What is more important, the laws of the gods or the laws of man? Or, as we might express it today, individual morality or the demands of the state? Or, once more, doing what is morally right or what is legally required? Antigone, in her eponymous play by Sophocles, chooses the former. Though forbidden to do so by Creon, the ruler of Thebes, she buries her brother, Polynices, lest his soul be condemned to perpetual torment.
Juror B29 on the George Zimmerman trial apparently struggled with this dilemma, though she chose differently from that of Antigone: she thought Zimmerman guilty of murder and deserving of punishment, but in the end voted for acquittal, in accordance with her understanding of what was required by the law. Reactions, needless to say, are mixed: Barbara Morrill is completely contemptuous of this juror, telling her to just “shut up”; on the other hand, Joe Scarborough argues that the juror followed the law, as she understood it, and that is exactly what she should have done.
Our sense of duty to the state depends in large part on the degree to which we accept the social contract theory, which has its origin in Plato’s Crito, and its most stark expression in Hobbes’s Leviathan: we benefit immensely from the state, and thus we are obligated to obey its laws. To the extent that we accept this theory, the laws of the state take precedence over the promptings of our conscience.
From the beginning, I was uncertain as to the guilt or innocence of George Zimmerman, and I remain so to this day. So, I do not know whether juror B29 did the right thing or not. But unlike Barbara Morrill, I sympathize with juror B29’s feeling of guilt over having sacrificed her conscience to the requirements of Florida law. And unlike Joe Scarborough, I reject the facile assertion that rigidly following the letter of the law is exactly what is required, and that one’s moral sense need not be consulted. When our sense of right and wrong comes into conflict with our duty to the state, the decision is never an easy one. Paradoxically, it is possible to feel guilty for doing what is right, and to sleep easier by doing what we know to be wrong.
Having sat through the voir dire proceeding for criminal trials a couple of times, and having felt my normally low blood pressure shoot up, while listening to my pounding heart, I concluded that there was only one way to deal with the stress. “They have not called me down here to evaluate the criminal justice system,” I told myself, “nor to question the legitimacy of the laws or their associated punishments. They have a much simpler task for me: determine the facts, and apply the law.” I felt a whole lot better having come to that decision. I was prepared.
Then I got selected to be on the jury. Ten minutes after we started deliberating, all those preliminary reflections went out the window. Given the facts and the law, the defendant was guilty. But when I set aside the law and consulted my conscience, I believed him to be justified in what he did, and I knew I could not convict an innocent man on a technicality. I had heard of jury nullification, and in the abstract I had always regarded it as something despicable. But here I was embodying it. Not that I let on, of course. I argued the facts and I argued the law, but all along it was my conscience that set the agenda.
Of course, when Antigone did what she thought was right in defiance of the state, she paid for that choice with her life. Fortunately for me, jurors have immunity.