror confusion. Justice O'Connor cast the deciding vote, which resulted in Ramdass's execution.

No one on Ramdass's jury had any doubt about his guilt, or that, if released, he might be a threat to society. But according to Jane May, jurors were unclear about one point in their instructions: "[I]f the defendant is given life," they asked the judge, "is there a possibility of parole at some time before his natural death?"

"The note came back, 'That is not for you to consider.' There was no yea, no nay, no explanation, nothing. That was it," says May.

Ramdass's lawyers argued that the judge should have told the jury that there was no real possibility of his ever being paroled, because of his prior convictions and because Virginia has a life without parole statute. But absent any clarification, May said the jurors concluded Ramdass might indeed be released. So they voted for death.

"I was among those who would've liked to have life," explains May. "But if it could not be life, we were not willing to take the chance of his getting out at some point in time."

May also said the jurors feared that failure to reach an agreement would have resulted in a mistrial, a common misconception among jurors. They weren't told that failure to agree would have meant a court-imposed life sentence.

The Supreme Court had earlier ruled that jurors must be informed that a defendant is not parole-eligible when a state claims he will pose a "future danger" to society. That position has been strengthened in a series of subsequent opinions. But Justice O'Connor said the rule didn't apply to Ramdass. May and three of her fellow jurors later signed affidavits saying they would not have voted for death had they been told Ramdass could not have been paroled.

Ramdass was executed in October, 2000.

Jurors' Misconceptions

The New Brookland Tavern just west of the Congaree River in West Columbia, South Carolina, wears its decrepitude like a badge of honor: ancient vinyl chairs with their stuffing pouring out, a water-stained plaster ceiling with holes big enough to drop a body through, and a carpeted dance floor that has clearly had one too many. The bar showcases bands that run the gamut from folk to heavy metal. On this particular night, a group called "The Reprieves" is on stage. Its members are not your usual cast of rockers, but three high-powered death penalty lawyers and a local florist on drums.

"Well mama passed on 'fore she turned eight,
Daddy's love for life, it turned to hate.
She was her daddy's pride and joy...."

John Blume, songwriter, vocalist and guitarist, is also a professor of law at Cornell University. His clients are the subjects of many of his songs, like this one about Betty Lou Beets who he represented in her final appeals. Beets, a 62-year-old grandmother was executed in February, 2000, for murdering her husband, who she buried beneath a wishing-well, in front of her mobile home near Gun Barrel, Texas.

"Several days later they found him dead.
He had three gunshot wounds in the back of his head.
The DA said it was all part of a ploy...."

As governor, George W. Bushed signed off on the execution, despite evidence that Beets's original trial lawyer withheld evidence that could have saved her from a death sentence.

But even when jurors are given all the evidence, Blume says, they frequently don't understand what the law requires them to do with it.

"I don't know if you've actually ever listened to a judge give instructions at the sentencing phase of a capital trial. If not, and you have insomnia, I would suggest that you do it. But it is incredibly mind numbing and it's incredibly confusing and I think they just don't get it," says Blume. "And just sitting there, listening to somebody talk to them for an hour about things they don't have any reason to talk about in their everyday lives, aggravation, mitigation, unanimity, beyond a reasonable doubt, blah, blah, blah..."

Most people know a death sentence requires a unanimous jury.

One question: How many jurors would it have taken to decide that Betty Beets deserved a life sentence instead of death because she was sexually abused as a child? Answer? Just one.

Any juror who finds a factor sufficiently mitigating can effectively veto a death sentence.

But jury instructions rarely if ever make that clear. In South Carolina, the Capital Jury Project found that two out of three jurors who sat in death penalty trials believed they had to be unanimous on mitigation. Indeed, the jury project found jurors frequently don't understand what mitigation means.

Blume says the misconceptions jurors bring to their deliberations are sometimes quite outlandish. He cites the 1987 re-sentencing trial of Ernest Riddle in which the jury sentenced him to die, despite the fact that half of the jurors thought he was innocent

"You think, OK, how could that be, that sounds so strange, so bizarre," says Blume. "But here's how they spun it out. If we sentence him to life, he's just gonna go away to prison forever. But if you're sentenced to death you get an elaborate set of appeals. And one of the appeals is a new trial on the question of whether you did it or not— so this guy will actually be better off if we give him the death penalty as opposed to life imprisonment."

Simplifying Death Penalty Instructions

In Illinois, Northwestern University law school professor Shari Diamond and linguist Judith Levi conducted a study of how well jurors understood that state's death penalty instructions. They found that by simplifying the language of instructions, juror comprehension increased dramatically. Diamond provided one example from a particularly confusing instruction.

"My all-time favorite," Diamond explains, "is the wonderful line in the Illinois pattern jury instructions which contains, and you can count them for yourself, four negatives. 'If you are—one—unable to find unanimously that there is— two—no mitigating factor sufficient—three—to preclude imposition of a death sentence, the court will impose a sentence—four—other than death."

What does that mean?

"It means if you're not unanimous," says Diamond, "the person will not be sentenced to death."

Toothpaste companies test their commercials to see what consumers "take away" from them, Diamond says, but jury instructions used in courtrooms across the country every day are rarely if ever tested.

Several states, including Wyoming, Arizona, Michigan and California, have tried to make instructions more accessible. Curiously, the 2600 member American Judges Association, the largest association of judges in the country, has never addressed the issue. Many judges and prosecutors still claim there's no real problem.

Harris County District Attorney Charles Rosenthal says that anyone who speaks and reads the English language should understand the Texas death penalty instructions. I asked him if Texas had ever tested that assumption.

"No, I don't know how you could do that or why you'd want to," responded Rosenthal.

When it was suggested that a simple reading comprehension test given to 1000 potential jurors might tell you whether or not the instructions make sense, Rosenthal had this response, " I don't know if you did that, if you would necessarily get anything, would give you anything scientific that you could rely upon."

Rosenthal said it was not his concern if jurors don't understand instructions. Nor does it appear to be the concern of many other prosecutors and judges.

Juror Bias

In capital murder trials—where a defendant may be sentenced to death— lawyers will often tell you that the outcome is decided before either side makes an opening statement or presents any evidence. The critical part of the trial, these lawyers say is the selection of jurors.

In high profile murder cases, both sides may spend tens of thousands of dollars on psychologists and other consultants who try to predict the behavior of individual jurors. But selecting the "right" jury is not an exact science. And the "right" jury is not necessarily a fair jury.

Haney Experiment

In 1999, two California psychology professors, Craig Haney and Mona Lynch conducted an experiment with 350 people who were eligible jurors. 86 percent of the study group was white, and everyone in the group said he or she would be able to impose a death sentence in at least some situations. Each subject was shown a videotape of what appeared to be the penalty phase of an actual capital murder trial.

Tape from the Haney video experiment:

Good afternoon ladies and gentlemen…The judge will instruct you about the law that is to guide you in making a penalty decision. These instructions list certain factors in aggravation and in mitigation. And you will decide how much weight to give them in determining the life or death verdict….(tape continues) He packed a pair of socks, his own athletic dirty socks along with his gun when he headed out to Dominoes that night. He stuffed those soiled socks so deep into the mouth of John Emerson that he nearly choked to death before he had the chance to bleed to death.

According to Professor Haney the videotapes shown to each of the subjects were identical in every detail except one.

"We varied the race of the defendant, either black or white," explains Haney. "And we varied the race of the victim, either black or white."

A judge in each video instructed jurors about which factors to consider in deciding whether the defendant would live or die. Haney found that jurors who understood those instructions sentenced whites and blacks to death at approximately the same rate.

Among the low comprehension participants, there was massive discrimination. The people who understood the instructions poorly were much more likely to sentence the African American defendant to death than they were to sentence the white defendant to death.

Presented with identical facts, 60 percent voted death for the black defendant, but only 40 percent voted death for the white.

When it came to mitigating evidence, that is evidence which was supposed to lessen the defendant's culpability, the largely white jurors were more likely to sentence a drug-abusing white to life and a drug-abusing black to death. Astonishingly, the same held true for child abuse: a white defendant who was abused as a child was more likely to get a life sentence, but a black with the same background got death.

"People who didn't understand the instructions," explained Haney "appeared in a sense to be freed up to act on the basis of their prejudices, to disregard information that was intended to be mitigating when it was presented on behalf of an African-American, but take it into account when it was offered on behalf of a white defendant."

The Supreme Court has been largely unsympathetic to academic studies of racial discrimination among jurors, insisting that bias must be demonstrated in a specific jury with specific evidence. But even when jurors have come forward with that kind of evidence, appeals courts have often rejected it.

Robert Bacon Case

Pamela Smith lives with her husband and baby girl on a tidy cul-de-sac, a stone's throw from the Camp Lejeune Marine base in Jacksonville, North Carolina. In 1991 Mrs. Smith, who is white, sat on a jury that sentenced Robert Bacon, Jr. to death for murdering his girlfriend's husband. Bacon is black. The girlfriend, who dreamed up the plot and participated in it, is white. Bacon was sentenced to death. The girlfriend, tried by a separate jury, got life in prison.

During sentencing deliberations, Smith says, some jurors commented that it is "typical" of blacks to be involved in crime and made other racially charged comments.

"They did state that they thought it was wrong to have, you know, a black man date a white woman," says Smith. "You could just tell that some people were not very comfortable with that situation. I mean, they just thought that he got what he deserved being a black man and, you know, for what he did."

Smith was convinced these views led to Bacon's death sentence. But when information about these racial comments was brought to the court's attention, it was ruled inadmissible. Bacon, as it turns out, got lucky. His sentence was commuted to life in prison without parole by the state's governor three days before he was slated to be executed last year.

William Henry Hance was not so lucky. A jury of 11 whites and one black sentenced him to die. One white juror testified after the trial that Hance was referred to during deliberations as a "typical nigger" and that jurors said executing him would result in "one less nigger to breed." But the courts refused to address the issue. The State of Georgia electrocuted Hance in March of 1994.


But how do jurors with racial biases get seated in the first place? Is it purely by chance? Or is it by design?

In support of the latter view, Exhibit A would have to be a videotape of a former homicide prosecutor named Jack McMahon. The videotape, prepared by the Philadelphia District Attorney's office in 1987 for use in instructing new prosecutors, records a one-hour lecture by McMahon on the art of selecting a jury.

"The case law says that the object of getting a jury is to get a competent, fair and impartial jury. Well, that's ridiculous."

According to McMahon, the law is not only ridiculous, but the job of the prosecutor is not to see that justice is done but rather to win.

"The only way you're going to do your best is to get jurors that are as unfair, and more likely to convict than anybody else in that room."

Since most citizens and most jurors are, presumably, pretty fair-minded, eliminating them from a jury could be a daunting task. McMahon suggested specific strategies for going about this. For example:

"You don't want smart people. You do not want smart people. Because smart people will analyze the hell out of your case. They have a higher standard. They take those words "reasonable doubt" and they actually try to think about 'em. You don't want people that are gonna think it out. You want people. You want people who come in there and say, 'Yup, she said he did it, he did it.'"

McMahon believes those less likely to convict include: social workers, doctors, and most teachers. Jurors he believes are especially "bad" include young black women and low-income blacks.

"You don't want those people on your jury. And it may appear as if you're being racist or what not, but again, you're just being realistic. You're just trying to win the case."

Needless to say, one way to identify "those people" is the color of their skin. Another is by considering where they live. Prosecutor's rule of thumb: white neighborhoods good; black neighborhoods bad.

"People from Mayfair are good and people from 33rd and Diamond stink."

You get the picture.

The problem with McMahon's prescriptions are that they're illegal. In 1986, the Supreme Court ruled in Batson versus Kentucky that eliminating jurors on the basis of race violated the jurors' rights under the Constitution. "The harm from discriminatory jury selection," the Court ruled, "extends beyond that inflicted on the defendant and the excluded juror to touch the entire community."

McMahon left the district attorney's office in 1990 after successfully prosecuting 36 murder defendants at trial. Several of those convictions are now being challenged because of this videotape. McMahon, now a criminal defense lawyer, did not return phone calls requesting an interview. But he has previously defended his remarks as an accurate description of how "real juries are picked."

Robert Dunham, director of training in the Federal Defender's Office in Philadelphia, says a study done for his office proves that the kind of racial profiling McMahon promoted 15 years ago still goes on.

"What the data shows is that over a period of 15 years, the Philadelphia District Attorney's office is twice as likely to strike a juror who is black than any other juror," explains Dunham. Among all these other jurors, who are not black, the office is twice as likely to strike you if you live in an integrated neighborhood as opposed to a highly segregated white neighborhood."

Dunham says racial profiling by prosecutors leads to a significantly higher number of death sentences among blacks.

"The odds that a defendant will be sentenced to death in Philadelphia are more than tripled if you consider one thing and that is the color of the defendant's skin," says Dunham.

A spokesman for the Philadelphia District Attorney's office denied that there is discrimination in jury selection. He said prosecutors today do not see racial discrimination as a strategy that is in their interest. He dismissed the McMahon video as nothing more than the view of one former prosecutor and said allegations of bias in McMahon's cases will be resolved by the courts.

Thomas Miller-El

After 17 years here on Texas's death row, Thomas Miller-El is waiting for the U.S. Supreme Court to decide whether the Dallas district attorney used racial profiling in the selection of his jury in 1986. Now 51, Miller-El says the Supreme Court, which hears the case this fall, is the end of the road.

"That's it. That's it. If the Supreme Court don't decide to grant me a new trial, a reversal, if they decide to deny me relief, then 30 days after they deny relief then I'll be executed," says Mill-El. "If they decide to send my case to the Fifth Circuit Court, then I'm dead."

The New Orleans-based Fifth Circuit is famous for its rejection of appeals by death row inmates.

Miller-El insists he's innocent, but no court has bought that claim. He was sentenced to die for shooting Douglas Walker two times in the back during an armed robbery at a Holiday Inn in Irving Texas. Walker died of his wounds. Another hotel employee, Donald Ray Hall, Jr., was found bound and gagged in a bellman's closet next to Walker. Hall was also shot in the back and rendered a quadriplegic.

Miller-El says blacks were systematically excluded from his jury—that the one black seated at his trial testified that murderers should be tortured to death.

"They asked him, well what do you think about executions," recalled Miller-El. "And he said, 'I don't think the death penalty is good enough. I think they should be staked down like the Indians used to do 'em and have honey poured over 'em in the ants' bed, and let 'em be ate up by ants.'"

Wayman Kennedy is planting a vegetable garden for his wife beside his new home 40 miles south of Dallas. In 1986, when he was called as a juror in the Miller-El case, Mr. Kennedy was a full-time employee at IBM. He recalls telling the court that he supported the death penalty. But Kennedy was rejected as a juror.

"I was thinking that I was mainly being stricken by the defendant's side who didn't want the death penalty for their client and not from the prosecutors side and I later found out it was the prosecutors side. And I was in favor of the death penalty but I was still stricken," says Kennedy.

Kennedy later learned that he was one of ten black death penalty supporters who were rejected by the prosecution.

The fact that the prosecutor kept cards noting the race of each prospective juror convinced Kennedy that he was struck solely because he is black.

"If, in fact, you're going to put on the cards what the race of that particular person is, the gender, so you would know what that person is for your selection process, then that is racist. Because if it didn't matter, why would you put it on there?"

What Kennedy didn't know was that during the six years leading up to and including Miller-El's trial, the DA's office used its peremptory strike powers— that is, its authority to remove jurors without stating a reason—to strike 90% of black jurors.

Larry Baraka, a former state criminal court judge runs a small, private law practice from an elegantly restored downtown Dallas office building. When he worked for the DA in the late 1970s, Baraka says the office kept a manual that explained to prosecutors how to discriminate in jury selection.

"In that manual, recalls Baraka, "it would tell you certain people that you should not select for various reasons: blacks, Jews, women particularly, Hispanic, college educated. Different types of things."

"You are not looking for a fair juror," the manual states, "but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind, rather than degree."

The current Dallas District attorney insists racial profiling in his office is ancient history, that the Supreme Court's 1986 Batson decision, which prohibited discrimination in jury selection, effectively put an end to it. Judge Baraka says the Batson decision merely forced prosecutors to come up with "race neutral" reasons for eliminating blacks.

"Have you ever had any problems with the police?" quotes Baraka. "Have you ever been stopped or arrested or anything? No never been arrested. Have you ever gotten a ticket? Yes. Did ya think it was fair? Well, probably not. Have you ever been locked up - a cousin, somebody arrested? Well, hell... So, of course, if you've got a relative who's arrested or prosecuted, do you think they were treated fairly? Well, man, trust me on this one. You're gonna find a significant bunch of black people who been in the criminal justice system that did not think it's fair. Cause it's not."

"So when they answered that question, hell they're doomed anyway. You understand what I'm saying. So they ask those kinds of questions so when the lawyer makes the objection. Well, give me a race neutral. Well he didn't think he was treated fairly. OK, you're excused."

Recent court records are replete with cases in which prosecutors allegedly used all their peremptory challenges to strike African-American jurors. In the Miller-El case, black jurors who had relatives in trouble with the law were struck; whites in the same situation were seated. Whether race is a factor in jury selection is, in the end, a call made by a judge. In some cases, bias may be difficult to detect. In others, judges may not be looking for it or simply choose not to see it.


Sitting in a closed room, shut off from any outside scrutiny, 12 individuals more or less rationally discuss extinguishing the life of another human being.

Today, most legal authorities agree this truly awesome responsibility is best given to jurors rather than judges—the only obvious alternative. Yet we know that juries not only make mistakes, but that they are often confused by much of what goes on in the courtroom and that they sometimes fail to discharge their responsibilities according to the law.

When the government concluded its obstruction of justice case against the accounting firm Arthur Anderson for destroying documents related to Enron, it quickly became clear that many jurors simply didn't understand the government's arguments. The issues and the law in death penalty cases are no less complex. Unlike the case of the besieged accounting firm, however, in a capital murder case when jurors fail to comprehend the facts or the law or they don't get answers from a judge, someone may pay with his life.