What is it about the Craig trial?

Of all the widely reported trials in recent history, it seems as if the trial of Brandon Craig elicits outrage against everyone except the defendant.

Why? Why was Scott Peterson vilified before, during, and after his trial by everyone in the press and public? Isn’t an alleged murderous drug dealer more hideous even than Peterson, who had no prior arrest record? Why was Raynella Dossett-Leath labeled a “Black Widow” when the deaths of her two husbands could very well be accident and suicide and when an episode of gun threats could easily be explained as a sort of temporary insanity following the death of her son? (I believe I heard that she wanted custody of a son supposedly fathered by her deceased husband.)

My biggest question is why the Craig-trial eye-witnesses and their families seem to be the subject of far more outrage than the defendant and his family.

I can’t help but wonder if CNN’s favorable coverage of the defense isn’t partly to blame. Most of us who are following the trial know nothing about it except what we learn from CNN. I wonder if the local media is covering this case in quite the same way as CNN is, though. I wonder if local anger is being directed at the same groups of people as national anger is.

Over and over again I hear legal commentators claim that this is clearly an instance when a defendant should be found not guilty because of reasonable doubt. I’ve written about this phrase and researched it. In my opinion, this is not a case of reasonable doubt.

The “doubt” in reasonable doubt refers to doubt of guilt, not doubt of innocence. In this case, there may be doubt of guilt if you completely dismiss all the eye-witness and corroborating evidence. In other words, you have to fall for the specious argument that a witness “who is false in one, is false in all.”

The “reasonable” in reasonable doubt demands that jurors sort through all the evidence and decide whether there is substantial evidence of guilt. It is not reasonable to insist that every statement of every witness be accurate (whether accurately remembered or truthfully stated).

The only way in which I would vote “not guilty” in this case would be if I could be shown that the eye-witnesses could have colluded to concoct the story. As I understand the prosecution’s closing argument, evidence was admitted to show that the witnesses could not have colluded, and, furthermore, that a sister of one of the witnesses knew for a very long time that her brother was involved in the crime in some way.

Aha! The first jury question for the judge relates to the issue of collusion.

NOTE: On April 1, the jury found the defendant NOT GUILTY.

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Another Jury Hung Out to Dry? Brandon Craig Jury

I pity the Craig jury. They’re damned if they do, and damned if they don’t—just like the witnesses in this case. Regardless of the outcome of deliberations, it looks to me as if masses of people will be angry. It’s cases like this one (broadcast nationwide) that have convinced me we need some serious jury rights.

Jurors should have the right 1) to remain anonymous; 2) to be sequestered; and 3) to receive practical instructions (not legal jury instructions) on how to select a foreperson, how to deliberate, and how to reach consensus when one is appropriate or to hold out against the majority when logic demands it.

I watched the closing arguments yesterday via CNN’s streaming video (using Adobe Flash—it’s amazingly good quality video). Defense attorney Kaplan’s closing argument initially struck me as quite effective. He pointed out all the discrepancies in the eye-witness accounts. He appealed to my strong belief that that the State has the “burden of proof.” I suspect some jurors must feel that there is in fact “reasonable doubt.” The prosecutor’s closing argument was unimpassioned, but equally effective in my opinion. He clarified the charges in his first address to the jury; then in rebuttal he walked through the prosecution’s case, pointing out reasons the witnesses’ testimony was credible and reasons why they may have misremembered some facts.

As always while watching I was analyzing the rhetoric: how did each side attempt to persuade the jury?

It seemed to me that the prosecution appealed to the jury’s reason and common sense. The prosecutor studiously avoided inciting passions—and wisely so, because the nature of this case is inherently inflammatory. He gave the jury the respect they deserve: he clearly conveyed to them that he trusts them to uphold the oaths they swore to reach a verdict based on the evidence and nothing else.

The defense attorney, on the other hand, was passionate, and while he pointed out numerous flaws in the prosecution’s evidence, he seemed to do so from moral outrage against the authorities for pressuring the eye-witnesses to testify. This, in my opinion, was not rhetorically effective. Think about it: as a citizen of New Mexico, isn’t that what you expect the authorities to do?

Another element of Mr. Kaplan’s rhetoric was the frequent use of rhetorical questions. I would never recommend that anyone use rhetorical questions in an argument where your audience is likely to side with your opponent. In this situation, he asked several questions that I mentally answered with the opposite response to the one he hoped to elicit.

At one point, Mr. Kaplan asked something to the effect of, “Where is Aunt Leona?” referring to someone mentioned by the witnesses as having some knowledge of the case. I’m not sure, but he may also have asked, “Where is Rick?” whom the eye-witnesses claimed helped to dispose of the gun. I didn’t find this question compelling (although not rhetorical per se, it was used for rhetorical effect), because I know the defense could have subpoenaed anyone they wanted to. I couldn’t help but ask myself why they didn’t, and my conclusion was that they were afraid of what these witnesses might say. Until Mr. Kaplan asked about missing witnesses, the jury would have had no right to ask that question during deliberations, but now they are entitled to raise the question.

The defense conclusion was also ineffective with this former juror. Mr. Kaplan concluded by pointing out that the eye-witnesses did not appear to feel any remorse for participating in the murders. “Why?” he asked. “Because they weren’t there.”

This argument is a non sequitur. That’s a conclusion that does not follow from the premise. I believed throughout the trial that the defense would argue that the reason the eye-witnesses didn’t come forward until years later was quite the opposite. In fact, I was wondering which of the male witnesses the defense would try to claim was the actual shooter. They had nothing to lose by suggesting Craig might have been sitting in the back seat that night, not one of the others.

Do I really expect the Craig jury to analyze the closing arguments as I did? Of course not. I’m interested in courtroom rhetoric—not many people other than attorneys are. But that’s the thing about rhetoric: it acts upon an audience’s thought processes whether they realize it or not.

Maybe it is double jeopardy after all in the Craig trial?

To my surprise, today the attorneys for both sides in the Brandon Craig trial discussed whether the jury instructions should include multiple charges, and one of the issues was whether or not “double jeopardy” might be involved—just as I wondered last week. I honestly assumed my interpretation of “double jeopardy” had no basis in the law. I thought it was simply my plain-English understanding of the Constitution versus case-law legalese.

Even defense attorney Pamela Mackey said this morning that what the prosecution was attempting was “double jeopardy,” because “you can’t convict someone four times for one homicide.” As I also complained last week, she called it “over-charging.” Maybe I should have gone to law school, after all.

In the matter of the child abuse charges, the prosecution dropped a charge of “negligent homicide.” Then the prosecutor also said the judge could be the one to decide whether it was “double jeopardy” if the jury convicted the defendant on all the counts.

Ms. Mackey’s complaint about the multiple homicide charges, it appears to me, is that the jury instructions will list three optional types of homicide. The verdict form will likely list them as 1 OR 2 OR 3, not 1 AND 2 AND 3, but (I think) the form will then list child abuse charges as AND. I mean to say, the defendant will be charged with homicide AND child abuse.

The issue of AND or OR arose in the trial in which I served as a juror, too. I assume this is common or even standard in jury instructions and verdict forms. However, as jurors we spent a fair amount of time discussing the ANDs and ORs. It isn’t a quibble. The Brandon Craig jury will surely recognize this.

Do not misunderstand me: I am not among the Court TV watchers who think the prosecution’s case is weak. I think it’s very strong. By dropping one child-abuse charge and admitting that the judge can void or overturn a conviction on the remaining charges, if he wishes, based on double jeopardy, I think the prosecution strengthened its case by clarifying and simplifying the jury instructions.

The prosecution has an extremely strong case, I believe. I think those people who have emailed CNN about flaws in the case haven’t really listened to the testimony. They’ve been listening to the TV commentators. For instance, I heard Lisa Bloom say that a certain trailer park in 1999 had no trailer homes in it—thus undercutting what one of the prosecution witnesses testified. But, if you listen to the evidence, the trailer park actually had a few trailer homes in 1999 and there are several other, similar trailer parks within the vicinity.

Let me say it again: Jurors can sift through testimony for the key truths and lies. In 10 years, any witness could be mistaken about which trailer home in a now-populous trailer park is the one where she obtained the truck used in the crime.

BBC’s “The Jury” (2002): What do jury consultants think of fictional juries?

This weekend I rented and watched a Netflix DVD, The Jury” (2002). To my astonishment, I found the depiction of the jury experience in this series to be right on target.

Although the series depicts a British jury (filmed in the Old Bailey), American lawyers, judges, jury consultants, and prospective jurors could learn a lot by watching this series.

I can’t say enough in praise of this series. It’s the most-realistic depiction of the jury experience I’ve found in three years of searching (since my own jury duty).  Screenplay writer Peter Morgan must either have been a juror himself or have interviewed many people who were.

Where to begin . . . .

Why would anyone want to serve on a jury? “The Jury” suggests a wide range of reasons a citizen would actually be willing to perform this utterly thankless job. For some, it’s a rare opportunity to make a contribution. For some, it’s a way to kill time. For some, it’s because they believe in freedom, justice, and the jury system.

Do jurors honor the judge’s instructions not to discuss the case with anyone until deliberations begin? Yes, most do, even when subjected to great pressure from people outside the courthouse.

Do outsiders try to interfere with the jurors? Yes. Do jurors always report what’s said or done to them outside the courthouse? Probably not. Why? Because they don’t want to be kicked off a jury. Most people who raise their right hands and swear to do their duty feel confident they can be objective in their assessment of the facts and can bring common sense and compassion to the situation. In other words, jurors take their responsibility very seriously. They trust themselves to do the right thing. They are willing to “take their hits” and persevere to the end.

How do jurors choose a foreperson? Someone usually volunteers, and that someone is often the least appropriate person to serve in that function.

Do jurors understand what it means that the prosecution has the “burden of proof”? Yes.

Do jurors believe everything they hear from witnesses on the stand? No.

Can jurors understand and evaluate complex, technical, or scientific evidence? Yes. Do they believe everything the forensic experts tell them? No. Does the much-discussed-in-the-media “CSI effect” really exist? Do jurors expect “CSI” proof of guilt? Probably not: jurors rely on their common sense, first and foremost.

Do jurors sometimes cave in to peer pressure? Yes. Always? No.

My verdict concerning “The Jury” is that the series depicts the stresses of jury duty better than any fictional depiction I’ve found. The classic “Twelve Angry Men” is a rather intellectual analysis of the concept of “reasonable doubt,” made interesting primarily by Henry Fonda’s performance. None of the few novels I’ve come across in which jurors are central characters seem at all realistic to me. “The Jury” shows what a gut-wrenching, life-changing experience jury duty can be.

For those of you who have served on a jury and know what I’m talking about, I suggest you watch BBC’s “The Jury.” It’s always reassuring to know, “you are not alone.”

Should a spouse always be the first “prime suspect”?

Raynella Dossett-Leath’s recent trial for murder of her second husband (which ended in a mistrial) prompted numerous comments on the frequency of spouse-murderers. TV commentators, in particular, like to point out how often husbands kill wives and wives kill husbands. But is it true that most murders are committed by spouses and significant others?

Well, not according to the Bureau of Justice Statistics, as of July 11, 2007. From 1976 to 2005, only 7% of murders were committed by the victim’s spouse. Only 3.8% were committed by “significant others.” I’m sure you can do the math: that’s slightly less than 11% of all murders. Let’s put this another way: almost 90% of all murders are NOT committed by the spouse. Clearly, if police studied statistics they would NOT suspect the spouse or significant other first.

As an example, take a look at this story from Beaver Dam, WI: a husband who has been under suspicion of murdering his wife since 1980 was just exonerated. His story is pathetic.

Eight percent of all murders are committed by other family members (other than spouses). That means that parents, siblings, cousins, and in-laws are slightly more likely than spouses to kill a family member, and more than twice as likely as significant others to kill a family member. In the Dossett-Leath trial, if police had used statistics to identify a near relative other than the spouse who might have killed Mr. Leath, they would have looked first at family members who had a motive to kill for the inheritance, for example.

Unfortunately for the pundits who point the finger first at intimate partners, 32.1% (almost a full third) of murders are committed by mere acquaintances. I suppose acquaintances might include friends of a murder victim’s spouse, such as jealous girlfriends. That would mean that statistically Amber Frey would have been a far more likely prime suspect in the murder of Laci Peterson than her husband Scott. Statistically, Ms. Frey is four to five times as likely to have been the murderer as the spouse.

Strangers commit 13.9% of all murders. That’s twice as many stranger murders as spouse murders.

And 35.2% of murders are committed by unknown persons. In other words, over a third of all murders go unsolved.

Dare I suggest that these unsolved murders are more likely to be stranger murders or mere acquaintance murders (including one-night stands) than anything else? Since the cops seem to look first to spouses and family members, it seems to me that such guilty family members would be easy to catch. The more distant the relationship, the more difficult it is to find a motive or connection between a victim and a murderer. In addition, I suspect that drugs and prostitution are implicated in many unsolved murders. And, I’m convinced that psychologists grossly underestimate the number of psychopathic serial killers out there. (I have some research data on this topic which I’ll use for a post soon.)

But remember, statistics like these cannot be used in court as evidence. Statistics aren’t evidence that any given person committed murder. Statistics are collected for other purposes. It might help, though, if investigators would study statistics when they’re trying to solve murders. If they didn’t always erroneously jump to the conclusion that the spouse did “it,” maybe they would explore other possibilities more aggressively in the early phases of an investigation when the “trail” is still “hot.”

I can think of one especially tragic case in which the cops might have saved a kidnapped child’s life if they had not assumed the child’s father was whodunit: the pathetic case of Jessica Lundsford.

My point: statistics are misunderstood by most lawyers and law enforcement officials. And I can’t figure out why. The Bureau of Justice Statistics has an easy-to-use website. I recommend it highly.


Closing comments for duration of Craig trial

Sorry, but I’m closing comments until a verdict is reached in the Brandon Craig trial. I’m getting some rather ugly comments–amounting to death threats against participants in the trial and others. I think you all should know that it is illegal to make a threat against someone via the Internet, including via email.

This hasn’t happened to this blog before. I’ve had spam problems, but not this. It probably should be expected that this particular trial would inspire such “things” to crawl out of the woodwork.

Phil Spector: Will the Jury Quibble over Words?

Today, apparently, the jury began deliberating whether Phil Spector is guilty of second degree murder, involuntary manslaughter, or is innocent. I watched Beth Karas’s brief summary of what both the prosecution and the defense had to say in closing arguments.

In my opinion, the jury will dismiss the idea this time that Lana Clarkson committed suicide. They may discuss whether she might have been driven to it by Spector’s taunting her. She had good reason to be depressed. She was probably humiliated that night by what happened at the club where she was a hostess.

But even those jurors who think that Ms. Clarkson may have “voluntarily” pulled the trigger, I believe, will spend most of their time pondering the jury instructions in which both “second degree murder” and “involuntary manslaughter” are defined for them according to California law.

I don’t think this will be an easy decision. I’ve been through something like this in jury deliberations.

This is a hellish position for jurors to be placed in. Unless there’s a lawyer on the jury, they will have to use their common sense and understanding of the English language.

In my opinion, jury instructions are a great abomination. I’m not particularly a proponent of “the plain English” movement in the law. But neither do I think the courts should force jurors to think and speak like lawyers.

A Juror Judges the Eye-Witnesses

The prosecution of Brandon Craig for a triple-murder in 1999 is based primarily on eye-witnesses. I’m not a lawyer, just a former juror, who has heard that most criminal prosecutions are based on such “direct evidence,” which includes eye-witness accounts and confessions. Only a minority of crimes are real whodunits, “solved” by clever sleuthing and analysis of “clues,” (a.k.a. “circumstantial evidence”).

Direct Evidence

Cops catch the bad guys “red-handed” sometimes. Criminals confess sometimes. Most criminals “get ratted out” by eye witnesses or accomplices or someone who has heard something from someone about the crime, including the criminal. The latter is how the cops caught Brandon Craig.

But regardless of the identity of the person supplying evidence against a defendant, all such witnesses must subject themselves to the eyes and ears of a jury—a jury of the defendant’s and the witnesses’ peers. These peers are their neighbors. They speak and look like them. They share cultural norms and some experiences. They are best able to assess the truth or falsehood of the testimony.

Even confessions are submitted for a jury’s evaluation. In the recent Kathleen Hilton arson/murder trial, the jury had to assess the trustworthiness of the defendant’s written, signed confession.

In the Brandon Craig trial, several prosecution witnesses have identified the defendant as “the shooter.” One was a former girlfriend and distributor of drugs to the defendant. Two others were apparently fellow drug dealers. All three said they witnessed the murder and helped in the cover-up. Other witnesses testified that they had heard hints of all this beginning soon after the trial—their testimony is offered to the jury to corroborate the eye-witness stories.

Cross-Examination to “Impeach” the Witnesses

Lawyers must learn in law school that the best way to undermine eye-witness testimony is to convince the jury that it can’t be trusted because the witness is an admitted liar or even a criminal. I’ve heard them say something to the effect that a witness who “is false in one [statement] is false in all.”

This is a rather distorted version of Kant’s categorical imperative, I suppose. Kant famously pointed out that in the matter of ethics, the telling of a single lie can cause everything a person says or does to be questioned. He didn’t say that if a person is caught telling a single lie, therefore everything he says is a lie—just that his auditors need to examine everything he says carefully for errors and falsehoods. It isn’t something a rational, ethical person should want to have happen. It would be like living under a microscope.

Jurors understand this, even though lawyers may not. Jurors have common sense. They understand that a witness may not tell the whole truth and nothing but the truth and yet may still tell a fundamental, essential truth. They understand that a witness may lie to make herself sound less culpable than she really is and still tell who “the shooter” really was.

And jurors understand this, even after the judge reads them jury instructions that tell them they may disregard all the testimony of a witness if they believe he or she lied. This is also something lawyers (who include judges) must learn in law school: they seem to think this idea of “false in one, false in all” is the basis of the most reasonable of doubts. They expect juries to acquit defendants like Brendan Craig because the eye-witnesses are such flawed characters themselves.

How Can a Jury Sift through Lies?

Jurors are human (a fact that even courts seem to acknowledge). Humans with normal hearing and eyesight learn from birth to interpret facial expressions, eye movements, body language, and tone of voice. Jurors use these skills to evaluate witnesses.

Some jurors may even have read or studied “body language” and “neuro-linguistic programming.” I know I did. A few years ago, both were management-training fads, and every businessperson I knew took courses in NLP and reading body language. (After all, a manager has to be able to put an employee in the hot seat and “grill” him.)

In the Brandon Craig trial I watched the testimony of two young women, whom commentators judged to be completely incredible, defensive, and weeping crocodile tears. I guess I didn’t get as good a look at them during their close-ups as the commentators did. I detected nothing evasive or phony in their demeanor. Defensive, yes. With good reason.

On the other hand, these same commentators have called the defendant’s demeanor “professional,” when I would have characterized it as “flat affect,” forensic psychologists’ favorite description of psychopaths. He doesn’t seem to blink very often, either.

For example, the “girlfriend” answered questions put to her by defense attorney, Pamela Mackey, without once opening her eyes wide in the typical gesture a person makes when she wants very much to be believed. And a sister of one of the drug dealers had to admit she had lied to police and to another witness. When asked if a certain statement was a lie, she shook her head “no” (a reflexive denial of an obvious lie) but still said “yes” without hesitation. In other words, she was forcing herself to tell the truth. So, I found these two young women credible, for the most part.

For the most part. And here’s the crux of the issue. I suspect that the jurors in this trial understand that most of these witnesses lied about something on the stand. The reasons why they waited so long to come clean seem to me to be obvious “stretching of the truth.” The girlfriend claimed she was afraid for her own life (and I do believe this), but I also suspect the real reason she kept quiet was that she knew she was guilty of murder under the law, too. If you’re committing a crime (such as dealing drugs and threatening people to get them to pay you) and people get shot, you have committed murder under the law, whether or not you pulled the trigger. She’s guilty, and she’s been given immunity. She lied about that. But that doesn’t mean everything she said was a lie.

In Cook County Criminal Courthouse

A couple of years ago, I was a juror in a sexual assault and kidnapping trial in Cook County Criminal Courthouse. The assailant was not only seen by eye witnesses, they witnessed the assault and supposed kidnapping and then performed a citizen’s arrest.

One of these brave citizens testified about what he had seen. It was all believable until he went a bit too far. He testified that he saw the defendant pull his victim from a sidewalk twenty feet (halfway) up a railway embankment and conceal her behind a bush. On cross-examination, the defense attorney asked him how he could be so sure it was twenty feet. He replied that he had measured it with a tape measure.

In deliberations, all the jurors agreed that he was lying about the measurement. We had photographs of the embankment and bush, and all knew most railway embankments are at most only about twenty feet high. We all thought the prosecution or cops must have told the witness that he should say the distance from the sidewalk to the bush was significant so that the judge could call this a kidnapping. All of us knew it was a well-intentioned lie under oath.

We didn’t discount everything he testified because of it.

What to Wear to Jury Duty–or Not Wear, as the “case” may be

I’ve had so many hits on my handful of blog posts related to what to wear to jury duty that I’ve caved in and done my civic duty: I’ve added a web page to my website, www.ccmambretti.com, on this fascinating topic. If you want the real scoop on dressing for jury duty, please visit the page at www.ccmambretti.com/What_to_wear_to_jury_duty.html . On my website you’ll also find a quiz called (facetiously) “Avoid Jury Duty” and a page of juror resources.

I hope it helps some of you who like me believe that jury duty is a duty and a privilege. And that people who take the time to serve are good people.

Yale’s James Q. Whitman on “Reasonable Doubt”

In 2006 I downloaded a paper posted online by James Q. Whitman of the Yale Law School, “The Origins of ‘Reasonable Doubt.’” I’m glad I downloaded it when I did, because he has since taken it off the web and published his full study as The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2007, Yale University Press). (At $40 it’s actually quite reasonably priced for a legal treatise, but the PDF was free.)

I’ve used Prof. Whitman’s web article extensively in my historical fiction research since I first found it. The connections he finds between religion and the law are fertile ground for mysteries, crime stories, and courtroom dramas.

Prof. Whitman’s premise is (in brief) that “reasonable doubt” is a construct used for centuries by British courts to make conviction of one’s peers for serious crimes palatable to a jury. The Judeo-Christian tradition makes “bearing false witness” and all false accusations (as well as false convictions) a serious sin. What devout Christian who believes killing is a sin could send a person to the gallows? After all, “Justice is mine, saith the Lord,” not the purview of the average juror.

I wish the Justices of the U.S. Supreme Court would read Mr. Whitman’s book. The standard of proof in American courts should not be proof “beyond a reasonable doubt,” because that standard is low, not high. In addition, Mr. Whitman is absolutely correct when he says:

  • “The formula ‘reasonable doubt’ is, after all, hardly easy to interpret. How exactly are you supposed to know when your doubts about the guilt of the accused are “reasonable”? Jurors are sometimes understandably baffled.”

As a language-lover, I would say, jurors are supposed to be baffled by the phrase, “beyond a reasonable doubt,” because that’s what the British judges and prosecutors intended to do when they contrived this “monstrous coinage.” The phrase was utterly incomprehensible in the 18th century, and it’s now always misinterpreted.

Whenever a jury hangs these days, I’m convinced its because some of the jurors interpreted “beyond a reasonable doubt” to mean that criminal guilt can be assessed based on a “reasonable” amount of evidence, and some of the jurors interpreted it to mean innocence should be assumed if you wonder whether someone other than the defendant could have done it. Neither is a very rational approach to examining evidence.

Which leads me to several other issues: forensic “evidence,” “absence of evidence is not evidence of absence,” the arcane Scholastic construct called “case law,” crime “statistics,” and so much more . . . .