What exactly is the Colorado Method of voir dire examination? Does anybody have any written source material on it?

Nevermind . . .

Come on, you can't stop there now that you have us all intrigued! So what is it?

Well, I haven't quite figured it out yet. . . There are lots of seminars on it, but I haven't actually found any texts for public consumption.

Essentially, it's a way to pick a death-qualified jury that ultimately votes for life. The theory seems to be that you indoctrinate them during voir dire to "live and let live" so that each juror will not persuade any other to come to a unanimous decision.

Basically, it seems to be a soft-pedaled method of rigging a hung jury. BUT, I'm guessing mainly.

Okay, I have only skimmed the surface with this stuff.

Has anybody seen any seminar papers on the Colorado Method by David Wymore, ex public defender in Colorado?

One of us should.

This is fun!

Here's a link that seems more useful than others:

http://72.14.205.104/search?q=cache:5mVvnC8G_D4J:www.in.gov/pdc/test/members/dp/mats/fournet.pdf+%22Colorado+method%22+David+Wymore&hl=en&ct=clnk&cd=9&gl=us

I tried to get copies of seminar papers on this topic earlier this year, at the request of two fine TDCAA members. A good friend of mine who is a defense attorney has lectured on the subject.

I'll renew my efforts to obtain some copies of this information.

Sounds to me like an improper attempt to commit the jurors not to deliberate in violation of their oath.

I should have a copy by early next week of these materials. I can provide information on a recent federal case in which it is credited by the defense for working for them.

K. Schaefer, I'm emailing you for your mailing addy.

As for the other fine prosecutor who requested assistance in obtaining this material, I'll have it in snail mail to you as soon as I get it. Sorry it has taken so long.

Greg,
Can you send me a copy when you get it. Your office has my mailing address. Thanks
Lisa

Will do, Lisa! I know where to find ya!

DEATH PENALTY VOIR DIRE OUTLINE
THE COLORADO METHOD
BY
DAVID D. WYMORE
CHIEF DEPUTY PUBLIC DEFENDER
DENVER, COLORADO

I.
Introduction

Colorado's Death Penalty Statute, C.R.S. 1611103(2)(d), provides for a mandatory life sentence
if the jury's verdict is not unanimous.
Case law interpretation of the Colorado Death Penalty Statute requires, in order to insure
certainty and reliability in the death penalty sentencing scheme, that the trial court clearly
instruct the jurors concerning "the effect of their verdicts on the ultimate question of life
imprisonment or death." People v. Durre, 690 P.2d 165, 173 (Colo. 1984). In People v.
Tenneson, 788 P.2d 786 (Colo. 1990) the Colorado Supreme Court stressed the need that the jury
to be able consider any relevant mitigating evidence regarding defendant's character and
background and the circumstances of the offense. The Court also stressed the "irretrievably final
nature of the death penalty." The Court stated: "This concern for the reliability of a jury verdict
of death finds expression in United States Supreme Court decisions requiring that a jury's
determination to impose the penalty of death reflect the conviction of each juror...." The Court then imposed on the prosecution the burden of proving to each individual juror beyond a
reasonable doubt that mitigating circumstances do not outweigh aggravation. Tenneson also
supports the "Presumption of Life" instruction and the defense's extended listing of mitigating
factors in an instruction at the penalty phase. (See Tenneson, footnote 18, for examples).
Tenneson also stated that each individual juror must be convinced beyond a reasonable doubt
that death is the appropriate verdict.
The Court in People v. Davis, P.2d (Colo. 1990) (Case No. 87SA288, May 15, 1990), in a
tortuous manipulation of fact and law in order to uphold Mr. Davis' death sentence, still
reaffirmed essential voir dire principles. The Court reaffirmed that Mills v. Maryland, 486 U.S.
367 (1988) prohibits the requirement of unanimity as to mitigating factors prior to jury
consideration of them in the weighing against aggravation. The logical extension is that each
individual must consider whatever he or she believes to be mitigation, and the prosecution must then prove beyond a reasonable doubt to that individual juror that his/her concept of mitigation is not outweighed by aggravation, and further that death is the appropriate sentence to that individual juror beyond a reasonable doubt.
It is the job of the defense attorney to ensure that each individual juror realizes how the death
penalty statute really works, find the jurors most likely to give death and remove them, find the jurors most likely to give life in your case, and then teach them how to do it. In order to meet these task we have devised a system of voir dire that is hopefully effective and efficient.

II.
Mechanisms

Our system of voir dire involves a rating system of jurors on their death views alone. The
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purpose of the voir dire is to pick the juror most likely to give life and eliminate the jurors most
likely to give death. There are times when a lawyer will encounter a juror he/she feels will be good a guilt phase juror, but one very likely to give death in the event of conviction. In that
event, the juror is rated solely on their death views and removed if there are jurors with
lowerratings. Their death rating controls absolutely.

The primary mechanisms used by the Colorado Public Defenders in death voir dire are:

1. Questions designed to elicit the juror's true feelings concerning the death penalty, and
then to ascertain the degree of those feelings/beliefs in the juror and the factual
circumstances most likely to cause the juror to sentence to death or life.

2. A rating system of 7 (automatic death penalty or ADP) to 1 (a Witt excludable or WE).
We use plus (+) and minuses () because of the variety of responses and evaluations;
however, it has proven to be most functional to maintain as much structure in the rating
system as you can in order to arrive at agreement within the defense team.

3. Insulation and isolation techniques on all jurors, especially those jurors who are
expressing reservations or hesitancy about imposing the death penalty. It is necessary to
fragmentize the jury and empower the more compassionate jurors with the tools and
respectability necessary to give life. It is also important to defuse the attempts of the
adamant prodeath jurors on your jury, to browbeat or cheerlead hesitant jurors into a
unanimous death verdict.

III. Principles

1. Respectability: The lawyer must calmly create respectability for all views about the death
penalty if he wishes to know what each juror's views truly are. The lawyer must also
teach respectability for differing views among the jurors so that the strong protect the
weak.
2. Never allow the jury to believe that you are on a crusade against the death penalty or
angry with them for their views. It is just that death is inappropriate in this case.

3. Always do the Introductions, see V., below, with each juror of sequestered voir dire, or
each panel.

4. Trade off if you are tired.

5. Someone must write down accurately the responses to the questions about the death
penalty.

6. Each team member rates separately.

7. Always pick the jury by removing the highest numbers first.

8. Always try to remove 7's with cause first in the voir dire of panels.

9. Don't waste time on (WE's) if in a panel, you rarely can change their minds. Tell them
you know they won't be on jury, but you respect that of them.
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10. Always pick the jury according to death views only. Race, sex, guilt phase are irrelevant.

11. You must insulate and isolate the jurors. They must know at the end of your voir dire
that they can give life for whatever reason they wish and that decision will be respected
by Judge, DA, cops, victim family, other jurors, and community. They must also know
that their decision is a moral assessment, not necessarily explainable in logic, and it must
be reported by the juror and the foreman to the judge.

12. Use positive language. Give life. Life as severe punishment, etc.

IV. Rating System

1. Witt Excludable (WE). The person who will never give a death penalty and is vocal,
adamant, and articulate about it. This person we don't deal with that much in terms of
voir dire.

2. A person who is hesitant about saying they believe in the death penalty. They obviously
realize the gravamen of being asked to sit on the death jury and take seriously the life of a
human being. However, they do say they are for the death penalty. These people need to
be isolated and insulated and taught how to get out of the jury room. 2's can be intelligent
abstract thinkers or less intelligent but compassionate people.

3. Basically prodeath penalty. Able to quickly say, "I'm for the death penalty, and have been
for quite a while." They are, however, lacking in ability to express a real understanding as
to why, in fact, they are for the death penalty. The impression you receive from them is
that they are prodeath as long as someone else has the responsibility for imposing the
sentence. We call this a "kill problem." 3's don't necessarily propose the economic
argument or the deterrence argument for death. They are more sensitive to mitigation and
really wish to hear mitigation. Unlike 5's, 6's and 7's, they may be able to make an
argument against the death penalty if asked and are also readily willing to respect the
views and individual assessments of those who are more hesitant about the death penalty.

4. Pro-death. Comfortable and secure in the death penalty. 4's can tell you why they are for
the death penalty and feel it is a "good thing". They, however, wish to hear "both sides".
4's are more fence-straddling in voir dire when it comes to the penalty phase evidence.
They readily argue that there could be mitigation that calls for life even after conviction
of first degree, cold blooded, after deliberation murder. They are different than 3's in their
initial response of "comfort" level with death penalty and development of arguments in
its behalf.

5. Pro-death, vocal, articulate their support, less sensitive to mitigation than a 4, but more
than a 6. A five is a sure vote for death. The difference is that the five can formulate
perhaps 2 or 3 mitigators he/she might think are significant. A five would allow a
unanimousvote for life, but would vote for death on first ballot and remain with majority.
A 5 is more sensitive to the rights of other jurors in their assessments of mitigation and
would be less prone to "bulldog" than a 6 or 7. A five is also more susceptible to
"residual doubt" than a 6 or 7. Likes the DA.

6. A killer. Escapes ADP challenge because she/he can listen to a "perhaps" mitigation
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scenario and judge saves them. Concrete backer of death penalty. Only argument against
death penalty (really) is it's not used enough. Believes in personal economic burden to
them of life sentence for defendant and others and deterrence. Head nodder with DA.

7. ADP. If your client is convicted of first degree murder, they will then impose the death
penalty. Eye for an eye and everything else. Life with parole at 40 years is not really an
adequate sentence. Mitigation to them is manslaughter or self-defense. Hateful and proud
of it. They must be removed, hopefully, on cause, but at least with peremptory.
NOTE: Of course, specific aggravators and mitigators can cause you to rate someone who might
be a 5 to a 7, e.g., or vice versa, if it is your person they are going to kill or not kill. Also, pluses
and minuses are added due to the overall strengths and persuasiveness of the juror or their background.

V. Counsel and Defendant Introduction

1. Defendant Pleads Not Guilty to (Felony Murder, After Deliberation) NOTE: Use the
crux of your defense right here. e.g. if not after deliberation Residual doubt as to mental
elements. State that but only through voice intonations.

2. Part of my job is discuss your death views with you. Cart before the horse. Forced to talk
about penalty before guilt. No way do I want you to think that I believe defendant is
guilty of first degree murder. I would rather sit down now then leave with that
impression. Check for assurances (Individually 23 people).

3. Explain Procedure of Death Penalty Trial. This procedure should be done regardless of
who goes first. Experience has shown that many jurors confuse defenses such as heat of
passion or intoxication with mitigation. Heavy stressing of the elements of first degree
intentional, after deliberation murder, and the fact of finding guilt beyond a reasonable
doubt; those elements help weed out the ADP's. Caveat
a. No one is here to judge you about your death views.
b. The law never demands the death penalty in any case.

VI. Procedure

1. Only in the event of murder conviction, i.e., stress elements of first degree murder
a. strip all possible defenses

2. Then, a second trial as to appropriate penalty.

3. At that time solely up to jury, i.e., each member individually. Whether the penalty
should be:
a. life means 40 calendar years not 7, 10, 20, but 40 years due to community
pressure to reform the penalties. C.R.S. 1611103: mandatory jury be informed of
parole eligibility.
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b. or death by gas in the chamber/lethal injection.

The Second Trial Involves

1. Your own individual determination whether
a. Prosecution has proven to you beyond a reasonable doubt that at least one
aggravating factor exists;
b. Whether any mitigating factor exists in your mind;
c. Then, whether mitigating factors are not outweighed by aggravating factors
beyond a reasonable doubt.
d. Then, whether you feel death by gas or life in prison for at least 40 calendar years
is the appropriate penalty for you, beyond a reasonable doubt.

2. There is no formula for determining the appropriate penalty for you.
Appropriateness of death or life comes from your own unique experiences in life, philosophies,
backgrounds etc. . .
Appropriateness of penalty does not come from a fillinthebox factfinding process, but instead
from an individual moral assessment.

VII. Introductory Questions to Individual Jurors

NOTE: Hopefully after indoctrination that each juror is an individual, with unique experiences
and those perspectives are to be respected, the jurors should be ready to open up as to their
feelings about the death penalty Care should be taken to never introduce your attitude about the
penalty into the examination. Also attempt (and succeed) tonot have the judge read the Witt
standard to the panel. It is full of negative language and scares the jurors out of responding with their true views.

Another note of great importance is that the following questions must be asked and explored
with each juror to determine your rating of this juror as an A.D.P. (Automative Death Penalties)
or W.E. (Witherspoon or Witt excludable).

Cocounsel must write down exact responses in the
following areas of inquiry:
1. What are the jurors feelings about the death penalty?
2. How long have you had them?
a. have they changed over the years?
b. from what to what?
c. have you discussed them with others/put forward reasons why you believe the
way you do?
d. when you are explaining your feelings to others (at work, etc.) what do you say as
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your reasons?
3. Why do you have these feelings (i.e., ... the reasons)
a. deterrence
b. economic
c. eye for eye
4. Which type of cases came to your mind as appropriate for the death penalty? (Here you
find out if you are one of their categories)
5. Are there any particular categories of defendants you believe to be most eligible?
a. Ted Bundy
b. Baby murders
c. People who kill police
d. Unnecessary torture and pain

VIII. General or Individual Voir Dire (example topics for)

1. What do you think about a life sentence being 40 years without the possibility of parole
as the judge has instructed?
A. Do you believe him when he says that?
B. Is 40 years in prison without the possibility of parole a substantial penalty to you?
2. Do you believe that the death penalty is the ultimate penalty?
A. Do you believe that it should be used only when absolutely necessary
B. Any other situations where you feel the death penalty is appropriate?
3. The burden of proof during the first trial or trial on the merits is beyond a reasonable
doubt as to each and every element.
A. Before you would decide to vote for the death penalty would you demand from
the prosecution that level of convincing that it was the appropriate penalty?
B. You wouldn't want to send an innocent person to the gas chamber.
C. You can use unanswered questions or reservations about the evidence that was
presented at the first trial, in determining whether or not you feel the ultimate
penalty is appropriate in your mind on the facts presented.
D. If you had a lingering doubt as to whether was involved (or the degree of his
involvement) (based on the evidence presented at trial) (and if necessary to defeat
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objection) could you consider that lingering doubt as mitigation?
E. Understand, the law would allow you to consider that lingering doubt in
determining whether life or his death was the appropriate verdict for you.
(Lockhart v. McCree rationale for same jury).
F. In determining whether life or death, would you demand of the prosecution to
convince you that death is the absolutely right thing for you beyond a reasonable
doubt?
G. Think that is fair that the prosecution must convince you, and each of you
individually, that there exists no other appropriate verdict but death?
H. Do you realize that it is only the prosecutor who is asking for the death penalty?
The judge is not involved in deciding whether the death penalty will be asked for.
4. Do you believe that most people in the community favor the death penalty?
5. Do you believe it is your function to fulfill the community will, or to sentence Mr.
______ as an individual based on your own particular experience in life and background?
Defendant testifying at penalty phase:
6. If Mr. ______ testifies at the penalty phase.
A. Would you expect him to plead with you for his life?
B. Family members plead for life. How do you think you would receive this
testimony?
C. What if he maintains his innocence even after you have found him guilty?
D. Make you angry?
E. Discount his testimony?
7. What could a person say to you who is asking for his life? That couldn't be called
begging.
Racial Issues:
1. Defendant is
a. (Use all proper and then derogatory labels that may fit)
2. Victim is
a. White, Anglo
b. Occupation, etc.
3. Is being a (Hispanic) a factor that makes one more deserving of the death penalty?
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Page 27
4. Does the fact that Mr. Victim was white make his life more valuable than if had he been
Black, Chicano?
5. Does a white family suffer more from the loss of a father, husband, or brother than a
Chicano or Hispanic or Black?
6. Does any one believe that Blacks or Hispanics are more accustomed to violent death and,
therefore, the families suffer less?
7. If the court instructs you that a verdict in this case shall not be based on anger, passion,
prejudice.
a. Can you follow that law?
b. Do you believe that is the way it should be?
8. Mr. ______ has expressed concern and fear to me that a (Chicano) doesn't stand a chance
when a white security guard is killed. I've assured him that is untrue. Anyone feel that my
assurance to him may have been too quick for any reason?
a. Still see his concern:
�F�nWhite Judge
�F�nProsecutors
�F�nAppointed lawyers
�F�nMostly white jury
Insulation and Isolation Techniques For Use After Process Explained

IX. Juror's Bill of Rights

As a juror in a death penalty case, you have certain rights that jurors in other cases don't have.
The reason is that in no other case is a juror asked to fix punishment and in no other case is the punishment so final and extreme as death. Therefore, in a death penalty case, the law provides that each individual juror act as one individual judge on the fate of Mr. ____ and, therefore, provides that each individual juror has.

1. The right to decide for his/her self (yourself) whether the person lives or dies. The law
never requires a death verdict and is always totally satisfied with life without parole for
40 years, and, in fact, presumes that life is the appropriate penalty.

2. The right by their individual vote to give life, i.e., one vote for life means that life must
be given. Tenneson, Durre, Davis.

3. The right to give your own individual determination, i.e., to demand your own level of
convincing, as to whether an aggravating factor has been proven to you, beyond a
reasonable doubt. For if you, yourself, are not convinced beyond a reasonable doubt an
aggravating factor has been proven, the law demands you vote for life.
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Page 28

4. The right to assign or give whatever weight you want to any mitigating factor of factor(s)
you find to exist. What may be of great importance to you may not mean anything to the
juror next to you, but the law gives you the right to assign it whatever weight you want
free of criticism from judge, prosecutor, victim, family, other jurors.

5. The right to decide for yourself whether any one mitigating factor is sufficient for you to
vote for life regardless of the number of aggravating factors found to exist beyond a
reasonable doubt, or regardless of whatever weight any other juror, or all the other jurors,
give to them or to the mitigating factor.

6. The right to find your own mitigating factor and assign it the weight sufficient for you to
vote for life. The law allows for myself and (co-counsel) to try and put down in words
what we think are the mitigating factors, ie., reasons why Mr. _____ should be allowed to
live inprison. We are fallible and may not be able to put in words your feelings that lead
you to give life to Mr. ____, therefore, the law allows you individually to find yourself
any mitigating factor and give it the weight you wish. The law recognizes that the matter
of a citizen deciding whether another citizen should live or die is too important to be the
matter of checking boxes.

7. The right to find that life is the appropriate verdict for you even though you yourself have found that aggravating circumstances exist beyond, that no mitigating circumstances exist, or that the aggravating factors listed outweigh the mitigating circumstances that can be listed or expressed. In essence, the law allows a vote for life on your individual feelings that life is the appropriate verdict even though you can't explain that feeling and feel that mitigation does not outweigh aggravation beyond a reasonable doubt.

8. The right to have your vote respected by other jurors, the prosecution, the judge.
a. get others to assent and consent.
Obviously, this right is important to develop with jurors. The idea is to build up each juror into an individual judge who, after listening to the evidence and going through his/her own
convincing weighing weight assignment of aggravating and mitigating factors, then assesses
his/her own moral judgment of life or death that cannot be deliberated away. It is very important
to get all the jurors to agree that it's OK to disagree within the jury as a whole on moral
assessments and that, since it is a unique assessment, to agree to respect each other's opinion, and that the law totally foresees this circumstance and accepts it and is satisfied by it.

"It is necessary to fragmentize the jury and empower the more compassionate jurors with the tools and respectability necessary to give life. It is also important to defuse the attempts of the adamant prodeath jurors on your jury, to browbeat or cheerlead hesitant jurors into a
unanimous death verdict."

John R., you are right that this comes very close to telling the jury not to deliberate.

Indoctrinating a jury NOT to deliberate would violate the spirit if not the letter of Howard v. State, 941 S.W.2d at 102, 123 (TCA 1996), which contains the following quote from Allen v. United States:

"The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the argu-ments of men who are equally honest and intelligent as himself."

Allen v. United States, 164 U.S. at 501-501.

Radicals of any flavor scare the crap outta me. This is nothing but jury nullification doctrine.

Whatever happened to the concept that we are a free people and that juries decide punishment without undue influence?

Somehow it became okay to do almost anything in DP cases. As long as you can justify it in your own mind, according to your own personal morals, it's okay to do. To hell with the rules. Even the USSC has issue decisions this way recently (a la Smith, Brewer, Cole). When the Supreme Court reinvents the past rather than being bound by precedent, it's hard to argue that defense counsels should be bound by the rules. So why not try to rig a hung jury? Nobody will tell them it's wrong.

Also IMHO, the media fosters this attitude that the DP is wrong and that we are just waiting for the law to catch up with their superior morality. <rant over>

And I salute our fellow prosecutors who bear the burden of prosecuting these extremely complex cases. As I have said before, I am a survivor of a prosecutor friend who was killed, and the DP worked for me in that case with his killer.

Totally worked for me.

quote:

---

Somehow it became okay to do almost anything in DP cases. As long as you can justify it in your own mind, according to your own personal morals, it's okay to do.

---

Unless, of course, you are pro-DP.

quote:

---

Originally posted by Gretchen:

quote:

---

Somehow it became okay to do almost anything in DP cases. As long as you can justify it in your own mind, according to your own personal morals, it's okay to do.

---

Unless, of course, you are pro-DP.

---

So true, Gretsch.

Just started individual voir dire in a capital murder trial and having to deal with this method.

Anyone have any suggestions for dealing with the issues associated with this method?

Feel free to email me:
jeromie.oney@graycch.com

and one of the speakers was supposed to give materials on this method to TDCAA, to make available to us. Still haven't received it, but I have called to ask for it. Might want to call TDCAA for the materials. They should have it or should be getting it soon.