3.19 The Law

3.18 Attack and Parry

Book Three / 19


Throughout the autumn months our court would remain immersed in a lengthy jury selection process.  Then, in January, having seated sixteen jurors, we would begin the first of two death penalty trials. 

To help the attorneys now, as they engaged in their questioning of each prospective juror, the prosecutor had prepared three large poster boards.  Each board contained relevant segments of the state’s laws, copied verbatim.  The words appearing on the boards would form part of the jury instructions given to the final twelve jurors for their deliberations, months away at the conclusion of trial.  

The boards were propped up on an easel placed off to one side of the jury box.  The first board provided the very last question that twelve jurors would have to answer at the very end of trial all those months away.  Despite its inartful construction, it was perhaps the most profound question in the law that any juror would ever confront.  Dependent upon each juror’s response was the life or death of another human being:

Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?

This was the state’s death penalty verdict form.  A jury’s unanimous answer of Yes to this question would be a verdict of death.  It would mean that the prosecutor had convinced all twelve jurors that any mitigating circumstances of John Mackey’s life, or of his participation in the crime, were not sufficient to merit the leniency of a life sentence without parole. 

A jury’s answer of No to this question would be an automatic verdict of life in prison without parole.  It would mean that the prosecutor had not convinced all twelve jurors.  That either all twelve had agreed that Mackey’s mitigating circumstances should spare him from the death penalty, or that at least one juror had reached that conclusion.  Either way, a response of No to that question would require the judge to impose the only other sentence available under the law:  life in prison without possibility of parole.  

The attorneys routinely poked fun at the language of the verdict question as they spoke with each prospective juror.  In a disavowal of responsibility, they wanted to be seen acknowledging the question’s convoluted, “lawyerly” language and its clunky construction.

The verdict question, however, wasn’t the only difficult concept with which those seated on the jury would eventually have to struggle.  There were two important principles underlying the question:  the presumption of leniency and the burden of proof.  They served as structural support for the integrity of the question’s application.  Although both principles could be summarized to the general satisfaction of any prospective juror answering the attorneys’ questions for thirty minutes that day, understanding their full significance to the fairness of the trial proceedings ahead would be much harder. 


Without thinking too deeply about it, many might believe that once a person has been found guilty of the type of crimes with which John Mackey had been charged, the death penalty would become the default sentence.  From death, the logic would go, a jury would be asked to decide whether, on account of mitigating circumstances, he then deserved a break:  a life sentence without parole, instead of death.  

On some level it just feels more intuitive that if a case is a death penalty case, and the defendant has been convicted, then a death sentence is presumed to be appropriate, that it would be the presumptive sentence, to use the legal term.  The defense would then have the burden of talking the jury out of that sentence because, as one prospective juror had explained in response to an attorney’s question, “that’s their job.”

The law, however, was the opposite.  It actually ran counterintuitive to the preconceptions of many of the prospective jurors who came in for individual questioning on this case.  

First, the state’s death penalty statute established the sentence of life in prison without possibility of parole as the presumptive sentence upon conviction of a capital offense.  As Mackey’s counsel would put it to a few of the prospective jurors:  for any individual convicted of aggravated murder, no matter how heinous, “the law is satisfied with a sentence of life in prison without release.”

This meant that for any defendant convicted of aggravated murder, a life sentence without parole would be the default punishment, and not the death penalty.  If a prosecutor decides not to pursue the death penalty when he charges aggravated murder in any particular case, a later conviction of that charge will simply conclude the proceedings and the sentence of life without parole will be automatically imposed.  The judge will have no discretion to lower the sentence to include the possibility of parole, or raise it to impose death.

But if a prosecutor does pursue the death penalty in an aggravated murder case, as he had against John Mackey, then conviction marks the end of only the first of two separate trials.  The jurors who just found the defendant guilty are seated again for a second, penalty stage trial to determine the sentence.  At this second trial they will hear evidence of the defendant’s personal mitigating circumstances.  And just as in the first trial when the defendant was presumed innocent until proven guilty, at the second trial a second presumption kicks in:  that he merits a life sentence until proven worthy of death.

This is called the presumption of leniency.  In the case against John Mackey, it would mean that the jurors would initially have to presume that he did not deserve to die for the crimes of which they had just convicted him.  In theory at least, they would have to maintain that presumption all the way through the second, penalty stage trial as the government sought to prove that he did deserve death.  Then, after the attorneys had presented their evidence on mitigation, the jurors would deliberate again, this time to determine whether the prosecutor has overcome the presumption of leniency, the presumption of not death.

Moreover, just as in the first trial on guilt or innocence, the prosecutor would have the entire burden of proof.  The defense would have no burden to prove anything; no legal responsibility to talk the jurors out of a death sentence.  Rather, it was entirely up to the prosecutor to talk them into it.  By law it was his job to convince all twelve jurors, unanimously, that the defendant’s mitigating circumstances were not sufficient to merit the presumptive sentence of life without parole.  

In other words — the prosecutor might argue to a jury — though the law would be satisfied with a life sentence, no one here today should be.

3.20 . . . or in Mercy