The foreman said deliberations broke off April 26 when one juror questioned why they should take another vote. "What for?" the foreman remembers the juror saying, "We all know how it is going to come out."This describes a fascinating group dynamic. Why did the lone dissenter remain anonymous? Was he (or she) afraid of the group's disapproval? Or was he instead worried that he couldn't articulate reasons good enough to fight back 11 opponents? Did he remain anonymous out of fear or did he perceive a strategy in remaining silent -- that is, could he predict the path the 11 would take?
The next day a juror called in sick, and there were no deliberations. That Friday, the jury returned. The foreman told the group that she wanted to send a note to U.S. District Judge Leonie M. Brinkema stating that the jury was "not holding deliberations in the true sense of deliberations because the con arguments were not being thrown out on the table so we could investigate them as a group."
She said the jurors did not want any notes sent to the judge, so they decided that the whole group would raise anti-death penalty issues because that way the lone dissenter would not feel isolated or "ganged up on." Deliberations continued, but the foreman said the lone dissenter still did not raise any issues. Three days later, jurors delivered their decision to Brinkema.
The foreman said at the end of the deliberations she felt better about the process but not the outcome.
"I felt frustrated," she said, "because I felt that many of us had been cheated by the anonymity of the 'no' voter. We will never know their reason. We will never be able to hold their reason up to the light and the scrutiny of evidence, fact and law."
The 11 had first to accept the fact that the dissenter was not going to talk and then to realize that they would need to generate the arguments against the death penalty. That meant that they could no longer hold fast to their pro-death penalty state of mind. Instead of deflecting arguments from the outside, they were forced to think the thoughts of the death penalty opponent. They had to state the arguments against their own positions, and in going through that exercise -- which would have been unnecessary if the dissenter had spoken -- they convinced themselves.
Meanwhile, the dissenter could preserve an armored mindset: I will not engage with you. I will sit here forever until you do the hard work of imagining what I'm thinking.
The silent approach seems to have worked in the Moussaoui case. But I wonder how effective this passive aggressive argumentation style is in general. It only has potential, it seems, in a situation like a jury room where the group cannot progress without the holdout's agreement. Jurors, moreover, separate at the end of the task and therefore lack a stake in the ongoing relationships within the group. But perhaps some variation on this strategy could work in a family, where one person has an opinion but feels incapable of arguing for it.
For example, a child might do well saying to a parent: Why do you think I feel this way? I need you to explain my feelings to me. There's no option to remain anonymous like the Moussaoui juror, but the strategy is to decline to offer an explanation to someone who needs your cooperation. And the hope is that in forcing the other person to articulate your position, they will understand and value it more than if you had said it to them.
Law professors can learn something here too. Sometimes we ask a question and a student take the position he believes in. We then might take the other side, pushing back with the opposing arguments, in an effort to strengthen the student's powers of reason and argument. But we can also, instead of arguing back, say: If I were the judge, I'd be thinking right now of ruling against you. Why do you think that is? Would the student be more likely to change his position -- or, better, to end up with sounder beliefs -- than if the teacher had taken the opposing side?
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52 comments:
Sometimes professors act like Henry Fonda too at inappropriate times. They believe they are so right in their analysis, and they also seem to think they can provide a moderate, unbiasing force in the classroom, when in fact the opposite is true. What happens to the students when faced with that?
It might be that they are the last throes of the deadenders in their beliefs all the while convinced of the position and moderation. 29%.
Number 6: I think the ideal is for students to feel that they don't even know what the teacher's positions are. Pushing one's political opinions in class is an abuse of power.
I think passive aggressive modalities in human interaction are much more common and accepted now than they were in past generations. You can even do passive aggression in groups, in "nonviolent" protest which is actually highly aggressive.
Personally, I think it sucks for precisely the reasons the jury forman noted. The silent juror was the biggest bully.
Your suggestion for law profs might just work. When I was taking Con law, we covered Roe v. Wade. The prof tried to get someone to take the anti side. The group dynamic was so bad that no one did. He then assigned someone to do so, who happened to be rabidly pro-Choice. She refused. Ditto for another woman. He then gave up.
A large part of the class then filed a grievance against the prof for this, led by the woman with the highest grades in the class. The faculty committee asked them for their proposed remedy. Did they want the tests regraded? No, they just wanted him repremanded.
I thought that the whole thing was silly, as did at least some of the faculty on the committee (I found this out later over wine with them).
But my point here is that he was doing his job - it was most likely his approach that failed. He might have done much better with the approach you suggest.
Let me add to my last post, that it turns out that the Con law prof is strongly pro-Choice. I suspected that, but it wasn't confirmed until that wine tasting with some of the more conservative faculty.
Since this was not the guilt phase and the two alternatives could both be viewed as harsh, I suppose the lone hold out didn't feel any need to justify the position. For me though that person should have spoken up, that's how the system should work.
This was not a Henry Fonda action.
Number 6: I think the ideal is for students to feel that they don't even know what the teacher's positions are. Pushing one's political opinions in class is an abuse of power.
I understand that. It is of course a silly position to think that one can keep one's innate and conscious or unconscious positions from being detectable, especially in a situation of close and repeated observations such as a classroom.
Better for all if the Professors were transparent.
Otherwise it's just another bizarro world path to papal-infallibility, and judge-infallibility.
Can a professor so intent on not showing any bias in her views have any ability to accomodate new information and evidence contrary to her views?
Instead of trying to pretend there is no bias out of fear of influencing students, admit to any bias upfront, and treat the students as adults. I myself think foo, you are free to think bar, please make up your own mind.
They had to state the arguments against their own positions, and in going through that exercise -- which would have been unnecessary if the dissenter had spoken -- they convinced themselves.
Doesn't seem to me too much that they convinced themselves of the rightness of the holdout's position. They certainly convinced themselves that the holdout would continue to holdout. In fact, the people quoted sound pretty upset about the outcome, not convinced at all that it was right-- though convinced that the process is okay.
I think what happened was a psychological event, not a legal one. It's the thrill of challenging the unanimous verdict. It happened on a jury I served on, and it was simply one control freak who for some reason refused to go along with the group. A man careened through a neighborhood in his car in broad daylight and hit several parked cars and garbage cans. There were six eyewitnesses. He had no alibi. The car was registered to him. Our Lone Juror also went to the scene, against the judge's orders, and proclaimed "it never could have happened that way." He was very large and agressive so no one squealed on him.
High profile cases like M's I'm sure attract even more highly motivated jurors. After all, our society no longer publicly values "going along with the group" but rather "standing up for what we believe in." I would wonder if this juror had an agenda going in, as the Michael Jackson jurors did. I'm sure we'll find out soon enough.
I'm with John. I think it's shameful the way the 11 people allowed themselves to be swayed by one person. What made these people decide to change their votes, and not just declare themselves deadlocked? I wonder if it was American Idol or maybe Stockholm Syndrome. Regardless, a terrible injustice has been done to the American people.
Is there any way we can get even for their perversion of the jury system?
After all, our society no longer publicly values "going along with the group" but rather "standing up for what we believe in."
No longer?
The juror is basically a coward, and probably ought to be charged with obstruction of justice. Not because of their vote, but because they refused to participate in the jury deliberation.
Bruce -
I have to admit I've never understood why it is automatically assumed by many people who are pro-choice that they must also be pro-Roe. However, I find it genuinely worrying that you were in a class at law school and not one student was willing to stand up and take the anti-Roe side. I knew the faculty was overwhelmingly liberal, but we are to believe the students are too? That's genuinely worrying.
What exactly was the prof supposed to be reprimanded for, in any case?
High profile cases like M's I'm sure attract even more highly motivated jurors.
I see no evidence for this statement.
I wonder why the jurors used a secret ballot for their polling. That allows someone to hide the reason for their beliefs. If you can't explain why you're voting some way -- even if it's a nebulous explanation -- then I don't think you can be very comfortable with your decision, can you?
So I've been on one jury, and we didn't secretly poll. This jury did secretly poll. Anyone know what the norm is?
The law granted to any juror voting power equal to that of the other eleven.
This grant of power was not an accident.
Number 6: "Instead of trying to pretend there is no bias out of fear of influencing students, admit to any bias upfront, and treat the students as adults. I myself think foo, you are free to think bar, please make up your own mind."
Ha ha. You completely changed your tune. You've adopted the typical lefty position of claiming to be doing a greater good and being more honest by politicizing the classroom. It's all politics, so let's put our cards on the table. I reject that.
I've also been on one jury and we did a mix of polling. Our first vote after being given the case was secret. Our rationale is that we wanted to see what the overall group felt, but didn't want people to go public with their feelings that early and so feel boxed in to defending their vote. But later polls were not secret. However, we went back to secret for the final poll (though we pretty much knew what the outcome would be). We ended up hanging 9-3 in favor of conviction (it was a he-said/she-said child sex abuse case with little evidence beyond the statements of the defendant and alleged victim).
The mistake here is the assumption that it would have been possible to 'find an argument' that would have convinced the holdout juror.
If you are faced with someone taking something on faith like, "I am against the death penalty and I don't want him to be killed," then there is no rational discussion to be had, no 'argument' to be found and addressed. Obviously, it was the prosecution's job to make sure that no one with such a belief got on the jury.
But given that, the hidden juror's strategy was perfectly smart. If they spoke up they'd just be subjected to a lot of peer pressure on a topic where their mind was already made up, and you'd get things like where someone says, "Yes, that's a perfectly good argument, but I'm still not changing my mind."
Ha ha. You completely changed your tune. You've adopted the typical lefty position of claiming to be doing a greater good and being more honest by politicizing the classroom. It's all politics, so let's put our cards on the table. I reject that.
Actually I was thinking more of college lecturers and their statements regarding strong vs. weak induction, automated theorem proving, the multiverse, and the actions of Joseph Rotblat.
But perhaps to you everything is politics and you worry about it showing up in your classroom.
I don't see how I have changed my tune, but perhaps you can enlighten me.
In getting my MBA, I did have one very creepy econ prof (tenured) that wore shorts to class, tried to pick up on the girls, explained that all of philosophy stopped after Hume, and would refuse to clarify his statements beyond his prepared lecture for fear of biasing the students.
Oh! How could I forget P vs. NP?
geoduck2 said.. "High school debate has students argue both sides of an issue."
Law school moot court competitions do this too.
So do many law school exams.
The fact is, you can't make a good argument for your own side if you don't see the full force of the arguments the other side has.
If you are faced with someone taking something on faith like, "I am against the death penalty and I don't want him to be killed," then there is no rational discussion to be had, no 'argument' to be found and addressed.
How would a juror who was stringently opposed to the death penalty have made it through voir dire for the sentencing phase of a capital crime? Wouldn't that be the FIRST question you asked a candidate?
-he'll get shanked on the yard or in a bathroom and we will forget all about Mousssaoui. I would imagine the boys in the big house have him pretty well marked for shanking, thanks to the hold-out juror.
Simon: It would seem so..
He'll never be around enough to get shanked, he not going to Folsom.
I disagree with Simon on this one. The law requires a unanimous verdict. Each juror is entitled to an opinion, whether it is reached on an emotional level or an intellectual level.
The "lone juror" was exercising the discretion the law gave him or her. How that discretion is exercised is left to the conscience of each juror. In my judgment, and in the eyes of the law, both the juror's vote and method of reaching that vote are unreviewable.
Not only do I have an MBA, but I am from Nantucket as well.
vnjagvet said...
"I disagree with Simon on this one. The law requires a unanimous verdict. Each juror is entitled to an opinion, whether it is reached on an emotional level or an intellectual level."
Well, if it helps reduce the disagreement (or at least clarify it), I would offer that I'm not suggesting that it's a problem that the juror kept voting no. That's entirely permissable, for the reason you give. Even if the juror is doing it because they have a Brennanite view of the death penalty, that's still okay, because as long as they didn't lie about it at voir dire - that is, they either weren't asked, or they were asked but not struck when they told the truth - then it isn't anything they've done wrong (although I question the competency of counsel in that case). What I'm saying is wrong is their refusal to identify themselves and their reasons for voting no to their fellow jurors. That's the problem I have with it, that's why I think it's a corruption of the process. By refusing to engage in the process, this one juror refused to permit the jury to consider all the apertinent information by putting forward and explaining their vote. If they had voted exactly the same way, and said from the outset that they were never going to vote for the death penalty because it offends their moral or religious sensibilities, I would have no problem with that, in this context.
So maybe you still disagree with me, but hopefully that clarifies what you're disagreeing with. ;)
Thank for the clarification, Simon. We are indeed more in agreement.
This juror's technique for expressing his/her vote does seem somewhat cowardly, antisocial and disrespectful of his/her fellow jurors.
But that seems to be the luck of the draw.
If I were giving a seminar to potential jurors on how to discharge their duties, this would not be one of the techniques I would recommend.
I like your proposed strategy of displacing your challenge onto the credible figure of the judge, Ann. My student audience is younger than yours, and almost completely inexperienced in thinking formally about argument (freshman composition students, from a mix of private and public schools), so they see me as their audience, and no matter how I keep my politics to myself, they want to read too much into my reaction to the efficacy of their argument, evidence and reasoning. When I challenge them to provide the counterargument, some take that as me stating my position on the topic; occasionally that will turn up in a course evaluation as "instructor is biased if you don't agree with her beliefs." The irony is that that happens with students who are arguing--poorly--the very position I hold. Using a foil might be a good way to create that elusive fiction of a public discourse that takes place outside of our classroom.
It takes either a truly gifted law professor to keep her political leanings a secret, or a law subject where politics are easily hidden. ConLaw is not such a subject, in fact it's so rife with politics it's downright disingenuous to pretend otherwise.
Seven Machos said: "That's kind of what Socrates did, actually, until they killed him."
That is hysterical!
It always seemed to me that the fable of Socrates was some sort of disclaimer. It's like the academy telling you to be like him, but if you're idealistic enough to take the advice, you're on your own.
Way to take one for the team!
"ConLaw is not such a subject, in fact it's so rife with politics it's downright disingenuous to pretend otherwise."
Indeed. The moment they say the words "right to privacy" you can take a fairly good guess where they stand and where they're hoping to lead you.
"I argued vehemently that that ridiculous case where the farmer couldn't grow his own stuff was way out of bounds on the Commerce Clause. He badgered me Socratically on the opposite side."
Wickard v. Filburn. Another example of a case where you're going to know pretty quickly what the prof thinks.
Ehud Blade said...
"I was just reading a University of Minnesota study (April, the American Sociological Review) finding that atheists are America's most unaccepted minority, lacking positive correspondence with any core 'vision' on electability scales. No doh."
I entirely agree; I'm not religious, but I wouldn't vote for an atheist for refuse collector, let alone a job of any real import.
The secret ballot will be the death of America yet!
Marghlar said...
"Simon, I find that a tad whack. Why on earth not? What relevance do one's religious beliefs have for holding political office? Would you vote for an open agnostic?"
Well, the easier question first: I'm an open agnostic myself, so yes, I'd vote for one. ;)
I think it's axiomatic that politics rests in the main on morality, and morality is greatly impacted by religious beliefs, whatever those beliefs are. To say you are an atheist is to say that your moral system is unconstrained by anything greater than yourself and your own perception; the argument's similar to the comments I made here about textualists - who are sometimes imperfectly constrained - vs. living documentarians, who are not constrained at all. I'm trying to compress a fairly large and abstract notion into a small space here, and may not be doing well.
I nominate this thread for most baked.
"We hold these truths to be self-evident, that all men are created equal, they are endowed by their Creator with certain unalienable Rights,..."
The atheist, by definition, would have to agree that this is a false proposition. If he holds this statement to be false and yet still claims to believe in the equality of human beings and in unalienable human rights (and he wants people to believe that he still believes in these things), then he has the burden of providing a coherent explanation as to why he thinks such things really exist. If he cannot do so, he cannot be trusted with political power.
You "moderates" are for corporal punishment and torture in prison and are for getting rid of the atheists in American Society.
He gazed up at the enormous face. Forty years it had taken him to learn what kind of smile was hidden beneath the blonde tresses. O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Ann Althouse.
Uh, uh, Slippery, all of that came out in the Zacharias Moussaoui threads. As I recall, the self-identified liberal Marburg was very much for corporal punishment and torture of prisoners. It got so icky that the Divine Ms. A had to step in and tell them all how shameful they were.
Moneyed Brains!
Quxxo said...
You "moderates" are for corporal punishment and torture in prison and are for getting rid of the atheists in American Society.
How on Earth do you get from the statement the I would personally not vote for an atheist to an imagined desire to banish them from society? There is a state of being somewhere between public office, on the one hand, and the phantom zone on the other, you know.
Marghlar said...
"The Constitution nowhere mentions a creator. It is easy to believe that the Constitution is a supreme law of the US that trumps statutes, without believing in a deity. Indeed, belief in a deity seems irrelevant to the authority of the Constitution. Shouldn't [one] be more worried that those with strong religious beliefs will follow them to the exclusion of the civil law?"
Much of this, I agree with. Positive law is the only kind of law enforcable by the government of the United States, and the operation at an abstract level of the branches of the government do not require religion. However, the Constitution leaves to the discretion of legislators virtually every question of public policy, and that inevitably implicates people's moral beliefs. I realize that not every atheist is Stalin, and I do not suggest for a moment that every Christian is virtuous, but I feel much more comfortable voting for someone who is at least on paper constrained in their discretion by a system of morality that exists beyond their own control.
AlaskaJack's comment is interesting, because I've sometimes wondered why it is that those who advocate judicial transnationalism - or more accurately, instrumentalism in search of a rationale for courts imposing the morally correct answer - are also those most likely to not be tethered to an external belief system to guide their idea of what should and shouldn't be imposed. If there's anything more terrifying than judicial paternalism, it's judicial paternalism in the service of unfocussed nihilism.
This is ridiculous - they didn't give Moussaoui death because of an anomymous juror? (Certainly, there is some irony in condemning a juror for keeping his/her identity hidden, when I myself am anomymous - although the situations are hardly comparable.)
If this is a strategy, then the game needs to change. Have open voting, or at least have the foreman look everyone in the eye and ask them how they voted. It's completely unfair that the silent juror refused to make his/her beliefs open for challenge.
On the other hand, it's just what I would expect from someone who would grant leniency to a terrorist.
Though we have wandered far afield from the topic at hand, Ann hasn't kicked us off the air yet.
My point about the nature of unalienable rights as expressed in my quotation from the Declaration of Independence is straightforward: the fact that an atheist must hold that the propositions expressed in that quotation are false raises serious questions about what he really believes about the nature of equality and human rights.
Marghlar, in a text book demonstration of the logical fallacy of diversion, does not address this point but rather exclaims that the Declaration of Independence is not part of the constitution as if this were the issue under discussion. He has apparently satisfied himself that this puts the matter to rest. Of course, it does not.
My question remains: if our atheist politician denies the truth of the "self evident" assertions expressed in the quotation, why, in the absence of a coherent explanation, should we take him seriously when he says he believes in equality and unalienable human rights? And this raises a second question: if he cannot provide such a coherent explanation, why should we entrust him with political power?
Alaska -- it's very easy to agree that the writers of the DofI believed in a Creator, and that is to whom the We in "We hold..." refers. I should think an atheist could agree with that sentiment very neatly -- and hold the meaning of the words close to their hearts without any internal contradiction whatsoever.
When I converted to my present religion, one of the sponsors said something very silly or very profound, take your pick: "I don't know if I believe in God...but I think that's what he wants and that's okay."
So I'm not an atheist, just a doubter, but I'd vote for an atheist in a heartbeat if they gave me clean government at a modest scale that paid for itself without borrowing.
I really like the idea of this as a parental or interpersonal strategy. It's a Golden Rule exercise: it's not so simple to "do unto others as you would have them do unto you," because they might not want to be treated the same way you do. What they want (and it's what "you" want, too) is to be seen as they are, which can only be done by an exercise of imagination. That's what this would require. Try to put yourself in my shoes. It reminds me of a great acting teacher friend of my husband's who said we have every possible human emotion and situation potential within us. You don't have to have lived something to act it (he was anti-Method, pro-imagination). Or to imagine it and empathize with it. Very cool. I might try it sometime "in the field."
The silent strategy may, as several posters seem to have pointed out, not been so silent. Perhaps we have a person who is not very good at standing up for what they believe in arguments, and ends up regretting giving in on principled issues later. How could such a person live with 'blood on their hands' if they did not believe that in this case the death penalty was called for. So they take the out of suggesting or even arguing for the hypothetical opposite view. Thus avoiding the possible pressure from their fellow jurors. As one poster noted it may very well have been the foreman. In such a high profile case you would likely be found out and attached in the press. Who needs that for reluctantly doing a civic duty? On the other hand an extroverted ass like me would wallow in it.
Margular may know about a great many things (or at least he thinks he does). But one thing he does not know about is moral philosophy.
No Margular, Jefferson did not get the ideas he expressed in my quotation from the Declaration of Independence from the Old Testament, the New Testament, the Koran or from the writings of any eastern religion. He got them from Sidney's Discourses Concerning Government. Sidney stands in a long line of natural law philosophers going back as far as Cicero and Epictetus.
As for an ethical system developed by a "God is Dead" philosopher, study Nietzsche. I don't think you'll like what you'll find.
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