Colorado Rights Blog

ACLU of Colorado By: ACLU of Colorado 4.9.2015

The real death panels: The heavy burden of picking a jury for a death penalty trial

The verdict is in for the Boston marathon bombing trial.  Dzhokhar Tsarnaev was found guilty.  Because the prosecution is seeking death, they will now move onto the penalty phase of the trial.

Death penalty trials are different than other first degree murder trials.  When death is not a sentencing option the jury will come to a verdict and then the judge will hand down a sentence.  However, with a death penalty trial the jury then moves into the penalty phase.

In this phase it is no longer about the facts of the case, but instead about the juror’s own personal moral judgment about what the appropriate penalty should be.  The jurors will be given information by the prosecution on aggravating factors having to do with the crime, which allow them to consider the death penalty.  These aggravators are determined by the state’s statute and could include things like murdering a witness or killing more than one person.   The defense will provide mitigating factors, which could be anything they find relevant which could possibly lessen the severity of the punishment.  Mitigating factors could include the defendant’s mental illness or age at the time of the crime. The jury’s job then is to decide whether the mitigation outweighs the aggravation and whether to issue a death sentence.  In most states the jury has to be unanimous in its decision.

Here in Colorado we have our own high profile death penalty trial about to begin on April 27.  I had the opportunity to sit in on jury selection, also known as voir dire, this past week.  It is a fascinating, calculated process honed and perfected by attorneys.  The prosecution, defense and judge are trying to choose jurors who can be impartial.  They must be able to put aside anything they have heard about the crime or the defendant and any preconceived notions or biases they may have about guilt or innocence as well as whether the death penalty should be applied or not.

In the Holmes trial 9,000 people received jury summons.  The initial pool was so big because of the high profile nature of the crime and the judge’s desire to have the most robust starting point before dismissals began.  Jury selection was divided into phases which included a questionnaire, individual interviews and a group questioning phase.

As I sat in the gallery I watched the judge give instructions and explain the best he could about what it will mean to be a juror in a capital case.  He asked and answered questions and then the defense and prosecution were allowed their turn.  The process for the attorneys is very strategic.  They study and practice, carefully wording each question they ask to each potential juror.  For the Holmes trial the whole process will have taken three months to complete.

I couldn’t help but think how the enormity of  jury selection and the trial yet to come could have all been avoided if the prosecution had accepted Holmes’ plea of guilty for a sentence of life in prison without the possibility of parole.  According to the Associated Press, pretrial costs have already reached $2.2 million dollars.  However, the trial proceeds and jury selection continues.

Some may ask why such a long process is necessary, but many may argue that putting together the best possible jury is one of the most important parts of a trial, especially when the death penalty is being sought.  Ultimately, it is the jury who will make the decision of guilt or innocence and then if found guilty, they will decide whether the defendant will receive a punishment of life or death.



  • Tuesday Olson knew her pregnancy was in trouble and tried to access hospital care as soon as possible. But there was a problem: she was in jail. This is her story.
  • It’s time to end the death penalty in Colorado. Family members who lost loved ones to murder speak out against an unjust and broken system.

  • One year ago, thousands of Coloradans marched in a historic display of resistance. At the ACLU of Colorado we carried that spirit throughout the year, fighting on many fronts for civil liberties. We won’t stop now.

  • By canceling DACA, Trump has put 800,000 young people at risk of losing their jobs and being deported from the only country they know as home. Passing the bipartisan Dream Act would protect them. We asked four Dreamers why the Dream Act is important to them and their future.