During the last decade or so, the Supreme Court has led a quiet revolution in its review of the Sixth Amendment right to trial by an impartial jury.

A small group of Hogan Lovells lawyers and capital defense counsel now hope to nudge that revolution an additional step.

In a series of decisions involving sentencing and the confrontation clause, the justices have re-examined the amendment’s protection of the jury trial right with an eye to the historical role of juries and the Framers’ intent or understanding in adopting the amendment. The decisions are generally 5-4 with unusual alignments of the justices, and the results often have been pro-defendant.

However, there is an aspect of the jury trial right that thus far has escaped this historical and originalist re-examination, because most of the Court’s rulings occurred before the revolution began. That aspect is the death qualification of jurors in capital trials.

Hogan Lovells has a history of pro bono work in the death penalty area. For some time, the firm had been looking for an opportunity to work with the Capital Appeals Project in New Orleans. The case of convicted murderer Terrance Carter provided that opportunity, said Hogan partner Jessica Ellsworth. Carter was indicted in 2006 for the first-degree murder of the five-year-old son of Carter’s ex-girlfriend. The child, while tied to a chair, was doused with gasoline and set afire.

During jury selection, the state successfully challenged for cause 16 potential jurors because of their views on the death penalty. Many of the excluded jurors were not unequivocal in their opposition to the death penalty, and despite qualms about it, they expressed a willingness to consider the sentence.

Carter was convicted and sentenced to death. He raised a number of issues on appeal, including that the death qualification of the jurors in his case — and the court’s exclusion of 16 jurors for expressing opinions against the death penalty or hesitation to impose a sentence of death — violated the Sixth Amendment’s guarantee of an impartial jury.

“It was one of the many issues raised by Mr. Carter in his Louisiana Supreme Court proceeding and to us, it was the one most interesting,” said Ellsworth, who, working with associate Nathaniel Boyer, came into the case to supervise and coordinate the petition for certiorari in the U.S. Supreme Court.

“When we started digging into the issue, it became apparent there is this disconnect between the old framework for death qualification of jurors and way the Court more recently has looked into original intent when examining Sixth Amendment issues,” she said. “It struck us it may be something that could get both liberals and conservatives interested in reexamining the issue.”

G. Ben Cohen, of counsel to the Capital Appeals Project, had written about the Sixth Amendment issue at least three years earlier and was looking for an opportunity to raise the issue, added Boyer. “It ended up being a very good partnership,” he said.

Re-examine the framework

In Carter v. State of Louisiana, Ellsworth, counsel of record, asks whether justices should re-examine the framework for death qualification of jurors “because the Court announced that framework decades ago without any consideration of, or foundation in, the Framer’s intent in protecting a defendant’s right to an ‘impartial jury’ in the Sixth Amendment.”

The Court started building its framework in 1968 in Witherspoon v. Illinois. The Witherspoon case held that the state could only exclude jurors who “made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.”

However, the Court muddied the test somewhat in 1980 in Adams v. Texas when it held “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Since the Adams language differed from Witherspoon, the Court took up the question again in Wainwright v. Witt in 1985 and repeated the Adams language. The test, known as the “substantial impairment” test is what is used today.

“In the 27 years since Witt was decided — and while the Court has refined much of its Sixth Amendment jurisprudence to ensure that it aligns with the Framers’ understandings — the Court has never examined whether there is any historical support for its death-qualification standard,” writes Ellsworth in the petition. Instead, the Court has said its standard seeks to balance the interests of the defendant against the interest of the state. However, Ellsworth adds, the balancing approach does not result in juries that are balanced in their attitudes towards the death penalty, and large categories of citizens are excluded which results in a skewed jury.

One of those excluded categories has filed an amicus brief supporting Carter. The “I Want to Serve” organization is a coalition of citizens, churches, church conferences and others who say they are being excluded on the basis of their religious beliefs in violation of their First Amendment right to freely express their religion.

“Prosecutors use membership in a particular religious group (for example, Catholics) as a proxy by which to strike jurors out of fear that they will prove unwilling to impose the death penalty,” writes C. Vincent Maloney of Perkins Coie in Chicago for the coalition.

Skewed towards death

The Framers saw the jury as a “bulwark” against the machinery of the judiciary, according to Ellsworth’s petition. “At base, the notion of striking a juror because of his opinion on the propriety of the law was entirely foreign to the nation’s founders,” writes Ellsworth. “In fact, it was expected that the jurors would follow their conscience and render a verdict that was against a law they deemed unjust — this was at the heart of the impartial jury as understood by the Framers.”

And at common law, the striking of potential jurors for bias was limited to bias toward a party, adds the petition.

The state of Louisiana counters that the death qualification standard was the end result of the Court’s consideration of the Framers’ understanding of what constitutes an impartial jury. It argues that the Framers did not advocate the concept that one must “take the juror as he stands.” That concept, taken to its logical extreme, would result in no qualification of jurors in their ability to follow the law in consideration of the death penalty.

Sentencing scholar Douglas Berman of Ohio State University Moritz College of Law called the Carter petition “intriguing.” In general, he said, it is a “very healthy thing” for lawyers and other troubled by certain doctrines to ask the Court’s “would-be originalists” where their principles take them.

“To me, the most forceful way to tell the story is this is un-originalist and bad doctrine,” he said. “It doesn’t hew to the Framers’ understandings and those concerned about that should be drawn to the question, and others should know that death qualification builds some bias into the system. That combination may be the best basis for hearing arguments to reconsider those precedents.”

And there is social science showing that death qualification skews the jury. In 2010, a study was published in the Journal of Applied Social Psychology that examined whether death qualification systematically excluded jurors based on religious characteristics, justice philosophy, cognitive processing and demographics.

The study found that Catholics and those higher in “devotionalism” were more likely to be excluded while those who interpreted the Bible literally and who scored higher in fundamentalism were more likely to be death qualified. Women and racial minorities were more likely to be excluded from juries. And the more someone agreed that “murderers should be killed,” the more likely he or she would be death qualified.

“The social science research pretty consistently found defendants are hurt by the death qualification framework,” said Ellsworth. “We think it would be a real benefit to the criminal justice system as a whole not to exclude large communities.”

Berman believes it is a “uniquely exciting time to look at bad doctrines, whether you’re a prosecutor or defense attorney, and say to the Court, ‘The world has changed for lots of reasons and here is why you should rethink these precedents.’ And that’s especially when you can make an originalist argument and also an argument the doctrine we know now makes for very bad policy. Those are exactly what clerks should be seeking in the cert pool without waiting for a circuit split.”

Marcia Coyle can be contacted at mcoyle@alm.com.