We Must Respect Jury’s Decision

Daily Report – Friday, December 19, 2008

Letter: We must respect jury’s decision

By Dan DeWoskin

First, let me say that I wish to address the concerns held by many prosecutors, legislators and others in the wake of the Brian Nichols verdict that the burden of achieving a recommendation of death in capital cases is too high. I do not intend toassert any opinions as to the constitutionality, legitimacy or ethical considerations regarding the death penalty. I simply feelcompelled to respond to the increasing distrust of and contempt for the discretion of Georgia juries.

In recent years, we have seen tort reform legislation limiting the discretion of juries in many civil actions. Now, because a jury convicted Nichols unanimously but failed to unanimously agree to a recommendation of death, many prosecutors like J.David McDade and Paul L. Howard Jr. are advocating for legislation that would alleviate the requirement of unanimity for are commendation of death in such cases.As I have said, I am not writing this as an opponent of the death penalty. Instead, I am writing this as an advocate of our Georgia jurors. Without question, what makes the American judicial system the best in the world is that, at the end of the day,we trust the enlightened conscience of impartial juries to tell us what Justice is. Now, because of the extremely egregious circumstances of the Nichols case and the fact that he appears to have avoided paying for his crimes with his life, many in our community want to further restrict the trust we place in juries.

McDade is quoted to have said that “the problem occurs when jurors say one thing in voir dire then do another thing in thejury room.” As an attorney who has handled both civil and criminal trials, I wholeheartedly understand the frustration expressed by these words.  I can recall several instances where I have been taken aback by the verdicts returned by juries and their reasoning. However, unless McDade is arguing that we should polygraph each and every prospective juror, the process of voir dire is the best and only means we have procuring fair and impartial jurors.In my experience, the state has often benefited from jurors who have perhaps said one thing during voir dire and then actedin direct contradiction during deliberations. Yet this is why we place prospective jurors under oath. This is why judges,attorneys and parties must never underestimate the importance of the voir dire process. Changing the law to restrict thediscretion of juries is insulting to the service provided by these citizens.

Aside from reducing the requirement that a recommendation of death be unanimous to a 10-2 or 9-3 verdict, other suggestions to “improve” our criminal justice system include giving prosecutors extra “strikes” to disqualify prospective jurors when a certain number of prospective jurors indicate they have serious reservations about the death penalty. Voir direis not about selecting jurors who will convict, acquit or find for the plaintiff or defendant. It is about excluding jurors whocannot listen to all of the evidence and return a verdict that is not compromised by bias and prejudice.

It is troubling that because of their dissatisfaction in the verdict in this case, many feel that we should change the rules. Thejurors in the Nichols case did their job. They listened, they deliberated and they told us what Justice is. For all of us whowere not jurors, we are entitled to our opinions, but we must respect the opinion of our fellow citizens who served on thatjury.