More on Death Penalty and Juror Exclusion

Thanks to Michael for blogging about last week's SCT decision, Uttecht v. Brown, on the death penalty and jurors.  If prosecutors and trial judges run with this decision as a means of excluding jurors, it will make absolutely stark the incompatibility between official Catholic teaching and participation in the death penalty system.  The prospective juror in the case, when first asked about the death penalty, said he thought it would be appropriate for cases when the convicted murderer would kill again if released -- a position that is close to the official teaching that execution is appropriate only in the "very rare, ... practically non-existent" cases where "this is the only possible way of effectively defending human lives against the unjust aggressor."  Catechism 2267.  (There's no indication whether the juror was Catholic.)   And when the juror learned that the alternative sentence was always life without parole, he said he'd "have to give it some thought" whether he'd be willing to impose death given that alternative sentence.  However, eventually the juror said that he "could consider" imposing death even in cases where the defendant would otherwise be locked up for life, "if I was convinced that was the appropriate measure."

I would have thought that even the juror's initial suggestion that death would be inappropriate when life without parole was an available sentence was within the range of permissible positions for a juror to take under the Washington death-penalty law, which says that a juror "may consider" (among other mitgating factors) "whether there is a likelihood that the defendant will pose a danger to others in the future," and that the jury should reject a death sentence unless it's "convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency."  Wash. St. 10.95.070, 10.95.060.   The permissiveness of the Washington language ("may consider") would seem to leave room for the position of the juror who closely follows Catholic magisterial teaching.  But now we are told by the SCT that this juror was "substantially impaired" in his ability to follow the law and therefore excludable for cause.  And what's more, we are told that this was so even though the juror pretty quickly stated that he would be able to consider a death sentence over life without parole -- and who clearly, like most jurors, was just beginning to think about these things in detail rather than having a rigidly formed opinion.

If this decision is taken seriously, it appears to state that making even a nod in the direction of the magisterial Catholic position on the death penalty is ground for disqualification from the jury -- even if the juror ultimately emphasizes his willingness to follow the law.  There are factors in the case that could lead it to be read narrowly: a degree of deference to the trial court's decision to exclude, the asserted lack of an objection by defense counsel (although interestingly for justices who generally claim to follow state procedural policy, Washington law doesn't require such an objection).  But if the decision is read to provide a blueprint for juror exclusions in future cases, it would indeed be sadly ironic that a ruling justifying the exclusion of anyone making even a nod in the direction of the magisterial position was a ruling issued by five Catholic justices.  (To say nothing about how, as Michael's post notes, such an expansion of the idea of a "death qualified" jury expands juries' willingness to convict in the first place.)

Tom