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.

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.




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* 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.

Civil Disobedience and the Death Qualified Judge and Jury

Yesterday, I wrote about Judge A.J. Wagner who took himself off a death penalty case because he believed the death penalty law was unconstitutional and immoral, and he concluded that he could not in good conscience ever sentence someone to death.  I commended his decency but wondered about whether it was for the best.  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."

I talked about that in the context of enabling the system.  I discussed my own sometime qualms about doing capital work since I am, therefore, allowing the system to function - however well I might also be doing a job of removing people from its maw.  (And yes, I know I'm mixing my metaphors; tough, it's my blawg.)

Today I received this anonymous comment.

I don't understand why an anti-death judge would make such a decision. One of the biggest criticisms of death qualifying a jury is that it weeds out an important population in the evolving standards framework. It boggles my mind why a judge would do the same voluntarily. Does OH have an elected judiciary? This may be more about his reelection than his principles. It would be nice if we abolitionists had the converse of a hanging judge. One who would continue to allow his or her personal convictions affect decisions, but at least in favor of the accused.

I started to write a reply comment, but there's really more to say than that.  So this follow-up post is, well, follow up.

The anecdote.

I was walking through an Ohio courthouse one day when a trial judge - tough, no-nonsense, former prosecutor, hard-nosed, but opposed to the death penalty - buttonholed me.

"Can't you do something about this death penalty business?" The judge asked.

As I said, the judge hated the death penalty, would work like a dog to convince the prosecutor to offer a deal to take death off the table and then to convince the defendant to take the deal.  The judge would also sentence people to death if the jury recommended it. 

"Can't you do something about this death penalty business?" The judge asked.

"I do what I can," I said.  "But you actually can stop it."

The judge glared at me for a few seconds, then turned and walked away.

Scalia speaks.

Antonin Scalia, Supreme Court Justice, Roman Catholic, supporter of the death penalty, believes the Church's opposition to the death penalty is due to the Church misunderstanding Catholic doctrine. (He's explained that more than once, though the formulation I use to describe his disagreement with the Church is mine, not his.)  Here's part of an AP report from February 2002 after he spoke at Georgetown University.

In Chicago on Jan. 25, Scalia said, "In my view, the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty." His remarks were transcribed by the event sponsor, the Pew Forum.
Scalia said Monday that "any Catholic jurist (with such concerns) ... would have to resign."
"You couldn't function as a judge," he said.

The ugly process of what we call "death qualification" involves removing from the jury anyone who cannot fairly consider imposing death.  That "fairly consider" is court language that means, when you plow through to simple English, that people who are opposed to the death penalty don't get to sit on the jury because they aren't likely to vote to kill.  (The law also permits removal of those who make clear clear that they will never vote for life but will always kill.)

The theory behind death qualification is the theory behind insisting that jurors follow the law.  A juror who will never vote for death (or for life), can't seriously determine (or so the court's say) whether death is an appropriate sentence in this or that case and vote appropriately.  The juror has, in effect, prejudged the case.

Scalia (yes, we're back to him), has opined at some length (Morgan v. Illinois, in dissent) that there's no legitimate constitutional basis for insisting that those who will never vote for life should be removed from a capital jury, though it's OK to insist on removing those who will never vote for death because they would be lawless.  His point is that those who will always favor death have concluded that no mitigation evidence can be sufficient to overcome, or  balance out, or whatever aggravation.  It's not that they won't consider life verdicts, it's just that they'll never be appropriate.  (The same is, of course, true as a converse for jurors who will never vote for death, though Scalia won't credit that.)

So just what's the right thing for a judge like Wagner to do?

Ohio law says that, during the sentencing phase of a capital trial, the aggravating circumstance or circumstances proved beyond a reasonable doubt during the guilt/not guilt part of the trial shall be weighed against any mitigating factor or factors proved by a preponderance of the evidence.  If the aggravating stuff outweighs the mitigating stuff beyond a reasonable doubt, then the defendant is to be sentenced to die.  If not (tie goes to the defendant as it goes to the runner in baseball), the senence is to be life.

Wagner has taken an oath to obey the law.

If his view is that aggravation, however great, can never outweigh the mitigating fact that, say, the defendant is a human being, then he can conscientiously say that he will follow the law and if it is appropriate impose a death sentence.  (It's just that it will never be appropriate.)

If his view is that he'll never impose a death sentence even if he finds that aggravation outweighs mitigation because it will make his god unhappy, then he cannot conscientiously claim that he will follow the law because he won't actually be weighing.  He'll be obeying something other than Ohio law.

Put it another way.

Should the judge, may the judge, engage in civil disobedience?

Not lawfully, of course.  But that's the question.

It's widely understood among capital defense lawyers that among jurors who will lie to get on a capital jury to ensure that the outcome (death or life) will favor their view, more of the dishonest are killers than life savers.  (I'm given to understand that prosecutors think we have it exactly backwards.)

The system, of course, insists that jurors aren't supposed to lie.  And they are supposed to follow the law.  Rogue jurors (I love the phrase; I even got to use it once in a case, though I lost, alas) aren't secret good guys.  They're, well, rogues - anathema to the very idea of the rule of law.

Regular readers of this blawg know that I am a moralist - and that I am a believer in the rule of law.

I believe in the rule of law because it's what holds the system accountable.  I believe that the government shouldn't be in the business of murder.  I believe that the reality of the death penalty is lawless, that any conceivable reality of the death penalty will be lawless.  And that executions are, in any event, morally and legally unjustifiable.

Which makes it all damned complicated.

If called as a prospective juror in a capital case, I would surely be excused.  But whether I'd be properly excused for cause (given the state of the law) or the state would be forced to use a peremptory challenge on me  depends on the questions I was asked.

Q: Would you vote for death if it were the appropriate sentence under the law?

A: Yes.

I'd get to serve.  But peremptory challenge.

Q: Are there any circumstances in which you would vote for death?

A: Sure.  If it were the appropriate sentence under the law.

I'd get to serve.  But peremptory challenge.

Q: Are there any circumstances under which death will, in fact, but appropriate sentence?  Can the aggravating circumstances ever outweigh mitigation?

A: Sigh.  No.

I'm booted off the jury on a challenge for cause.

Finally, there's this.

The law on this sucks.  It's just wrong.  Those who cannot ever vote for death are a significant portion of the community.  To exclude them from the jury means a jury that is tilted, biased in favor of death.  It means a jury of one's peers who happen to believe that killing the defendant is acceptable.  It means not a cross-section of the community but a cross-section of a portion of the community from which I (for instance) am excluded.  The voice is of the community, but it's the community's voice after those who might have another view are silenced.

It is, plainly and simply, wrong.

Judge Wagner has made his own decision.  I don't know what mine would have been (and since I'll never be a judge, it won't come up).  But the fact that he made that decision highlights what's deeply wrong with the law as we have it.