Michael Maiello's picture

    Well, A Blog I'll Just Call Crime and Punishment

    Federal prosecutors convinced a Massachusetts jury to give Dzhokhar Tsarnaev the death penalty.  One might assume that would be a tough sell in a highly educated blue state and maybe it was a tough sell that happened to close.  Few tears will be shed, even by the staunchest death penalty opponents.  Tsarnaev is not a sympathetic person.

    I think the death penalty is a terrible idea.  I actually think that punishment, for its own sake, is a bad idea.  It serves nothing, really, except the false idea that good things happen to good people while bad things happen to bad people.  When I was a kid and started seriously considering atheism, a big stopping point for me was that it meant that Hitler was not, right now, being punished for all the carnage he'd caused.  It took my adolescent mind a lot of calories to get over that objection.  It really bothered me.  Of course, the idea of the murderer, the rapist or other transgressor who is never caught and punished and who never feels remorse and thus never punishes himself, is fundamental to existential literature.

    The lesson of the existentialists is to deal with that.  You may well encounter somebody who will kill without regret and who will never be caught, or who might be caught and go to the chair never regretting a thing.  It could happen.  It's unsettling.  We have things like life sentences and the death penalty because we think that they can change the equation and that the deprivation of freedom combined with the fear of death will, ultimately, create psychic remorse and some metaphysical justice.

    I think it's a mistake.  I think a lethal injection to Tsarnaev does nobody any good.  I doubt it serves society.  I doubt the next violent zealot will reconsider because of this.  Zealots are like that.  Not so reasonable.  Very zealoty.

    ​I had a chance, once, to do something about a death penalty case.  In 2003, Ronell Wilson tried to buy illegal handguns from an undercover police officer in Staten Island.  The deal went bad and he executed the officer.  Executed is the right word.  Shot him right in the back of the head. I was part of the jury selection.  It was an interesting time because New York's supreme court had just ended the use of the death penalty in New York state.  Wilson's crime was clearly local. There were no federal agents involved.  It all happened on Staten Island.  It wasn't even interborough.  But the federal government had an interest in the case because an out of state gun was involved and the local prosecutors were more than willing to let the federal prosecutors handle it in pursuit of the death penalty, which was not available to New York's prosecutors.

    So this became a federal case because the authorities involved wanted Wilson on death row and they got what they wanted.  As I learned the outlines of the case during jury selection, I was appalled by that.  The only thing the prosecutors wanted to know was, "would you sentence a man to death?"  The only thing the defense attorneys wanted to know was, "would you feel differently if you knew that Ronell didn't think the guy was a cop when he shot him in the head?"

    Yeah.  The defense was, "I didn't know he was a cop."  So it really came down to how you feel about the death penalty in general.  I answered a long questionnaire honestly.  Huge mistake. When death penalty opponents are honest during jury selection in capital cases, they disqualify themselves.

    I suppose, when they're looking for juries, they might accept death penalty opponents who would nonetheless vote in favor of the death penalty if certain legal standards were met.  But there is no room in the system for a juror who says, at the outright, that they won't participate in what's basically a revenge killing.

    All death penalty opponents who are potential jurors in capital cases, especially where guilt is barely in doubt, should pose as cautious death penalty proponents during jury selection and should the nullify the death penalty during sentencing.  It's the only logical way for death penalty opponents to deal with the system.



    A couple of random thoughts on a subject -and a blog- that deserve better than that.

    Rightly or wrongly the belief has developed that somehow all of us are entitled to a trial by a "jury of your peers.". And I suspect that  most  people believe that's an important "right".Because if they don't have to be judged by their "peers"  they could be judged by non-peers.

    And they wouldn't want that

    Why not?

    Well because "peers" sounds OK. It suggests that those jurors will be a mix of people of all types. Probably some of them would be people we wouldn't like to be judged by, but others will be OK. So we'll have a "shot". We might win or lose but the deck won't be stacked against us.

    But in fact that's not the case, Dzhokhar wasn't judged by a jury of all types, but by a jury specially selected not to include all types . To reject one particular type;  the person who has come to conclude that he doesn't want to vote for capital punishment. Which is probably true of most people these daysl 

    Which means that the people who did finally make it into his jury were not a representative sample of society in general.One way they differ is ,unlike most people,they're willing to vote to kill me.

    But is it likely that's  the only way  in which they differ? Probably studies have  been done that answered that question and I don't have the data.But it doesn't seem off  the wall to suspect that one other difference between these "willing to vote for death" folks and the rest of us is that these "executors" are a lot more likely to convict.

    As they did.

    I have virtually nothing to add to this blog with which I agree completely.  I third the call for those who, like Michael, Flavius, and me, oppose the death penalty in all circumstances to lie on the jury form or during voir dire.  Defendants who face the possibility of execution deserve a truly representative jury.

    Well, I don't want him to get the death penalty because I don't believe in it myself, and it will also make him a martyr and is probably what he ultimately wants.  Also, it will keep his name out there, which is not in anyone's best interest, alive or dead.  

    But to your point about the jury not being of his peers because they agreed that they could find 'for' the death penatly; I beg to differ.  He obviously was in favor of the "death penalty" minus a trial, or any semblance of guilt of those whom he chose to execute. So on that count, he definitely had peers sitting in judgment, no?

    I know it will never happen because of established precedence, as well as the expense involved, but I would like to see professional juries -- people trained as to the nuances of what to actually consider in the jury room, and how to maximize objectivity as they consider their verdicts.  A friend, who served as a juror recounted her experience in a malpractice case, where the surgeon was retiring, the plaintiff was in terrible condition prior to the surgery, and in worse condition afterwards.  The plaintiff suffered from a known possible complication, which was in the consent form, and was not deemed to be due to the surgeon's negligence.  Everyone except my friend decided for the plaintiff because "The surgeon's insurance would cover it, he was retiring anyway, and the young guy needed the money."  She objected on the grounds that the judge specifically told them to disregard all but the legal facts in the case, but she felt such pressure she eventually "caved."  

    This is just one, perhaps unimportant example of good people trying to do their best on a jury but not deciding a case on the merits.  

    What is a peer, anyway?   If the defendant is a woman does everyone have to be female?  no.  If the accused is an MD should every juror be one?  no.  If the person is black, Middle Eastern, Baptist, of low intelligence, rich, poor, a teacher, etc, etc, etc...How does one define peer?

    Anyway, I know it will never happen, but if I were on trial, I would appreciate being judged by professionals who have a commitment to the law as it is written rather than people who either couldn't get out of the jury pool, or those who do it out of civic duty but are just not as informed as I would want them to be.  I know that the other ption would be to decline the jury and go for the judge, but I also think deliberation in a group (jury) is preferable to one person's take on the situation.

    This raises an interesting issue for me.  If we expect people to follow the law and to forfeit their freedom if they don't, our laws should probably not be so confusing that the average citizen can't serve competently on a jury.

    I don't know...most laws that affect us "normal" people are pretty straightforward. Speeding, stealing, killing, etc.  It is the legalese that is employed to get people off that is confusing. And as my previous example demonstrated, over-riding facts because of empathy really doesn't have anything to do with not comprehending the law; it involves a conscious decision to act as you might as a good neighbor rather than as an officer of the court. 

    I do wish someone could answer my question though...what actually constitutes a "peer?"  It seems that it really only means that the jury has to be composed of humans.

    As someone once said, you don't call a lawyer to find out how to do something legally, you call one to find out how to get away with doing something illegally. 

    Michael, i may agree with you about the death penalty but what you are calling for possible anti-DP jurors to do is commit perjury to be accepted on a jury and then commit a further perjury by falsifying the reasons for their anti-DP verdict. This type of less than ethical thinking may produce the desired results in individual cases but most people in the US still support the DP as a just punishment in the worst cases and it is the law in most states and federally where DP opponents are not qualified to sit on these juries.

    Do we really need more lying in our system to produce results that satisfy the needs of the minority population who oppose the DP?  Calling for this behavior is probably jury tampering and those who might follow your advice would certainly face serious criminal charges if discovered and the verdict would be vacated.


    Do we really need more lying in our system to produce results that satisfy the needs of the minority population who oppose the DP? 

    Jury service isn't an inconvenience, it's a chance to participate in government at a key moment... If anti-Death Penalty citizens are excluded from serving as jurors on capital cases, the system is rigged.  I'm suggesting unrigging it.

    What you're advocating seems to be a complete abandonment of the idea of "justice" in favour of political opinion.  Let's push this a bit further:  the population includes close relatives of the accused.  So why ban them from the jury?  Because common sense tells us that they would be unlikely to convict, regardless of the evidence, and this would ruin any hope of justice.

    If you lie your way into the jury in order to promote your political position (anti-DP in this case, but it could just as easily be pro-Nazi, or any other), you are ruining the possibility of justice.  There are plenty of flaws in the legal system already.  Do you really want to make it worse?

    I think the system in Britain is that the jury decides if the case has been proven, and it's left to the judge to decide the sentence. 

    Jury nullification is an option for every juror. You vote your conscience. John Adams and Oliver Wendell Holmes among others supported jury nullification. Think that a marijuana charge is ridiculous, vote not guilty.

    White jurors abused the use of jury nullification by letting racist murderers go free, but that does not mean the rest of us should not have the right to vote against onerous laws. Jury nullification played a role in ending Prohibition.


    Jury nullification may be useful where there are constitutional or moral questions about the law but it is a public legal exercise while Michael is advocating a secret illegal manipulation of the system.

    Some people are upset by the fact that DP opponents can't legally sit on a DP jury but it is their personal beliefs that they disqualify themselves with. The question to be answered during the penalty phase of a DP trial is not the legality or morality of the DP but simply if the already convicted murderer has shown any remorse or if there are other mitigating factors that would allow the jurors to spare the convicts life.

    The question about a jury of  'peers' is interesting, to me it means you will be judged by your neighbors not Royals or government representatives or the military or some other elite faction but it also means that your peers, neighbors affected by your crime have the right and duty to judge you.

    The SCOTUS has ruled that the DP is constitutional and it is unlikely to be overturned anytime soon but it is possible. In the mean time is it ethical to choose a lesser of two evils or the ends justifies the means approach to thwart the DP? Both of these ideas have been shown to lead down roads full of unintended consequences and disaster.

    Jury nullification is justified even in death penalty cases. Especially in death penalty cases. The jury is to be composed of peers of the accused. By rejecting those with objections to the death penalty, the jury is stacked. Prosecutors winnow out people with objections to the death penalty including women and minorities. Both the latter groups have higher rates of objection to the death penalty. Should blacks freely participate in a biased judicial system that results in higher rates of death penalties handed out for those who are found guilty of killing white rather than black victims?




    Why should the biased and race-based system go unchallenged.

    I think it would be helpful to have someone with a legal background explain the problems with these ideas for attacking the DP.

    I think that jury nullification would need to be used in the guilt phase of the trial because a guilty verdict would likely lead to the DP. You may be willing to release a mass murderer back into society to make an emotional political point but i doubt you would be joined by many other citizens in your quest for mercy.

    Our system is certainly biased, by money, and race based but neither of these facts was involved in the Boston Bombing trial. The defendant received the best defense a guilty person could hope for and he is as white as a person can be, he is a Caucasian.


    I think that jury nullification would need to be used in the guilt phase of the trial because a guilty verdict would likely lead to the DP.

    Hmmm... That's not how I would do it.  In the Ronell Wilson case, where I was part of the selection pool, it would have been extremely difficult to nullify in the guilt phase.  He shot a guy in the back of the head, on purpose.  He just didn't know the guy was a cop.  As with Tsarnaev, there's just so little doubt that a crime was committed that you wouldn't be able to make much of a stand against 11 jurors.  The nullification would have to happen in the penalty phase.

    If the court allowed death penalty opponents to serve openly, this would not be an issue. The question to me would be, "Does the severity of the crime in this instance, merit the death penalty in spite of your disagreement with it?"  I would simply say, "No" and go on with my life. But since my opposition is being used as a basis for excluding me, I never get to answer that question.  Any harm I could cause by playing the game to try to get a seat on a capital jury seems very minor to me.

    Of course, it will never happen now.  I am unlikely to be called for a second capital case and this post and discussion would, when mixed with the Google, likely lead to my dismissal from such a jury rather early in the process.

    Indeed, this would really force me to put my money when my mouth is, were I to ever find myself on such a jury because an angry prosecutor could definitely point to this post as evidence of intentional perjury.

    I sure do like to live dangerously!

    Very good piece from the Cato Institute (formerly known as the Charles Koch Foundation), which I admit surprises me. This is the best bit, IMO:

    Numerous academic studies show that those who survive the death qualification process are not only biased towards death (instead of life imprisonment), but conviction. People who have no qualms about the death penalty just tend to favor the prosecution - whether the crime is shoplifting, drunk driving, or murder.

    That is interesting.

    Peter's argument appears to be that lying to prevent state-sponsored killing  contravenes the law.  To paraphrase Dickens, sometimes "the law is an ass".

    The death penalty is a joke. It will take years for the Boston Bomber to face death. With life imprisonment, the door closes and He stays locked up. He will be isolated for his own safety. He will be miserable. Case closed.

    What i am saying is that it is unwise to recommend to anyone to commit perjury that could cause them to be imprisoned for a lengthy sentence even if it is for a worthy cause. That cause is not served by perjury or trying to rig the system and it will not stop the DP from being applied.

    If someone wants to commit this crime on their own volition without prompting that is their decision and responsibility. If they are discovered, which is likely, they will pay the price and the DP will likely be applied anyway.

    The DP in the US accounts for only a miniscule fraction of state sponsored killing by the US and no amount of lying will change that fact, I wish it could but all it would do is bring more people down to the level of our lying government.

    I think this is a legitimate point but I doubt there's much risk of being prosecuted for perjury if you tell the court that you would consider imposing the death penalty, even if you don't think you would, and then you argue in jury deliberations that the facts don't justify execution in your view.

    I am also anti-death penalty, but to play devil's advocate, if we're talking about murderers, then wouldn't their peers be people willing to kill? (Yes, that's meant to be a lame excuse.)

    Having just googled it , one fairly convincing explanation was that the "right" to be judged by your peers goes back to the Magna Charta and meant that nobles could count on being judged by other nobles.

    In any event , seems to me that the origin is irrelevant the important question is what the phrase is generally believed to mean now.

    My guess is that most people  define it negatively as they right not to be judged by people who are all different from you: a black shouldn't be judged by an all white jury , nor a white by an all black jury.It's got to be a mixture and one that includes  some people like you.

    Just repeating my comment above  prohibiting all opponents of capital punishment from a jury ,even if it can appear to be defended by careful parsing of the language, is wrong i.e. contrary to the objective of organizing a jury in the first place..

    It means excluding from the deliberation those  fellow citizens who think the state shouldn't kill people.. Forget about the penalty phase. How does excluding them increase the likelihood that those 12 people will reach a correct conclusion on the question that is supposed to be answered by the trial? 

    Because jurys must be unanimous, and because ,as in this case, the State wanted to achieve a death sentence the convention has arisen that the prosecution  has the right to keep  rejecting possible jurors who say they won't vote for it.

    Really? Why?

    Why does our system of justice award prosecutors that right? Something in the Constitution? Or something John Marshall said in 18 hundred and something? If after voir diring a couple of hundred or so potential jurors it happens that the final group includes one or more who aren't in favor of state killings, that's the way the old ball bounces.

    Live with it.Better luck next time  ( I hope not).


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