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death penalty. In her written questionnaire she stated that
“the death penalty should be used if the gov’t makes its
case beyond reasonable doubt.’’ Similarly, in response to
open-ended questions from the Court she indicated that
the death penalty should be applied to any intentional
kill ing. Moreover, when asked an open-ended question
about what factors might lead her to consider a life sentence,
she focused on whether or not the government
had proven the killing beyond a reasonable doubt rather
than on mitigating factors relating to the circumstances
of the of fense or the defendant’s background. Later, in
response to leading
questions from counsel
[the prosecutor],
ju ror 114 suggested
that she would not
au to mat i cally vote for
the death penalty and
said that she would
con sider miti gat ing
fac tors. However, her
de meanor dem onstrated
a dis tinct reluc
tance on these issues.
In light of this,
She indicated that
the death penalty
should be applied
to any intentional
kill ing.
the Court found that her earlier answers were a more
ac cu rate reflection of her views. The Court concluded
that ju ror 114 would not be able to impartially consider
mit i gat ing factors or a life verdict. Thus, she was excused
for cause. 35
Judge Sessions pointed to an important reason supporting
fact-specific voir dire. It gives the judge a better insight into the
potential juror’s demeanor. The Supreme Court recently re affirmed
the importance of the trial court’s analysis of demeanor in
deciding whether to strike jurors under either Witt and Morgan
principles. 36
The factual specificity of our questioning in Fell was dramatic.
It exceeded what many judges would have been comfor
ta ble with. We let the potential jurors know that it was a
triple-homicide in which two of the victims were women, that
a man and a woman were stabbed dozens of times, and that the
principle female victim was abducted by strangers, driven for
hours and then stomped to death in a cold, isolated rural area.
With that background, we asked whether the potential ju rors
could still consider a life sentence regarding the mitigating evidence
that would be offered.
Such questioning is counter-intuitive, because the impulse
is to always put the case in the best light for the defendant. How‐
pen alty for mass murder.
Conclusion
ever, it made no sense to downplay the aggravating evidence
when the goal was to find out whether the potential jurors would
be so shocked by those facts that they could never consider a
life sentence, regardless of the mitigating evidence.
In his second published order, Judge Sessions granted our
mo tion to strike a juror because of his stated inability to consider
ex pert testimony of a psychiatrist called by the defendant. 37 The
court found the person’s view created an obstacle to his im partial
consideration of the law and facts.
The effect of Judge Sessions’ decision to allow fact-specific
voir dire was that both sides, and the court, were satisfied
that each juror who was
qual i fied understood the
concepts of a capital case.
Our challenges to in di vidual
potential jurors were
based upon concrete reasons,
such as the juror who
could not consider any
de fense expert testimony
con cern ing the defendant’s
abu sive child hood or, from
the prosecution’s per spective,
persons who would
only consider the death
Despite Texas law indicating that the denial of case-specific questions
is not error, trial judges have discretion to allow them
as long as they are not ambiguous or misleading and do not
com mit a potential juror to how she or he will vote. Lawyers
should be prepared to give examples of how the issues in their
cases re quire fact-specific questions, and to explain why they
will make the process efficient and productive.
Notes
1. The standard of review for denial of voir dire questions is abuse of discre
tion. Alldridge v. State, 762 S.W.2d 146, 167 (Tex.Crim.App. 1988).
2. Wainwright v. Witt, 469 U.S. 412 (1985).
3. Morgan v. Illinois, 504 U.S. 719 (1992).
4. See Richmond v. Polk, 375 F.3d 309, 329 (4th Cir. 2004).
5. See Wingo v. State, 189 S.W.3d 270, 271 (Tex.Crim.App. 2006).
6. 153 F.3d 1166, 1206–9 (10th Cir. 1998).
7. United States v. Webster, 162 F.3d 308, 342–43, n.39 (5th Cir. 1999).
8. Ring v. Arizona, 536 U.S. 584, 609 (2002).
9. There is no good reason to distinguish gender bias from ethnic or racial
prejudice—the latter requiring voir dire questioning when requested by the
de fendant. See Rosales-Lopez v. United States, 451 U.S. 182 (1981).
10. 152 S.W.3d 105, 110 (Tex.Crim.App. 2004).