Civil Disobedience and the Death Qualified Judge and Jury

Yesterday, I wrote about Judge A.J. Wagner who took himself off a death penalty case because he believed the death penalty law was unconstitutional and immoral, and he concluded that he could not in good conscience ever sentence someone to death.  I commended his decency but wondered about whether it was for the best.  I wrote this.

Good for Judge Wagner.  He won't participate in a system that might require him to sentence someone to death.  And he's willing, and able, to explain with some eloquence why he believes that such a sentence is fundamentally wrong and immoral.  That's no small thing.  Let it be a lesson.

Bad for Judge Wagner.  His refusal to particpate means that a judge with serious concerns about the death penalty, one who would examine a capital case with the utmost care, won't get involved.  He won't be there to override the jury's verdict of death should that be appropriate.  He won't be in a position to stand up and say, "Not this time."

I talked about that in the context of enabling the system.  I discussed my own sometime qualms about doing capital work since I am, therefore, allowing the system to function - however well I might also be doing a job of removing people from its maw.  (And yes, I know I'm mixing my metaphors; tough, it's my blawg.)

Today I received this anonymous comment.

I don't understand why an anti-death judge would make such a decision. One of the biggest criticisms of death qualifying a jury is that it weeds out an important population in the evolving standards framework. It boggles my mind why a judge would do the same voluntarily. Does OH have an elected judiciary? This may be more about his reelection than his principles. It would be nice if we abolitionists had the converse of a hanging judge. One who would continue to allow his or her personal convictions affect decisions, but at least in favor of the accused.

I started to write a reply comment, but there's really more to say than that.  So this follow-up post is, well, follow up.

The anecdote.

I was walking through an Ohio courthouse one day when a trial judge - tough, no-nonsense, former prosecutor, hard-nosed, but opposed to the death penalty - buttonholed me.

"Can't you do something about this death penalty business?" The judge asked.

As I said, the judge hated the death penalty, would work like a dog to convince the prosecutor to offer a deal to take death off the table and then to convince the defendant to take the deal.  The judge would also sentence people to death if the jury recommended it. 

"Can't you do something about this death penalty business?" The judge asked.

"I do what I can," I said.  "But you actually can stop it."

The judge glared at me for a few seconds, then turned and walked away.

Scalia speaks.

Antonin Scalia, Supreme Court Justice, Roman Catholic, supporter of the death penalty, believes the Church's opposition to the death penalty is due to the Church misunderstanding Catholic doctrine. (He's explained that more than once, though the formulation I use to describe his disagreement with the Church is mine, not his.)  Here's part of an AP report from February 2002 after he spoke at Georgetown University.

In Chicago on Jan. 25, Scalia said, "In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty." His remarks were transcribed by the event sponsor, the Pew Forum.
Scalia said Monday that "any Catholic jurist (with such concerns) ... would have to resign."
"You couldn't function as a judge," he said.

The ugly process of what we call "death qualification" involves removing from the jury anyone who cannot fairly consider imposing death.  That "fairly consider" is court language that means, when you plow through to simple English, that people who are opposed to the death penalty don't get to sit on the jury because they aren't likely to vote to kill.  (The law also permits removal of those who make clear clear that they will never vote for life but will always kill.)

The theory behind death qualification is the theory behind insisting that jurors follow the law.  A juror who will never vote for death (or for life), can't seriously determine (or so the court's say) whether death is an appropriate sentence in this or that case and vote appropriately.  The juror has, in effect, prejudged the case.

Scalia (yes, we're back to him), has opined at some length (Morgan v. Illinois, in dissent) that there's no legitimate constitutional basis for insisting that those who will never vote for life should be removed from a capital jury, though it's OK to insist on removing those who will never vote for death because they would be lawless.  His point is that those who will always favor death have concluded that no mitigation evidence can be sufficient to overcome, or  balance out, or whatever aggravation.  It's not that they won't consider life verdicts, it's just that they'll never be appropriate.  (The same is, of course, true as a converse for jurors who will never vote for death, though Scalia won't credit that.)

So just what's the right thing for a judge like Wagner to do?

Ohio law says that, during the sentencing phase of a capital trial, the aggravating circumstance or circumstances proved beyond a reasonable doubt during the guilt/not guilt part of the trial shall be weighed against any mitigating factor or factors proved by a preponderance of the evidence.  If the aggravating stuff outweighs the mitigating stuff beyond a reasonable doubt, then the defendant is to be sentenced to die.  If not (tie goes to the defendant as it goes to the runner in baseball), the senence is to be life.

Wagner has taken an oath to obey the law.

If his view is that aggravation, however great, can never outweigh the mitigating fact that, say, the defendant is a human being, then he can conscientiously say that he will follow the law and if it is appropriate impose a death sentence.  (It's just that it will never be appropriate.)

If his view is that he'll never impose a death sentence even if he finds that aggravation outweighs mitigation because it will make his god unhappy, then he cannot conscientiously claim that he will follow the law because he won't actually be weighing.  He'll be obeying something other than Ohio law.

Put it another way.

Should the judge, may the judge, engage in civil disobedience?

Not lawfully, of course.  But that's the question.

It's widely understood among capital defense lawyers that among jurors who will lie to get on a capital jury to ensure that the outcome (death or life) will favor their view, more of the dishonest are killers than life savers.  (I'm given to understand that prosecutors think we have it exactly backwards.)

The system, of course, insists that jurors aren't supposed to lie.  And they are supposed to follow the law.  Rogue jurors (I love the phrase; I even got to use it once in a case, though I lost, alas) aren't secret good guys.  They're, well, rogues - anathema to the very idea of the rule of law.

Regular readers of this blawg know that I am a moralist - and that I am a believer in the rule of law.

I believe in the rule of law because it's what holds the system accountable.  I believe that the government shouldn't be in the business of murder.  I believe that the reality of the death penalty is lawless, that any conceivable reality of the death penalty will be lawless.  And that executions are, in any event, morally and legally unjustifiable.

Which makes it all damned complicated.

If called as a prospective juror in a capital case, I would surely be excused.  But whether I'd be properly excused for cause (given the state of the law) or the state would be forced to use a peremptory challenge on me  depends on the questions I was asked.

Q: Would you vote for death if it were the appropriate sentence under the law?

A: Yes.

I'd get to serve.  But peremptory challenge.

Q: Are there any circumstances in which you would vote for death?

A: Sure.  If it were the appropriate sentence under the law.

I'd get to serve.  But peremptory challenge.

Q: Are there any circumstances under which death will, in fact, but appropriate sentence?  Can the aggravating circumstances ever outweigh mitigation?

A: Sigh.  No.

I'm booted off the jury on a challenge for cause.

Finally, there's this.

The law on this sucks.  It's just wrong.  Those who cannot ever vote for death are a significant portion of the community.  To exclude them from the jury means a jury that is tilted, biased in favor of death.  It means a jury of one's peers who happen to believe that killing the defendant is acceptable.  It means not a cross-section of the community but a cross-section of a portion of the community from which I (for instance) am excluded.  The voice is of the community, but it's the community's voice after those who might have another view are silenced.

It is, plainly and simply, wrong.

Judge Wagner has made his own decision.  I don't know what mine would have been (and since I'll never be a judge, it won't come up).  But the fact that he made that decision highlights what's deeply wrong with the law as we have it.