3.12 Equal Protection under the Law
Book Three / 13
Several years had passed since our court had received the two death penalty cases against Anders and Mackey. In that time the judge had twice entered orders prohibiting the prosecutor from pursuing capital punishment against either defendant, finding the state’s death penalty law to be unconstitutional in its application. Both times the prosecutor had sought immediate review in the state’s Supreme Court, and both times the Supreme Court had reversed the judge’s orders.
It was now July. The Supreme Court had just issued its preliminary letter-ruling reversing the judge’s second order. The tenor and text of the ruling were unmistakeable: time to get these cases to trial.
We set a case scheduling hearing with the attorneys and drafted an order that established critical deadlines based on a trial date in mid-September. The order would serve as the parties’ timeline to trial. A sort of final countdown clock for counsel and their clients.
The judge and I then arranged a meeting with the jury department’s manager to prepare a special form of the court’s juror summons. The form would condense details unique to the summons of hundreds of prospective jurors for a lengthy, bifurcated trial into the smallest possible space, providing only the minimum necessary instructions. A few days later the judge authorized the jury department to mail the summons to three thousand county residents, randomly selected from registered voters and those with official state identification cards or driver licenses.
The court’s summons ordered all three thousand recipients to appear on the same date, a Friday in mid-September. On that day we would assemble everyone who responded into four smaller groups, two in the morning and two in the afternoon. The judge would read to them some preliminary instructions and we’d hand out a 19-page questionnaire. Each prospective juror would be required to complete the questionnaire under oath and return it to staff before leaving the courthouse.
We had set aside the following weekend for the attorneys, their clients, and the judge to review the questionnaire responses. We would then convene in open court the next week to discuss the results. Based on their answers to the questions on those nineteen pages, two thirds of all who responded would be ordered to return for follow-up proceedings.
Out of the many complicated days that lay ahead, that first day of jury selection in September — what we called juror orientation — would be the most chaotic. It would also be one of the most important. We had calculated the need for three thousand summonses based on a courthouse compliance rate in past years of just twenty percent. We knew that we needed to start juror orientation that day with a minimum of six hundred prospective jurors in order to seat sixteen of them for trial at the conclusion of the process, weeks later. Sixteen jurors who could commit to a trial of five months, and who could become what case law termed “death qualified.”
“Death qualified” is the macabre legal term used to define a juror who can commit to an open mind on capital punishment, who represents that he is neither staunchly opposed to the death penalty, nor stridently supportive. A “death qualified” jury is a jury composed entirely of these individuals. They are jurors who have stated under oath that they would be able to consider all sentencing options available, and to impose the death penalty if warranted.
Over the years the United States Supreme Court had established a standard for purposes of death-qualifying a jury. In the process of jury selection for a capital case, the Court had ruled, a trial judge had to ensure that no juror would be ‘substantially impaired’ in the performance of her duties by preconceived opinions or beliefs about the death penalty. Rather, each prospective juror would have to show to the court’s satisfaction that she could follow its instructions on the law when the time came to deliberate on the question of life or death. Death-qualifying a jury, the Court concluded, was the best way to balance the competing interests of the parties in death penalty trials: the government’s interest in seating a jury capable of imposing a death sentence, and a defendant’s right not to be judged by a jury stacked in favor of death.
The process we had begun was our first step toward seating a death-qualified jury for Mackey, the first of our two co-defendants to face trial. In the coming months, from the initial pool of three thousand prospective jurors, we would take questionnaires from seven hundred of them on that Friday in September. Then, after culling the group down to four hundred based on their responses to the court’s questionnaire, we would schedule ten to appear each day for the next three months — six in the morning session and four in the afternoon. These sessions would involve the heavy lifting of death qualification, when each prospective juror would sit alone in the jury box for thirty minutes while the attorneys asked questions about their views on the death penalty and their ability to be fair in this case.
When these weeks of individual questioning were over, the Court would select sixty-five prospective jurors to return in mid-December for two full days of general jury selection. At the end of those two days the attorneys would select sixteen from the sixty-five, and the judge would swear them in with instructions to return after the holiday recess to begin trial.
Months down the road, at the end of the first of two trials, four jurors from those sixteen would be excused as alternates, leaving twelve to determine Mackey’s guilt. Then, if found guilty, he would need only one juror from the twelve to vote against the death penalty and his life would be spared. Just one person from the three thousand we had summonsed to appear months earlier.
And if there were to be one who would spare Mackey’s life, she or he would be among the 700 who responded to the summons and arrived at the courthouse on that September day.