Tribunals Organized To Convict: Searching for a Lesser Evil in the Capital Juror Death-Qualification Process in United States v. Green

I. INTRODUCTION Many observers were shocked when the district attorney prosecuting Andrea Yates, the Texas mother who drowned her five children in a bathtub, announced his intent to pursue the death penalty against her.2 Obtaining capital punishment for a woman with known psychiatric problems who is accused of killing her children is almost unheard of.3 The decision was met by some defense attorneys, however, with little surprise: "They may just be trying to get a death-qualified jury . . . to ensure a conviction."4 Sure enough, once prosecutors secured a conviction, their aggressive pursuit of the death penalty transformed into an endorsement of a life sentence instead.5 Prosecutorial preference for death-qualifying a jury-preemptively removing potential jurors who "would nutomcitically vote against the imposition of capital punishment"6 or would otherwise be unable to perform their sentencing duties as jurors in a capital case-is well recognized among criminal law scholars and practitioners.7 Since the imposition of the death penalty requires a unanimous jury, prosecutors are entitled to strike potential jurors whose very presence would foreclose the possibility of obtaining a death sentence. Many contend, however, that once death penalty opponents are purged from a jury, the remaining jurors are more likely to find guilt. Since the same jury-a "unitary jury"-generally hears both the guilt and penalty phases of a trial, death-qualification results in not only a sentencing jury able to carry out its duties but also a guilt jury predisposed to convict. Thanks to death-qualification, "capital juries are more likely to be white, older, predominantly male, Protestant, and less educated8 than other criminal juries, and than the society from which they were picked."9 Critics argue that such juries are also more inclined to believe the prosecution, less sympathetic to the defendant, and more likely to take a harder "law and order" stance than death penalty opponents.10 Consequently, a prosecutor who wants a conviction also wants a death-qualified jury. Illustrating this point, prosecutors may initially seek the death penalty in order to death-qualify the jury, even if the imposition of the death penalty is not actually the ultimate goal.11 However, such a predisposition for conviction raises significant fairness concerns for those potentially facing execution. Despite arguments that the voir dire practice of death-qualifying a jury creates a predisposition toward finding guilt, the Supreme Court has held the practice constitutional.12 While the Court has affirmed that the prosecution is entitled to death-qualify the sentencing jury,13 and that death-qualifying a guilt jury14 does not violate a defendant's rights per se,15 the Court has not mandated that a guilt jury be death-qualified before the initial guilt phase of the trial or that the same, unitary jury hear both phases. Thus, courts are given the discretion to death-qualify the jury-with an eye towards the sentencing phase-before the guilt phase has been conducted, or to seek some other alternative such as a bifurcated jury instead. Although the Supreme Court has not declared the practice of death qualifying the guilt jury unconstitutional, that does not necessarily mean that such an approach is the "fairest" approach. As a result, it seems logical to determine whether there is a better approach that can accommodate the prosecution's right to a death-qualified sentencing jury, without trying the defendant in front of a guilt jury predisposed to convict him. Facing concerns of fairness as well as judicial economy in United States v. Green, the U.S. District Court for the District of Massachusetts proposed two possible solutions to the death-qualification dilemma: (1) impaneling one unitary jury and the maximum number of alternates to hear the guilt phase without death-qualifying any of them, then death-qualifying that same jury and as many of the alternates as necessary after a guilty verdict, but before the punishment phase; or (2) initially impaneling a guilt jury that is not death-qualified, then, in the event of a conviction, discharging that jury and impaneling a new, death-qualified jury exclusively for the punishment phase. …