ARKANSAS' DEATH QUALIFIED JURIES - Government - http://maxpages.com/darkevilworld/Death_Qualified_Juries_Part

In Arkansas during election campaigns in any but the larger trial districts like Pulaski county, in which Arkansas biggest city Little Rock sits, the candidates for office generally interact with most of the business owners, property owners, and with families and friends up and down the streets and throughout all the community. The smaller the towns and the more sparsely populated the trial districts, the more it can be observed that the candidates for public office and the potential voters are often on a first name basis, and for a good part of their lives they were even personal friends. They see each other on the golf course, at the local bar or club, at the deer camp, and down by the favorite local fishing hole. They invite each other to family barbecues, graduations, weddings, and funerals. They regularly call each other on the phone.

In short, in the vast majority of places in Arkansas a candidate for or occupant of a local office is not some distant and strange figure seen and known by the voters only on the local news, or on the campaign trail shaking hands, holding babies, and making speeches. They are the personal and good friends of the people whose votes they seek and whose votes they will get.

In Arkansas, many of the judges of the state's criminal courts were formerly local property or business owners who had often provided a few jobs to local residents, or who in some other manner had helped the community in which they now preside as judge. At osome point in their own lives, and for whatever reason, they decided that they had grown enough cotton or raised enough poultry or pigs, and they determined then to run for public office. Because they were known to most of the voters in the area on a personal basis, they were often assured of obtaining whatever position they sought simply because they had been local pillars of the community for decades. Also, local good ol' boys running for judge when they had tired of farming or some other enterprise was made easier still because it was not until the mid-1980s that Arkansas judges had to have some reasonable education and experience to sit on the bench.

Likewise, Arkansas prosecutors are often also the local and well-know sons and daughters from trial district communities who have "gone off" to a distant college somewhere in the state and had "made something of themselves." Then, in the process of establishing their careers, many would return to their home-town communities and also run for local office, being fairly assured of winning the bid simply because they were the progeny of the communities where they would seek public election.

In saying these things, it is my purpose simply to cause the reader to recognize that the dynamics of running for public office and of interacting with potential voters in Arkansas, is VASTLY different in a state whose entire population is less than the population of most major cities elsewhere in the United States. In populous states with several huge cities and metropolises, political campaigning is far more impersonal than in Arkansas, and is based almost exclusively on a handful of objective facts or subjective impressions that voters might have about the people whom they will elect to office when they see them on TV, hear them on the radios, or briefly interact with them somewhere on the campaign trail. Most often, they do not know the candidates personally.

More important and directly to the point, in rural states like Arkansas, there is a VASTLY greater chance that most or all of the potential jurors in a criminal trial district personally know or interact in their private lives with the judges and the prosecutors trying the cases in whose courtrooms they find themselves seated as jurors. It is THIS great potential that Arkansas' judges, prosecutors and jurors are actually friends outside the courtroom setting that renders Arkansas' jury eligibility and jury election process, as well as the trial held thereupon, unconstitutional in many cases, and especially within the context of capital murder trials.

The common person should have no difficulty understanding the philosophy of and the ideal in the notion that every trial in the United States should be fair and impartial. Applied, this means that the court itself should be neutral and never give the appearance of leaning toward or against either of the parties prosecuting the case before it while it is making its rulings or judicial comments. The jury should likewise not be intimately aware about the facts and issues of the case in advance; should have no preconceived ideas about the guilt or innocence of the accused; should give both sides the same opportunity to be heard; should not know the parties involved in the case in deeply personal or intimate ways; and, finally, should render a verdict based on the objective facts and not upon any passion, bias, or prejudices toward the defendant or the offense at issue. Indeed, there is a legal principle that a trial must not only be fair and impartial per se - but its must also appear to be so. Schwede v. State, 49 Ark. App. 87, 896 S.W.2d 454 (1995);
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Burrows v. Forrest City, 260 Ark. 712, 543 S.W.2d 488 (1976); 71 Michigan Law Review 538; 28 U.S.C. 455.

Self-evidently, however, in a trial where the judge and the prosecutor are best friends with most of the jurors in the box, the appearance of and the potential for unfair and biased perspectives is seriously cast into question. For this reason many Arkansas trials are little more than shams in the first place, and principles like "innocent until proven guilty" are fancy words spoken in law school somewhere or in movies on TV. In most Arkansas communities the citizens know that the defendant is guilty as charged, or else their good friends the Prosecutor or the Judge would never have made them be put on trial in the first place.

After capital punishment was reinstated, revised, or expanded in the several states during the 1960s, prosecutors soon began to inquire of potential jurors whether they were opposed to capital punishment - either in general, or within the context of the specific case being tried. This was a concern to the state because if potential jurors were against a capital sentence at the start, even a single juror could "hang" the jury in a trial that required a unanimous verdict both as to the guilt of the accused, as well as in respect to the death penalty to be imposed. Indeed, the opinions of a single juror who adamantly opposed capital punishment could end the case in a mistrial, could result in the mandatory imposition of a sentence of other than death contrary to the state's wishes, could require a retrial, and could generally cause much difficulty and expense for both the state, the victims, and the community.

Consequently, during the jury selection process potential jurors were asked how they felt about capital punishment, and if they showed the slightest reluctance over or had conscientious objections about a sentence of death, they would be stricken from the jury by either the prosecutor or the court. This problem became more and more significant all around the country as offenses designated as capital offenses grew in number and when more and more capital trials were being conducted.

In 1968 in the case of Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme Court held that potential jurors who had conscientious objections to the death penalty in a general way could not summarily be dismissed from jury duty on that basis alone. Having such objections did not necessarily preclude that juror from giving an oath that upon the facts and law of the case being tried, they would follow the law and would impose a death sentence if they felt it was justified based on the evidence in a case. In other words, jurors often are called upon to set aside their personal opinions or views and agree to abide the law that will be supplied to them at the end of the trial. So,when potential jurors expressed some opposition the capital punishment, some significant effort had to be made to "rehabilitate" the juror. Unless a potential juror unequivocally refused to impose death sentence no matter what the evidence showed or no matter what the law was, they could not be stricken from sitting on a jury on the basis of being generally opposed to capital punishment.

The assertion had also been tangentially made in Witherspoon that "death qualifying" jurors and seating only those who supported capital punishment in the case being tried was improper, because it eliminated a substantial segment of society that did not believe in capital punishment. This unfair elimination of people not in favor of a death sentence was then also a denial of a right to a fair and impartial trial by a fair cross-section of persons constituting the population in the trial district at large.

In other words, it was contended that the state should not be allowed to "load the dice" against the defendant with only those in favor of capital punishment, especially when it involved the issues of life or death. It was also contended that death qualified juries were "conviction prone" – meaning that because they were culled for their state-favoring views on capital punishment in the first place, they were more likely to favor the state in other ways during the trial as well, especially when the case involved decisions on whether to believe the police or the defendant's witnesses, or whether to resolve circumstantial evidence in favor of the state or in favor of acquittal. The Witherspoon court noted but did not address the conviction-prone contention, leaving the question "open" for consideration at some other time and in a more appropriate case.

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LINDA TANT MILLER

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