3.21 Day One

3.20 . . . or in Mercy

Book Three / 21

We had finished with the first prospective juror on the first day, and the second had taken a seat in the jury box.  The two teams of attorneys were taking turns:  the prosecutor had begun the questioning with the first juror; the defense would start with the second.  

This juror had indicated on his questionnaire that he strongly supported the death penalty.  Mackey’s attorney began his questioning of the man by explaining the presumption of leniency that protected his client in the sentencing trial.  The attorney then asked the juror to read the definition of mitigating circumstances on the poster board to his left.  

When the juror finished reading, the attorney described the facts of the charges against his client:  six murders, Christmas eve, a single family, two small children.  He asked the man whether he thought he could move from conviction — were that the verdict — into a sentencing proceeding maintaining a presumption of leniency for his client, after finding him guilty on those facts.  The juror said he could not.  

The attorney continued to press the man, to give him several opportunities to state clearly, for the record and for the judge, his inability to presume leniency if he were called upon to determine the penalty for a crime of that nature.  At the end of fifteen minutes the juror confirmed that he didn’t think anything but the death penalty would be appropriate in this case.  He could not vote otherwise.  

It was now the prosecutor’s turn.  He would try to rehabilitate the prospective juror, to see if he could elicit some less rigid response, just enough flexibility to oppose the defendant’s challenge for cause.  He could not.  When the questioning ended and defense counsel moved to strike that juror from the panel for cause, the prosecutor didn’t bother to argue.  The judge granted the motion, and the juror was stricken.  

The first juror had also been stricken.  We had just begun the process of selecting a pool of prospective jurors, all death-qualified, to return in December for the final round of jury selection.  We were 0 for 2. 


The third juror stepped into the jury box and the prosecutor glanced at his notes.  The questionnaire that each of the prospective jurors had filled out back in September contained a scale of 1 to 7 on which they were was asked to self-rate their position on capital punishment.  A rating of 1 meant that the juror was strongly opposed to the death penalty.  A rating of 7 meant that the juror was strongly in favor.  

Any selection of 3, 4, or 5 was considered the golden mean, a juror who might be one of the magical few without a strong predisposition in either direction.  This prospective juror, number three on our list that first day, was not a 7, but some of his responses indicated strong support for capital punishment.

The prosecutor began with some warm-up questions.  In response the juror revealed that his stepfather was an assistant district attorney in a midwestern city, so he was close to someone with direct experience of criminal trial proceedings.  He believes, he told the prosecutor, that the death penalty generally is a necessary evil because it can dissuade or deter people from committing the worst crimes.  He also leaned toward capital punishment for dangerous offenders, he said, out of a concern for the safety of prison officials.  

Although the deterrence function of capital punishment continues to be disputed among experts, the problem of future dangerousness was a legitimate concern.  The most recent person to be sentenced to death in our state had killed a corrections officer at the prison where he’d been serving a life sentence for a prior crime.  Investigations after the murder had resulted in the firing, demotion, or discipline of many officers who’d been on duty that night, suggesting that systemic problems with the prison itself had contributed to an unsafe environment for staff.  But the jurors in that case had decided that any mitigating circumstances of the defendant were not sufficient to merit life in prison without parole.  In voting for the man’s death, they were likely concerned about his future dangerousness, given that he had committed the murder of the officer while already behind bars for life.  That case could have been on the mind of our third juror now.

He then added that he also supported the death penalty because he was worried about the cost to taxpayers of imprisonment.  This notion would become one of the more common reasons we would hear over the next ten weeks for a juror’s support of the death penalty.  Unlike future dangerousness, however, the belief that housing a defendant for life was more expensive than a death sentence was not supported by the data.  

Despite the popular misconception that a life term in prison costs more on average than it costs to litigate, win, and defend a sentence of death, the attorneys could not stop in the middle of jury selection to correct a classic misimpression.  At this stage they could only make a note of the response.  They could ask a question, clarify their question, and attempt to clarify any response, but they could not argue a point of law with the man, or provide information to him from the growing body of social science research.

After the prosecutor finished his questions the defense attorney took his turn.  This third prospective juror had not said that he would always, categorically impose the death penalty for crimes like these.  He said only that he generally supported capital punishment as an option.  Defense counsel knew they would be unlikely to convince the judge to excuse the man, so they decided to prime him for their position instead, just in case he ended up among the sixteen selected for the jury in December. 

The strategy of the defense, in the face of a prospective juror like this man, was to expose him to the principle of scrupulous fairness.  To extract a promise from him that if he were seated on this jury, and their client were found guilty, he could set aside his general favor for the death penalty and engage in fair deliberations on all of the facts presented.  That he would enter the penalty proceeding with the presumption that life in prison without parole is the appropriate, lawful punishment.  That he would listen to the evidence presented about Mr. Mackey by both parties, and he would follow the court’s instructions for their deliberations.  And then, when the time came, that he would be able to impose a life sentence — and not death — if it’s what the evidence supported.

Could he do all that? — the attorney asked.  The juror said he could.

When the attorneys were done with their questioning the man returned to the jury room.  Knowing that their chances were slim, the defense challenged the prospective juror for cause.  “He said he’d consider the deterrence potential of capital punishment,” the attorneys argued to the judge, “as well as the cost of imprisonment when deciding the sentence.”  Neither were factors that a jury in this case would be allowed to consider. 

The prosecutor countered that the juror had not yet been instructed otherwise, as he would be at trial.  He simply didn’t know at this stage that those two factors were impermissible.  The man had committed to following the court’s instructions, the prosecutor emphasized, and that was all that was needed at this point.  

The judge denied the defendant’s challenge for cause, and we had our first juror on the short list for December.  


After a short break we continued questioning the jurors scheduled for that morning’s session.  The last one was exactly the sort of juror that the U.S. Supreme Court’s 1985 ruling had been aimed at:  an individual whose ability to be fair to the government was not categorically broken, but might be substantially impaired.  

On the questionnaire this juror had written that his “moral bearing” included an opposition to capital punishment.  He explained that, in his opinion, the death penalty exists as a “barbaric relic” and was rarely appropriate, although it might be appropriate in a situation where the person was “actively rallying others.”

In order to support his challenge for cause, the prosecutor needed answers from the juror that revealed a substantial impairment.  It was a shifty standard, a little vague.  Success would depend on the prosecutor’s ability to make a good argument from both the juror’s answers and his overall demeanor.  But it would also depend on the judge’s willingness to go there, to see substantial impairment, or at least to meet the prosecutor somewhere along the way rather than making him cover the full distance himself.  

The prosecutor faced the juror sitting before him in the jury box.  It was nearing noon.  He listened while the juror explained that his beliefs about capital punishment were based on his feeling that people are innately good and deserve to be treated well.  He was concerned that the language in the statute governing both the process and the scope of a juror’s decision took moral guidance away from the jury.  That it restricted certain thoughts that could be brought to bear on the proper sentencing decision.  

At a pause the prosecutor began a follow-up question.  The question was long and a little confusing.  As the rest of us watched, we understood that he was trying to craft an inquiry that would elicit the response he needed, but that he was getting bogged down by excessive caution.  

The question wound its way through a few embedded clauses as the prosecutor tried to focus on whether the juror’s opposition to capital punishment would make it impossible for him to follow the judge’s instructions when it came time to deliberate in this case.  He then came to his conclusion:  “… such that you think you’ll feel somehow tainted with a barbaric relic?”  

The juror had been watching the prosecutor intently, trying to follow his question all the way through.  The prosecutor now looked at the juror hopefully.  The juror returned his gaze.  A heavy silence hung around us as we watched their interaction.  

“What was the question again?” the juror finally asked, shyly.  

“I have no idea,” the prosecutor joked, to polite laughter in the courtroom.  He then tried again, with greater success.  “Is there anything in the category of:  this is just the morality of my life and I cannot change it under any circumstances?”  

The man replied that he had no good answer.  Backtracking slightly, he concluded that maybe the death penalty isn’t exactly barbaric, but it’s definitely “a sour mark” on our society.  It glamorizes violence in some sense, he explained.  Life in prison without parole is generally a more appropriate punishment.  

The prosecutor listened, thanked the man, and sat down.

Both sides having finished, the judge turned to the man with his own question, trying to patch a few remnants of ambivalence.  “Are there any circumstances under which you think you could impose the death penalty?”, he asked.  The juror said he thought he could, maybe in one percent of the most extreme situations, against those individuals who might be a “contagion” to society generally.  In those circumstances, he concluded, he could impose death, though it would haunt him.  And he would want to be very, very sure.

The prospective juror returned to the jury room.  As expected, the prosecutor brought his motion to excuse the man as substantially impaired.  The prosecutor conceded that the man had said he could follow the law, despite the difficulty it would pose for him, but he remained concerned that the man considered the death penalty to be truly barbaric, and not merely a sour mark as he had tried to suggest.  

“We all know that when someone says that something is ‘maybe not one thing, but definitely another thing’,” the prosecutor argued, “he means that he thinks it’s actually the first thing.  He just recognizes that it sounds extreme.” 

The prosecutor may have been right on that point.  In fact, the term ‘barbaric’ would turn out to be the most common word used by prospective jurors who opposed the death penalty, and many of them would not be retained.  But simply believing that capital punishment was barbaric was not, on its own, sufficient to render a juror substantially impaired in his ability to be fair if he could commit to following the law as it was given to him, despite his beliefs.  This man had told the judge that he could follow the law, reluctantly, which meant that he was qualified to serve.

3.22 An Ideal and a Goal