Brendt Christensen will be tried for the kidnapping and killing of Yingying Zhang 90 miles from where the alleged crimes occurred.
Christensen is accused of kidnapping Ms. Zhang, a visiting University of Illinois scholar from China who was last seen entering his car June 9, 2017.
Christensen said he dropped her off a few blocks away. He was arrested on his birthday — June 30, 2017 — on a kidnapping charge. Thirteen weeks later, a federal grand jury indicted him on additional charges of kidnapping resulting in death and lying to the FBI.
If you read books, which authors and types of books do you like? Do you regularly listen to any radio talk shows? Have you ever used any online dating apps or websites?
These are some of the questions lawyers want answered by potential jurors in the April 2019 trial of accused kidnapper and killer Brendt Christensen.
The 31-page questionnaire is much longer than in a typical case, but as University of Illinois Law professor Andrew Leipold said, "Capital cases are always different."
"The rules are different, the procedures are different. Everything is different," said Leipold, the director of the UI's Program in Criminal Law and Procedure.
So this "is more than I've seen and than I would expect most are, but this is a capital case," Leipold said.
The questions will help attorneys choose an impartial jury that they hope can fairly decide whether Christensen is guilty of kidnapping and killing Yingying Zhang, a visiting UI scholar from China, and if he is guilty, whether he deserves the death penalty.
While many of the questions are obviously relevant — asking potential jurors about their views on different crime-related issues, whether they know anyone involved in the case and their opinion of the death penalty — others are seemingly unrelated.
For example, from the prosecutor's list of proposed questions:
— Please name the three public figures, living or deceased, whom you most admire.
— Do you enjoy movies?
— Do you have a "web page"?
If a person lists three religious figures, or all Republican or all Democratic presidents, those answers might tell the attorneys something about the juror, said Steve Beckett, the attorney for Ms. Zhang's family, who's been involved in 6 death-penalty cases.
"The newspapers or periodicals that somebody may read can tell you a lot about them; the news channels that they watch; their historical perspectives," he said. "Those are all — I hate to use the word 'hunch,' but maybe educated hunches that attorneys might make about them."
Attorneys "want to know as much about the individual juror as you possibly can," Beckett said. "A questionnaire allows you to do that without spending the time in open court."
In open court, a juror could taint the jury pool by stating what they've read about the case or what their opinion of it is.
Attorneys in the Brendt Christensen kidnapping case want to leave nothing to chance when picking a possible jury. That's evident in a 31 page questionnaire recently submitted to a judge for approval. Some of the questions might surprise you.
Christensen's lawyers are hoping to avoid this by having questioning done individually.
The questionnaire should also help attorneys on both sides select jurors they want to strike.
Each side can argue to the judge to strike a juror for cause. They also each get to strike 20 jurors without cause.
Said Leipold: "As long as they're not basing it on race or gender," which the Supreme Court has ruled is unconstitutional, "they can remove a juror because they think they won't be as good as some other juror. They're trying to identify people who really seem like they might be biased toward the prosecution or the defense."
If a juror is stricken without cause, then the other side can argue that the juror was stricken improperly.
"The other side can challenge my peremptory challenge, saying I'm doing it based on race or gender. Then it's up to me to give a race- or gender-neutral explanation," Leipold said. "I can say I don't like Juror 4 because she seemed inattentive or uninterested, but I can't say I'm removing her because I think women are more likely to believe X."
'Inflammatory, redundant'
In Christensen's case, the U.S. Attorney's Office has filed a 36-page questionnaire and the defense has filed a set of questions under seal.
Last week, the 2 sides filed an agreed-upon set of questions totaling 31 pages. They're continuing to argue over supplemental questions the defense wants to ask.
Prosecutors have accused the defense of trying to ask questions that, among other things, could lead to a conviction being overturned on appeal.
"The defendant's Proposed Supplemental Jury Questions are inflammatory, redundant, and specifically designed not to identify and select fair and impartial jurors, but to identify and select jurors who are predisposed in the defendant's favor and to create reasons to strike jurors who are not so predisposed and to later appeal if any are selected," prosecutors wrote.
Christensen's lawyers said they want to ask certain questions so they can select jurors who are willing to give a life sentence if he is found guilty, instead of automatically giving the death penalty, and whether they will be open to mitigating factors.
That's part of the problem with the jury-selection process in capital cases, said Robert Dunham, executive director of the Washington, D.C.-based Death Penalty Information Center.
In a capital case, jurors have to be willing to consider sentencing the defendant to death, so the jury-selection process is good at getting rid of those opposed to the death penalty.
Bias from the start
But the process is also supposed to remove jurors who would automatically impose the death penalty if the defendant is guilty, Dunham said, which doesn't always happen.
The process "is designed to try to eliminate bias in both directions. All the studies tell us that it doesn't do that," he said. "People who are opposed to the death penalty are much more likely to say they're opposed to it. People who support the death penalty are much more likely to say that they don't believe that they would automatically impose the death penalty. ... They understate their support for the death penalty."
The questionnaire is designed to help attorneys find what jurors actually believe, but Dunham said the mere fact of going through the jury-selection process biases the jury.
"The Capital Jury Project looked at more than 1,000 jurors who served in capital cases and found that 10 percent of jurors had already reached a judgment on what the guilt or innocence of the defendant should be," Dunham said. "They thought, 'Why am I being asked about the penalty if the guy isn't guilty?'"
And, he said, jurors often don't understand all the instructions. For example, the jury must unanimously agree on the presence of the aggravating factors, but each juror can individually agree on the presence of mitigating factors that could lead to a life sentence.
While most capital cases don't result in a death sentence, Dunham said the flaws in the system lead to more convictions of more serious charges.
"You might still be convicted of 1st-degree murder on facts that a jury that hadn't gone through the death-qualification process would have said is a second-degree murder or manslaughter," he said. "And we don't know how many people would have been spared with a fairer jury-selection process even after being convicted of 1st-degree murder."
Source: The News-Gazette, Tim Ditman and Ben Zigterman, December 11, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
