3.15 The Price of Punishment

3.14 Vicarious Reliability

Book Three / 15

A young woman stood sobbing in front of me.  She was one of the two-hundred prospective jurors assembled for the first morning session of that Friday’s orientation.  Tears streamed down her face.  Several others stood on either side of her, offering their support.  Staff had found me moments earlier and told me that someone needed my help in the hallway. 

We huddled in the middle of a crowd of other prospective jurors, all of them milling around the courtroom doors while waiting to be ushered into court. 

I asked the woman to tell me what was wrong.  She explained that she’d just received a phone call from her family.  Her grandfather had suffered a heart attack, she’d been told.  He was now at the hospital, and she needed to get there before he died.  

Later that afternoon another prospective juror, an older man, would flag me down with an angry scowl.  He’d tell me that he had not brought his heart medicine with him and it was already past the hour he was supposed to take it.  Demanding to be excused, his eyes would darken and flash an instant temper as he stared down at me, waiting for my response. 

These were not situations I could address on my own.  Before I could excuse either of them — the woman in the morning or the man in the afternoon — I first had to relay their circumstances to the judge and obtain his direction to release them from further service.  

As a general proposition, the law doesn’t permit a court to excuse anyone assigned to a panel of prospective jurors on a criminal case upon its own volition — sua sponte, as it’s called.  A criminal defendant, especially a defendant in a capital case, has the right to hear, in open court and on the record, every prospective juror’s request to be excused.  Both sides have the right to ask questions, to see if there’s a way to accommodate a prospective juror’s needs, particularly if it appears that the individual is one who, should she remain, might swell the ranks of those most likely to judge the defendant in their favor.

But it would be impossible on a day like this one to assemble the attorneys and the defendant in a separate courtroom for the sole purpose of hearing individual requests to be excused.  Each request would take at least thirty minutes, and no process for lengthy interruptions could be accommodated.  So if the court were to excuse a juror on its own, without first consulting the attorneys, the excuse would have to be for truly extraordinary circumstances, and the record of those circumstances needed to be clear.  

After speaking with the judge I was able to return to the two jurors that day, thank them for coming, and excuse them.  I made a quick note of their assigned juror numbers and the reasons they provided.  Later the judge would place the two requests and his decisions on the record, reminding staff and counsel to update their panel lists to reflect his ruling.  


It was already past 10:00 when the back doors to the courtroom opened for the first time that day and jail staff entered with Mr. Mackey.  They escorted him to his attorneys who were already seated at their tables within a small space at the front of the courtroom reserved for staff, counsel, and the elevated judges’ bench.  A low knee-wall separated the space from the rows of courtroom benches into which each of the two-hundred prospective jurors had filed as they entered the room, holding their number cards and their information sheets.  

Several additional officers had entered ahead of Mackey and they were now taking their positions at various locations around the courtroom.  Two others flanked him as they walked him to his attorneys and waited for him to sit down.  Seated at the next table, the two prosecutors opened their files and prepared for the judge’s entry.


As rare as death penalty trials were in our state, a few weeks later another large juror orientation was scheduled for a second capital case pending before another judge in this same courthouse.  In that case the defendant, a Black man confined to a wheelchair after being shot in the alleged offense, was charged with killing a police officer.  The prosecutor was pursuing the death penalty against him, too.  

Both judges had prepared preliminary instructions to read to the prospective jurors.  Each set of instructions provided basic information about the case and the defendant, and about the laws that would govern certain aspects of jury selection and the trial ahead.  Each judge would thank the jurors for their patience, and try to explain the significance of their service, despite its inconvenience.  

At that second juror orientation a few weeks off, the judge in that case would try to emphasize the patriotic nature of jury service by concluding with the following remarks:

I know that this is difficult and inconvenient for many of you.  It is unusual for the court to have to summon this many people, but that flows from this type of case.  We no longer draft people into the military.  We ask of our citizens that they obey the laws, pay taxes, and — on rare occasions — serve your country and fellow citizens by appearing for jury duty.  This is the way we resolve our differences that cannot be resolved any other way.  It is what differentiates the United States from most of the rest of the world.  The verdicts you may be asked to make in this case are difficult, challenging, emotional, intellectual, and memorable.  Please keep the importance of this in mind as you respond to the questions.

The subtext of both courts’ instructions to the hundreds of individuals arriving for jury service on those two days, for the two different capital cases, was that this is what we asked for.  This is our death penalty law.  It’s what we, the state’s citizens, had said we wanted, and no state can make the death penalty available without all of the trappings that must accompany it under our constitution.

And those trappings are expensive.  They’re expensive for taxpayers, but they’re especially expensive for the two groups of sixteen jurors who would be impanelled to serve.  Who would be asked to suspend their lives and their families’ for five months, to listen to grisly evidence and painful testimony for five months, only to be required at the end of it all to decide whether to condemn to death a fellow citizen.  And then to live with that decision, whichever direction it took.

The judges knew that in a constitutional democracy — still governed by the rule of law, even if aspirational at times — it is important that none of those expenses, however attenuated, be concealed from the public or mitigated in their presentation.  If we were to keep the death penalty, then we had to be confronted with what it requires at every level to support its application as a viable, constitutional option.  The full price of the punishment had to be visible so that an informed decision could be made at some point on whether or not to retain it going forward.


It was 5:00 p.m. and we had made it to the final session of the afternoon.  I sat at my desk in the well below the judge, listening to him read the preliminary jury instructions to the final group of prospective jurors and scanning the courtroom to make sure that none of them got tired and decided to wander away.  

I glanced at my computer.  As if on cue an email arrived from the county executive.  The subject line read:  Proposed Biennial Budget.  The executive had sent the email to all county employees on this Friday before the Monday he was scheduled to deliver his proposed budget to the county council.  It had been his habit each year to inform first all of the employees who would be directly affected by the county’s financial affairs.  

There must have been years when the news was good, but this particular year was firmly in the category of the previous seven that had all followed the nation’s worst economic recession since the Great Depression.  In 2008 the cuts to the court’s budget had begun with a hatchet.  Those cuts had become just a little more surgical in the following years, just a little less deep, but we had never stopped bleeding.  Bleeding experienced, trained staff; bleeding critical services; and bleeding the constitutional integrity required to develop and maintain public confidence in the courts.

Ironically, 2008 was the same year that the incumbent prosecutor had made his decision to pursue the death penalty against Anders and Mackey.  Then, the very next year he would choose to pursue the penalty against a third defendant too, the man charged with shooting a police officer whose capital trial was set to begin just a few weeks after Mackey’s.  As a result, the dual imprints from the recession’s fiscal stamp on the court over those years flanked a single coin:  on one side, steep cuts in court services imposed by the county executive commensurate with decreasing revenue; on the other side, the insistence of the prosecuting attorney to pursue concurrently three of the most expensive criminal prosecutions available.  

By current estimates the three cases combined were pushing the $15 million mark.  If any of the three defendants received the death penalty, the cost of their appeals would make that sum soar.  “Put simply,” the executive had written in his email to employees that afternoon, “we operate under an antiquated and profoundly broken tax system that is mathematically incapable of generating the revenue necessary to sustain our current level of public services.”  

And he was right.  But as I prepared to get up from my seat to distribute the last bunch of questionnaires to the last group of prospective jurors, I considered the two conflicting mandates from the county’s executive branch:  prepare for more cuts; and pursue the death penalty at all cost.  Even if the cost is fewer public health services, fewer early-education opportunities for the county’s children, fewer veterans’ services or public safety initiatives.  I wondered what the results would be if everyone assembled in the courtroom that day could vote on the proposition.


At the conclusion of the judge’s instructions at each of the four orientation sessions staff handed out the questionnaires and then waited at the back of the cavernous courtroom for the jurors to turn them in.  As questionnaires were handed over, staff checked them for complete answers, and for the jurors’ signatures at the end.  The questionnaire was nearly 20 pages long.  It requested basic personal and family information, employment and educational history, and social interests.  It also asked for the prospective jurors’ thoughts about the death penalty, beginning with a simple scale of 1 to 7 on which they were asked to self-rate themselves.  Selecting 1 would indicate total opposition to the death penalty, and 7 an absolute endorsement.

In the week ahead we would comb through the questionnaires in open court and cull out everyone who had stated either a statutory disqualification, a severe medical hardship, or an absence from the area that prevented them from attending a five-month trial.  I would then schedule all who survived the cut — four-hundred of them — to appear in court for individual questioning on a specific day over the next three months.  

At 7:00 that evening the last juror handed in her questionnaire.  I walked around the courtroom to pick up pens, cups, and disposable water bottles tucked beneath the benches.  I then carried the four boxes of completed questionnaires down one flight of stairs to my office in chambers and locked them inside.  Finally, I returned to the various places around the courthouse where I had hung signs that morning to help direct the jurors as they arrived for orientation.  

I moved from floor to floor with the speed of a snail, pulling all the signs away from the marble walls and remembering how I had told myself — thirteen hours earlier when I walked around hanging them up — that this moment at the end of the day would come.  The moment when the work would be over, when I would retrace my morning steps to pull the signs down as the last thing I did that day, just as hanging them had been the first.

I then returned to my office, turned off the lights, locked the door, walked out of the courthouse, and stepped onto one of the last buses of the evening’s commute to head home for the weekend.  

3.16 Not Fair