Tanner Horner was sentenced to death by a Fort Worth jury for the murder of seven-year-old Athena Stroud.  The death penalty was almost a foregone conclusion.  In Texas, to serve on a jury that will consider the death penalty, each potential member of the jury must be “death penalty qualified.”  Here is what that means and why it tips the scales in favor of the death penalty.

Texas law says that a person who commits capital murder may be sentenced to death if the State seeks the death penalty and the jury votes to impose it.  Unlike some states, in Texas, a judge cannot override a jury’s decision to impose the death penalty.

To sit on a jury that will consider the death penalty, each juror must be “death penalty qualified.”  Any potential juror must be willing to follow the law in order to sit on the jury.  Because Texas law allows the death penalty for capital murder, a person cannot serve on a jury that will consider the death penalty unless the person can at least consider imposing the death penalty.  This means that those who oppose the death penalty cannot lawfully sit on a jury that will consider it.

During jury selection in a death penalty case, prosecutors will try to get potential jurors to agree that they would not be willing to impose the death penalty.  If they do, they are disqualified from jury service. 

Skillful prosecutors will question potential jurors with hypothetical questions that are accurate but that portray the death penalty as involving as much cruelty as possible.  For example, they might ask, “Now, Ms. Smith, if you are on this jury, you would have to consider whether you could sentence that man right there to death.  That involves forcefully strapping him down to a stretcher so that he cannot move or resist.  As he watches, an executioner walks over to him, bends down, and injects him with a needle full of deadly poison.  That poison will course through his veins and stop his lungs from working.  This will prevent him from breathing, so he will basically drown on that stretcher while people watch.  Now, I want you to look at that man over there and tell me, can you consider voting to do that to him?”  If the now-horified juror says no, she is disqualified from serving on the jury.  Those who can serve on the jury are those who have no problem condemning a person to that fate.

The result is that a jury in a Texas death penalty case does not represent the views of the community as a whole about the death penalty.  Instead, the jury in a death penalty case represents only those who endorse the death penalty as described in the most horrific terms possible by a prosecutor.

Tanner Horner’s case was heard by a jury from Tarrant County.  Fort Worth is the county seat of Tarrant County.  To call Tarrant County “conservative” is an understatement.  Fort Worth promotes itself as the place where the real West begins.  The “West” in this context includes a healthy dose of Old West frontier justice.  The average potential juror from Tarrant County will favor the death penalty.  After the death penalty qualification during jury selection, the jury you get would almost look forward to it.

Don’t misunderstand me.  What Tanner Horner did was horrific.  The evidence the jury heard in this trial was beyond gut-wrenching.  I would not be surprised if some of the jurors need therapy to cope with what they heard.  I am NOT arguing that the death penalty was not justified for Tanner Horner.  Far from it.  But it is important for people to understand how much the deck is stacked in favor of the death penalty in Texas.