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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