(joplin Globe) – A judge heard testimony Friday on defense motions challenging the constitutionality of the state’s death penalty and seeking dismissal of the prosecution’s notice of intent to seek the measure in the upcoming trial of Bobby Bourne Jr.
Bourne, 36, is charged with the 2013 kidnapping and murder of 12-year-old Adriaunna Horton, of Golden City, with a trial currently set for July.
Thomas Jacquinot, a capital murder case attorney with the state public defender’s office, filed the motions regarding the state’s intent to seek the death penalty in Bourne’s case to lay the groundwork for a possible appeal on constitutional grounds should his client be convicted at trial and condemned to die.
The study’s critical findings were:
• About half the jurors acknowledged having made decisions on punishment of defendants during the guilt phase and before hearing any testimony or evidence in the punishment phase.
• Jury selection fails to remove “automatic” death penalty jurors, or those who feel it is “the only acceptable punishment” for the type of murder case they are hearing. More than half the jurors considered it the only acceptable punishment for defendants with prior murder convictions, for premeditated murders and for murders with multiple victims.
• Capital jurors displayed significant rates of failure to understand jury instructions.
• Significant numbers of jurors hold erroneous beliefs regarding the death penalty being mandatory in certain cases. In Missouri, 48.3 percent of the jurors surveyed believed it was mandatory if the defendant’s conduct was proved to be “heinous, vile or depraved,” and 29.3 percent believed it was required if the defendant could be shown to pose a future danger to others. The Supreme Court has ruled that there are no mandatory requirements of the death penalty.
• There is a failure among capital jurors to understand that the primary responsibility for sentencing rests with them.
• A strong influence of race on the process. Defendants are more likely to receive the death penalty if the victim is white and chances are highest when the victim is white and the defendant is black.
• Jurors tend not to believe that a sentence of life without parole, the only other sentence possible in capital murder cases in Missouri, actually means life without parole.
Foglia said that in Missouri cases, 46 percent of jurors were deciding in favor of the death penalty in the guilt phase of the trial. Jurors who took premature stances were more likely to believe the defendant was guilty, to think the death penalty was the only acceptable punishment and to have inappropriate discussions of their penalty inclinations during deliberations in the guilt phase.
She said the jury qualification process itself in capital murder cases creates a bias unfavorable to defendants in that it makes jurors more likely to think the defendant is guilty and deserves the death penalty. She said 11.3 percent of the jurors surveyed nationwide acknowledged that the process made them more likely to convict the defendant.
Yet another problem lies in jury instructions, she said.
“Over and over again, we are finding that jurors are not understanding how they are to handle mitigating and aggravating circumstances (presented in the punishment phase),” Foglia told the court.
Nationwide, 44.6 percent of jurors did not realize they could consider any mitigating circumstances and 66.5 percent thought jurors had to reach unanimous agreement on any mitigating evidence. She said 49.2 percent erroneously believed mitigating factors had to be proved beyond a reasonable doubt while 29.9 percent did not know that aggravating evidence did have to be proved beyond a reasonable doubt.
Kevin Zoellner, the assistant attorney general prosecuting the case, cross-examined Foglia regarding the impact of project interviewers’ own views of the death penalty on the results they obtained as well as the effect of the length of time after the trial on jurors’ ability to recall the instructions they received or what they were told was the law.
Both sides agreed that in the Bourne case, race is not a potential factor.
An expert witness for accused child murderer Bobby Bourne Jr. told the case’s trial judge Friday that 14 studies show that on the average the process of juror qualification in death penalty cases increases the chances of conviction by 44 percent.