Scott Sundby needed more time. His interview with the woman who had served as a juror on a death penalty trial had already surpassed five hours—the time limit he had imposed for their in-depth talk.
But there was still so much more Sundby wanted to delve into. Like how seeing graphic autopsy photos of the murder victim affected the woman and how she would come to regret joining 11 other jurors in sentencing a defendant to death. So, he scheduled a second interview with the woman, which would last 12 hours.
“When it comes to emotions, all of us are millionaires. And that certainly applies to jurors who have been in emotionally trying situations,” said Sundby, a professor of law and Dean’s Distinguished Scholar at the University of Miami School of Law.
As an investigator on the National Science Foundation-backed Capital Jury Project, he has interviewed scores of former capital jurors, delving deeply into the reasons they make life or death recommendations and examining whether their sentencing discretion can avoid the arbitrariness the U.S. Supreme Court condemned in the landmark 1972 Furman v. Georgia case. In that case, the court, in a 5-4 decision, ruled that the death penalty, as then administered, constituted cruel and unusual punishment when it is imposed in an arbitrary and capricious manner. It effectively ended all executions for a four-year period.
“They are unlike any other decisions in the criminal justice system,” Sundby said of the verdicts handed down by juries on capital murder cases. “We ask capital jurors to decide whether someone lives or dies, so it’s inevitably a moral decision that raises a host of questions on everything from legal rules to compassion, mercy, and justice. We often think of criminal trials as plays. Well, a capital case is a morality play in all the senses of that word. It is truly the most compelling stage.”
Death penalty cases and the juries that decide the ultimate punishment form the backbone of Sundby’s work. While at Washington and Lee University School of Law, he directed the Virginia Capital Case Clearinghouse, a legal clinic that assisted attorneys representing defendants facing the death sentence.
His ongoing research for the Capital Jury Project examines a multitude of issues, from how a defendant’s remorse influences a jury’s decision to how expert witnesses and different trial strategies impact a life-or-death verdict.
More than 60 courts of law, including the Supreme Court in its 2004 Florida v. Nixon ruling, have cited Sundby’s findings.
The public criticism that is sometimes heaped on juries that fail to reach a unanimous vote on imposing the death penalty is unjustified, Sundby said.
During the sentencing phase of the 2015 trial of James Holmes, who slaughtered 12 people and wounded 70 others inside an Aurora, Colorado, movie theater as they watched a midnight screening of “The Dark Knight Rises,” a jury could not unanimously agree that he should receive the death penalty, resulting in a life sentence for the neuroscience student.
“I won’t for an instance pretend that I can imagine the sorrow, the outrage, and the anger that a massacre like that brings about in the relatives of the victims. I can’t pretend what my reaction would be if I were in their shoes. My heart breaks every time I hear about such cases,” Sundby said. “But that’s not how we decide punishment in the United States. We have a procedure where we bring in 12 members of the community, and we say to them there are several aspects that must be considered in trying to decide what the proper punishment should be.”
Those aspects include not only viewing autopsy photos and listening to the testimony of survivors but also hearing the defendant’s life story, which can entail horrific incidents of child and sexual abuse and mental illness—all aggravating and mitigating factors a jury must weigh, according to Sundby.
“I’m defensive of jurors when they’re criticized,” said Sundby, recently named the inaugural Robert C. Josefsberg Chair in Criminal Justice Advocacy. “It’s not a failure of the system. It’s what we ask those individuals to do—to take time out from their lives and listen to all the evidence.”
Sundby’s book, “A Life and Death Decision: A Jury Weighs the Death Penalty,” provides a unique perspective into how a jury decides the fate of a convicted murderer, examining how the jury in two cases decided between the death penalty or a life sentence and studying broader issues of capital punishment such as race and gender. The book was a finalist for the American Bar Association’s Silver Gavel Award.
The professor said that he believes the diversity in race, religion, and education that comes with a jury of peers might be lost if we were to move to a professional jury system.
“I admit to clinging to the belief that juries are democracy in motion, that it not only makes us better citizens to participate as jurors, but that juries keep the law from becoming ossified within a ‘professional’ class,” he said. “I know many lawyers who would say that I hold an overly romantic view of the jury, and I certainly realize that juries are anything but perfect. However, I have found that my many hours of interviews with jurors have increased my confidence in the jury system, not diminished it.”
Sundby not only studies the behavior of capital murder juries, but he also keeps abreast of death penalty issues. He noted that death sentences and executions have declined significantly since their peak in the 1990s. For instance, a total of 18 executions were carried out in 2022, the fewest since 1991, except for the pandemic years 2020 and 2021, according to the Washington, D.C.-based Death Penalty Information Center.
The alarming number of DNA exonerations, botched executions involving lethal injection, and life without parole as an alternative to the death penalty are some of the reasons for that decline, Sundby noted. “And capital defense attorneys have gotten so much better,” he added. “When I first started doing this work in the 1990s, which was the height of the death penalty, there would be defense attorneys who had never handled a murder case, let alone a death penalty case. The two are dramatically different. Lawyers must be more Shakespeare than Blackstone to be a successful capital defense attorney. They must tell the defendant’s life story, and that is a very particular type of talent,” he pointed out.
“It used to be that defendants going on trial for their life were not mentally evaluated, and no one looked into their background,” Sundby added. “Now, there are mitigation specialists who spend months and sometimes years looking into a defendant’s background. They learn the entire extent of the tragedy that may be involved.”
Sundby is familiar with the other side of the courtroom aisle as well, having taken a two-year leave of absence from teaching to prosecute cases as a special assistant U.S. attorney for the Southern District of Florida.
“I realized that all my experience was coming on the defense side, and when the opportunity came up to join as a special assistant U.S. attorney here in Miami, I jumped at it,” he said. “One of the most challenging aspects of teaching any subject, let alone law, is doing the utmost to look at something from both sides of the fence. Rarely is there a clear hero and a clear villain.”
