3.16 Not Fair

3.15 The Price of Punishment

Book Three / 16

It was a Monday morning in early October, a couple weeks after the Friday juror orientation.  An hour after I arrived at work I unlocked the doors to our courtroom and greeted the first group of prospective jurors to appear for individual questioning.  Six had been scheduled that morning.  By 9:00 they had all arrived.  

Each morning and each afternoon for the next ten weeks I stuck to a routine.  I gathered the jurors for the half-day’s session in the small jury room at the back of the courtroom and introduced myself.  I then gave them an overview of the day’s proceedings so they would know what to expect.  We would be calling them into the courtroom individually until we had spoken with all of them.  When they were not in the courtroom, they’d be expected to wait with the group in the jury room.

“I hope you’re able to relax as you wait,” I’d say to them, about as optimistic as a nurse addressing a patient waiting to be wheeled into the operating room.  “The judge and the attorneys are professional and kind.  No one wants any of you to feel uncomfortable.  We should be done before noon and you’ll all be excused by that time.”

The introduction also included my “numbers funnel,” as I would come to think of it.  Everyone arriving for individual questioning had been present back in September for the Friday orientation.  They had seen the courthouse filled with hundreds of prospective jurors like themselves that day, but that’s all they knew.  Now, as they waited in the jury room to be called into the courtroom for their 30-minute questioning, I wanted them to understand their position within the entire selection process, to know that they were not alone in the inconvenience we were imposing on them.

“The court started back in July by mailing three-thousand summonses to residents of the county,” I explained to each small group.  “At the orientation in September we took that nineteen-page questionnaire from seven-hundred of you.  From those seven-hundred we selected four-hundred to interview individually, ten a day through mid-December.  From those four-hundred we’ll be choosing around seventy-five to return for two days late in December, and at the end of those two days we’ll seat a jury of sixteen for a trial beginning in January.”  

If you’re here today — I’d say to them jokingly, hoping they’d infer from my remarks a sense of good fortune — then you won the jury jackpot.  And we’re grateful for your service.  

A few smiled back.


The concept of a “fair” juror for a death penalty trial — or, more properly, a not fair juror — had been redefined by the United States Supreme Court in 1985.  Prior to 1985, a not fair juror was one who held an automatic, categorical inability or refusal to impose capital punishment in all possible cases.  Such a juror was deemed not fair to the government.  Consequently, to death-qualify a jury before 1985 a trial judge had only to excuse all prospective jurors who affirmed that they would never impose the death penalty, no matter how compelling the evidence might be. 

The reasons for this rule were clear enough.  In our state, for example, the vote of a single juror against the death penalty automatically imposed a mandatory sentence of life in prison without possibility of parole.  Consequently, in order to give effect to the lawfully available sentence of death, a judge had to excuse anyone who would refuse on principle, in all cases, to impose the death penalty.  But so long as a prospective juror was not categorically opposed to capital punishment, then — prior to 1985, at least — she or he would still be considered a fair juror for a capital case. 

In 1985, however, the Supreme Court changed the rules of the game by enlarging the definition of a not fair juror.  It decided that a juror might be not fair to the government not only if his opposition to the death penalty meant that he would never impose a death sentence, but also if he held any level of opposition that could “substantially impair” his ability to do so.  

In other words, the full group of not fair prospective jurors would now include all whose ability to impose death was completely impaired plus all whose ability to impose death was substantially impaired.

What this meant on the ground, in actual death penalty trials, was that the government’s goal of seating a jury that would sentence a defendant to death became a little easier.  After 1985, even if a prospective juror promised that he could follow the law and impose the death penalty if warranted, though he remained generally opposed to it, a prosecutor could still request that the judge excuse that juror, and the judge would have a basis for agreeing.  The 1985 Supreme Court decision had improved the prosecutor’s ability to shape a jury that would be more inclined to impose death.

On the flip side — from the defense position — although a judge now had the discretion to excuse more prospective jurors based on a prosecutor’s challenge for cause, a judge could also deny that challenge.  If the defense could show that an individual’s commitment to following the law was convincing, that she’d been sincere when she promised that she would consider all of the evidence and impose the death penalty if warranted, then the judge could still find her to be fair, even though she remained generally opposed to the punishment on principle.

It might seem crass to speak baldly of a prosecutor calculating to seat a jury of twelve individuals who would all vote to put to death another human being, but that is the ultimate goal of a prosecutor in a death penalty trial.  In theory, of course, a prosecutor’s professional responsibility is to work justice, to pursue whatever outcome is most fair and just.  In reality, however, having decided to pursue the death penalty in these two cases a few years ago, and having secured its authority and reaffirmed its commitment through two costly mid-trial appeals to the state’s Supreme Court, the prosecutor’s office would say that pursuing the death penalty against these co-defendants, for these crimes, was fair and just.  

The prosecutor’s goal was absolutely to win a death penalty verdict against both Mackey and Anders, having put so much time and money into their cases already.  And as a consequence, the prosecutor had to seat jurors who would accomplish that goal.  


With this standard in mind we plunged into the process of individual questioning.  It was shortly after 9:00 a.m. when I escorted the first prospective juror from our jury room out into the courtroom.  The judge was on the bench, staff were seated at their desks in the lower bench area, the two prosecutors sat at one table, and the two defense attorneys sat at another with their client between them.  The judge asked the juror to take a seat in the jury box and began his introductions.  

We would proceed similarly through all four-hundred prospective jurors over the next ten weeks:  after the judge’s introduction each side would have fifteen minutes to ask questions of the individual in the box; at the end of the thirty-minute session the judge would excuse the juror back to the jury room; the attorneys would make any challenge for cause, and the judge would rule.  I would then return to the jury room and escort the next prospective juror into the courtroom for questioning.

3.17 Sunshine