'Death is different,' and so is jury selection for Dontae Morris

Jury selection begins today in Dontae Morris’ trial on charges of murdering two Tampa police officers.
Jury selection begins today in Dontae Morris’ trial on charges of murdering two Tampa police officers.
Published Nov. 4, 2013

ORLANDO — Starting today, Dontae Morris will experience one of the American justice system's strangest and most consequential rituals: choosing a group of strangers who could decide whether he lives or dies.

Jury selection begins this morning in Orlando for Morris, accused of murdering five men in the summer of 2010. The trial now getting under way involves the most heavily publicized of his alleged crimes, the killing of two Tampa police officers.

After a jury of Orange County residents is picked — Hillsborough Circuit Judge William Fuente is seeking people who have not been exposed to media coverage of the case — arguments and testimony will take place in Tampa.

Morris, 28, already knows he will die behind bars. In March, he was sentenced to life imprisonment without parole for gunning down a rival, Rodney "Scarface" Jones, outside a Tampa nightclub. But if convicted in the coming weeks of fatally shooting the police officers, he can expect to die on an executioner's gurney with a needle in his arm.

"Death is different," the U.S. Supreme Court has held, an irrevocable punishment that must be applied according to its own rules. And experts say the process of picking jurors for a capital murder trial is different, too — more important and more rigorous than jury selection for any other kind of crime.

The biggest distinction is the most obvious one: The ethical magnitude of the decision jurors must make if they find Morris guilty. In Florida, a single jury decides a defendant's guilt and then, after reviewing additional evidence and hearing new arguments during a second phase of the trial, issues a recommendation to the judge for death or life imprisonment. Judges must give "great weight" to their advice.

These demands lead to a quest for a sort of super-juror, someone able both to grasp the legal complications of properly meting capital punishment and accept the responsibility of weighing a human life.

"Whether the person should die in prison or be executed — that is emotional. That is a moral decision," said Stephen Harper, formerly a capital public defender in Miami. The National Judicial College's handbook on capital cases warns judges that potential jurors may be "overwhelmed" when they learn they have been called to serve for a trial involving the death penalty.

The goal is 12 ordinary people who can exercise the virtues expected of jurors in any trial — impartiality, thoughtfulness, close attention to factual and legal details — with something like perfection. The standard is not always met.

Herman Lindsey, a 40-year-old South Florida man who was exonerated and freed in 2009 after spending two years on death row for a murder conviction, said watching the jury deliberate over the value of his life at his trial was dispiriting.

"The people who are going to decide your fate — you got to understand, they don't know nothing about the law. A lot of them don't want to be there. A lot of them are inattentive," Lindsey said.

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The state Supreme Court eventually reversed both his death sentence and conviction, ruling the jury's decisions were based on insufficient evidence.

The importance of seating a capable jury is clear in Florida, which has demonstrably failed in its administration of capital punishment more than any other state. Florida has seen 24 of its death row inmates exonerated in the past four decades, the highest number in the country.

An automatic appeals process for death sentences ensures intense scrutiny of jurors' verdict and how they made it. The state Supreme Court can and does reverse death sentences because a jury didn't weigh evidence mitigating against execution, such as mental illness or a troubled childhood.

Who, then, is the ideal death case juror?

That depends somewhat on whether you ask a prosecutor or a defense attorney. But both sides agree to a surprising extent on what makes a good choice, and say good choices begin by ditching stereotypes.

Swayed by Hollywood's depictions of the courtroom, some people think each side in a criminal case tries relentlessly to stack a jury with sympathetic stock characters. A defense lawyer looks for social workers and churchgoers; a prosecutor seeks veterans and retired cops.

Nonsense, say experienced lawyers. "The cookie cutter is not the best strategy for jury selection," said Bob Dekle, a former North Florida prosecutor who tried defendants including serial killer Ted Bundy.

Dekle recalls two capital cases in which he did not object to the selection of jurors who admitted they opposed the death penalty on religious grounds, but said they could set their personal beliefs aside and follow the law. In both cases, he said, they delivered convictions, and ultimately recommended death. One of them did so in tears.

From the opposite side of the courtroom, J. Marion Moorman has seen similar results.

"I have tried cases where I left retired police officers on juries, just because I liked the ways they were answering my questions," said Moorman, the former elected public defender for Florida's 10th judicial circuit. "And they have not disappointed me in the long run."

Defense attorneys want jurors who can remain rational and unbiased as they hear the details of wrenching acts of violence. Prosecutors want jurors whose reasoning will withstand the scrutiny of the state's highest judges. To some extent, their desires overlap. Dekle and Moorman both said they consistently sought out jurors who seemed "open-minded" and analytical.

"In death penalty cases, because of the emotional power of them, it's difficult to understand what their obligations are," said Harper, the former public defender. "You don't want somebody who has a response coming from their gut."

Critical thinking skills are especially vital in capital cases because jurors are legally obligated to consider lists of circumstances, laid out in state law, to guide their decision between death and life imprisonment if a defendant is convicted. (At least one aggravating circumstance, that the victim is an on-duty police officer, will apply to Morris if he is found guilty.)

But logic and law only take a jury so far. Some of the guidelines in Florida's death penalty statute are so vague as to be practically meaningless.

One aggravating circumstance is that a crime be "especially heinous, atrocious, or cruel," adjectives most people use to describe any premeditated murder. A mitigating circumstance the jury can consider is "the existence of any other factors in the defendant's background" that should spare him the death penalty.

These are meager road signs on what is probably an unmappable moral terrain. Who deserves to die? Of the hundreds of men and women who will face Morris in Orlando today, a dozen may soon be required to answer that question.

Peter Jamison can be reached at or (813) 226-3337.