Drew Peterson Jury—What are they thinking?

Today the Drew Peterson jury is hearing closing arguments and soon will retire to the jury room to deliberate. Media analysts are at this very moment trying to read the jurors’ minds. As a former juror, I can tell you one thing about the juror’s minds for certain: most of the jurors made up their minds during the trial.

Sidebar: Lawyers like to think jurors make up their minds after the opening statements, but this is not true. After the opening statements, jurors make up their minds only about what the most important evidence should be. In the Peterson trial that was likely the evidence proving the death was homicide.

Closing arguments do not make or break a case for either side. All that closing arguments accomplish is to provide a vocabulary and set of phrases for jurors to use in their deliberations. One side or the other in the Peterson trial has already won, and their closing arguments will be repeated in the jury room to help convince any undecided juror to join the majority. I really can’t believe that more than one juror is entirely convinced Peterson is guilty. It’s more likely that most jurors don’t believe the prosecution met the burden of proof. They may suspect Peterson has done some “bad things,” but they can’t say with confidence that they know what they were.

Sidebar: Personally, the more I heard about Stacy Peterson during the trial, the more I wondered if she’s the only wife Drew did away with. It seems she wanted a divorce and began to spread rumors that Drew had killed his former wife. If so, Drew might have “snapped” and closed her rumor-spreading mouth permanently. However, that doesn’t mean that Stacy really believed or knew he killed Kathleen Savio.

It’s impossible to tell from outside the courtroom which of the sides has already won. Since I have a bias in favor of the Bill of Rights and in favor of Blackstone’s admonition that it’s better that ten guilty men go free than one innocent man suffer, from what little I know of what went on in the trial, if I were on the Peterson jury I would vote “not guilty because of a reasonable doubt.”

Reasonable doubts in the case seem to include whether Kathleen Savio’s scalp wound was sufficient to have knocked her out long enough to drown in the bathtub; just how much water was in the bathtub at the time she injured her scalp; when her death occurred and, consequently, whether Drew Peterson has an alibi for the time of death. Those are significant lacunae in the evidence and, therefore, produce significant and reasonable doubts in my mind as to whether it was an accidental death or a homicide. Even if the jury concludes on the basis of evidence about which I know nothing that it was homicide, they still have overcome the hurdle of knowing when she died and whether Drew Peterson had the opportunity to have killed her.

Much has been made of the Peterson jury’s “bonding.” They coordinated their outfits on a few days, once apparently dressing in the Chicago Bears’ colors, blue and orange. This is also a clue to me, a former juror. The more bonding a jury does, the easier it is for them all to agree on a verdict. Given that the Peterson jury demonstrated its cohesion in such a light-hearted way tells me they aren’t worried about having to send a former police officer to the slammer for life. Believe me, when you’re worried about having to convict somebody of a capital crime, you don’t dress up like your favorite sports team. You’re anxious, can’t sleep, and if you’re female you cry a lot at home.

For court-watchers curious about what goes through jurors’ heads I recommend Dr. Sunwolf’s Practical Jury Dynamics and Practical Jury Dynamics 2.  Or, for a less-intellectual insight into jurors, please download a copy of my The Juror Hangs from Amazon Kindle or B&N Nook (an ignore the lone disgruntled reader who gave me a bad review. I know who she is).

 

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Summation to the Jury—Casey Anthony Trial

Closing arguments in the Casey Anthony trial are currently scheduled for Sunday. In every televised criminal trial I’ve seen, closing arguments make or break one side or the other, and it’s usually the defense that’s broken.

The only closing argument I can remember that “made” the defense was Johnny Cochran’s in the murder trial of O. J. Simpson. Every other defense closing makes one of two fatal errors: either (1) they fail to connect with the jurors as common-sense human beings when they make complex or incomprehensible appeals to “reasonable doubt” or (2) they skip over at least one big gap in the defendant’s story. In Casey Anthony’s case, I suspect the defense wants to skip over the gap between the swimming pool and the woods.

The Rhetorical Impossibility of Reasonable Doubt

I’m a Ph. D. in English Language and Literature, which is a way of saying I’m an expert in English rhetoric and narrative. In my expert opinion (yes, I’ve written articles in peer-reviewed journals and taught college courses in these fields), it is impossible to explain the concept of reasonable doubt to contemporary Americans who speak English, because it is a nonsensical term. (Please see my posts in this blog’s “Reasonable Doubt” category.)

Any defense attorney who tells a jury they must acquit a defendant based solely on “reasonable doubt” will end up convincing the jury that he has no case for innocence and that therefore his client must be guilty of something, even if it isn’t exactly what the prosecution claims. Furthermore, a defense focus on the reasonableness of doubt forces the jury to fall back on their common sense, which will tell them that everything in their experience is different from what the defense claims happened.

Think about it: have there ever been twelve jurors all of whom found themselves standing over a body holding a smoking gun, a bloody knife, or duct tape? Of this fact there can be no reasonable doubt.

Here’s another way to understand the problem for the defense in every murder trial: doubt is an emotion, not a logical process; emotions are not reasonable—ever; consequently jurors can’t honestly say they have any doubts that are reasonable. Doubts, yes. Reasonable ones, no, and therefore they can’t argue in favor of their doubts to the rest of the jury during deliberations.

To see that I’m right, all you have to do is read through the post-trial statements jurors make to the press. In every case, at least one juror will point to an item of evidence that the prosecution made little of and the defense made nothing of, and he or she will say, “We talked about that a lot and concluded the defendant’s claims about it did not make any sense.”

For example, in the trial of Raynella Dossett-Leath, one juror pointed to the location of a telephone on a nightstand as proof the defense was lying (note: I use “defense” instead of “defendant” purposely, because the defendant did not take the stand.)

The Casey Anthony jurors will require Baez to connect the ALL the dots, not just the ones about which there can be no “reasonable doubt.”

Gaps in Narrative

Other than Johnny Cochran, I’ve seen no defense attorney who knows how to tell a good story in closing arguments. That’s what “narrative” is, a good story. Jose Baez told a good story in his opening statement in the Casey Anthony trial, but the case he presented to the jury after that has big gaps in it, gaps that destroy the narrative.

Narrative isn’t something that only fiction requires. Narrative is necessary in all human interactions. If either the prosecution or the defense doesn’t tell a good story in their closing arguments, the jurors will have to fill in the gaps for themselves. Believe me, no lawyer should want that to happen during deliberations. I’ve seen what happens when jurors are left with huge questions—they start talking about possibilities. Some start rambling and can’t be stopped. An no jury instruction to avoid speculation will make any difference.

One reason narrative is important is that it is the foundation of memory. Without a narrative—a logical, compelling story to our lives and all events in our lives—our memories become scrambled and vague. In a trial, jurors easily forget what the point is unless the attorneys keep reminding them of it.

Take the Casey Anthony trial as an example. The prosecution’s narrative was the timeline from early May 2008 to December 11, 2008, when the remains were found. But, unfortunately for prosecutor Ms. Drane-Burdick, that timeline is an investigation’s narrative, a process completely unfamiliar to the average person. It isn’t a compelling story.

Commentators present in the courtroom reported that during the prosecution’s case, which was highly technical, jurors took lots of notes—at least at first. This was because their memories were being overloaded with seemingly meaningless details. 

Commentators also reported, though, that the jurors quickly stopped taking notes during the defense case. This, IMHO, was because Jose Baez gave them a compelling story up front. They knew where he was headed. His attack on the prosecution’s forensic evidence was effective (as it had also been during cross-examination of prosecution witnesses). The jury already understood Baez’s most-technical arguments.

But the Casey Anthony defense rested without being able to present some key evidence of its own, namely, evidence that Casey had told at least two of her boyfriends “secrets” about allegedly incestuous behavior of her father and/or brother. This is a huge gap in the narrative, which the defense will have to fill in the closing statement—or at least provide an explanation to the jury of why they didn’t present this evidence.

Sidebar: Judge Belvin Perry excluded this testimony as hearsay. But the logic of the hearsay laws baffles me, as I have written elsewhere. Under the hearsay exception, “excited utterances” of a suspect may be used to show “state of mind” at or near the time of the crime. Under this rule many judges admit the hearsay words of a defendant. So why can’t the Anthony defense present her excited utterances about incest, especially when the defense is accusing Casey Anthony’s father of being an accomplice in the cover-up of her daughter’s death.

I, for one, expected at minimum a psychologist’s assessment of Casey Anthony’s pathological lying to fill in this gap in the evidence.

George and Cindy Anthony’s Story

Baez will certainly need to remind the jury of the dysfunction of the Anthony family, especially the bizarre behavior surrounding Caylee’s birth, George’s abandonment of the family for a period when Caylee was an infant, Cindy’s changing “medication” (which severely affected her memory of critical events while testifying and which was also referred to by Ms. Drane-Burdick), Cindy and George’s ability to compartmentalize and hold mutually exclusive ideas in mind at the same time, etc.

I think the jury will want the defense narrative to begin in early May 2008 when Casey and Caylee essentially left the Anthony home:

  • Why did Cindy hound Casey by phone after that?
  • Why did no one in the Anthony family check out the mysterious Zanny the Nanny before she had a chance to mistreat their granddaughter (if they truly believed she existed)? Why didn’t they check her out if they believed Casey wasn’t responsible enough to choose an appropriate caregiver?
  • Why did George Anthony drive the odiferous car home and then go to work, while his wife called her son Lee to come to the house and smell the trunk for himself?
  • Why did Cindy call 911 and first claim Casey had stolen money from her and had stolen her car, before she told the operator that car smelled like it had a dead body in it?
  • Why did she tell the policeman who showed up afterwards that Casey had fraudulently used her credit card and then had him handcuff Casey and put her in the back of his patrol car?
  • Why did it take Yuri Melich in July to call Casey’s bluff on working at Universal Studios when her parents claimed they thought she had worked there at least since January—when George decided to check up on Casey’s story that she also had a part-time job at Sports Authority, which he discovered to be untrue?

Casey Anthony’s Story

Even with an emphasis on the Anthonys’ bizarre behavior, it is still going to be very difficult for Jose Baez to fill in several gaps in the defense narrative.

Gap 1:  I believe Baez can point to evidence and testimony for all defense claims up to and until Casey went next door to borrow a shovel. I’ve thought and thought about this. What keeps coming to mind is the fact that the Anthonys had several shovels in a locked shed, for which Casey had no key. I can’t be the only person who concludes that’s why she needed to borrow the shovel. Frankly, the shovel is a smoking gun: what possible purpose could Casey have wanted to put a shovel to on the day she claims her daughter died—other than to bury the body. (The jury won’t buy an argument that the neighbor was mistaken or lying.)

Being prone to fantasize, I finally dreamed up a possible scenario, but I don’t know whether the judge will allow Baez to make these arguments. Surely the prosecution will claim “it assumes facts not in evidence.” My narrative is that George Anthony, as a former policeman, instructed Casey to borrow the neighbor’s shovel to bury the body rather than using an Anthony-family shovel because that use would leave forensic evidence.

Gap 2: The next gap in the narrative is how the body got into the trunk of Casey’s car, which I’m convinced it did. Baez has refuted all the “voodoo” scientific evidence of human decomposition in the trunk based on odors, but he has not (IMHO) refuted the testimony of the tow-truck yard operator, who said he had ample experience with both garbage and human decomposition, and who said the odor in Casey’s car was clearly human decomposition.

As an expert in narrative, my advice to Jose Baez  to admit that the body ended up in the trunk—but not in the way the prosecution claims. If he does so, he also needs to provide a coherent alternative, such as:

  • George Anthony put the body in the trunk wrapped in a blanket and drove around with it while body fluids seeped into the trunk carpeting. He was out of his mind with grief. Then he finally realized he needed to bury the body, so he returned home, planning to wrap the body and blanket in plastic and secure it with tape.
  • Or, George Anthony thrust the dead body of his granddaughter into her mother’s arms and told her to get out the house and to dispose of the body so her mother wouldn’t find out that the two of them had neglected the child all morning and then found her drowned in the pool.

But, any explanation other than a commonsensical explanation of the body being carted around in the trunk of the car for some period of time will not fly with a jury. Of this I am certain.

Gap 3: Another potential gap in the defense narrative has to do with the gas can with the duct tape on it. Baez has conclusively shown that the duct tape on the gas can was a special brand not available in Florida and only from a supplier “up north” where the Anthony’s once lived. The defense has also pointed out the oddity that all fingerprints had been erased from the can and its handle before George Anthony gave it to the police the second time.

I suspect the jury has already filled in some of the “duct-tape gap” as it relates to the three pieces of duct tape found with the remains. The jury knows that only people in the Anthony household had access to the duct tape—a fact that points to the defendant. The jury also knows that George Anthony has tried to distance himself from the duct tape; in fact, the jury probably think he lied on the stand about recognizing the brand. But the jury also probably assumes he’s only lying about the duct tape because he doesn’t want to be associated with the crime.

There’s a Catch-22 here for the defense, however. In order to prevent the jury from buying the prosecution’s argument that Casey may have suffocated Caylee with duct tape, Baez will have to explain the three pieces. As I understand it, they are fairly short strips, not the lengthy tapes used by the Anthony family to bury their pets and certainly not the lengthy tapes necessary to secure a black plastic bag around a child’s body. Three short strips of duct tape are somewhat reminiscent of the Jonbenet Ramsey case, in which a child was found murdered with duct tape across her mouth and a ligature around her neck: is it possible to claim that Casey and/or George Anthony wanted to make it look as if an intruder had drowned Caylee in the pool? Hmm. No. I don’t think this will fly with the jury either. It’s too late to claim the duct tape was part of Casey’s attempt to blame the child’s absence and death on kidnappers.

But the jury has not yet filled in the “gas-can gap,” because the defense has not explained it: Who used the gas can for a purpose that would cause them to erase all fingerprints from the can? Was George Anthony wearing gloves when he handed the can over to the cops? Or did they collect it from him themselves and in such a manner (with gloves, say) so as to preserve all the fingerprints on it? And, if so, why? What did they suspect the can had been used for? No one disputes that Casey used the cans to fill her gas tank.

Baez has to fill in this gap somehow. Maybe he can claim that George Anthony had to have been the one to wipe the can down and, if so, that showed he had used the can or the gasoline in it for some guilty purpose. What could that be? Was he planning to cremate the remains?

Gap 4: From his opening statement, I (and probably all the jurors) believe Baez will claim at a minimum that the meter reader who found the remains moved them from their original location. The problem is the logical gap this puts in the defense narrative. If, as Baez claims, Casey was present when Caylee drowned in the Anthony pool, then she must have knowledge of where the remains were originally deposited. Did Casey and George try to bury the remains “decently” (so to speak)? Did the meter reader stumble across their “clandestine grave” and dig everything up?

The Narrative Is Too Flawed

Without some explanation for these gaps in Casey’s narrative, the jury will be forced to conclude that one of the prosecution’s explanations of events is correct.

At this point, I don’t see how the jury can fail to find Casey guilty of manslaughter at the very least. Of the three murder weapons the prosecution has argued for, the least offensive is chloroform. Unfortunately, Baez has already convinced me that there’s no real evidence of significant levels of chloroform that can’t be explained by combinations of co
mmon household cleaning products, let alone as an ancillary product of decomposition.

Of course, Baez could drop the drowning claim and argue instead that Casey used chloroform to sedate Caylee, not kill her, and that she died of that “accidentally.”

Frankly without a more coherent narrative of events, Caylee’s accidental death during chloroform sedation is far less horrific to contemplate than a death by suffocation at her mother’s hands. And we can be sure that Drane-Burdick’s summation is going to focus on the many horrors in this case, not the least of which is the idea of Casey Anthony driving around with her child’s rotting corpse in the trunk, stinking to high heaven.

So instead of providing a narrative, Baez will likely pound away on the reasonable-doubt argument. He’ll show how shoddy the state’s investigation was, how police entrapped Casey into lying and failed to read her her rights until she was in over her head, how sloppy the CSIs were, how George lied on the stand, how Casey was a great mother until the unthinkable happened (whatever that was), how Casey was always well-liked and loved by everyone but her parents, and how the only thing the state has proven beyond a reasonable doubt is that she lied to cover up her daughter’s death.

Is It Hopeless?

In one very high-profile trial (Texas v. Robert Alan Durst) the defense was able to convince the jury that there was no proof that the defendant murdered the victim in cold blood and that his story of self-defense was equally probable. The defendant claimed he was afraid that no one would believe him, because he had been accused of murder twice before (a novel defense, worthy of a novelist). As a result he attempted to cover up the victim’s death by dismembering the body and dumping it in Galveston Bay.

If I was Jose Baez I’d study the closing arguments in that case. But, then, Texas jurors may be very different from Florida jurors, and Baez might have to apologize for accusing George Anthony of conspiring to cover up his granddaughter’s death.

Below is the only coherent story I can think of, and I imagine the jurors are hoping Baez will give them an excuse like this to vote not-guilty on the first-degree murder charges:

Casey left home on June 16, 2008, with Caylee; she used chloroform to sedate her—for some reason like shopping—so she could leave her in the car for a couple of hours. When she returned, the combination of heat and chloroform had killed the child. She knew she would be sent to prison for negligence and manslaughter, so she decided to concoct the story. Casey isn’t a particularly rational person—maybe her father’s abuse is a partial excuse—but we all know jurors won’t buy “the abuse excuse” for murder. Casey can only claim she feared her parent’s wrath for what she had done.

So, she returned home to get the plastic bag and duct tape from the unlocked garage and then went next door to borrow the shovel. She drove around for awhile after that trying to decide where to bury the body and finally decided on the wooded area. She carried everything deep into the woods, where she buried the body in a shallow grave, as decently as she knew how (which was the way the family buried pets). Crazy? Yes. But no one thinks she’s particularly sane. (BTW: Ms. Drane-Burdick asked Cindy Anthony whether she would ever have buried a pet in a swamp. Obviously, it wasn’t a swamp when Casey left the remains in the woods.)

As soon as she left, animals dug up the grave. The bag kept them from consuming the remains immediately. As time passed a few tears appeared in the bag, insects invaded it, and finally animals got at it, too. Everything was scattered and moved closer to the road and path through the vegetation.

In August the meter reader spotted it—specifically a white skull. He moved things around. And then he tried to get someone to believe him. Because he knew he would never collect a reward if he took the items away to show someone as proof of his claim, he backed off. It rained. Everything was covered in water for a number of weeks. In December the meter reader had another chance to report the remains, and that’s what he did.

It’s better than leaving the jury wondering how Casey Anthony can expect them to believe any other story that’s full of holes.

Casey Anthony “hoist on her own petard”

For the moment, please accept my definition of “petard” as a “weapon.” (The word has a rich etymology.)

Yesterday CNN’s InSession presented a nice survey of the “capital or otherwise infamous crimes” most likely to dominate legal news this year. At the head of the list was Casey Anthony.

I have no doubt that the Anthony case will be our next trial of the century, because Ms. Anthony is incredibly photogenic. Before being caught up in a sensational child murder, she appears to have realized this and to have tried to worm her way into the club scene in Florida and to have claimed some sort of entertainment-world connection by lying that she worked for Disneyworld or Universal. (It isn’t really worth being too precise, because Ms. Anthony had no visible means of support and no real connection to anything of substance.)

Now her good looks are being used to skewer her. It’s not only that the jail where she’s housed has the legal right to record her every move, it’s that in Florida a “sunshine law” permits the justice system to release all these tapes to the media, and as a result the entire country is forced to watch endless video of Ms. Anthony whining to her parents.

Courtroom Gambits

As I have said before, IMHO (and I am not a lawyer) the prosecution in a criminal trial no longer has the burden of proof. The burden has shifted to the defense because of so-called “scientific evidence,” which forces a jury to assume the truth of the accusation as a premise to be undermined by the defense.

Despite this obvious situation, courtroom rules remain unchanged. The prosecution speaks first and last.

A criminal trial is governed not by the U.S. Constitution and Bill of Rights; it’s governed by centuries’ old traditions, known as common law and “the rules of evidence.” The common law derives ultimately from principles established by the Greeks, the Romans, and medieval feudalism. The rules of evidence derive from a pre-modern understanding (or misunderstanding) of natural laws and processes.

Casey’s Case

The Bill of Rights: Casey Anthony’s name was a household word long before her daughter’s body was ever found, and it wasn’t because anyone believed her child had been kidnapped. She was convicted of murder in the media (without “due process”). She has not been indicted by a grand jury (“No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”).

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The Supreme Court: Casey Anthony’s family has been scrutinized and vilified in the press despite liable and slander laws protecting people who are not public figures. She has been subjected to more adverse pretrial publicity than Dr. Sam Sheppard ever was.

The Burden of Proof of Innocence

Once the Anthony case goes to trial, it will be the defense’s burden both to prove that the prosecution’s case is severely flawed and to prove that Anthony is innocent of murder (they may have to admit child abuse and neglect). But she is not the first defendant who has had to overcome that burden. I believe most defendants have that problem.

Once in court, Anthony’s attorneys will have to be incredibly clever in the way they approach the jury—never mind their problems with the judge and the vindictive prosecutors. They have it in their power to make the jurors their allies or their enemies. And, IMHO (non-lawyer) the last defense they should use is “reasonable doubt.” (That’s the way to alienate the jury.)

To overcome a jury’s inclination to believe that the cops caught a bad guy and the state is prosecuting a bad guy, a defense must present:

  • a complete and coherent story.

A Complete Story

Aristotle taught us what a complete story is: it is a story with a beginning, a middle, and an end. Until I started writing fiction, I didn’t really understand the wisdom of this incredibly simple statement.

  • A beginning is “why” as well as “when.”
  • A middle is “what happened next.”
  • An end is “how” we got to this final place, the court.

A Coherent Story

Coherence comes from the “why,” the sequence of events, and the “how.”

Casey Anthony’s defense must tell a complete and coherent story to the jury—not to the prosecutor or the judge. The story must be both Casey’s story and her daughter’s story. They must present a substantial defense with at least one witness to contradict each prosecution witness. The defense must tell a believable story, even if the story doesn’t paint Ms. Anthony as a loving mother. (IMHO, it would be a big mistake to try to make her out to be sympathetic in any way.)

Yes, the defense must rigorously cross-examine every prosecution witness to plant the seeds of reasonable doubt in the jurors’ minds about the quality of the police investigation. And, yes, the defense case must put on expert witnesses to contradict all of the prosecution’s “forensic” evidence.

But in the end, what the jury is really going to want to know is: What was Casey Anthony doing in the 30 days before her mother called 911? 

The prosecution seems to be believe that what Ms. Anthony did was party, that she didn’t think anyone would notice that her child had vanished. But this is an incomplete and incoherent story in itself.

It’s almost impossible for this former juror to imagine that a young woman would be partying and expect no one to notice that her child had vanished. So, it should be possible for the defense to present a believable story, if they don’t cling to the arcane principles that guide most courtroom presentations these days.

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Florida v Mendez—time to take a step back, I suppose

In May, a researcher at Radboud University Nijmegen reported yet another link between language and the body: people who literally take a step back are more focused and clear thinking as they “approach” problems.

The“ear-witness” testimony yesterday in the Florida trial of Juan Mendez, Jr., “gave me pause,” and I decided to step back.

  • The case: A young woman and her mother were discovered slashed and stabbed to death. A child in a highchair was found just outside their home, dehydrated after apparently having been left on the porch overnight by the killer. The young mother’s estranged husband was arrested (he was under a restraining order at the time of the murder), but a grand jury refused to indict him because physical evidence tying him to the crime was missing, in particular, DNA evidence. Several months later, after a witness came forward who claimed to have been on the phone with the young woman when someone broke into the house, the state’s attorney charged the estranged husband (Mendez) with 2nd-degree murder.

My “knee-jerk” reaction to this abusive husband was that he must be guilty. I’m always ready to throw an abuser in the slammer. (So even if Mendez didn’t do it this time, I won’t be too upset if he’s convicted and put away for life.)

But having heard some of the ear-witness testimony, I’m now stepping back and rethinking my bias. And once again I’m glad I’m not on this jury. As much as I dislike admitting it, I don’t think the witness was credible. Now, I’m going to be “keeping my fingers crossed” that powerful, definitive DNA evidence will be put before the Mendez jury.

Ear-witness Testimony

The witness in the Mendez trial was a waitress-supervisor at a local Denny’s. On the evening the crime is believed to have occurred, she was at work and claims to have received three phone calls from the victim, who worked at the Denny’s. (However, no phone records exist to prove this.) In the final call, she claims the victim said something about a restraining order and that she heard a man’s voice say something about the boy being his and he had the right to take him for the weekend. She claims she heard a scream and then the phone went dead. Shaken, she approached a table of cops and told them what she had heard; they told her to call a police station and gave her the number to call (not 911). The station has no record that she called them. Even after Mendez was arrested the first time, she did not come forward; instead she claims she was afraid and suffered from vivid nightmares of the call—each of which, I believe she said, helped her to recall more and more details of the calls. By the time she contacted the prosecutors, of course, the local news had been full of details about the crime and about Mendez.

This is very sad. She may have received phone calls from the victim. But she didn’t convince me, and I wonder if the jury feels the same. Can you imagine what it would be like to sit on that jury and feel in your gut that he did it—but not be able to point to specific, credible evidence of his guilt?

Real science, as opposed to forensic science, is teaching us that memory is slippery. If the defense brings on a credible neuroscientist, they can easily debunk this woman’s testimony.

Researchers have shown that memory is far from photographic, even in people trained to remember things. Memory is a product not only of immediate experience, but also all one’s past experiences. Memories can and are re-recorded and recorded over all the time. Hypnosis and drugs can change memories permanently.

And—relevant to the Mendez witness—dreaming is the brain’s means of dealing with experience; recurring dreams do not retrieve more-and-more-accurate memories, but instead less-accurate memories that fulfill a psychological need of the dreamer. (I refer you to the following popular science magazines for summaries of memory research: Discover, “Out of the Past,” and Science News, “The Mesmerized Mind” and the Oct. 24, 2009 issue on “Slumber Science.”)

My guess: if the witness did receive several phone calls that night in which the victim asked for help, but she ignored her, the witness’s sense of guilt produced the nightmares, which became so vivid that she finally called the police.

The problem with pointing an accusing finger

Defense attorney Walls in the Carla Hughes trial points out quite rightly that the defense had no burden of proof in the case, even when the defense specifically accused someone else of the crime. The only time a defendant accepts a burden of proof is when he or she claims innocence by reason of insanity. Only then must a defendant prove anything: in that situation the defendant must prove insanity.

Mr. Walls made the remark in an on-camera interview with TruTV’s Jami Floyd. She asked him whether there really was evidence that Keyon Pittman (the cheating lover) actually did commit the crime and why the police did not charge him with it if there was.

Mr. Walls replied, in effect, that the jury may not have understood that the defense had no obligation to prove anything—including who really did commit the crime.

I feel certain that is exactly what happened. After all, the sole question the jury sent to the judge was whether or not the prosecution could have forced Ms. Hughes to testify. (I’ve already written that the question shows the jury did not understand basic tenets of the justice system in America.)

However, I have long suspected that pointing an accusing finger at a specific person is a big mistake, and now I understand why that is true.

  • Psychologically, a juror is prepared to give the defendant the benefit of the doubt, but, once another person is specifically named as a possible alternative culprit, the juror affords that new person the same benefit of doubt.

By accusing someone else, the defense unwittingly shifts the burden of proof to itself, no matter how many times the judge may admonish the jury against expecting a defendant to prove innocence.

I can’t recall a single case in which the defense pointed to a specific third party and subsequently prevailed with the jury. For example, O. J. Simpson’s “dream team” pointed to shadowy drug gangs as the more likely killer. They did not name a specific culprit.

But in the Raynella Dossett-Leath case, the defense specifically pointed to a rather unlikely person, the dead man’s daughter. The jury did not buy this—and in fact could not have bought it, since eventually the defense claimed the death was a suicide not homicide.

The rhetoric of a murder defense is crucial. Accusing a specific third party turns a defense into a prosecution.

Furthermore, the concept of reasonable doubt is incompatible with an affirmative, attack defense. How can a defense attorney say in the same breath, “I know who did it,” and “You should doubt the evidence presented in this case”?

In the end, I believe the Hughes jury had to conclude that the prosecution’s case was valid, since Ms. Hughes did not contradict several key pieces of evidence, most importantly that she possessed the murder weapon before and after the crime.

As for me, I don’t believe she is a murderer, but I also don’t know what really happened.

An ignorant jury in the Carla Hughes trial

The deliberating jury in the MS murder trial of teacher Carla Hughes sent an appallingly ignorant question out to the judge this morning: “Could the prosecution have called Carla Hughes to the stand?”

Let’s be generous and assume that this question came from only one juror who has never read the U.S. Constitution and Bill of Rights.

OK, so how did such an ignorant juror end up on this jury?

It seems to me that no juror who thinks a defendant can be compelled to testify against herself can possibly understand the concepts of “reasonable doubt” or “the burden of proof.”

If I were the judge in this case I would be sweating bullets, because this seems to indicate that at least one juror cannot understand the jury instructions he gave them and, so, cannot possibly return a valid verdict.

I wish I understood what constitutes grounds for a mistrial—because I think a question that demonstrates a complete ignorance of a defendant’s rights ought to be a cause for a judge to instantly declare a mistrial.

Carla Hughes Trial—the gun and the knife

Jurors are now deliberating in the murder trial of MS teacher, Carla Hughes. For once I’m not going to predict their verdict, because there is evidence in the case that “could cut either way”—a missing knife.

The accused, Carla Hughes, admits to having borrowed both a gun and a knife from a relative just days before her boyfriend’s pregnant fiancée was shot and stabbed to death. (She claimed she needed them for self-defense.) After the crime, she returned only the gun to the relative—and it was empty of bullets at that.

But my question is: Why a knife?

Actually, I have several questions about the knife:

  1. Does a woman ever seek to defend herself with a knife, especially when she also has access to a gun?
  2. Why borrow a knife in the first place? You don’t need a license to own a knife, and you can buy them in grocery stores.
  3. Assuming she borrowed the weapons in order to commit murder with them, why would she want a knife in addition to a gun?
  4. Who takes a knife in one hand and a gun in the other to murder someone? Especially to murder an unarmed, pregnant woman? (The knife was not used to cut open the victim’s womb.)
  5. Who breaks into a building—loudly, by kicking in a door—in broad daylight and holding a knife and a gun? Couldn’t she have knocked on the door politely and then pulled out the gun and the knife once inside the house?
  6. What happened to the knife? Apparently it was not retrieved from the crime scene. And if the killer took both weapons away from the scene, why didn’t he or she throw them both away? Why would Ms. Hughes have saved the gun in order to return it to her relative, but not the knife? A gun is generally easier to link to bullets than a knife is to knife wounds. (And don’t say killers are stupid and they don’t think about such issues. Ms. Hughes is highly educated and smart.)

I have many, many questions about this case, which neither the prosecution nor defense even attempted to answer. Since the prosecution is burdened with proof, though, I feel they ought to have had an answer to every question.

A Question from The Hung Juror to the Castillo Judge

What if I have “reasonable doubts” concerning the defense claim that the defendant “knew the difference between right and wrong”?


Since the defense has the burden of proof in an insanity defense, does that mean the defendant is presumed sane unless and until proven otherwise? If so, how can this be? It boggles the mind.


And how do I know whether or not my doubts are “reasonable”? I’m not a psychologist or a psychiatrist. Maybe all I’m feeling is a silly doubt about my own sense of what is right and wrong.



  • Sidebar (emendation): I learned late yesterday that the burden on the defense is “to the juror’s satisfaction” or something of that nature, not “beyond a reasonable doubt.” Under that standard I am even more convinced that this trial will not end in a convcition.

You might think that the Castillo jury has a simple decision to make. I’m sure the prosecution will argue as much. All the prosecutors have to do in their closing arguments is point to Castillo’s confessions and apologies.


But having been a juror on what seemed like an open-and-shut kidnapping case to the prosecutors and judge, I know that nothing a jury must decide is ever clear cut. In “my” case, the defendant was caught in the act and signed a confession. We stupid jurors still “nullified” the kidnapping charges.


If you want to know what it feels like to be a juror on a case the public considers to be open-and-shut, please download my novel, THE JUROR HANGS, from either www.Amazon.com or www.Smashwords.com. (Never heard of Smashwords? Click here for info and instructions on how to download the novel in multiple ebook formats: Sony, MobiPocket, etc.) It reads great on any iPhone, SmartPhone, Blackberry, Sony reader, or Kindle.


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First gavel-to-gavel coverage?

According to the Madison, WI, Capital Times, the first-ever gavel-to-gavel TV coverage of a criminal trial was the Hoffman murder trial (1980), although Goldfarb’s TV or Not TV doesn’t refer to it. However, the newspaper article is a very interesting account of the high-profile trial of a gorgeous, young woman—the sort of criminal defendant that has since become de rigueur in tabloid news (think Casey Anthony).

I came across this long-forgotten case when searching for information about the effects of pretrial publicity, a topic that seems to have fallen by the wayside since the O.J. Simpson murder-trial circus. In his case, while pretrial publicity was enormous, we seem only to remember the televised trial itself. (You might also remember that the trial was broadcast on radio, too, so we wouldn’t miss a word while commuting to work.)

Apparently, a Madison reporter named Karl Harter wrote a true-crime account of the Hoffman murders and trial: Winter of Frozen Dreams, which might make interesting reading (though now out of print, it rates five stars on Amazon). The book was recently fictionalized and made into a movie of the same name—not well reviewed. The trailer rather says it all: I can’t figure out why the actress (Thora Birch) who plays Barbara Hoffman appears to be wearing a wig.

The trial verdict is interesting. Of the two murders charged, Hoffman was only convicted of one, presumably because of “reasonable doubt” about the way the second victim died. I suspect the jury was confused by the prosecution’s presentation.

Hoffman was accused of poisoning a man named Berge with cyanide and then asking a man named Davies to help her dispose of the body. Davies went to the police, but before the trial he was found dead in his bathtub, himself the victim of cyanide. However, he left behind letters recanting his testimony against Hoffman. The jury found her guilty of the first murder (Berge) but not the second (Davies).

Does this make sense? They must have felt that Davies’ death was suicide and his “deathbed” recantation of his accusations was false; therefore his accusations must have been true. But who commits suicide with cyanide? Besides, Hoffman was a biochemistry student at the UW-Madison—a student of chemicals like cyanide.

Justice in the Trooper Higbee Trial

NJ State Trooper Robert Higbee was acquitted this afternoon. His attorney Bill Subin triumphed over a system gone a bit awry. The community was understandably anguished by the deaths of two lovely young women, but a conviction would have had implications for law enforcement throughout New Jersey, and possibly throughout the nation as well.


New York Times: http://www.washingtonpost.com/wp-dyn/content/article/2009/06/08/AR2009060803191.html


It must have been an agonizing decision for the jury. But they did a their duty.