Some Progress in Jury Selection
The trial of Robert Kenneth Stewart – who admits shooting ten people in a Carthage nursing home, killing eight and wounding two – is well into its third week of jury selection.
The court still needs to find two more alternate jurors acceptable to both sides before the case can move to Carthage. Senior Resident Superior Court Judge James M. Webb denied a defense change of venue motion based on pretrial publicity, but ruled jurors would come from Stanly County and be bused to Moore County.
Twelve jurors and two alternates are waiting for the phone call to report back to the Albemarle courthouse, but their wait is longer than many thought. Because this trial could be lengthy, Webb called for four alternates – people who hear all the evidence, but only join the jury and deliberate if circumstances require replacement of any regular jurors.
"The jurors may receive only two hours notice to report," Webb said Tuesday. "I hope it will be later today."
Only two alternates were selected in three days of voir dire, a process where prosecution and defense attorneys take turns asking possible jurors questions. So far over 30 possible alternates were rejected in one way or another.
Jurors can be challenged “for cause” when their answers show strong preferences either for life or death sentences. All complete questionnaires that give lawyers on both sides some idea of where they stand. It is essential to seat jurors who can return decisions based only on what they hear and see in court.
One after another fails that test.
“I don’t think it’s for me to decide if somebody lives or dies,” one man said. “It’s a call I wouldn’t want to have to make.”
Webb and attorneys have a tough time getting candidates to use what the legal profession calls “the magic words” – either that their views “would substantially impair” rendering a death sentence, or with giving a life sentence to somebody convicted of willful, deliberate first-degree murder.
Stewart faces eight capital charges of first-degree murder, two charges of attempted first-degree murder and a host of lesser charges stemming from a Mar. 29, 2009, shotgun rampage through Pinelake Health and Rehabilitation Center shooting old people in wheelchairs.
His deadly spree came to a sudden end when Justin Garner – a lone police officer – confronted him in a nursing home hallway. Gunplay ended with shotgun pellets in the officer's leg, and Stewart on the floor with a chest wound, under arrest.
North Carolina law sets life without parole as the punishment for first-degree murder. Few appear to know that, or to understand that a death sentence requires the state prove beyond a reasonable doubt one or more “aggravating factors” and, in addition, prove they are “not outweighed” by “mitigating factors” – reasons death would not be the appropriate punishment.
The course of capital trials is complex, with separate sessions and verdicts. The first is for guilt or innocence. Defense lawyers Jonathan Megerian and Franklin Wells admit Stewart did all the killing and the other things charged. They will say he’s not legally responsible based on mental health grounds like drug reactions.
Prosecutors Peter Strickland and Tiffany Bartholomew are asking for death, and will show the jury nightmarish photographs of bloody bodies from pictures taken at the scene and during autopsies. Both sides warn jurors about these images, asking whether they can stand to look at them as jury duty will require.
“I’ve worked in health care for 11 years,” one nurse said. “I’ve seen a lot.”
She was well familiar with drugs like Ambien and Lexapro the lawyers say will play some part in the case. At one time, she’d considered entering psychiatric nursing. The defense used one of its three remaining “peremptory” challenges to keep her from being alternate number two.
Each side got a limited number of those, which they can use to keep people off the panel without saying why. As a result, they ask and ask again questions designed to trap out “the magic words” to let them challenge undesirable jurors for cause and not have to use up peremptories.
Trouble is, most people have made up minds about capital punishment. Either they don’t like it and would never recommend death, or they see it as the only just penalty for what Megerian frequently describes as “willful, intended, meant-to-do-it, intentional, planned ahead of time, cold-blooded murder.”
He’s counting on a not guilty verdict, he tells jurors – but “if I lose the case” wants them all to understand that they only get to the second, punishment phase if they do convict Stewart on one or more “cool state of mind” premeditated murders.
At that point, he wants jurors that start that phase presuming a life sentence is the right penalty for first-degree murder – or murders.
Strickland follows much the same path as he leads off questioning with new candidates, giving examples of the sort of thing that would aggravate a first-degree conviction to the capital level.
“I’ll say this, that under the law of North Carolina the death penalty is the appropriate punishment for some – but not all – first-degree murder,” Strickland will say. “The state would have to prove some aggravating circumstance that would make this worse. If the killing was done to get life insurance proceeds, or killing a police officer in the performance of his duty – though those don’t apply in this case.
“The state has to prove beyond a reasonable doubt to all twelve jurors that there is some aggravating circumstance that would apply. If you and other jurors found the defendant guilty of some first-degree murder charge – and we are at that second phase, the sentencing phase – could you return a sentence of life in prison even if you had convicted the defendant of first-degree murder?”
The language is awkward, but the lawyers have to use it. The process is complicated by the fact that most appear to think death the presumed sentence for killing on purpose, whether they oppose capital punishment or applaud it.
Alternate selection continued following noon break Tuesday with half the required four yet to be selected.
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