ACLU Urges Supreme Court to Uphold Fairness in Juror Selection for Death Penalty Cases

News Release: 
Wednesday, November 25, 2009

June 4, 2007 update: The U.S. Supreme Court voted 5-4 to reinstate Cal Coburn Brown's death sentence. The Court's minority opinion labeled the ruling as a departure from previous decisions that allowed jurors opposed to the death penalty to serve on juries.

The American Civil Liberties Union today urged the United States Supreme Court to uphold established constitutional and legal procedures that help to ensure fair jury selection in death penalty cases.

The Court will hear arguments today in the case of Cal Coburn Brown, who was sentenced to death in Washington state in 1993. The 9th U.S. Circuit Court of Appeals overturned the death sentence in 2005, ruling that a potential juror had been incorrectly kept from the jury that later found Brown guilty and imposed the death penalty. The ACLU filed a friend-of-the-court brief agreeing with the federal appeals court ruling and arguing that the state court did not properly apply established federal law regarding the qualification of jurors for a capital case trial.

“Death is the ultimate punishment. The stakes can’t get any higher, so it is of utmost importance that courts pick jurors fairly and in accordance with the law,” said ACLU Legal Director Steven R. Shapiro.
The standard for selecting jurors in capital cases is whether they can put aside any personal beliefs about the death penalty and fairly apply the law.  That standard was not followed in this case, according to the ACLU.  Instead, the prosecution was improperly permitted to exclude “for cause” a potential juror who stated that he would consider a defendant’s future dangerousness in deciding whether to impose the death penalty, but that he would follow the court’s instructions on the law and could vote for the death penalty in an appropriate case even if the alternative were life in prison without parole.

“If courts are allowed to dismiss every person who thinks carefully and conscientiously about the death penalty, it would undermine constitutional protections for fair trials in capital cases,” said John Holdridge, director of the ACLU Capital Punishment Project.

The ACLU brief was written by Holdridge, Shapiro, and Brian W. Stull of the national ACLU, ACLU of Washington Legal Director Sarah Dunne, ACLU of Washington Staff Attorney Nancy Talner and Larry Yackle of the Boston University School of Law.

The ACLU’s brief is available at:


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