Does this count as a hung jury?

posted Wed, 06 Apr 2005

I didn’t get picked for the capital murder trial. I am quite relieved, as I did not want to be sequestered, but I am ashamed of my relief. It’s the sequestering part I didn’t like – not the jury part.

Mostly.

I am also relieved that I did not have to make a decision about capital punishment. I have such mixed feelings about it. Among the state’s limited rights and duties is the duty to protect its citizens. Part of that protection includes removing from society those who have decided they are not going to conduct themselves by the rules of civilized society.

The state does not have the right to take a life, I don’t think. But what do we do in cases where the state does not keep the bad men behind bars and they are released only to kill again? That’s what happened with Kenneth Allen McDuff, who was supposed to be executed in the late 60s, but his sentence was commuted to life when the Supremes said no more death penalty, then he was paroled. He got out and murdered a few more women.

Is the state’s responsibility to protect its citizens stronger than the ugliness of capital punishment? That is, is execution the only way to protect the rest of us from some of these men?

So. We get to the courtroom this morning. Most of us are on time, if not early. Four people show up half an hour late and disrupt the proceedings in the courtroom. After the fourth one, the judge tells the bailiff not to let in any more latecomers but to send them back to the jury pool room.

There are already nine jurors chosen. There are 40 of us in the pool. Three additional jurors and two alternates. How hard can this be, I think.

Ha. Questioning for a capital murder case is a lot more intense than for an insurance fraud case. It takes the judge and the assistant DAs an hour just to find nine potential jurors who 1) are willing to be sequestered and 2) would be willing to give the death penalty. No wonder this has been going on since Monday morning. The ADA and the defense attorney haven’t even started the detailed questioning.

It’s interesting that the few people who claim they cannot be sequestered for three days are not the college professor, the principal of an architecture firm, the physician or the other people with jobs with high levels of responsibility but a security guard at a company with over 200 employees and a woman who does not work outside the home. No one is that indispensable. Even the president of the United States can be replaced in 15 minutes.

When the ADA asks about the death penalty, it’s clear that most people really give great thought to the question. It’s one thing to say you are for or against it in the abstract, but when the defendant – a slim, nice-looking young man who looks like he’s about 19 – is sitting across the room from you, it’s a little harder.

Most of the prospective jurors talk at length about their death penalty beliefs – they don’t know if they could actually give it themselves, they are against it personally and would like to see it go away but would follow the law should the jury findings dictate it, it is their religious belief and has been for X years, and so on. One prospective juror had an uncle who was executed, so she wasn’t a big fan.

Finally, there are the nine prospective jurors seated and the detailed questioning begins. The ADA talks about the concepts of reasonable doubt, credibility, equal protection under the law, innocent until proven guilty, and mitigating and aggravating circumstances.

Then one of the defense attorneys – who is a much better speaker than the ADA – emphasizes the innocent until proven guilty part and stresses that if the state cannot prove all the aggravating circumstances, the jury cannot give the death penalty. Sounds to me like she is just trying to keep her client alive, not that she is trying to prove (which she does not have to prove) that he is not guilty.

All four lawyers are women. The two ADAs are youngish and blonde, the two defense lawyers are older. One is black and slim, the other is very heavy and white. They have that public defender look about them.

After the peremptory strikes, we get all but one of the alternates. The next four potential jurors all say they don’t believe in the death penalty. No explanation. The ADA presses for more information, but gets nothing but flat statements that they don’t believe in it – not the detailed explanations other jurors gave.

Still, there is nothing the judge can do but dismiss them. The ADA rolls her eyes. The rest of us are a little impatient, too. We know these people are fibbing. Not only that, but it’s now 12:30 and it took us three hours to get to this point. Are we going to have to go through this all over again?

The judge dismisses us for lunch for 75 minutes. A long lunch is the last thing I want. I want to get this thing over with. It’s not like there’s anything else I can do in that time. It’s pouring down rain outside and I don’t have my computer with me. Not that it would matter if I did – there’s nowhere to connect to dial up for my email and I’ve already finished all the work I saved on my hard drive.

We start again at two. Again, the first two prospective jurors (alternates, really) claim they are against capital punishment, but they cannot explain why. We finally get two who are acceptable and pass all the other questions – and lose them in the peremptories. Oh man. I just know the bailiff is going to pull my number from the hopper and I am going to be on this jury.

But this is when they pick the biology professor. He is the one who is against the death penalty but would follow the law if the defendant were found guilty. I am convinced the ADAs will strike him, but much to my surprise, both sides accept him. At last. There is a huge sigh of relief from the rest of us.

Merle dismisses us, telling me it’s rare to take so long to pick a jury. “Usually,” he says, “almost everyone is dismissed by noon on Tuesday.”

I tell Merle this would have been the week to buy a lottery ticket, but he tells me, “You weren’t exactly lucky.”