3.22 An Ideal and a Goal

3.21 Day One

Book Three / 22


We were now a few days into the death-qualification process of jury selection.  We had individually interviewed a couple dozen prospective jurors and we were beginning to notice certain themes.  Many of the jurors expressed skepticism of capital punishment, yet remained concerned for public safety.  They worried about a lingering risk of danger whenever an extremely violent individual is locked up.  

One young woman, for example, had identified the role of the death penalty as being important for “the comfort of the public.”  She remained ambivalent about the penalty due to its cost, and she had doubts about its ability to deter others.  But she thought it might assure the public that the criminals it fears most would never be free again.  In that way, she believed, capital punishment served a “mental” purpose.  

Another juror said that he was concerned about the fairness of the process, of the way we determine who actually dies.  Sirhan Sirhan, James Earl Ray, Charles Manson, he listed their names — their crimes were outlandish, and they should have been given the death penalty but were not.  He also identified the problem of executing a person who is later exonerated, through DNA or other evidence. 

As this man became more comfortable, seated alone in the jury box with four attorneys and the judge leaning in to listen, he began talking about his background, giving context to his concerns.  

“I worry that constitutional rights are applied randomly,” he explained.  He believed in constitutional law, he assured the court, but only up to a point.  In 1952 his Japanese parents had immigrated from Asia, but they found that they weren’t eligible to be naturalized in the United States.  Somehow — the juror mused — the Constitution guaranteed the right of Chinese Asians to become naturalized, but not anyone else from Asia.  It seemed the Constitution could offer protection to some immigrants but not others, or at one particular time in history but not another.  This apparent randomness made him think that the entire process of guaranteeing rights under the constitution was unfair.  

“But that said,” he concluded, “although I’m skeptical of the law, I’m also deeply respectful of it as an ideal and a goal.”  He would be able to apply the law in this case as well as he could, he confirmed, if he were ordered to do so.  

The last juror of the day was an individual who had selected a 1 on the questionnaire’s scale.  The prosecutor began his questions first.  He quickly confirmed the juror’s complete opposition to the death penalty:  there was no possibility of imposing death, the juror agreed.  

It was now up to the defense to try to rehabilitate the man if they could.  They would need a few answers from him showing that he could be budged a little if given the proper scenario, that if the most heinous facts were placed before him, he could follow the court’s instructions and remain open to considering the death penalty.  

What if young children were the victims? — defense counsel inquired.  Maybe, the juror admitted somewhat reluctantly.  He has a special needs sister, he tells us, and he’s very close to her.  When he thinks of someone harming his sister, he says, he begins to feel protective.  

The attorney probed further.  Did he think that the federal government’s execution of Bin Laden was appropriate?  The juror says yes, actually, he did think it was appropriate in that case because of what Bin Laden had done, and the danger he continued to pose to the American public.  

Encouraged, Mackey’s counsel pushed further.  He asked whether, if his client were convicted of the horrible crimes alleged — the murder of six individuals from a single family, including two young children — and if he clearly posed a continuing danger to the public were he left alive, could the defendant follow the law and possibly impose the death penalty if warranted?  Somewhat surprisingly, given his previous answers about young children and future dangerousness, this time the juror said no, citing concerns over cost.  

The defense had managed to reveal in the juror some ambivalence about capital punishment rather than the rigid opposition he’d displayed in response to the prosecutor.  But a distinction remained in the juror’s mind that didn’t favor their strategy, some line between his broad category of no death, and a sliver of yes, maybe.  The attorney just couldn’t identify what that line was, or where it lay.

The judge stepped into the questioning and asked the juror specifically what he would do if Bin Laden were not executed but had been brought to New York instead, and afforded due process.  Would he, the prospective juror, impose the death penalty under those circumstances, if he were on the jury?  

The man responded that it was unlikely.  He elaborated briefly, in a manner suggesting that the line between no death penalty and possibly death penalty existed where danger is imminent and legal process unavailable.  In those circumstances, he told the judge, summary execution by federal officials is appropriate.  But if due process is available, then that’s sufficient to eliminate the risk.  The judge thanked the juror and excused him back to the jury room to wait for the court’s decision.  

Due process was clearly available for John Mackey.  In fact, the prosecutor was fond of pointing out to the court that the defendant had already received nearly seven years of it.  This time, when the prosecutor challenged this juror as substantially impaired, the judge agreed.

3.23 All of Us