USA: ‘Where is the justice for me?’: The case of Troy Davis, facing execution in Georgia

February 1, 2007

USA: ‘Where is the justice for me?’: The case of Troy Davis, facing execution in Georgia

In a state (as opposed to federal) capital trial, 12 citizens from the county in which the trial is held (the county where the crime is committed unless a change of venue is granted) are selected to sit as a "death qualified" jury. At jury selection, the defence and prosecution will question the prospective jurors and have the right to exclude certain people, either for a stated reason (for cause) or without giving a reason (a peremptory challenge). Those citizens who would be "irrevocably committed" to vote against the death penalty can be excluded for cause by the prosecution, under the 1968 US Supreme Court ruling in Witherspoon v. Illinois.(24) In 1985, in Wainwright v. Witt, the Supreme Court relaxed the Witherspoon standard, thereby expanding the class of potential jurors who could be dismissed for cause during jury selection.(25) Under the Witt standard, a juror can be dismissed for cause if his or her feelings about the death penalty would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath".

In 1998, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions expressed concern that "while the jury system was intended to represent the community as a whole, the community can hardly be represented when those who oppose the death penalty or have reservations about it seem to be systematically excluded from sitting as jurors".(26) The problem goes beyond this, however. There is evidence that a "death-qualified" jury is more conviction-prone than its non-death-qualified counterpart. This raises special concerns given the irrevocability of the death penalty.

In 1986, the US Supreme Court acknowledged evidence from research that the "death qualification" of juries "produces juries somewhat more ‘conviction-prone’ than ‘non-death-qualified’ juries".(27) The Court had been presented with 15 published studies each finding that death-qualified jurors were more conviction-prone than excludable jurors. Three Justices referred to this "overwhelming evidence that death-qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve", adding that "death-qualified jurors are, for example, more likely to believe that a defendant’s failure to testify is indicative of his guilt, more hostile to the insanity defence, more mistrustful of defence attorneys, and less concerned about the danger of erroneous convictions" (emphasis added).(28)

The three Justices went on to note that "the true impact of death qualification on the fairness of a trial is likely even more devastating than the studies show". They noted that the Witherspoon ruling, while limiting the state’s "ability to strike scrupled jurors for cause", had said nothing about the prosecution’s use of peremptory challenges to eliminate jurors who had less than absolute opposition to imposing the death penalty. There was "no question", the Justices added, "that peremptories have indeed been used to this end".

In 1998, a review of the existing research indicated that a "favourable attitude towards the death penalty translates into a 44 per cent increase in the probability of a juror favouring conviction".(29) Another expert review in 1998 concluded that:
"Death-qualification standards theoretically exist to ensure that capital defendants will be tried by impartial jurors. The research, however, demonstrates that there is a deep chasm between the law’s intentions and the result of death qualification in practice. Rather than ensuring impartiality, the result can more accurately be envisioned as a stacked deck against the defendant: death-qualified jurors, regardless of the standard, are more conviction-prone, less concerned with due process, and they are more inclined to believe the prosecution than are excludable jurors."(30)