Hidden Killers and Imagined Saints: Why Courts Fail to Identify Unconstitutional Jurors in Death Penalty Cases

What if half of the people in the jury pool for a capital case are unqualified to sit—and the lawyers are not accurately identifying and removing them? And what if the lawyers are actually identifying the wrong people as unqualified and removing them instead? This appears to be the case. The Constitution prohibits jurors who will always (or never) vote to impose the death penalty. As developed in this Article, the existing social science suggests that 5– 30% of potential jurors may be automatic death penalty (ADP) voters and between 2–34% may be automatic life sentence (ALS) voters. Further, lawyers are not accurately identifying them. Researchers have surveyed jurors who sat in capital cases and found that a stunning 14–57% were ADP voters, while 2–7% were ALS voters. Meanwhile, qualified venirepersons are being tossed out. Researchers have found that 60–65% of those classified as ALS could vote for death in some circumstances, and at trial, this would result in the exclusion of life-leaning venirepersons. The high rate of improperly included ADP voters along with the high rate of improperly excluded lifeleaning voters stacks the jury pool against the defendant. This unfair and unreliable process calls into question whether the death penalty is constitutional as applied

Evidence of the Military\u27s Sexual Assault Blind Spot

In response to the American military\u27s perceived inability to handle sexual assault cases, many members of Congress have lost confidence in those who run the military justice system. Critics say that those who run the military justice system are sexist and perceive sexual assault cases differently than the public does. This article is the first to empirically test that assertion. Further, this is the first study to focus on the military population that matters – those who actually run the military justice system. This study finds that this narrow military population endorses two constructs that are associated with the acceptance of inaccurate rape schemas – traditional gender role beliefs and conservatism – to a much higher degree than the general population. Regression models based on these findings predict that in a test rape case, 54% of the general public would find the man guilty while only 41% of this narrow military population would. This suggests that at the macro-level, those who run the military justice system may be honestly committed to resourcing the fight against sexual assault and to finding a solution to the problem. But at the micro-level, when looking at a particular case, they have an unconscious cognitive process that interferes with their ability to accurately solve it

Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man. In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of rape. If Kahan is right, radical change may be necessary. The institutions responsible for handling sexual assault complaints – law enforcement communities, the military, and university and college administrations – are stratified and hierarchical, and are likely over-populated by people who are attracted to hierarchical institutions and who hold hierarchical world views. These institutions may need to be overhauled – or even replaced. However, the study has a serious methodological flaw: it uses the Hierarchy-Egalitarianism Scale to measure those hierarchical world views, and as this article demonstrates, this scale has reliability and validity issues. This article then applies a different methodology to the underlying data and shows that patriarchy, not hierarchy, explains the differences in guilt perceptions. This more accurate understanding of Kahan’s data carries important policy implications. Rather than radical change, targeted training that addresses inaccurate rape beliefs may be enough to ensure accurate processing of these cases

The Tactical Games Model Sport Experience: An Examination of Student Motivation and Game Performance during an Ultimate Frisbee Unit

Students benefit from positive sport experiences in physical education. If designed well, sport provides a social avenue for physical activity and strengthens student achievement in psychomotor (e.g., motor skill), cognitive (e.g., decision-making), and affective (e.g., personal and social responsibility) learning domains. Unfortunately, not all students receive quality sport instruction and many students fail to have positive sport experiences in physical education. The Tactical Games Model (TGM, Griffin, Mitchell, & Oslin, 1997) is an instructional model focused on improving student sport experiences. As a constructivist approach to teaching and learning sport, TGM reshapes sport lessons to allow students to experience small-sided games (Game 1), think critically about games playing (Q & A), practice aspects of playing (Situated Practice), and show improvement in games playing (Game 2). TGM literature includes practitioner reports about involvement (Berkowitz, 1996) and findings that show measures of game performance (e.g., skill execution, decision-making) during a TGM sport unit (Allison & Thorpe, 1997; Turner & Martinek, 1999). Limited data is available to explain how the constructivist nature of TGM influences motivation (Griffin & Patton, 2005; Rink, 2001). The purpose of this qualitative study was to examine motivation using situational interest theory (Chen, Darst, & Pangrazi, 1999; Mitchell, 1993) to interpret participant – learning situation (Game 1, Q & A, Practice, and Game 2) experiences during an eight-day TGM Ultimate Frisbee unit. The researcher acted as teacher-researcher and participants were 15 fifth graders (assigned to heterogeneous teams) and Mia, the regular physical education teacher and participant-observer. Data were collected using surveys, learning situation questionnaires, interviews, and systematic observations using the Game Performance Assessment Instrument (GPAI, Oslin, Mitchell, & Griffin, 1998). Data analysis incorporated open and axial coding (Strauss & Corbin, 1998), theoretical comparisons (Strauss & Corbin, 1998), and concept mapping (Rossman & Rallis, 2003). Findings show that participants‟: (a) participated in daily lessons regardless of gender, goal orientation, skill/effort level, and personal interest in Ultimate, (b) were excited to play games (Game 1, Game 2) because they wanted to move, liked Ultimate, and/or wanted to assess skills/playing, (c) required challenging conditions, positive competition, and/or individual/team success in order to have a positive participant-games playing experience, (d) entered Q & A and Practice expecting to learn something new, (e) stayed interested in Q & A if they received answers, learned facts/rules, and/or felt the discussion helped team, (f) remained involved in Practice if team worked well, task was fun, and/or they learned skill/strategy, and (g) perceived improvements in games playing (e.g., throwing). Mia concluded that participants: (a) were motivated to play, (b) were involved in the different learning situations, and (c) improved games playing during the unit. GPAI scores confirmed that participants‟ improved at least one area of game performance (e.g., skill execution-passing) between Day 3 (week 1) and Day 7 (week 2)

The Bergdahl Block: How the Military Limits Public Access to Preliminary Hearings and What We Can Do About It

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing. The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused and the media must file a writ petition with a military appellate court to vindicate their rights. This leads to the second feature: these courts routinely find that they do not have jurisdiction to hear these claims. And when these courts deny the writ petitions, the accused and the media are left without an effective remedy. Recognizing this, military officials now block access to these hearings by mischaracterizing these challenges as Freedom of Information Act requests. They then tell the accused and the media to seek relief using the rights provided under that law, knowing none will be coming anytime soon. Using the Bergdahl case as context, this Article describes this blocking maneuver. It then exposes the flawed reasoning that military appellate courts use when refusing to hear these constitutional claims. Finally, this Article offers legislative and regulatory fixes to ensure public access to these hearings. Now is the time for change. In the last three years, Congress and the President have made significant changes to the military justice system. These changes have come in large part because the public lost trust and confidence in the military justice system. Transparency fosters trust and confidence. The more the public knows about what is considered at a preliminary hearing, the more trust and confidence the public will have in the commander’s prosecutorial decision based on that hearing, and, ultimately, in the overall role of commanders in the military justice system