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Duncan needs just one juror to avoid death

U.S. law requires unanimity at each of three trial stages

Betsy Z. Russell Staff writer

BOISE – Here’s how high the stakes are in the jury selection under way in the Joseph Duncan case: If one juror objects in any of three different votes, Duncan would be spared the death penalty.

That’s what happened in the case of Zacarias Moussaoui, the so-called “20th hijacker” from the Sept. 11, 2001, terrorist attacks. He’s serving a life sentence without possibility of release at the federal supermax prison in Colorado after a juror opposed the death penalty on the final vote in his federal trial.

Federal juries have reached the life-or-death decision point in 182 cases since 1988, according to the Federal Death Penalty Resource Counsel Project. Those juries chose life sentences 121 times, the death penalty 61 times. Three executions have taken place since 1988 under the federal death penalty.

“The idea is if there’s any doubt about imposition of the death penalty, the procedures should be designed to prevent its imposition,” said Richard Seamon, associate dean and professor of law at the University of Idaho. “Because of these stacked-up unanimity requirements, it really does just take one person to block the death sentence.”

Because of that, Seamon said, jury selection is “critical, it’s absolutely critical.”

In Duncan’s case, the largest pool of prospective jurors ever called in federal court in Idaho – 325 southern Idaho residents – was assembled in April. Prospective jurors filled out 47-page questionnaires that asked about everything from the bumper stickers on their cars to their views on the death penalty.

Prospective jurors then were called into court individually and questioned about their answers and views, with that process running for three days in April before it was put on hold for three months, then resuming last week. It ends today with the questioning of the final seven prospective jurors.

Three-quarters of the approved jurors still could be removed. On Wednesday morning, each side will be allowed to exercise peremptory challenges to dismiss an array of approved prospective jurors without having to cite any reason. That’ll get the group down to the 12 jurors who will hear the case, plus three alternates.

But it won’t be easy for the jurors to condemn Duncan to death. The sentencing trial will be divided into two parts, with two sets of deliberations. In the first, jurors must find unanimously, beyond a reasonable doubt, that prosecutors have proved Duncan acted intentionally. If the jury isn’t unanimous on that, the judge imposes a sentence of life without parole.

If intent is agreed on unanimously, the jury then must, by the same standard, agree unanimously on at least one statutory aggravating factor that’s required for the death penalty. Those include factors such as vulnerability of the victim and that the crime was especially heinous, cruel and depraved.

Again, if the jury isn’t unanimous Duncan would be sentenced to life without parole. But if the jury is unanimous, he’d be found “eligible” for the death penalty and the trial would move into its second phase.

In that phase, the government can present evidence of non-statutory aggravating factors, which in this case are victim impact and future dangerousness, while the defense can present mitigating evidence, such as proof of a troubled childhood or mental illness. Then jurors must agree unanimously on death as the sentence. If not, Duncan gets life.

“The decision to impose death is completely up to the jury, and the procedure is designed to put up a number of break points or safety valves,” Seamon explained. “So really, everything depends on this jury.”

More than 100 prospective jurors have been individually questioned so far. Many have struggled with their answers.

One juror, as she was being questioned in court, said, “I haven’t slept for two nights when I found out this was the case I was on.”

Throughout the jury selection process, U.S. District Judge Edward Lodge has emphasized to the jurors that serving on a jury, like military service, is a key way Americans can serve their country. It’s an honor, he said, accorded only to citizens in good standing.

Plus, he informed the prospective jurors, “the law never requires that any individual juror vote to impose a sentence of death.”

Jurors will be paid $40 per day, plus some expenses. They won’t be sequestered, but face weeks away from work and, for those who live far from Boise, home and family. Prospective jurors come from as far away as Twin Falls and McCall.

Many said they’d already talked with employers and looked into child-care arrangements. Said one: “When I think about even the possibility of being a juror, my stomach goes into a knot.” Yet, she told the court she was willing to take on what she views as “a very serious and heavy responsibility.”

Betsy Z. Russell can be reached toll-free at (866) 336-2854 or For more news from Boise go to
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