Making Fudge (Gamso Update)

In the  New York Times Magazine’s Ethicist column, Chuck Klosterman published a letter from a juror.  Well, at least a person [name withheld] who was once a juror, 15 years ago, in St. Louis, and apparently hasn’t been able to sleep well since. St. Louis can do that to you.


During jury selection, I was asked if I supported the death penalty. I don’t. I’m unalterably opposed to capital punishment. But I feared that potential jurors who did not support the death penalty could be automatically disqualified by the prosecution. So I said I agreed with capital punishment. That way, if it came down to it, I might help spare the defendant from execution. But this violated the oath I had taken to tell the truth. Was it ethical for me to lie in order to possibly spare the life of this defendant?
There is, of course, a gap here, given that the writer says he lied, but doesn’t say whether he was left on the jury or deliberated to a verdict, but since this is for the Ethicist column, the question isn’t what happened but whether the road there was ethical.

Klosterman’s response was troubling.


Generally, lying is wrong. But lying is obviously justifiable if telling the truth will get someone unjustifiably killed. You, however, were dealing with a problem with less clarity. The person you were lying for was not necessarily innocent, so your lie was not for his short-term protection; your issue was with the magnitude of the state penalty for those who are authentically guilty.
The key words in this paragraph are “unjustifiably killed,” which is a loaded phrase. The question was asked by a person who was “unalterably opposed” to the death penalty, not opposed to the execution of innocents. One might suspect that every person, whether they favor the death penalty of not, is opposed to the execution of innocent people, Nino excepted.

Thus, Klosterman, pundit of ethics, has tacitly snuck his own moral imperative into the question: that the death penalty isn’t quite as wrong when the defendant deserves it. From this launching pad, he adds:


And while your overall motives were good, you should not have lied in this circumstance. You are negatively complicating a procedure that is already flawed.
This is where his analysis takes a quick nose dive, into the idea that adhering to a belief that no person should be put to death “complicates” a flawed procedure.


Our judicial system is imperfect and married to inflexible rules that occasionally contradict ethical living — but there is no better alternative for the enforcement of collective social laws. Granted, some of those collective laws are bad. But you were not in a position to change legislation; you were in a position to operate within the existing system of community enforcement, which tries to equalize the process by giving lawyers on both sides the ability to eliminate jurors whose views exist on the intractable poles of applied philosophy (which, in this instance, appears to include yourself). The process does not always work, but it has no chance of even coming close if potential jurors don’t tell the truth about what biases they bring to the table.
One of the problems faced by otherwise thoughtful people is that they are given heartfelt advice by well-intended but clueless people. As is apparently, Klosterman doesn’t understand the concept of a death-qualified jury.  Klosterman doesn’t understand that lawyers get peremptory challenges, which eventually run dry and leave the defendant’s fate to the wind.

But most importantly, Klosterman does not appreciate why we have a jury in the first place. When he writes, “you were not in a position to change legislation,” he is technically correct, though he is utterly wrong in the context of a particular case. That’s exactly what a jury is there to do, to change legislation, as it applied to a defendant in a specific prosecution. The jury is the conscience of the community, not a robot dutifully following directions to achieve a governmentally desired goal.

How many Times readers, sufficiently interested in ethics, read this column and walked away with the misguided belief that the lawyers, have “the ability to eliminate jurors whose views exist on the intractable poles of applied philosophy”?  We don’t. We don’t in any case, but we don’t for a separate reason in cases involving capital punishment.  Did it occur to Klosterman to find out how the procedure, flawed but “without better alternatives,” works?

The death qualified panel goes through a vetting process by the court to ascertain whether anyone is, as the questioner puts it, ”unalterably opposed” to the death penalty. Even a jury who is reluctant to impose death is noted. And they are removed for cause. Didn’t any explain “cause” to Klosterman? Did he ask? Did he seek the advice of someone knowledgeable about the system before pontificating, or did he just decide to assume he had a clue?

What is omitted from Klosterman’s response is that a jury deciding a death case will be comprised of a group of people for whom the death penalty is fine. Not that they necessarily are chomping at the bit to put jaywalkers on the gurney, but they wouldn’t hesitate, if all goes as the government wants it to go, to flip the switch. Or at least approve someone else flipping the switch, though some might be happy to do it themselves.

What you won’t find on a death-qualified jury is anyone who isn’t inclined to say “fry ‘em” if guilt is proven. And there is nothing, absolutely nothing, the defense lawyers can do about it.

Truth is good, as a general proposition. But there are higher order morals at stake when it comes to the killing of a human being.  Blind reliance on a “flawed system” is no way for life and death to be decided.  Knee-resort to truisms like “tell the truth” aren’t good enough to answer complex questions.

But most of all, Klosterman, before you opine on a soap box as big and loud as the New York Times, learn what you’re talking about.  Whether or not it was acceptable for the juror to fudge the truth is one question, a difficult one that will cause many to disagree. For you to fudge your response because you are so taken by your own brilliance or too lazy to find out the correct information, however, is a no-brainer.

And as for the flawed but best system ever, reading the platitudes carved over the lintels of the courthouse is no way to judge a legal system.  The ethical response would have been to admit this was far beyond your scope of knowledge if you were constrained to rely on facile slogans to answer an important question. Not even the Ethicist has the right to make people stupider.

Update: And this just in from Jeff Gamso, who isn’t nearly as kind to Klosterman as I am.

7 comments on “Making Fudge (Gamso Update)

  1. Jeff Gamso

    I just slogged through all 53 comments to that Ethicist. Not one addressed Klosterman’s ignorance of cause challenges and death qualification and the realities of the jury system. Many added their own misinformation to Klosterman’s, essentially doubling down on the fostered stupidity. Sigh.

    One did say he should have done some reading or spoken with a lawyer to learn about jury nullification, and another mentioned that death supporting jurors are more likely to convict. But those dips into factland don’t begin to make up for the spouted ignorance.

  2. SHG

    I read through the first dozen and gave up. And this is the New York Times, bastion of intellectual liberalism. We’re doomed.

  3. Gloria Wolk

    I hope you will consider posting this at The Times.

    I looked up Klosterman. His writing history is mainly about sports and crazy things. Nothing commendable. Wonder why The Times pays him for such crap?

    And The Times rarely lives up to its motto. For a number of years it has been just another of the major media that kow-tows to the power elite, which includes distorting information and providing misinformation.

  4. SHG

    I don’t post at the Times, whatever that means. But Klosterman is always welcome to read here.

  5. nidefatt

    He sounds like the prosecutor in this episode of Boston Legal: If you’re against the death penalty, you can call your congressman, protest in the street, start a blog, publish a book, there are countless ways to get your point across. Committing perjury isn’t one of them. Obstructing justice isn’t one of them. Mr Espenson lied. He defrauded the court; his actions were an insult to that court as well as everyone who believes in our system of justice. You! Are now part of that system. Do your duty. Send Mr Espenson to jail.
    [Ed. Note: Link deleted per rules.]

  6. Pingback: Klosterman Chucks The Right To Remain Silent | Simple Justice

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