Following nearly eight hours of voir dire, with Circuit Judge Bynum Gibson asking most of the questions, a jury was selected Thursday for the Daniel Pedraza capital murder trial. But, Pedraza’s defense team made a standing motion to quash the jury panel, because, they said, they were not permitted to question potential jurors about their opinions on the death penalty. Gibson handled the death penalty questions.

Voir dire began slowly at 9 a.m. with two potential jurors questioned in the jury room rather than the courtroom.

Birc Morledge

Posing a hypothetical set of circumstances in which someone knowingly committed a murder without regard to human life, Birc Morledge, a member of Pedraza’s defense team, asked the two potential jurors what are their feelings about the death penalty being the only appropriate sentence under that set of circumstances.

Tenth Judicial District Prosecutor Thomas Deen objected to the question saying the two prospective jurors couldn’t possibly answer that question unless they knew the aggravating and/or mitigating factors.

“What he states is simply a guilt issue…,” Deen told Gibson. “That’s just guilty or not guilty; that does not remotely address the factors that should be considered in setting a punishment.”

Responding to the objection, Pedraza’s lead counsel Jeff Rosenzweig said Morledge was asking a hypothetical question with a hypothetical set of circumstances to determine the prospective jurors’ attitude toward the death penalty.

He said it is specifically permitted by Morgan vs Illinois, a 1992 case in which the U.S. Supreme Court considered challenges to the selection of jurors who would automatically vote to impose the death penalty on a defendant convicted of a capital offense. In a 6-3 decision, the Supreme Court held that a defendant facing the death penalty may challenge for cause a prospective juror who would automatically vote to impose the death penalty in every case.

Gibson allowed Morledge to continue in order to hear the type and nature of the questions the defense planned to ask.

“If you’ve found a person guilty and he has no legal excuse or justification for what the hypothetical person did — killed an innocent victim — what are your feelings about the death penalty being the only appropriate punishment?” Morledge asked.

Both of the potential jurors said life without parole would not be an appropriate punishment under that hypothetical set of circumstances.

“If you’re going to allow questions to be posed like that every time there is no sense in death qualifying this jury,” Deen said, adding that it was disingenuous of the defense counsel to ask potential jurors whether they would consider death the only possible punishment without discussing aggravating and mitigating evidence.

“I think the question is disingenuous and I ask that you not allow it in the future when I object again,” Deen said.

Gibson excused both of those jurors but told Morledge his questions were leading. He said Morledge was simply trying to get the jurors excused for cause.

“The court was allowing you to ask the questions in the manner in which you did, overruling the state’s objections, to see how this would proceed in the event I did not place reasonable limitations…,” Gibson said.

Pointing out that it only cost two jurors, Gibson said sometimes you let the attorneys go on the first round so the court has a basis on which to rule.

“I let everybody have a bite at the apple when the cost is not that great,” Gibson said, “Here, the cost was just two jurors… The questions in the future cannot, to any degree, misrepresent the process or I will ask all the questions on voir dire, which I have authority to do and now have justification to do, now that we see the questions that are asked.”

Rosenzweig said they have the right, under the Morgan decision, to ascertain whether jurors favor the death penalty and it has to be done through voir dire.

“We’re trying to get their core beliefs… which we’re entitled to do,” Rosenzweig said.

Gibson said there would be no “leading” questions. “I’ll decide,” he said, “whether I will allow any questions or whether I will do them all on the death penalty aspect.”

After they returned to the courtroom, where Gibson called six more potential jurors, Gibson did not allow Morledge to ask death penalty questions. He did it himself.

Gibson questioned the jurors on a number of issues, such as their ability to follow the law, the presumption of the defendant’s innocence unless he is proven guilty, and the death penalty.

He excused another because she said her position on the death penalty would affect her ability to impartially consider the evidence.

“I don’t feel that I have the right to be either the giver or taker of life,” the woman told the court.

Deen followed up with his own questions on the death penalty. He read two statements, then asked the potential jurors which statement most closely represented their view on the death penalty:

A) “I believe the death penalty is appropriate in some capital cases and I could return a verdict of death in the proper case.”
B) “I do not believe the death penalty should be imposed but as long as the law allows it I could assess the death penalty in the proper case.”

Only one said “B”. She was struck by Deen.

Deen asked the prospective jurors if they would consider or disregard the testimony of a witness if they learned that witness entered into a plea agreement with the state.

He was referring to Pedraza’s wife, who pleaded guilty to permitting abuse of a child. In exchange for her testimony she faces a maximum 20-year sentence.

“Let’s say you decide I’m a naive prosecutor, that she had more to do with this than she’s letting on and she is getting off with permitting abuse with 5 to 20 (years in prison) while he’s looking at life or death….,” Deen said. “And, let’s say you come to the conclusion that I made a mistake in recommending that this be what happen to her. Would you take that out on me or would you take that out on my case? In other words, if I made that mistake, and she had more to do with it than she lets on, does that make him any less guilty if you find him guilty beyond a reasonable doubt?”

They all said they would judge her credibility based on her demeanor, how sensible her statement is and any corroborating evidence.

When Deen completed his questions of the six potential jurors, Gibson told the defense attorneys they could ask “non death penalty” questions.

“Just so I’m perfectly clear, I’m not allowed to ask any life or death qualification questions?” Morledge asked.

“Absolutely, I’ve asked them for you,” Gibson said.

Morledge asked the prospective jurors about pretrial publicity, bias toward immigrants, would they be affected by the fact that the victim was 2-year-old, and do they assume a defendant must have done something wrong if they are charged.

“Can you look at Daniel and promise him you would give him a fair trial?” Morledge asked.

They said they could.

After Morledge completed his questions, Rosenzweig made a motion to quash the panel and entered several other objections.

“First, from a procedural standpoint, I’m operating with a handicap because earlier, when you called counsel to the bench, I asked for permission to approach and you specifically said only the counsel (doing voir dire could approach the bench),” Rosenzweig said. “So, neither Mr. Leonard nor I were able to hear your ruling and we don’t know what your rulings were and Mr. Morledge was having to conduct voir dire and listen so he hasn’t been able to brief us as to exactly what your rulings were. I would ask that you first, permit us, even if we’re not doing the voir dire, to approach so we can know what’s going on in the case because I don’t have any idea.”

“I’ll take that under advisement,” Gibson replied.

“Your honor we also move to quash this entire panel on several grounds,” Rosenzweig continued. “Your honor, by your calling it a death penalty trial and you ask the questions as to whether they should give the death penalty but you don’t ask them any questions as to whether they could give life….”

“I ruled on it and explained my reasons and the record was made up here (at the bench),” Gibson said. “I’ve gone through all this.”

Rosnezweig told Gibson his questions were insufficient.

“That’s an appellate decision,” Gibson said, “you’re not going to dissuade me of that and I’m not going to change my ruling.”

“Your honor, I understand, but for the record I have to say it again because this is what Morgan requires.”

“Well you don’t have to say it 10 times.”

“Well, I think I do or the Supreme Court will accuse me of waiving it.”

“Say it 10 times?”

“Yes, your honor.”

“I was hoping you would say that.”

“Anyway, your honor, I’m just trying to make the record and make sure that…,” Rosenzweig began before Gibson cut him off.

“I’ve never had a problem with that but the court has control over the timely proceeding and whether a witness or lawyer is simply being repetitious and filibustering,” Gibson responded. “And in this case, you’ve mentioned Morgan several times and I’ve made the decisions that I’ve made and there’s no point in beating a dead horse. The questions that you all pose, I’ve accepted a couple of them; I rejected the rest. (In) the next panel, (Deen) will not be asking many of the questions that he asked.”

Moving on, Gibson asked Rosenzweig if he accepted the next potential juror or did he plan to use one of his strikes.

“Your honor, I haven’t finished my objections yet,” Rosenzweig said.

“Your objections have already been taken care of up here at the bench,” Gibson said.

“Your honor, I still have more to come,” Rosenzweig said. “We move to quash the whole panel.”

“I’ll give you a couple of minutes,” Gibson responded.

“Thank you, your honor. I’ll move fast,” Rosenzweig said. “You say you were relying on the Miller case. The Miller case said it was not abuse of discretion because they had a questionnaire. We have no questionnaire. You denied us a questionnaire so we need the voir dire process to ascertain beliefs. On this particular panel, the state was allowed to do the life-death voir dire and the defense was not.”

Rosenzweig also made some objections to Deen’s comments in voir dire and again objected to Gibson’s use of the phrase, ‘this is a death penalty case.'”

“We also object to the court’s use of the phrase ‘this is a death penalty case’ because it implies that the death penalty is inevitably going to be an issue…,” Rosenzweig said. “Again, I reiterate our request that all counsel participating in voir dire have the opportunity to come up (to the bench, during side bars) so that we can hear what your rulings are.”

“Your time is up,” Gibson said, then asked the defense to make a decision about the prospective jurors seated before them.

“You’re denying our motion to quash the panel?”

“Yes,” Gibson said.

“I just want to make sure the record is clear that you denied it,” Rosenzweig said.

“I have let you go on to demonstrate for appellate purposes how repetitious you are,” Gibson said. “And, I think I was wise in doing that because I’ve revealed on the record just how much filibustering and repeating that I’ve had in this case. The appellate courts, in reading these transcripts, can make their own judgment…”

With respect to the next potential juror, Gibson told the defense again to accept him or use a strike.

“Good for the defense, your honor,” Morledge said.

Deen accepted him as well.

“This process started at 9 a.m. and it’s now 12:30. We have our first juror,” Gibson said. “That needs to be in the record.”

Five hours later, all 12 jurors and the alternates were seated.

The trial resumes Monday morning.

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