3.18 Attack and Parry

3.17 Sunshine

Book Three / 18

We were now at the beginning of the second of three stages in the process of selecting a jury for John Mackey’s trial.  Stage one had been juror orientation, a single day event in which seven-hundred prospective jurors had answered a lengthy questionnaire.  From that group four-hundred had been selected for stage two.  Over the next ten weeks, this second stage, we would be questioning all four-hundred individually in order to cull out somewhere close to seventy-five.  Those folks would return in December for two days of group questioning.  At the conclusion of those two days — the third stage of the process — the attorneys would select sixteen to be seated for trial, twelve who would ultimately deliberate, and four alternates who would be selected at random at the end of trial.  

The trial itself would be divided into two stages.  The first stage would determine whether Mackey was innocent or guilty.  The second stage would determine his sentence, either life in prison without parole, or death.  This entire process of death-qualifying a jury was meant to help the attorneys answer a single question:  not so much whether a prospective juror could set aside his emotions, commit to viewing all of the evidence without bias, and sit in fair judgment of the defendant, but rather will this individual, as a juror, vote for or against the death penalty?  

When we’d finally arrive at the start of trial a few weeks down the road, the prosecutor and the defense would have competing goals with respect to that question.  The prosecutor would have to prove Mackey’s guilt, but also that, if convicted, he deserved do die.  Mackey’s attorneys would have to defend against the prosecutor’s evidence of guilt but also, and more importantly in this case, against his attempt to obtain their client’s death.  

Toward these two different targets each set of attorneys had their weapons to deploy.  They knew that the judge would excuse automatically any prospective juror who was categorically opposed to the death penalty.  The prosecutor’s strategy, therefore, was to focus on removing all who even came close.  His goal over these ten weeks was to remove from the pool of prospective jurors any who would be unable to vote for death when the time came.  He wanted that small group who would appear in December for two final days of jury selection to contain as few of these types as possible.  To do this he needed to prove to the judge that they were substantially impaired in their ability to be fair to the government. 

On the other hand, these would be jurors that Mackey’s counsel craved.  Far out in the future, at the very end of the trial as the jurors headed into their final deliberations, the defense would need just one juror out of all twelve to vote against the death penalty.  This meant that they would want to convince the judge in the weeks ahead to allow into the final pool of prospective jurors as many “substantially impaired” individuals as possible.  They would defend these folks vigorously against the prosecutor’s challenge to have them excused. 


At times the attorneys’ sparring for and against particular jurors made for counterintuitive movements.  If a prospective juror being questioned confessed disfavor toward capital punishment, for example, but not outright opposition, Mackey’s attorneys would get to work to preserve her.  Wanting to keep that kind of person in the pool for the final round in December, they would push to elicit an acknowledgment from her that she could actually vote for the death penalty if the facts supported it.  The defense wanted to defeat the prosecutor’s challenge of such a person, and for that they needed a clear assertion of her ability to follow the law, a promise that she could impose death against their client if warranted. 

The defense also needed to identify individuals near the opposite end of the spectrum, those whom they wanted removed from the pool of potential jurors.  They knew that the judge would excuse all who self-identified as categorically inclined to impose the death penalty just as he would excuse those who were categorically opposed.  To improve their odds, however, the defense needed to identify any who even came close to strongly in favor.  These would be folks the prosecutor wanted on the jury but Mackey’s attorneys did not.  

To remove these prospective jurors from the pool the defense would need to convince the judge that they were simply too predisposed to vote for death.  That despite vowing that they could follow the judge’s instructions and give full consideration to mitigating circumstances, their decision would actually be guided by their bias for capital punishment.

Whenever Mackey’s attorneys encountered this type of juror, they would question him probingly in an attempt to move his death penalty dial closer toward strongly in favor.  They would begin with a summary of the facts of the case against Mackey, including the critical details.  “Our client is accused of killing six people on Christmas eve,” they’d explain.  “Three generations of a single family including two toddlers, one still in diapers.”  From their description of the crime they’d work to elicit a statement or sentiment from the prospective juror that, given those facts, he would have no choice but to impose the death penalty.  

If the defense obtained such a statement from a prospective juror, then the prosecutor would try to “rehabilitate” him with his own series of questions.  These would be questions designed to turn the juror back around, to elicit his commitment to following the law when the time came to decide Mr. Mackey’s punishment, and refrain from imposing death if mitigating circumstances were sufficient.  Although the prosecutor wanted to seat jurors who would vote to impose the death penalty — jurors just like these — his strategy at this stage was to show the judge that this type of individual could commit to considering seriously any evidence in mitigation and be open to a sentence of life in prison.  

The prosecutor, of course, needed to convince the judge to keep as many as possible of these folks in the pool for December.  When the time came for the jury to decide Mackey’s fate, the prosecutor wanted to face the friendliest group of individuals he could assemble given the constraints imposed on the process by law.  These would be folks in two main categories:  all who were close to being firmly inside the capital punishment camp, and any in the middle who could be swayed by the facts that death in this particular case — death for John Mackey — was the only just sentence.  If the prosecutor could seat sixteen such jurors to hear this trial, he believed, their collective outrage and sympathy would drive a vote for the death penalty.

3.19 The Law