Life in the Balance

By Ben Pesta

There is no better way to gauge the depth and breadth of public feeling about the death penalty than to read and evaluate a stack of juror questionnaires on the subject. I have just spent two days doing this, in the course of the death-penalty case I am now defending. I expected that the topic of capital punishment would elicit profound emotional reactions, but I did not expect the very wide range of reactions I encountered. The defendant in this case is an alleged gang member. His record is egregious. And his case has already been tried before one jury.

A hundred jurors filled out questionnaires of approximately 100 questions. A number of these questions were crafted to reveal prospective jurors' feelings about the death penalty. The one I regard as a particular litmus test is: "In California, people who are sentenced to death are actually executed: (a) too often; (b) too seldom; (c) randomly; (d) about right; (e) don't know." An answer of "too seldom" comes from someone who not only approves of the death penalty but reckons that the appeals process takes a mite too long. This person is a death penalty fan.

As a defense lawyer, I am seeking jurors who will not look at my client's gang membership and automatically vote to convict, or, having convicted, will not automatically vote for execution. This jury, like all capital juries, must be "death-qualified." That is, all who cannot vote to condemn another person to death under any circumstance are excused for cause. Eventually, 17 such people will be dismissed. Those who remain may have negative feelings about capital punishment, but they can see themselves deliberating the issue. I am looking for 12 people who can think about this most serious of all questions, and who can then question themselves. I am looking for jurors who can be fair.

Juror A, a schoolteacher in her mid-30s, believes in the death penalty and thinks that if all states had it, "maybe there wouldn't be as much crime." But she also answers that, if confronted with the task of deciding a death-penalty case, she would find the prospect "overwhelming." This one will require some voir dire.

Juror B, a long-haul trucker in his early 60s, thinks that anyone who takes a life, regardless of the circumstances, should get the death penalty. He is emphatic that California has "too few" executions. We'll try to get this one dismissed for cause.

Juror C, in his late 60s, a retired teacher and ACLU contributor, thinks "the criminal justice system is unjust." He writes that he does not want to serve on a jury and be responsible for another person's life?and, thanks to that answer, he won't have to.

Juror D, a 45-year-old homemaker, thinks the death penalty should be reserved for "people with no remorse?possibly when a defendant is 'proud' of what he's done." She once voted for conviction in a prostitution case. I'm sure she'd have no trouble convicting my client.

Juror E is 25-usually a good sign?and works for an alcohol-and-drug rehab program, usually another good sign. But she writes: "I believe in karma. Those who get caught must pay the price." Will this woman believe herself to be the agent of karma against my client?

Juror F, 40, is a registered nurse who was once harassed by gangbangers. She thinks that gang members are "human beings who need counseling and support." She believes in the death penalty, but only for "brutal murder and rape." She writes: "Death is shorter. Life imprisonment is longer." I put a big plus sign beside F's name. As a defense attorney, I think that RNs are the ideal jurors: people who have entered a helping profession in which they have no chance of getting rich.

Juror G, 35, is an advertising sales rep. She believes that people are executed too seldom. She clarifies: "Charles Manson gets to live? On my dime?"

Juror H, 30, is a dental assistant. She favors extending the death penalty to "rapists and child molesters." About one in six prospective jurors believes that too few crimes merit execution. Child molesters are the group most of them would add to the death list?"kid touchers," as one panel member calls them.

Which of these prospective jurors will listen to the evidence and vote to save my client's life? Some might argue that it's not a life worth saving, but I took an oath when I became a lawyer, and I signed on to this case, so it is my job to save this life if I can.

Ben Pesta is a white-collar and criminal defense lawyer and writer in Century City.

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