I woke up earlier than I usually would this Sunday morning in an attempt to watch the TV broadcast of Lakewood Church services that air at 10 a.m. I wanted to see what, if anything, was said about Kelly Siegler's comments. While I was waiting for the show, I took time to read Rick Casey's column which listed Kelly's comments as part of a three-part column bashing Republican disingenuity in our county officials.
I came to a conclusion: Backseat Drivers irritate me.
Casey's column cites the fact that the juror that Kelly struck off of her panel had listed that he was "in favor of capital punishment, except in a few cases where it may not be appropriate". Casey then argues by inference that Kelly would only want a juror who would be so strong on the death penalty that they would even give the death penalty where it was inappropriate.
For those of you out there who have worked on death penalty cases, you know that Casey is twisting things that he clearly doesn't know enough about. He's backseat driving just like his comrade Lisa Falkenberg likes to do in her articles.
Here's a pop-quiz for both Falkenberg and Casey:
1. In capital jury selection, what does the terminology "5/5", "1/1", or "4/3" mean?
2. Name one prosecutor or defense attorney who would accept a juror on a death capital based solely on their questionnaire, without interviewing them?
3. What keys on a court reporter's machine capture tone and inflection?
I've been involved with multiple capital murders over my career (NOTE: the term "involved" can mean a lot of different things, and I acknowledge that). I know that attorneys on both sides go through the numbers "5/5" through "1/1" first off before even reading a juror questionnaire. It isn't unusual at all for a questionnaire to not even be read at all, if they are a "5/5" and a "1/1". They usually become the victims of trades.
A prosecutor or a defense attorney would be absolutely incompetent if they accepted a person based on questionnaire only and didn't talk to the potential juror. I don't know how many of the seasoned attorneys are reading this blog, but I'd love to hear from you if you've tried a DP case. How many times has a juror that seemed to be a "2/2" ended up being a "5/5" or a "4/3" ended up being a "2/1" after individual voir dire? My point is that for those who have worked on these cases know that the questionnaire is often a good preview of what you are going to get when you speak to them, but it is (by no means) dispositive, is it?
Finally, a record is a flat recording of words. I've never read one that illustrated the tone of someone speaking while they were talking. It would be pretty damn funny if they did, because a record would read more like a romance novel.
Picture two situations:
#1 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?" and the answer is an emphatic "Yes."
#2 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?". The juror frowns and then takes a deep breath. Looks at the defendant, who is looking at him, and then looks down at their hands, before softly answering "Yes."
How do they both read in the record?
Q: Can you consider the death penalty as an option in the appropriate case?
Until we get a transcript written by Danielle Steele, I don't know that you can properly catch the mood of what is going on through just a transcript.
After watching Lakewood Church this morning, I came away with a couple of conclusions.
#1 - Pastor Joel Osteen may be just about the best public speaker that I've ever watched.
#2 - the show made me feel good and it made me feel optimistic and good about my fellow man.
#3 - these feelings conflicted very much with my usual jaded personality.
#4 - I'd be concerned over whether or not this was the type of outlook I'd want on a DP jury.
Folks, the people of Lakewood are good people. Probably better people than I am. I'd gladly have them on the vast majority of my juries.
I just don't know how I would feel about putting them on a death penalty case. I'm much less ambiguous about whether or not I'd put Rick Casey on.