Sunday, June 23, 2013

Ethicist, Shmethicist

Somehow, I must have missed the Ethicist Q & A (Q by "Name Withheld," A by this year's official Ethicist, Chuck Klosterman) in last week's Times. Scott Greenfield didn't, though it did take him a week to get around to writing about it.  (A week, Scott? Really?)

Here's NW's poser.
About 15 years ago, while living in St. Louis, I was summoned for jury duty. The defendant was charged with two counts of murder. During jury selection, I was asked if I supported the death penalty. I don’t. I’m unalterably opposed to capital punishment. But I feared that potential jurors who did not support the death penalty could be automatically disqualified by the prosecution. So I said I agreed with capital punishment. That way, if it came down to it, I might help spare the defendant from execution. But this violated the oath I had taken to tell the truth. Was it ethical for me to lie in order to possibly spare the life of this defendant?
It's generally understood by capital defense lawyers that a significant number of enthusiastic killers lie in order to get on capital juries while the number of folks who lie as NW did is vanishingly small.  Capital prosecutors, I suspect, believe it's the other way around.  Regardless, NW is hardly the first person to confront that issue or a variation of it.

There was, for instance, A.J. Wagner, judge of the Court of Common Pleas of Montgomery County, Ohio, about whom I wrote three years ago.  What distinguished Wagner from NW (well, lots of things did, but the one I want to mention here) is that he was actually aware of the relevant law.  NW was guessing.*

So, it turns out, was Klosterman who figured that the way it worked was that both the prosecutor and the defense could kick off a few jurors they didn't like and that you'd end up with some jurors who wouldn't impose a death sentence no matter what and some who'd enthusiastically give it to anyone who changed lanes on the interstate without first signalling while the bulk of the jury would be made up of folks like himself who favored the death penalty only for people they thought guilty of something.

NW's guess was wrong, but closer to the truth than Klosterman's.  Klosterman's, however, was presented as fact, not speculation, and carried the implicit imprimatur of the Newspaper of Record (which it no longer is, since that had a specific meaning and reference to information the Times long ago stopped carrying, but I digress).

Anyway, Scott does a fine job eviscerating Klosterman's ignorance and the danger his misinformation poses.  No need to rehash that here nor to bemoan the further ignorance advanced by the Ethicist's commentariat.  (Besides, Scott and I did the latter in comments to his post.)

No, what got me to write this is Klosterman's last paragraph, the part where he actually offered what he thought a good answer to NW's question.
What you should have said was this: “I personally disagree with the state of Missouri’s position on capital punishment, but — if selected — I will perform my duty to the best of my abilities, within the framework of my own conscience.” This, as you note, may have automatically disqualified you from service (and if you said those words exactly as I just wrote them, you might also get marginalized for speaking like a weird robot). But it’s equally possible you’d have been perceived as someone who is both serious and reasonable, which is what lawyers on both sides would claim to want from any juror (assuming both sides think they can make a serious, reasonable argument). And if this was ultimately not the case — if the prosecution flatly refused to allow anyone on the jury who didn’t inflexibly agree with a maximum penalty that is inherently controversial — it’s probably better not to be involved at all. Being disqualified from service for voicing your political opposition is a form a personal protest, which is really all you can do in this situation (without misleading the court and mangling the procedure). 
Put aside the flatulating ignorance of assuming that it's the unusual prosecutor who would "flatly refuse[] to allow anyone on the jury who didn’t inflexibly agree with a maximum penalty that is inherently controversial."  That's the law, Klosterman.  Those people are deemed by the courts to be unfit for service on a capital jury.  (Like lepers, really.  "Unclean! Unclean!" shout Scalia and his compadres.)  The capital jury is supposed to be a fair cross-section of the community excluding those who don't think it's OK for the government to kill people to demonstrate the evil of killing people.

Step away from that and consider what he's saying.
If our criminal justice system were to work as it actually does, in a way I consider wholly corrupt and possibly evil, rather than as I wish it did and believe it does, then the proper, the ethical response is to allow it to function that way.  The alternative would be "mangling the [deeply fucked up] procedure.
Oh, he does say quite specifically that allowing the system to function in it's corruptly evil way would be a personal protest.  (You know, like blacks in the south didn't even try to drink from the "White's Only" water fountains as a silent protest against the prohibition - because to actually interfere would mangle the procedure of racism. )

I don't think Klosterman meant that.  I hope he didn't.  But he's being paid to opine in the pages of the New York Times Magazine, and really that's beyond the pale.

It's also what follows from inviting this level of ignorance.

When the Times started the Ethicist column a few years ago (and a few Ethicist's ago), it was mostly an amusing lark.  The questions were quirky, the answers witty.   The whole thing was obviously a bit silly.  Each new Ethicist has been more sober and serious than the last, each more committed to delving into the philosophical foundations of ethical rules.  And each less willing to bother with actual knowledge before offering mindless answers.

The lawyers who answer questions on AVVO in order to build up their profile notice and get more calls from prospective pro bono clients dispense faulty information by the bushel basketful.  But they're not vetted.  One might wish for more from the Grey Lady, which has an actual editorial board after all, even as she strives for Technicolor.

One would, it seems, be disappointed.

* There was also the judge with a pending capital trial who stopped me in a courthouse hallway one day.  "Can't you do something about this death penalty thing?" the judge asked, almost grabbing my lapels to shake me out of my presumed inability.
         "I do what I can," I said.  "But you can actually stop it in your cases."  The judge walked away in disgust at my failure to end capital punishment in Ohio.
         The defendant in that pending case, by the way, is on death row.  Sentenced by that judge.


  1. Does your criticism mean that you believe the juror should have perjured himself?

  2. Kant wrote about the "categorical imperative," that moral rules are absolutes. 'Do not kill" works as an example; so does "Save a life if you can." Kierkegaard recognized that moral absolutes are often problematic in the real world and wrote about what he called the "teleological suspension of the ethical."

    There are good reasons for refusing to lie with the hope of getting on a jury and thus being able to save a life if in fact the accused is first found guilty and then the other 11 jurors vote for death. For one thing, it's likely a wasted lie. The lie doesn't guarantee a seat on the jury. The jury may not convict - or may convict only of something lesser than a death-eligible offense. Even if the case goes to a penalty phase, there may be other jurors who would not vote for death. Most death sentence trials end in life verdicts. And of course even a death sentence doesn't guarantee an execution. Far from it.

    While I think that in a competition between moral imperatives (lie v. save a life) the life-saving option should probably win, the competition here is between lie and do something which has a marginal chance of saving a life. The latter is hardly a moral imperative.

    Besides, encouraging lies by prospective jurors on my side implicitly says that it's OK to lie to try to get on a jury to render whatever verdict you believe to be right. That is, it permits the everyone-should-be-executed folks to lie also.

    So no, given the real world, the juror should tell the truth because it's the right thing to do. (I'm not interested in the legal question of perjury which is complicated and largely beside the point. If lying were the right thing to do, the fact that it might be a crime wouldn't change that. If lying is the wrong thing to do, it's wrong in and of itself and criminal consequences don't cause that. The real reason for putting the jurors under oath during voir dire [witnesses at trial, too] isn't so that they can be prosecuted, it's because the solemnity of the oath is supposed to make them feel a moral duty to be honest.)

    But Klosterman's claim that the ethical thing to do is to tell the truth in a nuanced way unless the system is rigged, and if it's rigged to allow the rigging to go forward smug in the assurance that you've upheld your honor and protested the rigging by refusing to lie in order to fight it remains fatuous and stupid.

    And he gets paid to say those things and the Times publishes them. I just mouth off and nobody much takes me seriously.

  3. I appreciate your having taken the point a step beyond me. I found it impossible to go to his "advice" given that the announced foundation for it was utterly wrong. If purported "advice" is premised on such a gross misapprehension of law and practice, it's inherently worthless.

    Yet, your post serves not only to reinforce the vapidity of Klosterman's foundation, but to explain clearly why the advice based on it was "fatuous and stupid." Indeed, it was, and is.

    As for it taking me a week, I'm deeply ashamed of my delay. Do you want your money back?

  4. Simple Justice delayed is simple justice denied. I think you've been sufficiently shamed. Keep the cash.

  5. It seems though that NW is automatically assuming that the defendant is guilty and that is why he must save him from the death penalty. That does not sit with the moral of innocent until proven guilty. NW does not seem to really understand morals at all.

  6. For what it's worth, the vast majority of people who go to trial are found guilty. (The percentage varies from jurisdiction to jurisdiction, but the rule is, I think, universal.) There's no certainty about it, of course, and as I said in the reply to Anonymous, the collection of things that might well prevent NW's from saving a life through his lie is quite large. But that the guy would be found guilty is one of the more likely events.

    It is true, of course, that if the guy is found not guilty the lie would have served no function - or at least not its intended one. But so also if the lie didn't (as apparently it didn't) get him on the jury.