Ethics, Juries & Lies - Lessons We Don't Actually Derive From a Second Century Roman

Aulus Gellius (c. 125-after 180), in his Attic Nights, recounts the "difficult decision which the Lacedaemonian Chilo made to save a friend." Gellius describes Chilo as "a man of surpassing wisdom," and reproduces the story as, he says, Chilo told it to friends about his bedside when he was near death.

That very little of what I have said and done in the course of a long life calls for repentance, you yourselves may perhaps know. I, at any rate, at such a time as this do not deceive myself in believing that I have done nothing that it troubles me to remember, except for just one thing; and as to that it is not even now perfectly clear to me whether I did right or wrong.
I was judge with two others, and a friend's life was at stake. The law was such that the man must be found guilty. Therefore, either my friend must suffer capital punishment or violence must be done to the law. I considered for a long time how to remedy so difficult a situation. The course which I adopted seemed, in comparison with the alternative, the less objectionable; I myself secretly voted for conviction, but I persuaded my fellow judges to vote for acquittal. Thus I myself in a matter of such moment did my duty both as a judge and as a friend. But my action torments me with the fear that there may be something of treachery and guilt in having recommended to others, in the same case, at the same time, and in a common duty, a course for them contrary to what I thought best for myself.

Chilo's problem is a variation on a theme I've explored here before, most recently here and in comments here:  How does one deal with conflicting moral imperatives?  In this particular context can one obey the law while flouting it?  And ought one do that?

His solution has a certain elegance.  It's also, as he recognizes (it "torments" him, after all, and he managed to keep it secret until on his death bed) seriously problematic.  Gellius begins his commentary on the story with that recognition.

This Chilo, then, though a man of surpassing wisdom, was in doubt how far he ought to have gone counter to law and counter to equity for the sake of a friend, and that question distressed him even at the very end of his life. So too many subsequent students of philosophy, as appears in their works, have inquired very carefully and very anxiously, to use their own language, εἰ δεῖ βοηθεῖν τῷ φίλῳ παρὰ τὸ δίκαιον καὶ μέχρι πόσου καὶ ποῖα. ¹ That is to say, they inquired “whether one may sometimes act contrary to law or contrary to precedent in a friend's behalf, and under what circumstances and to what extent.”

John Rolfe, Gellius's translator, provides the relevant footnote.

The sentence which follows translates the Greek literally, except that for τὸ δίκαιον “what is right,” we have in the Latin ius moremve, “law or precedent.” The Romans laid great stress on the mos maiorum, the precedent set by their forefathers.

(I've removed all the hyperlinks that were in the on-line edition from which I've copied all these quotes.)

The conflict for Chilo wasn't entirely between moral absolutes.  Obey the law is what is "right," an absolute moral obligation.  Friendship is a good, but saving the life of a criminal friend simply out of friendship is, at least to him, perhaps less than an absolute moral obligation.

Yet it was enough.  And so he sought to find a way to reach his end without violating his duty to the law or his love (for there is no other word) for his friend.  

Our system creates a theoretical out, since we cannot have, the Supreme Court told us in 1976, a mandatory death penalty.  There must be at least one life alternative because the death penalty is to be reserved not merely for the worst offenses but also for the worst offenders.  In practice, that means the jurors and the judges have the wiggle room to do whatever they want as they decide whether this or that person should be killed.

Of course, we first remove from the jury those who insist nobody should be killed (and in theory at least are entitled to remove those who cannot be dissuaded from declaring their insistence that everyone should be).  But there is room.  The jury which is instructed not to consider mercy, may be merciful.

So it is that Chilo could in our system, salve his conscience by voting to convict his friend but also voting to sentence him to death in prison rather than killing by prison guard.  Except that it's not the same.  Chilo's friend walked free after he somehow convinced the other judges that his friend should not be found guilty - which he understood to be wrong.  His powers of persuasion must have been extraordinary.  (You will find him innocent because I'm convincing you that he is, but hey, I'm gonna vote guilty because I believe he is.)

All that ignores that today, in this country, Chilo would not have been serving as a judge on his friend's case.  But that's also trivia.  Here's the real question, and I'll put it in the context of Ohio law.  (Other state laws differ in detail, but the general principles apply.)

In Ohio, if a defendant is convicted of aggravated murder and at least one death specification (details don't matter here), the jury or panel of three judges is to decide whether the death specification or specifications "outweigh" beyond a reasonable doubt whatever is put in front of them as a reason to not kill.  Before a person will be seated on the jury, she'll have to agree that she would, if the specifications outweigh mitigation, vote for death.  And she'll probably have to agree that she could consider, if they don't, voting for life.  

That's skewed of course.  We demand that the juror will vote for death and will be willing to think about voting for life.  But imagine it works fairly.  Still, what the juror says during voir dire is one thing.  How the juror votes is something else.

So now the question and answer:

Q    Can you follow the law, Chilo?
A    Yes.  If the aggravating circumstances outweigh the mitigating factors, I will vote to kill my friend.

If it stops there, all is well.  Chilo can serve and obey his oath and the law because the relative weight of aggravation and mitigation is personal, it's what the individual juror feels.  To Chilo, friendship (or at least this friendship) is such that it can never be outweighed by the aggravating circumstance.  So if selected he can follow the law and still vote for life.  

Which is the answer for all who would . . . . .  But of course it's maybe a not-altogether forthcoming answer.  If Chilo knows that there are no circumstances in which, to him, the aggravating things will outweigh the mitigating ones, then can he still follow the law?

That's why they ask the next question of people like him.

Is it possible for the aggravating circumstances to outweigh the mitigating factors?

And of course he can say, 

Sure.

While perhaps mumbling under his breath - just not in this case (because he's a friend).  And for others, just not in the real world (because he's a human being - however defective).

Which leads to the narrower and narrower question.  Until Chilo lies.  Or tells the truth.

The same calculus works at the other end, of course.  I'll always vote to kill - unless the aggravating circumstances don't outweigh mitigation (which, and now mumbling they always do because the guy is dead and the defendant's a killer who, Q.E.D., should be killed.)

It's a dance and a farce.  And we end up with juries who really will kill - and who, by the way, are more inclined to vote for guilt than juries that haven't been death qualified.

Yet Chilo should tell the truth.  Even if the lie - consistently and forcefully told - might perhaps, although probably it won't matter in the scheme of things, end up saving his friend.  

Because although the system is corrupt and venal, the marginal benefit of trying to scam it is far outweighed by the harm of treating it as a game.

Which it's not.

h/t Alan C.