Sunday, November 7, 2010

On Throwing One's Hands Up In Despair

Back around 2005, I was a juror.  Workers compensation case.  There was no question the plaintiff was injured due to an accident on the job.  And there was no question that after the accident, she experienced severe pain.  The sole question for us as jurors was whether the accident & injury caused the pain or whether the pain was a result of a pre-existing condition which just happened to get worse shortly after the accident.
The company's expert, a physician certified in workplace injury or some such thing, assured us that it was the pre-existing condition.  He knew that, he said, because he was a physician certified in whatever it was, and so we could be sure he was right.  You know, because he was a physician and certified.  A certified physician.  Trust him.  He just knew.
Her expert was a chiropractor chosen by her lawyer who allowed as how he treated her (and got paid for it) 44 times after he knew he could do her no good whatsoever.  The pain, he assured us with the same fervor as the certified doc, was caused by the accident.  He knew that because he treated her for it, after all.  Up to the point where he knew his treatments were worthless.  And then 44 more times.
And so we retired to the jury room.  Forty minutes later, we had a verdict.  Twenty-five or so of those forty minutes were spent picking a foreperson and observing that the MD was a whore and the chiropractor a charalatan. (I don't think those particular descriptive terms were used, but at this remove I wouldn't swear to it.)  The verdict itself was a snap once we decided to discuss the evidence and vote.  It was a civil case, so it didn't have to be unanimous.  But unanimous it was.
My fellow jurors took very seriously their job.  The deliberation was easy and quick, but their attentiveness and thoughtfulness (and their serious concern about the ethics of both experts), and the care with which they tried to get it right, was something to behold.
Of course, the whole thing was a breeze.  We were called to the courtroom for jury selection at 9 a.m.  We had a verdict by noon.
I repeat, it was unanimous.  I have no idea, of course, if our verdict comported with biomedical fact.  We know what we believed by a preponderance of the evidence (our burden of proof).  Objective truth wasn't in our charge.
And so we turn to The Land of Steady Habits.
Consider, if you will, the twelve jurors who are trying to figure out what to do with Steven Hayes.  Compare them to the eight of us.
We worked hard for 15 minutes of deliberations.  They're now going into the weekend, which, as Norm Pattis explained and the Hartford Courant agreed, is essentially unprecedented in the Provisions State.
I assume they're working hard during their deliberations, discussing, evaluating, considering, arguing, weighing the evidence, all that stuff.  We did too.  Of course, their task is different than ours was.  We just had to decide whether her claim was proved by a preponderance of the evidence.  Not whether it was true, not whether she was actually right.  And certainly not whether she had a moral claim on the workers comp fund.
The jurors in the Nutmeg State, on the other hand, have to make (or may have to make) what Justice O'Connor (that's Sandra Day of SCOTUS, not Chief Justice-elect Maureen of the Columbus 7) called a
reasoned moral response to the defendant's background, character, and crime.
How even to begin.
Connecticut's system, laid out in a chart you can find in the Courant but that I can't reproduce without some serious copyright violation, works roughly like this.  The jury found Hayes guilty of bunches of stuff.  Now it has to decide what to do with him.  It does it by answering a series of questions.
First, did Hayes prove one of three statutory mitigating factors:  Was he mentally impaired?  Was his ability to obey the law impaired?  Was it unreasonable to imagine that what he did would pose a "grave risk of causing death"?*  How one proves such things is, well, less than clear.  On the other hand, as I've noted before (here, for instance), proof is what a jury believes, however it gets there.
In any event, assuming the jury doesn't believe that Hayes proved one of those three things, it has to decide if the state proved any of the aggravating factors it charged.
And assuming they do (and you can trust me, they will), the jury has to decide whether Hayes has proved some non-statutory mitigating factor.  That is, did Hayes offer, in a moderately convincing way, some reason why the jury should spare his life?  
If so (and probably so), they come to the money question.
Do the aggravating factors outweigh the mitigating factors?
If they do, it's murder.  If they don't, it's death in prison.
But see, there's no way to answer that.  Consider the aggravators.  They're about the crimes, and although this isn't the language or even properly the test, they come down to whether this was a particularly horrible set of murders.  Answer:  Of course.
Now consider the mitigators.  They're about Hayes.  He's damaged.  He's hopeless.  Look at his childhood.
Excuse me.  What do these things have to do with each other?  They're not in the same category.  We're not asking jurors to compare apples and oranges for taste.  We're asking them to compare apples and Pontiacs and try to figure out which is better.
The task is, plainly, impossible.
Yet we demand it of jurors.  Based on evidence.  From which the jury is to decide whether the government proved Pontiacs.  Or something.
I don't know what the jury will do.  Juries are, ultimately, unpredictable.  Will they be swayed by the horror of the crime?  One fine death penalty lawyer I know says that in any weighing test, the defendant loses because the body on that side of the scale always ways more than whatever goes on the this side.  Maybe.  
On the other hand, studies show that most juries begin with a least some votes for life.  No matter what.  I know a judge who, explaining why he voted against death in a case that was tried to a three-judge panel (you can do that in Ohio), said,
I just wasn't ready to say "Fuck you" to him.
Yeah.  It turns out that even for death qualified jurors, at least for some of them, that's hard to do.  Maybe not impossible, but hard.  Which is as it should be, I suppose.
The jury will return Sunday morning.  More weekend deliberations in the effort to come up with that reasoned moral response, objectively determined, based on evidence, and looking for proof.
If they're doing the job right (and for all we know they can be sitting in the jury room playing parcheesi), they have two choices.  They can find that he proved one of the statutory mitigators which means life.  Or they can admit that the task cannot be done.  They can't decide because it isn't decideable.  The questions don't admit of proof.  And the things to be weighed cannot be weighed.  A fair jury will return a verdict of "Sorry.  Can't be done."
Sorry, can't be done.  It's not that we disagree.  We all agree that there is no proper answer to whether the aggravators outweigh because none of it is susceptible to weighing.
And then . . . 
And then . . .
And then the system stops!
Except no.  They'll get another jury, one less prone to honesty and integrity.
Because once we let the truth genie out of the bag, well, you can't stuff that sort of truth back in.

*A digression (which is why I've relegated it to this footnote).
In Romeo and Juliet, Romeo attempts to break up a sword fight between his friend Mercutio and Juliet's counsin, Tybalt.  But Tybalt reaches under Romeo's arm and mortally stabs Mercutio.  After which there is this.

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