IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CRIMINAL COURT DEPARTMENT STATE OF KANSAS, Plaintiff, VS. FRAZIER GLENN CROSS, JR., Defendant. 14CR853 Div. 17 STATE S BRIEF RE: JURY SELECTION COMES NOW the State of Kansas by and through its attorneys, Christopher L. McMullin, Chief Deputy District Attorney, and Stephen M. Howe, District Attorney, and presents for this Court its Brief Regarding Sentencing Issues. FACTUAL AND PROCEDURAL BACKGROUND Jury trial in this capital murder case is scheduled to begin August 17, 2015. The State is seeking the death penalty. On that date, the parties will begin selecting a jury which will hear the guilt phase of the case, and potentially the penalty phase as well. In anticipation of this event, defendant s previous counsel filed a series of motions: Motion for Individual Voir Dire, Motion to Hear Challenges Outside the Presence of the Panel, Motion to Bar for cause Strikes Based on Religious Beliefs, Motion for Voir Dire on Sentence Length, and Motion for Voir Dire on Cost-Effectiveness of the Death Penalty. ISSUES The State will address these issues within this document, and outlining the current Kansas and U.S. case law regarding jury selection in death penalty cases. 1
Jury Selection in death penalty cases DISCUSSION Jury selection in this case will almost certainly involve lengthy inquiry about venire members ability to impose the death penalty. This topic has been the subject of U.S. and Kansas Supreme Court cases. Specifically, the issue of when and whether to excuse a venire member for cause based on death penalty views has been heavily litigated. Kansas law addresses challenges for cause. K.S.A. 22-3410: (1) Each party may challenge any prospective juror for cause. Challenges for cause shall be tried by the court. (2) A juror may be challenged for cause on any of the following grounds: (a) He is related to the defendant, or a person alleged to have been injured by the crime charged or the person on whose complaint the prosecution was begun, by consanguinity within the sixth degree, or is the spouse of any person so related. (b) He is attorney, client, employer, employee, landlord, tenant, debtor, creditor or a member of the household of the defendant or a person alleged to have been injured by the crime charged or the person on whose complaint the prosecution was instituted. (c) He is or has been a party adverse to the defendant in a civil action, or has complained against or been accused by him in a criminal prosecution. (d) He has served on the grand jury which returned the indictment or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information, or on any other investigatory body which inquired into the facts of the crime charged. (e) He was a juror at a former trial of the same cause. (f) He was a juror in a civil action against the defendant arising out of the act charged as a crime. (g) He was a witness to the act or acts alleged to constitute the crime. (h) He occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted. (i) His state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party. 2
(3) All challenges for cause must be made before the jury is sworn to try the case. The pertinent subsection is 22-3410(i). This section has been applied to capital murder cases in several Kansas opinions. Notably, State v. Carr, 300 Kan 1, 331 P.3d 544 (2014). Portions of this case are quoted at length because they are a primer on death penalty jury selection. K.S.A. 22 3410 is designed to protect a criminal defendant's Sixth Amendment right to trial by an impartial jury, a right reinforced by the defendant's Fifth Amendment right to due process. See Ristaino v. Ross, 424 U.S. 589, 597 98, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). These protections are incorporated into and made applicable to the states through the due process provisions of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). When applied to the jury selection process in a capital trial, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. See Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This right is balanced against the State's strong interest in seating jurors who are able to apply the sentence of capital punishment within the framework provided for by the federal Constitution and state law. 391 U.S. at 521, 88 S.Ct. 1770. In Witherspoon, decided in 1968, the United States Supreme Court struck a balance between the competing interests and held that a sentence of death could not be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Kleypas, 272 Kan. at 991 92, 40 P.3d 139 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 [1985] ). Witherspoon recognized a distinction of constitutional significance between prospective jurors who have strong opinions about the death penalty and those whose views would prevent them from applying the law; the former remain eligible to serve, while the latter must be excused. See 391 U.S. at 519 21, 88 S.Ct. 1770. And the Court's 1985 Witt decision clarified the standard for determining when a prospective juror may be excluded for cause because of his or her views on the death penalty. The Court stated that a prospective juror may be excluded for cause 3
because of his or her views on capital punishment where the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Kleypas, 272 Kan. at 991, 40 P.3d 139 (quoting Witt, 469 U.S. at 424, 105 S.Ct. 844). See Lockhart v. McCree, 476 U.S. 162, 184, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) ( the Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case ). State v. Carr, 300 Kan. 1, 113-14, 331 P.3d 544, 626-27 (2014) cert. granted in part, 135 S. Ct. 1698 (2015) and cert. denied, 135 S. Ct. 1698 (2015) This process is commonly referred to as a Witherspoon challenge. To use an extreme example, a venireperson who cannot, under any circumstances, impose the death penalty, may be challenged for cause under Witherspoon as substantially impaired in their ability to follow Kansas law regarding imposition of the death penalty. This is usually done by the State. The opposite is also true. A venireperson who would automatically or always impose a death sentence without considering mitigating evidence is similarly subject to removal for cause. The same standard of review and legal framework applicable to a district judge's decision to excuse a prospective juror who cannot set aside his or her objection to the death penalty applies equally to decisions not to excuse prospective jurors challenged for cause based on their inability to consider a sentence other than death. See Morgan v. Illinois, 504 U.S. 719, 728 29, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (applying Witherspoon, 391 U.S. at 518, 88 S.Ct. 1770, and Witt, 469 U.S. at 423 24, 105 S.Ct. 844). The United States Supreme Court has explained: 4
A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant **631 to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empanelled and the death sentence is imposed, the State is disentitled to execute the sentence. Morgan, 504 U.S. at 729, 112 S.Ct. 2222. In addition to a defendant's rights under the Sixth Amendment and the Fifth Amendment's Due Process Clause, the Eighth Amendment right not to be subjected to cruel and unusual punishment requires jurors in a death penalty case to be able to give consideration to evidence of mitigating circumstances. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (sentencer, in all but rarest capital case, must not be precluded from considering, as mitigating factor, any aspect of defendant's character, record, or circumstances of offense). State v. Carr, 300 Kan. 1, 120-21, 331 P.3d 544, 630-31 (2014) cert. granted in part, 135 S. Ct. 1698 (2015) and cert. denied, 135 S. Ct. 1698 (2015) These are commonly referred to as reverse Witherspoon challenges. Much, if not all, of the for cause challenges will involve application of these principles. The Defense Motions Procedural The defendant has filed two jury selection motions which the State deems to be procedural in nature. Its Motion for Individual Voir Dire seeks just what it says: the opportunity to inquire of venirepersons one-on-one, outside the presence of the others. Although the defendant cites the U.S. Constitution and a case which states 5
the obvious proposition that jury selection is important, there are no cases which mandate individual voir dire in a capital case. The State is open to discuss how jury selection will proceed, and will save that discussion for the hearing scheduled for July 17, 2015. The other procedural motion is the Motion for Court to Hear and Rule on For Cause and Peremptory Challenges Outside the Presence of the Venire Panel. Again, there is no case which mandates this procedure. Again, the State is open to discuss how jury selection will proceed, but will save its thoughts for the July 17, 2015 hearing. Substantive The defendant has filed three motions which seek to either limit or permit certain things during jury selection. The defendant s Motion to Bar For Cause Challenges of Jurors Based on Their Religious Opposition to the Death Penalty is somewhat internally inconsistent. [It is also ironic. This motion was filed by defendant s attorney. Now that the defendant is representing himself pro se it is a virtual certainty that he will challenge jurors if they are a member of one particular religion.] On one hand it seeks to prohibit the State from utilizing for cause challenges against those venire members whose religious beliefs render them willing and able to consider mitigation evidence. First, it is the Court which tries challenges for cause and [e]ach party may challenge any prospective juror for cause. K.S.A. 22-3410. It is clear from the case law cited above that all jurors 6
selected in this case must be willing and able to consider mitigation evidence. This is not only required by State and Federal case law, it is required by Kansas statutes. See, for example Pattern Instruction Kansas 4 th Criminal 50.050 (Revised in illustrative instructions PIK 4 th 69.040): In your determination of sentence, you should consider and weigh everything admitted into evidence during the guilt phase or the penalty phase of this trial that bears on either an aggravating or a mitigating circumstance. See also PIK 4 th Criminal 54.050: Each of you must consider every mitigating circumstance found to exist. See also K.S.A. 21-6617(c): In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include any mitigating circumstances. [Emphasis added.] See also K.S.A. K.S.A. 212-6617(e) (Jury must weigh aggravating and mitigating circumstances.) Jurors are required to consider mitigating circumstances; any juror who could not do so is unqualified to sit on a death penalty case. On the other hand, the defendant s concluding paragraph is perhaps closer to what they are asking: to prevent the State from utilizing for cause challenges against jurors who are religiously opposed to the death penalty, or otherwise possess scruples against the death penalty based on their religious beliefs. The defense tries to make this argument not with a case that supports their theory, but under the guise of freedom of religion. They cite no case in support of their 7
proposition because there is no case in support of their proposition. As noted above, the State has a right to excuse prospective juror for cause because of his or her views on capital punishment where the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Kleypas, 272 Kan. at 991, 40 P.3d 139 (quoting Witt, 469 U.S. at 424, 105 S.Ct. 844). In other words, the State would be excluding a venire person not because of their religion, but because their beliefs would not permit them to follow the law and consider a lawful punishment. This is a critical distinction, and the defendant s Motion should be denied. The defendant s other substantive jury selection motions are its Motion for Voir Dire Re: Sentence Length and Motion to Allow Voir Dire Regarding the Cost- Effectiveness of the Death Penalty. The defendant claims that, on both subjects, generic jurors are possessed of misinformation regarding the cost of life in prison versus the death penalty, and the potential length of the defendant s non-death sentence. Although these subjects may be appropriate as mitigation evidence in the penalty phase, inquiring about them during jury selection is improper. Both subjects would require defense counsel, during jury selection, to proffer evidence to the venire panel. What are the costs of life in prison? What would the defendant s sentence be absent a death verdict? No case or statute permits this. None has been cited. K.S.A. 22-3408 instructs [t]he prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. It does not confer 8
authority to present evidence to prospective jurors. None of the K.S.A. 22-3410 factors listed above involves presentation of evidence to the panel. Further, In Morgan v. Illinois, the Supreme Court held that a juror who would automatically impose the death penalty upon a conviction for a capital offense is not an impartial juror and must be excluded for cause. 504 U.S. 719, 729 (1992). Because such a juror would fail to consider the evidence of aggravating and mitigating circumstances, as the instructions require him to do, he is not competent. Id. However, the line that is drawn is a deliberate one: the dictates of Morgan permitting defense counsel to examine if potential jurors would automatically impose the death penalty does not require the court to allow the introduction of case-specific questions in the context of aggravating and mitigating circumstances. The defendant should not be permitted to inquire of potential jurors regarding either of these case-specific subjects. CONCLUSION The procedure for selecting a capital jury is well-settled. Federal and State case law provide specific guidance. The State intends to follow the law regarding this subject. The State asks this Court to proscribe a procedure consistent with law, and not to permit the defense to engage in questioning outside established authority. Further argument to be presented at hearing. 9
WHEREFORE the State asks the Court to rule on the defendant s Motions in accordance with the arguments above. Submitted By: /s/christopher L. McMullin 07/09/2015 Christopher L. McMullin #14967 Chief Deputy District Attorney Stephen M. Howe #13785 District Attorney P.O. Box 728 Olathe, KS 66051 (913) 715-3000 chris.mcmullin@jocogov.org CERTIFICATE OF MAILING I hereby certify that on this 9th day of July, 2015, a copy of the above and foregoing Motion was hand delivered to Frazier Glenn Cross via the Johnson County Sheriff s Office and to stand by counsel for the defendant via email attachment. /s/christopher L, McMullin_ Christopher L. McMullin 10