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The government advances the following propositions in support of its attempt to excuse Juror #560 and save Juror #618: That an empirical observation by the Supreme Court that more anti-death penalty jurors than pro-death penalty jurors are disqualified from serving in capital cases should be raised into a requirement (or perhaps a rebuttable presumption) that the Court should disqualify more life-givers than death-givers (Gov’t Br. 2);

 

That life-givers, but not automatic death-givers, should be believed when they are allowed and encouraged to state their honest views, see Gov’t Br. 2 ("Public opinion polls, as well as results of state capital cases (which prompted a legislative abandonment of jury sentencing), reveal that Coloradans’ support for the death penalty is easily voiced but rarely implemented");

 

That under governing Supreme Court precedent, the threshold for disqualifying life-giving jurors is lower than the threshold for disqualifying jurors who lean towards death (Gov’t Br. 3); and

 

That the Court and the government ask fair questions designed to elicit honest answers, while the defense attempts to "trip up" jurors with "confusing" and "loaded" questions (passim).

 

We will not respond to propositions (1) and (2). As to the relative thresholds for disqualification of life-giving and death-giving jurors (proposition (3)), the government gets the standards backwards. As we previously showed in Terry Lynn Nichols’ Memorandum Regarding the Scope of Life Qualification Under Morgan v. Illinois (filed October 3, 1997) ("Nichols Morgan Memorandum"), the requirement that a life-impaired juror be excused from capital jury service stands on two distinct footings.

First, contrary to the government’s suggestion (Gov’t Br. 3), insofar as it concerns the Sixth and Fourteenth Amendment rights to a fair trial, Morgan v. Illinois, 504 U.S. 719 (1992) stands on the identical constitutional grounds as Wainwright v. Witt, 469 U.S. 412 (1985) and Adams v. Texas, 448 U.S. 38 (1980). Indeed, Morgan explicitly relied on these cases. See 504 U.S. at 728-731. The government’s cites Morgan’s use of "automatic" imposition of the death penalty as opposed to the "substantial impairment" language of Witt, but that difference plainly stems from Morgan’s procedural posture — the issue before it was the propriety of the specific voir dire question defense counsel had sought to ask, which was, "If you found [the defendant] guilty, would you automatically vote to impose the death penalty no matter what the facts were?" 504 U.S. at 723. It is clear from the Court’s discussion of Witt and Adams, however, that — at least insofar as the Sixth and Fourteenth Amendments were concerned — it viewed the life-qualification standard to be on all fours with the death-qualification standard. By contrast, the government’s only authority for its novel reading of the law is Justice Scalia’s dissent in Morgan — the Justice who not only disagreed with the majority’s view of the Sixth and Fourteenth Amendments on the Morgan issue but who flatly rejects the notion that the Eighth Amendment requires individualized consideration of a capital defendant’s life history, background and other mitigating circumstances. See Walton v. Arizona, 497 U.S. 639, 656-673 (1990) (Scalia, J., concurring).

Thus, if the Sixth and Fourteenth Amendments were the only constitutional provisions in issue with respect to juror qualification, the threshold for disqualification of life-impaired and death-impaired jurors would be identical. However, as we showed in the Nichols Morgan Memorandum, the Eighth Amendment also plays a role. It requires that to be qualified, a capital juror must not only be able to "consider" or "listen to" mitigating evidence, but to "give effect to" it, Penry v. Lynaugh, 492 U.S. 302, 328 (1989), in the sense of "taking it into account," "entering it into the decision" or "weighing it in the balance." See Nichols Morgan Memo (discussing Morgan in the context of Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); and Penry). There is no comparable requirement, statutory or constitutional, that jurors "give effect to" aggravating circumstances in every capital case. Indeed, as the Court has instructed each juror, they are never required to impose death, which means that aggravators may be disregarded in any particular case even if no mitigating circumstances are found.

In practice, this additional Eighth Amendment requirement of meaningful consideration of mitigating circumstances means that jurors’ views must be probed to determine whether professions of an ability to "listen" to or "consider" mitigation involve a commitment to have this mitigation enter into the ultimate life/death decision. It should be clear that the right to meaningful individualized consideration is one that must be given effect in every capital case. No matter how heinous the crime, no matter how many people murdered or made to suffer, the defendant’s individuality must factor into each juror’s decision, no matter what that ultimate decision may be.

This latter point highlights not only the propriety but the necessity of the questions by defense counsel that the government derides. We will address the specifics of Jurors # 618 and 560 at oral argument. But we note that the government’s feigned dismay at the inclusion of hypotheticals involving "premeditated" and "multiple" murders (Gov’t Br. 8) rings hollow in light of the factual knowledge that every examined juror has brought to this case: that the crime on trial caused the deaths of hundreds of innocent people, including many young children. Against this background, it is imperative that the Court and defense counsel determine whether each potential juror will be able to follow the Sixth and Fourteenth Amendments’ commandment to impartially apply the law as instructed and the Eighth Amendment’s requirement that mitigating evidence be seriously and meaningfully considered, in this case, before deciding whether life or death is the appropriate sentence.

The government’s apparent belief that it is sufficient that a potential juror be able to abide these requirements in someone else’s case cannot and does not state the law. Mr. Nichols is entitled to explore whether the potential jurors will follow the law in his case, and defense counsel’s questions are narrowly tailored, in the least prejudicial manner possible, to determining this question.

Respectfully submitted,
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Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)

I hereby certify that the one copy of this document was hand delivered to Larry Mackey, Special Attorney to the Attorney General.

____________________October 17, 1997