3.23 All of Us

3.22 An Ideal and a Goal

Book Three / 23


By the end of the first week of death qualifying our jury we had retained a handful of the forty jurors questioned over those four days.  During the morning session on the last day of the week a young man took a seat in the jury box who had circled ‘2’ on his questionnaire’s scale, indicating nearly solid opposition to capital punishment.  One of the attorneys asked him why he chose a 2 and not a 3, for example.  “Because I don’t think it’s right to kill a person,” the man volunteered.  

I thought about how confusing that response might be to someone entering the courtroom at that moment.  The same statement might be made to explain why the juror had selected a 7 on the scale — the defendant, after all, was on trial for killing six persons.  If the juror doesn’t believe it’s right to kill, then he might also feel that the state’s strongest penalty is appropriate for one who does.  

In fact, in a few weeks, after the judge and I had heard the answers from more than a hundred prospective jurors, we would remark privately how alarming it was to hear how many of them believed that the death penalty should be the sentence for everyone convicted of murder.  Aside from completely breaking the government’s bank, pursuing the death penalty for everyone accused of murder in the state would cause a backlog in the courts so large that special capital courts would have to be established, and very little else would be done.  

Yet many of the individuals questioned by counsel over the ten weeks would have exactly that opinion.  In response to a question asked of a prospective juror whether he thought that life in prison without parole was ever an appropriate punishment for murder, one person had written:  “If causing a murder was accidental, then maybe life without parole.”  This man seemed to support placing people in prison for the rest of their lives even if convicted of accidentally causing another’s death.

The young man before us that morning was not one of those individuals.  He landed at the other end.  His comment on the morality of killing a person had meant merely that he himself didn’t want the responsibility, or the weight of the decision on his conscience.  This man understood that each of a 12-juror body who votes unanimously to impose the death penalty becomes, in essence, a person ordering the killing of another person.  In the criminal law context, one who arranges the killing of another is himself a murderer.  When he’d replied that it wasn’t right to kill a person, he meant, of course, that he couldn’t do it, even when the government gave him permission.

Later that day another juror would explain her concerns about capital punishment with a reference to developing science.  Research was beginning to reveal the role that early cultural and neurological environments may play in the development of dangerous and criminal behavior.  “We’re all a product of our environment,” she had concluded from her reading.  

As I listened to her I was reminded of a cartoon I’d seen in The New Yorker a few decades back, when the country was plunging into its “tough on crime” era and our jails and prisons were beginning to explode with newly incarcerated individuals.  The cartoon, in a single panel, depicted a courtroom in session, with a judge at the bench, an attorney standing at counsel tables, and a full jury box.  In the cartoon the presiding juror is standing and reading aloud the jury’s verdict from a sheet of paper:  We find that all of us, as a society, are to blame, but only the defendant is guilty.*

Eventually, however, just as the jury in the cartoon had been able to let society off the hook for its contribution to the defendant’s criminality, the juror in our courtroom that day would also give free will its due.  One’s acts are a choice, she added, as a caveat to her own general doubts about moral responsibility.  

The real question, she explained — as much to herself as to the attorneys — becomes:  If one makes a choice to commit a heinous criminal act, can one’s environment, from possibly decades earlier, serve to mitigate personal culpability for that choice?  

Whether or not she knew it, she had perfectly summarized the issue that would be placed squarely before the twelve jurors chosen to deliberate in this case. 


Earlier that day a 75 year-old man had taken a seat in the jury box.  In response to an attorney’s question, he began telling the court that in the 1970s he had been “born again.”  Since then he’d become a leader in a global prayer group.  He spoke of the Bible permitting capital punishment, but also authorizing mercy where appropriate.  He’d concluded that he could impose the death penalty, but not in every circumstance.  And he confirmed that he would consider evidence offered in mitigation were he selected.  

In one of his answers on the questionnaire the man had mentioned that a family member had been a victim of a crime.  The prosecutor now asked him to elaborate a bit.  The man began to describe the murder of his wife’s brother a few years back.  He spoke deliberately, seeming to want to honor his memory of the man and even the family’s love for him by being considerate and clear with his words.  

He began describing the events with broad strokes, remembering and reliving them a bit as he went along.  He told us how traumatic the murder had been for his family, but when the prosecutor asked about the outcome of the case, whether he had been satisfied with the legal process and how the case had been handled, the man looked suddenly uncertain.  He paused for a moment as he withdrew from his memories to focus on the question.  He then acknowledged that he didn’t really know what had happened.  

As though he considered the prosecutor’s question odd, even not relevant to the story, he explained simply that he and his wife had been more concerned with taking care of themselves and their family after such a devastating loss.  They just hadn’t thought or cared that much about what had come of the person who’d actually caused the loss.  He said that they knew there was a legal framework available for the State to follow, and they trusted it would work, so they’d remained focused on their own grief and on dealing with its impacts on the family.  They had no interest in following any arrest or prosecution, and he was unaware of the outcome of any trial or negotiations.  

Throughout his response to the prosecutor’s questions about the earlier incident the man had remained quiet and somber.  There was no drama in his descriptions, nor any sense of moral superiority in his depiction of the family’s reactions.  Rather, it appeared that he and his family just didn’t feel the need for retribution or revenge.  There’d been no need to be sure that the person who’d killed his brother-in-law would be punished appropriately, or would somehow pay for it.  That person had done this horrible thing, the juror was admitting, but it was a sunk cost, as they say in business circles.  Why throw good energy after bad?  Nothing, no efforts he and his family might now expend, or revenge they might have pursued through trial, would ever bring his wife’s brother back to them, not even a successful prosecution or a severe penalty.  

By the end of the man’s response to the prosecutor we were all riveted to his story, and possibly to its implications for death penalty prosecutions.  He seemed genuinely to have no interest in making sure that the person who’d caused his suffering would himself suffer.  He observed quietly that he didn’t really know what had happened to the person, not even whether the prosecutor had caught him and tried him, convicted him, or sent him away.  He almost appeared surprised at the suggestion that it was something he might track.

The man struck me as one whose disposition was perfectly suited for the religious life he’d chosen.  A man whose life on the ground, in practice, was the lived complement of his religious commitment.  His story, and his demeanor, had sobered us all.  He was one of many jurors whose responses to the attorneys’ questions in court made lingering impressions.  Impressions that would later fuel my conversations with the judge at the end of a day when we’d return to our chambers offices, worn out and even worried by the suffering we encountered merely in the lives of the prospective jurors.  

We hadn’t even made it to trial yet, we reminded ourselves.  

*(c) Michael Maslin, 1997.