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Austin Texas is one of several states that provide for “death qualification” of juries that hear and render decisions in “capital” cases. That is, in order to serve on a Texas jury that hears a case concerned with rape, murder, kidnapping, or armed robbery, a person must believe in capital punishment. Professor Walter Oberer, formerly of the University of Texas law school, raised the question, in an article in the Nation last spring, whether such practices constitute a denial of fair trial to the defendant on the issue of guilt. He drew two conclusions, that the question had never been squarely presented to any court, and that due process is not a static concept, so that when the issue is presented, the testimony of expert witnesses from psychology may be relevant. The question Oberer raises is a legal one and can be answered only by the courts. But behind the legal _question lies a psychological one: Do people who believe in capital punishment differ from people who have scruples against .capital punishment in other psychological characteristics so that a jury composed only of people who believe in capital punishment would be biased against the defendant? In an effort to answer this question, and thereby perhaps to help the courts answer theirs, a research team of lawyers and psychologists at the University of Texas has gathered information from more than 200 adults, mostly junior and senior college students. Five capital cases were simulated; brief written descriptions were prepared of the facts presented to the jury in each case. Each person was asked to assume, in each of the five cases, that he was a member of the jury and to reach a decision of guilt or innocence. He was asked to indicate the degree of confidence that he had in each of his decisions. He was asked the question the answer to which forms the basis of a “challenge for cause” in a capital case, “Do you have conscientious scruples against the death penalty, or capital punishment for a crime?” Each person was also asked to agree or disagree with a series of statements, of which these are examples: “The district attorney’s interpretation of the facts in a criminal case is usually more reliable than the defense lawyer’s.” “If two witnesses gave conflicting testimony in a criminal case, I would probably believe the witness for the prosecution rather than the witness for the defense.” “If I were a member of a jury, I could Dr. Cody Wilson, a social psychologist, is associate professor of educational psychology at the University of Texas. never vote ‘not guilty’ for a man whose defense was insanity.” “The plea of ‘not guilty by reason of insanity’ is a loophole that allows many criminals to escape punishment.” The number of statements similar to the first two that the subject agreed with was used as a measure of the tendency to be biased in favor of the prosecution. The number of statements similar to the latter two that the subject agreed with was used as a measure of the tendency to be biased against insanity as a defense plea. Finally, each person was asked to assume the jury had agreed upon a verdict of guilty in each of the simulated cases. Now he was asked to recommend an appropriate punishment. The allowable punishments ranged from suspended sentence to life imprisonment but did not include the death penalty. THE RESEARCH SHOWED that people who believe in capital punishment differ from those who havescruples against capital punishment in several characteristics related to jury performance: People who believe in capital punishment ate more likely to judge guilty in response to the cases than are people who do not believe in capital punishment; People who believe in capital pun Austin The Texas movement for abolition of capital punishment has gathered some momentum. The society for this purpose has 450 members, and research relevant to it has been coming along. About 75 people attended the society’s meeting here in connection with the Texas Social Welfare Assn. convention and heard about new data that tended to show that poor defendants, especially Negroes, are likelier to be executed in Texas than better off defendants. Dr. Rupert Koeninger, a professor of sociology at Texas Southern University, presented an analysis of 80 persons from Harris County who have been executed in Texas since 1924. Fifty-four were Negroes, 26 were whites. Not a single white person has been executed for an offense againit a Negro in a case from Harris County since 1924, but of the 80 persons executed, 37 were Negroes executed for offenses against whites. Whites were dispatched for offenses against other whites in 27 cases; Negroes, against other Negroes, in 16. ishment are more confident of the correctness of their judgments of guilt and innocence; People who believe in capital punishment are likely to assess a more severe punishmenteven without the death penaltythan are people who have scruples against capital punishment. People who believe in capital punishment are more likely to be biased in favor of the prosecution and against the defendant; punishment are more likely to be biased against insanity as a defense than are people who have scruples against capital punishment. If we assume that the observed relationships hold among the adult population at large \(and there is no reason for thinking clude that a jury selected by systematically excluding people who have scruples against capital punishment is biased in the direction of being more likely to bring a verdict of guilty, being more confident of this decision of guilty, favoring the prosecution in opposition to the defense, being hostile toward the plea of not guilty by reason of insanity, and assessing a more severe punishment when the death penalty has been excluded from consideration. IF THE EXISTENCE in juries of such systematic biases against the defendant constitutes denial of fair trial, then we are violating one of our most cherished legal traditions with our current jury selection procedures in Texas. The ‘per’son accused of a capital crime is not getting the fair shake to which we are all entitled. No Latin-Americans from Harris County were executed during this 30-year period. Dr. Koeninger said that other research he has conducted also shows that LatinAmericans in Texas are executed less frequently and get out of prison more quickly than citizens of other ethnic backgrounds. Dr. Koeninger expects to complete soon his computerized analyses of all executions in Texas for the last four decades. On the basis of his studies at this stage, he has concluded that “There is some kind of class or ethnic punitiveness” at work in Texas executions. In capital cases, accused Negroes are more quickly convicted and condemned Negroes are more quickly executed, so that “Justice is swifter for the Negro , than it is for the white,” he said. \(“Is it justice?” someone asked him from the audience. He didn’t know, but “that’s Dr. Cody Wilson, a professor of educational psychology at the University of Tex November 27, 1964 5 IMPARTIAL JURIES? Cody Wilson The No-Death Penalty People