January 30, 2022

Antonio X. Milton
Editor in Chief
Tulane Law Review
via email: kcole9@tulanelawreview.org

RE:      Response addressing Professor Samuel Newton’s article, Getting to Know You: An Expanded Approach to Capital Jury Selection, 96 Tul. L. Rev. 131 (2021)

We write to request you publish the following response to Professor Newton’s article.

While we appreciate Professor Samuel Newton’s efforts to improve capital defense jury selection methods and techniques in his recent law review article, Getting to Know You: An Expanded Approach to Capital Jury Selection, 96 Tul. L. Rev. 131 (2021), the approach proposed in his article is not a modest “expanded approach” to the Colorado Method but rather directly contradicts fundamental, core principles of the method. The article encourages defense counsel to adopt approaches to jury selection that will make it more difficult to remove impaired pro death-biased prospective jurors and retain qualified life-scrupled jurors, more difficult to ensure jurors understand the power and discretion each has regarding the ultimate life and death decision, and involves significant deviations from highly successful and tested core Colorado Method principles and practice. Newton’s proposals should be approached with great caution.

It is strategically disadvantageous for defense counsel to limit overt discussions about the death penalty (in many instances the government seeks, for strategic advantage, to do precisely this; Newton’s proposal encourages defense counsel to join these government efforts).

Newton’s article advocates that defense counsel “carefully limit overt discussions about the death penalty” (Id. at 141), and instead question on topics, “[v]ery few of [which] directly involve the death penalty,” (Id. at 189) addressing “case-specific issues and the juror's unique personal characteristics that the [Capital Jury Project] research has shown affect their sentencing determination” (Id.) in order to arrive at “a better and more rounded predictive tool.” Id. at 191. (Rather than questioning about the death penalty, Newton suggests counsel address questions on juror-specific topics such as, “susceptibility to group pressure,” “juror predisposition to impose sentence,” “ability to understand jury instructions,” “accept or deny responsibility for the verdict,” “views on expert testimony,” and “trusts defense counsel,” and, while limiting discussions about the death penalty, a variety of case-specific issues, among others. Id. at 186-87.) In describing the Colorado Method, Newton mischaracterizes the thrust of the method as, “narrowly focusing on a juror's philosophical position on the death penalty.” Id. at 135.

A core tenet of the Colorado Method is to learn each prospective juror’s feelings and views about the death penalty and life imprisonment – not as some philosophical matter – but rather, very specifically, in the context of a defendant who has been found guilty and statutorily eligible for a death sentence in the category of case being tried. The objective is setting the appropriate context for inquiring of life and death views by ensuring the prospective juror understands there are no legal defenses or circumstances (e.g. intellectual disability) present that make the hypothetical defendant ineligible for a death sentence. Based on our experience participating, assisting, or observing capital voir dire in dozens of capital cases in jurisdictions across the United States (and reading dozens of transcripts of ineffective capital voir dire), a common – almost universal – challenge confronted by capital defense counsel during jury selection is overcoming resistance from the government to (1) setting this appropriate context (e.g. stripping away culpability defenses and extraneous circumstances) that is a prerequisite to eliciting meaningful responses about life and death views, and (2) moving beyond broad, generic philosophical questions about punishment (as opposed to case-category or case-specific questioning) that provide little, if not misleading, information about a juror’s qualifications.

Newton’s proposal to “[l]imit overt discussions about the death penalty,” (id. at 141) plays directly into the government’s efforts to curb the effectiveness of our defense voir dire, vitiates the core strength of the Colorado Method, and, in our view, should not be considered an “expanded approach.” Colorado Method requires explicit questioning about a juror’s feelings and views about the death penalty and life penalty, and this questioning about the death penalty is a necessary predicate to further critical questioning to confirm jurors understand the relevant legal concepts that guide each juror’s discretion and power to make this life and death decision.

Of course, defense counsel need to avoid “death-processing” language. We object when the government refers to our case as a “death penalty case.” We consistently remind jurors that a “not guilty” verdict or a conviction on a lesser offense ends the trial. But you cannot have your cake and eat it too. Colorado Method jury selection is effective because it is “life qualification” voir dire; each juror must demonstrate that he or she can give meaningful consideration to a life penalty before they are passed for cause. And you cannot limit or avoid overt discussions about the death penalty and effectively “life qualify” jurors.

Generic, non-specific, questioning on punishment views facilitates government efforts to elicit superficial responses from pro death-biased jurors – who frequently mistakenly believe they are eminently qualified and are eager to serve – that deceptively and incorrectly suggest the juror is qualified. For example, in this proposed “expanded approach,” (carefully limited to avoid overt discussions about the death penalty) generic questions about punishment are utilized and the death-biased jurors is likely to answer along the lines of, “well sure, while I wrote on the questionnaire that I believe in an ‘eye for an eye and a life for a life,’ it will depend on the circumstances; I could vote for life in the appropriate case.” Utilizing Colorado Method and focusing directly on the issues related to the death and life penalty, defense counsel would set the appropriate context in the case (e.g. a case involving a killing of a correctional officer by an inmate already serving life) and then ask specific questions about the death penalty eliciting information relevant to the juror’s qualification. “To summarize, based on the views you have expressed, if an inmate already serving a life sentence kills an innocent correction officer (with no legal excuse or justification), the only appropriate sentence would be death?”

Questioning that is “carefully limit[ed to avoid] overt discussion about the death penalty,” will also facilitate government efforts to remove prospective jurors with moral, philosophical, or religious qualms or opposition to capital punishment (“life-scrupled” prospective jurors) for cause because this type of questioning impairs defense counsel’s efforts to clarify and correct these jurors’ mistaken beliefs about the process (e.g. although the juror is prepared to carefully consider the aggravation and the mitigation evidence, and to consider both a life and a death sentence (and is thus qualified), the juror mistakenly believes that the law may require her to vote for a death sentence even in a circumstance when her personal moral decision supports a life penalty). The life scrupled juror frequently has anxiety and fear about participating in a process that they believe may require them to do violence to their conscience. Questioning that seeks to avoid or minimize a discussion about the death penalty makes it more challenging to identify and correct these misunderstandings of how the law works, and qualified life-scrupled jurors will be more likely struck for cause because defense counsel sought to minimize questioning about the death penalty.

Finally, Newton asserts that the Colorado Method predisposes jurors to find an innocent client guilty. (“Discussing Punishment Prior to Trial Predisposes Jurors to Find the Defendant Guilty and to Impose a Death Sentence” Id. at 140.) This may be a valid critique of conventional “death qualification” capital jury selection, which frequently involves significant amounts of so-called “death processing” language (e.g. “You understand that this is a death penalty case, right? You lean toward the death penalty, in the right type of case, but you will listen to all the evidence before you make up your mind? And can you promise me that you can impose a death sentence in this case?). However, based on the experience of capital defense counsel who have used the Colorado Method in “innocence” cases (rare as they are), the method has proven very effective at removing pro-government biased jurors for cause and obtaining favorable results.

Scholarship cited in Newton’s article support the need for context relevant, specific questioning of prospective jurors about their feelings and views about the death penalty and punishment.

Newton writes, “One study found that 24% of apparent death penalty supporters ‘were actually opponents’ and 42% of predicted opponents ‘were in fact proponents.’ . . . By solely focusing on the life and death question, defense lawyers risk misidentifying these jurors, who outwardly appear to hold a position they may not actually conform to when they exercise their vote.” Id. at 142. Newton failed to clarify that in this study the initial predictions of the punishment views of the study participants were based upon the participant’s demographic, political, and socioeconomic characteristics rather than any questioning about the death penalty or life imprisonment. The cited portion of the article, James Alan Fox et al., Death Penalty Opinion in the Post-Furman Years Challenging the Death Penalty, 18 N.Y.U. REV. L. & SOC. CHANGE 499, 508 (1990) (available at https://socialchangenyu.com/wp-content/uploads/2017/12/James-A.-Fox-Michael-L.-Radelet-Julie-L.-Bonsteel_RLSC_18.2.pdf) by Fox, Michael Radelet, and Julie Bonsteel, discusses the limitations of the accuracy of a statistical model used to predict support and opposition to the death penalty based upon a person’s characteristics (age, sex, race, marital status, child status, region, urbanness, political party, political views, class, income, degree, religion, religiousness). The study illustrates two points. First, ill- or under-informed predictions about a group of persons’ punishment views fail to accurately identify individuals with pro death-biased views significantly more than it fails to accurately identify the jurors with life-scrupled views. Second, the study supports the vital need for defense counsel to ask context relevant, specific questions about prospective jurors’ views and feelings about the death penalty.

Defense counsel normally has limited time to conduct voir dire. The Colorado Method advises we must ask context relevant questions – focused on the death penalty and life penalty – to accurately identify and remove impaired jurors. When a juror tells us, in effect, that he is biased, impaired and unqualified, and will kill our client (e.g. “yes, a person already serving life in prison who kills a correctional officer deserves to die; any punishment less would be a free murder”), we believe him and excuse him for cause. Newton’s “expanded approach” encouraging defense counsel to limit overt discussions about the death penalty (and to focus the limited questioning opportunity, instead, on such factors as “Views of expert testimony,“ and, “Trusts defense counsel” id. at 186) or making assessments of a juror’s punishment views on other proxy type questions is recommending the type of misguided, fear-driven, ineffective questioning that the Colorado Method was designed to replace.

Capital Defense Counsel Have Access to Training on Colorado Method Voir Dire

Newton writes “The Colorado Method is proprietary. To learn it, ninety participants must attend a two and a half day seminar at the National College of Capital Voir Dire in Boulder, Colorado and pay tuition of $500. . . . [G]iven that too few attorneys attend these conferences because of the lack of time, money, or other resources, the defense community needs at a minimum an awareness of this body of research. Additionally, the research findings in this Article justify expanding the method or altering aspects of it by asking jurors about subjects beyond the life and death question.” Id. at 138.

Certainly capital defense counsel need to have “an awareness of this body of [social science] research [regarding capital juror decision making].” (Note that Professor Scott Sundby, one of the leading researchers for the Capital Jury Project, and cited in the text and footnotes of Newton’s article some thirty times, is one of the all-volunteer faculty members teaching at the Colorado Method program in Boulder.) [For those interested in learning more about capital juror decision-making, and the need for and benefits of utilizing the Colorado Method, we recommend reading Sundby’s book, A Life and Death Decision, A Jury Weighs the Death Penalty.] But knowledge of the social science research is no substitute for getting training to acquire the skills to conduct effective capital voir dire. As Newton describes, the National College of Capital Voir Dire regularly does fund raising and provides scholarships to capital defense counsel unable to pay the registration fee. No attorney is turned away from the college because of a lack of funds. Regional programs are also available and many attorneys skilled in Colorado Method voir dire volunteer to work with defense counsel in jurisdictions across the United States to help them learn the method and prepare for voir dire.

Finally, while we believe the proposals in Newton’s article are misguided and are counterproductive to securing life verdicts at trial, we admire his desire to contribute and encourage creative thinking about improving capital voir dire and defense efforts.

David Wymore and Matthew Rubenstein
with faculty of the National College of Capital Voir Dire

Matthew Rubenstein
Director, Capital Resource Counsel Project
CRC is a project of the Defender Services Office of the AOUSC
Hosted by the Federal Public Defender for the Middle District of Pennsylvania
Mailing Address: c/o 101 SW Main Street, Suite 1700
Portland Oregon 97204-3225
matt_rubenstein@fd.org
https://fdprc.capdefnet.org
(503) 780-3535 mobile
(he, him, his)

The Capital Resource Counsel and Federal Death Penalty Resource Counsel are projects of the Defender Services Office of the Administrative Office of the United States Courts. These death penalty resource counsel, CRC full-time federal defender staff and FDPRC part-time contractors, provide consultation, training, and assistance to courts and counsel in order to improve the quality of representation and cost-effectiveness of defense services. CRC attorneys also provide direct representation in a limited number of federal capital cases. The Trial Projects work together in close coordination.