There was an intriguing little article in the June 11 issue of People magazine, titled “Dog Discrimination?” Apparently, your average big black dog (“known in the rescue world as a BBD”) is much less adoptable than other dogs and “definitely more at risk of going to death row than a yellow or tan dog.” According to Jacque Lynn Schultz, of the ASPCA, this is in part because of their dark fur: “They look menacing–people can’t read their facial expressions as easily.”
The superficialities of appearance count for a lot in our society. We seem to attach more meaning to the aesthetic norms of exterior looks than to substantive evaluations such as beneficence of disposition, rationality of thought or generosity of action. While first impressions may count for something in some circumstances, the haruspication of character from looks alone is vastly overrated and generally misleading. Study after study has documented the unreliability of witness identification. Study after study has shown the degree to which race, class, suggestion, personal bias, fatigue, whimsy and stress can skew results. The work of the Innocence Project, whose use of DNA tests has exonerated so many of the mostly dark faces on death row, is only the most recent documentation of the frequency with which catastrophic mistakes about stereotyped demeanor do happen.
Indeed, the responsible use of forensics (whose fallibility is another story) has highlighted the contrast among differing methodologies of fact-finding on display in modern courtrooms. Scientific truth-seeking is a process, an inquiry, a series of tests that are reproducible. Scientists hold themselves open to a wide, sometimes endless range of variables that might contribute to cause and effect, right down to the clichéd flapping of butterfly wings in the Amazon causing storms in British Columbia. Truth to lawyers, on the other hand, is a “due” process, an obligatory series of steps that re-enact or recapture an event that occurred in another time and place. Its goal is closure rather than eternal exploration.
Both science and law have their meta-worlds–the lab, the courtroom–and each sets up controls against the influence of extraneous matter, as in the sterilization of equipment or rules that exclude hearsay. If science is rooted in empiricism, the trial is to some extent a theatrical enterprise. Philosopher Susan Haack has likened proof in the courtroom to a quasi-religious proceeding, historically traceable to the dunking of suspected witches to see if God would save them before they drowned; law professor Jessie Allen has analogized it to the kind of sequential rituals of mask and incantation that give certain traditions of magic their social power. We dress judges in robes, we raise our hands, we swear on a Bible. Then comes the peculiar process of evaluating “demeanor”: studying the bodies of parties and participants–their faces, their fidgety fingers–for outward signs of lying, for any shiftiness that will reveal the certain discomfort God and conscience will manifest in them if they are knowingly breaking an oath taken in the name of the divinity.
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In a case just handed down from the Supreme Court, Uttecht v. Brown, the divination of demeanor has been elevated to new heights. The case challenged the dismissal of a juror “for cause” after he had expressed some ambivalence about the general application of the death penalty. The issue in the case is the undisputed right of a defendant to a trial before jurors who are willing to follow the law of capital punishment regardless of any personal qualms they may have about the death penalty. The juror was questioned extensively and asserted at least six times that he believed in the death penalty and would apply it faithfully as instructed by the court. Nevertheless, because the juror expressed a belief that the death penalty shouldn’t be used “ten times a week” as well as some initial confusion about whether the defendant was eligible for parole, the trial court found him “substantially impaired” and ineligible to serve. Ninth Circuit judge Alex Kozinski, a staunchly conservative defender of the death penalty, struck down the trial court’s ruling, based on the clear assertions of the juror in question. Nevertheless, the Supreme Court, in a 5-to-4 decision, overruled Kozinski, opining that “the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts. Deference to the trial court is appropriate because it is in a position to assess…demeanor…a factor of critical importance in assessing the attitude and qualifications of potential jurors. Leading treatises in the area make much of nonverbal communication.”
The decision is disturbing, not least because the trial court never made any mention of demeanor. In his dissent, Justice Stevens wrote, “There is absolutely nothing in the record to suggest…that anything about Juror Z’s demeanor would dull the impact of his numerous affirmative statements about his ability to impose the death penalty in any situation. In effect, the Court reads something into nothing and defers to a finding that the trial court never made.” Justice Breyer reiterated distrust of the majority’s reliance upon “courtroom ‘atmospherics,’ such as facial expressions or vocal hesitations or tones of voice [as] sufficient to warrant excusing Juror Z for cause.”
The impact of the Uttecht decision is broader than it might appear. Most obvious, it gives huge latitude to prosecutors to pick jurors who express only an unqualified and enthusiastic embrace of capital punishment, a result clearly at odds with the legal principle–endorsed even by the majority–that “a criminal defendant has the right to an impartial jury…that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause.” Another consequence of this decision is that it makes any appellate review of trial court decisions extremely difficult. If superior courts can’t evaluate a trial proceeding based on what is clearly spoken into the record, if the plain meaning of official transcripts is now to be trumped by deference to imagined sweaty palms and invisible furrowed brows, then one does not have to look at death row for dogs to know where this will lead us.
