America's legal system depends per our constitution on juries of ordinary people,
not legal professionals as in some other nations (cough UK cough). And
in order to fill this need we have a kind of draft. Voter and more recently
driver's license rolls are harvested and every once in awhile the government
sends you a friendly notice that you need to do your duty. You know, the kind
of friendly notice that contains phrases like FAIL NOT and CONTEMPT OF COURT.
The day before I was ordered to appear my company vice president patted me on
the back and advised me not to worry. "These petit juror things usually aren't
that big a deal," he said. "Usually get plea bargained at the last minute,
and only last a day or two if they do go to trial."
So I arrived to find out the reason my excuse wasn't accepted, as neither was
the excuse of the lady on chemotherapy or the lady who is a bona fide employee
of the Sherriff's Office on first-name basis with all the court flunkies or
the NASA engineer who is a critical member of the Orion team, is that no
excuses were accepted at all because this is a death penalty case and the
jury will be sequestered for two to three weeks. Going into detail on why
this is unacceptable would be bragging, but let me just say that if I was
willing to go to places where my cell phone doesn't work for that length of time
I'd have seen places like Japan, Kenya, and Madagascar, where my wife went
When I mentioned this (without mentioning anything else about the case) I got
an almost universal piece of advice. "Fry him! Guilty!" my coworkers chortled.
"They can't seat you if you're convinced he should die." Everyone was sure this
I'm here to say that it wouldn't have, and why, and what I did that did.
I will say one brief word about my civic duty. Throughout
this proceeding it was made clear that the usual rules of civil accommodation
had been dropped. From top to bottom, THE SYSTEM had decided that this was a
life-or-death matter, and that nothing short of a life-or-death excuse would
even be considered. Any quaint idea that the social contract works in two
directions, with obligations from the government to the citizenry too, were
cheerfully and deliberately tossed overboard.
Toward the end of this process (for me) the prosecutor told 50 of us, "Some of you
have applied for hardship excuses. We will ask you about those and consider
them well. But I am going to say now that how unhappy your boss will be about
this will not be considered." He said that to a room full of people
whose financial situation he did not know, knowing full well that the laws
against firing people for jury duty lost time don't apply to contractors and
the self-employed, that plenty of people live paycheck to paycheck, and
generally advising us that our problems were not his concern.
Fuck my civic duty. This was war. Legal war, to be sure, but war.
The court was used to calling 350 people to form the pool for a big trial, but
this was the first capital case most of them had ever worked on and they called
500. Plus no excuses were honored, so we all had to actually show up. The
staff and facility were overwhelmed and everything that happened happened late
and far overtime.
On Friday we were checked in, filled out an eight page questionnaire
about our knowledge of the crime, background, and feelings on the death penalty,
and nearly everyone was advised that they would have to return the following
week. For this capital case each and every juror would have to be interviewed
individually and in private to "pre-qualify" us. It turned out that that took
much longer than expected, and some people on the following Monday and Tuesday
didn't get home until nine in the evening.
Those of us who had submitted written excuse requests were promised that we
would be heard on Friday so that we could get on with our lives, but it was
not to be. They did get the people with medical excuses cleared out, but
only barely. The rest of us -- those with families, mortgages, small children,
or critical jobs -- would have to come back on Wednesday. This was a severe
problem for some people who had planned travel or duties who were basically
told "tough, cancel it."
On Wednesday, I showed up as requested at 2:00 PM and the final group of 50
of us were showed into the courtroom around 4:45. What happened next will
be different from jurisdiction to jurisdiction, but the important parts
probably won't vary much.
Because we were to each be interviewed and those interviews were to be the
basis for critical trial stuff, we were placed en masse under oath.
We were shown a little PowerPoint presentation summarizing the crime, what exactly
constitutes first degree murder in Louisiana, and standards of guilt and
innocence. The prosecuting attorney led this off. He then advised us that
in Louisiana a capital case is a two-stage affair; after the jury returns
a unanimous guilty verdict they start over from scratch with a new mini-trial to
determine whether to sentence life in prison without parole ("a true life
sentence") or death by lethal injection, requiring a unanimous decision
for death. We were advised that we must find at least one aggravating
circumstance to impose death and must consider all mitigating circumstances,
and the particulars of what this means in Louisiana were explained.
We were advised that (nod nod wink wink) there were certain conditions
which could prevent us from serving. If we were unwilling for some reason
to ever vote for the death penalty, or conversely unwilling to vote
against it, or if we were already convinced of the defendant's guilt or
innocence we could not serve. It was like a little mini instruction
manual for anyone who wanted to just go home.
What he did not say was that each and every one of those suggestions
was booby trapped. The hint for me, which many would have missed, was
a little side point in the defense attorney's following statement: "Not
everyone has fully thought out their opinions on the death penalty."
Really, I mentally shot back, and that is important just why?
And both attorneys basically said that your job doesn't matter, your obligations don't matter, your livelihood
doesn't matter. What matters is what we want and nothing else. And I
realized that my reasonable expectation that my excuse request would be given
some respect was not operational. I wouldn't have minded so much if they
had at least pretended to give a shit about anything other than their
precious case but it was very in your face. This is the
motherfucking death penalty and you are gonna motherfucking serve on our
jury if we want you, motherfucker. You think YOU got problems? Well yes
counsellors many of us do, but you have obviously decided to be deaf to that.
Bear in mind the defendant was already serving a life sentence for
another conviction. There wasn't even any chance the guy was going to go
free. This was all about points, an expensive undertaking for
the sole purpose of needling the guy. And for this mothers of young
children, school bus drivers, NASA engineers, and yours truly are all
told that nothing that is important to us is all that important at all.
The exact process is different from court to court and even more from
state to state, but some version of the rest of this happens just about
everywhere in the US where the death penalty is available. If you
receive a mysteriously unreasonable jury duty subpoena, beware and be
The last of us to be interviewed were the people who had submitted
written excuse requests
by the deadline as per usual. We were told that our interviews would
be about our excuses and our view of the death penalty; if we "passed"
we would return on Thursday for the official jury selection in full
I had all but been told to my face that my job didn't matter and the
first couple of questions pretty much confirmed this. Asked about my
hardship excuse, I said:
"I design industrial control systems for a living. I have hundreds,
thousands of customers, many infrastructure critical, some government
agencies, any of whom could be go down completely for the length of
the trial if they had a failure at a bad time and couldn't get
hold of me. I don't take vacations longer than a week or so because
"Suppose we allow telephone access, would that help?"
Icicles I tell ya. "Some, but sometimes I can't do it over the phone.
I have to drop everything and drive to some place like Lake Charles
or Jackson and take care of it myself."
"Right." Big honking icicles. "Tell us about your views on the death
This is where you either go home or go on.
What Mr. Prosecutor didn't mention while outlining all those reasons
we couldn't serve is this: The moment you stake out an absolute
position, one side wants to send you home but the other desperately
wants you on the jury.
These are smart smooth people who not only just interviewed 450 other
people, this is what they do for a living and they are good at it.
Their job is getting hostile people to say things they don't mean
to say under oath. Each side has two attorneys in the room. They have
read and pored over all those questionnaires. What exactly did you
write on yours five days ago? You're under oath. Do you honestly think
these guys who try death penalty cases for a living have never encountered
someone who had your same cool plan before, and that they have no
strategy to counter it?
Hawk #1: Kill 'em all and let God sort 'em out.
What everyone suggested and seemed to think would be a free ticket
home. There is a word for people who think like this in this
situation, and that word is "jurors."
As soon as you declare your love of all things lethal to those scum
sucking niggers, the defense attorney will lean back and waive his
right to ask you any questions. But what you don't realize is that
the prosecutor, with whom you think you nominally agree, has just
become your nemesis. You want to go home, but he wants to put you
in a hotel for three weeks with no TV or internet and a whopping USD$25 per
day paycheck in lieu of the one you're not drawing.
I can easily divine what he will ask next. You're sure about
that? That seems like an awfully extreme viewpoint. Are you sure
there aren't any circumstances where you might favor mercy?
And at this point, full of confidence and braggadocio (about the
only way to even try to pull this off) you'd say "sure."
"But what if the defendant was some kid who just got mixed up with
the wrong people, and even though he clearly met the criteria for
first degree murder (not that hard in Louisiana since it doesn't
require "premeditation") he was sincerely remorseful and had
apologized to the family and butterflies now grow out of his ass?
Would you still see no possibility of voting for life?"
About this point you might realize it was your ass on that platter
he is handing you, but it is now too late. If you can carry it
out all the way, making yourself look like a heartless monster
-- under oath -- then you win. I sincerely believe that none of
my RL acquaintances who gave me this cool advice would have been
able to do that. As for accomplished online trolls, your skills
might translate. Possibly.
But this is the fucking prosecutor who is after you. He is
not an online troll.
He eats delinquent babies for breakfast and their deadbeat dads for
dinner. He has the power of the State behind him to do investigations,
locate witnesses, and compel testimony. He can read your body
language and have you put in jail if he can prove you lied to him.
If you want to bet that you are better at doing what he
does than he is, good luck with that.
Hawk #2: I'm sure the fucker's guilty.
Again, the prosecutor is not your friend. You seem to be pretty sure
about something that happened seven years ago with no direct
witnesses. Are you really, entirely sure that nothing we might
present could possibly sway you? Is there something you should be
telling us? Because even we aren't that sure. I mean, I'm
not even sure what I had for breakfast last Tuesday and you're
totally absolutely sure that this guy you've never met
-- you've never met him, right? -- killed this person you also never
met -- you've never met her, right? -- well that's pretty
interesting. Veeeeeery interesting.
Hawk #3: I'm sure the fucker's guilty because he's black.
Sure son, racial tensions in this state go back a long way but surely
you can admit that there are some black people who aren't guilty of
murder, right? You can't name one good black person, not even one?
Why my best friend is black. I'd say you have a pretty miserable
Actually, this might be the safest approach from the hawk side of the
fence; pretend to be Bubba and not to trust them niggers an inch
and fuck yeah, if one of them offed a white lady then you don't need
to hear anything else. That's actually believable if you can pull off
the Bubba act. But it's probably safest only if you really hate
black people. You're close up in a small room and in person, and
these people can smell a lie like a fart in an elevator.
The main problem with hawk strategies is that they pit you against
the prosecutor. It's not just that he has more resources in
this arena; he can be a lot more dangerous to you personally if you
manage to piss him off. The defense attorney can't hint to the cops
that you might be worth extra scrutiny or put you on the railroad to the
barry barry place should you blow .10 in a DUI check, but the
prosecutor can. He's not just a lawyer, he's a lawyer and cop
in the same sharkskin.
So let's look at the other side:
Dove #1: I'm sure that sweet lad couldn't have done it.
See Hawk #2, replace "prosecutor" with "defense attorney." Well not
exactly but if I need to spell it out, you won't be able to pull
it off and will probably get excused anyway because you can't read and
write the English language.
Dove #2: It's morally wrong
This is a little better because now it's the prosecutor who will sit
out while the defense counsel tries to get you to admit that you
could, in fact, vote for death. He doesn't have the resources
the prosecutor does and isn't nearly as dangerous to your future
if you piss him the hell off. But he'll bring up everything up to
and most likely including Hitler to get you to admit that, even
just once in awhile, maybe the death penalty isn't such a bad
So you're telling me that if our defendant has killed at least twenty
people, all of them horrifically tortured and most of them children,
and sold their bodies to the medical school to buy heroin, that
you really think we should just feed, clothe, and house him for
the next fifty years of his life? You have no problem with that at
all? Even if, like Jeffrey Dahmer did, he writes letters from time to
time saying how much he likes being a prison bitch? You really
think that's better than just sending him to Saint Peter?
or plan B...
Well what about the Army? Wouldn't you agree that we need to defend
our country from attacks? That we need police to protect us? That
sometimes the only way for them to do that is to kill? Would you
say that they should never, ever, for any reason ever kill anybody
even if that person has a nuclear bomb and is heading for your hometown?
Dove #3: Don't ask me to do it
Hey, that was some good suggestion the prosecutor gave when he said
"Even if you think the death penalty is OK but you're squeamish
about voting for it yourself, if you say 'don't make me do it' then
we can't use you."
You're sure you'd never kill anybody? Even, say, if your own
life were threatened? If, like the victim's family, it was your
wife or mother or daughter? You wouldn't feel the slightest urge
to avenge yourself? Well while we're at it do you eat meat? What
about rats and cockroaches? Do you let them just do whatever they
The problem with the arguments from morality is that they all lead
to a slippery slope onto which you can be very easily dragged, especially
by someone at their level of the craft of manipulating people. My
biggest objection to the DP is just that I think it's a bad idea to
give the government the idea that it's a good idea to kill people, but
I knew as soon as I realized the DP was my only way out that that would
not fly. It would be too easy to turn against me and they didn't, after
all, have to get me to say I was in favor of death, only that I'd be
willing to consider it.
And from the proportion of excuse seekers who were coming out with
instructions to return later, it was clear that not many were getting
through the screen.
What I said
"As I said, I design industrial controls for a living. Been doing that
for 25 years. And one of the lessons I learned early on was that you
never commit a permanent change until the last possible moment. You
never do what you can't undo until you have no choice. Because after
that if you discover a problem, you can't fix it. And so, to me, the
death penalty just looks like an example of bad design."
After this there was a nearly audible whoosh as breath was sucked in
and a small pause which seemed to last about a billion
years. Then the clerk asked the prosecutor, "Any questions?" He
made a wry smile as he shook his head.
The defense counsel looked thoughtful, and then said "Can you testify?"
(And no, it was a joke. A lawyer joke, but I got it. You can't testify
if you've been in the jury pool.)
I wasn't taking any chances though. I didn't laugh, and I went on,
"I've thought about this a lot." ("Not everyone
has fully thought out their opinions on the death penalty," I heard
in my head.) "I have this argument a lot with people on the internet
and my friends. I have pretty strong opinions on the subject."
They still made me wait outside for a minute while they discussed it,
but then they sent me home. I bought a bottle of champaigne on the
Where it might have gone
As some here have pointed out this isn't really a strong criticism
of the death penalty, and it's not really my main personal problem with
the DP. But the advantage of this argument
is that there is no slippery slope. It's pretty hard to argue
that once you kill a guy you can say you're sorry and set him free when
the Innocence Project comes around and proves, as they do with depressing
regularity, that you fucked up.
About the only place the defense could have gone would be to argue
deterrence, and in the situation we were in that would have been a very
weak argument; I wasn't after all arguing for actual legislation, just
that I had feelings strong enough to preclude my own self ever voting for
death. And it would have been easy to laugh at the deterrent effect of
the DP. "You think some guy who's getting ready to pull the trigger
is even thinking of that? If he's not deterred by life without parole
he's gonna give it an extra bit of hesitation because of the needle?
What a bunch of horsecock. I do, however, worry that the smarter ones
might think ahead enough to wipe out all of the witnesses because the
penalty is so harsh."
There is also another angle which was in the questionnaire, and might have
had something to do with things; I had answered that my attitude to the
death penalty would not influence my decision on guilt or innocence.
And that's true; given that an admittedly imperfect system had managed to
convince me that there is a very great chance you are a monster, and that
my only choices are to set you free or fry you, the Bar-B-Que might seem
the lesser of the evils. That made it very clear that I was not
making a moral argument, which would be subject to slippery slope
questions of how bad you'd feel if you got yourself off the jury and
then your peers, lacking your perspective, convict and fry the guy. I
made it obvious that I trust my peers in the guilt phase of the trial and
it doesn't bother me that much if they then go for the red ring. Whatever.
I can't get actual engineers to do pretty much uncontroversial things the
way I'd like, what are you supposed to do?
The Last Word
One of the bailiffs tending us joking with the lady who worked for the
Sherriff's Office said, "Yeah, everyone would love to serve
but. It's always the but that gets you." And I know
just what he's getting at. There's an assumption that you must pay
obeisance to the concept of civic duty before trying to worm your way
out of it.
Well fuck that. I would not love to serve on a jury. In
normal circumstances I might not do more than the usual boilerplate
in the cause of avoiding it, and hold my nose and do a few days to keep myself
straight with teh authoritah if that wasn't enough. But I won't pretend
I'll like it, because frankly being in a courthouse creeps me right the
fuck out. The whole place reeks of Essential Oil of Authoritarianism.
I do intellectually recognize that we need some of the functions that
the justice system carries out, but I also recognize that about the
water department and I don't like being around raw sewerage either.
And in this case, where teh authoritah has pretty much openly declared
war on me ... well fuck that.
The funny thing is, one of the things they didn't ask me was just how
far I live from the scene of the crime. The answer to that would have
been about 100 meters. I didn't remember it because I was eyeball
deep in work and not noticing much of anything when it happened, but
my wife did. Our neighborhood had been leafleted with a horrific pamphlet
begging for information about the murder.
So why didn't I put this potentially excuse-worthy detail in the
questionnaire? I didn't remember the victim or defendant by name, it
having been seven years since the crime, and the questionnaire erroneously
advised that the crime had occurred in Madisonville. Had it accurately
said Mandeville, I might have remembered -- there really aren't many murders
around here. And anyway, I did put my own address down, which
happens to be on one of the streets that is named after the subdivision.
The fact that nobody noticed that and moved to clarify it in
the interview demonstrates to me that they seriously didn't
So if they had put me on the jury, they would have probably had to
excuse me and burn an alternate as soon as that came out. And if
it didn't come out and I served the whole trial, it would have made
for a nearly certain
mistrial. So all of that intimidation and ill will turned out to be a
complete waste of everyone's time, energy, and money.
I wrote this on August 21. I'm only posting it now because all jury
pool members remain under a gag order until the trial is over, apparently on
the general principle that we might start "rumors" about what
is going on.
On August 29,
twelve of my peers convicted Dominic Robinson of first degree
murder in the matter of following my then neighbor Samantha Jaume
home from the local Wal-Mart, demanding the keys to her SUV, then
shooting her to death when she couldn't comply because she did not
realize she'd dropped the keys in one of her grocery bags.
So now I can finally talk about what happened.
Dominic was already serving a life sentence for another not so
lethal carjacking, but this eliminates any chance for parole.
As for the death sentence, Mother Nature had the last laugh.
The sequestered jury had to be released for evacuation under
the threat of Hurricane Gustav, and a mistrial was declared in
the death sentence phase of the trial. Considering that that
was pretty much the only reason for holding this circus in the
first place I am curious to see if they go through it all again
just to needle the asshole.
Under the "crooks is stupid" tag it is worth mentioning that
Dom's partner punched the accelerator of the follow-her-home car upon
hearing the shot, leaving Dom to hike it out of the Woodridge
subdivision on foot just as a whole bunch of white-bread suburban types
were returning home from their Independence Day Bar-B-Que's.
Made for lots of info for the sketch artist.