From American RadioWorks®, the documentary project of Minnesota Public Radio and NPR NewsSM. On the Internet at Part of the story Deadly Decisions

August 2002

Juror Responsibility

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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.