Really, I meant it when I said that I didn't want to write about the Jodi Arias case and that I had nothing interesting to say about it.  Turns out, though, that I have something to say about the jury.

Not that they're a bunch of bozos who can't reach a decision that everyone who actually paid attention to the media coverage just knew was obvious.  (Because, after all, it the media's reports on the trial and the analysis by its whores legal commentators that counts.  Not the stuff that happens in the courtroom, the admissible [or at least admitted] evidence and the instructions from the judge.)

No, what I want to say is that what those twelve men and women were asked to do and in fact did is pretty much absurd.

Let me start not with Arizona and Jodi Arias but with Ohio.  An observation and a story.

Observation:

Ohio is what we call a "weighing state."  The sentencing task is a capital case is for the jurors to decide whether the statutory aggravating circumstance that was proved beyond a reasonable doubt in the first part of the trial (say that the aggravated murder was committed in the course of an aggravated robbery and that the person on trial was the actual killer) outweighs beyond a reasonable doubt whatever the jury believes that mitigates.  Mitigation might be something about the crime itself, but more often it's stuff about the guy in the dock:

• He's got serious mental illness - as did his father and his father's mother and her mother.
• He was taught to be a criminal by his parents who trained and used him in their robberies.
• He watched one of his parents murder the other (you'd be surprised how often that one comes up if you haven't spent time doing this work).
• His mother threw him out of an upstairs window when he was a baby in an unsuccessful effort to kill him.  (Yep.  Wasn't my case, but I'm not making it up.)
• He has the IQ of a glow worm.
• He's 43 years old and has never before been in trouble with the law.
• He turned 18 the day before the crime and spent the 48 hours up to the killing celebrating with crack and alcohol and frankly can't remember a thing that happened.
• He was pimped by his parents.
• He saved the life of a guard in the county jail while he was waiting for trial.
• He's been active in encouraging young men to avoid gangs.
• He's a preacher.
• He's an award-winning artist.
• The devil (or the co-defendant) made him do it.

(Yes, I know I made all of these male.  The overwhelming majority of these folks are men though not quite all - Jodi Arias obviously isn't.  It doesn't matter, the plot's the same for women.)

OK, so now the Ohio jury has to do this weighing.  Which weighs more?  The statutory aggravator or whatever gets piled up on the mitigation side?  As I've said in court on more than one occasion (though not in recent years), it's not like weighing apples and oranges.  At least they're the same kinds of things. It's like weighing apples and Oldsmobiles.  They don't have any relationship to each other.  How do you do it?

Frankly, I don't know.  Juries do it.  Judges do it.  Appellate courts do it.  Or at least they all are charged with doing it and report a result.

The Story:

Once upon a time, after the jury returned with a death sentence, the judge did what judges always do in these circumstances (elected judges, anyway, but probably appointed ones, too).  He thanked them for their service.

You did a difficult job.  You took it seriously.  You worked hard.  I thank you.  The lawyers for both sides thank you. 

Some such thing.  I imagine he meant it.  Most of them do when they say it.  They do know that the jury's job is hard and that they (mostly) take it seriously and try to do it well.

Then he added this, which is a paraphrase, too.

I know that this decision is incredibly difficult.  The county appreciates your service in this task but understands something of the stress you've experienced.  If you need psychological help or counseling, the county will pay for it.

I don't actually know if anyone took the judge up on the offer.  I suspect that had any jurors tried to, they would have learned that the county would not, in fact, pay for it.  But that's a quibble.  The judge knew that the jury had been asked to do the impossible.  And they'd given it their best shot.  

This wasn't unique.  Other judges have made the same offer in other cases, in other courtrooms, in Ohio and in other states.  Because they understand that the state demands something appalling of jurors in capital cases.  It demands that they make a cold, dispassionate, real-world decision about whether someone should live or die.

(During voir dire, one time, I watched as a prospective juror who had expressed general support for the death penalty asked whether he could sign a verdict form ordering it.  He leaned back in his chair, took a deep breath, exhaled, leaned forward, put his head down, hands over his face, looked up, shook his head, now considerably paler than when he'd sat down.  "Wow," he said.  "That really calls the question."  He sat on our jury and voted, along with the rest, for LWOP, death in prison [twice I should add, since their were two victims] rather than execution.)

God help them.  Nobody walks away from these trials unscarred - at least, nobody should.  

The link in that last sentence is to a post addressing comments by the Steven Hayes jury in Connecticut.  two years ago.  I wrote, it seems, several times about that jury (I just went back and looked).  In particular, and along with that post, there was this one and this one and possibly another.  It doesn't much matter.

This post is about the jury that decided Jodi Arias was guilty and then threw its hands up in despair, unable to agree upon what should be done with her.

From the AP:

They were 12 ordinary citizens who didn't oppose the death penalty. But unlike spectators outside the courthouse who followed the case like a daytime soap opera and jumped to demand Jodi Arias' execution, the jurors faced a decision that was wrenching and real, with implications that could haunt them forever.

The reporter interviewed William Zervakos, foreman of the jury who said what they were charged with doing was, at least for them, impossible.  And, perhaps even more telling, it was unfair.

We're not lawyers. We can't interpret the law. We're mere mortals. And I will tell you I've never felt more mere as a mortal than I felt for the last five months.

Of course, they weren't supposed to "interpret the law."  That's for the judge.  They were supposed to apply it - as if those tasks are distinct, as if application isn't an act of interpretation.  What does this instruction mean?  How do we parse this language so as to apply it?

And how the fuck do we weigh these things against one another?

Zervakos described a deliberations room full of tears and spinning moral compasses as each juror struggled to come to grips with their own beliefs about what factors — including Arias' young age at the time of the killing and her lack of criminal history — should cause them to show mercy and spare her life.
"You've got Travis Alexander's family devastated, that he was killed, that he was brutally killed. You've got Jodi Arias' family sitting in there, both families sitting and seeing these humiliating images and listening to unbelievably lurid private details of their lives, and you've got a woman whose life is over, too," Zervakos said. "I mean, who's winning in this situation? And we were stuck in the middle."

Of course, nobody was winning. There are no winners in these cases that, as a friend has said on more than one occasion, bring out the worst in all of us.

Twelve men and women struggled to do the right thing.  They all believed in executions or they wouldn't have been allowed to sit.*  They did their job.  They listened. They evaluated.  They considered.  They weighed.  And then they said it can't be done.

The prosecutors in Maricopa County may try again.  They can impanel another twelve.  They can again parade the salacious facts, the games, the violence, the tears.  And the horror.  They can spend another six months or however long before asking another twelve to do what cannot honestly and fairly be done. 

Perhaps that twelve will find a way.  Most juries do.  Or perhaps they, too, will give up in despair.

Or they could end it now.  Jodi Arias will, almost surely, spend the remainder of her days in prison.  

Maybe it's time to say that's enough.

h/t Joachim Kuebler

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*They are the voice of the community, but only of that part of the community that thinks the death penalty is OK.  The voice of those community members who disagree is silenced.