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 motion to have Juror 374 excluded for cause and the Government's motions to have Jurors 361 and 380 excluded for cause. The factual background and much of the legal background applicable to these motions were set forth in this court's Orders dated October 20 and 23 and November 5, 6, and 13, 2006. For the reasons set forth below, all three motions are GRANTED. Jurors 361, 374, and 380 are therefore excluded for cause.
I. Wilson's Motion -- Juror 374
Wilson moved to have Juror 374 excluded on the ground that she is not life qualified. That motion is granted.
This court finds based on the totality of this juror's statements that she is likely to vote to impose the death penalty automatically -- rather than after meaningfully considering the alternative punishment of life imprisonment and mitigating factors offered by Wilson -- if Wilson is found guilty of any capital crimes. Most important is the following dialogue, which took place at voir dire:
Q: Let's look at this case. In this case if the jury returns a verdict of guilty for the intentional murder of two police officers, would you automatically vote for the death penalty?
A: We have to think about friends who are cops and relatives, you would want justice, if somebody killed them you would want them to get punished, whether relatives or good friends.
Q: If the Court instructs you that you have to consider factors about the defendant's background and other circumstances of the case, would you consider those factors before reaching a verdict on the penalty?
A: Obviously, it's only fair that you listen to what they have to say, but in the long run, if the evidence brings them to the verdict of guilty then they should get what they deserve. (Tr. at 3198-99.) This juror made clear what she meant by the phrase "what they deserve" when she wrote in her questionnaire that the death penalty is "the ideal punishment if you kill someone." (Answer to Question 59.)
This juror did not merely state that she would "probably" vote for the death penalty if Wilson were found guilty. Instead, she stated that she would "probably" automatically vote for that penalty. She therefore must be excluded under Morgan v. Illinois, 504 U.S. 719 (1992). Moreover, to the extent that her own words to that effect are not persuasive, this court's finding that the juror would automatically vote to impose the death penalty is augmented by her unsolicited, sincere admission that she would be thinking about friends and relatives who are police officers when determining which penalty should apply. Wilson's motion is granted.
II. The Government's Motions
The Government moved to have Juror 361 excluded for cause on the ground that he will not follow the law and this court's instructions in either the trial phase or the penalty phase of this case. That motion is granted.
This juror made clear that he would ignore the law whenever it conflicted with his personal notions of what the law should be. For example, he wrote in his questionnaire that when determining guilt or non-guilt, he would apply a more burdensome standard of proof than proof beyond a reasonable doubt if the Government sought the death penalty. (Answer to Question 66.) At voir dire, when I reminded him of this statement and asked if he could follow the law despite having made it, he answered "yes" but added, "I realize the way it's broken down into two separate phases, but just as my own conscience, it is difficult to keep them as two separate phases. You have to see the one has something to do with the other. I mean I think I can keep it separate, but I don't know it's completely that easy to totally separate." (Tr. at 2717-18.) This statement did not inspire me to believe that he could follow the law. He later stated, "Everybody's definition of reasonable doubt is going to be different." (Id. at 2725.) I understood that statement to be an attempt to reconcile his claim that he could follow the law with his determination to instead do what he believes is right. The import of this statement is that he would in fact not follow the law.
This juror also indicated that he would fail to follow the law in the penalty phase of this case, if any, in at least two ways. First, he indicated in his questionnaire and at voir dire that he could consider voting to impose the death penalty only if presented with "hard evidence" of guilt, which he defined to include DNA evidence and video recordings, but never in a case based on eyewitness testimony and other evidence he does not consider "hard." (Answers to Questions 48(a), 58(a), 58(b), 59, 62, 66, 69; Tr. at 2713, 2715-16.) That approach lacks a basis in the law and would be contrary to this court's instructions.
Second, this juror indicated in his questionnaire that he considers life in prison without the possibility of release to be a more severe punishment than death. (Answer to Question 68.) At voir dire, I informed him that the law deemed death to be the harsher penalty. (Tr. at 2718.) We then had the following conversation:
Q: Will you follow the court's instructions that the penalty of death is a greater penalty and a penalty of life in prison is not as extreme a penalty?
A: I can try to follow the instructions as they're given, but just for my own belief, I see that opposite, regardless of what the law says. Obviously I ...