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del.icio.usMurder trial jury shaped by death penalty issue
BY RON SYLVESTER
The Wichita Eagle
After a capital murder conviction in Kansas, prosecutors must prove one of the following "aggravating factors" before a jury can consider the death penalty:
• Committing murder with a previous conviction of murder or aggravated battery or other crimes that caused serious physical harm
• Murdering, or creating the risk of death to, more than one person
• Murder for monetary gain
• Murder to avoid arrest or prosecution
• Murder in an especially heinous or cruel manner
• Murder while serving a prison sentence on a felony conviction
• Murder for hire
• Murder of a witness
Source: KSA 21-3439
How jurors decide the death penalty is a controversial issue that has sparked debate from Kansas trial courts to the U.S. Supreme Court.
It's no wonder that potential jurors find it difficult to understand.
The most lengthy explanations at this week's jury selection for Ted Burnett's capital murder trial focus on the process of imposing the death penalty.
Burnett, charged with killing 14-year-old Chelsea Brooks, could face death if convicted. Because he is innocent in the eyes of the court, his public defenders say they're uncomfortable explaining the law.
But lawyers say they have to discuss capital punishment with jurors to know if they can be fair.
Two trial phases
Capital murder trials have two parts. In the first portion, the state must prove guilt. A unanimous verdict must be reached to avoid a mistrial.
If the jury convicts on a capital offense, the trial moves to a second phase to decide if the death penalty is warranted.
In this portion, the rules change. Some rules of evidence are relaxed and a unanimous verdict is required only for a death sentence. A single juror who opposes a death sentence can yield a sentence of life in prison.
Most jurors called to court this week told lawyers they didn't know that.
"Do you think it's fair that life only takes one vote, while death takes all 12?" public defender Mark Manna asked one woman Wednesday.
"I think that's fair," she said.
During the penalty phase, Kansas law requires the state to give reasons a crime rises to a capital offense.
These are called aggravators -- factors "which increase the guilt or enormity of the crime or add to its injurous consequences," Judge Ben Burgess explained.
They include multiple murders or killing in particularly cruel manner. The state must prove at least one aggravator.
"We've got a list. We can't make them up," Deputy District Attorney Kevin O'Connor told jurors. "The fact that she's a 14-year-old girl (who was killed) is not an aggravating factor."
The defense may provide evidence -- called mitigators -- that life in prison, without parole, would be more appropriate.
"These aren't defenses: They wouldn't justify or excuse the crime," Manna said. "They might be something that just explains his behavior or his background. And mercy itself can be a mitigator."
Weighing both sides
Jurors must be able weigh the aggravators against the mitigators.
That's a tough concept. The Kansas Supreme Court ruled that Kansas law, which required mitigators to "outweigh" aggravators, gave prosecutors an unfair advantage. But the U.S. Supreme Court upheld the law. In both courts, a single vote decided the rulings.
In cases such as Burnett's, jurors decide how much weight to assign either set of circumstances.
"No one is going to tell you how to weigh them," O'Connor told jurors.
Some say they can't do that.
During the first three days of jury selection in Burnett's trial, Burgess excused 10 people who said they could never vote for the death penalty.
The judge also dismissed three people because they said they would vote for the death penalty without considering any mitigating evidence.
In the first three days of jury selection, 17 jurors passed the first round.
A pool of 42 is needed. From that group, lawyers on both sides can strike up to 14 for any reason -- other than those protected by law, such as race or gender -- to leave 12 jurors and two alternates.
Jury selection is expected to take a week or more.
Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com.
