3.11 A Dispassionate Gatekeeper

3.10 Reason to Believe

Book Three / 11

Six dead bodies, the prosecutor had informed us at the hearing that afternoon, with a shake of his fist toward the defendants behind him.

We all knew that those six bodies represented three generations of a single family, including two young children who had seen their mother and father shot, who were themselves killed in front of their mother as she lay dying.  And now — we had just learned — those six dead bodies were the reason why, under the state’s death penalty statute, the prosecutor believed that the mitigating circumstances presented by Mackey and Anders were not sufficient to spare their lives.

And it made sense from a certain perspective.  Most people who don’t spend their professional lives studying death penalty statutes would probably agree:  the six dead bodies that Mackey and Anders had left behind that Christmas eve, before climbing into their truck and driving toward Las Vegas to get married, those six bodies were a very good reason to believe that nothing about their two lives made them any less deserving of death.


In their brief, asking that the State not be permitted to pursue the death penalty against their clients, defense counsel had tried to explain to the court why the statute had to limit the prosecutor’s inquiry.  Their position carved clear delineations:  when deciding whether to seek the death penalty, a prosecutor had to focus solely on the available mitigating circumstances of each individual defendant.  The facts of the crime, they insisted, though good reasons for charging a defendant with aggravated murder, could not also be the reason for pursuing his death.

Moreover, the attorneys continued, the extreme atrocity of six dead bodies supported the defendants’ position, not the prosecutor’s.  The prosecutor had implied that the facts of the crimes were so horrible and therefore so emotionally charged that he had to pursue the death penalty.  Nothing less would be appropriate.

But it was precisely for that reason, the defense attorneys had argued, that the statute gives this first death penalty decision to a prosecutor, long before any final decision ever reaches a jury.  The statute, the attorneys reminded the court, establishes the presumption that life in prison without parole, and not death, is the appropriate penalty for all defendants convicted of aggravated murder.  It presumes that all defendants begin with mitigating circumstances sufficient to merit not death.  A prosecutor’s early decision whether or not to pursue a defendant’s death is meant to safeguard that presumption and ensure constitutional integrity in the way the death penalty is implemented in the state.

Under the statute’s scheme — as their position would have it — the first burden of choice for either death or not death falls upon a prosecutor, recognizing his proper role as a dispassionate gatekeeper.  In this role, within a few months of charging a defendant with aggravated murder, he must examine closely all evidence of the defendant’s personal mitigation, leaving aside the facts of the crime that had supported the charges.  With the statute’s presumption of not death in mind, his aim is to filter out all who do not deserve the benefit of that presumption on account of insufficient mitigation.  These are the defendants whose mitigating circumstances are so meager that death is the only just penalty.  Some refer to this level of death-worthiness as extreme moral culpability.

The results of a prosecutor’s emotional or rash decisions at this stage could be costly, so an additional safeguard in the statute would have seemed prudent to its drafters.  By requiring a prosecutor’s dispassionate and exclusive inquiry into each defendant’s mitigating circumstances, they sought to avoid two possible scenarios.  The first is a prosecutor’s death penalty prosecution of individuals against whom a juror, down the road, will be unwilling to impose death.  This was important because it takes just one juror to perceive sufficient mitigating circumstances and the sentence will be not death.  Consequently, the more familiar a prosecutor becomes with a defendant’s available mitigation, the more seriously he takes that information and the more dispassionately he examines it, the less likely he will be to err in his judgment and pursue the death penalty unsuccessfully — with all the costs and burdens of such prosecutions.

The second scenario to be avoided is the improper imposition of death — that is, a death sentence imposed by a jury too overwhelmed by the violence of the crimes to judge the defendant impartially.  This result is possible when details of the crime combine both extreme violence and some uniquely personal emotional context with which most jurors will feel a deep empathy.

Avoiding an unnecessary, costly, and possibly inappropriate delegation to a jury of the responsibility for deciding whether to impose the death penalty is a critical goal of the state’s death penalty statute, the defense had argued.  In service to that goal is a requirement that the prosecutor act as a dispassionate gatekeeper, erring on the side of caution and conservation.

Interpreting the statute in this way means that citizens will not pay for the death penalty prosecution of an individual whose death will not be forthcoming when a juror perceives mitigation in a manner the prosecutor did not.  Or that a prosecutor, in the name of all who voted him into office, obtains a death sentence from a jury too overwhelmed by the facts of the crime to examine with detachment the convicted criminal responsible for it.


On its own, I had thought, reading the defendants’ brief, the attorneys’ argument about the prosecutor being a dispassionate gatekeeper was persuasive.  The judge and I had both experienced the way emotionally difficult testimony can begin, almost imperceptibly, to bend hearts and minds in the direction of retribution, toward an almost primal desire to make someone pay proportionally.  Maybe not just anyone, but certainly one whom a prosecutor had deemed suspicious enough to charge and proceed to trial against, or whose confession rendered guilt a foregone conclusion.

And in capital cases, the fact of a defendant’s guilt can drift quietly into the fact of his death-worthiness, despite the existence of significant mitigating circumstances.  In fact, the more horrific the story of the crime, the more this very dynamic placed at risk any fair sentencing procedure.  By the very definition of aggravated murder, all death-qualifying crimes are the most atrocious, but the juries that hear the facts of those crimes in a trial are formed of individuals unaccustomed to confronting the details of terrible violence.  Consequently, they are at risk of emotional overload when deliberating on a sentence so soon after the trial on guilt.  By that measure they risk giving inadequate weight to a defendant’s mitigating circumstances, and sending an individual to his death who may not be truly deserving.

It made sense, therefore, that the statute would direct a career prosecutor to address that risk by pursuing the death penalty only against those who are indeed the very worst individuals.  And that decision would be the most sound if his inquiry were focused exclusively on the mitigating circumstances available, from the perspective of one whose profession is meant to train the mind to judge fairly and rationally.

In this way the statute tethers the most difficult and emotional of criminal prosecutions to solid constitutional ground, avoiding the introduction of emotion or prejudice into a prosecutor’s selection of defendants for a possible death sentence.  It ensures that defendants who are not truly death-worthy will avoid a procedure in which the jurors’ deliberations become a zero sum game.  A procedure in which any acknowledgment of the suffering of both the victim and the defendant — though vastly different in degree and in kind — cannot both occur at once.

When a prosecutor fulfills his obligations as a dispassionate gatekeeper, twelve individuals may be spared the most gut-wrenching decision a government can require of them:  whether to command the death of another human being.


At that moment, during the months when this first motion to strike the death penalty was being drafted and argued to the court, we were still far from beginning the first of our two trials against Mackey and Anders.  There was no way that either the attorneys or the judge and I could foresee how prescient this argument would appear at the conclusion of the State’s case against Mackey.

For in the end, after years of preparing the case for trial, and then months of jury selection and the trial itself, Mackey would be convicted of the crimes but he would not receive the death penalty.  The prosecutor would pursue Mackey’s death vigorously, for many years leading up to trial, yet after just a few days of considering Mackey’s death-worthiness, four of the twelve jurors who judged him would decide that his mitigating circumstances were sufficient to spare his life.

And what we would suspect is that somewhere in the process of deciding whether to seek the death penalty against Mackey, the prosecutor had placed so much emphasis on the terrible details of the crime — on the horrible deaths of those six individuals — that he’d become blinded to the quality of the mitigating circumstances Mackey’s attorneys presented.

Then, as fuel for our suspicions, less than a month after the jury would spare Mackey’s life, another jury in another case would decide unanimously to spare the life of that defendant — a Black man convicted of targeting and killing a police officer.  Their decision not to impose the death penalty in that case would take all twelve jurors little more than an hour.

Within a span of a few weeks two separate juries, deliberating in two different cases under the same courthouse roof, would refuse to impose the death penalty — by decisive votes.  That fact would suggest to many who’d been observing that the prosecutor might have made better decisions had he judged the cases more dispassionately, giving less emphasis to the facts of the crimes and more to the facts of mitigation.  Had he been open to seeing what four of the twelve jurors in Mackey’s case would see:  those six dead bodies, yes, but also the circumstances of Mackey’s own life.  Circumstances which — though in no way an excuse for his terrible crimes — offered a reason to believe that putting him to death served no higher purpose.

3.12 Equal Protection under the Law