Thursday, November 11, 2010

Cognitive Dissonance

He doesn't believe in the death penalty.  It serves no purpose.  It "doesn't correct anything."  But it was the right thing to impose it. 
At least, we do if Alexandra Sanders, reporting for the New Haven Register, got the story right.
I said the other day that the jurors who ordered the death of Steven Hayes are not equivalent to the Hayes, and that their act is not equivalent to his.   I stand by that.
But what do we make of Lenus Gibbs.  It's he of whom Sanders wrote.  It's he who, though he doesn't believe in the death penalty, said, "But if it’s there, we have to use it."  Why?
We have nuclear weapons.  Must they be used?  There remains a sample of the smallpox virus in a vault at the Centers for Disease Control in Atlanta.  Must it be loosed on the public?  Of course, the answers to those questions and others like them is there is no need.  But the death penalty?  That's different somehow?  Why?
After the verdict, the jurors met with Dr. Petit, the voice of the avenging angel.
“It was fulfilling when I met them. It made me feel a lot better that I was part of the group that made the right decision,” said Gibbs.
So he can, now, feel good about imposing a senseless punishment in which he doesn't believe.
At the end of May, I wrote about the honorable A.J. Wagner, judge of the Common Pleas Court in Dayton who, faced with a capital trial, had himself removed because he believed the death penalty was always wrong and he could never impose a death sentence.  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."
We ask jurors not to give up their fundamental beliefs.  Then we say we want a fair a cross-section of the community (though only of those parts of the community that have no real problem with state murder) to speak for the community.  We insist that is, that the community's view be represented, but we similarly insist that some part's of the community's view be prohibited from representation.  In this day of the Tea Party Movement (no taxation without representation), we're perfectly comfortable with representation for me but not for thee.
And so there's Judge Wagner.
Because he admits to his voice, he believes it must be silenced - at least within the halls of justice.
Not so Lenus Gibbs.
If I have a capital jury, I suppose I want Mr. Gibbs on it.  I want people with severe misgivings because I assume it will be harder for the state to convince them to kill than it will for the state to convince the enthusiastic.  And yet . . . .
Because if you have it, you must use it.  Use it or lose it.  Bumper sticker justice.
Still, there's this.
The state offered jurors post-traumatic stress assistance, but Gibbs would not say if he took advantage of the offer.
He did say that he has "no regrets."
* * * * *
Sanders report also includes this tidbit, by the way.
Gibbs said jurors struggled to agree during the four days of deliberations in the penalty phase. They sent notes to the judge to be clear on the rules, which stated that they all had to agree on each mitigating factor, one way or the other.
That may be what the judge said (or maybe Gibbs or the whole jury or Sanders got it wrong), but it is precisely not the law.  In fact, the Supreme Court held, in Mills v. Maryland (1988) that it is unconstitutional to require jurors to agree unanimously on the existence of a mitigating factor.


  1. Reminds me of the movie "His Girl Friday": "And so, into this little tortured mind came the idea that that gun had been produced for use. And use it he did. But the state has a 'production-for-use' plan too. It has a gallows. And at seven a.m. unless a miracle occurs, that gallows will be used to separate the soul of Earl Williams from his body. And out of Mollie Malloy's life will go the one kindly soul she ever knew."

  2. He isn't the only one. Look at this:

    It's bullshit, of course. It's becoming clear to me that they voted for death out of sympathy for the victim.

  3. JGG - Yes, wish I'd remembered that when I wrote this.

    Gideon - Of course it's bullshit, even if they believe it. Regardless of what SCOTUS says, what the law ostensibly requires, what the judge instructs, and what the jurors attempt there's no rational way to determine whether aggravation outweighs mitigation.

    The decision to kill (or the decision to give life, for that matter) is always just emotion, no matter how it's cloaked in a pretense of reason and rationalityh. They kill out of some some mix of sympathy and hatred. They give life when we defuse that and offer humanity and sympathy.