Recent filing in Uttecht v. Brown
Last Friday, we filed an amicus brief supporting the respondent in Uttecht v. Brown, No. 06-413, on behalf of the National Association of Criminal Defense Attorneys. The case concerns the constitutional limitations on the dismissal for cause of jurors in capital cases based on their views about the death penalty. Students Steven Sigar and Brian Walker from the Stanford Law School Supreme Court Litigation Clinic worked on the brief with us, as well as Prof. Susan Rozelle of Capital University Law School. The case will be argued in an afternoon session on April 17.
Thank you for the opportunity to consider and comment on a professional board.
I won’t play Perry Mason but I might play Thomas Paine. I am in advertising. We know, therefore, something about demographic sampling, focus groups and in particular, assumptive questions. We also have a term called “fresh eyes”. After reading this brief, and I did word for word, I am struck not so much as to what it said but where it obviously didn’t go.
First, if I were to select both a commercial message and a targeted consumer, I would drill down through a number of demographic and psychographic qualifiers – Sex, age, income, education, proximity to product, shopping patterns, etc. Each layer selected shaves away some of the population. Some of the decisions (sex, age etc.) can dramatically reduce my audience target and thus make my advertising message more expensive in an efficiency ratio (am I reaching exactly who I want to reach which may only be 10% of the population but it will still cost me the same as if I were trying to reach everyone – 90% waste).
I then, of course, slogged through the 6th amendment as best I could as was struck by the disconnect in the “Deal questioning, the 6th Amendment generally and that little advertising lesson above. Mainly I am struggling to find language that effectively snaps another clause onto what is, I guess, known as “jury of his peers”. I can’t find a sentence or reference to “Jury of his peers who believe…..” or in particular “Jury of his peers who will or can…”. I guess in the legal world that isn’t a big deal but in the real world it is.
In my advertising example, the “everyone slice of the population” starts with, well, everyone. It is immediately reduced by some percentage when the first qualifier is entered (sex, age, etc.). And this, to me, Mr. Common Sense, is a quandary.
Are “peers” everyone who lives around me or are “peers” everyone who is just like me? Obviously the court system has picked the former and probably has some legitimate right to weed out former felons or friends/enemies of the defendant, etc., but at what stage does that cross into reducing the jury pool by matters and variables that aren’t cogent?
If I were to argue or submit such a friend of the court brief I would say thusly:
1. Tagging on the question of “if he were in the position of committing the crime again” (see! I did read it) is an assumptive question. In advertising it assumes that “commit the crime” (before again) is a “given”. In messaging to a potential consumer it is a sales technique that makes the sales assumption that you agree to part 1, that’s a given, so let’s just move on…” Anyway, I would go right to that, as it is the heart of the issue, common sense wise.
2. I would ask the court to ponder the general effect of the question regarding giving out the death penalty if found guilty. In advertising, you go one step at a time in formulating a decision process…this does not.
This isn’t an “if-then” question. It is a question that separates an entire group much as if in advertising we did male or female. And there is where the lay person (me) has problems with all this briefing.
My fresh eyes would say, you are correcting or refining by increments. The entire question of “if-then” is assumptive and skews the reception of the message. In real life it can’t be any other way. I would wonder then how many contaminated “guilty” verdicts there are as a result of reducing the jury pool by the factor “assuming that…”. Assuming that plants the seed “that” the peer is guilty and the only thing left is to make sure you can hang ‘em high or not. So why, when given a chance (and this Merry-go-round doesn’t appear to stop often), would a party (trial lawyers) tweak when they could argue a “fresh eyes” gambit.
In for a nickel in for a dollar I always say.
Comment by harold d. house — April 7, 2007 @ 7:38 am