3.20 . . . or in Mercy

3.19 The Law

Book Three / 20


During jury selection for most criminal trials the attorneys do not delve into the precise language of the laws that will govern deliberations.  Jury selection for a death penalty trial is different.  The process requires introducing to prospective jurors certain rules they must follow if a prosecutor will be asking the jury, at the conclusion of trial, to choose death. 

The rules that govern the state’s death penalty trials are tricky, but all together they provide a critical context for the attorneys’ questions when selecting a jury.  The attorneys need to explain these rules to each of the prospective jurors so that the questions they ask make sense. 

A second poster board stood next to the board containing the death penalty verdict language.  It presented the rules on the burden of proof and the presumption of leniency.  These rules would be among the jury’s instructions for deliberation.  In considerably smaller font the rules appeared together on the board:

During the sentencing phase proceeding, the State has the burden of proving to you beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.  If the State meets this burden the death penalty will be imposed.  The defendant does not have to prove the existence of any mitigating circumstances or the sufficiency of any mitigating circumstances.  

The defendant is presumed to merit leniency which would result in a sentence of life in prison without possibility of release or parole.  This presumption continues throughout the entire proceeding unless you find during your deliberations that it has been overcome by the evidence beyond a reasonable doubt.

The presumption of leniency heading into the sentencing proceeding was simple enough after a bit of thought.  It was merely a parallel principle of the presumption of innocence:  innocent until proven guilty; deserving of life until proven deserving of death.

The tricky part of it, at this stage, was asking a prospective juror to set aside for a moment the presumption of innocence in order to discuss right now the presumption of leniency that would govern a jury during the separate sentencing proceeding.  In other words, to set aside the presumption of innocence and, for purposes of the attorneys’ next few questions, presume their client’s guilt.  This was a presumption that ran counter to every instinct of a defense attorney, but there was no way to get around it.  

The defense knew that at trial the judge would instruct the jurors to presume Mackey’s innocence all the way through trial, to keep an open mind until all of the evidence had been presented.  And at this critical stage of selecting a jury, his attorneys certainly didn’t want to introduce any subliminal suggestion of guilt into the mind of someone who could be seated as a juror and be asked at trial to decide that very question. 

And yet here they were, far in advance of trial — with the presumption of innocence still very much at play — conceding nothing, but having to ask each prospective juror to suspend that presumption and imagine that their client is guilty.  They had to tell each prospective juror to presume guilt for the moment in order to find out whether, if seated on the jury, she could presume leniency later, when it came time to decide Mackey’s punishment if he were in fact found guilty as charged.

In this difficult maneuver Mackey’s attorneys would give each prospective juror an outline of the gruesome facts of the crimes.  They would then ask the person to assume, briefly, that their client was guilty of those crimes, and answer their follow-up questions about the imposition of a proper punishment.  

Studies had shown that this process of suspending the presumption of innocence can infect prospective jurors with a subconscious bias toward the defendant’s guilt.  In an attempt to inoculate the jurors right up front, to ward off the potential for bias or mitigate its impact down the road, Mackey’s attorneys would begin their questions by confronting the dilemma head-on.  

“Trial has not yet begun,” one of the two defense attorneys would start off his questioning, facing a prospective juror and speaking earnestly.  “No jury has even decided whether Mr. Mackey is guilty or innocent.  But we have to talk to each of you about the possible sentence because the law says we have to.”  

Often the juror would nod at this.  It made sense, and most were familiar with the presumption of innocence.  “So when we ask you questions about the death penalty,” the attorney continued, cautiously, “we’re not suggesting our client is guilty, we’re just following the law.”

In the case against John Mackey, defense counsel had decided that they couldn’t hold back any of the basic facts about the crimes.  It would be in their client’s best interest to describe those facts to each prospective juror right up front.  They could then ask whether, on those facts and despite anything in mitigation a jury might learn about their client, she could ever impose a sentence other than death.  

Phrasing the question to cause the least harm to their client, the attorney would approach the individual seated in the jury box, look directly in her eyes, and then slowly ask the ultimate question.  

“If you were on a jury that had convicted Mr. Mackey of premeditated, intentional murder of six innocent people including two young children, without legal excuse, a man who — the evidence may show — was crazy, but not crazy enough to be excused for insanity, would you be able to begin the sentencing hearing with the presumption that he merits leniency:  life in prison without possibility of parole?”

If the individual said yes, that she could presume leniency heading into the penalty hearing on those facts, counsel would follow-up with questions about mitigating circumstances.  What would you be interested in hearing about, he might ask.  What kinds of information would confirm for you that my client, if he were found guilty, deserved that sentence of life in prison without parole, and not the death penalty?

The final poster board off to the side of the jury box contained the language in the law that defined a mitigating circumstance for the jurors.  The attorney would now direct each person’s attention to the words:

A mitigating circumstance is a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability, or which justifies a sentence of less than death, although it does not justify or excuse the offense.

As each juror responded to the questions on mitigating circumstances posed by one of the two defense attorneys, the other of the two took notes.  If a prospective juror indicated a desire to hear about Mackey’s childhood, for example, or his remorse, and if that juror were seated on the jury, she would hear about Mackey’s childhood, and about his remorse.

3.21 Day One