The opinion of the court was delivered by: Garaufis, District Judge.
This court is currently conducting voir dire in a case in which the Government seeks the death penalty against Ronell Wilson ("Wilson"). Before the court are Wilson's motions to have Jurors 189 and 209 excluded for cause and the Government's motions to have Jurors 153, 171, 181, and 224 excluded for cause. The factual background and much of the legal background applicable to these motions was set forth in this Court's Orders dated October 20 and 23, 2006.
For the reasons set forth below, Wilson's motions are GRANTED with respect to Juror 209 and DENIED with respect to Juror 189 and the Government's motions are GRANTED. Juror 189 is therefore qualified to serve and Jurors 153, 171, 181, 209, and 224 are excluded for cause.
Wilson moved to have Juror 189 excluded for cause on the ground that he is not life qualified, i.e., that his views in favor of the death penalty would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." (Def. Challenge Juror No. 189 at 1-2 (quoting Morgan v. Illinois, 504 U.S. 719, 728-29 (1992).) This court disagrees.
Wilson claims that this juror stated he would "probably 'go with the death penalty.'" (Def. Challenge Juror No. 189 at 1 (citing Tr. at 1500).*fn1 ) The juror's actual words were not to that effect. In response to a question about what factors he would consider in choosing a penalty, this juror stated, "I guess you could go -- I would probably go the -- if the death penalty was the option and that was presented in what I thought was the right way, I guess that." (Tr. at 1500.) This court finds that the juror was not stating that he would probably "go with" the death penalty regardless of what he learned during the penalty phase. Instead, he was explaining to the court that he would probably vote for the death penalty if it "was presented in what [he] thought was the right way," a clear albeit inelegant way of saying that he would probably vote for the death penalty if he were persuaded that it, rather than life imprisonment without possibility of release, were the appropriate punishment in this case.
This understanding is augmented by reading the quoted statement in context. The statement closely followed the question, "What are your views about the death penalty?" (Id. at 1499.) This juror clearly understood that the court was trying to determine whether he would be willing to consider voting for the death penalty should the jury find Wilson guilty of a capital crime. He understood the court to be asking the next set of questions -- including the question about what factors he would consider in choosing a penalty -- for the same purpose, and that is why he answered in terms of the death penalty.
After this juror admitted that he might have misunderstood the question asking what factors he would consider during the penalty phase, I asked him, "Given your values and beliefs, could you meaningfully consider the possibility of voting for life in prison without the possibility of release instead of the death penalty for a person found guilty of intentionally murdering two police officers?" (Id.) He answered, "I guess I could go either way. It depends on the way the facts are presented. I couldn't make that decision now." (Id.) These answers reflect Juror 189's sincere willingness to consider both potential penalties and his belief that it would not be appropriate to choose a penalty before learning of all pertinent evidence and hearing all pertinent arguments.
In arguing that this juror is not life qualified, Wilson also relies on the juror's statement that "if something gets to the point where a death penalty is applicable, it's probably for a good purpose. It probably applies." (Def. Challenge Juror No. 189 at 1-2 (quoting Tr. at 1511).) Again, this quote simply does not support the proposition that this juror "will automatically vote for the death penalty in every case [and] fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to." Morgan v. Illinois, 504 U.S. 719, 729 (1992). Instead, it merely indicates that this juror believes that the law makes the death penalty available -- "applicable," in the juror's words -- in appropriate circumstances and not in inappropriate circumstances. No reasonable person could understand this juror's use of the word "applicable" to mean "mandatory."
Although the juror's statement supports the court's interpretation and does not support Wilson's interpretation even when read in isolation, reading it in context makes its meaning even clearer:
Q: Now, you answered this question, "Do you have on views on the death penalty" yes, and then you said, "I'm in total agreement on its use." Then you said, "It is a fair and just punishment for certain crimes." Could you expand on that?
A: If it's something -- if something gets to the point where a death penalty is applicable, it's probably for a good purpose. It probably applies. So as a matter -- just if it applies for sure or doesn't apply for sure to that situation, but it's probably -- it's valid. I believe it's valid.
Q: The court will instruct you if we get to the penalty phase that the death penalty is one option.
Q: And you're not required to find for the death penalty. In fact, you can reject the death penalty.
Q: And you can find for a penalty of life in prison without possibility of release. And that being the case, do you think you can meaningfully consider voting for life in prison without the possibility of release for someone who's killed two undercover -- intentionally killed two undercover police officers in the line of duty?
A: Again, I think you take that -- I think you balance it when the time comes, you know, when the time comes when everything is presented to you. I can't make that decision right now.
Q: You're not being asked to.
A: I think I could do that, make that decision, but again, everything's got to be presented to me.
(Tr. at 1511-12.) Reading his statements in context, it is clear that this juror believes merely that the death penalty is a "valid" option that he would be willing to consider "when everything is presented" to him, not that it is ever the only option or even the option he is likely to choose.
Wilson also argues that this juror indicated that "it clearly would be the defense's burden to convince the juror to vote for a life sentence" rather than the death penalty. (Def. Challenge Juror No. 189 at 1.) Wilson cites no support for that argument and this court finds none in the record. Wilson also argues that "the juror could give no answer" when asked what factors might be relevant in the penalty phase and "was uninterested in the kind of person the defendant was, his background, or anything else related to the case at hand." (Id.) As this court has already explained, it rejects this argument by negative inference:
Wilson's argument illustrates the difficulty with considering answers to an open-ended question that asks a juror to describe circumstances in which he would consider imposing a sentence of life imprisonment without possibility of release rather than death. No layperson is likely to answer this question by listing the mitigating factors set forth in 18 U.S.C. § 3592(a). But jurors are not obligated to have prior knowledge of these factors, and if they were then no court would ever successfully empanel a jury in a capital case.
I will continue to ask this open-ended question and the analogous question about circumstances in which the juror would consider voting for the death penalty because I believe that these questions are helpful steps toward determining whether a defendant is life or death qualified. I will, however, be skeptical of arguments that a juror who describes circumstances in which he could consider voting for either punishment is unwilling to consider that punishment in any other circumstances. (Order dated October 23, 2006 at 6.) Wilson is encouraged to employ this argument in the future only if and when it is supportable.
This court finds that Juror 189 is life qualified. Wilson's motion to have this juror excluded for ...