3.14 Vicarious Reliability

3.13 Death-Qualified

Book Three / 14

At 6:15 in the morning on Friday, September 19th, I walked into the courthouse to begin juror orientation.  I arrived with six boxes of freshly-baked doughnuts to distribute among those on the front lines that day:  courthouse security officers who would be screening everyone entering the building; jail staff involved in transporting Mackey from jail to court for each of the four sessions; jury room staff who would be managing and tracking the jurors’ identities; and other bailiffs drafted to assist our court.  

Earlier in the week I had printed a number of temporary signs to help direct the flow around the building of those responding to the summons, and by 6:45 I was making my rounds through the courthouse to hang them up.  As I hung the last sign I paused for a moment.  At some point that day, much later, I would be walking through the halls to take those signs back down.  Juror orientation would be over.  In the meantime, I reminded myself, I had to keep moving and not stop until I was done.  

It turned out that I would be done at 7:15 that evening, and not once would I have stopped in the intervening hours to do more than take a bathroom break.  But over the course of that day seven hundred prospective jurors would be screened and checked in; they would have their anxieties acknowledged and accommodated, and their opinions gathered on questionnaires.  And each would hear the judge instruct them on the state’s death penalty law, the law enacted by their state legislature after voters had expressed their support for maintaining the penalty decades earlier.  The murky law that none of us appeared fully to understand even now, but which each juror seated for trial would be required to apply.


On the steps to the courthouse that Friday morning a few members of the state’s coalition to abolish the death penalty had gathered.  They were handing out leaflets in opposition to capital punishment to the prospective jurors arriving for orientation.  Prior to reading that leaflet, none of the individuals accepting them would have known for sure that they had been summonsed for a death penalty case, though some may have speculated as much from recent news stories about the start of jury selection in Mackey’s case after several false starts.  

I learned of the leaflet later that morning when I took a break from the orientation process to check on the judge in chambers.  As I walked in and closed the door behind me, he held out a piece of paper with a familiar look on his face.  It was the expression of having to deal with one more thing, informed by the certainty that everything related to this trial contained an explosive potential, no matter how seemingly trivial.

I took the paper from his hand and began reading while he explained that the prosecutor and defense counsel had just brought it to his attention.  The leaflet was two-sided.  One side explained the process of death-qualifying a capital jury, describing it as one of eliminating any member of society who was opposed to capital punishment.  The other side addressed three issues:  the risks of imposing death against innocent defendants, the arbitrary manner in which the death penalty is imposed, and the extraordinary expense involved in death penalty prosecutions. 

The individuals distributing the leaflets had been standing on the sidewalk outside the courthouse.  Though the judge understood the prosecutor’s concerns that the leaflet’s message could taint prospective jurors, he had no authority to restrict the protestors’ speech.

I returned the leaflet to him after a short conversation and he tucked it into a file.  We reviewed our procedures for open court that day, and I returned to the first floor where the process of organizing the crowd was getting off to a rough start.


As prospective jurors began to arrive for the morning sessions we quickly realized that the turnout was going to be larger than usual.  By 9:30 we had to close the morning list and tell those continuing to arrive that they would have to return in the afternoon.  We had five-hundred already checked in, but could accommodate only four-hundred at most — two-hundred for each of the two morning sessions.  

Staff throughout the courthouse were scrambling to implement contingency plans, and I moved from station to station to help where I could.  Prospective jurors were everywhere, standing alone or in small groups, and in lines backing up into hallways and tunnels.  Many were looking for someone with the authority to answer their questions about parking problems, employer problems, and just plain jury service problems.  Because it was my court’s trial, I was that someone.

A court’s bailiff is the only person with whom an individual seated as a juror in a trial may communicate about her service while the trial is in progress.  It doesn’t sound difficult, but it was the part of my work that required the most energy expended in sheer vigilance, and the part that could take the greatest emotional toll.  

There is much that by law a bailiff may not say to a juror under his care.  A bailiff can never comment on the evidence, for example.  He cannot provide to a juror any substantive information on the case or proceedings, or express a view — positive or negative — about one of the parties or attorneys, the case, or an issue involved.  He can’t explain why a 15-minute break lasted an hour.  He can’t tell them why they were abruptly returned to the jury room in the middle of a witness’s testimony.  Or why an attorney appeared not to want them to hear something that, to the contrary, they seem to think would be very helpful.  Or why the one piece of evidence they had seen in trial was not available to them during their deliberations. 

In order to avoid inadvertently saying what I must not, and potentially providing grounds for a mistrial, I always instruct the jurors at the beginning of a trial not to ask me anything about what they see and hear in the courtroom, or what they privately suspect or speculate may be happening when they are not out there.  I tell them that I am available to help them logistically, but that — counterintuitively — I can’t actually be helpful in any other way.  In my own mind I know that I am there also to insulate them from what they are not permitted to witness, and to ensure that their participation as jurors renders the fairest possible trial to both parties.

This responsibility isn’t much in the average trial of a week or two.  The hardest part may be keeping the jurors comfortable, and mitigating their frustration when lengthy delays force them to remain in the jury room for extended periods.  But when a trial involves witness testimony and physical evidence of violent acts, the jurors can develop symptoms of trauma — anxiety and depression — as a result of what they see and hear.  It’s not uncommon for a single image from a trial to disturb a juror for many months after the trial has concluded.  

Several years ago, for example, our court presided over a bench trial in which a defendant was charged with multiple counts of unlawful possession of child pornography.  The defendant had waived a jury, meaning that the judge would be the trier of fact, not twelve jurors composed from the defendant’s peers.   Over the course of the trial we sat through several full days of viewing the prosecutor’s serial presentation of the State’s evidence.  The evidence consisted primarily of dozens of short video clips of young children and infants being raped and sexually assaulted, the camera’s lens closely focused for the sole purpose of the sexual gratification of the viewer.  

For many days following that trial I could not get the images out of my head or the anger out of my body.  Years later they still haunt me, and I know that I was harmed merely by what I had witnessed second-hand.  

Many jurors who view evidence in trial of an explicitly violent nature have similar experiences.  One term for this phenomenon is vicarious trauma.  The jurors selected for the upcoming trials of Mackey and Anders would experience that phenomenon.  They would be exposed to images and other evidence of the shooting deaths of six individuals, including two small children.  The evidence would not be sanitized for them, and — as the triers of fact — they could not turn away from it.  It would be impossible to be unaffected.

Making the matter even harder, as the judge would remind them all repeatedly through the months ahead, they could not discuss any aspect of the case with anyone, including friends and family — not even one another — until the case was theirs for deliberations.  These instructions meant that they must process their emotional responses privately, without any of the normal means for catharsis by which as humans we seek to soften the impact of a blow.  No one can listen to them describe their observations, or offer a compassionate response.  After the trial the court can provide the professional assistance of counselors trained to address the type of post-traumatic stress that jurors experience, but by law that assistance can only be offered after they have deliberated and rendered a verdict.

The only person to whom a juror may confess the details of any psychological difficulty occurring in the midst of a trial is the bailiff.  The consequences for the bailiff of what amounts to the jurors’ mental and emotional sequestration, especially when a trial is long and the evidence painful, are that she must watch closely for any signs of a juror breaking down under the pressure.  She must concern herself not only with the logistics of their service, but also with the progress of their mental health as the days and weeks pass, and the testimony and evidence mount.

Most jurors selected for a trial don’t realize how much the process will impact them, and I can’t warn them explicitly to be careful and take care of themselves.  Even that much could be construed as a “comment” on the evidence, as a personal impression that the evidence in this case may be especially gruesome and therefore — the implication being — this defendant may be particularly culpable, particularly worthy of conviction if only to get him off the streets.  I can only advise jurors generally that their service may grow more difficult as the trial progresses, and that they should let me know if anything happens on a particular day that obstructs their ability to pay close attention to the evidence as it is presented.  

And then I watch to see if a juror begins to change, to communicate differently with me or the others, to look as if she has not slept in several days.  If the stress begins to overwhelm a juror, she may approach me, often with the pretext of a question about something she saw in the hallway that afternoon that might present a problem.  When that happens, I will invite her to step into my “office.”  My office for this purpose is one of the two bathrooms in the jury room where we can stand together with the door closed and I can listen to her outside of the presence of the other jurors.  

I will listen to the juror for as long as she wants to talk, without saying anything in response but revealing as well as I can, with facial expressions and gestures, that I care about what she’s saying and what she’s feeling.  When she is done talking, I assure her that I will let the judge know of the potential problem she identified.  I tell her that if the judge decides to take any action I will let her know.  If she doesn’t hear anything more from me, I say, then he’s determined that nothing needs to be done and she doesn’t need to worry about it. 

When I sense that the juror is feeling more relaxed, I thank her “for letting me know,” which is to say that privately I am thankful she has released some strain by pulling me aside just to listen to her.  Listening is all I can do, but often it helps.  Which tells me that for the jurors a bailiff must be a person who, from the very first day, inspires their confidence, whose presence reassures them that the one person to whom they may speak about their problems is someone who will actually hear them, and be genuinely concerned.


All of this was on my mind that Friday morning when hundreds of prospective jurors arrived for orientation.  I knew that I would be the face of the court that day to over seven-hundred prospective jurors arriving for what would be, necessarily, a chaotic and confusing experience for them.  If they had a problem, staff would send them to me.  If they had a question, staff would send them to me.  

Most importantly from my perspective, I knew that over the course of the day all seven-hundred who would stay to fill out a questionnaire and receive the court’s instructional materials would come to know my face as the one responsible for their experience.  They would know my face, and they would be watching me and forming a subconscious opinion of my performance and reliability.  They would see how I responded to them or to someone nearby, what I said to staff as I provided direction.  Without realizing it, they would decide whether they trusted me and, by extension, the judge, our court, and the entire process as it rolled out over the months ahead.  

I, on the other hand, would see in each of them only a nameless face that was one of hundreds.  Each individual to me would be a blur, indistinguishable at that stage from any of the others being processed through orientation.  But among those seven-hundred blurred individuals were the sixteen we would eventually select to be seated as jurors on this trial.  The sixteen with whom I would spend five grueling months, and for whose mental and emotional health I would be responsible through one of the most traumatic trials a juror can experience in our state.  And though there was no way on that first day, or for another three months, that I could know which of the seven-hundred were the sixteen I would come to know so intimately, they were all there that day, somewhere among that group.  

Every moment I had to be aware that someone who would ultimately be on the jury could be talking to me, or asking me a question.  Could be observing me and forming some general opinion about the integrity of the institution.  And I wanted that opinion to be positive.  The judge and I needed for the opinion to include an assessment that, as the representative of the court, I would be professional with them and kind.  Mostly, we needed for them to trust me and rely on me for the support I could offer.

3.15 The Price of Punishment