ARKANSAS' DEATH QUALIFIED JURIES - WATER UNDER THE BRIDGE - Government - http://maxpages.com/darkevilworld/Death_Qualified_Juries_Part

WATER UNDER THE BRIDGE

I think that had Griggs/McCree raised all these factors the inherent or potential problem en toto would have compelled the Supreme Court to rule that death qualified juries are in fact unconstitutional - at least in Arkansas, if nowhere else - because of an unacceptable "appearance of unfairness" inherent in the fact that jurors elect the judge and prosecutor to office (among other reasons). This would at least have given the researchers around the country time to adduce even more objective evidence of conviction proneness, lawyers more time to raise many tangential issues to solidify the victory and to expand it to other states and other circumstances - and, last but not least, Arkansas' death row would have been emptied and many offenders sentenced to other than death would have been retried. Many men who have since been executed would not have had to die.

Also, Arkansas would likewise likely have found it most expedient to expand juror pools to include those registered with the DMV, or those who paid property taxes, etc. – which in turn would have weakened the prosecutors' and trial courts' inordinate influence over the jurors that had elected them to office; ad infinitum. It would have gone a long way to permit Arkansas defendants to have a fair and impartial trial. Likewise, the repercussions and benefits to the American jury system were immeasurable.

As a prisoner I, of course, had no standing to officially intrude into the case although I was ultimately seriously considering filing a pro se amicus curae brief just to see how everyone would react - and to thereby compel the cat to be out of the proverbial bag. However, I was too restricted to access to legal authorities by the prison rules to allow proper support of the issues in a real brief to a court of law.

Since the defendant/appellant half of the parties apparently were not willing to pursue the evolution of law as they had been sworn to do for the greater good of all instead (of for a two lone defendants), I decided that the Attorney General of Arkansas, then Steve Clark, had a professional, ethical, and public duty to bring the matter fully to the attention of the 8th Circuit Court of Appeals, or to the United States Supreme Court, even if he actually represented the adverse party - simply because it was an issue of such great public and national interest. So, I wrote a brief outlining to Clark what I have written more in layman's terms here, and I sent it to him.

Of course, since this brief came from a "damn state convict" he was not going to pay any attention to it for that reason alone (because all prisoners are stupid animals, as everyone knows). But, more, Clark had been strutting all around Arkansas and before the printed and electronic media with his chest swelled out, riding the wave of being such a famous and notable legal scholar held in awe and reverence by Arkansas citizens everywhere for having gone to such a high court on such an important issue which, of course, only a man of his stature and brilliance could have accomplished. Clark was shortly thereafter convicted of felony crimes and dismissed).

Needless to say, I feared for McCree and the many men on death row because once the Supreme Court had already made its decision regarding death qualification based solely upon the limited theories presented by the parties, it would be extremely unlikely that any revived claim challenging death qualification in a new case (even by adding the factors of inherent voter bias) would be revisited so soon after the controversial issue had been so freshly debated and decided.

After the tragic loss for more than a 1000 death row inmates and thousands of other prisoners, I did get a chance to raise the issue anew in another, pro se, case of a fellow prisoner named Earnest Walker.

We won Walker's case at the District Court level on an issue of illegal intrusion by a stranger into the jury room while it was deliberating and a new trial was ordered. Although Federal Judge George Howard stated that other case-reversing issues exited, he declined to expound on them in the opinion since he was reversing Walker's conviction on this other ground. Although objections were filed to request the court to expound on all case-reversing issues because on appeal the sole issue actually explicated there might lose, the court declined. The 8th Circuit then overruled the lower court, and Walker was never able to compel the courts to address the other case-reversing issues mentioned in the lower court opinion, which may have included the voter-bias and deathqualified/conviction prone jury issues.

It is my hope that now that several years have passed since the Witt and McCree cases were last visited in a major way by a higher court, the issue can be pressed again. researchers around the country have compiled even more overwhelming proof that death-qualified juries are conviction prone. Since the last census, local records and statistics on various demographic factors regarding "distinct groups" within trial district populations have become more definitive. However, Arkansas juries are still death qualified, still limited to registered voters, still elect the prosecutors and judges to office, and still deliberate verdicts upon arguments made by the very persons toward whom they had a favorable bias when electing them, etc.

Perhaps some insightful attorneys will recognize the great and inherent evil of restricting juror pools to voter-registered people with an inherent voter-bias in trials where the judge and prosecutor that they elected to office prosecutes the case against a capital defendant (or any defendant). In Arkansas, the deck is overwhelmingly stacked against all but a tiny, tiny minority of defendants who draw a neutral forum by sheer luck.

It is my opinion that because these and other elements do exit in Arkansas, the entire state trial process (or at least that in capital cases) is rendered unconstitutional precisely because the deck is so thoroughly stacked through voter-registration limited juror eligibility, and by the fact that both the judges and the prosecutors in this state are elected to office by the potential jurors. Death qualified juries in Arkansas are not only conviction prone, they are "voter biased" in favor of the judge and prosecutor (as well as police agencies, etc.) as well.

I also think that it is an inherent right of a defendant to voir dire the jury as to any trial judge-or prosecution-favored bias, just like it is a right to examine them regarding bias as a result of media reporting or for having knowledge or pre-conceived ideas about the case. The law simply cannot presume that jurors who elected a judge or prosecutor are per se presumed not to be biased when the very fact that they voted for them demonstrates an obvious bias.

Following two drug addicts' arrest for some petty offenses they worked out a deal with Franklin County Arkansas prosecutors to "inform" on other people that they thought were involved in drugs, and the names of Gary Owens and his wife Judy (among others) were given to the police. At least one of the narcotics officers involved in the subsequent "bust", Stephen Brown, coordinator of the Fifth Judicial District Drug Task Force, was himself known to be involved with drug dealing, but the good ol' boys had always managed to protect him and cover for him. When needed, he could always pepper appropriate crime scenes with bits of evidence by which to convict some poor shmuck whose house or land they wanted to seize and who had incurred the good ol'boys' displeasure, or to "lose" evidence in cases where the good ol' boys did not want one of their own to take a fall.

Gary had been in Vietnam and there had become addicted to heroine. For many years after the war both Gary and his wife did in fact use drugs. However, they did not sell drugs.

Gary & Judy were eventually arrested for possession of drugs with intent to deliver, and with manufacturing methamphetamines. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996); Dist. Ct. Case No. CR-94-3. The evidence against them was comprised of 1500 MILLIGRAMS of methamphetamine, two boxes of table salt, two packets of ground coffee filters, an empty lye can, one half filled can of drain cleaner, a jar with a couple of ounces of ether in it.

During Gary's and Judy's first trial a request for a mistrial immediately became necessary when the prosecutor opened his case by calling the defendants "druggies." Later the trial Informant Gary King, the police, and several other state witnesses denied that King had made "a deal" with the State in return for his testimony against the Owens'. Even the judge did not acknowledge that a deal had been made with King even though the "arrangement" was accomplished in his own courtroom.

After a two day trial Gary & Judy were convicted of all three counts and were sentenced to 25 years each on two counts, and 10 years on the third. However, on a motion for a new trial, the conviction was eventually vacated because proof was adduced that the State had indeed made a deal with King and, therefore, that all the witnesses who had denied that a deal existed had lied under oath.

Both up to and across the first trial, the local newspapers and TV channels kept the public appraised with the blow-by-blow unfolding of the prosecution, including the fact that the conviction had regrettably been vacated due to some "technicality." The local officials and citizenry was angry that so much money had been spent on the case, only to have to be repeated again. In the town of Ozark, where the population is an estimated 5,000, people were deeply upset that a "drug pushers" had gotten off the hook, even though no one had accused Gary & Judy with having sold drugs. Even Informant King did not accuse them of it. (For the reader: In Arkansas the mere possession of a certain quantity of a drug creates a "statutory presumption" that the drugs is possessed "with the intent to deliver." NO EVIDENCE of an actual sale or attempted sale is needed to convict. In the Owens case the presumption was engaged because they had possessed more than 200 milligrams of speed). As a result, rumors and gossip about the case and what would happen next were rampant.

In the small community of Ozark and throughout the remainder of the trial district, virtually all the potential jurors drawn for this trial knew one or more of the parties iin the case, including the defendants, the court, the prosecutors, and all of the State's
witnesses. Although this case was not a capital trial, the State also decided that it should "life imprisonment qualify" the jurors to make sure that they would be willing to impose the maximum punishment in this case.

The reader should be understand that when the voir dire for jury selection takes place in most trials anywhere, it is usually begun by the trial court asking a series of questions addressed to the entire jury panel at large, in order to quickly eliminate some jurors that obviously would be unsuitable to sit on the case. After that preliminary round of voir dire, potential jurors are then questioned more specifically by the attorneys for both sides to explore for any potential for bias or prejudice or cause for excusing the juror from this trial.

ARKANSAS JURY VOTER BIAS

What is presented below is the actual dialogue contained in the trial record in Owens v. State. By it the reader can get a good sense for what a typical Arkansas jury selection process is like, and how virtually impossible it is to get a fair trial simply because virtually everybody in the courtroom knows everybody else. Please take note, however, that many jurors in the Owens case would not disclose the true scope of their personal friendships with the judge, prosecutors, or the state's witnesses because they knew it would mean they would be dismissed as jurors. If that happened, a mistrial or new trial might occur yet again, and two "hippie dope dealers" might be let off the hook again simply because of some "technicality" and the county would have to spend even more money to have a third trial.

From the dialog below, a person may also begin to comprehend the inherent injustice of death qualifying an Arkansas jury, of limiting jury eligibility to voter registration alone, and of the inherent voter bias of jurors who are friends, associates, and relatives of everyone in the courtroom. (ALL PARENTHETICAL COMMENTS ARE MY OWN, and are not a part of the trial record).

I am compelled also to state that what follows is only a MILD example of what usually takes place during voir dire of a jury panel in rural Arkansas trial districts. I would have preferred to have presented the dialog from a capital case, but all men on Death Row are housed at the Tucker Maximum Security Unit, and I was unable to secure one of their trial records for purpose of this article and brief.

Also it should be noted that as the jurors first began to be voir dired the defense attorneys asked many penetrating questions. By the end of the lengthy process the questions had become hurried and unspecific. After several jurors had been able to hear the "dry run" questions in the early part of the proceedings and noted that several jurors were dismissed for cause, they were not about to allow the same thing to happen to them.

(During the Court's own general address of the entire jury pool):

THE COURT: Are any of you close personal friends of the Owens, socialize with them, work with them, anything like this? Mr. Edgin, how close a neighbor are you to him? (The court already knew without asking that Edgin was a neighbor since Edgin himself did not volunteer that information prior to the judge's question).

Potential Juror Harley Edgin: A couple of miles. We have visited in the past. It has been a couple of years (Gary Owens' had been in jail for close to two years at this point). I really don't see any problem with me sitting on the jury today.

Potential Juror Louise Fulbright: I went to school with Mr. Owens and live in the same neighborhood with him and his father and mother. It would be hard for me to sit on this jury (stricken for cause because of potential bias for the defense).

THE COURT: Representing the state today we have Tom Kennedy and Mac McCain, prosecutors here in Franklin County. Now are any of you related by blood or marriage to either one?

Potential Juror Mike Pennington: He's my brother in law. (stricken for cause).

Potential Juror Mary Boren: Mr. McCain is city attorney for the City of Altus and I'm on the city council. That might influence me in this case. I have contact with him at least once a month. But, I think I can be fair and impartial.

Potential Juror Trena McIntire: Mr. McCain worked on a case involving my daughter back in February. (The daughter was the victim of the wrongdoing in which the violator was prosecuted by McCain). Nothing about that would keep me from giving everyone a fair trial.

(Note: it was NOT of course specifically asked whether anyone simply knew the prosecutors, had voted for him, or was personal friends with them - as opposed to being related to them by blood or marriage only).

THE COURT: Of course I'm sure probably everybody knows the Sheriff. Any of you related to the sheriff or are real close personal friends with him? (Since he is only a witness, it is now okay to ask if any are personal friends)

Potential Juror Stanley Eveld: I'm personal friends. I saw him last Monday. We talked about this case and I otherwise heard him mention it. I have formed an opinion, but can give everyone a fair trial. (stricken for cause).

THE COURT: Is anyone else familiar with the individuals (witnesses, police, etc)? I know, like I said, probably everyone here knows the sheriff. (In the tone this was said, the Court expressed obvious caution for jurors not all to openly admit that they personally knew the sheriff lest more of them would have to be stricken for cause like Stanley Eveld. Also, no question was asked by the court if jurors likewise knew the judge himself,which they of course did).

Potential Juror Lana McLaughlin: I know David Hayden (a state crime lab witness to be called in the case). I see him on a weekly basis at the Arkansas Credit Union. We are friends, but I see no problem with me sitting on this case.

Unidentified Potential Juror: I know Barbara Sparks (a state's witnesses given leniency for her crimes in return for her testimony against the defendants. After the first case was reversed because everyone lied about a deal having been made with Informant King, the state did not call King to testify, but Sparks instead). She used to rent a house from me a couple of years ago. Well, it won't really be a problem for me as a juror. Except that I really liked her).

At this point in the proceedings the Court's questioning of the jury venire at large ended. Take particular note that the question had been asked of the entire group whether anyone knew one of the parties in this trial, and only those identified so far had responded to that question up to this point.

Thereupon the lawyers for either side began to ask some of their own questions. In asking whether anyone would be prevented from sitting through the whole trial for some reason, the prosecutors said, "I know you have your turkey houses (to worry about), but is there anything else on your minds that would take you away from listening to our evidence." (No response).

CONTINUE