Arbitration & Mediation

Does Justice Stevens Lack Confidence in Juries in Death Penalty Cases?

By Christopher B. Hopkins, Esq.

On this site, we've talked about controversial topics such as abortion, juror confidentiality, exotic dancers, and even... Britney Spears. While we've yet to discuss presidential elections, gun control, the Middle East or church-state relations, surely that day is coming. But the U.S. Supreme Court's ruling on lethal injection this week does warrant a moment of our time.

It was a case which most of us thought the Court would reserve for an end-of-term release. Seven of nine justices wrote separate opinions in the lethal injection case of Baze v. Rees. Bottom line: lethal injection using three drugs (as done in over 35 states and federal government) meets constitutional muster. Justice Scalia went so far as to claim that the Constitution "explicitly" permits the death penalty since the 5th Amendment talks about due process before the depravation of life.
We recently acknowledged a study claiming that less than 2% of cases filed reach a jury. Meanwhile, a Wall Street Journal article questioned whether arbitration amounted to a thumb being placed on the defense side of the justice scale since arbitrators were (purportedly) more restrained than juries. So does the sanctity of the jury system get raised in the death penalty context?

Interestingly enough, it does. Justice Stevens dissented and claimed that he had "special concern" that procedural rules prevented a death penalty defendant from a fair jury. Cause and peremptory challenges were, according to him, tantamount to creating a biased jury in these cases. He likewise claimed there was a "serious concern" of a "risk of error" because jurors would be so disturbed by the facts that they would be swayed to unanimous agreement to punish. That last challenge, it seems, questions whether jurors are keen enough or whether the jury selection process is sufficient enough to reach the "right" verdict (at least in the death penalty context).

There are those who claim that a "death qualified jury" is inclined to convict. Likewise, there are people who claim that a civil jury is more likely to award money to plaintiffs than arbitrators. But the bottom line, it appears, is that the losing party frequently finds some fault in the process -- whatever it may be -- or in the fact finder.

Many lawyers, myself included, find the jury selection process to be more accurately described as a jury de-selection process: weeding out those who appear clearly contrary to your client while praying the other side won't exclude the "good" jurors. And a lot of times those voir dire decisions are made based upon hunches, prejudices, and a few hours (minutes?) of prospective juror questioning. One good thing for arbitration: the selection of the fact-finder is typically by... agreement.

Admittedly, the foregoing takes a serious national debate and a life-and-death situation and twists it into shaky logic about the ills and feats of litigation and arbitration. Register your praise or punishment via email.

Full post as published by Florida Arbitration Law on April 17, 2008 (boomark / email).