The Fallacy of Accountability

Now that we've abolished the death penalty in Connecticut, at least insofar as future cases are concerned, the fate of those currently on death row being much at issue, there is really no cause for jurors ever lawfully to consider the consequences of a guilty verdict. Why, then, are prosecutors permitted during jury selection to inquire whether potential jurors believe people should be held accountable for their actions?

The rigid division of labor in a criminal trial gives to the jury the finding of facts. The jury's role is simple, in theory: Has the state met its burden of proof? It is a simply matter of yes or no. There is no moral dimension to the enterprise.

In the event of a conviction, it is the judge's job to impose sentence, or, to put it another way, to assess consequences. Jurors are told that they are not to worry about, or to consider, any potential sentence.

It's a weird way of proceeding, shielding any party from any sense of responsibility for what they do. Jurors merely find facts; judges do what they must once the jury decides. This assembly line style of justice in no way resembles the conscience of the community speaking; it is a style of cognitive schizophrenia, the fact-finder unaware of what the sentencer will do.

But it is the law.

Prosecutors are no doubt as frustrated by this bifurcated fantasyland as are defense lawyers. Both sides tiptoe to the line of propriety during jury selection, crossing whensoever the judge permits, either by inattentiveness or abuse of discretion.

I objected the other day to a prosecutor's asking the following questions: "Do you believe that people should be held accountable for their actions?"

(I've yet to see anyone deny belief in this facile truism.)

"Where does this belief come from?" (Most jurors claim to have imbibed it with their mother's milk.)

My objection was simple: What has accountability to do with a jury's work? The jury is simply to decide whether the state proved the accusations it raised —no more, no less. Smuggling accountability into the mix appeals to a moral dimension unrelated to the proof of facts. It is an appeal to passion and prejudice, plain and simple.

The trial judge, a decent soul, overruled my objection without elaboration.

Accountability is an odd concept for prosecutors to raise at trial. No prosecutor is ever held accountable for the consequences of what they do. A defendant acquitted cannot turn to his accuser and ask for compensation for the expense and emotional trauma of trial. Prosecutors live in a world shorn of accountability—they are immune for their acts and omissions at trial.

In a better world, jurors would be told what sentences could be imposed if they find a defendant guilty. Depriving jurors of the truth about the consequences of their actions makes it impossible for them to truly hold defendants accountable. I suspect many jurors would recoil in horror if they knew that a guilty verdict exposed a defendant to decades of imprisonment.

Years ago, a juror in a murder case called me after learning that man-child she had helped convict was sentenced to 45 years for murder, a light sentence as murder convictions after trial go. "Why didn't you tell us what could happen?" she asked.

I told her the law forbade it. I then asked whether knowing the potential result would have changed her verdict. There was a long pause. "No, not in good conscience," she replied.

But her pause spoke volumes. She felt used by a system that asked for her to do only part of the work of what we call justice. We're still using jurors as existential pawns at trial. Asking them to hold people accountable without telling them what that means, what it could entail, transforms trial into a farce.

Prosecutors have no business asking jurors whether they believe people should be held accountable for their actions. It is a blatant appeal to passion and prejudice, no more.

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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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