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Another Miscarriage of Justice from the Single-Juror Veto Rule

Have you ever heard this in a courtroom (or even a TV courtroom)? "The jury is deadlocked at 11 for conviction and 1 for acquittal. The defendant is acquitted and free to go."

Of course not. No jurisdiction has such a rule for the guilt verdict. That would be crazy. So why do so many states have exactly that rule in the penalty phase of capital cases?

Greg Bluestein of AP has this story on the miscarriage of justice in the trial of Brian Nichols, the notorious Atlanta courthouse gunman. The jury deadlocked at 9-3, with the three reportedly refusing to deliberate. This is becoming increasingly common as more jurors become aware that they have the power to veto the death penalty just by holding out.
The AP story quotes Fulton County District Attorney Paul Howard and state Rep. David Ralston on their intent to change the rule. There have been two previous attempts.

"This case has rocked Georgia's criminal justice system. When you have a case where this much money is spent, this much time, it does beg the question if the system is operating properly," said state Sen. Preston Smith, a Rome Republican who voted against the bill in March. "I think we're going to take a hard look at it."

There are four ways to handle the problem. One is the single-juror veto rule, as Georgia presently has. A second way is to treat hung juries at the penalty phase exactly the same as at the guilt phase. The jury must be unanimous either way to deliver a verdict, and if it cannot, there is a retrial before another jury. That is the present system in California. A third way is to allow juries to returns verdicts at something close to unanimous, such as 10-2. A fourth way is to allow a nonunanimous jury to make a recommendation, with the judge making the final decision, which is largely what happens in Florida.  The proposal in Georgia is to adopt a rule along the latter lines.

Stephen Bright opposes the change with a predictably disingenous comment:

"If you have to convince everyone, the dynamic is that everybody has to listen to everybody. If you have less than unanimous juries, then you just take a vote," he said. "One of the beauties of the system is it requires everybody to respond."
That is true in the California system where the jury must be unanimous either way, but it is most certainly not true of the single-juror veto system.  This is not the first time that we have heard reports of jurors against the death penalty simply refusing to deliberate. When you know you can get your way without anyone else's agreement, you do not have to listen and you do not have to respond.

Life verdicts in cases that cry out for the death penalty are increasingly common because people who are excludable by reason of being unwilling to consider both penalties are increasingly willing to commit perjury to get on the juries. That apparently happened here, according to this story by Steve Visser, Jeffry Scott, Rhonda Cook in the Atlanta Journal-Constitution:

[DA Howard] was especially vexed because the holdouts were evidently not truthful when questioned by lawyers about whether they could impose the death penalty before they were chosen for the jury.

He said all the jurors swore under oath that they could consider death for Nichols if they felt the crimes deserved it.

Inside the jury room, however, the three holdouts told the other nine jurors that they would not impose death for any killings.

Allowing an individual juror to veto the death penalty in a case where it is clearly warranted is a form of arbitrariness. The whole point of the reforms that followed Furman v. Georgia was to make the death penalty more even-handed. That requires restraint in both directions. The verdict should depend more on the circumstances of the crime and the defendant's criminal record (or lack of one) and less on personal proclivities. Giving a killer a life sentence for a crime that clearly warrants death merely because he was lucky enough to get a few hard-core opponents on his jury is close to sentencing by lottery.

As indicated in this earlier AP story, also by Greg Bluestein, the single-juror veto makes the county-by-county variation in the death penalty greater than it otherwise would be. Some "geographic disparity" is simply local democracy and jury of the vicinage working as designed, as I have noted on a number of occasions. However, the nullification problem may cause the variation by county to be greater than is warranted.

For states that don't feel they can afford retrials in cases of deadlocked penalty juries, here is my suggestion. For the jury to return a verdict, they must be unanimous one way or the other. If they are truly deadlocked, then they make a recommendation to the judge, with votes stated and statements optional. Then the judge will impose the sentence.

Oh, and one more thing. If those jurors really did commit perjury on voir dire, prosecute them.

Doug Berman has this post on the question of whether the US Attorney should now seek the death penalty in a federal prosecution.


Kent, the jurisdictional basis for a second, Federal prosecution (after the Georgia jury failed to unanimously vote fo the death penalty)of Brian Nichols would be pursuant to 18 U.S.C. section 2119, the Federal car-jacking statute. Federal jurisdiction is premised upon the fact that the deceased I.C.E. agent's stolen car had travelled in interstate commerce to Georgia. Section 2119(3) provides for the death penalty, where in the process of jacking the vehicle someone is killed. Thus, a second prosecution of Brian Nichols by the Feds would not(officially) have anything to do with the fact that the deceased victim was an off duty Federal law enforcement (I.C.E.) agent. Hope this clarifies things for you. Interesting situation, huh? Jim Gormley

This outcome may backfire on the anti-death penalty crowd, who are perched atop the moral high ground.

Before Nichols grabbed the deputy's gun, he was looking at spending the rest of his life in prison. Four murders later, he's looking at spending the rest of his life in prison.

Jim, I do not question that a legally sufficient federal hook can be found given the expansive federal statutes and the Supreme Court's post-1937 view of the Commerce Clause. However, I believe that as a matter of prosecutorial discretion, USDoJ should limit its prosecutions to distinctly federal crimes and leave local crimes to the states.

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