Amicus Curiae Brief — Morgan v. Illinois

Supten e Cone. U.!

1 II. KE gp

No. 91-5118 NOV 26 199)

In the Supreme Court of the United Staten

OCTOBER TERM, 1991

DERRICK MORGAN, PETITIONER,

Vv.

PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT.

ON WRIT OF CERTIORARI TO THE ILLINOIS SUPREME COURT

BRIEF OF THE

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

ANDREA D. LYON* MAUREEN A. MOSH

— — — vee 8 1 JaMEs A. ROLFES

irector, Capital Resource Center

600 Davis Street LINDA J. PAUEL

Evanston, Illinois 60201 Sachnoff & Weaver, Ltd.

(708) 328-0698 30 South Wacker Drive

Chicago, Illinois 60606

*Counsel of Record (312) 207-1000

I. IT IS FUNDAMENTALLY UNFAIR AND A

DENIAL OF DUE PROCESS TO PROHIBIT

A. The Presence On the Jury of a Juror Who

Will Automatically Impose Death Denies a

Defendant His Sixth and Fourteenth

TABLE OF AUTHORITIES

Cases

Adams v. Texas, 448 U.S. 38 (1980)

Eddings u. Oklahoma, 455 U.S. 104 (1982) . .

Lockhart u. McCree, 476 U.S. 162 (1986) . .

Lockett v. Ohio, 438 U.S. 568 (1978) .....

Lowenfield u. Phelps, 484 1).S. 231 (1988)

Mills v. Maryland, 486 U.S. 367 (1988) ...

People u. Jackson, 1991 WL 188831 (Ill.

aneh... ee

People u. Morgan, 142 III. 2d 410, 568

N.E.2d 755 (199177

Penry v. Lynough, 492 U.S. 302 (1989)

Ross v. Oklahoma, 487 U.S. 81 (1988) ....

Stroud v. United States, 251 U.S. 15 (1919) . .

Turner v. Murray, 476 U.S. 28 (1986).....

Wainwright v. Witt, 469 U.S. 412 (1985) ..

Witherspoon v. Illinois, 391 U.S. 510

... „„ oe

Miscellaneous

Louis Harris & Associates, Inc., Study

No. 814002 (198177

Luginbuhl & Middendorf, Death Penalty

Beliefs and Jurors’ Responses to

Aggravating and Mitigating

Circumstances in Capital Trials, 12 L.

and Hum. Behav. 263 (1988) ..........

11

11

iii

Miscellaneous (Continued)

Neises & Dillehay, Death Qualification and

Conviction Proneness: Witt and

Witherspoon Compared, 5 Behavioral

Sci. & the Law 479 (1987) ............

Nietzel, Dillehay & Himelein, Effects of

Voir Dire Variations In Capital Trials: A

Replication and Extension, 5 Behavioral

Sci. & the Law 467 (1987) ............

Sandys & Dillehay (1987, April). Juror

Qualification Under the New Wainwright

v. Witt Standard: A Test of Jurors’

Ability To Anticipate Their Role (paper

presented at the meetings of the

Southeastern Psychological Association,

EEE „

Young, Andrea, Arkansas Archival Study

UCM „„ „„

PAGE

9-10

10-11

11

No. 91-5118

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

DERRICK MORGAN,

v. Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON WRIT OF CERTIORARI TO THE

ILLINOIS SUPREME COURT

BRIEF OF THE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

INTEREST OF AMICUS CURIAE

THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS is en organization made up of crimi-

nal defense attorneys in private practice, public defenders

and law professors dedicated to the preservation of constitu-

tional rights as well as education of its membership and the

Amicus agrees with petitioner that he has a

constitutional right to inquire of a venire in a capital case

2

whether potential jurors would automatically impose the

death penalty if the defendant were convicted of murder and

to have such potential jurors excused for cause.

Opposing counsel has consented to the filing of this

brief. A letter indicating such consent has been filed with the

Clerk of the Court.

SUMMARY OF ARGUMENT

Jurors who would automatically impose the death

penalty for a defendant convicted of murder should not serve

on a sentencing jury. To do so would deny the defendant his

Sixth and Fourteenth Amendment guarantee of an impartial

jury and eviscerate the logic espoused by this Court with

regard to the identification and exclusion from jury service of

individuals biased by their personal views on capital punish-

ment. Recent studies reveal that individuals who would auto-

matically impose the death penalty (“ADPs”) represent a

significant and identifiable portion of the potential juror pool.

Moreover, the studies indicate that ADPs, similar to jurors

who would survive a Witherspoon inquiry, are not always

identified in response to basic questions about a juror’s abili-

ty to act fairly or to follow the law. Even absent this statistical

data, however, due process dictates that the capital defen-

dant have the benefit of a presumption that ADPs exist, just

as the Court has supported the “death qualification” of jurors

with a presumption in favor of the State. Denying the capita!

defendant the ability to inquire whether a juror would auto-

matically impose a death sentence upon a finding of guilt, or

failing to eliminate such a juror for cause, violates the defen-

dant’s right to a fair and impartial jury.

3

I. IT IS FUNDAMENTALLY UNFAIR AND A

DENIAL OF DUE PROCESS TO PROHIBIT

INQUIRY TO DISCOVER WHETHER A

POTENTIAL JUROR WILL

AUTOMATICALLY IMPOSE A SENTENCE OF

DEATH TO ONE CONVICTED OF A CAPITAL

CRIME

A. The Presence On the Jury of a Juror Who

Will Automatically Impose Death Denies a

Defendant His Sixth and Fourteenth

Amendment Guarantee of an Impartial

Jury

Al] State may not entrust the determination of whether

a man should live or die to a tribunal organized to return a

verdict of death.” Witherspoon v. Illinois, 391 U.S. 510,

521-522 (1968). See also Lowenfeld v. Phelps, 484 U.S. 231,

258 (1988); Lockhart u. McCree, 476 U S. 162, 179 (1986). To

effectuate that doctrine, and thus protect a defendant’s guar-

antee of an impartial jury under the Sixth and Fourteenth

Amendments, this Court has recognized that a trial court

must excuse for cause a juror who would automatically im-

pose the death penalty on a defendant convicted of a capital

crime. Ross v. Oklahoma, 487 U.S. 81, 83-85 (1988); Stroud v.

United States, 251 U.S. 15, 20-21 (1919).

The relief sought in the instant case is consistent with,

and a logical extensicn of the Court’s ruling in Ross. In Ross,

the Court considered the constitutional effect of a trial court’s

failure to excuse an ADP juror for cause. Because the defense

attorneys in Ross excluded the ADP juror through use of a

peremptory challenge, this Court denied the defendant's re

quest for a new sentencing trial, finding that there was no

suggestion that those who did serve were not impartial. Ross,

487 U.S. at 85-86. This Court made clear, however, that the

4

presence of an ADP juror on the jury would have violated the

defendant's constitutional right to an impartial jury. Id at 85.

Had (the ADP juror] sat on the jury that ultimately

sentenced petitioner to death, and had petitioner

properly preserved his right to challenge the trial

court’s failure to remove [the ADP juror] for cause,

the sentence would have to be overturned.

Id.

The defendant in Ross had the opportunity to discover

ADP jurors during voir dire. Thus, the record provided evi-

dence that no ADP juror sat on Ross’ jury. By contrast, Mor-

gan’s trial judge disallowed questioning to identify ADPs.

Thus, one cannot know from review of the record in Morgan's

trial how many of Morgan’s jurors were ADPs.’ As discussed

There has been no suggestion that the defendant in the instant

case failed to preserve this issue for appeal.

2 In deciding Morgan's appeal, the Illinois Supreme Court acknow!-

edged the dictate of Ross that the trial court should excuse ADP jurors

for cause. People v. Morgan, 142 Ill. 2d 410, 469-470, 568 N.E.2d 755,

778 (1991). The Illinois court found, however, that Morgan had failed

to show that any juror on his jury was partial. Id The court is silent as

to how Morgan could have shown bias without the opportunity to

> SS 7 — 2 aoe

Ironically, even without ADP questioning, the record contains

strong evidence that the trial court seated at least one ADP juror. After

Morgan's counsel had used all of his peremptory challenges, Stuart

Ship, a potential juror, arguably identified himself as an ADP in re-

sponse to a Witherspoon-inspired question.

Q: Would you automatically vote against the death penalty no

matter what the facts of the case were”

A: I would not vote against it.

(R. 538). A fair interpretation of the above exchange is that Mr. Ship

would vote for the death penalty no matter what the facts of the case

were. Had the trial court granted the defense motion for an inquiry

whether potential jurors would automatically impose the death penal

ty, that ambiguity could have been cured. Instead, this probable ADP

juror served on Morgan's jury.

5

more fully below, ADPs do exist in the potential juror pool.

Since the presence of an ADP juror on a jury violates a capital

defendant’s constitutional rights, Morgan had a constitution-

al right to discover the existence of such jurors during voir

dire and to have them excused for cause.

B. The Exclusion Analysis Articulated in

Wainwright v. Witt Applies Equally to

Potential Jurors Who Would Automatically

Impose Death to One Convicted of a

Capital Crime

Where a juror’s view on capital punishment would

“prevent or substantially impair the performance of his du-

ties as a juror in accordance with his instructions and his

oath,” a court may exclude the juror for cause. Wainwright v.

Witt, 469 U.S. 412, 424 (1985)(citing Adams v. Texas, 448

U.S. 38 (1980)). In Witt, the Court recognized a legitimate

interest on the part of the State in excluding jurors whose

views on capital punishment would not allow them to view

the proceedings impartially, finding that such jurors would

frustrate the administration of a State’s death penalty

scheme. Id. at 422-423. Since the State had the obligation to

show such bias, the Court condoned voir dire questioning

designed to discover it.

As with any other trial situation where an adversary

wishes to exclude a juror because of bias, then, it is

the adversary seeking exclusion who must demon-

strate, through questioning, that the potential juror

lacks impartiality.

Witt, 469 U.S. at 423 (emphasis added). As then-Justice

Rehnquist stated, the “quest” of venire is to find “jurors who

will conscientiously apply the law and find the facts.” Id.

6

Capital defendants have an even more compelling right

to ascertain whether potential jurors will impose a death sen-

tence impartially. Just as the State may identify and request

the exclusion of potential jurors who will not, because of

personal views, vote for the death penalty, equity demands

that the capital defendant have the ability to identify and

request the exclusion of potential jurors who will not, because

of personal views, vote against the death penalty. In both

instances, the trial court only excludes those who will not

apply the law.’ By failing to ask prospective jurors whether

they would impose the death penalty automatically, the trial

court failed to protect Morgan’s constitutional right to an

impartial jury.‘

3 Exclusion of ADPs, persons who by definition will not follow the

law because they will never vote against the death penalty, is “logically

consistent” with exclusion of persons who will not follow the law be-

cause they will never vote for the death penalty. Adams v. Texas, 448

U.S. 38, 54 (1980) (Rehnquist, J. dissenting). It should be noted that

Witt gives the State the right to exclude for cause a larger group of anti-

death penalty persons, including persons whose personal views would

“substantially impair” their ability to vote for the death penalty. 469

U.S. at 423-424. Arguably, complete parity requires the court to allow

the defense to indentify and exclude persons with strong pro-death

penalty views even when such persons may not be ADPs.

Even the Illinois Supreme Court, in a case decided after its denial

of Morgan’s appeal, admitted that allowing the defendant to inquire

whether an individual would automatically impose the death penalty is

the best means of assuring an impartial jury. People v. Jackson, 1991

WL 188831 at 31 (Ill. Sept. 26, 1991).

We do not . mean to imply that the “reverse- Witherspoon”

question is inappropriate. Indeed, given the type of scrutiny capi-

tal cases receive on review, one would think trial courts would go

out of their way to afford a defendant every possible safeguard.

The reverse - Witherspoon” question may not be the only means

of ensuring defendant an impartial jury, but it is certainly the

most direct. The best way to ensure that a prospective juror would

not automatically vote for the death penalty is to ask.

7

C. Exclusion of ADPs Effectuates the

Requirement That Sentencers in Capital

Cases Consider Mitigating Circumstances

A jury must consist only of jurors who will

conscientiously apply the law and find the facts.” Witt, 469

U.S. at 423. “It is beyond dispute” that the law requires

sentencers in capital cases to consider mitigating circum-

stances. Mills v. Maryland, 486 U.S. 367, 374 (1988). See also

Penry v. Lynaugh, 492 U.S. 302 (1989)(failure to instruct the

jury to give full effect to the mitigating evidence introduced

at trial violates Eighth and Fourteenth Amendments); Ed-

dings v. Oklahoma, 455 U.S. 104, 113-14 (1982)(“Just as the

State may not by statute preclude the sentencer from consid-

ering any mitigating factor, neither may the sentencer refuse

to consider, as a matter of law, any relevant mitigating evi-

dence.” (emphasis in original)); Lockett v. Ohio, 438 U.S. 586,

602-609 (1978)(sentencer may not be precluded from consid-

ering relevant mitigating evidence). Since jurors who will au-

tomatically impose death upon conviction will not consider

mitigating evidence and, thus, not follow the law, they must

be excluded.

Turner v. Murray, 476 U.S. 28 (1986), provides further

instruction on this point. In Turner, the trial court refused to

question potential jurors about racial prejudice. This Court

reversed, ruling that the “qualitative difference” between

death and all other punishments constitutionally requires

voir dire that seeks to elicit racial prejudice in capital cases.

Id. at 35. “[E]very capital sentencer must be free to weigh

relevant mitigating evidence before deciding whether to im-

pose the death penalty.” Jd. at 34. The risk that racial

prejudice may infect the sentencing entitles a capital defen-

dant to have the potential jurors questioned on the issue of

racial bias.

8

[T]he mere fact that petitioner is black and his

victim white does not constitute a “special circum-

stance” of constitutional proportion. What sets this

case apart from Ristaino [v. Ross, 424 U.S. 589

(1976), where Court held that voir dire inquiry into

racial prejudice was not always required], however,

is that in addition to petitioner’s being accused of a

crime against a white victim, the crime charged was

a capital offense.

Id. at 33.5

The death penalty views of ADP jurors inhibit their

ability to consider mitigating factors just as racial prejudice

may inhibit such consideration. Consistent with the ruling in

Turner, upon the request of the defendant, voir dire must

include questions to identify ADP jurors, and such jurors

must be excused from service because they will not follow the

law.

5 The Morgan record reflects that the trial judge did not recognize or

even acknowledge the “qualitative differences” created by the capital

nature of this case. During voir dire the defendant requested that the

court remove for cause a juror who thought he might take a negative

inference from the defendant’s failure to testify. (R. 542). Defense

counsel argued that the fact that the case involved the possibility of a

death sentence compelled the juror’s exclusion. In denying the defense

request, the trial court stated:

I don’t care what kind of case this is. I try — I try the case

regardless of what the nature of the charges are. My duty, as

a judge, is not to base my decisions on the fact that a case is a

capital case, or if it is just an ordinary shoplifting case.

(R. 542-543).

9

II. JUROR RESEARCH REVEALS THE

PRESENCE OF AN IDENTIFIABLE AND

SIGNIFICANT PORTION OF THE

POPULATION WHO WOULD

AUTOMATICALLY IMPOSE DEATH

Recent juror studies reveal a significant number of ADPs

in the potential juror pool who can be identified through

proper questioning. These studies also reveal that a court

cannot reliably identify all ADP jurors merely by inquiring

whether their views on the death penalty would affect their

ability to perform their juror duties in accordance with the

law. In one 1987 study the authors reviewed 18 capital murder

trials held between 1980 and 1983 in Kentucky, South Caroli-

na and California. Nietzel, Dillehay & Himelein, Effects of

Voir Dire Variations In Capital Trial: A Replication and

Extension, 5 Behavioral Sci. & the Law 467 (1987). They

analyzed the relationship between various methods of voir

dire and the sustained challenges for cause by defense and

prosecuting attorneys. /d. at 468. Of 242 defense-inspired, for

cause removals, 25.8% of the jurors were removed because

questioning revealed them to be ADPs. Id. at 473.

In a second 1987 study, the authors asked four questions

of 135 randomly selected, registered voters in Fayette Coun-

ty, Kentucky. Neises & Dillehay, Death Qualification and

Conviction Proneness: Witt and Witherspoon Compared, 5

Behavioral Sci. & the Law 479 (1987). Two questions ad-

dressed the respondents’ willingness to vote for the death

penalty and their ability to decide fairly the question of guilt.

Id. at 483. A third question sought to determine the respon-

dents’ attitudes toward the death penalty and whether the

strength of those attitudes “would seriously affect their abili-

ty to perform their duties” as jurors. Jd. A final question

asked whether respondents “would always vote to impose the

death penalty for guilty capital defendants.” Id.

*

10

Based on the responses to these questions, the authors

calculated that 76.9% of the respondents favored the death

penalty while only 22.4% opposed it. Jd. at 485. Almost one-

fourth of the tested population, 32 of the 135 respondents,

identified themselves as ADPs. Jd. at 485-486. Perhaps the

most significant finding, however, was that 26 of the 32 ADPs

also said that they “would not be substantially impaired or

prevented from performing their juror duties despite having

also stated that they would always vote for the death penalty

for guilty capital defendants.” Id. at 493. Thus, as the authors

concluded, at least some potential jurors are not aware that

failure to consider all punishment options in the penalty

phase of the trial is a violation of the juror duties they are

expected to perform.” Jd. at 492.

A third study reported the results of a survey of

randomly selected persons who had recently served as jurors

in non-capital felony cases. Sandys & Dillehay (1987, April).

Juror Qualification Under the New Wainwright v. Witt

Standard: A Test of Jurors’ Ability To Anticipate Their Role

(paper presented at the meetings of the Southeastern Psy-

chological Association, Atlanta, Ga.). Respondents were clas-

sified as “includable” or “excludable” based on their response

to the question, derived from Witt: “Is your attitude toward

the death penalty so strong that it would seriously affect you

as a juror and interfere with your ability to perform your

duties?” Id. at 4. Only sixteen of the respondents were ex-

cludable” based on their response to that question. Id. at 7.

Further questioning revealed, however, that “28.6% (42) of

the Witt includables indicated that they would always give

11

the death penalty for capital murder, regardless of the evi-

dence.” Id.

This research demonstrates that a more direct

questioning scheme than the trial court allowed in this case is

required to identity potential jurors who would automatically

impose a death sentence. Without the ability to inquire

whether a juror will automatically impose death, the capital

defendant is denied his constitutional right to an impartial

jury.

III. CAPITAL DEFENDANTS ARE ENTITLED TO

A PRESUMPTION THAT SOME POTENTIAL

JURORS WILL BE ADPs

Although the above-cited studies provide compelling

evidence that ADPs make up a significant portion of potential

jurors, this Court need not rely solely on these statistics to

reverse Morgan’s sentence.’ In Witt, the Court did not re-

quire a statistical showing that people whose views on capital

6 Two juror studies, reported together in 1988, found lower but still

significant percentages of ADPs in their sampled populations. Lugin-

buhl & Middendorf, Death Penalty Beliefs and Jurors’ Responses to

Aggravating and Mitigating Circumstances in Capital Trials, 12 L.

and Hum. Behav. 263 (1988). After conducting two surveys of North

Carolina jurors, the authors found that 10% of the sampled populations

(31 of 325 in Study 1 and 31 of 317 in Study 2) responded that they

would always invoke the death penalty for convicted first degree mur-

derers. Id. at 270, 273. Even when the authors incorporated this death

penalty inquiry into a question about the respondent's ability to follow

the judge’s instructions, four of the 31 jurors who had said they would

always invoke the death penalty continued to express ADP views. Id. at

274. Two early studies, which counsel were unable to obtain, appear to

indicate a lower but still identifiable percentage of ADPs in the popula-

tion. Louis Harris & Associates, Inc., Study No. 814002 (1981) (1%);

Young, Andrea, Arkansas Archival Study (1981) (.5%).

7. In Ross, the Court recognized that a death sentence must be

overturned if a single ADP juror sat on the jury. Ross, 487 U.S. at 85.

12

punishment would substantially impair or automatically pre-

clude their ability to impose a death sentence represented a

significant portion of the population. The Court was appar-

ently willing to presume that such potential jurors existed

and to accord the State the benefit of that presumption. Capi-

tal defendants are entitled to the analogous presumption, i.e.,

that ADP jurors exist in the potential juror population.

The Court also was not concerned with statistical studies

in Turner v. Murray, 476 U.S. 28 (1986), where it held that

the trial court must ask potential jurors in capital cases about

racial bias. Although the Florida Supreme Court had rejected

the statistical evidence presented by the defendant, this

Court presumed the possibility of juror bias. Jd. at 37 n.11.

We find it unnecessary to evaluate statistical studies which

petitioner has introduced in support of the proposition that

black defendants who kill whites are executed with dispro-

portionate frequency.” Jd. The Court’s presumption of im-

pact stemmed, at least in part, from “the special seriousness

of the risk of improper sentencing in a capital case.” Jd. at 37.

[T]he risk that racial prejudice may have infected

petitioner’s capital sentencing [is] unacceptable in

light of the ease with which that risk could have been

minimized.

Id. at 36.

Just as the Court was willing to presume the existence of

jurors who, because of racial prejudice, would be biased, the

Court should presume the existence of ADP jurors. The risk

of juror bias caused by the presence of an ADP juror on a

capital jury is “unacceptable in light of the ease with which

that risk could have been minimized.” Jd. Accordingly, Mor-

gan’s sentence must be vacated.

13

CONCLUSION

For the reasons set forth, amicus urges this Court to

reverse the judgment of the Illinois Supreme Court and to

vacate the sentence.

Respectfully submitted,

National Association of

Criminal Defense Lawyers as

Amicus Curiae in Support of

Petitioner

By:

ANDREA D. LYON

Attorney at Law

Director, Capital

Resource Center

600 Davis Street

Evanston, Illinois 60201

(708) 328-0698

MAUREEN A. MOSH

JAMES A. ROLFES

LINDA J. PAUEL

Sachnoff & Weaver, Ltd.

30 South Wacker Drive

Chicago, Illinois 60606

(312) 207-1000