By Thomas Bartlett Whitaker
I had something of an epiphany the other day. “Epiphany” is a fancy word used by pretentious people for a moment when the world finally manages to dropkick some understanding into your fool ass. They are supposed to be fairly rare, but I seem to have them all of the time. This could be interpreted as a sign of me having a keen mind and an active sense of self-awareness. That sounds better than the truth, which is that I spent the majority of my life as the star of my own personal travelling carnival of fools. I played all the roles. It was not a hit with the critics.
The nature of this epiphany dealt with lies, and the circumstances that brought it about aren’t really important. A few scumbag guards lied to get out of doing some work, blah blah blah, whine whine whine. Not a new tune, in other words, and increasingly of late I feel disgusted with myself when I even acknowledge such events, let alone when I write about them. The point was, as I was all up in this sergeant‘s grill asking him calmly why it was so f-ing much to ask for him to just do the right thing, just once, to do the right thing, I saw myself from a distance and a rapid chain of thoughts rolled through me. They mostly dealt with guilt. Usually, when I get rolled over by someone else, the predominant thought in my head goes something like this: you deserved that, you useless fuck. I’ve been obsessed with the idea of using the bad things that happen to me as the equivalent of a series of down payments on the interest accruing on my guilt. On some level, I feel worse about my past when people are screwing me over, because it reminds me of the true size of my debt. This time, however, for the first time in maybe two decades, I didn’t feel that at all. Instead, I was filled with something resembling righteous indignation, not because I was honestly right in this specific circumstance but because I’ve been honestly right for a long time now. I’ve become honest and truthful to the point that lies actually bother and even disgust me, rather than resonating within me. I think I feel – rather than understand – the frustration people must have felt with me in the past, when I wasn’t on good terms with the truth. That’s a huge difference, and one I don’t think I appreciated in full detail until that exact moment. I was pissed off, and I finally had a right to be.
The thought that came on the heels of all of that was that maybe this meant I could start paying down the principle of my guilt. That’s a gargantuan mountain of debt, far beyond my ability to pay it off in one life time, but the feeling that at least the number wasn’t growing any larger was an immense relief. I imagine that this must be what it feels like for those caught in the housing crisis to see the values of their homes creep up past the value of their combined mortgages, or something like that. On one hand, I am aware that things don’t actually work this way in the real world; past mistakes aren’t annulled when someone screws us over in the present. But as a metaphor, I think this idea has power.
One of the results of this new system of accounting was to begin to really think about the instances when the state has lied to me or lied about me, and to analyze these for their actual harm. In the past I mostly just accepted these events as my due, but now I wanted to see them independent of any of my past action. Separated from associations of “just deserts,” I was able to see some of them as the true evils they always were, and to talk about them without feeling that I was “whining” about them. I couldn’t even begin to list all of these events here, and wouldn’t bore you with a list that long even if I could. But I want to share one of them with you because this lie is still at work and is still killing people.
Death penalty trials take place in two parts; because trial lawyers love nothing more than to hear themselves saying big words to enrapt jurors. I think I heard this process referred to as a “bifurcated trial” about 1000 times during voir dire. (One of the government lawyers seeking my death was a rather large man, and when he used this term he always swiveled his head from side to side, as if he were telling someone “no.” This caused the prodigious layers of fat that ringed his neck like a moat to sway about in the oddest way. To this day, when someone says “bifurcated” I can’t help but think of turkeys.) Anyways, the first portion of the trial is meant to determine guilt or innocence, the second to determine punishment. In a trial where the death penalty is in play (as they say), if you have reached the punishment phase guilt has already been established and the only two options for punishment are the death penalty or life imprisonment. In order to decide which, jurors are asked to answer a number of “special issue questions.” There are always at least two of these (though if you were sentenced under the Law of Parties as I was, you will also have a third question dealing with “causation,” also referred to by the punditocracy as the “parties charge”).
The first of these questions deals with future dangerousness, or “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Jurors are supposed to whip out their crystal balls and peer into the mists of the future to determine this, or something. Texas is one of two states that use this legal mechanism, and the only one where the burden of proving the negative falls upon the defendant; in Oregon the state has to prove the affirmative, Ie, that the defendant will be dangerous, while in Texas the defendant has to prove that he won’t be. If this seems like a nearly impossible burden, it is, and all I can say is, this wasn‘t an accident.
The second required special issue question is one dealing with mitigation, or “whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant‘s character and background, and the personal moral culpability of the defendant, there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” This is an interesting question for reasons that will be more obvious later in this entry, but ultimately this is an escape clause for jurors who are still not quite sure a death sentence is called for. That sounds nice, but you should keep in mind that before the trial started, a process known as “death qualifying” a jury had already taken place. This is exactly what it sounds like: any potential jurors who dislike capital punishment are removed from the pool. What you are left with is a group of people not overly sensitive to the spirit of the mitigation special issue question, and even the most obtuse of observers can see that it is seldom used in Texas.
In order for a death penalty to be assessed, jurors must unanimously answer “yes” to the question of future dangerousness and “no” to the mitigation question. This is a terrible responsibility to ask of twelve normal people, and I suspect (and hope) that this decision weighs heavily on every juror who has ever sat on such a panel. You would think that if our legal system grants these veniremen the right to kill, it would at least be honest about the process. You would think that, but you would be wrong.
Here is the lie, the one that will probably cost me my life. It’s referred to variably a “Texas’s 12-10 Jury Instruction” or the 10-12 Rule. Before the jury is to decide the answers to the special issue questions, they are instructed that the jury must have at least ten “no” votes to answer “no” on the aggravating special issue question (the future dangerousness question), and at least ten “yes” votes to answer “yes” on the mitigation special issue question; if these ten votes are collected, the result is a life sentence. The lie is very simple: it does not require ten jurors to decide in aggregate that defendant X does not pose a future danger, and it does not require ten votes in aggregate to decide that factor Y or Z is mitigating. It only requires one juror to decide either. Death sentences require a unanimous affirmation of the aggravating factor question and unanimous denial of the mitigating question. The 10-12 Rule is a flat out lie, designed to prevent solitary jurors of conscience from returning a hung jury – which means a life sentence.
Picture this scenario. It’s a hypothetical one, but from post-trial polling this appears to be exactly what happened in my trial. Say you are on a death qualified jury panel. You have just participated in a long trial replete with bloody crime scene photographs (and you can be guaranteed that they will be there, as government attorneys love nothing more than shocking people into verdicts). You are told to return to a room to deliberate the potential legal murder of another human being. Eight of your peers believe that the defendant would pose a future threat to society, while four others – including yourself – do not. Maybe you spend all day debating this, and maybe this deliberation bleeds into a second or third day. You witness your fellow hold-outs for life come to the realization that they are never going to convince six of the opposition to change their votes, and that this impasse could last for weeks. One by one they give up, because, hey, the weekend is coming and that son of a bitch is guilty, after all, what – I’m supposed to sit here and miss going to the beach on account of him? You are the lone voice for life, but the judge explicitly told you that it required ten votes to get a life sentence, and eventually you cave in. A man goes to death row, all because you were not told that your lone vote was enough to deny a death sentence. You were lied to by the judge, the district attorney, everyone. This happened to me. I sometimes wonder if the lady that was my lone holdout knows about this, and what she would think about it if she did. A day or two more of sticking to her guns and I would have made it.
The 10-12 Rule is a lie, but it is a lie that has survived constitutional challenge in Texas. And why wouldn’t it? This state loves its death penalty, and it is never going to voluntarily allow the court process to be even and fair; they don’t even pretend to such lofty goals down here any longer. The 10-12 Rule was a brilliant maneuver, I must admit. It makes individual jurors feel that their vote is less significant than it really is, and it seriously reduces the power of normal people of resisting the pressure of the majority. If a defendant were to stand up in court and try to inform the jury of the truth, they would be held in contempt of court and removed from the courtroom. Had I known about this law during my first trial, I might have done just that. I mean, why not? The alternative is a date in Huntsville with the medicalized gibbet.
I’m not a lawyer. I actually detest the study of case law, even if it is somewhat necessary for survival. The law and the courts are a culture, independent from your own. The passport to citizenship in this foreign land is costly: four years in college plus three more of law school. LawyerLand has its own language, norms, and territory, and when you are in their world, you realize just how powerless you are to understand or influence events surrounding you. And they like it this way, naturally: your lack of familiarity or comprehension is the root of why they get paid so much.
Of course, they sort of have to let the ignorant rabble in, don’t they? It’s hard to have a jury system without a jury. They do their best to plead out an immense percentage of cases (well over 90% in most jurisdictions), but every once in an annoying while they have an actual trial that takes place. Because juries are unpredictable, the courts over the years have attempted to reduce their power – even to the point of lying to them. It’s all about the certainty of convictions. Without a certain degree of surety in convictions, their world falls apart. If you lose faith that their goddess Justice knows what she is doing, just maybe their large salaries would be seen as obscene, and we can’t have that, can we?
They actually have good reason to worry. I’m going to throw a term at you, and I’m betting that most of you have never heard of it – despite the fact that it is, without question, the most powerful tool a single citizen in America has for combatting a tyrannical government. That term is jury nullification, and the principle behind the fancy name is both enshrined in the federal constitution (in the 6th Amendment, among other places) as well as being far older than that document. Nullification takes place when a jury passes judgment not on the defendant but on the law used to prosecute him. Did you know you could do that? Think about that for a moment, and you will see why the judicial system has done everything it can to make you ignorant of this term.
When I did my research on this issue (thanks Doro), the most obvious early case of jury nullification that I could come up with was that of John Peter Zenger, in 1735. Zenger was the Printer of The New York Weekly Journal, and he repeatedly ran articles critical of the Governor of New York, William Cosby. This violated the seditious libel law, which prevented citizens from criticizing the King’s appointed officers. That Zenger was guilty of this crime was without a doubt. Zenger’s lawyer, Andrew Hamilton, however argued that falsehood was what made a libel a libel, and since his client was actually telling the truth about Cosby, the law was broken and outdated. The jury decided (rather quickly, actually) that he was not guilty, and thus nullified the law. As a result, truth of one’s claims has been a defense against charges of libel ever since.
During the early years of our nation, the notion of jury nullification was widespread in the courts. The quotes I could use are many, but I will restrain myself to listing only a few. For instance, in Pennsylvania, Supreme Court Justice James Wilson noted that when “a difference in sentiment takes place between the judges and jury, with regard to a point of law,… the jury must do their duty, and their whole duty; they must decide the law as well as the fact.” In 1879, the Pennsylvania Supreme Court noted that “the power of the jury to be the judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights.” John Jay, this country’s first Chief Justice of the Supreme Court, stated in 1789 that “the jury has the right to judge both the law as well as the fact in controversy.” Samuel Chase, US Supreme Court Justice and signer of the Declaration of Independence said in 1796 that “the jury has the right to determine both the law and the facts.” I could go on. The point is that there was a time when juries were not seen as mindless robotic sheep tasked to merely “follow the law,” but rather as the conscience of the nation and a bulwark against a government, which had drifted into tyranny. It is as established a cornerstone of jurisprudence as anything else on the books, dating all of the way back to the first days of the Magna Carta. Why, I humbly ask of you, haven’t you heard of it before?
No, really, that wasn’t a rhetorical question. Lawyers who try to bring this up to juries are thwarted by judges, sometimes in ways that are hard to believe. If a potential juror is asked during voir dire if he or she knows about juror nullification and they answer in the affirmative, they will most certainly be struck for cause (though this question is NEVER amongst those which are frequently used by attorneys during voir dire in Texas, because merely saying the words make jurors aware of the existence of this power, and we can’t have that, can we?). In US v. Krzyske [836 F.2d 1013, 2021 (6th Cir.1988), if you care to look it up], the jury actually sent a letter to the judge during deliberations asking “what is jury nullification,” and the judge replied, “there is no such thing as valid jury nullification.” Seriously, look it up if you don’t believe me. This isn’t a joke. This is how freedom dies, one tiny cut at a time, in the interest of “safety” or “security.” There is an irony here, one you have probably already noted. On one hand, prosecutors routinely ask jurors during closing arguments to “send a message” with their verdict, Ie, to stand up for societal norms. But when a jury does exactly that but stands against government overreach, everyone panics. It would be amusing if it weren’t so tragic. The way that some attorneys criticize the notion of nullification, it’s as if it were illegal. It isn’t. A juror has the power to come to whatever decision they want when they sit on a panel, and they are under no obligation to ever explain to anyone why they decided as they did. That’s exactly what jurors are supposed to do, after all.
Here is another hypothetical situation that really isn’t so hypothetical. I had a friend in the County Jail known as Big C; I’ve written about him before. Big C liked marijuana. A lot. He called himself an enthusiast, a term which understates things a bit. When I met him, he had already been convicted twice for small amounts of this drug, and was looking at a potential life sentence for his third fall. Let’s be clear: Big C was not a dealer. He never got busted for more than a few ounces of this drug, and the state never even alleged he was a dealer. He managed a car wash and had a girlfriend and a young son. Not a career criminal or a terrorist, in other words. He ended up pleading out for 40 years for this last fall, but let’s pretend that he went to trial, where the “habitual offender” tag was in play and a life sentence was mandatory.
Let’s say that you are a juror on his panel, and while it is clear to you that he is guilty, your conscience will not allow you to sentence someone to a lifetime in prison for possession of a substance that will probably be legal eventually anyway. Maybe you are a libertarian and think that the war on drugs is a horrible example of government overreach (hey Tea Partiers, yeah you, I’m talking to you over here!). You have been trying to vote out the bums who chose to spend a few trillion bucks on the whole mass incarceration debacle, but haven’t had much luck. Ideally, you would be able to convince the other 11 jurors to acquit Big C, in order to nullify the process and make a statement about the law. If you were able to do this, I guarantee you that this particular ADA (and probably the entire DA’s office) would think twice about trying to nail the next defendant with the habitual tag being applied for a tiny amount of pot. But here is the point: even if you can’t convince even one other juror to nullify (even if you don’t try to convince anyone and keep your mouth shut), you can still stick to your guns and produce a mistrial by voting to acquit. Districts only have so much money for trials, and when they start to see that heavy sentences for minor offenses aren’t producing reliable conviction rates, they will stop attempting them. One single citizen can, acting upon his or her conscience, literally derail the entire rotten system of justice in this nation. And no one can say a bloody thing to you about it, because the jury system was designed by the Founders to do exactly this.
I understand that this isn’t for everyone. Some of you still believe in our system of laws, and you truly believe that it is the duty of the citizen not to challenge authority, but rather to obey it. Fine. I personally think you are delusional and would be happier living in China, but I get it. But if you are a person of conscience who believes that there is more “punishment” than “crime” these days and that the government has gotten too powerful, nullification is your best friend. I highly recommend you do your own research on this, so you can see that I am telling the truth. You will see the shrill, nearly panicked writings of lawyers who hate the idea of juries passing judgment on the law and the state, and these articles are nearly as instructional as those written by people who believe in the concept. One of the better summaries I found was written by James Joseph Duane, entitled “The Secret Constitutional Right;” I will link to it at the conclusion of this essay so that you can read it for yourself.
I wonder what the holdout from my trial would have done if she had known about this concept. Would she have resisted the pressure to kill? I think that she would have, based on comments she made after the trial. The whole mitigation special essay question is an attempt to release the pressure behind the spirit of jury nullification, but to do so in a controlled way – a group decision of ten like-minded jurors, according to their narrative.
I suspect that had jury nullification been more widely known in this country, the entire notion of mass incarceration never would have been allowed to be born, let alone to become the behemoth that it is today. The best part about this is, for those of you who are American citizens, the chances are good that you will one day be called to jury duty. This isn’t a theoretical power that you will never be called upon to use. Someone you know will be serving on a jury in the next year. Go do your research – a few Google searches will be sufficient. If this strikes a chord with you, why don’t you share this civics lesson with your spouse or a friend? I bet they won’t know about jury nullification, either. For those of you who are fed up with the pace of reform in the criminal justice sphere, you need to make nullification your weapon. A few nullified juries in each county should be more than enough to condition prosecutors from shooting for the stars, and that is a real benefit that this nation is badly in need of.
To learn more about jury nullification, please click here.
Thomas Whitaker 999522
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3872 FM 350 South
Livingston, TX77351
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