WILLIAM L. COLEMAN 501 Rama Road Charlotte, NC 28211 (828) 381-0232 colemanw@students.charlottelaw.

edu

WRITING SAMPLE

Motion & Memorandum drafted for Judge Jesse Caldwell as part of the course The Death Penalty: A Study of Law and Litigation (Grade: A)

Motion to Exclude Juror Z for Cause and Memorandum in Support of Motion to Exclude Juror Z for Cause

Written in April 2012

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STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FILE NO. 10 CVS 168294

STATE OF NORTH CAROLINA V. IMA JERK

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MOTION TO EXCLUDE JUROR Z FOR CAUSE UNDER WITHERSPOON V. ILLINOIS

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NOW COMES the State, by and through undersigned counsel, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 19 of the North Carolina Constitution, and respectfully moves the Court to exclude Juror Z for cause. As grounds for this motion, the State of North Carolina shows the Court the following: 1. The Defendant is charged with, among other things, the offense of first degree murder for which the State is seeking the death penalty. 2. Throughout the entire voir dire process, Juror Z equivocated several times on whether he could impose the death penalty in conformance with North Carolina law. Any expressed willingness to impose the death penalty was accompanied by repeated indecisiveness and a viewpoint which, if followed, would result in the misapplication of North Carolina law. 3. In a capital case, jurors whose personal or religious opposition to the death penalty would preclude them from ever returning a sentence of death are excusable for cause. Witherspoon v. Illinois, 391 U.S. 510 (1968). Additionally, jurors who are unable to perform their duties as a juror and follow certain provisions of the law must be excused for cause. Wainwright v. Witt, 469 U.S. 412 (1985); Adams v. Texas, 448 U.S. 38 (1980).

- iii WHEREFORE, the State respectfully prays the Court to abide to Witherspoon and its progeny cases and exclude Juror Z for cause. Respectfully submitted, this the 17th day of April, 2007.1

William Coleman
William Coleman 501 Rama Road Charlotte, NC 28211 (828) 381-0232

This date is important to analysis. The reader should presuppose that the U.S. Supreme Court had not made its ruling in Uttecht v. Brown, 551 U.S. 1 (2007) at the time of this motion.
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MEMORANDUM IN SUPPORT OF MOTION TO EXCLUDE JUROR Z FOR CAUSE UNDER WITHERSPOON V. ILLINOIS INTRODUCTION The U.S. Supreme Court has stated that a defendants Sixth Amendment right to an impartial jury is implicated at the voir dire of potential jurors, where jurors are challenged for cause. Witherspoon v. Illinois, 391 U.S. 510, 529 (1968). In capital cases, this situation arises in death qualification of the jury (i.e., challenging the jurors for cause based on their death penalty views). However, the issue in Witherspoon (as well as in its progeny cases) was whether the defendants constitutional right to an impartial jury was violated when the court excused for cause potential jurors who had expressed feelings against the death penalty. Witherspoon, 391 U.S. at 513-14. Juror Z should be excluded for cause in accordance with Witherspoon not because he expressed feelings against the death penalty, but rather because of his inability to state clearly and unequivocally that he will follow North Carolina law. This Brief will analyze and advocate the proactive role that Witherspoon and its progeny cases place on litigants and the court during voir dire in order to ensure that jury panels consist of jurors who are competent, impartial, and able to apply the law of the State. Part I will certify that Juror Z neither voiced a general opposition to the death penalty nor expressed conscientious or religious scruples against its infliction. Part II will then show how Juror Zs misplaced views on the death penalty would prevent or substantially impair the performance of his duties as a juror.

- v STATEMENT OF THE FACTS The Complaint alleges that Defendant Ima Jerk robbed, raped, tortured, and murdered one woman in North Carolina. The State of North Carolina, in seeking the death penalty, is currently in the process of death qualifying the jury. On the fifth day of voir dire, the State, Defense Counsel, and the judge examined Juror Z. Throughout questioning, Juror Z exhibited a substantial amount of confusion, as indicated by his contradictory statements and uncertainty of the law. Due to his mistrustful answers, coupled with the special nature of a capital case, the State motioned this Court to excuse Juror Z for cause in accordance with Witherspoon v. Illinois. Besides to Juror Z, the State has challenged 11 other jurors for cause. ARGUMENT Witherspoon held that jurors whose personal or religious opposition to the death penalty would preclude them from ever returning a sentence of death are excusable for cause. 391 U.S. at 522 (1968). If a trial court erroneously excludes a qualified juror in response to a cause challenge by the state, the defendants constitutional rights under the Sixth and Fourteenth Amendments are violated. Id. at 518. In the line of cases following Witherspoon, however, the Supreme Court clarified when such rights are not violated. In doing so, their decisions broadened the range of jurors who may be excluded by death qualification. See Adams v. Texas, 448 U.S. 38 (1980) (finding that only those jurors who are unable to follow the law may be excused for cause); Wainwright v. Witt, 469 U.S. 412 (1985) (modifying the Witherspoon test and ruling that a State may exclude for cause those class of veniremen whose views would prevent or substantially impair the performance of their duties in accordance with the law);

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Morgan v. Illinois, 504 U.S. 719 (1992) (holding that jurors whose personal or religious beliefs would preclude them from considering a sentence of life imprisonment are excusable for cause). At present, the test for determining whether a juror is excusable for cause under Witherspoon is whether the jurors views on the death penalty would prevent or substantially impair the performance of his or her duties in accordance with the law. Witt, 469 U.S. at 424. Jurors are qualified to serve on a capital jury even if they are personally opposed to the death penalty, so long as they state clearly that they are capable of setting aside their personal opinions in deference to the law. Lockhart v. McCree, 476 U.S. 162, 176 (1986) (emphasis added).

I.

EXCLUDING JUROR Z WOULD NOT VIOLATE WITHERSPOON BECAUSE IT IS NOT PREMISED ON ANY GENERAL OBJECTION TO THE DEATH PENALTY OR EXPRESSED CONSCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST ITS INFLICTION.

No state can carry out a sentence of death if the jury that imposed it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Witherspoon, 391 U.S. at 522. In Witherspoon, the Court found that the State stacked the deck against the defendant by excluding nearly half of the veniremen due to their general objections to the death penalty. Id. at 513. These systematic exclusions were but a short step from the settled principle that no State may entrust the determination of whether a man is innocent or guilty to a tribunal organized to convict. Fay v. People of State of New York, 332 U.S. 261, 294 (1947). By the same token, no State may entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Witherspoon, 391 U.S. at 521.

- vii The present case is factually distinguishable from Witherspoon. Here, the State has made only 12 challenges for cause. In stark contrast, the State in Witherspoon systematically removed 47 veniremen. 391 U.S. at 514. In North Carolina, where no systematic exclusion is shown, a defendant only has the right to reject a juror prejudiced against him, not select one prejudiced in his favor. State v. Washington, 283 N.C. 175 (1973), cert. denied, 414 U.S. 1132 (1974) (emphasis added). Moreover, the 47 veniremen whom the State challenged in Witherspoon were excused simply for expressing qualms about capital punishment. 39 U.S. at 513. In this case, Juror Z made clear that he had no general opposition to the death penalty or scruples against its infliction. In fact, Juror Z pointed out several times that he was in favor of the death penalty in severe situations. In sum, Juror Z should be excluded for cause not because [Z] is impaired by any general outlook on the death penalty. The removal is proper, rather, because Juror Z is simply unfit to serve as a juror. Juror Zs competence to serve is, at best, dubious based on his position regarding the specific circumstances in which the death penalty would be appropriate. Despite repeated instructions of the law from both Defense Counsel and the State, the voir dire transcript shows several instances in which Juror Z still misunderstood a jurors obligations. Due to this false attitude toward capital punishment, Juror Z should be excluded for cause.

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II.

WHEN VIEWED IN TOTO, JUROR Z SHOULD BE EXCLUDED FOR CAUSE BECAUSE [Z]S VIEWS ON CAPITAL PUNISHMENT, AS ILLUSTRATED BY HIS AMBIGUOUS AND CONFUSING ANSWERS, WOULD PREVENT OR SUBSTANTIALLY IMPAIR THE PERFORMANCE OF [Z]S DUTIES AS A JUROR.

Part of the guarantee of a defendants right to an impartial jury is an adequate voir dire to identify unqualified jurors. Morgan, 504 U.S. at 729-30. A juror is unqualified and may be excused for cause if his views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Witt, 469 U.S. at 424 (quoting Adams, 448 U.S. at 45). More specifically, a juror is unable to state clearly a willingness to set aside his own beliefs in deference to the rule of law, he may properly be excused for cause. Lockhart, 476 U.S. at 176 (emphasis added); State v. Brogden, 334 N.C. 39, 43 (1993).
Juror Z should be excluded for cause because [Z] was unable to state clearly and

unequivocally that [Z] could apply the laws of North Carolina. During questioning, Juror Z tergiversated several times when asked whether he could impose the death penalty in conformance with North Carolina law. At one moment, he suggested that he could impose death only in cases where the State could prove beyond a shadow of a doubt that the defendant was likely to reoffend. Of course, this standard does not correctly reect North Carolina law. See N.C. Gen. Stat. 15A (2000). Because the quest [for an impartial jury] is for jurors who will

- ix conscientiously apply the law, Witt, 469 U.S. at 423, Juror Z was examined several times about that view -- by Defense counsel2, by the State, and even by the trial judge.
At one moment, the State rst explained to Juror Z that its burden of proof was beyond a

reasonable doubt and then asked whether [Z] understood, to which juror Z responded evasively: It would have to be in my mind very obvious that the person would reoffend. The words have to and in my mind suggest that Juror Z would apply what he perceives the law should be, rather than what the law is. Once again, the State explained to Juror Z, for at least the fourth time, that there was no possibility that the defendant would be released and then reoffend. The State then asked, And now that you know there is such a thing [as life without parole]. . . Can you think of a time when you would be willing to impose a death penalty? Juror Z answered, I would have to give that some thought, without supplying any further answer.
Later on, when the State asked whether Juror Z could consider the death penalty, [Z]

said he could. However, Juror gave this confusing answer when asked whether he no longer felt it was necessary for the State to show that the defendant would reoffend: I do believe that way if parole is an option, without parole as an option. I believe in the death penalty. Based on these wavering and confusing answers, Juror Z has proven that this Court cannot wholeheartedly rely on [Z] to apply the law.
Defense Counsel relies heavily in its argument that Juror Z unequivocally stated that he

would be able to consider and impose the death penalty. However, that argument is supercial

When Defense Counsel explained to Juror Z that the jury would consider two sentencing options if Ima Jerk were found guilty -- life without parole and the death penalty -- [Z] stated that he could consider both options. However, [Z] then said that the death sentence would be appropriate if a person would be incorrigible and would reviolate if released. Once again, Defense Counsel explained the idea of life without parole, to which Juror Z again said he could consider both options. Shortly thereafter, when Defense Counsel asked whether it would frustrate his decision in the penalty phase if he did not know whether the offender would reoffend, he replied Im not sure. Later he stated, I would have to give that some thought to the States question of whether [Z] could think of a time when he would be willing to impose a death penalty knowing that the person would be locked up for the rest of his life.
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and illogical and should be rejected. When deciding whether there are reasonable grounds to excuse a juror for cause, the Court should consider the facts of the entire voir dire. A jurors subjective or expressed belief that he or she can set aside prior information and decide the case on the basis of the evidence presented does not necessarily render the juror qualified. Morgan, 504 U.S. at 735.
While Juror Z stated at times that [Z] could follow the law, [Z] also stated I would have

to give it some thought once [Z] knew that the defendant would not be paroled if found guilty. As such, any willingness to impose the death penalty was accompanied by indecisiveness and expressed viewpoints which, if followed, would result in the misapplication of North Carolina law. A jurors saying in one breath that he could follow the law, and then in the next breath misstating the law, is not an unequivocal statement that he would be able to consider and impose the death penalty as required under North Carolina law. Thus, Defense Counsels reliance is misplaced. CONCLUSION Juror Z should be excluded for cause because [Z] did not clearly and unequivocally state an ability to set aside temporarily his attitudes and apply North Carolina law. Juror Zs indecisiveness, coupled with a repeated misplaced emphasis on a defendants likelihood to reoffend, demonstrates that [Z] is incompetent to decide whether a man should live or die. Moreover, the removal would not violate Witherspoon because it is not based on any general opposition to the death penalty by Juror Z. Therefore, under these circumstances, the Court should grant the States motion to exclude Juror Z for cause in accordance with the U.S. Constitution, N.C. Constitution, Witherspoon, and other established law.

- xi Respectfully submitted, this the 17th day of April, 2007.

William Coleman
William Coleman 501 Rama Road Charlotte, NC 28211 (828) 381-0232

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CERTIFICATE OF SERVICE I hereby certify that the foregoing was served on Mr. Barre Dumas, Defense Counsel, by depositing copies thereof in the U.S. Mail, postage prepaid, and addressed to him c/o Mecklenburg Country Courthouse, Charlotte, North Carolina 28202, this the 17th day of April, 2007.

William Coleman
William Coleman 501 Rama Road Charlotte, NC 28211 (828) 381-0232